ACCEPTED
03-15-00328-cr
6704983
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 2:51:46 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00328-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 8/28/2015 2:51:46 PM
JEFFREY D. KYLE
Clerk
******
DANIEL LORENZO WILSON
VS.
THE STATE OF TEXAS
******
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 72,334
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ………………………………………………………………… 3
Statement Regarding Oral Argument ……………………………………….. 5
Statement of the Case ……………………………………………………………… 5
Statement of Facts ………………………………………………………………….. 6
Summary of State’s Argument …………………………………………………. 10
Argument and Authorities ………………………………………………………. 11
Issue on Appeal ……………………………………………………………... 11
TRIAL COURT ABUSE DISCRETION IN ADMITTING
CRIME SCENE PHOTOGRAPHS IN NON-JURY
PUNISHMENT HEARING UNDER RULE 403?
Standard of Review ……………………………………………………….. 11
Application and Analysis ……………………………………………….. 12
Prayer ……………………………………………………………………………………. 30
Certificate of Compliance with Rule 9 ……………………………………… 30
Certificate of Service ………………………………………………………………. 31
2
INDEX OF AUTHORITIES
CASES PAGE
Chamberlain v. State, 998 S.W.2d 230 …………………………… 16, 17, 23, 27
(Tx. Cr. App. 1999)
Corley v. State, 987 S.W.2d 615 ……………………………………………….. 15
(Tx. App. Austin 3rd Dist. 1999 no pet.)
Erazo v. State, 144 S.W.3d 487 (Tx. Cr. App. 2004) …………………… 17-20
Gallo v. State, 239 S.W.3d 757 (Tx. Cr. App. 2007) …………………11-12, 14
Hernandez v. State, 390 S.W.3d 310 (Tx. Cr. App. 2012) …………… 14
Jackson v. State, No. AP-75,707, 2010 Tex. Crim. App. ……………….. 19-20
Unpub. LEXIS 30, (Tx. Cr. App. 2010), not designated
for publication
Jean v. State, No. AP-76,601, 2013 Tex. Crim. App. ……………………. 27-28
Unpub. LEXIS 785, (Tx. Cr. App. 2013), not designated
for publication
Montgomery v. State, 810 S.W.2d 372 ………………………………………. 14, 21
(Tx. Cr. App. 1990) op. on reh’ng.
Pawlak v. State, 420 S.W.3d 807 (Tx. Cr. App. 2013) ………………… 14
Reese v. State, 33 S.W.3d 238 (Tx. Cr. App. 2000) …………………….. 17-20
Sonnier v. State, 913 S.W.2d 511 (Tx. Cr. App. 1995) …………… 15-16, 27
Ex Parte Twine, 111 S.W.3d 664 (Tx. App. Ft. Worth ………………… 15, 23
2nd Dist. 2003 rev. ref.)
Weatherred v. State, 15 S.W.3d 540 (Tx. Cr. App. 2000) …………… 11
3
OTHER PAGE
Texas Penal Code
Section 12.32 ………………………………………………………………… 21
Section 19.02 ………………………………………………………………… 21
Texas Code of Criminal Procedure
Article 37.07(3) …………………………………………………………….. 22, 24
Texas Rules of Evidence
Rule 403 ………………………………………… 10-11, 13-16, 20-21, 27-28
Texas Rules of Appellate Procedure
Rule 33.1 ……………………………………………………………………… 13
Rule 44.2(b) …………………………………………………………………. 28
4
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Daniel Lorenzo Wilson, was charged by indictment
with the offense of murder. The indictment alleged that he intentionally
and knowingly caused the death of Karen Edwards by shooting her with
a firearm and stabbing and cutting her with a knife. (RR-4).
The Appellant waived a jury and entered a plea of guilty to the
offense charged. (CR-15-22; RR2-7, 8). The trial court took judicial
notice of the Appellant’s judicial confession admitting all of the elements
of the offense as charged in the indictment. (CR-20; RR2-8). There was
no plea bargain with the State. (CR-15; RR2-8). The trial court found the
evidence sufficient to support a finding of guilty and recessed the
hearing for a presentence report. (RR2-9).
After an extensive subsequent hearing on punishment the court
found the Appellant guilty and sentenced him to life in the Texas
Department of Corrections, Institutional Division. (CR-25; RR3-174,
175).
5
The Appellant gave timely notice of appeal (CR-29) and the trial
court certified his right to do so. (CR-23).
