Affirmed and Memorandum Opinion filed March 31, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00006-CR
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DARRELL WAYNE HILLIARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1076892
M E M O R A N D U M O P I N I O N
A jury found appellant Darrell Wayne Hilliard guilty of murder and, after finding two enhancement paragraphs true, assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. On appeal, Hilliard contends that the trial court erred by (1) instructing the jury to consider the Aprevious relationship existing between the accused and the deceased [complainant]@ even though there is no evidence that a relationship between Hilliard and the complainant ever existed; (2) admitting photographs of the deceased complainant=s body; and (3) refusing Hilliard=s request to reopen the evidence and admit before the jury additional evidence regarding his alleged prior conviction. We affirm.
Background
Hilliard does not challenge the legal or factual sufficiency of the evidence supporting his conviction. We will briefly recite the facts of the case.
During the early morning hours of July 15, 2006, Hilliard started a fight with the complainant, Tom Brown, inside the E-Nice Club in Houston. Hilliard shot Brown four times in the torso and fled the club. Brown died at the scene. Club patrons and employees, as well as the club=s owner and his wife, witnessed the crime, and several of the witnesses picked Hilliard out of photo spreads and identified him as the shooter. The police later charged Hilliard with murder.
At trial, in an effort to establish an alibi defense, Hilliard presented testimony from various family members and friends, including his brother, who testified that Hilliard attended and never left a party at his girlfriend=s house. Controverting the alibi, a police officer who interviewed Hilliard=s brother in August 2006, testified that the brother did not tell him that Hilliard was at any such gathering at the time of the offense.
The jury rejected Hilliard=s alibi defense, and found him guilty of murder as alleged in the indictment. We will address below other facts relevant to the issues.
Analysis
A. Jury Instruction
In his first issue, Hilliard contends the trial court erred in submitting, over objection, the following jury instruction:
You are instructed that you may consider all relevant facts and circumstances surrounding the death, if any, and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense, if any.
Hilliard argues that the jury was instructed to consider Athe previous relationship existing between the accused and the deceased@ in its deliberations, even though both the State and the trial court acknowledged that no evidence of a previous relationship was presented to the jury.[1] Hilliard contends that the instruction assumed, and therefore implied, that a previous relationship existed and that the evidence supported its existence. Hilliard argues that the instruction was an impermissible comment on the evidence that the trial court should have omitted.
A charge improperly comments on the evidence if it Aassumes the truth of a controverted issue.@ See Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Jackson v. State, 105 S.W.3d 321, 326 (Tex. App.BHouston [14th Dist.] 2003, pet. ref=d). When a complaint is made that the charge comments on the weight of the evidence, we review the charge as a whole rather than parts of the charge standing alone. See Whaley, 717 S.W.2d at 32. In analyzing a jury-charge complaint, we must first determine whether error exists in the charge and then, if error is found, we must analyze the error for harm. Ngo v. State, 175 S.W.3d 738, 743B44 (Tex. Crim. App. 2005).
Hilliard relies on Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000). In Rocha, the trial court refused the defendant=s request to include an instruction concerning the voluntariness of his confession. The requested instruction would have instructed the jury that if it had a reasonable doubt that at the time of the defendant=s statement he Awas ill, was under medication or otherwise reduced to a condition, physical and mental impairment such as to render such admission, if any, not wholly voluntary,@ then the jury was to Acompletely disregard@ such an admission as evidence. Id. at 19. The court of criminal appeals determined that the trial court did not err in refusing to include the appellant=s requested instruction because the appellant failed to cite supporting legal authority or to explain what evidence raised the issue the instruction was intended to address. Id. at 20.
Additionally, the Rocha court noted that the requested instruction amounted to an impermissible comment on the weight of the evidence because it focused on illness and medication as factors that may render the appellant=s confession involuntary. Id. The court noted that A>[e]ven a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the wight of the evidence in violation of article 36.14 because such an instruction singles out a particular piece of evidence for special attention.=@ Id. (citing Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995)). Id. Similarly, Hilliard argues, the inclusion of language suggesting that a relationship existed between him and the complainant singled out such evidence and so amounts to an erroneous comment on the weight of the evidence.
