Opinion
No. 05-15-00197-CR
05-27-2016
GREGORY MOSES GUAJARDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1311828-M
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Schenck
Appellant Gregory Moses Guajardo appeals his conviction for the capital murder of his 6-month-old son, G.G. In three issues, appellant argues (1) the evidence is legally insufficient to establish he committed the offense, (2) the trial court abused its discretion in excluding impeachment evidence of appellant's girlfriend's prior conviction for burglary of a vehicle, and (3) the trial court abused its discretion in admitting autopsy photographs of G.G. By cross-appeal, the State argues the trial court erred in sentencing appellant to life imprisonment, rather than life imprisonment without parole. We affirm appellant's conviction as modified by this opinion. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
A. Background Facts and Procedure
Appellant fathered three children with his girlfriend Shawnna: S.G., W.G., and G.G. Child Protective Services ("CPS") removed all of the children from their custody because Shawnna used cocaine while pregnant with S.G. and methamphetamine while pregnant with G.G. CPS placed the children with various family members. Against CPS placement rules, on occasion, family members allowed the children to be alone with appellant and Shawnna. The weekend of March 8, 2013, was such an occasion.
S.G. and W.G. were placed with appellant's cousin, and G.G. was placed with Shawnna's brother and his girlfriend.
During that time, appellant and Shawnna were living with appellant's mother (Rachel) in a small two bedroom house. In the early morning hours of March 11, 2013, G.G. was fatally injured. He died two days later.
Police focused their initial investigation on appellant, Shawnna, and Rachel, as they were the only adults present when G.G. was fatally injured. Appellant told the police that he was the one who discovered G.G. was not breathing and that G.G. had fallen off the bed and bumped his head. Shawnna and Rachel denied any knowledge of how G.G. was injured or why he stopped breathing. Appellant was charged by indictment with the capital murder of G.G. He entered a plea of not guilty and was tried before a jury.
S.G. and W.G. were one-and-a-half and two-and-a-half years old, respectively, at the time of G.G.'s death.
B. Evidence at Trial
Both the State and appellant presented evidence at trial. In support of its case-in-chief, the State presented evidence that a wellness examination conducted just prior to G.G. arriving at Rachel's house on March 8, 2013, revealed he was perfectly healthy. Combined testimony from appellant, Shawnna, and Rachel confirmed that G.G. remained healthy until sometime after 11:15 p.m. on Sunday March 10, 2013, when he sustained multiple and forceful blows to the head.
At trial, appellant, Shawnna, and Rachel confirmed the following. Just prior to 11:15 p.m., appellant and Shawnna were at a laundromat. While they were there, Rachel watched the children. Appellant and Shawnna returned home at around 11:15 p.m. at which time G.G. was awake, healthy, and happy. Shortly thereafter, appellant, Shawnna and the children went to bed. After appellant woke Rachel and Shawnna and told them G.G. was not breathing, Rachel drove Shawnna and G.G. to Dallas Regional Hospital while appellant stayed at the house with the other children. Rachel then returned home, picked up appellant, and they took the other children to appellant's cousin's house. Doctors at Dallas Regional Hospital ordered a CAT scan on G.G. The scan revealed G.G. had been hit in the head and had been severely injured. As a result, G.G. was CareFlighted to Children's Medical Center and the hospital staff contacted the police.