STATEMENT OF FACTS
Latasha Brown was hanging out with the Appellant at his home.
They were drinking beer and Brown was using cocaine when Karen
Edwards, who had dated the Appellant, arrived. (RR3-21, 24). Edwards
sat down on the sofa and Ms. Brown got up and walked into the
bathroom. (RR3-25). As she was closing the bathroom door, however,
Brown heard a shot. (RR3-26). She knew that the Appellant kept a gun
in a drawer in the sectional sofa. (RR3-26). She had heard no argument
prior to the shot. (RR3-27).
After the shot was fired Ms. Brown heard Karen Edwards
screaming and saw her seated on the couch holding her leg. The
Appellant was next to her with the gun. (RR3-27, 28). Edwards kept
asking him to let her leave and promised not to tell anybody and would
just walk home. She promised to say that it was an accident. (RR3-29,
30, 31). The Appellant replied that she was not leaving and got a towel
or something to try to stop the bleeding. (RR3-31).
6
Ms. Edwards kept screaming “Daniel, you shot me, you shot me”.
The Appellant told her to shut up because he could not think and that he
loved her. (RR3-32).
About 30 minutes later, Karen Edwards was still seated on the
couch and the Appellant was standing over her, when he said “mother
fucker you’re going to learn to stop playing me” and accused her of
never loving him. He then he pointed the gun at her and shot her in the
stomach. Brown ran and hid in the shower. (RR3-32, 33).
Ms. Brown heard Edwards begging for her life and pleading with
the Appellant to let her call and talk to her kids and her mother one last
time. (RR3-34). She heard Edwards scream something that sounded
like “my life is leaving me”. She then saw Edwards slide across the floor
to the bathroom door. (RR3-35).
Ms. Brown urged Edwards to come with her and they would jump
out the bathroom window but Edwards said that the Appellant would
kill her if she tried that and she could not walk. (RR3-36). The Appellant
started taunting Edwards by waiving the gun around and told her that
he hoped she had prayed to her maker. (RR3-37). Brown tried to lift her
up but could not do so. (RR3-37).
7
At that point the Appellant grabbed Karen Edwards by the front of
her shirt and tossed her aside. He told her again to pray to her maker
and shot her in the head. (RR3-39). Then, when he saw she was still
breathing, he took a flashlight and started beating her about the face.
(RR3-39). The Appellant shot at her head a second time but seemed to
have missed. (RR3-39). About an hour had passed between the first
shot in the leg and the shots to the head. (RR3-39).
Ms. Edwards was still gurgling from the wound in her head. She
was breathing but not talking at that point. The Appellant grabbed her,
threw her down on the floor and stepped on her neck, saying “why don’t
you just die, bitch”. (RR3-41). He then grabbed a sword off of the table
and just started chopping down on Karen Edwards, cutting and stabbing
her. (RR3-42, 43).
The Appellant then ordered Latasha Brown to “get this trash out
of my house” but Brown could not lift the body. The Appellant told
Brown that she was going to help him get rid of it “or you are next”. He
pointed the gun at Brown and pulled the trigger, but had no more
bullets. (RR3-43, 44).
8
The Appellant and Ms. Brown first put the body of Karen Edwards
on the porch and then dragged it across the street behind a vacant
house. (RR3-43, 45, 46).
The Appellant told Brown to get back in the house and as they did
he locked the door. He changed his clothes and ordered her to put them
in a plastic bag. (RR3-46). Brown then asked him if he had any bleach
with which to clean up the scene and told him that she would go and get
some. He gave her $5.00 and she left after she called a friend to come
and pick her up. (RR3-47).
Latasha Brown was “high out of her mind” and did not know what
to do. She went to a friend’s house and used more cocaine and alcohol
but the memory would not go away. She still had brain matter on her
clothing. (RR3-48). Finally, a friend convinced her to call 911 and
report the incident. (RR3-49).
Killeen Police Officers went to the scene and arrested the
Appellant. They investigated the scene of the crime as well as where the
body was located and took photographs. (RR3-101, 102, 104).
The autopsy on the body of Karen Edwards established that she
had suffered 4 gunshot wounds, one in the leg, another in the abdomen,
one in the forehead, and one that grazed the side of her head. (RR3-86,
9
87). She also had a slicing cut on her neck, numerous stab wounds on
the abdomen and blunt force injuries to her face and forehead that
caused numerous facial fractures. (RR3-87, 88, 89, 90, 91).