The instruction the trial court gave tracks article 38.36 of the Code of Criminal Procedure, which provides that in all prosecutions for murder, the State or the defendant shall be permitted to offer testimony as to Aall relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.@ See Tex. Code Crim. Proc. Art. 38.36(a) (Vernon 2005). Many courts have held that the rule stated in article 38.36 and its predecessors is a rule of evidence, and the trial court, although not required to give an instruction on it to the jury, does not err in doing so. Milner v. State, 262 S.W.3d 807, 809 (Tex. App.CHouston [1st Dist.] 2008, no pet.) (collecting cases). Hilliard does not refer to or distinguish this line of cases.
But even if we assume that giving the instruction was error, it resulted in no harm. When the charge contains error and, as in this case, that error has been properly preserved, we must reverse if the error caused the appellant Asome harm.@ See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=ing). We assay the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
Hilliard argues that the instruction caused at least some harm because the trial court directed the jury to consider non-existent evidence. This purported misdirection, Hilliard contends, diminished his alibi defense. According to Hilliard, the State=s eyewitnesses were not well-acquainted with him. The jury could infer from that, Hilliard argues, that he did not frequent the club, an inference that would support his defense that he was somewhere else on the night of the shooting. Hilliard complains that the trial court=s instruction made it less likely that the jury would so infer.
But the charge did not affirmatively instruct the jury that a previous relationship between the two men existed; instead, the court instructed the jury that it could consider such evidence Aif any.@ Further, both sides and the trial court agreed there was no evidence that a previous relationship between the two men existed, so the issue was not contested, and the issue was not a topic of discussion in front of the jury. Neither side commented on the matter of a previous relationship, nor did they mention the complained-of charge during argument.
Most importantly, there was substantial evidence of Hilliard=s guilt. Several of the State=s witnesses, including the club=s owner and his wife, were able to identify Hilliard in photo spreads and in court. Additionally, one of the witnesses, Little Hayward Grant, who was working a security job at the club, testified that he Agot between@ the assailant and the complainant during their confrontation, and got a good look at the assailant=s face. Grant identified the assailant in court as Hilliard. Another witness, Katrina Robinson, a waitress at the club, testified that she had an opportunity to see the assailant=s face two times during the incident and the second time he Alooked right at [her].@ Robinson, who also saw the gun in the assailant=s hand, identified Hilliard as the assailant both in a photo spread during the police investigation and in court. Another witness heard the assailant yell during his confrontation with the complainant that he was thirty-one years old, and the evidence at trial was that Hilliard was thirty-one years old at the time of the crime. We conclude that the trial court=s inclusion of the instruction, if error, was harmless.
We therefore overrule Hilliard=s first issue.
B. Photographs
In his second issue, Hilliard contends that the trial court abused its discretion in admitting, over his objections under Texas Rule of Evidence 403, five crime-scene photographs (State=s Exhibits 16B20) and nine autopsy photographs (State=s Exhibits 27B35) of the complainant=s body. Hilliard contends that the photographs were gruesome and bloody, and had significant prejudicial effect but little probative value. He points out that he never contested how the complainant died; his defense was that he was not the person who killed him. Further, Hilliard contends that other exhibits, such as photographs and a diagram of the scene that explained the location of the body from the vantage point of the eyewitnesses, the autopsy report, and an autopsy diagram of the injuries on the body were more effective and much less prejudicial.
We review the admission of evidence for an abuse of discretion. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). So long as the trial court=s decision is within the zone of reasonable disagreement, we will not disturb it on appeal. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=ing). Although admissible, relevant evidence may be excluded if its probative value is substantially outweighed by a danger that it will unfairly prejudice, confuse, or mislead the jury, if its inclusion will result in undue delay, or if it is needlessly cumulative. Tex. R. Evid. 403. Generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible and their probative value is not substantially outweighed by the Rule 403 counter-factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Id.
A Rule 403 analysis by the trial court should include, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent=s need for the evidence. Erazo v. State, 14 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d at 389B90). Additional factors that may be considered by a court in conducting a Rule 403 balancing test with respect to photographs include (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or in color, (6) whether they are close-up, (7) whether the body is naked or clothed, (8) the availability of other means of proof, and (9) circumstances unique to the case. Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).
