NUMBER 13-02-346-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JESUS MENDEZ, III,
Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
O P I N I O N
Before Justices Castillo, Garza, and Baird
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. A jury convicted appellant of the charged offense and assessed punishment at confinement for life in the Texas Department of Criminal Justice–Institutional Division and imposed a fine of $10,000.00. We affirm.
I. Autopsy Photographs.
Appellant’s first point of error contends the trial court erred in admitting six autopsy photographs of the decedent. The State offered these photographs during the testimony of Dr. Roberto Bayardo, the chief medical examiner of Travis County. These exhibits were admitted over appellant’s objections that the photographs were prejudicial, that their prejudice outweighed their probative value, and that the purpose of the exhibits was to inflame the jury. The trial judge reviewed the exhibits, overruled the objections, and admitted the exhibits. Appellant advances the same arguments on appeal.
Under rule 403, relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403; see Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). Rule 403 favors admitting relevant evidence and presumes relevant evidence will be more probative than prejudicial. Long, 823 S.W.2d at 271; Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g). The trial court must evaluate the probative value against the risk that the photographs will have "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Long, 823 S.W.2d at 272 (defining undue prejudice). Factors in this evaluation include the number of photographs; their gruesomeness, size, and detail; whether the photographs are black and white or in color; whether the photographs are close-ups; whether the body is naked or clothed; and the availability of other means of proof and circumstances unique to each individual case. Etheridge v. State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994); Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App.1994). Photographs are generally admissible when verbal testimony regarding the photographed subject is admissible. Emery, 881 S.W.2d at 710; Phipps v. State, 904 S.W.2d 955, 958 (Tex. App.–Beaumont 1995, no pet.). Moreover, the fact that the scene depicted in the photographs is gory and gruesome does not make the photographs more prejudicial than probative when the crime scene is gory and gruesome. Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.– Dallas 1994, no pet.) (citing Long, 823 S.W.2d at 273). The ultimate question of admissibility is within the trial court's sound discretion. Jones v. State, 843 S.W.2d 487, 501 (Tex. Crim. App. 1992), overruled on other grounds, Maxwell v. State, 41 S.W.3d 196 (Tex. Crim. App. 2001). Reversal, therefore, is necessary only if the trial court's decision to admit the photographs constitutes an abuse of discretion, which is to say the decision was "outside the reasonable zone of disagreement." Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992).
In the instant case, we consider six photographs that are eight inches by ten inches in size. We first address State’s Exhibits 43, 44, 45 and 50. These photographs were taken after the body had been washed and cleaned, and depict: (1) a superficial wound to the decedent’s abdomen; (2) a superficial cut on the decedent’s chest and a very superficial scratch on the decedent’s chest; (3) a cut on the decedent’s forehead; and (4) two cuts to the decedent’s scalp, respectively. We have reviewed these photographs and agree with the trial judge’s implicit findings that they are not gruesome; the injuries depicted are non-fatal, and at least half are superficial. Therefore, we hold the trial court did not abuse its discretion in admitting these four exhibits.
We next consider State’s Exhibit 39, which depicts a stab wound to the neck and a superficial cut to the left shoulder. This photograph was taken before the decedent’s body had been washed and cleaned. State’s Exhibit 49 is a close-up photograph of the stab wound to the neck. In this photograph, Bayardo is depicted pinching the skin “to demonstrate the shape of the wound that reflects the exact shape of the knife.” The exhibit also shows a ruler “to demonstrate the length of the wound.” The ruler reveals that the injury is approximately one inch in length. Although these exhibits reflect a fatal wound, we do not find them particularly gruesome. Moreover, the indictment alleged the offense of murder in four separate paragraphs; each paragraph alleged the cause of death was “by stabbing and cutting the decedent with a knife.” Exhibits 39 and 49 were relevant in proving that allegation. The number of photographs used to prove this allegation was minimal. While the photographs are in color, they are not particularly gruesome. Their size is not over powering and does not distort the wound. Instead, these photographs provide clarity and detail. Further, since the photographs depict only the injuries to the neck, the fact that the decedent was naked is immaterial to our analysis. Therefore, we hold the trial court did not abuse its discretion in admitting these exhibits.