SUMMARY OF STATE’S ARGUMENT
The photographs were not unfairly prejudicial but merely
depicted the reality of the brutal and heinous crime admittedly
committed by the Appellant and Rule 403 has no application. The
photographs were admissible to show the circumstances of the
commission of the crime at the punishment hearing before the trial
court and without a jury. They also served to corroborate the
eyewitness to the murder. Any prejudice created was not unfair as the
evidence only illustrated the Appellant’s own actions.
Even if the evidence had been unfairly prejudicial it did not
substantially outweigh the probative value of the evidence.
Had the trial court erred in the admission of the photographs that
error would have been harmless as not affecting the Appellant’s
substantial rights in view of his admission and the evidence of an
extremely brutal murder.
10
ARGUMENT AND AUTHORITIES
Issue on Appeal
Did the trial court abuse its discretion in overruling the
Appellant’s objections to certain photographs on the grounds that they
were unfairly prejudicial and that the probative value of that evidence
was substantially outweighed by such prejudice?
Standard of Review
A trial court’s ruling upon the admissibility of evidence is
reviewed under an abuse of discretion standard and the ruling will be
upheld as long as it is within the zone of reasonable disagreement.
Weatherred v. State, 15 S.W. 3d 540, 542 (Tx. Cr. App. 2000).
The admission of a photograph is within the sound discretion of
the trial judge and generally a photograph is admissible if verbal
testimony is admissible as to matters depicted in the photograph. If
verbal testimony is relevant, photographs of the same are also relevant.
Gallo v. State, 239 S.W.3d 757, 762 (Tx. Cr. App. 2007).
Rule 403 of the Texas Rules of Evidence, however allows the
exclusion of relevant evidence when its probative value is substantially
outweighed by the danger of unfair prejudice. The Rule favors
11
admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial. Gallo at 762.
Application and Analysis
The Photographs
In this case the State offered photographs designated State’s
Exhibits 4 through 38. They were all taken at the scene of the crime.
When the State offered State’s Exhibits 7, 8, 9, 10, 11, 13, 14, 16, 20, 21,
22, 23, 24, 25, 31, 34, and 35 the Appellant objected to them because he
alleged they were “unduly prejudicial” and their probative value was
very limited. The trial court overruled the objection and admitted those
exhibits. (RR3-52).
Later the State offered those photographs marked State’s exhibits
4, 5, 6, 12, 15, 17, 18, 19, 26, 27, 28, 29, 30, 32, 33, and 36. As to those
exhibits the Appellant had no objection and they were admitted. (RR3-
105, 106).
On appeal the Appellant says he complains of the admission of
State’s Exhibits 4, 7, 8, 15, 16, 17, and 18 (Appellant’s Brief at pg. 23),
however, he then cites Exhibits 9, 13, 14, 25, 31, 34 and 35 as examples
of what he characterizes as “grossly prejudicial” and does not include
those he earlier stated were the basis of his appellate complaint.
12
The exhibits are set out in numerical order in RR4. State’s Exhibit
41 is a photograph of the outside of the residence where the murder
occurred. State’s Exhibit 7 show the body behind the vacant house at a
distance. Exhibit 8 is a closer view of the body as it was found. State’s
Exhibit 9 is a photograph showing the wounds on the face of Karen
Edwards. Exhibit 13 and Exhibit 14 show blood on the sidewalk.
Exhibit 15 is a close up of blood pooled on the walk. Exhibit 16 shows
the sidewalk itself and 17 the back of the house and the porch. Exhibit
18 is a photograph of the back of a house. Exhibit 25 is a photograph of
the sword lying on a table inside the house. Exhibit 31 appears to show
part of the inside of the house. Exhibits 34 and 35 are photographs of
the flashlight from different angles.
Rule 403
Rule 403 requires the court to conduct a balancing test in which it
must weigh the probative value of the evidence against the danger of
unfair prejudice. The Appellant does not contest that the photographs
were both relevant and probative in this case, but merely that they were
unfairly prejudicial to the extent that the unfair prejudice substantially
1
State’s Exhibit 4 was offered and admitted without objection (RR3-105, 106) and
therefore nothing is presented for review. Rule 33.1, Texas Rules of Appellate Procedure.
13
outweighed the probative value. The rule, however, requires a
presumption that relevant evidence will be more probative than
unfairly prejudicial. Gallo at 762.