At trial, Detective Bird testified to the following. On March 11, 2013, he and his partner were dispatched to Dallas Regional Hospital to investigate a report of an injury to a child. Upon arriving, they learned the baby had been transported to Children's Medical Center. They proceeded to Children's Medical Center and made contact with the treating physician. The treating physician told them that the child had suffered severe trauma. As a result, Detective Bird and his partner conducted an interview of every adult who was present at the time of the injury. The initial interviews were conducted at Children's Medical Center. Detective Bird asked appellant to make a written statement about what had occurred during the previous night and the early morning hours and offered to take down his statement after discovering appellant did not write very well. Appellant accepted the offer, gave his statement, reviewed the statement as recorded, and signed it. The State offered the written statement into evidence, it was admitted, and published to the jury. The statement said:
Saturday, late afternoon, [G.G.]was dropped off, everything was good. Sunday, got up, fed, spent the day with us, about 8:30 fed him, changed and put to bed about 9:30. Me and Shawnna went to laundry mat to go wash clothes, got back at 11:15 p.m. [G.G.]was awake, so I made him a bottle, put him back to sleep. Me, Shawnna, and the other two girls went to sleep in the bed. About 1:30, 2:00 a.m., he woke up fussing. Picked him up, rocked him back to sleep. Laid him in the bed next to me. About 3:30 a.m., he almost rolled off the bed and hit his head on the bed rail. I caught him before he hit the floor. I rocked him back to sleep. At this time I put him in the [bassinette]to sleep. I laid down on the floor next to him. About half an hour to an hour later, I heard him making a gagging sound like he was throwing up. So I got up to check him. He seem not to have any throw-up on him. So I rolled him over. When I rolled him over, some milk and throw-up came out of his mouth. So I picked him up and patted him on his back. That's when rest of his throw-up came out. I stopped patting him on his back and noticed he wasn't breathing. I took him for the living room and started giving him CPR. I couldn't resuscitate, so I yelled for my mom and Shawnna. My mom came in and grabbed the baby from me and started to do CPR in the living room. I went into my mom's room and grabbed her so that I didn't wake up the two girls. That's when she went into the living room with me. She had the baby and I ran into the phone to get the phone to call 911. I dialed 911. By that time Shawnna was in the living room, so I hung up the phone and rush off to the hospital. I got the girls ready to go to my cousin's house. My mom left Shawnna at the hospital with the baby and came back and picked us up and drove to my cousin's house. She got the kids from there. And we went to the hospital.
Rachel encouraged everyone to say G.G. was dropped off on Saturday instead of Friday because she was afraid CPS would take the children away again.
Detective Bird testified that he and the treating physicians knew that G.G.'s injuries could not have been the product of simply rolling of a bed. Something severe had happened. As part of their investigation, the detective obtained a search warrant for the house. They executed the search warrant immediately after leaving the hospital. Their search of the house was video-taped, introduced into evidence, and published to the jury. The bassinette that appellant claimed he put G.G. in after he rolled out of bed was folded up, leaning against the wall, with chairs in front of it. Detective Bird said it did not make sense that in the midst of an emergency a person would take the time to fold up the bassinette and put it away. The detectives measured the height of the bed, it was 15 or 16 inches. Appellant pointed out the rail he claimed G.G. hit. It was located under the bed, less than a foot from the floor.
Rachel testified as a witness for appellant at trial. She generally testified that appellant was a good father and Shawnna was an indifferent mother who sometimes jerked her oldest daughter's arm when she was upset with her. Rachel also testified that Shawnna had been dangling G.G. in one arm and allowed him to hit the entrance door to the emergency room at the hospital. That testimony was later refuted by surveillance footage obtained from the hospital showing Shawnna exiting Rachel's car, carrying G.G. in both arms, in such a hurry that she left the passenger car door open. That surveillance footage was admitted into evidence at trial and published to the jury. As to the events of the early morning hours of March 11, 2013, Rachel testified she went to bed at 2:45 a.m. She claimed thereafter she saw Shawnna enter the bathroom. In her earlier written statements to the police, Rachel made no mention of Shawnna being awake at any time prior to the commotion following appellant's discovery that G.G. was not breathing.
In addition to Rachel, appellant's sister, aunt, and cousin testified that appellant was a good father. Appellant's sister testified she had seen Shawnna exhibit violence towards her children and appellant's cousin testified Shawnna is an unfit mother. --------
At trial, appellant testified as follows. On Sunday March 10, 2013, he slept on and off during the day because he was scheduled to work construction all day Monday and needed to rest. When he and Shawnna returned home from the laundromat he played with the children for a while, watched television in their bedroom, and then they all went to sleep. He, Shawnna, S.G., and W.G. all slept in a full-size futon bed. He slept on the edge, Shawnna next to him, W.G. next to Shawnna, and S.G. closest to the wall. G.G. slept on a rectangular ottoman in the same bedroom. At around 1:00 or 1:30 a.m., G.G. was fussing so appellant picked him up and put him in the bed with him. A couple of hours later, G.G. rolled off the bed, hit his head on the bed frame, but did not hit the floor. Appellant then put G.G. in his bassinette, and a couple hours later he heard G.G. gagging, so he checked on him and discovered he was not breathing. He then yelled for help, but Shawnna and Rachel did not respond. He had to wake them up. He woke his mother first, and she suggested going to the hospital rather than waiting for a response to a 911 call. Appellant admitted that he was not aware of anyone other than himself having gotten up during the night. Shawnna did not crawl over him or move him to get out of the bed. He did not hear anyone beating G.G while he did claim to be awakened by the sound of G.G. gagging for air. He was the only person handling G.G. when he began to exhibit the symptoms of trauma.
