Opinion issued February 12, 2009
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-01055-CR
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HERBERT GEORGE FARNSWORTH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1068837
MEMORANDUM OPINION
Appellant, Herbert George Farnsworth, appeals a judgment that convicts him for the murder of his wife, Shannon Farnsworth. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). Appellant pleaded guilty to the jury, which found true the special issue by determining that he caused Shannon's death under the immediate influence of sudden passion arising from an adequate cause and assessed his sentence at 15 years in prison. In his sole issue, appellant contends the trial court erred in the punishment phase of trial by admitting unduly prejudicial autopsy photographs. We conclude the trial court's admission of the photographs was proper. We affirm.
Background
After he was served with a petition for divorce, appellant shot Shannon in the chest, killing her while she lay in bed. Appellant confessed to the offense, claiming that he shot her after she laughed at him about divorcing him. He pleaded guilty to murder, requested that the jury make an affirmative finding on sudden passion, and asked for community supervision.
In the punishment phase of trial, the State presented the testimony of Dr. Stephen Wilson, a medical examiner at the Harris County Medical Examiner's Office. Over appellant's objection that the photos were inadmissible under rule 403 of the Texas Rules of Evidence on the ground that they were overly prejudicial, (1) the court admitted six photographs taken of Shannon at the medical examiner's office.
The photos showed Shannon as she appeared in the morgue prior to autopsy. Exhibit 14 was of her face. Exhibit 15 showed the bullet wound into her naked chest. Exhibit 16 and 17 were close-ups of the single bullet wound. Exhibit 18 showed the naked back with an exit bullet wound above her naked buttocks. The medical examiner explained that the red tint to the skin shown on the photo was due to dependent lividity caused by the blood underneath the skin flowing to the location. Exhibits 19 and 20 were close-ups of the single exit bullet wound.
Without objection, the court admitted the autopsy report for the examination done on Shannon. The doctor also testified without objection about the autopsy, as follows:
Again, the entrance wound appears here on the chest, near the chest. The bullet passed through the sternum; that's the breast bone right here in the center of the chest. So, it passed through the breast bone or sternum. It passed through the heart, primarily on the right side of the heart. Then the bullet passed through the left diaphragm; that's the muscle that separates the chest from the abdomen. So, it passed through the heart, the left diaphragm, then it passed through the left lobe of the liver, then the bullet passed through the stomach, then it passed through the tip of the pancreas, then finally it passed through all those organs; it passed through the sternum, the heart, the left diaphragm, the liver, the tip of the pancreas, and the left kidney. Then it passed through the muscle here on the left back and then exited as we saw in the previous photograph. So, the entrance wound is here, right here on the upper chest near the center. The exit wound is here on the lower left back. So, the bullet passing right to left, front to back, through the body, downward.
The doctor's testimony was short, lasting only 15 pages in the record, with no cross-examination by appellant's attorney.
Autopsy Photographs
Appellant contends that the trial court erred by admitting into evidence autopsy photographs marked as Exhibits 14 to 20. Appellant asserts the trial court improperly overruled his rule 403 objection because the prejudicial effect of the photographs outweighed their probative value. Appellant claims that because he pleaded guilty and the autopsy report was in evidence, the photos had "zero probative value." Appellant specifically challenges Exhibits 15, 16, and 17 by asserting they are all close up shots of the same entry wound, and Exhibits 18, 19, and 20 by asserting they are all close-up shots of the same exit wound. According to appellant, "all of the photos are gruesome, close-up, color photographs which were displayed on the court's large screen television, detailing the complainant's facial disposition, her naked breast and buttocks, as well as the effect of the autopsy on her body."
The State responds that the photographs depict nothing more than the reality of the brutal crime appellant committed. The State explains the photos were taken before the autopsy was performed, as they do not show markings or incisions caused by the autopsy. The State asserts the photographs do not show any blood, and show only the complainant's face, naked breasts, and naked buttocks.
We review decisions by the trial court to admit photographs for abuse of discretion. See Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Therefore, we address appellant's evidentiary challenge by determining whether the trial court's ruling was outside the zone of reasonable disagreement. See id.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. A rule 403 analysis by the trial court should include, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time that the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).
Concerning the first factor, we determine that the photos have some probative value. The photos show visually what the medical examiner testified to without objection. Thus, they are probative in that they depict a visual reference for the verbal description of the cause of death that the medical examiner testified to without objection.
Appellant contends that because appellant admitted his guilt, the photos have no probative value. However, the photos were probative of the sentence to be assessed by the jury for the offense. The Code of Criminal Procedure provides that when a defendant pleads guilty to the offense for sentencing by the jury, the jury may consider the facts of the underlying offense. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 2008). In considering the facts of the underlying offense, the photos would assist the jury in understanding the appropriate sentence to assess for the act done by the appellant. We conclude the photos have probative value and the first factor weighs in favor of admitting the exhibits.
The second factor requires that we examine the potential of the evidence to impress the jury in some irrational way. In the guilt-innocence stage, autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 150-51 (Tex. Crim. App. 2001) (quoting Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998)). These photos do not show any mutilation caused by the autopsy. They are not gruesome and depict no internal organs or blood. The photos show how Shannon's body appeared when it first arrived at the medical examiner's office, before the medical examiner conducted his examination. The photos show only where the bullet entered and exited her body, as her body appeared unclothed but prior to any physical alterations by the medical examiner. This factor weighs in favor of admission.
The third factor also weighs in favor of admission because presentation of the photographs constituted only a few pages in the record. The entire testimony by the medical examiner took only 15 pages in the record and the photos took only a small portion of that time.
The fourth factor asks about the State's need for the evidence. This factor weighs slightly in favor of the State. Although the photographs depict what is conveyed in the verbal testimony and autopsy report, they communicate facts in an alternative way through visual explanation. The photos are therefore necessary in the sense that they are an alternate way of conveying information to the jury. Although the photos are unnecessary for establishing appellant's guilt, they show his handiwork, which would be necessary for the jury's consideration in deciding his punishment by examining the full extent the injuries he caused Shannon. The injury to Shannon could be weighed by the jury as it considered appellant's request for community supervision. The fourth factor weighs in favor of the State. Because the four factors support admission of the evidence, we conclude the trial court did not abuse its discretion by admitting the photographs under these circumstances. See Saldano v. State, 232 S.W.3d 77, 101-02 (Tex. Crim. App. 2007) (holding rule 403 did not bar admission of autopsy photographs that helped explain medical examiner's testimony and "depict[ed] what appellant caused and what verbal testimony properly described").
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).
1. See Tex. R. Evid. 403.