Opinion
No. 10-18-00126-CR
05-23-2018
MARCUS WATSON, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court No. 12-06037-CRF-85
MEMORANDUM OPINION
In two issues, appellant, Marcus Fianchat Watson, challenges his murder conviction. See TEX. PENAL CODE ANN. § 19.02 (West 2011). Specifically, Watson contends that the trial court erred by: (1) excluding evidence of criminal acts by accomplice witness Moses Long that allegedly supported Watson's defensive theory; and (2) admitting two gruesome photographs that were not probative on any disputed issue and that were unfairly prejudicial. Because we overrule both of Watson's issues on appeal, we affirm.
I. BACKGROUND
This case involves a drug deal gone wrong. Because the parties are familiar with the facts, and because Watson does not raise a sufficiency issue, we only recite those facts necessary for the disposition of this case. See TEX. R. APP. P. 47.1, 47.4. Nevertheless, a jury found Watson guilty of shooting the deceased, Trevor Williams, in the head during the botched drug deal. Thereafter, the jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified Watson's right of appeal, and Watson filed his notice of appeal in this Court.
Subsequently, on April 2, 2015, this case was transferred to the Eighth Court of Appeals in El Paso, Texas, pursuant to a transfer order issued by the Texas Supreme Court. However, a second transfer order issued by the Texas Supreme Court on April 16, 2018, resulted in this case being transferred back to this Court. With that said, we now address Watson's two issues brought forth on appeal.
II. EXCLUSION OF EVIDENCE OF MOSES LONG'S CRIMINAL ACTS
In his first issue, Watson contends that the trial court abused its discretion by excluding evidence of criminal acts committed by accomplice witness Moses Long that purportedly supported Watson's defensive theory. We disagree.
A. Applicable Law
We review the trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its decision to admit or exclude the evidence lies outside the zone of reasonable disagreement. See id.; see also De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). If the trial court's ruling on admissibility is correct under any applicable legal theory, we will hold that the trial court did not abuse its discretion even if it gave a wrong or incomplete reason for the ruling. See De La Paz, 279 S.W.3d at 344.
B. Discussion
At trial, Watson advanced a defensive theory that he was not the one who shot Williams in the head; rather, Watson argued that Long or another accomplice witness did the shooting and then agreed to frame Watson. In support of his defensive theory, Watson sought to introduce evidence that, on September 15, 2013, Long, working with another man, robbed Kyle Dylan Hooter during a drug transaction. Watson asserted that the facts of the September 15, 2013 robbery were similar to the facts in the current case, especially considering, during the course of the drug sale, Long or his accomplice approached Hooter with a gun, threatened Hooter, and took his money. And as such, Watson asserted that evidence of the Hooter robbery was substantially similar to the facts in the instant case and should have been admitted under the "plan" exception articulated in Texas Rule of Evidence 404(b) to show intent and identity. See TEX. R. EVID. 404(b). The State objected to this evidence, arguing that the act occurred eleven months after the charged offense and that this evidence was inadmissible character-conformity evidence.
In Castaldo v. State, the Court of Criminal Appeals noted that Rule 404(b) "is not restricted to the acts by the defendant. . . . In short, Rule 404(b) does not mandate that only the defendant's acts be admitted under the uncharged misconduct doctrine." 78 S.W.3d 345, 349 (Tex. Crim. App. 2002) (per curiam). However, as noted in a concurring opinion, Judge Meyers recognized that "battles over evidence of the acts of a third party will be lost or won on the field of Rule 402, and not Rule 404. In other words, the acts of a third party will generally not be relevant to a fact of consequence in the trial of the accused, and they will be inadmissible on those grounds." Id. at 352 (Meyers, J., concurring).
Regarding evidence such as the foregoing, the Court of Criminal Appeals has stated:
Unfortunately, courts frequently admit evidence of extraneous acts under this exception [the "plan" exception] not to show acts the defendant took in preparation for the ultimate charged offense, but to show repeated acts that are similar to the charged offense. Repetition of the same act or same crime does not equal a 'plan.' It equals the repeated commission of the same criminal offense offered obliquely to show bad character and conduct in conformity with that bad character—'once a thief, always a thief.' This bad-character-conformity purpose, whether express or not, is precisely what is barred by Rule 404(b). Thus, if the proponent is unable to articulate exactly how an extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not admissible to prove part of a 'plan.'Daggett v. State, 187 S.W.3d 444, 451-52 (Tex. Crim. App. 2005) (internal footnotes omitted).
Here, Watson offered no evidence showing that the September 15, 2013 Hooter robbery served as "preparation for the ultimate charged offense," especially considering the Hooter robbery occurred eleven months after the "ultimate charged offense." Id. And as shown by Watson's emphasis on the similarity of the facts between the Hooter robbery and the charged offense, the Hooter robbery was merely the repetition of a similar act that does not constitute a "plan" according to the Daggett Court. See id. Thus, this evidence was offered "obliquely to show bad character and conduct in conformity with that bad character—'once a thief, always a thief.'" Id. Or in other words, Watson sought to introduce evidence of this extraneous act to show that it was Long who committed the charged offense because "once a [robber], always a [robber]." Id. Accordingly, we cannot say that the trial court abused its discretion by excluding evidence of the September 15, 2013 Hooter robbery. See Martinez, 327 S.W.3d at 736; see also De La Paz, 279 S.W.3d at 343-44.