Dr. Cox, a board certified pediatrician and certified child-abuse pediatrician, with privileges at Children's Medical Center, testified that he was involved in the evaluation of G.G. When Dr. Cox first saw G.G., he was still alive. He was on life support and showed very little neurological function. G.G. displayed multiple areas of bruising, including bruising on the right side of his face, on his left cheek, on the edge of his left ear, on his abdominal wall, on his right groin, on the back of his right ankle, and on his buttocks. Dr. Cox explained that G.G.'s imaging studies showed head injury, bleeding, skull fractures on the right and left sides and on the back of his head, and brain swelling. Dr. Cox also testified that G.G. suffered retinal hemorrhaging and detachment. Dr. Cox testified that a fall of the type described by appellant is inconsistent with the pattern of injuries he observed on G.G. G.G.'s skull was broken in pieces, his brain suffered hemorrhaging across its surface. Dr. Cox testified that these injuries suggested some traumatic force causing the head to hit multiple surfaces violently. In addition, the fact that the hemorrhaging was not just underneath the location of the fractures, indicated more than just an impact-type force. It indicated rotational force with the head moving back and forth. Dr. Cox stated that the pattern of the fractures on G.G.'s skull suggests that the object he came in contact with was a flat surface rather than a curved or pointed surface. Dr. Cox concluded someone deliberately injured this child.
When Dr. Cox was questioned about the claimed delay of approximately 30 minutes from the alleged fall when G.G. began to breathe erratically, he explained that G.G.'s breathing would have been immediately impacted by the violent blows he suffered. Appellant's own medical expert, Dr. Besant-Matthews, also confirmed that G.G. would have been symptomatic immediately after receiving the injuries he sustained. He testified that the nature of the fractures and the severity of the injuries is not consistent with a baby falling a distance of 15 inches off the ground. He agreed this was a homicide, not an accident.
The medical examiner testified about the autopsy procedure and her findings of numerous bruises on G.G., several separate fractures to his skull, hemorrhaging of the eyes, retinal detachment, hemorrhaging on and swelling of the brain, evidencing numerous impacts involving extreme force. She indicated that with this type of trauma, symptoms would manifest immediately. The medical examiner concluded the cause of death was due to blunt-force injury, and the manner of death was homicide.
At the conclusion of the evidence, the jury found appellant guilty of the offense charged and the trial court sentenced appellant to life imprisonment. The trial court certified appellant's right to appeal.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges the legal sufficiency of the evidence to prove he was the perpetrator of the crime.
A. Standard of review
In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). We must give 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. Id. Our role is only to ensure that the jury reached a rational conclusion, not to re-evaluate the weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
B. Discussion
Appellant does not contest the sufficiency of the evidence that someone murdered G.G. Instead, he challenges the sufficiency of the evidence that it was him, and not one of the other two adults present in the house at the time. There is no question that the State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984). Identity may be proved by either direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). In fact, identity may be proven by reasonable inference. See United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981). When there is no direct evidence of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. See Sepulveda v. State, 729 S.W.2d 954, 957 (Tex. App.—Corpus Christi 1987, pet. ref'd).
The evidence established appellant, Shawnna, and Rachel were the only adults present in the house at the time G.G. was fatally injured. A reasonable inference from this evidence, which appellant acknowledges, is that one of them was the perpetrator of this crime.
