ACCEPTED 03-15-00328-cr 6619835 SEE AMEND BRF FILED THIRD COURT OF APPEALS ON 9/10/15 AUSTIN, TEXAS 8/24/2015 12:15:52 PM JEFFREY D. KYLE CLERK NO. 03-15-00328-CR
FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR AUSTIN, TEXAS THE THIRD COURT OF APPEALS DISTRICT 8/24/2015 12:15:52 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk
DANIEL LORENZO WILSON,
Appellant v. THE STATE OF TEXAS,
Appellee
APPELLANT’S BRIEF On Appeal from the 264th District Court of Bell County, Texas, Trial Court Cause No. 72,334
E. Alan Bennett State Bar #02140700 Counsel for Appellant
Sheehy, Lovelace & Mayfield, P.C. 510 N. Valley Mills Dr., Ste. 500 Waco, Texas 76710 Telephone: (254) 772-8022 Telecopier: (254) 772-9297 Email: abennett@slmpc.com Identity of Parties and Counsel
Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides
the following list of all parties to the trial court’s judgment and the names
and addresses of all trial and appellate counsel.
Daniel Lorenzo Wilson Appellant
Steven Streigler Trial Counsel for Appellant P.O. Box 1683 Belton, TX 76513
E. Alan Bennett Appellate Counsel for Appellant 510 North Valley Mills Dr., Ste. 500 Waco, Texas 76710
Michael Waldman Trial Counsel for the State Assistant District Attorney
Bob D. Odom Appellate Counsel for the State Assistant District Attorney
Bell County District Attorney’s Office P.O. Box 540 Belton, Texas 76513
Appellant’s Brief Page 2 Table of Contents
Identity of Parties and Counsel.............................................................................2
Table of Contents ....................................................................................................3
Index of Authorities ................................................................................................4
Statement of the Case .............................................................................................6
Statement Regarding Oral Argument ..................................................................6
Issues Presented ......................................................................................................6
Statement of Facts ...................................................................................................7
Summary of the Argument ..................................................................................18
Argument ...............................................................................................................19
First Issue: The trial court abused its discretion by admitting photographs from the crime scene that were unfairly prejudicial. ............19 A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion ...........................................................................................................................19 B. Unfairly Prejudicial Evidence May Be Inadmissible ............................20 C. The State Offered Unnecessary & Unfairly Prejudicial Photographs ...........................................................................................................................21 D. Under Erazo, the Photographs Should Not Have Been Admitted ....23 E. The Error Affected Wilson’s Substantial Rights ...................................29 Prayer ......................................................................................................................33
Certificate of Compliance ....................................................................................34
Certificate of Service .............................................................................................34
Appellant’s Brief Page 3 Index of Authorities
Texas Cases
Aviles v. State, No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas Apr. 28, 2008, pet. ref’d) (mem. op., not designated for publication) .... 28, 29
Brown v. State, 875 S.W.2d 38 (Tex. App.—Austin 1994, no pet.) ..................23
Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002) ............................. 30, 31
Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999)..........................28
Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961) .............................. 27, 28
Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696 (Tex. App.—Austin Aug. 20, 2008, pet. ref’d) (mem. op., not designated for publication) ..........21
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) .................. 21, 24, 26, 27
Fuelberg v. State, 447 S.W.3d 304 (Tex. App.—Austin 2014, pet. ref’d) .........20
Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ......................... 19, 20, 21
Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) .....................................30
Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1990) ........................ 23, 26
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g) ........................................................................................................................... 21, 26
Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .................................21
Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000)..................... 24, 26, 27, 29
Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) ..... 29, 30
Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006) ................................20
State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011) .....................................32
Appellant’s Brief Page 4 Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381 (Tex. App.—Austin July 28, 2006, pet. ref’d) (mem. op., not designated for publication) ............21
Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ..............................20
Texas Statutes
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1) .........................................................23
TEX. CODE CRIM. PROC. art. 44.29(b) ....................................................................32
TEX. PEN. CODE § 19.02(b)(1) ..................................................................................6
Rules
TEX. R. APP. P. 43.2(d) ...........................................................................................32
TEX. R. APP. P. 44.2.......................................................................................... 29, 30
TEX. R. EVID. 403 .....................................................................................................20
Appellant’s Brief Page 5 Statement of the Case
Daniel Lorenzo Wilson pleaded guilty to murder without the benefit
of a plea bargain. (CR 15-22), (2 RR 7). See TEX. PEN. CODE § 19.02(b)(1). The
Honorable Martha J. Trudo, presiding judge of the 264th District Court of
Bell County, assessed his punishment at life imprisonment. (CR 25-26), (3
RR 175). Wilson timely filed his notice of appeal. (CR 29).
