NO. 07-11-0196-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 14, 2013
______________________________
DONALD LEE JAMESON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 4327; HONORABLE RON ENNS, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Donald Lee Jameson, was convicted by a jury of murder 1 and
sentenced to life imprisonment. Appellant contests: (1) the sufficiency of the evidence;
(2) the admission of certain photographs; and (3) the absence of findings of fact and
conclusions of law by the trial court on the voluntariness of his written confession. We
affirm.
1
See TEX. PENAL CODE ANN. § 19.02(b)(2) (W EST 2011).
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence was insufficient to convict for murder because
he raised self-defense in a statement to law enforcement and presented expert
testimony at trial that he suffered from Post-Traumatic Stress Syndrome. His evidence
indicated he accepted a ride home from Ronald Whitfield outside a bar in Dumas,
Texas, and after Whitfield made a sexual advance, Appellant attempted to leave the car
but Whitfield grabbed him by his shirt. The two struggled, Appellant “reached into [his]
right pocket and got out [his] knife and opened it and I cut him” twice in the throat.
Appellant gave a detailed confession to law enforcement and subsequently testified to
cutting Whitfield at trial. He testified his violent reaction to Whitfield’s improper advance
coupled with grabbing him was the result of his past history of sexual abuse as a child.
In the court’s charge, the jury was instructed on the law applicable to self-defense.
The only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Adames v. State, 353 S.W.3d
854, 859 (Tex.Crim.App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.
2010). Under that standard, in assessing the sufficiency of the evidence to support a
criminal conviction, this Court considers all the evidence in the light most favorable to
the verdict and determines whether, based on that evidence and reasonable inferences
to be drawn therefrom, a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353
S.W.3d at 860; Brooks, 323 S.W.3d at 912. This standard gives full play to the
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responsibility of the trier of fact to resolve conflicts in testimony, weigh the evidence,
and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319. See Adames, 353 S.W.3d at 860 (citing Hooper v. State, 214 S.W.3d 9, 15
(Tex.Crim.App. 2007)). "[S]ufficiency of the evidence should be measured by the
elements of the offense as defined by the hypothetically correct jury charge for the
case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). According to the
indictment in this case, the State was required to prove Appellant, intending to cause
serious bodily injury, committed an act clearly dangerous to human life that caused the
death of Ronald Whitfield. See TEX. PENAL CODE ANN. § 19.02(b)(2) (W EST 2011).
In his statement to law enforcement given the day of the crime and his
subsequent trial testimony, Appellant admitted to being involved in a struggle with
Whitfield in his car. Despite the struggle, Appellant was able to take the knife out of his
pocket, open it, and use it to cut Whitfield’s throat multiple times. Due to the wounds
inflicted on Whitfield, he rapidly lost consciousness and bled to death. Appellant then
fled the scene. Other witnesses testified that, the day of the crime, Appellant showed
no bruising or injuries to his upper body indicating a struggle had occurred earlier that
day. Furthermore, a pack of cigarettes in the center of the front seat of Whitfield’s car
was undisturbed and several of Whitfield’s friends testified he never exhibited any
homosexual or bisexual tendencies.
Having considered all the evidence in the light most favorable to the verdict, we
find that, based on that evidence and reasonable inferences to be drawn therefrom, a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. In so doing, as to Appellant’s claim of self-defense, we give
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deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 318-19. Appellant’s first issue is overruled.
PHOTOGRAPHS
Appellant contends the trial court abused its discretion by admitting four
photographs described by Appellant as “gruesome” and “inflammatory.” One
photograph showed Whitfield in his car at the crime scene and the remaining
photographs were taken during his autopsy. Appellant maintains that the prejudicial
impact of the photographs substantially outweighed their probative value. See TEX. R.
EVID. 403. 2
The admissibility of photographic evidence lies within the sound discretion of the
trial court. Shuffield v. State, 189 S.W.3d 782, 786 (Tex.Crim.App. 2006), cert. denied,
549 U.S. 1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2007). Its decision to admit or exclude
evidence will not be overturned on appeal absent a showing that the trial court abused
its discretion. Id. at 787. In that regard, we will not disturb a trial court’s ruling admitting
or excluding evidence so long as the trial court’s decision falls within the “zone of
reasonable disagreement.” See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App.
1996).
The Texas Rules of Evidence favor the admission of all relevant evidence at trial,
though these evidentiary rules do provide exceptions that would exclude otherwise
2
Throughout the remainder of this opinion, we will cite the provisions of the Texas Rule of Evidence
simply as “Rule ___.”
