Opinion issued March 27, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00508-CR
__________
WALTER ANTHONY GRAYSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1005001
MEMORANDUM OPINION
A jury found appellant, Walter Anthony Grayson, guilty of murder, and the trial court assessed punishment at 75 years in prison. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). In two points of error, appellant contends that: (1) the trial court denied him his due process right to present a defense by excluding evidence of the complainant’s medical records and drugs found at the crime scene and (2) the trial court erred by admitting cumulative prejudicial photographs of the complainant.
We affirm.
Background
Appellant confessed to beating Daniel Herrera, the complainant, with a baseball bat 10 to 12 times causing Herrera’s death. Herrera received at least three blows to the back of his head causing a pattern of skull fragmentation. One of the blows to the back of his shoulder broke the small blood vessels and created a pattern of Herrera’s clothing imprinted on his skin. Another blow to his back broke his shoulder blade into pieces, making it impossible for him to lift his left arm. Herrera also received at least five hits on the front of his face, destroying his left eye and breaking his teeth.
Appellant confessed to the police and also testified in court that, on the day of the incident, he went to Herrera’s apartment to ask him for a ride to a softball game and that Herrera grabbed appellant’s bat and started demanding the $10 that appellant had previously borrowed from him. Appellant claims that Herrera hit him with the bat on the head and shoulder. Appellant also claims that he took the bat away from Herrera and then started hitting Herrera, but that he did not mean to kill him.
In support of his self-defense claim, appellant gave contradictory statements as to why he continued hitting Herrera. Appellant confessed that he continued hitting Herrera after Herrera “started reaching for different things in the apartment.” Appellant testified during trial, however, that he continued hitting Herrera with full swings of the bat after Herrera picked up a machete.
The police found a machete, but the investigating officer testified that the blood spatter evidence on the sheath of the machete and the spider webs around the sheath, indicated that the machete had not been disturbed. Also, a blood spatter expert from the Houston crime division testified that the blood spatter level showed that Herrera would have to have been on his knees or at a lower level while being beaten. The expert also testified that there was no physical evidence of any struggle. The expert concluded that the cause of death was blunt trauma.
The toxicologist found evidence of benzoylecgonine, the inactive substance of cocaine, and relative high quantities of methamphetamine in Herrera’s body at the time of his death.
Herrera’s mother and his girlfriend both testified that he used marijuana and methamphetamine. Herrera’s mother testified that he was also taking Adderall for attention deficit disorder. The toxicologist testified, however, that, because the amount of amphetamines found in Herrera’s body was so small, Herrera could not have had Adderall in his system at the time of his death. He also explained that, while some people who take methamphetamines can get very aggressive, some do not, and it could have a calming effect on someone who normally takes Adderall for hyperactivity. Appellant was convicted and sentenced to 75 years in prison.
Exclusion of Evidence
In his first point of error, appellant contends that, by excluding Herrera’s medical records and evidence of drugs found in Herrera’s apartment, the trial court denied him his due process right to present a defense.
Preservation
To preserve error for appellate review, a defendant must make a specific, timely objection during trial. Tex. R. App. P. 33.1(a)(1)(A). Further, even constitutional errors may be waived by failure to object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
Here, appellant argued at the trial court that Herrera’s medical records and the evidence of the drugs found in Herrera’s apartment should be allowed based on relevancy. Because appellant did not make an objection in the trial court based upon either federal or state constitutional grounds, he has not preserved this complaint for appellate review. See id.
We overrule appellant’s first point of error.
Admission of Photographs
In his second point of error, appellant contends that the trial court erred in admitting over objection cumulative and prejudicial photographs of Herrera.
Appellant complains of the admission into evidence of State’s exhibits numbered 8, 10–17, 22–30, 32–34, 36, 39–42, 45–47, 53–55, 59, and 60. Of the photographs complained of, only nine pictures show Herrera’s body or parts of his body as found at the crime scene (State’s exhibits number 8–16). Of these, three are closeup pictures of Herrera’s head and the wounds on his face and the back of his head (State’s exhibit 14–16). State’s exhibit 8–11 show different views of Herrera from different angles. State’s exhibit 12 and 13 show Herrera’s eyebrow and a piece of Herrera’s skull, respectively. State’s exhibit 45 shows Herrera’s skull and tissue on appellant’s bathroom floor, and it is a closeup of 46. The rest of the pictures show different views of blood spatter evidence from different angles (State’s exhibit 22-30, 32, 33-34, 36, 39, 40-42, 45-47, 53-55 and 59-60).
Appellant argues that the photographs display blood and “gore” and the prejudicial effect of the photographs seriously outweighed any probative value, so that their admission requires reversal of his conviction. We disagree.
Standard of Review
We review a trial court’s ruling on the admissibility of evidence under an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Schultze v. State, 177 S.W.3d 26, 38 (Tex. App.—Houston [1st Dist.] 2005 pet. ref’d). Where the trial court’s evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the reviewing court must uphold the trial court’s ruling. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996). All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401.