Statement Regarding Oral Argument
Oral argument will not aid the Court’s decisional process in this
appeal.
Issues Presented
First Issue: The trial court abused its discretion by admitting photographs from the crime scene that were unfairly prejudicial.
Appellant’s Brief Page 6 Statement of Facts
The indictment alleges that on or about December 9, 2013, Wilson
“did then and there intentionally and knowingly cause the death of an
individual, namely, Karen Edwards, by shooting her with a firearm and
stabbing and cutting the said Karen Edwards with a knife.” (CR 4).
Wilson pleaded “guilty” to the murder charge.1 (2 RR 7). The trial
court rescheduled the case for a sentencing hearing. (2 RR 9).
Janet Allman works for the Bell County Communications Center
which handles 9-1-1 calls and dispatches emergency responders. (3 RR 7-8).
The call center received a 9-1-1 call on the morning of December 9, 2013 at
about 5:21. (3 RR 9) Allman identified a recording of that call which was
admitted as State’s Exhibit 1. (3 RR 10) The caller reported that she had
been held hostage and had seen her friend murdered. The shooter shot her
in the leg, stomach and head. He held a gun to the caller’s head as well.
The caller stated that he was drunk and passed out. She took the gun from
1 Wilson also pleaded “true” to allegations in a motion to adjudicate his deferred adjudication community supervision for possession of less than 1 gram of cocaine, a state jail felony. (2 RR 4-7). The trial court adjudicated his guilt and sentenced him to 2 years’ confinement in a state jail. (3 RR 174). Wilson did not appeal from this judgment.
Appellant’s Brief Page 7 him and ran away. She gave the address for his apartment. She urged the
operator to tell the officers to turn off their sirens that she heard
approaching because she feared they would awaken the shooter. She
identified the shooter as Daniel Wilson. Officers arrived as she talked to the
operator. (SX 1)
Latasha Brown is the person who called 9-1-1. She recently relocated
to Dallas County so she could “get myself together mentally.” (3 RR 12).
She moved to Killeen near the end of 2012 after being paroled on her
sentence for burglary of a habitation. (3 RR 12-13). She had a few jobs
including a part-time job at a tire shop where she worked with Wilson. (3
RR 13-14). She identified Wilson and Karen Edwards as being part of the
group of friends that she routinely spent time with at that time. (3 RR 14).
She identified Wilson as “a local drug dealer” and “a very cool person to
hang out with.” “He was a very giving individual.” They barbecued,
watched movies and went out. She spent more time with Wilson than
anyone else. (3 RR 15). Brown had a cocaine habit in 2013 and used daily.
Wilson was one of her main suppliers. (3 RR 16).
Brown met Karen Edwards through Brown’s girlfriend Cynthia
Anderson. (3 RR 12, 16-17). Edwards had been friends with Anderson’s
Appellant’s Brief Page 8 mother who passed away in 2012. Anderson referred to Edwards as Aunt
Karen or Momma Karen or some similar term of endearment. Their
families had known each other for a long time. (3 RR 16-17). Edwards lived
two doors down from Wilson in the same apartment complex. Brown
understood that “they had dated years before.” (3 RR 18). As far as Brown
could see, Edwards and Wilson saw each other on a regular basis and “got
along great.” Edwards “smoked crack cocaine” and prostituted herself or
hustled money to support herself. Wilson “always helped her” when she
needed money or anything. “Always.” He helped her with her rent several
times. (3 RR 19).