Photographs of a dead body taken before an autopsy are relevant when they depict the nature and extent of injuries. See Sandles v. State, 857 S.W.2d 932, 937B38 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d). Autopsy photographs are usually admissible unless they show mutilation of the body caused by the autopsy. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). But even then, if the disturbing nature of the photographs is due primarily to the injuries caused by the criminal behavior, the changes to the victim=s body caused by the autopsy are of minor significance. Id.
Here, all of the photographs in the record were 8" x 10" and in black and white. None of the photographs depicted a totally nude body, although the complainant=s shirt was partially raised or removed in some crime scene photos and the autopsy photos showed the deceased=s bare chest and torso. Hillard does not specifically complain about the size or color of the photographs.
State=s Exhibit 16 depicts the complainant=s head, with the eyes partially open, and contusions on the face. State=s Exhibit 17 depicts the complainant=s body with the shirt raised, and shows some of the bullet wounds on the torso. State=s Exhibit 18 depicts the complainant=s clothed lower torso and legs amidst broken bottles and an overturned chair at the crime scene. State=s Exhibit 19 depicts a closer view of the complainant=s pants with bloodstains on them. State=s Exhibit 20 depicts another view of the complainant=s clothed lower torso, pants with bloodstains, and surrounding debris as it appeared at the crime scene.
These five photographs, which a police sergeant testified accurately depicted the crime scene, were not exactly alike, were not unnecessarily duplicative, took almost no time to introduce in evidence, and had very little, if any, potential to impress the jury in an irrational but indelible way. The photos were relevant to show the circumstances of the killing and the crime scene at the time. Although the photographs of the complainant=s body at the crime scene may be somewhat disturbing, their disturbing effect is due to the circumstances of the crime rather than any particular images depicted in the photographs. The trial court=s ruling that the probative value of State=s Exhibits 16B20 outweighed any prejudicial effect was within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Therefore, the trial court did not abuse its discretion by admitting these photographs into evidence.
The nine autopsy photographs, State=s Exhibits 27B35, were taken before any autopsy procedures were begun and were admitted during the testimony of Dr. Kathryn Pinneri, the assistant medical examiner who prepared the autopsy report. The photographs depict the deceased complainant=s head and body, and various different views of the four gunshot wounds. According to Dr. Pinneri=s testimony, four of the photographs depict views of the location of each of the four gunshot wounds on the torso of the complainant=s body, and another four are close-up photographs of each gunshot wound. The ninth photograph, State=s Exhibit 35, depicts the complainant=s face.
There was only one photograph of each gunshot wound showing its general location on the complainant=s torso and only one close-up view of it. The photographs were not duplicative, and showed only the nature and extent of the wounds and injuries. None of the photographs depicted any autopsy-related mutilation of the complainant=s body or anything else that could be viewed as unnecessarily disturbing. Dr. Pinneri referred to all of the gunshot-wound photographs during her testimony, and they were relevant and of a nature that would be helpful to the jury in understanding both her testimony and her opinion as to the cause of the complainant=s death. It took little time to introduce the photographs in evidence, and none had any real potential to impress the jury in an irrational but indelible way. Therefore, the trial court did not abuse its discretion in admitting them. See Hayes, 85 S.W.3d at 16; Sandles, 857 S.W.2d at 937B38.
C. Hilliard=s Request to Reopen Evidence
In his third issue, Hilliard contends that, in the punishment stage of trial, the trial court abused its discretion by refusing his request to reopen evidence and admit before the jury additional evidence regarding one of his alleged prior convictions. Specifically, Hilliard contends that his copy of one of the judgments used to support the State=s enhancement allegations differed from the judgment included in the penitentiary packet offered as State=s Exhibit 38, because the judgment in that exhibit specifies his alleged prior conviction as a second-degree felony, but the copy he sought to offer does not.