Not Unfairly Prejudicial
In this case the photographs admitted by the trial court over the
Appellant’s objection, were not unfairly prejudicial in the first place. All
evidence is prejudicial to one party or other. What Rule 403 requires is
a balancing between unfair prejudice and probative value and the rule is
inapplicable where there is not a clear disparity between such prejudice
and probative value. Hernandez v. State, 390 S.W.3d 310, 324 (Tx. Cr.
App. 2012). Evidence is unfairly prejudicial when it has an undue
tendency to suggest that a decision be made on an improper basis,
usually an emotional one. Pawlak v. State, 420 S.W.3d 807, 809 (Tx. Cr.
App. 2013), Montgomery v. State, 810 S.W.2d 372, 389 (Tx. Cr. App.
1990) op. on reh’ng.
In this case it must be remembered that the photographs
complained of were offered at a sentencing hearing conducted before
the trial court, without a jury, subsequent to a plea of guilty. The judge
was the fact finder and charged with the duty of making the decision as
to punishment. The danger of unfair prejudice under Rule 403 is greatly
14
reduced when the judge is the trier of fact. Ex Parte Twine, 111 S.W.3d
664, 668(Tx. App. Ft. Worth 2nd Dist. 2003 rev. ref.); Corley v. State, 987
S.W.2d 615, 621 (Tx. App. Austin 3rd Dist. 1999 no pet.). There is
nothing in the record to indicate or even imply that the trial judge was
prejudiced by the admission of the photographs so as to make an
emotionally charged or improper decision as to punishment.
The Appellant alleges that the photographs he cites were unfairly
prejudicial because they were “gruesome”. Three of the photographs he
cites are State’s Exhibits 7, 8, and 9. State’s Exhibits 7 and 8 show the
body of Karen Edwards where it was found. State’s Exhibit 9 shows the
wounds admittedly inflicted by the Appellant on her face. Exhibits 13,
14, and 15 show the blood trail on the sidewalk where her body was
dragged. Other photographs show the flashlight and sword used to
inflict the injuries. (Exhibits 25, 34, 35).
Undoubtedly these photographs prejudiced the Appellant, but was
that effect unfair? In Sonnier v. State, 913 S.W.2d 511 (Tx. Cr. App.
1995) the defendant complained of the admission of photographs of the
bodies of two victims in a bathtub full of bloody water with visible stab
wounds as gruesome and claimed they should not have been admitted
under Rule 403. The Court of Criminal Appeals, however, stated:
15
“The photographs are gruesome. That is to say they are
disagreeable to look at, but they depict nothing more
than the reality of a brutal crime committed. The
photographs are powerful visual evidence, probative of
various aspects of the State’s theory of the offense,
including the brutality and heinousness of the offense.
The Appellant must realize that it is precisely the quality
of which we describe as ‘powerful’ which gives rise to his
arguments that the photographs are prejudicially
inflammatory. But when the power of the visible evidence
emanates from nothing more than what the defendant
himself has done we cannot hold that the trial court has
abused its discretion merely because it admitted the
evidence. A trial court does not err merely because it
admits into evidence photographs which are gruesome.”
Sonnier at 519.
Similarly, in Chamberlain v. State, 998 S.W.2d 230 (Tx. Cr. App.
1999), the defendant complained of color photographs showing a close
up of the victim face with brain matter extruded and other wounds. He
claimed they were unfairly prejudicial and lacked probative value under
Rule 403 because they merely depicted what was included in the oral
testimony of the pathologist and were inflammatory. First of all, the
Court of Criminal Appeals rejected the premise that visual evidence
accompanying oral testimony was thereby rendered insignificantly
probative. The Court noted that visual evidence that accompanies oral
testimony often gives the fact finder a point of comparison against
which to test the credibility of the witness. Moreover, the court did not
16
agree that the photographs were inflammatory, noting that “The
photographs are gruesome in that they depict disagreeable realities, but
they depict nothing more than the reality of the brutal crime committed.
And it is precisely because they depict the reality of the offense that they
are powerful visual evidence, probative of various aspects of the State’s
case. Chamberlain at 237.
In this case the only eye witness to the murder was Ms. Brown.
She was admittedly very high on cocaine and alcohol. The photographs
taken at the crime scene were corroborative of her testimony and, as in
Chamberlain, allowed the court, as the trier of fact, to assess the
credibility of the sole witness. They were all taken at the scene and
were photographs of the victim, some of the weapons used in the
murder, and of the premises where the crime took place. The
photographs of Karen Edwards are unquestionably disagreeable to look
at but they depict only what the Appellant admitted doing and the
extreme brutality and heinousness of the crime. They may have
prejudiced the Appellant but they were by no means unfair.