The undisputed evidence established Rachel watched the children while appellant and Shawnna were at the laundromat and that G.G. was perfectly happy and healthy when appellant and Shawnna returned to the house. Therefore, the jury could have reasonably inferred that Rachel did not injure G.G. while appellant and Shawnna were at the laundromat. Appellant's testimony established that after he and Shawnna returned from the laundromat G.G. was in the bedroom with appellant, Shawnna, and the other children, that Rachel slept in a separate bedroom, and that appellant woke Rachel up when he discovered G.G. was not breathing. While it is possible that Rachel awoke after appellant fell asleep and had an opportunity to injure G.G., a reasonable jury could have concluded had she been the perpetrator of this offense, in the small confines of the house, appellant would have been awakened by the sounds associated with the extremely violent and forceful assaults of G.G. But appellant did not testify that he was awakened by the sounds of assault, rather he testified he was awakened by G.G.'s irregular breathing. From this evidence, the jury could have reasonably concluded Rachel was not the perpetrator of the crime against G.G.
As to Shawnna, appellant testified he, Shawnna, and the children all went to bed at the same time. At that time, G.G. was happy and healthy. Appellant admitted Shawnna did not crawl over him or move him to get out of bed that night and that he had to physically wake her up when he discovered G.G. was not breathing. Shawnna testified she had been using methamphetamine and was crashing that night, which the jury could have thought plausible, given her extensive history of drug abuse that precipitated CPS's removal of the children from her custody. Rachel's testimony she saw Shawnna entering the bathroom some time that night was inconsistent with her prior statements to the police. Further, Rachel's credibility was called into question when her testimony that Shawnna ran G.G. into the door at the hospital was refuted by video evidence. Viewing the evidence in the light most favorable to the verdict, the jury could have concluded Shawnna was not awake and ambulatory during the time G.G. was injured. The jury was further entitled to reasonably infer that Shawnna was not the perpetrator of the crime against G.G. That left the jury to consider whether appellant was the perpetrator.
In support of appellant's argument that the evidence is legally insufficient to establish he was the person who murdered his son, he relies upon Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) and Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012). Winfrey and Gross are both distinguishable from this case. In Winfrey, there was no physical evidence to connect Winfrey or her family to the crime scene, nor were she or any member of her family connected to the property assumed to be missing from the victim's home. Winfrey, 393 S.W.3d at 765. The only evidence that purported to directly connect Winfrey to the crime scene was a canine-scent lineup. The testimony in that case reflected the dogs detected Winfrey's scent on the victim's clothes, indicating that she had had contact with his clothing, at some unspecified time. Id. at 766. In finding a lack of sufficient evidence to support Winfrey's conviction, the court concluded dog-scent lineups, "when used alone or as primary evidence, are legally insufficient to support a conviction." Id. at 768 (citing Winfrey v. State, 323 S.W.3d 875, 876-78 (Tex. Crim. App. 2010). In this case, the evidence established a connection between appellant and the crime scene and the universe of potential perpetrators was limited to three people.
In Gross, the court of criminal appeals affirmed the court of appeals' reversal of Gross' conviction of murder under a parties theory. Gross had been the driver of the vehicle in which he and the gunman rode after an unanticipated altercation in a parking lot of a convenience store. There simply was no evidence of a prior or contemporaneous plan between Gross and the gunman to commit the murder. Gross, 380 S.W.3d at 188. The court of criminal appeals concluded the lack of evidence of Gross' involvement in the actual murder was insufficient to support a murder conviction under the law of parties. Id. at 186. Unlike Gross, this case did not involve the law of the parties, and the evidence established more than appellant's mere presence when G.G. was fatally injured.
We now consider whether the jury, as the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, could have reasonably concluded, beyond a reasonable doubt, that appellant was the perpetrator of this crime. In doing so, we note that juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
Appellant argues the jury's conclusion he was the perpetrator of the offense was based upon speculation, not reasonable inference. In Hooper, the court of criminal appeals recognized that without concrete examples, it can be difficult to differentiate between inferences and speculation, and between drawing multiple reasonable inferences versus drawing a series of factually unsupported speculations. Id. at 16. It therefore set forth the following hypothetical to illustrate the differences.
