TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00124-CR
v.
The State of Texas, Appellee
NO. 47,797, HONORABLE JOE CARROLL, JUDGE PRESIDING
Three witnesses testified that they saw Slaton stab Matthew Martin and run away. They said that they did not see Martin do or say anything provocative to Slaton, but admitted that they were not watching Slaton and Martin at all times.
Medical examiner Joseph Prahlow testified that Martin was stabbed four times, once in the chest and three times in the back. The chest wound proved fatal, piercing Martin's heart and left lung. The three back wounds were relatively superficial and would not have caused death immediately, but might have eventually with continuous bleeding or infection. Martin also had two cuts on his left hand, indicating he attempted to ward off the blow.
Slaton testified that he stabbed Martin in self-defense after Martin threatened to kill him and physically attacked him. Slaton testified that Martin, a man he did not know, walked up to his table in a bar and demanded that Slaton buy him beer. When Slaton declined, Martin threatened his life. Slaton said he eventually offered Martin the rest of his beer and tried to leave. But Martin hit Slaton in the head with his fist hard enough to knock Slaton down. Slaton said Martin then charged him. Slaton testified that he did not remember pulling his knife, but must have when Martin charged. He remembered grappling with Martin, then running away because he believed Martin was chasing him, and finally calling the police. He did not recall stabbing Martin, but conceded that he must have. Other defense witnesses testified that this incident fit with Martin's previous actions and pugnacious reputation.
On appeal, Slaton's attorneys filed a brief and Slaton submitted his own pro se supplemental brief. In the brief filed by his attorneys, Slaton complains about the admission of autopsy photographs and a police report, and asserts that the district court became an advocate for the State by recharacterizing the State's objection before granting it. In his pro se brief, Slaton complains that his trial counsel failed to obtain a hearing on his competency to assist in his defense and failed to explore the prior convictions and the mental health of some of the State's witnesses.
By his first issue, Slaton contends the court erred by overruling his objection to the admission of three closeup photographs of the stab wounds to Martin's back. Slaton objected that the photos were cumulative of a photo of Martin's entire back that showed all three stab wounds. He also objected that the danger of unfair prejudice and confusion from the admission of the photos outweighed their probative value. He objected finally that the three photos were irrelevant because the deceased had been identified. The district court overruled the objections. We review a district court's decisions to admit evidence for an abuse of discretion. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).
The district court did not abuse its discretion by concluding that the photos were neither cumulative nor irrelevant. Though an admitted photo had shown all three wounds, the closeups showed the edges of the wounds and allowed the medical examiner to explain the nature of the weapon (e.g. that it had one sharp edge) and some aspects of its use (e.g. that the knife was twisted some during the stabbing). The more distant photo would not have helped the medical examiner illustrate that level of detail. The photos were thus not cumulative and were relevant to explain the medical examiner's opinion that the knife used was sharp and capable of inflicting serious bodily injury or death. (1) The relevance of the photos was not undone by a prior identification of the victim.
Nor did the district court abuse its discretion by concluding that the unfair prejudice or confusion created by the photos did not overwhelm their probative value. In making this determination a district court can weigh the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and the availability of other means of proof. Id. The exhibits in the appellate record are black-and-white copies of photos. Beyond showing small gaping wounds, the exhibits are not especially gruesome--no blood, ragged wound edges, bones, muscles, or internal organs are visible. The medical examiner explained that he pulled the edges of the wound apart in order to show the detail of the edges of the wounds, and explained how that showed the sharpness of the weapon. The exhibits are 8 ½ inches by 11 inches, and the section devoted to the wounds is a small part of that size; a ruler in the photos allows the viewer to assess the actual size of the wounds. Martin's torso is naked in order to show the wounds. When the photos were admitted, their probative value was strong to show the nature of the weapon and its damaging capability. We conclude that the district court did not err by overruling Slaton's objection. We resolve issue one against Slaton.
Slaton next contends that the district court erred by overruling his hearsay objection to the State's offer of a printed Temple Police Department computer record purporting to show the address of one of his witnesses. After Linda Sholars testified during the defense case about Martin's reputation for violence, the State attempted to attack her credibility by showing that she lived in a residence at 816 East Avenue A, which was owned by Slaton's father; even after the State showed her a document listing her name with the address, she denied that she ever lived at the address or told anyone that it was her address. The State called as a rebuttal witness a Temple police officer who found a report in department files listing Sholars as living at the Avenue A address. After overruling Slaton's hearsay objection, the district court admitted the report with all information redacted except Sholars's name and the address.
We conclude that the admission of the document was harmless because the rebuttal witness testified without objection to the substance contained in the document:
Q. Did I ask you to review the records of the Temple Police Department with regard to a Linda Sholars?
A. Yes, sir. You did.
Q. Have you done that?
A. Yes, sir.
Q. Let me show you what's been marked as State's Exhibit 28. Specifically, Detective, did you review the records to determine her listing as an address of 816 East Avenue A in Temple?
A. Yes, sir. You did.
Q. Did you determine that she in 1995 had in fact given that address to the Temple Police Department as her place of residence.
A. Yes, sir. I did.
The defense objected when the State then offered exhibit 28, but the testimony was already in without objection. The document added nothing to the police officer's testimony. We find no harm from the admission of the document, and resolve issue two against Slaton.