Brown went to check on Wilson about every other day in late 2013
because he had been injured when a car struck him while riding a bicycle.
(3 RR 17). In December 2013, Brown and Anderson had several arguments.
Brown stayed at Wilson’s house nearly the entire weekend of December 11.
“We watched movies, drank beers, smoked cigarettes, ordered pizza. I was
just hanging out. He was my escape from arguing and fighting and stuff
like that.” Wilson lived less than a half mile from Brown and Anderson. (3
RR 20). That Friday night, Brown testified that she was using drugs
(cocaine) but Wilson was not. She got the cocaine from him though. (3 RR
Appellant’s Brief Page 9 21). She walked home around midnight and awoke around noon on
Saturday. Issues still remained with Anderson so she went back to Wilson’s
house that afternoon and they did the same things they had done the night
before. (3 RR 22). She went home Saturday night and returned Sunday
afternoon around 2:00 or 3:00. They played video games; she went to the
store (with Wilson’s money) for beer and cigarettes; and Wilson ordered
pizza. (3 RR 23).
Karen Edwards came over to Wilson’s house around 11:30 that
Sunday night.2 Brown was about to leave to go home. Wilson was in the
bathroom. Edwards came inside and sat on the couch. (3 RR 24). Wilson
came into the living room, and Brown headed to the bathroom. Wilson sat
down next to Edwards, and they started talking. (3 RR 25). As Brown was
closing the bathroom door, she heard a gunshot. (3 RR 25-26). She knew
that Wilson had a gun because she had seen him cleaning it before. He kept
it in a drop-down compartment in his sectional sofa. (3 RR 26). Brown
never heard Wilson raise his voice. When Edwards had asked him for a
cigarette, he told her that he did not have any. Then she asked for money to
2 Wilson kept the key to Edwards’s apartment so she would not lose it. She typically came by at night to let him know she was home and get her key. (3 RR 24).
Appellant’s Brief Page 10 buy a pack. She thought Wilson was joking around with Edwards. Then,
she heard the shot, and Karen started screaming. “And the person that I
saw was not Mr. Wilson. It couldn’t have been.” “I never seen him like
that.” (3 RR 27). She explained that his eyes turned red and he had “a blank
stare almost like it wasn’t him.” (3 RR 29). “[H]e was infuriated.” (3 RR 30).
Brown walked back to the living room and saw Wilson sitting on the
sofa holding his gun. Edwards was holding her leg where it appeared to
Brown that she had been shot. (3 RR 28). Edwards asked Wilson to just let
her go, and she promised not to tell anyone what he had done. Brown
joined in and asked him to let her take Edwards home. (3 RR 30). Wilson
told them, “I know you won’t say anything because you’re not leaving.”
Then he started “rambling and mumbling under his breath.” (3 RR 31). He
went and got a towel or rag and they tried to tie it around Edwards’s leg to
stop the bleeding. (3 RR 31-32).
And she just really kept screaming, just screaming like yelling, “Daniel, you shot me, you shot me. Daniel, you shot me. Oh my god, I can't believe you shot me.” And he's, “you shut up,” you know, be whatever, you know, be quiet, “I can't think. Just shut up,” you know, telling her to shut up. She continues screaming and once she kind of calms down a little bit, and he's standing there just like, you know, “I love you,” right? You know, he got calm. And I didn't understand that.
Appellant’s Brief Page 11 (3 RR 32).
