Affirmed and Memorandum Opinion filed June 5, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00046-CR
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ROBERT GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 361st District Court
Brazos County, Texas
Trial Court Cause No. 28,819-361
M E M O R A N D U M O P I N I O N
A jury convicted appellant of aggravated assault with a deadly weapon and assessed punishment at 18 years’ confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.
1. Legal and Factual Sufficiency
First, appellant contends the evidence is legally and factually insufficient to support the deadly weapon finding. We apply the usual standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2797 (1979); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000).
A person commits aggravated assault with a deadly weapon if the person uses or exhibits a deadly weapon during the commission of an assault. Tex. Pen. Code § 22.02(a)(2). A “deadly weapon” includes anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17). The term includes conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
Here, after appellant beat his mother and sister with his fists, he cornered them in a bathroom with a serrated knife and repeatedly used it to stab a mirror (which shattered) and a door. Three officers testified that a serrated knife such as the one used by appellant could be a deadly weapon, depending upon the manner in which it was used. Although appellant’s family members denied at trial that appellant pointed the knife at them, Officer Sayers testified without objection that appellant’s sister said he had pointed it at her and threatened to stab her with it. Considering the damage appellant did to the bathroom mirror and door, the knife was clearly capable of causing death or serious bodily injury if used in that manner toward a person. We find the evidence is both legally and factually sufficient to support the jury’s deadly weapon finding.
2. Hearsay
Second, appellant argues Officer Elkins should not have been allowed to testify that appellant’s sister told him several hours after the incident that appellant pointed the knife at her throat. Appellant’s hearsay objection was overruled on the basis that this was an excited utterance. See Tex. R. Evid. 803(2). Admission was within the sound discretion of the trial court, considering factors such as the time elapsed and whether the statement was made in response to police questioning. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The critical determination is whether the declarant was dominated by the emotion of the event at the time of the statement, thus reasonably showing it resulted from impulse rather than reason and reflection. See id.
Here, although the statement was made by appellant’s sister five hours after leaving the home and in the course of police questioning, appellant was still barricaded inside the home, which had been surrounded by police in an armed standoff. Officer Elkins testified appellant appeared emotionally drained and tired, and began to shake and cry while making her statement. More important, her testimony at trial showed that given time to reason and reflect she would protect her brother. This suggests her original testimony was the result of impulse rather than reason and reflection.
Moreover, even assuming admission was error, it was harmless. As noted above, there was testimony from another officer based on statements made by appellant’s sister immediately after her escape that established appellant’s threats toward her with the knife. Although at trial appellant’s sister denied appellant threatened her, the 9-1-1 tape was played for the jury, so they could hear her apparent terror at the time of the assault. As the statement to Officer Elkins was cumulative of other testimony about her statements at the time, we find any error was harmless, and overrule this point.
3. Improper Comment
Third, appellant contends a statement made by the bailiff within the hearing of jurors alluded to appellant’s incarceration, denying him a fair trial. When the bailiff commented in front of jury members that he was having difficulty transporting appellant to the courtroom,[1] appellant’s attorney objected and requested a mistrial. The bailiff did not mention jail or incarceration, but appellant argues the jury could have only interpreted it that way. However, appellant does not provide, nor are we aware of any cases in which such a comment was found to violate the Sixth Amendment right to an impartial jury. Even if we were to assume the trial court erred in denying appellant’s motion for a mistrial, the error was harmless. See Tex. R. App. P. 44.2(a); see, e.g., Cook v. State, 844 S.W.2d 697, 722–23 (Tex. Crim. App. 1992) (finding no harm when defendant was shackled during trial, as defendant presented no evidence that jurors actually observed the shackles). Consequently, we overrule this issue.
4. Photographs
Fourth, appellant complains the trial court erred in admitting photographs of injuries to appellant’s mother, arguing the photos were irrelevant and prejudicial. Because several witnesses testified without objection about the assault on appellant’s mother and her subsequent physical condition, appellant waived any relevance argument. See McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992) (holding when the same evidence is presented elsewhere during trial without objection, no reversible error exists). We therefore concentrate our analysis on whether the photographs were more prejudicial than probative.
The admissibility of photographs is within the sound discretion of the trial judge. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Nonetheless, 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. Tex. R. Evid. 403. Factors that may be considered in determining whether the probative value of photographs is outweighed by their prejudicial effect include the number of photographs offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-ups, whether the body is naked or clothed, the availability of other means of proof, and the circumstances unique to each individual case. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Erazo v. State, 93 S.W.3d 533, 535 (Tex. App.—Houston [14th Dist.] 2002, pet. granted).
State’s Exhibits 7 and 8 are two four-by-four inch Polaroid photographs of appellant’s mother taken after appellant’s assault, and depict her black eye and bruised face. As we previously noted, there was verbal testimony that appellant attacked his mother. See, e.g., Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991) (finding if verbal testimony of matters depicted in a photograph is admissible, generally so is the photograph itself); Erazo, 92 S.W.3d at 535. Of the State’s thirty-six exhibits, eight were photographs. Six were pictures of the crime scene showing the shattered mirror and pierced door caused by appellant’s repeated stabbing; exhibits 7 and 8 were the only two showing physical injuries of either of appellant’s victims. The photographs are not large and cannot be described as gruesome. In sum, we hold the trial court did not abuse its discretion in admitting the two photographs of appellant’s mother.
5. Parole Instruction
Fifth, appellant argues the trial court erred in including a statutorily mandated jury instruction on parole, as appellant was not eligible for mandatory supervision. The Court of Criminal Appeals has held such a charge not to be error, constitutional or otherwise. Luquis v. State, 72 S.W.3d 355, 364–68 (Tex. Crim. App. 2002). Accordingly, we overrule this issue.
6. Ineffective Assistance of Counsel
Lastly, appellant argues trial counsel was ineffective in not objecting to the parole law instruction. To succeed on his complaint, appellant must demonstrate both objectively deficient performance by his attorney and a reasonable probability of prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064–65 (1984); Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). An ineffectiveness claim must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Here, there was no motion for new trial or other record showing the jury discussed, considered, or tried to apply the parole instruction; nor was defense counsel given an opportunity to explain what he did and why. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Therefore, we overrule this final issue.
The judgment is affirmed.
/s/ Scott Brister
Chief Justice
Judgment rendered and Memorandum Opinion filed June 5, 2003.
Panel consists of Chief Justice Brister and Justices Fowler and Edelman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] [DEFENSE COUNSEL]: Judge, when I walked into the courtroom this morning, the first thing I saw was
[the bailiff] standing at the door of the jury room with the door open. There were some jurors in there. He told me that people on both sides of the door could hear that they were having problems and that they were trying to get my guy here as quickly as possible. He did not mention jail.
It is my feeling that it’s clear what the meaning was. That my client is in jail. I think that prevent that -- that knowledge going to certain members of the jury prevents my client from a fair trial under the due process clause, 5th Amendment, 14th Amendment of the United States Constitution and due course of law under the Texas Constitution. We move for mistrial
[THE COURT]: It is my understanding that the comment was made bringing your guy down or over not mention of jail.
[DEFENSE COUNSEL]: No mention of jail, Judge.
[THE COURT]: Okay. While I am distressed that the comment was made in any form, I don’t believe it’s sufficient to raise the jury’s inquisition about specifically jail; and based on the nature of the comment and the way in which it was made, I will overrule your objection or motion for mistrial.