However, even if the trial court erred by excluding the complained-of evidence, we find that the purported error was harmless. First, we note that, while potentially relevant to his defensive theory, the exclusion of this testimony did not rise to the level of constitutional error by preventing him from presenting the substance of his defensive theory to the jury. See Thomas v. State, 137 S.W.3d 792, 796 (Tex. App.—Waco 2004, no pet.) (citing Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002); Davis v. State, 104 S.W.3d 177, 182-83 (Tex. App.—Waco 2003, no pet.)). As such, we apply the harmless-error standard stated in Texas Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); see also Potier, 68 S.W.3d at 666 (noting that exclusions of evidence are unconstitutional only if they significantly undermine fundamental elements of the accused's defense).
Under Rule 44.2(b), an appellate court must disregard an error when no substantial rights of the defendant are affected because the error did not influence the jury, or had but a slight effect. If there are "grave doubts" about whether the error did not affect the outcome, then the error is treated as if it did effect the outcome.Thomas, 137 S.W.3d at 796 (internal citations omitted).
Applying the aforementioned standard, we cannot conclude that the trial court's error, if any, in excluding the complained-of evidence was harmful because the record reflects that Watson was allowed to question whether Long was under indictment at the time of trial for the September 15, 2013 aggravated robbery, and because Watson also argued the significance of that charge in his closing argument. Accordingly, we cannot say that Watson was prevented from presenting the substance of his defensive theory to the jury. See Potier, 68 S.W.3d at 666 ("'That [the defendant] was unable to . . . present his case to the extent and in the form he desired is not prejudicial where, as here, he was not prevented from presenting the substance of his defense to the jury.'" (quoting United States v. Willie, 941 F.2d 1384, 1398-99 (10th Cir. 1991), cert. denied, 502 U.S. 1106, 112 S. Ct. 1200, 117 L. Ed. 2d 40 (1992))); see also Thomas, 137 S.W.3d at 796 (concluding that the trial court erred in failing to admit testimony from the alleged victim when the alleged victim stated that she had sent a picture of herself in a swimsuit to a boy she met over the internet, but denied that the defendant disciplined her and that said testimony was admissible to establish the alleged victim's motive to bring charges against the defendant; however, said error was harmless). Therefore, based on the foregoing, we overrule Watson's first issue.
III. THE ADMISSION OF AUTOPSY PHOTOGRAPHS
In his second issue, Watson argues that the trial court abused its discretion by admitting gruesome photographs that were not probative on any disputed issue and that were unfairly prejudicial. We disagree.
A. Applicable Law
We review the trial court's ruling on the admissibility of a photograph under an abuse-of-discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009).
Any evidence that is both material and probative is relevant. See TEX. R. EVID. 401; see also Oliver v. State, No. 10-12-00389-CR, 2014 Tex. App. LEXIS 2836, at *13 (Tex. App.—Waco Mar. 13, 2014, no pet.) (mem. op., not designated for publication). All relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules. TEX. R. EVID. 402. Evidence is relevant if it has any tendency to make more probable or less probable the existence of a consequential fact. Id. at R. 401; see Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). "If the trial court determines the evidence is irrelevant, the evidence is absolutely inadmissible and the trial court has no discretion to admit it." Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Pritchett v. State, 874 S.W.2d 168, 173-74 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd)). "Questions of relevance should be left largely to the trial court and will not be reversed absent an abuse of discretion." Id. (citing Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)).
Evidence, though 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 carries a presumption that relevant evidence will be more probative than prejudicial and favors the admission of relevant evidence. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). When the evidence is a photograph, if the photograph has elements that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the helpful aspects are substantially outweighed by the emotional and prejudicial aspects. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004).
Our analysis under Rule 403 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. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In determining whether the probative value of a photograph is substantially outweighed by the danger of unfair prejudice, relevant factors include "the number of exhibits 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." Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Id. (citing Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997)).
B. Discussion
The complained-of photographs, State's Exhibit 22 and 23, were admitted through the testimony of Dr. Kendall Crowns of the Travis County Medical Examiner's Office. Dr. Crowns testified that he performed the autopsy on Williams and concluded that Williams died from a single gunshot wound to the head. Additionally, Dr. Crowns noted that he recovered the bullet from Williams's brain and then described the path of the bullet and the damage that was caused. With regard to State's Exhibit 22, Dr. Crowns stated the following:
This is the top of the head again. This is the front, this is the back, this is the skin of the scalp that has been reflected back. It's showing the subgaleal/sub-scalping hemorrhage immediately underneath the scalp associated with the wound. And then here is the gunshot wound of entrance right here through the skull.He later described State's Exhibit 23 as depicting a piece of bullet that sheared off as it went into Williams's head. Watson objected to State's Exhibits 22 and 23 under Texas Rules of Evidence 401 and 403. See TEX. R. EVID. 401, 403. The trial court overruled Watson's objections.