A woman is seen standing in an office holding a smoking gun. There is a body with a gunshot wound on the floor near her. Based on these two facts, it is reasonable to infer that the woman shot the gun (she is holding the gun, and it is still smoking). Is it also reasonable to infer that she shot the person on the floor? To make that determination, other factors must be taken into consideration. If she is the only person in the room with a smoking gun, then it is reasonable to infer that she shot the person on the floor. But, if there are other people with smoking guns in the room, absent other evidence of her guilt, it is not reasonable to infer that she was the shooter. No rational juror should find beyond a reasonable doubt that she was the shooter, rather than any of the other people with smoking guns. To do so would require impermissible speculation. But, what if there is also evidence that the other guns in the room are toy guns and cannot shoot bullets? Then, it would be reasonable to infer that no one with a toy gun was the shooter. It would also be reasonable to infer that the woman holding the smoking gun was the shooter. This would require multiple inferences based upon the same set of facts, but they are reasonable inferences when looking at the evidence. We first have to infer that she shot the gun. This is a reasonable inference because she is holding the gun, and it is still smoking. Next, we have to infer that she shot the person on the floor. This inference is based in part on the original inference that she shot the gun, but is also a reasonable inference drawn from the circumstances.Id.
In this case, the evidence established appellant was the one holding the injured child. Because there were two other adults in the house at the time, from this fact alone, it cannot be inferred that appellant killed the child. But the evidence also showed that Shawnna and Rachel were not awake when G.G. exhibited symptoms from his abuse, only appellant was, and G.G. would have exhibited symptoms immediately upon being injured.
The jury having heard the medical testimony of the force used to murder G.G., could have rejected appellant's testimony in several critical respects. First, and most obviously, the jury could have rejected appellant's explanation for the impact that caused the death—that he alone allegedly observed—as highly unlikely. Next, if the jury credited the medical evidence, that G.G.'s injuries were caused by some traumatic force causing his head to hit multiple surfaces violently, as it was entitled to, it would also have been entitled to infer that the sound of G.G. being violently injured by someone other than appellant would have immediately awoken him. Instead, appellant claimed to be awakened by G.G.'s irregular breathing 30 minutes after he claimed to have placed him in the bassinette. Again, given the medical evidence, the jury was entitled to infer that G.G.'s breathing difficulties immediately followed his violent injury and that appellant was alone in discovering it, because he, rather than someone else, inflicted the injury.
Viewing the evidence in the light most favorable to the verdict, we conclude a jury could have by reasonable inference, not speculation, concluded Shawnna and Rachel were not the perpetrators of this crime, and that appellant was the only person uniquely positioned to have fatally injured this child. Accordingly, we overrule appellant's first issue.
EXCLUSION OF EVIDENCE
In his second issue, appellant argues the trial court abused its discretion in excluding evidence of Shawnna's prior conviction for burglary of a vehicle.
A. Standard of Review
We will not reverse the trial court's decision regarding the admissibility of evidence of prior convictions unless a "clear abuse of discretion" is shown. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). If the trial court's decision was within the zone of reasonable disagreement, we will not disturb it. Id.
B. Discussion
Texas Rule of Evidence 609 provides that evidence of a witness's prior conviction shall be admitted for purposes of impeachment if the crime was a felony or a crime of moral turpitude and the court determines that the probative value of admitting the evidence of the conviction outweighs its prejudicial effect. TEX. R. EVID. 609. A prior conviction is presumptively inadmissible for impeachment purposes if more than ten years has elapsed since the date of conviction or release from confinement for it, whichever is later. Id. Therefore, evidence of Shawnna's conviction for burglary of a vehicle was admissible only if (1) it was a felony or a crime of moral turpitude, (2) it occurred within the last ten years, and (3) the probative value of the evidence outweighed its prejudicial effect.
A person commits the offense of burglary of a vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. TEX. PENAL CODE ANN. § 30.04(a) (West 2011). Burglary of a vehicle is a misdemeanor offense, not a felony. Id. § 30.04(d). Thus, in order for a conviction of burglary of a vehicle to be admissible for impeachment purposes, it must involve an act of moral turpitude. TEX. R. EVID. 609. Burglary of a vehicle requires an intent to commit a felony or theft. TEX. PENAL CODE ANN. § 30.04(a). Theft is a crime of moral turpitude but not all felonies are crimes of moral turpitude. Ex parte De Los Reyes, 392 S.W.3d 675, 676 (Tex. Crim. App. 2013); In the Matter of Lock, 54 S.W.3d 305, 311 (Tex. 2001) (holding that felony possession of a controlled substance is not a crime of moral turpitude per se).
