Affirmed and Memorandum Opinion filed January 27, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01272-CR
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WILLIAM WILSON, III, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 895,414
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M E M O R A N D U M O P I N I O N
William Wilson, III, appeals a conviction for murder[1] on numerous grounds. We affirm.
Background
On November 19, 2001, the badly burned body of appellant’s wife, Dorothy, was found by police in the trunk of an abandoned automobile that had been set on fire.
class=Section2>Hearsay Evidence
Appellant’s first issue argues the trial court denied him a fair trial by allowing inadmissible evidence to be presented to the jury. We review the trial court’s decision to admit evidence under an abuse of discretion standard. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003), petition for cert. filed, __ U.S.L.W. __ (U.S. Oct. 9, 2003) (No. 03-6924). We thus reverse a trial court’s decision only if it is outside the zone of reasonable disagreement. Id.
Disciplinary Records
Appellant argues that the admission of disciplinary records from the Texas Department of Corrections, showing that he slapped Dorothy during one of her visits with him at prison, was error because they were hearsay and not valid business records.
To preserve error in admitting evidence, a party must make a proper objection and obtain a ruling on that objection.[2] In this case, before the disciplinary records were admitted into evidence, a discussion took place both on and off the record. Not only does the record fail to reflect any objection by appellant to the records as hearsay, or any adverse ruling thereon, but it affirmatively reflects his counsel waiving any objection to the records by stating, “no objection, Judge.” Therefore, this complaint presents nothing for our review and is overruled.
Officer Harris’s Statements
Appellant also argues that the admission of Officer Harris’s statement, that the address registered to the license plate of the burned car was the same as that from which he received a burglar alarm call on the evening of the murder, was hearsay because the State was attempting to prove the truth of the matter asserted; namely, that there was a connection between appellant’s home and the car in which the victim was found.
To preserve error in admitting evidence, a party must object each time the inadmissible evidence is offered or obtain a running objection. Valle, 109 S.W.3d at 509. Error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Id.
In this case, by the time the challenged evidence was admitted, Officers Tooke and Miller had each already testified regarding the license plate’s registered address being the same as appellant’s home address. Because appellant had not objected when the same evidence was admitted previously, this complaint presents nothing for our review and is overruled.
Insurance Agent Fraley’s Statements
Appellant also complains of the following portions of testimony by insurance claims adjuster Fraley, which pertain to a conversation he had with appellant two days after the murder:
State: Was there any discussion with you and Mr. Wilson about his wife?
Fraley: Yes.
State: What did he tell you about his wife?
Defense Counsel: I object. Calls for hearsay.
Court: Overruled.
* * * *
Fraley: He advised he was making arrangements for his wife and he was disturbed due to the circumstances of her death.
State: When you were talking with him about his wife, did you ask him . . . if he had filed a missing person’s report on that?
* * * *
Fraley: Yes, I did.
State: And what was his response to that question?
Defense Counsel: I object . . . . That would be hearsay.
Court: Overruled.
* * * *
Fraley: His response was that he had not filed a missing person’s report.
The State asserts, and appellant does not refute, that these statements were offered to show appellant’s knowledge of his wife’s death before the body had been identified, i.e., rather than the truth of the matters asserted. As such, they were either not hearsay[3] or were subject to the hearsay exception for showing appellant’s then existing state of mind. See Tex. R. Evid. 803(3). In addition, appellant waived this complaint by failing to object when the State subsequently elicited the same evidence, “So, on the 21st, he told you his wife was dead?” and Fraley responded, “That’s correct.” Accordingly, appellant’s challenge to Fraley’s statements is overruled.
Robert Chilo’s Statements
Appellant also contends that the following statements by Dorothy’s brother, Robert Chilo, were improperly admitted hearsay: (1) his affirmative response to the question, “Did she say anything to you about wanting [appellant] to leave the house?”; and (2) Chilo’s recounting of Dorothy’s statement, “Ya’ll just don’t know what William do to me.” Appellant contends that these statements were not within the hearsay exception for statements reflecting state of mind but were simply a recount of Dorothy’s memory of events. See, e.g., Dorsey v. State, 24 S.W.3d 921, 929 (Tex. App.—Beaumont 2000, no pet.). Because each statement appears to have been offered only to show Dorothy’s fear of appellant, and not for the truth of the matters asserted, appellant’s challenge fails to demonstrate error by the trial court in admitting this testimony and is overruled.
Hospital Records
Appellant contends that hospital records admitted into evidence were also inadmissible hearsay. However, to preserve error, the complaint at trial must comport with the complaint raised on appeal. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). In this case, appellant objected to the hospital records at trial only on the basis of relevance. Therefore, this hearsay complaint presents nothing for our review, and appellant’s first issue is overruled.
Violation of Confrontation Clause
Appellant’s second issue contends that the admission of inadmissible hearsay violated his rights under the Confrontation Clause. However, because appellant failed to object at trial on this ground, his second issue presents nothing for our review and is overruled. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).
