Opinion issued August 1, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00482-CR
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CHARLES EDWARD WEST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1328522
MEMORANDUM OPINION
Appellant, Charles Edward West, was charged with capital murder of an
individual under six years of age.1 A jury convicted him of the lesser-included
1
See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2011 & Supp.
2012).
offense of serious bodily injury to a child 2 and assessed his punishment at fifty-five
years’ confinement. In his sole issue on appeal, appellant argues that the trial court
abused its discretion in “admitting autopsy photographs over objection when the
photos were gruesome and the probative value nominal.”
We affirm.
Background
The complainant, J.W., was the two-year-old son of appellant’s girlfriend,
Tiffany Williams. On December 14, 2010, paramedics arrived at the apartment
appellant and Williams shared to discover J.W. unconscious. He was transported
to a local hospital and declared dead, and an autopsy was performed the next day.
The autopsy revealed that J.W. had suffered numerous bruises and rib fractures and
that his death was caused by multiple blunt force trauma.
The police interviewed Williams following the autopsy, and she told officers
that appellant, after being alone with J.W. for several minutes, came out of the
bedroom and told her that he “hit the baby too hard.” Subsequently, appellant
made a statement to police that he and J.W. were playing rough, but he did not
intentionally hurt J.W. Appellant later admitted to wrestling with J.W. and stated
that he might have fallen on J.W. or hit him too hard, but he again insisted that he
never intentionally hurt J.W.
2
See id. § 22.04(a) (Vernon Supp. 2012).
2
At trial, Williams testified that she had observed previous incidents of
appellant abusing J.W. She stated that appellant would punch J.W. in the chest to
make him stop crying and that, on one occasion, appellant struck J.W. with a
wooden paddle hard enough to draw blood.
The medical examiner, Dr. Darshan Phatak, testified that he found multiple
recent contusions and abrasions on J.W.’s body, including twenty-nine bruises on
his torso alone, and that several of the bruises on J.W.’s face and torso were
consistent with being “repeatedly punched.” Dr. Phatak determined that two of the
injuries discovered during the autopsy were capable of causing J.W.’s death. J.W.
sustained a laceration to his liver that caused severe blood loss, and he had a head
injury that resulted in a subdural hemorrhage. Regarding the head injury, Dr.
Phatak testified that “you don’t get a good idea of how hard the force is that
impacts the body until you see what might have been damaged inside.” He further
testified that he observed hemorrhaging under J.W.’s scalp and on his brain, and
that observing the injuries below the surface of the scalp is a better indicator of the
strength of the blow.
The State offered exhibits 90 and 91—eight-by-ten inch colored photographs
of J.W.’s scalp and brain taken during the autopsy—as demonstrating the injuries
Dr. Phatak observed “in [his] determination of the strength of the blow as well as
whether this was an accident or not.” Appellant objected that the photographs had
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no probative value and that any probative value was “outweighed by the damage of
the photographs.” The trial court overruled the objection, stating, “The Court, after
a 403 balancing test, determined that the probative value of the jury understanding
the nature of the injury and whatever force was necessary outweighs the prejudicial
value and they are admitted.”
Dr. Phatak went on to testify that the hemorrhages demonstrated in the
photographs indicated “strong” force was used to strike J.W. He testified that the
bruising was not consistent with an accidental fall or with a grown man falling on
top of J.W. He stated that the force required to cause the laceration to J.W.’s liver
was the equivalent of a boxer throwing a punch. Dr. Phatak stated that the degree
of trauma demonstrated by the brain injury and liver injury did not indicate
accidental and unintentional injury, but instead indicated that J.W. had been beaten
to death. The State admitted a total of twenty-six photographs of J.W. taken during
the medical examiner’s autopsy, which Dr. Phatak used to testify about the
multiple injuries J.W. sustained at or near the time of his death.
Admission of Autopsy Photographs
In his sole issue on appeal, appellant argues that the trial court erred in
admitting the two autopsy photographs depicting J.W.’s skull and brain. He argues
that the photographs were “particularly gruesome” and that the “gruesomeness of
the photographs far outweigh[s] any possible probative value the photographs may
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have.” Thus, he argues that they should have been excluded under Rule of
Evidence 403. Appellant also argues that the photographs were “cumulative and
bolstering of the medical examiner’s testimony.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); see
also Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The
admissibility of a photograph is within the sound discretion of the trial judge.”).
We will not reverse the trial court’s ruling unless the ruling falls outside the zone
of reasonable disagreement. Torres, 71 S.W.3d at 760. We will not disturb a trial
court’s evidentiary ruling if it is correct on any theory of law applicable to that
ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
To be admissible, evidence must be relevant. TEX. R. EVID. 401. Evidence
is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Id. Generally, a photograph is admissible if
verbal testimony as to matters depicted in the photograph is also admissible.
Gallo, 239 S.W.3d at 762 (holding that fact that jury also heard testimony
regarding matter depicted in photograph “does not reduce the relevance of the
visual depiction”).
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Rule of Evidence 403 provides that evidence, although relevant, “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.” TEX. R. EVID. 403.