After Wilson “got calm,” he shot Edwards in the stomach. This was
about thirty minutes after he shot her in the leg. (3 RR 32). Wilson was
standing over Edwards as she sat on the sofa when he shot her the second
time. He also unleashed a string of obscenities and told Edwards, “[Y]ou’re
going to learn to stop playing with me.” (3 RR 33). At that time, Edwards
“begged for her life, she wanted to call her kids, she wanted to talk to her
momma one last time.” Brown “ran and got in the shower [and] nervously
smoked a cigarette.” Then she heard a thump and Edwards screaming
something to the effect “it’s leaving out of me, my life is leaving.” (3 RR
34). Brown was scared and did not know what to do. Then she saw
Edwards sliding backward across the floor to the bathroom door. (3 RR 35).
Brown tried to get her attention so they could jump out of a window and
escape. (3 RR 35-36).
And she's like, no, he's going to kill me if I try that. And I knew she couldn't walk, she had been shot in her leg. So I'm just like slide in here and we'll lock the door and I'll put you out the window. We'll go out the window and we'll make it out here and she's like no. She's crying. And it's a bit chaotic.
Wilson was still standing in the living room holding the gun. (3 RR
36). “He started waving it,” and Edwards screamed every time he raised
Appellant’s Brief Page 12 the gun. Brown thought he was taunting her. Wilson was saying, “I should
kill you right now.” Edwards begged him to let her call her children and
say goodbye before he killed her. Brown stepped out of the shower and
tried to pick Edwards up, but she was too heavy. (3 RR 37-38). “Wilson got
a little upset.” He picked Edwards up and tossed her aside like a sack of
potatoes. (3 RR 38). “He told her to pray to her maker, and he shot her in
the head, and she was still breathing. So he took a flashlight and smashed
her face.” More than an hour passed between the time when he shot her in
the stomach and when he shot her in the head. (3 RR 39). Apparently,
Wilson struck her repeatedly with the flashlight because she was still
breathing. (3 RR 39-40). Brown saw “chunks of brain matter, skin flying
everywhere.” (3 RR 41-42). Then, because it appeared she was still
breathing, Wilson threw her down and stepped on her neck. “[H]e grabbed
a sword off of the table and just started chopping downwards.” (3 RR 42).
Wilson opened the door and told Brown that she would help him
dispose of the body or she would be next. He pointed his gun at her and
pulled the trigger, but there were no bullets left in it. (3 RR 43). They
moved the body to the front porch. (3 RR 44-45). They tried to carry it
across the street but Brown kept dropping it because it was so heavy. Then
Appellant’s Brief Page 13 they grabbed Edwards’s legs and dragged her body behind a vacant house.
(3 RR 45-46)
Wilson ordered Brown back in his house. He told her to help him
clean up the mess. He took off his clothes and told her to put them in a
plastic bag. Brown asked to borrow a phone so she could get a ride to a
store for some bleach to clean up. (3 RR 46). After that, they drank beers
and smoked cigarettes. He gave her $5.00 for bleach and let her call a
friend. She grabbed his gun and left. She testified that she “was high out of
my mind that night.” (3 RR 47). She met her friend and went to another
friend’s house. They smoked cigarettes, drank alcoholic beverages, smoked
marijuana and used cocaine. (3 RR 48). Then, Brown changed clothes and
put the clothes she had been wearing in a plastic bag because they still had
“brain matter and blood” on them. (3 RR 48-49). She drank some more
before a friend convinced her to call the police, which she did. (3 RR 49).
Over objection, the State offered eighteen photographs in evidence
from the crime scene. (3 RR 50-62). Brown concluded that this was totally
out of character for Wilson and she had never him act anything like that
before. (3 RR 63-64). She still has no idea why he got so upset that night. (3
RR 68). He was “inebriated . . . but not drunk.” (3 RR 71).
Appellant’s Brief Page 14 Doctor Emily Ogden is a medical examiner with the Southwestern
Institute of Forensic Sciences in Dallas. (3 RR 82), (SX 2). She performed the
Edwards autopsy. (3 RR 84). The autopsy revealed a series of injuries
consistent with those described by Brown. (3 RR 85-92), (SX 2). Toxicology
results indicated the presence of ethanol, cocaine and marijuana in her
system. (3 RR 92-93), (SX 2).