Exclusion of Admissible Hearsay for Defense
Appellant’s third issue argues that he was denied a fair trial by the trial court’s refusal to apply the “state of mind” hearsay exception[4] equally to both sides. As an example of the alleged disparity in treatment, appellant cites the court’s sustaining of the State’s objection to a statement by appellant’s parole officer that appellant was “very upset,” while allowing Dorothy’s brother to testify that she wanted appellant to move out of her house.
To the extent a trial court’s rulings are within its discretion and thus not erroneous, appellant has cited no authority requiring that such discretion be exercised, and rulings be made, uniformly or equally for both sides. Moreover, despite this particular portion of the parole officer’s testimony being excluded, appellant and the State each elicited the same evidence from that witness without objection. Under these circumstances, appellant’s third issue affords no basis for relief and is overruled.
Ineffective Assistance of Counsel
Appellant’s fourth issue argues he was denied effective assistance of counsel when his trial counsel failed to: (1) object to the hospital and penitentiary records based on violations of his rights under the Confrontation Clause; and (2) preserve error regarding improperly admitted hearsay testimony by failing to request a jury instruction to disregard and a mistrial after his objections were sustained.
A defendant’s right to effective assistance of counsel is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense to the extent of causing the result of the proceeding to be different. Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). Ineffective assistance claims must be affirmatively demonstrated in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.2002). If counsel’s reasons for his conduct do not appear in the record and there is at least a possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal. Murphy, 112 S.W.3d at 601. To establish ineffective assistance for failing to object to evidence, an appellant must establish that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct. 1901 (2003).
In this case, because appellant has not developed a record of his counsel’s reasons for his actions, he has failed to rebut the presumption of sound trial strategy on these matters. Similarly, with regard to his Confrontation Clause argument, appellant has failed to offer authority or reasoning to demonstrate that the public records and business records exceptions, under which the exhibits were admitted, are not “firmly rooted hearsay exceptions” or that the evidence does not contain other “particularized guarantees of trustworthiness.” See Lilly v. Virginia, 527 U.S. 116, 124-25 (1999). Accordingly, appellant’s fourth issue fails to establish that he was denied effective assistance of counsel and is overruled.
Admission of Autopsy Photographs
Appellant’s fifth issue argues the trial court erred when it admitted gruesome autopsy photographs. He urges the photos were neither relevant[5] nor probative of any contested matter in the case and that their admission was unduly prejudicial because other testimony covered that subject and other, less gruesome, photos could have adequately explained the coroner’s testimony. Appellant specifically complains of four color, close-up, photos, depicting injuries Dorothy sustained to her face and her unclothed body.
Although 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 consideration of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. However, rule 403 favors admissibility, and presumes relevant evidence is more probative than prejudicial. Rayford v. State, __ S.W.3d __, __ (Tex. Crim. App. 2003).
A trial court’s ruling on the admissibility of photographs is reviewed for abuse of discretion and will thus be upheld if it is within the zone of reasonable disagreement. See id. at __. Autopsy photographs are generally admissible as long as the disturbing nature of the photos is primarily due to injuries caused by the appellant, i.e., rather than the autopsy itself. See Hayes v. State, 85 S.W.3d 809, 815-16 (Tex. Crim. App. 2002).
In this case, of the nearly two hundred autopsy photos taken by the medical examiner, the State introduced only twelve.[6] Eight of these photos were only three-by-five inches. The remaining four photos were eight-by-ten inch close-ups of Dorothy’s face and teeth that were necessary to identify her body, both visually and through dental records. Unclothed areas of her body and charring in the photos reflected the use of an accelerant in the fire that burned off most of her clothes. Except for one photo, which showed an incision the medical examiner made to Dorothy’s left wrist to show a hemorrhage under the skin, the photos depict only injuries caused by the fire and thus appellant’s actions. In overruling appellant’s objection to the photos, the trial judge stated:
I agree with Mr. Knight that they are horrible pictures for a person to look at; however, I do not see any other way for the State to be able to show the injuries alleged to have occurred to this woman. I have no doubt the State has done everything they can do to pare this volume down. I find that they are definitely prejudicial. They are the only way the State has to illustrate what the medical examiner will testify about.
Under these circumstances, we cannot say that the trial court’s overruling of appellant’s rule 403 objection to the photos was outside the zone of reasonable disagreement. Accordingly, appellant’s fifth issue is overruled.
Sufficiency of the Evidence
Appellant’s sixth and seventh issues argue that the evidence was legally and factually insufficient to prove he committed the murder because the State’s evidence had no fingerprints, eyewitnesses, or motive but was instead entirely circumstantial, amounting only to a suggestion that he was present at the scene. He further relies on his denial of the charges and his alibi in a phone conversation with Dorothy’s sister.
Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003). The evidence supporting a verdict is factually insufficient if, viewed in a neutral light, it is so weak or so against the overwhelming weight of contrary evidence as to render the verdict clearly wrong and manifestly unjust. Bustamante, 106 S.W.3d. at 740. When reviewing a case comprised wholly of circumstantial evidence, the standard of review is the same as it is for reviewing cases in which direct evidence exists. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
In this case, Lynette Harrison Meyers, a neighbor across the street from the Wilsons, testified that at about 9:15 that night, she heard a car door shut and then looked out her front window. She noticed Dorothy’s red car backed into the driveway and that the carport light was out. She saw appellant plug the carport light back in and close the trunk of the red car.
class=Section4>About twenty minutes later she heard the car start and watched appellant drive out of the driveway. DeMarcus Condet and Jason Harrison, Meyer’s son, testified to seeing appellant walking back towards his house between 9:30 and 10:00 p.m.
Yola Chavez, Dorothy’s sister, testified that appellant called her that night to ask her if Dorothy had stopped by. He specifically mentioned that the time was ten minutes until ten. Chavez testified that appellant called her a second time, asking again if she had seen Dorothy, specifically mentioning that it was then ten minutes after ten, and then stating that his burglar alarm was going off.
Joan Austin, who lived around the corner from where Dorothy’s car was found and had discovered it burning, testified that she called the fire department a little bit after ten. M. L. Pena, an arson investigator with the Houston Fire Department (“HFD”), testified that HFD arrived at the scene at 10:06. T.D. Wood, another arson investigator with HFD, testified that the fire burned for about three to six minutes before it was extinguished and that Dorothy’s charred body was found in the trunk of the car. Wood further testified that an accelerant was used to hasten the burning of Dorothy’s car and that he detected gasoline at the scene even though the car’s gas tank had neither ignited nor exploded.
Officers Tooke and Burrell testified to recognizing the smell of gasoline on appellant’s jacket that was pulled from the washing machine in his house. Officer Harris testified that he smelled gasoline as he walked through appellant’s laundry room, that the door to the washing machine was open, and that a white jacket was on top of it. James Miller, a chemist with the Houston Police Department Crime Lab, testified to finding gasoline residue on that jacket.
Brian Harris, a homicide investigator, testified that investigators responded to the burglar alarm at appellant’s house and that appellant told them his wife had gone to the grocery store and to the post office but had not yet returned. Harris also testified that while walking through the house, he noticed female-style eyeglasses on the bedroom dresser next to an insurance card and some jewelry. Harris further testified that, in his voluntary statement, appellant stated that Dorothy did not need her glasses to drive. However, Dorothy’s optometrist testified Dorothy had a cataract in one eye and was not able to drive without her eyeglasses.
Another investigating officer, J.B. Sweatt, testified that appellant told him that he (appellant) had been home all evening. However, Sweatt noticed that the hood of appellant’s van was warm even though it was a cool night. In addition, while Sweatt was transporting appellant to the station for questioning, appellant stated, “I thought we were going to see our car,” reflecting a knowledge, before he was told, of where the car was located relative to the route they were taking. As noted previously, insurance adjuster Fraley also related comments by appellant reflecting a knowledge of Dorothy’s death before anyone told him of it.
Veronique DeLattre, chief forensic dental consultant for Harris County Medical Examiner’s Office and Harminer Narula, assistant medical examiner for Harris County, testified that, due to the intensity of charring, it took ten days to identify Dorothy’s body by comparing dental records. Officer Harris testified that while discussing potential results of an autopsy with appellant, appellant asked whether it could reveal a head injury. The autopsy revealed Dorothy had sustained trauma to the left side of her head. Viewed in the light most favorable to the verdict, this evidence was legally sufficient to prove beyond a reasonable doubt that appellant committed the offense.
In support of his factual sufficiency challenge, appellant directs us to his arguments in his first issue, regarding the admission of hearsay evidence, but does not explain how his contentions under that issue support a factual sufficiency challenge. The harm analysis in his first issue states that, without the challenged items of evidence, the evidence against him would have been insufficient. However, because his first issue failed to establish that the trial court erred in admitting any evidence, it does not support this contention.[7] Therefore, appellant’s sixth and seventh issues fail to demonstrate the legal or factual insufficiency of the evidence. Accordingly, they are overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed January 27, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The jury found appellant guilty of murdering his wife, Dorothy, and the trial court sentenced him to life imprisonment.
[2] Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).
[3] See Tex. R. Evid. 801(c), (d).
[4] See Tex. R. Evid. 803(3).
[5] However, because Wilson’s objection at trial was to prejudice, not relevance, we confine our consideration to that issue.
[6] These twelve photos were obtained and reviewed by the court.
[7] Moreover, when conducting a legal sufficiency review, an appeals court considers all evidence in the record, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Appellant has cited no authority indicating that inadmissible evidence is not considered in a factual sufficiency review.