NO. 07-01-0408-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 26, 2002
______________________________ANTHONY RAY GREEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 351ST DISTRICT COURT OF HARRIS COUNTY;
NO. 874,096; HON. MARK KENT ELLIS, PRESIDING _______________________________
Before BOYD, C.J., QUINN and REAVIS, J.J.
Anthony Ray Green (appellant) appeals his conviction for burglary of a habitation with intent to commit aggravated assault. His sole point of error involves the trial court's refusal to exclude a photograph of Raymond Green, appellant's uncle and one of the victims of the assault. The photograph depicts Raymond's nude upper torso, i.e. stomach, chest, arms and head, as it appeared after he died of complications from the assault. Also depicted are a sutured embalmer's incision measuring approximately four inches on the neck of the decedent and a hole in his abdomen (measuring one-half inch) through which the decedent was fed before dying. According to appellant, the picture was inadmissible because its prejudicial effect substantially outweighed its probative value. We overrule the point and affirm.
Background
According to evidence of record, appellant discovered his wife, Judy Green (Judy), at Raymond's house late one night. Appellant was armed with a metal object akin to a tire iron at the time and gained entry into the abode. He then proceeded to a bedroom, found Raymond asleep, awakened him, and then proceeded to beat his uncle for several minutes with the object. Judy attempted to intervene. When she did, Raymond attacked her as well.
Various blows struck Raymond in the head, resulting in his suffering from hemorrhage and stroke. Raymond ultimately regressed into a vegetative state and died after the passage of approximately five months.
The State subsequently indicted appellant for burglary of a habitation with the intent to commit aggravated assault. At trial, the picture of Raymond described in the opening paragraph of this opinion was offered and received into evidence, over appellant's objection.
Sole Issue
Appellant contends the court reversibly erred in overruling his objection that the picture was inadmissible since its prejudicial effect substantially outweighed its probative value. We disagree.
Standard of Review
Whether the trial court erred in admitting evidence depends upon whether it abused its discretion. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). The latter is abused when the trial court's decision falls outside the zone of reasonable disagreement. Contreras v. State, 73 S.W.3d 314, 321 (Tex. App.--Amarillo 2001, pet. ref'd).
Next, Texas Rule of Evidence 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." This rule encompasses all categories of evidence, including photographs. And, when a photo is involved, the Court of Criminal Appeals has conditioned its admissibility upon determination that it has some probative value which is not substantially outweighed by its inflammatory nature. Rojas v. State, 986 S.W.2d at 249. Simply put, it cannot be so horrific or appalling that it would likely cause a juror of normal sensitivity to have difficulty rationally deciding the critical issues of the case after viewing it. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Woods v. State, 14 S.W.3d 445, 452 (Tex. App.--Fort Worth 2000, no pet.). Furthermore, various indicia are helpful in making this determination. They include such things as the number of pictures being offered, their gruesomeness, their detail, their size, whether they are black and white or in color, whether they are close-up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Rojas v. State, 986 S.W.2d at 249; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). We now consider these indicia in determining whether the trial court erred at bar.
Application of Standard
As previously mentioned, the one photo involved depicts Raymond's nude upper torso, i.e. stomach, chest, arms and head, as it appeared after partial embalmment but before autopsy. It is rather small (no bigger than three by five inches) and appears in the record to be black and white; as such one could reasonable say that it does not present the object captured in great detail. Indeed, aside from the appearance of the sutured incision on the neck and the half inch hole in the abdomen, the visage is otherwise an unremarkable picture of the upper torso of an elderly dead man. There is no blood, dismemberment, disfigurement, mutilation, bruising, scars or like physical characteristic apparent other than the incision and hole. Nor is the photo a closeup of the body or any wound or physical characteristic appearing on same. And, as for the hole and incision, care was taken to explain to the jury that neither were created at the hands of the appellant but resulted from the embalming process and attempts to feed the decedent while alive. Yet, that Raymond had to be fed through a tube inserted in his abdominal cavity after the beating highlights the aggravated nature of appellant's entry into the home and attack upon the decedent. See Fletcher v. State, 960 S.W.2d 694, 700-01 (Tex. App.--Tyler 1997, no pet.) (noting that the photo of the deceased was relevant because it "illustrated, though graphically, one of the elements of the offense -- that the robbery was 'aggravated'"). Again, appellant was charged with burglary of a habitation with intent to commit aggravated assault. To the extent that "aggravated assault" consists of an assault causing "serious bodily injury to another," Tex. Penal Code Ann. §22.02(a)(1) (Vernon 1994), one cannot reasonably deny that suffering injury that requires one to eat through a abdominal tube evinces serious bodily injury. Nor can one reasonably deny that a beating which ultimately ends in the death of the recipient falls within that category as well; indeed, appellant admits as much in his brief when conceding that the picture had relevance or probative value.