Killeen Police Detective Rodney Wilmore responded to Wilson’s
apartment as the crisis negotiator with the tactical response unit. (3 RR 99).
Wilson ultimately surrendered to the authorities without incident. (3 RR
101) Wilmore served as the lead investigator for the case. He described the
crime scene and additional photographs and diagrams were admitted
through him without objection. He agreed that Wilson cooperated with the
responding officers. (3 RR 116).
Psychologist Dr. Stephen Thorpe testified for the defense. He
performed a clinical interview of Wilson and conducted a battery of
psychological tests. (3 RR 121-22). He opined that Wilson has an IQ of 76
which places him in the “borderline range of intelligence.” On the
achievement test, Wilson demonstrated a fifth or sixth grade level of
reading and math which placed him somewhere in the range of an 11- to
Appellant’s Brief Page 15 13-year-old. (3 RR 122). Dr. Thorpe determined that Wilson suffered from
“some type of psychosis schizophrenia” characterized by “very bizarre
hallucinations, delusional beliefs, paranoid ideation.” His history also
indicated that he had experienced depression, anxiety and substance abuse
issues. (3 RR 125). Dr. Thorpe was struck by the fact that Wilson had not
been previously diagnosed or treated for his schizophrenia until he was
arrested in this case. (3 RR 126). The treatment regimen has resulted in
significant improvement for Wilson. (3 RR 126-27).
On cross-examination, Dr. Thorpe agreed that prior evaluations and
reports had not detected any psychological or mental health issues for
Wilson. (3 RR 139-40). He testified that long-term cocaine use “can have a
significant impact organically on the brain.” Prolonged alcohol abuse can
likewise have an adverse effect. (3 RR 140). Those effects could present
themselves in a manner very similar to schizophrenia. (3 RR 140-41).
In closing arguments, the defense asked the trial court to take
Wilson’s diagnosis and substance-abuse problems into account and assess
a lesser punishment. (3 RR 165-69). The State asked for a life sentence. (3
RR 173-74).
Appellant’s Brief Page 16 The trial court assessed Wilson’s punishment at life imprisonment.
(CR 25-26), (3 RR 175).
Appellant’s Brief Page 17 Summary of the Argument
Latasha Brown testified in graphic detail regarding the manner in
which Wilson carried out this offense. Nevertheless, the State also offered
seven graphic photographs through Brown that depicted Edwards’s
injuries or the implements Wilson used to inflict them. A few of these
focused on the bloodied results of Wilson’s conduct including “blood and
skin and brain matter.” Because Wilson pleaded guilty and because Brown
described the events leading to Edwards’s death in graphic detail, the
admission of these photographs was unnecessary, and the probative value
of these photographs was substantially outweighed by the danger of unfair
prejudice. Thus, the court abused its discretion by admitting these
photographs.
Appellant’s Brief Page 18 Argument
First Issue: The trial court abused its discretion by admitting photographs from the crime scene that were unfairly prejudicial.
Latasha Brown testified in graphic detail regarding the manner in
which Wilson carried out this offense. Nevertheless, the State also offered
seven graphic photographs through Brown that depicted Edwards’s
injuries or the implements Wilson used to inflict them. A few of these
focused on the bloodied results of Wilson’s conduct including “blood and
skin and brain matter.” Because Wilson pleaded guilty and because Brown
described the events leading to Edwards’s death in graphic detail, the
admission of these photographs was unnecessary, and the probative value
of these photographs was substantially outweighed by the danger of unfair
prejudice. Thus, the court abused its discretion by admitting these
A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion
Rulings on the admissibility of evidence are reviewed under an
abuse-of-discretion standard. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.