In conclusion, we hold that six photographs are not an excessive number and, when considered in the context of the instant case, we find the probative value of these exhibits is not substantially outweighed by their prejudicial effect. See Tex. R. Evid. 403. Consequently, the first point of error is overruled.
II. The Jury Charge.
The second point of error contends the trial court erred in refusing to specifically charge the jury on the law of parties. At the charge conference, appellant objected to “the application paragraph on the law of parties [because] it’s not specific enough as far as alleging what [appellant] did to aid or attempt to aid Philip Garcia.” In response to this objection, the State offered the following language to supplement the application paragraph:
[T]he State does have proposed language it would ask the Court to include in that particular paragraph and that would be that, ‘the defendant, [appellant], did then and there, with intent to promote or assist the commission of said offense, aid or attempt to aid Phillip Garcia by striking the said [decedent] with a telephone receiver,’ or, ‘by acting as a lookout for the said Phillip Garcia.’ or, ‘providing a knife to the said Phillip Garcia,’ or, informing the said Phillip Garcia of the presence of law enforcement,’ or, looking for the said [decedent] inside The Ice House Bar.’
Appellant objected to each of these proposed additions to the charge as not being raised by the evidence. The trial court overruled appellant’s objection(s) and authorized the jury to convict appellant either as a principal or a party by submitting the following application paragraphs:
Now if you find from the evidence beyond a reasonable doubt that on or about the 14th day of February, 2001, in Victoria County, Texas, [appellant] did intentionally or knowingly cause the death of an individual [decedent] by stabbing him with a knife: or did then and there, with intent to cause serious bodily injury to an individual, namely, [decedent], commit an act clearly dangerous to human life, to-wit, by stabbing [decedent] with a knife, that caused the death of said [decedent]; or
If you find from the evidence beyond a reasonable doubt: that on or about the 14th day of February, 2001, in Victoria County, Texas, Phillip Garcia did intentionally or knowingly cause the death of an individual [decedent] by stabbing him with a knife, or did then and there, with intent to cause serious bodily injury to an individual, namely, [decedent] commit an act clearly dangerous to human life, to-wit, by stabbing [decedent] with a knife, that caused the death of said [decedent]; and [appellant] did then and there, with intent to promote or assist the commission of said offense, aid or attempt to aid Phillip Garcia by participating in the attack upon [decedent], then you will find the defendant guilty of the offense of murder as alleged in the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
(Emphasis added). Appellant re-urged this complaint in his motion for new trial. At the argument on that motion, defense counsel forthrightly acknowledged that the case of Cunningham v. State, 848 S.W.2d 898 (Tex. App.–Corpus Christi 1993, pet. ref'd), seemed to contradict his argument.
In Cunningham, the parties’ application paragraph provided that the defendant "did direct, aid or attempt to aid Charles Poff." Id. at 906. Relying on Johnson v. State, 739 S.W.2d 299, 305 n. 4 (Tex. Crim. App.1987), this Court held there is no requirement that the parties’ application paragraph contain the evidentiary basis for the specific conduct that supports the submission of the parties issue. Id. We find the instant case is controlled by Cunningham. Consequently, we hold the language italicized above is sufficient to instruct the jury on the specific conduct by which appellant could be convicted as a party to the instant offense. The second point of error is overruled.
III. Evidence of the “Mexican Mafia.”
The third point of error contends the trial court erred in admitting State’s Exhibit 101, a federal information charging Fortunado Gomez with the offense of racketeering. The exhibit was admitted at trial over appellant’s hearsay objection. On appeal, appellant argues the exhibit should have been excluded under Rule 404(b) of the Texas Rules of Evidence. The argument on appeal does not comport with the objection raised at trial. To preserve an issue for appellate review, the argument on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997). Because the argument advanced in this point of error does not comport with the specific objection at trial, nothing is presented for our review. Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.–Corpus Christi 2000, pet. ref'd); Jones v. State, 644 S.W.2d 530, 532 (Tex. App.–Corpus Christi 1982, no pet.). Accordingly, the third point of error is overruled.
The judgment of the trial court is affirmed.
________________________
CHARLES F. BAIRD,
Justice
Do not publish.
Tex. R. App. P. 47.2(b)
Opinion delivered and filed
this 4th day of March, 2004.