The Appellant relies heavily upon Erazo v. State, 144 S.W.3d 487
(Tx. Cr. App. 2004) and Reese v. State, 33 S.W.3d 238 (Tx. Cr. App. 2000).
That reliance is misplaced. In Erazo the photograph in question was of a
17
fetus removed from the murder victim at autopsy. In finding a lack of
probative value the Court held that the photograph did not illustrate the
testimony “In contrast to a crime-scene photograph, which would assist
the jury in visualizing the scene…”. Erazo at 493. The Court of Criminal
Appeals distinguished the photographs in that case from those where
the photographs showed the wounds suffered by the victim or victims
for whose death the defendants were on trial. Erazo at 494.
The photographs in this case fall precisely into those
distinguished from the Erazo photographs. They were taken at the
crime scene and assisted the trial court in visualizing that scene. They
showed the wounds suffered by the victim alleged in the indictment and
the weapons used. They were illustrative of the testimony of Latasha
Brown and served to corroborate her testimony. That was crucial in
light of her admittedly being heavily under the influence of cocaine at
the time.
In Reese the photograph was of the victim and her unborn child
lying in a casket. The fetus had been removed from her body after her
death. The unborn child was not named as a victim in the indictment.
Reese at 239. The Court of Criminal Appeals noted that the death of the
fetus was not a fact of consequence related to an issue in dispute. Reese
18
at 242. The court held that the photograph that included the unborn
child did not depict facts relevant to the fact finders determination of
the case and that the photograph of a tiny, innocent, vulnerable unborn
child suggested that the jury’s decision would be made on an emotional
basis. Reese at 242.
In this case the photographs were of the victim alleged in the
indictment taken at the crime scene and of other aspects of that scene.
They accurately reflected what had occurred and what was, by his own
admission, caused by the Appellant. They corroborated the testimony
of the sole witness to the crime and served as a comparison from which
the court could determine her credibility. They were not taken, as those
in Reese, with the intention to inflame the fact finder. The sentencing
hearing was before the trial court without a jury. It is impossible to say
that the judge was swept away improperly by emotions so as to make an
improper decision in the case as a result of the photographs.
The photographs complained of in this case were all of the alleged
victim and all taken at the scene of the crime. In Jackson v. State, No. AP-
75,707, 2010 Tex. Crim. App. Unpub. LEXIS 30 (Tx. Cr. App. 2010), not
designated for publication, the defendant attempted to rely upon both
Erazo and Reese when contesting the admission of crime scene and
19
autopsy photographs under Rule 403. In affirming the admission of
those photographs the Court of Criminal Appeals distinguished them
from those in Erazo and Reese because they were photographs of the
victim named in the indictment, whereas the photographs in those cases
were not. The Court went on to note, “Although some of the
photographs contained gruesome depictions of the victim’s head
injuries, these and other photographs simply reflected the brutality of
the offense.” Jackson op. pg. 2.
The photographs which the Appellant complains of in this case
were properly admitted by the trial court. They were all of the crime
scene and the victim named in the indictment. They merely reflected
the extreme brutality of the offense committed by the Appellant and
displayed only the results of his own actions. They served as a point of
comparison from which the trial court, as fact finder, could judge the
credibility of the admittedly impaired eye witness to the crime. Those
photographs were not unfairly prejudicial to the Appellant. There is
nothing to show that the trial court was improperly influenced by them
so as to produce a purely emotional or irrational decision about the
punishment assessed. Because there was no unfair prejudice from the
evidence Rule 403 is inapplicable.
20
Balancing Test
In conducting a balancing test as required by Rule 403 the
following factors may be considered: (1) the probative value of the
evidence; (2) the potential to impress the fact finder in some irrational,
yet indelible way; (3) the time needed to develop the evidence; and (4)
the proponent’s need for the evidence. Montgomery, supra. Even had
the evidence had an element of unfair prejudice the probative value of
the evidence would not have been substantially outweighed by that
unfair prejudice.