Appellant’s Brief Page 19 App. 2007); Fuelberg v. State, 447 S.W.3d 304, 315 (Tex. App.—Austin 2014,
pet. ref’d).
A photograph is generally relevant and admissible if verbal
testimony regarding what is depicted in the photograph is also admissible.
See Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).
B. Unfairly Prejudicial Evidence May Be Inadmissible
Under Rule of Evidence 403 however, relevant evidence is
inadmissible if the probative value of the evidence “is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” TEX. R. EVID. 403. Rule 403
favors the admissibility of relevant evidence, and it is presumed that
relevant evidence is more probative than prejudicial. Shuffield v. State, 189
S.W.3d 782, 787 (Tex. Crim. App. 2006).
[A] proper Rule 403 analysis by either the trial court or a reviewing court 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; (4) the proponent’s need for the evidence. In the context of the admission of photographs, we also consider the factors set out in Narvaiz. Those factors include the number of photographs, the size,
Appellant’s Brief Page 20 whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.
Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Narvaiz v.
State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Montgomery v. State, 810
S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g)) (footnotes
omitted); see Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696, at *5
(Tex. App.—Austin Aug. 20, 2008, pet. ref’d) (mem. op., not designated for
publication); Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381, at *6
(Tex. App.—Austin July 28, 2006, pet. ref’d) (mem. op., not designated for
publication). “The availability of other means of proof and the
circumstances unique to each individual case must also be considered.”
Gallo, 239 S.W.3d at 762.
C. The State Offered Unnecessary & Unfairly Prejudicial Photographs
Wilson objected to eighteen photographs that were admitted through
Brown as sponsoring witness. This issue focuses on seven of these
Wilson objected to the admission of the following photographs:
1. State’s Exhibit 3 aerial view of neighborhood
Appellant’s Brief Page 21 2. State’s Exhibit 7 Edwards’s body in backyard
3. State’s Exhibit 8 closer view of body
4. State’s Exhibit 9 close-up of Edwards’s face and chest
5. State’s Exhibit 10 house and yard where body left and pathway from Wilson’s apartment
6. State’s Exhibit 11 Wilson’s apartment building
7. State’s Exhibit 13 bloodstains where Brown dropped the body
8. State’s Exhibit 14 pool of blood on sidewalk
9. State’s Exhibit 16 walkway to apartment
10. State’s Exhibit 20 Wilson’s and Edwards’s apartment doors
11. State’s Exhibit 21 view from Wilson’s door to house where body left
12. State’s Exhibit 22 close up of view in State’s Exhibit 21
13. State’s Exhibit 23 sectional sofa in Wilson’s apartment
14. State’s Exhibit 24 Wilson’s living room and entryway
15. State’s Exhibit 25 sword “used to chop up” Edwards’s body (3 RR 61)
16. State’s Exhibit 31 flat-screen television with “blood and skin and brain matter” on it (3 RR 61)
17. State’s Exhibit 34 flashlight “used to smash Miss Edwards’ face in” (3 RR 61-62)
Appellant’s Brief Page 22 18. State’s Exhibit 35 close-up view of bloody flashlight
Wilson’s appellate complaint challenges the admission of State’s
Exhibits 4, 7, 8 and 15-18.
D. Under Erazo, the Photographs Should Not Have Been Admitted
Probative Value
The challenged photographs do have probative value with regard to
the extent of the injuries suffered by Edwards and the culpable mental state
with which Wilson acted. However, because Wilson pleaded guilty, neither
of these was contested.
Evidence of the “circumstances of the offense” is admissible during
the punishment phase. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). The
circumstances of the offense include the extent of a victim’s injuries “so
long as a factfinder may rationally attribute moral culpability to the
accused for that injury.” Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim.
App. 1990); Brown v. State, 875 S.W.2d 38, 40 (Tex. App.—Austin 1994, no
pet.).
Appellant’s Brief Page 23 Ability to Impress Factfinder in Irrational Manner
The nature of the photographs themselves is relevant to this issue. See
Erazo, 144 S.W.3d at 494-95; Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim.