In sum, no one disputes that the sole picture before us had probative value. Furthermore, the image captured therein is no more (but far less) graphic than the thoracostomy incision involved in Contreras v. State, supra, or the visage of an elderly man lying dead in a street with a gun shot wound to the face in Fletcher v. State, supra. And, in each of those cases, the reviewing court found no error in the admission of the picture. See Dams v. State, 872 S.W.2d 325, 327 (Tex. App.-Beaumont 1994, no pet.) (holding that it was not error to admit an autopsy photo depicting an incision). Thus, upon applying the facts of this case to the indicia itemized in Rojas, we do not find that the photo at bar was "so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of the case after viewing it." Woods v. State, 14 S.W.3d at 452. Nor did the trial court's decision to overrule appellant's Rule 403 objection fall outside the zone of reasonable disagreement or constitute abused discretion. Accordingly, the judgment affirmed.
Brian Quinn
Justice
Do not publish.
d to complete for failing to maintain a cooperative attitude, failing to demonstrate progress in the treatment program, and admitting to violating program rules regarding use of drugs and trading sexual favors for money and drugs. The State also produced the testimony of Karen Leal, appellant’s community supervision officer. Leal testified about appellant’s admission of using methamphetamine during her community supervision, engaging in deviant sexual activity, and failing to perform community service hours as required by the terms of her community supervision order.
At the conclusion of the State’s evidence, appellant presented the testimony of her mother, Shirley Cox. Cox essentially testified appellant’s violation of the trial court’s orders were due to her lack of education and alleged mental disability of being bipolar. Appellant testified and denied admitting any illicit drug use, however, she did admit to abusing prescription drugs on several occasions while on community supervision.
The State recalled Leal to testify that appellant, although referred to MHMR on several occasions, was not diagnosed with a bipolar condition. Further, Leal testified that appellant had never offered any excuse for failure to complete the ordered community service hours.
At the conclusion of the hearing, the trial court adjudicated appellant guilty of indecency with a child and found the allegations that she had violated her community supervision in the failure to register case to be true. From this judgment, appellant has appealed alleging that the trial court committed reversible error when it admitted evidence of the results of a polygraph test, that was administered while appellant was in the sex offender’s treatment program. We affirm the judgments of the trial court.
Polygraph Evidence
Appellant’s contention is that the trial court committed reversible error when it allowed the State’s witness, Renshaw, to testify about the results of a polygraph test taken by appellant as part of the sexual offender’s treatment program. The context in which the challenged testimony was presented is as follows:
Q. Okay. And what was your first area of concern? What became your first area of concern?
A. As interruptions– and there were a couple of interruptions that we were able to get Joey back on track. At one point she was having difficulty with drug abuse. She acknowledged that. We got her into an ACADA program. She completed that program, continued to group sessions. When we really became concerned about Joey was a failed polygraph in May of 2008.
Trial Counsel: Judge, at this point the Defense objects to any testimony about polygraph results. As the Court knows, polygraph results are just not admissible.
The Court: Well, and I would not allow it for purpose of making any ultimate determination, but I will allow it as an exception to hearsay just for the state of mind of this witness as to why she took the steps that she did with regard to her treatment. But I won’t consider it for the truth of the matter asserted.
Trial Counsel: Okay.
The State contends that appellant failed to preserve the issue of the polygraph evidence for review. See Tex. R. App. P. 33.1(a)(1). Appellant counters that she made a timely objection and that, since there was no jury, there was no necessity for a motion for mistrial and, therefore, all steps necessary to preserve the issue for appeal had been accomplished. Assuming trial counsel’s statement of “Okay” was not acquiescence to the trial court’s ruling, appellant’s contention is erroneous for another reason. This was not the only time the issue of polygraph testing was raised. The record reflects that the State, apparently based upon the trial court’s ruling, returned to the subject a number of times during the direct examination of Renshaw. Trial counsel never again objected nor indicated any dissatisfaction with the trial court’s previous ruling. Trial counsel could preserve the alleged error in the admission of the polygraph testimony by either objecting each time a question concerning the results of the polygraph test was asked or by obtaining a continuous or running objection to that line of questioning. See Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984) (holding that defense counsel must object each time allegedly inadmissible evidence is offered); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991) (approving the use of a continuous or running objection to an entire line of questions). In the case before us, appellant did not object each time nor obtain a running objection, therefore, the issue has not been preserved for appeal. Tex. R. App. P. 33.1(a)(1). Accordingly, appellant’s sole issue is overruled.
Conclusion
Having overruled appellant’s only issue, the judgments of the trial court are affirmed.
Mackey K. Hancock
Justice
Do not publish.