Probative Value of the Evidence
The Appellant concedes that the challenged photographs had
probative value as to the extent of the injuries suffered by Karen
Edwards and as to his own culpable mental state, however, he attempts
to dismiss that value because of his plea of guilty. (Appellant’s Brief at
pg. 23). There was no plea bargain as to punishment. The offense of
murder carries a wide range of punishment, from 5 years to 99 years or
life. Sections 12.32 and 19.02, Texas Penal Code. Upon the Appellant’s
election it was the duty of the trial court to decide where, within that
range, punishment for this offense should be assessed.
21
At a punishment hearing evidence may be offered as to any matter
the court deems relevant to sentencing, specifically including the
circumstances of the offense. Article 37.07(3), Texas Code of Criminal
Procedure. Whether or not the sentencing hearing occurs after a plea of
guilty or a contested trial that evidence is relevant and admissible on
the question of punishment to be assessed.
The photographs in this case, taken of the victim at the crime
scene and the scene itself, visually illustrated the circumstances of the
commission of the offense. They also gave the trial court a basis for
comparison allowing it to judge the credibility of the eye witness. They
were of great probative value.
Potential to Impress Fact Finder in Irrational and Indelible way
The Appellant argues that the photographs have a potential to
impress the fact finder in an irrational and indelible way due to their
depiction of the body of the victim at the crime scene, the place where
the murder occurred and the blood on the sidewalk where he dragged
her. He also says that the photographs of the flashlight and sword used
by him in the murder had such a potential.
The Appellant says that these photographs “appealed to the trial
judge’s emotions and encouraged her to make her punishment decision
22
on an emotional basis without regard to the probative force of the
evidence.” (Appellant’s Brief at pg. 26). The record does not support
that speculation. The court uttered not one word indicating it was
sentencing the Appellant because the photographs inflamed emotion
that overcame its ability to make a rational decision based on the
evidence. This was the trial court, not a jury, making the decision and
the danger of such an emotional decision based upon unfairly
prejudicial evidence is greatly reduced under those circumstances. Ex
Parte Twine at 668.
Contrary to the Appellant’s theory, the mere nature of the
photographs as gruesome is insufficient to show the required potential
to unfairly prejudice the trial court. They merely reflected the
disagreeable realities of the brutal crime the Appellant committed and
which the trial court properly considered in making the punishment
decision. They were not inflammatory and nothing indicates the trial
court was inflamed by them. Chamberlain at 237. The evidence of an
extremely brutal crime certainly logically explains the assessment of a
life sentence and it cannot be said that such a decision resulted from an
improper emotional basis as a result of the photographs as opposed to
all of the evidence regarding the circumstances of the murder.
23
Time Needed to Develop Evidence
The Appellant concedes that the State did not use an inordinate
amount of time during the hearing to the admission of the photographs.
(Appellant’s Brief at pg. 26).
State’s Need for the Evidence
The Appellant begins by stating that the State’s need for the
photographs as evidence was to show his culpable mental state and the
extent of the victim’s injuries, ignoring any other need for the evidence.
He then argues that these were not at issue because of his plea of guilty.
This is incorrect.
The issue before the trial court was the punishment to be
assessed for the offense the Appellant committed. The circumstances of
that offense were admissible and vital so that the judge could make a
decision on that issue. The fact that he entered a plea of guilty had no
effect upon the duty of the court, nor did it render evidence of the
circumstances of the offense inadmissible or improper. Article 37.07(3),
Texas Code of Criminal Procedure. By his plea the Appellant admitted
that he intentionally and knowingly murdered Karen Edwards by
shooting her with a gun and cutting and stabbing her with a knife. His
admission did not include the circumstances of the commission of that
24
offense. Those circumstances were not only highly relevant to the
decision of the trial court, but were necessary to make a rational
decision on that issue and were admissible on punishment by statute. It
is illogical and self-serving to suggest that the trial court as fact finder
on punishment should be unable to learn of the circumstances of the
offense in assessing punishment beyond the admitted elements of the
offense set out in the indictment. Clearly Ms. Brown’s testimony was
admissible at the sentencing hearing and the photographs were visual
representations of that testimony. The State had both a duty and a need
to provide that evidence to the court so that it could determine the
punishment to be assessed.
Balancing
The photographs had great probative value as to the
circumstances of the commission of the offense going to the issue of the
proper assessment of punishment. They were of probative value in the
assessment by the trial court of the credibility of Ms. Brown, the eye
witness to the murder, and as to the circumstances of the crime
committed. The Appellant’s conclusion that they “doubtless” had an
emotional impact on the experienced trial judge is without any basis in
fact or the record. His view seems to be that because the photographs
25
prejudiced him by showing the results of his own actions that prejudice
must have thus been unfair. Those photographs were properly before
the trial court and could be considered in assessing punishment and it
was not at all unfair to allow the court to know what the Appellant had
done.