App. 2000). 3 The challenged photographs are color photographs whose
actual size is unclear from the record on file. Actually, however, they were
much larger in the eyes of the trial court because they were projected on a
screen.4 (3 RR 53).
State’s Exhibit 9 is a close-up of Edwards’s face and chest depicting
dirt or some other substance on her face. This exhibit was completely
unnecessary as her identity was not at issue and other photographs were
admitted depicting the location and condition of her body.
State’s Exhibits 13 and 14 depict blood pooled on the sidewalk. These
bloody photographs were completely unnecessary as Brown testified
3 The photographs held unfairly prejudicial in Erazo and Reese were admitted during the punishment phase as were the photographs at issue in this appeal. See Erazo v. State, 144 S.W.3d 487, 488 (Tex. Crim. App. 2004); Reese v. State, 33 S.W.3d 238, 239 (Tex. Crim. App. 2000).
4 The record is silent regarding the size of the screen, but it was assuredly much larger than the exhibits themselves. The record reflects that the lights were turned off to view the documents on screen, and both the prosecutor and Brown used a laser pointer on several occasions to identify certain details in the photographs depicted on the screen. (3 RR 53-60).
Appellant’s Brief Page 24 regarding how they dragged the body from Wilson’s apartment to the
house across the street and the State offered other photographs depicting
the path they took dragging the body and the place where they left the
body.
State’s Exhibit 25 depicts the sword “used to chop up” Edwards’s
body. (3 RR 61) The admission of this photograph was unnecessary as
Brown graphically described Wilson’s actions with the sword.
State’s Exhibits 34 and 35 depict the bloodied flashlight Wilson “used
to smash Miss Edwards’ face in.” Again, these exhibits were cumulative of
Brown’s graphic testimony regarding Wilson’s actions that night.
Finally, State’s Exhibit 31 depicts Wilson’s flat-screen television
covered with “blood and skin and brain matter.” (3 RR 61) This
photograph is grossly prejudicial and, at best, marginally probative. It
belies logic or common sense to say that the probative value of this
photograph in particular is not substantially outweighed by the danger of
unfair prejudice.
And collectively, the challenged photographs appealed to the trial
judge’s emotions and encouraged her to make her punishment decision on
Appellant’s Brief Page 25 an emotional basis without regard to the logical probative force of the
evidence. See Erazo, 144 S.W.3d at 495; Reese, 33 S.W.3d at 242.
Time Needed to Develop Evidence
The State did not devote an inordinate amount of the trial to the
admission of the complained-of photographs or the testimony describing
them. Id..
The State’s Need for This Evidence
There are three questions that the reviewing court should answer when addressing this factor: “Does the proponent have other available evidence to establish the fact of consequence that the [photograph] is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute?”
Erazo, 144 S.W.3d at 495-96 (quoting Montgomery, 810 S.W.2d at 390).
The relevant facts of consequence sought to be established by the
photographs were Wilson’s culpable mental state and the extent of
Edwards’s injuries. See Miller-El, 782 S.W.2d at 896. However, Wilson
pleaded guilty, and the other unchallenged evidence unquestionably
established the extent of Edwards’s injuries. Therefore, the complained-of
photographs were offered as additional proof of undisputed issues. See
Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242.
Appellant’s Brief Page 26 Weighing the Factors
Considering (1) the graphic nature of the photographs and the
emotional impact they doubtless had on the trial judge; (2) the fact that
Wilson pleaded guilty to the offense; and (3) the State’s limited need to
establish the undisputed facts regarding the extent of Edwards’s injuries or
Wilson’s culpable mental state; the probative value of the challenged
photographs was substantially outweighed by the danger of unfair
prejudice. See Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242-43. Although
the photographs did have probative value and the State used a limited
amount of time to introduce them in evidence, “these factors are not
enough to overcome the prejudicial qualities of the photograph[s] and the
State’s limited need for the photograph[s] in the context of the
[undisputed] issues.” See Reese, 33 S.W.3d at 243.