The complained-of autopsy photographs are probative of the injuries inflicted on Williams, as well as the corresponding autopsy conducted by Dr. Crowns. See TEX. R. EVID. 401; Moses, 105 S.W.3d at 626; see also Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002) (concluding that autopsy photographs showing entry and exit wounds were relevant to explain the way in which the victim was killed and noting that "[c]hanges rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant"). And while it is true that autopsy photographs should be excluded if they show mutilation to the victim caused by the autopsy, see Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998), the Court of Criminal Appeals has noted that if the disturbing nature of the photographs is due primarily to the injuries caused by the defendant, the changes to the victim's body are of minor significance. See Hayes, 85 S.W.3d at 816 (citing Santellan, 939 S.W.2d at 173) (holding that a photograph depicting the victim's skin pulled back to show extent of the gunshot wound to her face was admissible; pulling back the victim's skin did not make evidence more gruesome); Salazar v. State, 38 S.W.3d 141, 151-52 (Tex. Crim. App. 2001) (holding that autopsy photographs showing internal organs removed from the victim's body were probative because they showed that internal injuries to the victim did not support appellant's version of incident); see also Paz v. State, No. 01-15-00979-CR, 2018 Tex. App. LEXIS 2667, at **35-36 (Tex. App.—Houston [1st Dist.] Apr. 17, 2018, no pet. h.) (op. on reh'g). Because the disturbing nature of the complained-of photographs in this case is due primarily to the injuries caused by Watson, the changes to Williams's body are or minor significance. See Hayes, 85 S.W.3d at 816; Salazar, 38 S.W.3d at 151-52; Santellan, 939 S.W.2d at 173; see also Paz, 2018 Tex. App. LEXIS 2667, at **35-36.
In Paz v. State, a murder case, the First Court of Appeals, concluded that the trial court did not abuse its discretion in determining the probative value of autopsy photographs outweighed the prejudicial effect where head injuries played a primary role in the infant's death, where the photographs had a particular significance in the jury's determination of guilt, and where the photographs showed the following:
To depict the nature and severity of the injuries, the medical examiner who performed the autopsy removed the skin from the top and back of the infant's head, then removed the top of the skull, then removed the brain, and then removed the eyes and optic nerves. The photographs to which Appellant objected depict the skull with fractures and blood clots; the skull base with blood around it; the brain and its surrounding membranes, also with blood around them; and the eyes and optic nerves, which also indicated hemorrhaging. These are gruesome pictures and were presented to the jury in color on electronic displays.No. 01-15-00979-CR, 2018 Tex. App. LEXIS 2667, at **35-36 (Tex. App.—Houston [1st Dist.] Apr. 17, 2018, no pet. h.).
Additionally, we are not convinced that the complained-of autopsy photographs impressed the jury in some irrational yet indelible way given that the photographs merely depicted the extent of the injuries caused by Watson. See Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001) (rejecting an unfair-prejudice claim regarding the admission of a videotape of the recovery of the victim's body because "[a]lthough appellant also claims unfair prejudice, we find that the videotape simply reflects the gruesomeness of the crime—and that is not a sufficient reason for excluding the evidence"). Furthermore, the record reflects that the time needed to develop the evidence through Dr. Crowns was minimal, especially given that the two complained-of autopsy photographs constituted two of the 164 exhibits proffered by the State and two paragraphs of Dr. Crowns's fifteen pages of testimony on direct examination. See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 324; Shuffield, 189 S.W.3d at 787. And finally, the State argued that the photographs were necessary to explain Dr. Crowns's autopsy and the injuries sustained by Williams, especially in light of Watson's contention that no one heard a gunshot, his defensive theory that he was not involved in the act, and the testimony of other witnesses who saw Watson carrying a gun on his person. See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 324; Shuffield, 189 S.W.3d at 787. Therefore, because we are not convinced that the jury rendered its guilty verdict on an improper basis based on the admission of the complained-of photographs, we cannot say that the photographs were unfairly prejudicial. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006) ("'The rule's second key phrase, 'unfair prejudice,' refers to a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." (internal citations omitted)).
Accordingly, based on the foregoing, we cannot conclude that the trial court abused its discretion by admitting the two complained-of autopsy photographs. See Young, 283 S.W.3d at 874. We overrule Watson's second issue.
IV. CONCLUSION
Having overruled both of Watson's issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
*(Chief Justice Gray concurring with a note)
Affirmed
Opinion delivered and filed May 23, 2018
Do not publish
[CRPM] *(Chief Justice Gray concurs in the judgment to the extent it affirms the trial court's judgment of conviction and sentence. A separate opinion will not issue.)