The Appellant’s plea of guilty to the offense charged in the
indictment, contrary to his assertion, has no effect upon the
admissibility or the probative value of the evidence of the circumstances
of the offense as bearing on the punishment to be assessed. There need
not have been a contested issue on the extent of Edward’s injuries nor
the Appellant’s culpable mental state in order to make the evidence of
the circumstances of the offense probative on punishment. The
Appellant’s plea of guilty without a plea bargain is what put the issue of
proper punishment before the court and rendered the evidence as to the
circumstances of the offense probative and fair.
The State’s need for the evidence is not restricted to the
Appellant’s incorrect representation of the basis for that need. Even
with the offense admitted by him, the State still “needed” to present the
circumstances of the offense to the court for consideration as to
punishment to be assessed. It did not need for culpability or the extent
26
of the injuries to the victim to be contested in order to do so. The
photographs were visual evidence accompanying the oral testimony of
Ms. Brown and were not cumulative, Chamberlain at 237, and their
evidentiary power emanated from nothing more than what the
Appellant had done. Sonnier at 519. The need for that evidence in order
to provide the trial court with a rational basis for the assessment of
punishment was great.
The essence of the Appellant’s complaint is that, in his view the
pictures are gruesome and, therefore, their probative value is
substantially outweighed by the danger of unfair prejudice and that the
fact that he pled guilty and Ms. Brown testified to the matters contained
in the photograph rendered them unnecessary and irrelevant.
In Jean v. State, No. AP-76,601, 2013 Tex. Crim. App. Unpub. LEXIS
785 (Tx. Cr. App. 2013), not designated for publication, the Court of
Criminal Appeals, in affirming the decision of the trial court to admit
photographs of the victim taken at the crime scene over a Rule 403
objection stated:
“Photographs depicting the location of the body and
the victim’s injuries are relevant. And even if photographs
are gruesome, under Rule 403 their probative value
are not substantially outweighed by the danger of unfair
27
prejudice if they ‘are no more gruesome than the crime
scene itself as it was found by the police.’ Likewise, under
Rule 403, photographs of a victim’s injuries are admissible if
they show ‘only the injuries that the victim received and are
no more gruesome than would be expected.’ Moreover, the
fact that the jury also heard testimony regarding the
injuries depicted does not reduce the relevance of the visual
depiction.”
Jean, Op. at pg. 5.
That is precisely the situation in this case and the probative value of
these photographs is, likewise, not substantially outweighed by the
danger of unfair prejudice.
In the end all of the factors, taken individually and together,
support the admission of the complained of photographs over the
Appellant’s Rule 403 objection and the trial court did not abuse its
discretion in doing so.
Harmless
Non-constitutional error that does not affect substantial rights
must be disregarded. Rule 44.2(b), Texas Rules of Appellate Procedure.
In this case the trial court did not err in admitting the photographs. Had
that not been the case, however, in light of the Appellant’s plea of guilty
to the allegations in the murder and Latasha Brown’s testimony that the
Appellant, her close friend, shot Karen Edwards four times, twice in the
28
head, over a period of more than an hour (RR3-39) and then when she
would not stop breathing beat her in the face with a flashlight, stepped
on her neck, cut her on the neck and then hacked her with a sword,
before dragging her body by the ankles across the street and dumping it
behind a vacant house, it could not be said that the photographs affected
the Appellant’s substantial rights.
The testimony coupled with the Appellant’s judicial confession
established an extremely brutal and heinous murder. Whatever
gruesomeness that may be found in the photographs consisted of a
visual representation of Brown’s testimony as to the circumstances of
the offense. The Appellant never contested the admissibility of that
testimony. The State respectfully submits that it cannot be reasonably
concluded that the outcome of the punishment hearing would have been
different had the trial court excluded the photographs. Had the trial
court erred the error would have clearly been harmless.
29
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 5,110 words.
/s/
BOB D. ODOM
Assistant District Attorney
30
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, E. Alan Bennett, Counsel for Appellant, by electronic
transfer via Email, addressed to him at abennett@slmpc.com on this
28th day of August, 2015.
/s/
BOB D. ODOM
Assistant District Attorney
31