The Law
Texas Rule of Evidence 403 governs the admission of potentially prejudicial evidence. Tex. R. Evid. 403. In determining whether the exhibits were properly admitted, the pertinent question is not whether the exhibit was more prejudicial than probative, but rather, whether the probative value of the exhibit was substantially outweighed by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Peterson v. State, 137 S.W.3d. 739, 746 (Tex. App.—Houston [1st Dist.] 2004 pet. ref’d). In conducting a Rule 403 analysis, the trial court must consider the factors affecting a photograph’s probativeness and balance those factors against any possible tendency that the photograph has to encourage resolution of material issues on an inappropriately emotional basis. Peterson, 137 S.W.3d at 746. In making its determination concerning the likelihood of a picture to spur emotional decision-making, the court should examine several factors, including “the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, [and] whether they are close-up.” Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).
As the Court of Criminal Appeals has stated, additionally, relevant criteria in determining whether the prejudicial effect of a piece of evidence substantially outweighs the probative value include the fact
that the ultimate issue was not seriously contested by the opponent; that the State had other convincing evidence to establish the ultimate issue to which the [evidence] was relevant; that the probative value of the . . . evidence was not, either alone or in combination with other evidence particularly compelling; that the [evidence] was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely be efficacious.
Salazar, 38 S.W.3d at 152. The trial court should also consider whether the body has been altered since the crime in some way “that might enhance its gruesomeness to the defendant’s detriment.” Id.
Analysis
Here, exhibits 8–13, 45, and 46 show Herrera’s body or parts of his body as found by the police. Each photo was taken from a different view or angle. All the pictures are of normal size, only a few are close-ups, there is no evidence that Herrera’s body had been altered since the crime, and they were not overly gruesome. These photographs were used by the experts to explain the manner of the death and the amount of force used by appellant when hitting Herrera with the bat, tending to disprove the self-defense claim of appellant. Appellant identifies no particular aspect or characteristic of any of these eight photographs which would encourage resolution of material issues on an inappropriately emotional basis.
Exhibits 22–30, 32–34, 36, 39–42, 45–47, 53–55, 59, and 60, show different levels of blood–spatter evidence. All of these pictures are of normal size, and they are not overly gruesome. These pictures were also used by the experts to describe the manner in which Herrera’s death occurred, testimony specially relevant to the issue of the self-defense claim raised by appellant. These photographs, along with the testimony of the blood–spatter expert, addressed the absence of any struggle between Herrera and appellant and that Herrera was either on his knees or on the ground while being beaten, tending to disprove the self-defense claim of appellant.
Exhibits 14–16 are the only close-up pictures depicting Herrera’s wounds on his face and the back of his head, as found at the crime scene. These pictures are in color and show with detail the injuries Herrera suffered. These photographs, however, merely depict the brutality of the crime and the severity of the injuries and are probative of the manner of Herrera’s death. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (holding that eight gruesome pictures depicting the various injuries to the victim’s body were not more prejudicial than probative, because they showed nothing more than the reality of the brutal crime committed).
Appellant relies on Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005) to support his argument that the court erred in admitting the photographs depicting Herrera. In Prible, the Court of Criminal Appeals determined that the trial court abused its discretion by allowing autopsy photographs depicting dissected body parts of children. Id. at 736. The facts in Prible can be distinguished. The photographs in that case showed dissected body parts of children, whose death was not an issue at trial, specifically because appellant was not accused of murdering the children. Here, the photographs show Herrera’s body, the victim in a murder case, and appellant is accused of murdering Herrera.
This case is analogous to Ramirez v. State, 815 S.W.2d 636 (Tex. Crim. App. 1991). In Ramirez, the Court of Criminal Appeals determined that seven photographs depicting the deceased’s body in relation to one of the alleged murder weapons, her upper torso and face, and wounds on her neck and body were properly admitted over the appellant’s objection. Specifically, the court held that the photographs were probative of the manner of the deceased’s death and also of appellant’s culpable mental state because he had stated in his confession that he did not mean to kill the deceased. Id. at 647.
Here, the photographs depicting Herrera’s head and wounds on his face and back of his head, although arguably “gruesome,” are probative of Herrera’s manner of death and of appellant’s mental state, because he testified that he did not mean to kill Herrera. The photographs showed the severity of the injuries Herrera suffered, which tend to prove the culpable mental state of appellant inconsistent with his self-defense claim.
Each of the photographs corroborated testimony regarding the events occurring on the night in question. Further, because the evidence was in conflict with the confession of appellant —that he acted in self-defense — this photographic evidence “gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions.” Chamberlain, 998 S.W.2d at 237.
Therefore, we hold that the trial court did not abuse its discretion in admitting the photographs because their probative value is not substantially outweighed by the danger of needless presentation of cumulative evidence or by the danger of unfair prejudice.
We overrule appellant’s second point of error.
Conclusion
We affirm the trial court’s judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).