Rule 403 “favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial.” Gallo, 239 S.W.3d at
762. A proper Rule 403 analysis includes, but is not limited to, the following
factors: (1) the probative value of the evidence; (2) the potential to impress the jury
in some irrational, yet indelible way; (3) the time needed to develop the evidence;
and (4) the proponent’s need for the evidence. Prible v. State, 175 S.W.3d 724,
733 (Tex. Crim. App. 2005). The court may also consider factors such as “the
number of [photographs] offered, their gruesomeness, their detail, their size,
whether they are in color or black-and-white, whether they are close up, whether
the body depicted is clothed or naked, the availability of other means of proof, and
other circumstances unique to the individual case.” Davis v. State, 313 S.W.3d
317, 331 (Tex. Crim. App. 2010). Thus, Rule 403 requires that the photograph
have some probative value and that its probative value not be substantially
outweighed by its inflammatory nature. Williams v. State, 301 S.W.3d 675, 690
(Tex. Crim. App. 2009).
6
Autopsy photographs are relevant to show the manner and means of death.
Moreno v. State, 1 S.W.3d 846, 857 (Tex. App.—Corpus Christi 1999, pet. ref’d).
The Court of Criminal Appeals has held that autopsy photographs are generally
admissible unless they depict mutilation of the victim caused by the autopsy itself.
Williams, 301 S.W.3d at 690. However, it has also held that autopsy photographs
that show mutilation caused by the autopsy are admissible in some circumstances,
such as when the photographs show an injury that would not have been visible
otherwise. See Davis, 313 S.W.3d at 331 (holding trial court did not abuse its
discretion in admitting photograph of cross-section of complainant’s tongue; photo
was necessary to show injury not otherwise visible); Gallo, 239 S.W.3d at 763
(holding that autopsy photographs depicting complainant’s brain, skull, and
removed, fractured rib were admissible; medical examiner used photos to show
injuries that could not be seen from body’s surface and were probative of full
extent of injury to complainant). “A trial court does not err merely because it
admits into evidence photographs which are gruesome.” Sonnier v. State, 913
S.W.2d 511, 519 (Tex. Crim. App. 1995); see also Gallo, 239 S.W.3d at 763
(“Although these photographs are gruesome, there was no danger that the jury
would attribute the removal of the rib, scalp, or skull cap to the defendant.”).
Here, the appearance of J.W.’s internal brain injury was highly probative of
the full extent of J.W.’s injuries and the manner and means of his death. See
7
Gallo, 239 S.W.3d at 763; Moreno, 1 S.W.3d at 857. Appellant made a statement
to police that he did not intentionally hurt J.W. and that the child’s injuries might
have been caused by an accidental fall—either when J.W. himself fell or when
appellant fell on top of him. The State had the burden to prove that appellant
intentionally or knowingly caused J.W.’s death or serious bodily injury. See TEX.
PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2011 & Supp. 2012)
(providing that person commits offense of capital murder if he intentionally or
knowingly causes death of another individual and that individual was under ten
years of age); id. § 22.04(a) (Vernon Supp. 2012) (providing that person commits
offense of injury to child “if he intentionally, knowingly, recklessly, or with
criminal negligence, by act, . . . causes to a child . . . serious bodily injury.”). Dr.
Phatak testified that neither of the two fatal injuries that J.W. sustained could have
been caused accidentally or unintentionally. Regarding the contested photographs,
Dr. Phatak testified that the extent of J.W.’s brain injury could not be determined
from looking at the outside of his head. It was only by examining the
hemorrhaging under J.W.’s scalp and on his brain that Dr. Phatak could determine
that the force required to cause such an injury could not have been caused by the
scenarios proposed by appellant.
Exhibits 90 and 91 were only two of the twenty-six photographs used by the
State to demonstrate the various injuries J.W. sustained at or near the time of his
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death. These two photographs did not receive any undue emphasis in terms of
size, quality, length of time they were displayed, or Dr. Phatak’s accompanying
testimony. Although the photographs were gruesome, here, as in Gallo, there was
no danger that the jury would attribute the removal of the scalp flap or skull cap to
appellant. See Gallo, 239 S.W.3d at 763; see also Williams, 301 S.W.3d at 692–93
(holding that photograph is not inadmissible because it reflects reality of brutal
crime that was committed); Sonnier, 913 S.W.2d at 519 (“A trial court does not err
merely because it admits into evidence photographs which are gruesome.”).
Appellant further argues that the photographs were bolstering and
cumulative of Dr. Phatak’s testimony. However, “[A] visual image of the injuries
appellant inflicted on the victim is evidence that is relevant to the jury’s
determination. The fact that the jury also heard testimony regarding the injuries
depicted [in the photographs] does not reduce the relevance of the visual
depiction.” See Gallo, 239 S.W.3d at 762; see also Moreno, 1 S.W.3d at 857
(holding that autopsy photographs are relevant to show manner and means of
death).
Thus, under the circumstances of this case, we cannot conclude that the trial
court abused its discretion in deciding that the probative value of the photographs
substantially outweighed the danger of unfair prejudice. See Prible, 175 S.W.3d at
733; Davis, 313 S.W.3d at 331.
9
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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