At trial, appellant simply stating he planned on introducing evidence of Shawnna's conviction for burglary of a vehicle. Appellant made no showing that Shawnna's conviction for the burglary was accompanied by theft or a felony involving moral turpitude or that it occurred within the last ten years. Consequently, the trial court did not err in excluding evidence of the conviction. We overrule appellant's second issue.
ADMISSION OF EVIDENCE
In his third issue, appellant argues the trial court abused its discretion in admitting autopsy photographs of G.G. At trial, citing Texas Rule of Evidence 403, appellant objected to various photographs introduced by the State through the medical examiner arguing their probative value was substantially outweighed by their inflammatory nature.
A. Standard of Review
We review a trial court's ruling in admitting autopsy photos under an abuse of discretion standard. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). Generally, autopsy photographs are admissible, unless they depict mutilation of the victim caused by the autopsy process. Burdine v. State, 719 S.W.2d 309, 316 (Tex. Crim. App. 1986). However, a court does not abuse its discretion by admitting autopsy photographs that help illustrate and clarify a medical examiner's testimony. Isaac v. State, No. 05-01-01769-CR, 2003 WL 253590, at *5 (Tex. App.—Dallas Feb. 6, 2003, pet. ref'd) (mem. op.) (citing Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim. App. 1983).
B. Discussion
A medical examiner is entitled to use autopsy photographs to explain her findings related to the manner of death, the cause of death, the time of death, and the number of wounds sustained by a victim. Long v. State, 823 S.W.2d 259, 274 (Tex. Crim. App. 1991). Autopsy photographs that aid a jury in understanding a victim's injuries are relevant and thus probative. See Drew v. State, 76 S.W.3d 436, 452 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). If a jury could not fully see the extent of a victim's injuries by photographs of external wounds, autopsy photographs depicting internal injuries are particularly relevant, even if the photographs show skin excised by the autopsy process. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002).
The State offered the objected-to photographs during the testimony of the medical examiner. The photographs depict the following: (1) bruises on G.G.'s torso, back, and the back of G.G.'s head, (2) areas of bleeding in the soft tissue under G.G.'s scalp, (3) bruising within the underlying skin tissue of G.G.'s head, (4) the top of G.G.'s skull, showing separation of his natural sutures due to the swelling of his brain, (5) fractures on the back, left, and right side of G.G.'s skull, and (6) fractures on G.G.'s parietal bone. The trial court allowed defense counsel to conduct a voir dire examination of the medical examiner prior to ruling on appellant's objections. The medical examiner testified that the photographs depict the injuries G.G. sustained and would help her to explain his injuries to the jury. After reviewing the photographs and listening to the medical examiner's testimony, the trial court determined the photographs were more probative than prejudicial, and were thus admissible.
Appellant argues the issue at trial was not how G.G. died, but who killed him. Therefore, he claims the photographs depicting G.G.'s injuries were not probative of any issue in the case and therefore were inadmissible. To the contrary, we conclude the photographs admitted in this case were highly probative of the question of who killed G.G. As stated earlier, appellant claimed G.G. simply fell from the bed and hit his head on the bed rail. The photographs were used to show that internal injuries suffered by G.G. reflected a very different situation, one in which G.G. was beaten repeatedly, with extreme force that likely would have produced a considerable sound at least as loud as G.G.'s gurgling. See Salazar v. State, 38 S.W.3d 141, 152 (Tex. Crim. App. 2001). Moreover, because the indictment charged appellant with intentionally and knowingly causing the death of G.G. by striking him with and against an unknown object, the State had to prove intent to kill and the means of the murder. Each of the complained-of photographs served a purpose that related to the case, either by proving intent to kill, the manner and means of the murder (striking G.G. with or against an object), or by disproving appellant's account of events. In addition, the jury could not fully see the extent of G.G.'s injuries by external photographs of his head. Therefore, we conclude autopsy photographs depicting his internal injuries were particularly relevant. Cf. Hayes, 85 S.W.3d at 816 (concluding that if the autopsy photographs, which showed the victim's skull with her skin pulled back, were not admitted, the jury would not fully see the extent of the victim's fatal injuries caused by a bullet passing through the victim's face, fracturing her facial bone, and then bruising her brain).