Hilliard argues that the Adue administration of justice@ required the trial court to reopen the case if the evidence would materially change the case in the proponent=s favor. See Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007); Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). According to Hilliard, the trial court abused its discretion in refusing his request to reopen the evidence because it would have taken only a few moments to introduce a single document, the document was relevant, and its admission would have materially changed the case. Hilliard contends that introducing his copy of the judgment would have shown the State=s documentation of his alleged convictions to be Asuspect and unreliable@ and raised questions about whether the purported prior conviction could even be used to enhance his punishment.
At the punishment hearing, the State offered in evidence two pen packets identified as State=s Exhibits 38 and 39. Hilliard=s trial counsel objected to both exhibits, stating, AState=s 38 appears to have been taken apart and put back together; 39 is probably with the staples. I object to those, 38 and 39, being admitted.@ He offered no evidence suggesting that the exhibits may have been altered. The trial court admitted both over Hilliard=s objection.
After both sides rested, and during his final argument, Hilliard=s counsel approached the bench and advised that his copy of the judgment that he got from the district clerk=s office differed from that in State=s Exhibit 38. The judge retired the jury, and Hilliard=s counsel stated that what he got Afrom . . . the district clerk=s office is different from what TDC has. And I would like the opportunity to reopen to submit to the jury a certified copy of the judgment from the clerk=s office.@ He further stated, AIt does not say on the judgment I got that it was a felony. It doesn=t have second-degree circled.@
Although Hilliard=s counsel stated that he would like to submit to the jury a certified copy of the judgment from the clerk=s office, he did not state that his copy of the judgment, which was later admitted in evidence for the purpose of the record as Defendant=s Exhibit 1, was a certified copy. In response to the motion to reopen, the prosecutor pointed out that the difference was irrelevant because the offense of conviction as shown on Hilliard=s exhibit, namely possession with intent to deliver one to four grams of a controlled substance (here, cocaine), was Aindeed a felony offense and he was sentenced to the penitentiary@ and Athere would be no other type of offense for which he could go to the penitentiary than a felony.@ The trial court denied Hilliard=s motion to reopen, then admitted Defense Exhibit 1 for appellate purposes, but not before the jury.
As Hilliard correctly contends, a trial judge is required to reopen a case if the proffered evidence is necessary to a due administration of justice. See Tex. Code Crim. Proc. Ann. art. 36.02 (AThe court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.@). ADue administration of justice@ means the trial court should reopen the case Aif the evidence would materially change the case in the proponent=s favor.@ See Peek, 106 S.W.3d at 79. We review the trial court=s decision on a motion to reopen for an abuse of discretion. See id. To establish that the evidence would materially change the case in the proponent=s favor, the proponent of the evidence must show that it is Amore than just relevantCit must actually make a difference in the case.@ Id.
State=s Exhibit 38 shows a box checked indicating that Hilliard was convicted of a felony with the degree circled as A2nd,@ but Defendant=s Exhibit 1 does not. Other than this difference, both exhibits show that he was convicted of the offense of possession with intent to deliver a controlled substance, namely cocaine, weighing over one but less than four grams, an offense designated by law as a felony, and Hilliard received a three-and-a-half-year prison sentence. See Tex. Penal Code Ann. ' 1.07(23) (Vernon Supp. 2008) (defining Afelony@ to mean Aan offense so designated by law or punishable by death or confinement in a penitentiary.@); Tex. Health & Safety Code ' 481.112(c) (Vernon 2003) (providing offense of possession with intent to deliver cocaine weighing one gram and less than four grams is a second-degree felony). Thus, even if Defendant=s Exhibit 1, which does not appear to be a certified copy, were admissible, the trial court could have concluded that its admission would not have materially changed the outcome of the case. Despite the discrepancies between Exhibit 1and State=s Exhibit 38, both reflected that Hilliard had been convicted of the felony offense for which he had been indicted. The trial court did not abuse its discretion in refusing to reopen evidence.
Conclusion
We overrule Hilliard=s issues and affirm the trial court=s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] After pointing out that the instruction was conditioned by the phrase Aif any,@ the trial court denied Hilliard=s objection, stating to his counsel, AYou may certainly argue that there was absolutely no previous relationship shown by the evidence during this case.@ Neither party mentioned or commented on the instruction during final argument, or suggested the existence of any prior relationship.