Opinion
No. 05-00-00726-CR
Opinion issued December 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause No. F99-49343-VU. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION ON REMAND
Bobby Ray Rogers appeals his murder conviction. A jury convicted appellant and sentenced him to life imprisonment. On original submission, appellant argued in six points of error that the evidence was legally and factually insufficient to support his murder conviction, and the trial court erred in admitting certain testimony and photographs into evidence and refusing to charge the jury on the defense of voluntariness or accident. We reversed and remanded for a new trial, concluding the trial court reversibly erred in failing to charge the jury on the defense of "accident." The court of criminal appeals reversed, holding that appellant's request for an instruction on "accident" was not sufficient to put the trial court on notice that appellant wanted an instruction on "voluntary conduct," and the Almanza "some harm" standard was not the proper standard of review. Rogers v. State, 105 S.W.3d 630, 639-41 (Tex.Crim.App. 2003). The court of criminal appeals remanded the cause for further proceedings consistent with its opinion. Id. at 641. We affirm the trial court's judgment. Appellant testified that, on June 18, 1999, appellant's estranged wife, Debra Ann Rogers, called him and said she needed to talk to him. Debra picked appellant up, and the two drove around for a while and eventually went to Debra's house at about 3 p.m. After dinner, Debra and appellant went to Debra's bedroom to watch television. Debra was on her bed, and appellant was on a pallet on the floor when the two began arguing about appellant's first wife. Debra said "I'm going to pop you," which made appellant think she was going to shoot him. Debra reached for her gun, appellant also reached for it, appellant got the gun, Debra grabbed his arm, and the gun fired. Debra fell back, and appellant realized she had been shot. Appellant called 911 and left. Appellant saw people outside and told them Debra had been shot and to call 911. Appellant went to his uncle's house and threw the gun in some trash before going to his sister's house and getting some money. Appellant visited his brother and a nephew who both advised appellant to turn himself in to police. Ultimately, appellant turned himself in to the sheriff in Freestone County. Harold Stafford testified he was sitting on the front porch of Alberta Burleson's house across the street from Debra's house on the evening of the shooting. Burleson and her sister, Johnnie Marshall, were with Stafford. Stafford saw appellant leave Debra's house and, walking casually, go to the car in the driveway, get in, and drive away at normal speed. Appellant drove down the street almost to a stop sign but then stopped and backed up slowly before stopping in front of Burleson's house. Appellant turned the car off and got out. Appellant said "I just shot my wife" and asked Stafford or the others to call 911. Appellant said "I called them and I didn't get no answer." Appellant appeared calm and spoke in a normal voice. After making these statements, appellant walked back to his car and drove off in the direction he had been heading. Burleson testified she was sitting on her front porch on the night of the shooting and saw appellant come out of Debra's house, walk down the steps, get in Debra's car, and drive at normal speed down the street. Appellant stopped, backed up, and asked Burleson and the others if they would do him a favor. Burleson said she would, and appellant said "I had already called 911 but would you call them again because I just shot my wife." Burleson went inside to call 911, and when she came back out appellant was gone. Joseph Guileyardo, deputy chief medical examiner for Dallas county, testified he performed an autopsy on Debra. Debra had a gunshot entrance wound on her forehead, but there were hardly any powder burn marks surrounding the wound. Guileyardo explained that powder burns indicate the distance between the barrel of a gun and the skin when fired. Guileyardo testified the presence of "only a couple" powder burn marks indicated the muzzle of the gun was no closer than eighteen to twenty-one inches from the wound when the gun was fired. In addition, handwiping tests were conducted on Debra's hands to detect residue left when a gun is fired. The tests indicated either Debra did not discharge a firearm, her hands were around a firearm that does not cause much residue when fired, her hands were wiped off, or she somehow lost the residue after she died. The jury convicted appellant, and this appeal followed. In his first and second points of error, appellant argues the evidence is legally and factually insufficient to support his murder conviction. Specifically, he argues the State failed to disprove beyond a reasonable doubt appellant's theory that the shooting in this case was accidental. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The factfinder may choose to believe or disbelieve all or any part of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02 (Vernon 1994). Appellant admitted that he shot Debra; however, appellant's theory was that the shooting was accidental. Appellant testified that he thought Debra was going to shoot him, and the gun fired during a struggle. Nevertheless, the record shows appellant was calm and spoke in a normal voice as he told neighbors he shot his wife. He then left the scene and hid the gun before leaving town. The medical examiner testified there was no residue on Debra's hands to indicate her hands were near a gun when it was fired. Also, the powder burn marks surrounding Debra's wound indicated the muzzle of the gun was no closer than eighteen to twenty-one inches when fired. Based on this evidence, the jury was free to disbelieve appellant's version of events and believe that appellant shot Debra intentionally or knowingly. See Adelman, 828 S.W.2d at 421; McCray, 861 S.W.2d at 407. Viewing the evidence in the light most favorable to the judgment, we conclude the evidence was legally and factually sufficient to support appellant's murder conviction. See Jackson, 443 U.S. at 319; Turner, 805 S.W.2d at 427; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second points of error. In his third and fourth points of error, appellant argues the trial court erred in admitting evidence of an extraneous offense in which appellant cut and stabbed a woman more than fifteen years prior to the underlying offense. Specifically, appellant complains the extraneous offense was inadmissible under rules of evidence 404(b) and 403 because the offense was an "other crime, wrong, or act" used to prove appellant's bad character and action in conformity therewith and the probative value of the offense was substantially outweighed by the danger of unfair prejudice. We review under an abuse of discretion standard the trial court's ruling on whether to admit or exclude evidence of "other crimes, wrongs, or acts" and its determination of whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. See Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1990). Under rule 404(b), once an objection to such