Having determined the photographs were relevant, we now consider whether their probative value was 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. Texas Rule of Evidence 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). A court may consider the following factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice: (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are offered in color or in black and white, (6) whether they are close-up, and (7) whether the body depicted is clothed or naked. Sosa v. State, 230 S.W.3d 192, 195 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
In this case, appellant complains of ten photographs. Three of them depict bruises on G.G.'s torso, back and the back of his head. The photograph of the torso shows an incision on G.G.'s abdomen. The medical examiner explained that the incision was caused by the harvesting of G.G.'s organs for transplant and was not inflicted by the perpetrator of this crime. These photographs were taken before the autopsy was performed and show no mutilation due to the autopsy procedure. As to the remaining seven photographs, they depict areas of bleeding in the soft tissue under G.G.'s scalp, bruising within the underlying skin tissue of G.G.'s head, the top of G.G.'s skull, showing separation of his natural sutures due to the swelling of his brain, fractures on the left and right sides and the back of G.G.'s skull, and fractures on G.G.'s parietal bone. The medical examiner explained she refracted the skin and scalp because many times they find bleeding and bruising that cannot be detected otherwise because of the thickness of the skin. The photographs, while in color, were not any larger than necessary for the medical examiner to give opinions about the many injuries. The color photographs also aided in establishing the injuries were recently inflicted. Close-ups in some of the photos demonstrated the severity of the damage done, aiding the medical examiner's testimony. Amy v. State, No. 05-01-00160-CR, 2003 WL 124825, at *3 (Tex. App.—Dallas Jan. 6, 2003, no pet.) (mem. op.). The photographs depict the nature, location, and extent of the injuries and thus they are probative enough to outweigh any improper effect. See Frank v. State, 183 S.W.3d 63, 77 (Tex. App.—Fort Worth 2005, pet. ref'd). The pulling back of the skin and scalp did not render the evidence significantly more gruesome than the facts of the crime itself because the photographs were the only way to reveal to the jury the full extent of G.G.'s injuries. See, e.g., Hayes, 85 S.W.3d at 816. In addition, the medical examiner made it clear that the refracted skin and scalp were a result of the autopsy, so there was no danger those aspects of the photographs would be attributed to any act by appellant.
We conclude that the complained-of photographs helped the jury to understand the extent and manner of G.G.'s injuries, were demonstrative of appellant's intent, and did not constitute a large part of the medical examiner's testimony and the State's case. The photographs were thus highly probative and not unfairly prejudicial. Therefore, the trial court did not abuse its discretion in admitting them.
Accordingly, we overrule appellant's third issue.
CROSS APPEAL
By cross-appeal, the State argues the trial court erred in sentencing appellant to life when the only possible legal punishment was life without parole.
In this case, the State did not seek the death penalty. The punishment for a capital felony in a case in which the State does not seek the death penalty is life without parole, if the individual committed the offense when 18 years of age or older. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2015). The record indisputably reflects that appellant committed the offense when he was older than 18 years of age. This Court has jurisdiction to rectify an error in sentencing. Mizell v. State, 119 S.W.3d 804, 805-806 (Tex. Crim. App. 2003). And Texas Rule of Appellate Procedure 43.2 allows this Court to modify the trial court's judgment and affirm it as modified. TEX. R. APP. P. 43.2.
We sustain the State's cross-issue and modify the judgment to reflect a sentence of life imprisonment without parole.
CONCLUSION
We modify the judgment of the trial court to reflect a sentence of life imprisonment without parole. TEX. R. APP. P. 43.3. In all other respects, we affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
150197F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1311828-M.
Opinion delivered by Justice Schenck. Justices Fillmore, and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect a sentence of life imprisonment without parole.
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 27th day of May, 2016.