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relevant and admissible evidence. See Rule 401. One exception to this general rule is
found in Rule 403: “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 considerations of undue delay, or needless presentation of
cumulative evidence.” Rule 403. When called on to analyze evidence in light of a Rule
403 objection, the trial court must balance the following considerations: (1) the inherent
probative force of the proffered evidence along with (2) the proponent’s need for that
evidence against (3) any tendency of the evidence to suggest a decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42
(Tex.Crim.App. 2006). We also consider the number of photographs, the size, whether
they are in color or black and white, whether they are gruesome, whether any bodies
are clothed or naked, and whether the body has been altered since the crime in some
way that might enhance the gruesomeness of the photograph to the appellant’s
detriment. See Shuffield, 189 S.W.3d at 787. In sum, “[i]f there are elements of a
photograph that are genuinely helpful to the jury in making its decision, the photograph
is inadmissible only if the emotional and prejudicial aspects substantially outweigh the
helpful aspects.” Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004).
Appellant objects to four color photographs admitted as State’s Exhibits 4, 44,
45, and 50. The photographs were admitted into evidence in conjunction with the
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testimony of Officer Tommy Gonzales who documented the crime scene and Elizabeth
Miller, M.D., who performed Whitfield’s autopsy. The crime scene photograph
documented the crime scene, showed the position of Whitfield’s body in the car with his
throat cut and blood running down the front of his shirt. The autopsy photographs were
whittled down by the trial court to three photographs illustrating Whitfield’s gaping
wounds on his face and neck. The photographs illustrated the cause of Whitfield’s
death, depth of his wounds, injury to his airway, and the severity of the wounds to his
throat illustrating the force necessary to cause the wounds. The photographs were
unquestionably gruesome.
Under the first Gigliobianco factor, we find the photographs had probative value
because they were accurate depictions of both the crime scene and Whitfield’s body
that would assist a jury to visualize the crime scene as well as the extent of Whitfield’s
injuries caused by Appellant’s criminal act. Paredes v. State, 129 S.W.3d 530, 540
(Tex.Crim.App. 2004). See also Legate v. State, 2 S.W.3d 797, 807 (Tex.App.—San
Antonio 2001, pet. ref’d). These photographs are also probative because they
corroborated the testimony of trial witnesses; see Ledbetter v. State, 208 S.W.3d 723,
734 (Tex.App.—Texarkana 2006, no pet.); Denoso v. State, 156 S.W.3d 166, 178
(Tex.App.—Corpus Christi 2005, pet. ref’d), and their probative value is not diminished
simply because they corroborate other uncontested testimony. See Chamberlain v.
State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1990) (rejecting the premise that visual
testimony accompanying oral testimony is cumulative of that testimony). Although
disagreeable to look at, they depict nothing more than the reality of the brutal crime
committed. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995); Shavers v.
6
State, 881 S.W.2d 67, 77 (Tex.App.—Dallas 1994, no pet.). Accordingly, the first factor
weighs in favor of admissibility.
In analyzing the second factor, the State’s need for the evidence, we ask, “Does
the proponent have other available evidence to establish the fact of consequence the
photograph is relevant to show?” Erazo, 144 S.W.3d at 495. And, if so, we then ask,
“How strong is the other evidence, and is the fact of consequence related to an issue
that is in dispute?” Id. at 495-96. The strength of the other evidence available to
establish what occurred in Whitfield’s car was not as strong without the photographs. In
fact, the only account of what occurred between the two men once Appellant entered
Whitfield’s car is Appellant’s account. Despite his statement to law enforcement the day
of the crime, Appellant testified at trial that, once he saw blood, he couldn’t remember
what had occurred. That leaves us with the only other evidence available to the jury
from which to determine what occurred –the crime scene and autopsy photographs.
How Whitfield died was a fact of consequence as was his manner of death.
Accordingly, we find the second factor weighs in favor of admissibility.
In considering the third, fourth and fifth factors, we look at the photographs’
potential to impress the jury in some irrational, yet indelible way. See id. 491-92. “If a
photograph is competent, material and relevant to the issue on trial, it is not rendered
inadmissible merely because it is gruesome or might tend to arouse the passions of the
jury, unless it is offered solely to inflame the minds of the jury.” Id. (quoting Martin v.
State, 475 S.W.2d 265, 267 (Tex.Crim.App. 1972)). Appellant does not claim that the
photographs are inaccurate or improperly enhanced. Having considered the
photographs in relation to the entire record, we cannot conclude the images appealed
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only to the jury’s emotional side and that the jury’s decision was based on emotion
rather than the relevant evidence introduced at trial. See Erazo, 144 S.W.3d 491-92;
Denoso, 156 S.W.3d at 178-79. These factors also weigh in favor of admissibility.