evidence is made, it is incumbent on the proponent of the evidence to satisfy the trial court that the "other crime, wrong, or act" has relevance apart from its tendency "to prove character of a person in order to show that he acted in conformity therewith." See Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Under rule 403, the relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value include: (1) how compellingly the extraneous offense serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way;" the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999) (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997)). Here, appellant's defense was based on his assertion that he accidentally shot Debra during a domestic dispute. The trial court permitted the State to introduce evidence that appellant had a 1984 aggravated assault conviction to rebut the defensive theories of self defense and accident. In particular, the trial court permitted the State to cross-examine appellant concerning the fact that he had slashed and stabbed Mary Robinson with a knife during a domestic dispute. Appellant had lived with Robinson from 1976 to 1984. The trial court granted appellant's request for a limiting instruction on this evidence and instructed the jury that the evidence of the prior aggravated assault was being admitted for the sole purpose of aiding the jury in rebutting the defensive theory of accident or self defense. The jury was further instructed not to consider the evidence for any other purpose. We conclude the trial court did not abuse its discretion in admitting the evidence of appellant's prior aggravated assault to prove absence of mistake or accident in the underlying case, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 404(b), 403. We overrule appellant's third and fourth points of error. In his fifth point of error, appellant argues the trial court erred in admitting two prejudicial photographs of Debra's dead body because they depicted her partially nude body with the genital area exposed. Appellant complains the probative value of the photographs was substantially outweighed by the danger of unfair prejudice under rule 403. Rule of Evidence 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). When the admission of photographic evidence is challenged, it is within the sound discretion of the trial court to admit or exclude it. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999); Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). However, the probative value of a photograph must not be substantially outweighed by its inflammatory nature. Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App. 1991); Shavers v. State, 881 S.W.2d 67, 77 ((Tex.App.-Dallas 1994, no pet.). Relevant factors in determining whether the probative value of a photograph is outweighed by its inflammatory nature include the following: (1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size; (5) whether they are black and white or color; (6) whether they are close-up shots; (7) whether the body is naked or clothed; (8) the availability of other means of proof; and (9) other circumstances unique to the case. See Hayes, 85 S.W.3d at 815; Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000); Chamberlain, 998 S.W.2d at 237. A photograph is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely for the purpose of inflaming the minds of the jury. Potter v. State, 74 S.W.3d 105, 112 (Tex.Crim.App. 2002). When the power of the visible evidence emanates from nothing more than what the defendant has done, the trial court has not abused its discretion merely because it admits the gruesome photographs. Sonnier, 913 S.W.2d at 519. In addition, the fact that the subject of the photograph is gory and gruesome does not make the photograph more prejudicial than probative when the crime scene was gory and gruesome. Shavers, 881 S.W.2d at 77. Generally, photographs are admissible where verbal testimony about the same matters is admissible. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996). A photograph is admissible where it serves to support testimony regarding the injuries sustained by the victim. Hayes, 85 S.W.3d at 816. Further, the use of visual evidence to accompany oral testimony is not cumulative of the testimony, but instead offers the fact finder a point of comparison against which to test a witness' credibility and the validity of his conclusions. See Chamberlain, 998 S.W.2d at 237. Here, the two complained-of photographs depict Debra's body lying on her back across a bed. There is no blood or wound visible in either photograph, but both depict Debra with her genital area and one breast exposed. However, both photographs are black and white and somewhat grainy, and both are smaller than a standard eight-and-a-half by eleven inch page. Neither photograph is a close-up shot, though in one photograph the body fills the entire frame. Having reviewed the photographs, we cannot conclude the probative value of the photographs was outweighed by their inflammatory nature. See Hayes, 85 S.W.3d at 815; Wyatt, 23 S.W.3d at 29. Particularly, in light of appellant's argument that Debra's death was an accidental shooting, the location of Debra's body in relation to the configuration of the room was relevant to the jury's determination of the facts. See Hayes, 85 S.W.3d at 815. We overrule appellant's fifth point of error. In his sixth point of error, appellant argues the trial court erred in refusing to charge the jury on the defense of voluntariness or accident. At trial, appellant requested a jury instruction on "accident." This request was not sufficient to request a jury charge instruction on "voluntary conduct" under section 6.01 of the penal code or constitute an objection to the court's charge on that basis. Rogers, 105 S.W.3d at 640. Because appellant did not timely object to the charge in this case, reversal is required only if the error is so egregious and created such harm that he has not had a fair and impartial trial — in short, "egregious harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); see Rogers, 105 S.W.3d at 640-41. The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Throughout the trial, appellant relied primarily on a self defense theory, and the jury charge contains a lengthy self defense instruction. Appellant testified he and Debra struggled for the gun, and the gun fired when Debra grabbed his arm. However, in his written statement appellant said Debra "pulled a pistol out from under the bed and I grabbed it from her. As soon as I got the gun I shot her. She fell on the bed." Further, the evidence showed the gun was eighteen to twenty-one inches away from Debra's head when it fired, and her hands had no trace of gunpowder residue. Also, the record contains the testimony of Dallas police detective Donald Whitsitt that a full ashtray and a cup still containing ice were on the bed where Debra's body lay, indicating the lack of a struggle. Under these circumstances, we cannot conclude appellant suffered egregious harm by the trial court's failure to include an instruction on voluntary conduct. Almanza, 686 S.W.2d at 171. We overrule appellant's sixth point of error. We affirm the trial court's judgment.