By his third issue, Slaton contends that the district court erred by abandoning his position as a neutral arbiter. During the punishment phase, Slaton called many character witnesses. Jannie Tallarigo testified about the improvement in Slaton's character since the offense and her willingness to have him live in her home if he was granted probation. The following exchange occurred during her direct testimony:
Q. Do you feel he has come to grips with what had occurred on February 8, 1997?
A. He has told me that he is very sorry that it ever happened. Wally is a shy person. He doesn't show his feelings very much, but he is very sorry and he wishes that above everything--He told me, he said, "If I could take it back--
[Prosecutor]: Objection, Your Honor. Non-responsive.
The Court: Sustained. They will ask you some more questions, ma'am.
Slaton contends that this shows the court taking sides because Tallarigo's answer was responsive and a proper objection, if any, would be that the answer was hearsay. Slaton contends that this excerpt shows that, in order to support the State, the district court "took it upon itself to rule that the answer was not admissible even though the State failed to voice the proper grounds in its objection."
We find no evidence of bias because the district court did not have to recharacterize the objection in order to sustain it. Tallarigo was asked whether she felt Slaton had come to grips with his actions. Tallarigo answered, not with the "yes" or "no" answer regarding her feelings that the question invited, but with what Slaton told her and her opinion about his emotional expressiveness. Though potentially supportive of her opinion regarding whether he had come to grips with the results of his actions, her relation of Slaton's statements and her opinion that he is shy is not strictly responsive to a question regarding her feelings about whether he had come to grips with the murder. The district court did not err by sustaining the objection, much less show bias in doing so. We resolve issue three against Slaton.
By his pro se brief, Slaton essentially challenges the effectiveness of the assistance of his trial counsel. He wonders why his counsel did not seek a judicial determination of his capability of assisting in his own defense, and why his counsel did not attack the credibility of State witnesses based on their criminal or psychiatric histories. Though Slaton attaches documents to his brief that he contends establish his incompetence, these are original to this appeal. We are limited to examining the record from the district court, and there is nothing in the record showing his incompetence or why his counsel elected not to pursue this issue. Though Slaton asserts that some witnesses had criminal records or psychiatric problems, use of those as impeachment may be limited by Texas Rules of Evidence 608 and 609; as with his competence, we find nothing in the record from the district court to explain why his counsel chose not to pursue this issue. We conclude that the record on direct appeal is inadequate to develop an ineffective assistance claim. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see also Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (quoting Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980)).
We affirm the judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices Kidd and Smith
Affirmed
Filed: April 13, 2000
Do Not Publish
1. The State's presentation of these items preceded Slaton's admission that he must have
caused Martin's death by stabbing him. His later concession therefore did not render these
photos unnecessary at the time they were offered.
ndoning his position as a neutral arbiter. During the punishment phase, Slaton called many character witnesses. Jannie Tallarigo testified about the improvement in Slaton's character since the offense and her willingness to have him live in her home if he was granted probation. The following exchange occurred during her direct testimony:
Q. Do you feel he has come to grips with what had occurred on February 8, 1997?
A. He has told me that he is very sorry that it ever happened. Wally is a shy person. He doesn't show his feelings very much, but he is very sorry and he wishes that above everything--He told me, he said, "If I could take it back--
[Prosecutor]: Objection, Your Honor. Non-responsive.
The Court: Sustained. They will ask you some more questions, ma'am.
Slaton contends that this shows the court taking sides because Tallarigo's answer was responsive and a proper objection, if any, would be that the answer was hearsay. Slaton contends that this excerpt shows that, in order to support the State, the district court "took it upon itself to rule that the answer was not admissible even though the State failed to voice the proper grounds in its objection."
We find no evidence of bias because the district court did not have to recharacterize the objection in order to sustain it. Tallarigo was asked whether she felt Slaton had come to grips with his actions. Tallarigo answered, not with the "yes" or "no" answer regarding her feelings that the question invited, but with what Slaton told her and her opinion about his emotional expressiveness. Though potentially supportive of her opinion regarding whether he had come to grips with the results of his actions, her relation of Slaton's statements and her opinion that he is shy is not strictly responsive to a question regarding her feelings about whether he had come to grips with the murder. The district court did not err by sustaining the objection, much less show bias in doing so. We resolve issue three against Slaton.
By his pro se brief, Slaton essentially challenges the effectiveness of the assistance of his trial counsel. He wonders why his counsel did not seek a judicial determination of his capability of assisting in his own defense, and why his counsel did not attack the credibility of State witnesses based on their criminal or psychiatric histories. Though Slaton attaches documents to his brief that he contends establish his incompetence, these are original to this appeal. We are limited to examining the record from the district court, and there is nothing in the record showing his incompetence or why his counsel elected not to pursue this issue. Though Slaton asserts that some witnesses had criminal records or psychiatric problems, use of those as impeachment may be limited by Texas Rules of Evidence 608 and 609; as with his competence, we find nothing in the record from the district court to explain why his counsel chose not to pursue this issue. We conclude that the record on direct appeal is inadequate to develop an ineffective assistance claim. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see also Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (quoting Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980)).
We affirm the judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices Kidd and Smith
Affirmed
Filed: April 13, 2000
Do Not Publish
1. The State's presentation of these items preceded Slaton's admission that he must have
caused Martin's death by stabbing him.