The sixth factor, the time needed to develop the evidence, also weighs in favor of
admissibility in this case. Considering the length of the trial, the State took little time
before the jury to lay the foundation for the photographs and introduce them into
evidence. See Horton v. State, 986 S.W.2d 297, 303 (Tex.App.—Waco 1999, no pet.).
In sum, we conclude the photographs are not “so horrifying or appalling that a
juror of normal sensitivity would necessarily encounter difficulty rationally deciding the
critical issues of this case after viewing them.” Contreras v. State, 73 S.W.3d 314, 321
(Tex.App.—Amarillo 2001, pet. ref’d) (quoting Narvaiz v. State, 840 S.W.2d 415, 429
(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791
(1993)). The photographs depicted no more than what Appellant caused and what
verbal testimony properly described. Saldano v. State, 232 S.W.3d 77, 101-02
(Tex.Crim.App. 2007). The trial court did not abuse its discretion in admitting the
photographs. See Allridge v. State, 850 S.W.2d 471, 494 (Tex.Crim.App. 1991) (en
banc). Appellant’s second issue is overruled.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Appellant asserts that we must abate this appeal and return the case so that the
trial court can make findings of fact and conclusions of law on the voluntariness of his
written confession. We note that Appellant did not raise voluntariness at the
suppression hearing or object when his confession was offered at trial. In fact, no one
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disputes the voluntariness of his written confession. That said, the trial court did not
enter written findings of fact and conclusions of law regarding the voluntariness of
Appellant’s statements.
It has been held that the requirements of section 6 of article 38.22 of the Code of
Criminal Procedure are mandatory; see TEX. CODE CRIM. PROC. ANN. ART. 38.22, § 6
(W EST 2005), and a court must file findings as to the voluntariness of a statement
regardless of whether the defendant objects. See Green v. State, 906 S.W.2d 937, 939
(Tex.Crim.App. 1995); Bonham v. State, 644 S.W.2d 5, 8 (Tex.Crim.App. 1983).
However, article 38.22, section 5 of the Code of Criminal Procedure states, “Nothing in
this article precludes the admission of . . . a statement that does not stem from custodial
interrogation . . . .” TEX. CODE CRIM. PROC. ANN. ART. 38.22, § 5 (W EST 2005) (emphasis
added). Thus, it has also been held that findings of fact and conclusions are not
required when the statement is not the result of custodial interrogation. Chavez v.
State, 6 S.W.3d 56, 64 (Tex.App.—San Antonio 1999, pet. ref’d); Garza v. State, 915
S.W.2d 204, 211 (Tex.App.—Corpus Christi 1996, pet. ref’d); White v. State, 874
S.W.2d 229, 236 (Tex.App.—Houston [14th Dist.] 1994, pet. dism’d); Inman v. State,
683 S.W.2d 40, 42 (Tex.App.—Eastland 1984, no pet.). If an investigation is not in an
accusatorial or custodial stage, a person’s Fifth Amendment rights are not yet at issue.
Hernandez v. State, No. 07-00-0374-CR, 2001 Tex. App. LEXIS 3506, at *3-4
(Tex.App.—Amarillo 2001, pet. ref’d) (mem. op., not designated for publication) (citing
Melton v. State, 790 S.W.2d 322, 326 (Tex.Crim.App. 1990)). Therefore, the appeal
must only be abated if we determine that Appellant was in custody at the time of his
statement. Id.
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Having reviewed the entire transcript of the suppression hearing, we find there
was no evidence Appellant’s written statement was involuntary because he was not in
custody at the time. The evidence indicates he agreed to go to the police station,
without handcuffs, riding in the front passenger seat of an unmarked police car. He had
not been identified as a suspect but as someone who may have seen Whitfield outside
the bar. At various times throughout the interview he was reminded he could terminate
the interview at any time, he was not under arrest and he was free to leave the station.
He also received a written statement of his Miranda rights that he initialed and agreed to
answer the officer’s questions. There is no evidence he was coerced or threatened.
From start to finish, the entire process lasted approximately nine minutes.
Only in instances when a statement stems from custodial interrogation must the
State demonstrate that the defendant knowingly and intelligently waived his privilege
against self-crimination. Melton, 790 S.W.2d at 326. As Appellant’s statement did not
stem from custodial interrogation, voluntariness is not an issue, and we need not abate
the appeal for the trial court to make written findings. Id.; White, 874 S.W.2d at 326.
Accordingly, we find the trial court did not err in failing to make and file findings of fact
and conclusions of law. Appellant’s third issue is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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