Similar Cases
Counsel has located other decisions in which similar photographs
were ruled admissible in the face of a Rule 403 (or similar) objection. These
cases are all distinguishable.
In Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961), the trial court
admitted four color photographs that “exhibited a gory scene created by
Appellant’s Brief Page 27 blood and brain matter from the deceased’s wounds.” 5 Id. at 261. The
Court held that the photographs were not impermissibly “inflammatory
and prejudicial” because they tended to refute the defense’s theory of the
case that the victim’s death was accidental. See id. at 261-62. Craig is
distinguishable from Wilson’s case because the cause of death was
disputed.
In Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999), the
appellant complained about the admission of eight color photographs, one
of which depicted “a close up of the victim’s face with brain matter
extruded through the large wound on the side of the head.” Id. at 236-37.
Chamberlain is distinguishable because the defendant in that case contested
his guilt. Id. at 236-37.
Finally, in an unpublished memorandum opinion in Aviles v. State,
No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas Apr. 28, 2008,
pet. ref’d) (mem. op., not designated for publication), the appellant
complained of the admission of four crime-scene photographs and seven
5 This is how the Court of Criminal Appeals phrased Craig’s contention regarding what the photographs depicted. Craig v. State, 347 S.W.2d 255, 265-66 (Tex. Crim. App. 1961).
Appellant’s Brief Page 28 autopsy photographs. Id. at *7. Two of the crime-scene photographs
depicted “the street with blood, tire tracks, and a portion of brain matter.”
Id. Two of the autopsy photographs provided a “graphic” depiction of the
victim’s head injuries in which the “entire top of the head was split open”
and the brain “expelled out of the head.” Id. at *8. Aviles is likewise
distinguishable because the defendant contested his guilt.
Unlike, these cases, Wilson admitted his guilt and did not in any
manner dispute the cause of death or the extent of Edwards’s injuries.
Thus, these cases do not offer support for the admission of the complained-
of photographs.
For the foregoing reasons, the trial court abused its discretion by
admitting the challenged photographs in evidence.
E. The Error Affected Wilson’s Substantial Rights
This is non-constitutional error so harm is assessed under Rule of
Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Reese, 33 S.W.3d at
243; Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no
pet.). Rule 44.2(b) requires reversal if the error affected the defendant’s
Appellant’s Brief Page 29 substantial rights. TEX. R. APP. P. 44.2(b). Wilson’s substantial rights were
affected by the erroneous admission of these prejudicial photographs.
A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. In assessing the likelihood that the jury’s decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error.
Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005) (footnotes
omitted); accord Sandoval, 409 S.W.3d at 287-88.
[I]f the reviewing court has “a grave doubt” that the result was free from the substantial influence of the error, then it must treat the error as if it did. “Grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Thus, “in cases of grave doubt as to harmlessness the petitioner must win.”
Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002) (quoting
O’Neal v. McAninch, 513 U.S. 432, 435-37, 115 S. Ct. 992, 994-95, 130 L. Ed.
2d 947 (1995) (other citations omitted); accord Sandoval, 409 S.W.3d at 288.
Appellant’s Brief Page 30 The State advised the trial court at the beginning of the sentencing
phase that it would be relying on a number of exhibits. (3 RR 6).
The State relied primarily on photographs as its physical evidence.
The other two significant pieces of physical evidence were the 9-1-1
recording and the autopsy report. Notably, the 29 unchallenged
photographs were rather innocuous in comparison to the 7 that form the
basis of Wilson’s appellate complaint. These prejudicial photographs were
projected before the trial judge on a large screen, thus magnifying their
prejudicial effect. These photographs appealed to the trial judge’s emotions
and encouraged her to improperly make her punishment decision on an
emotional basis without regard to the logical probative force of the
evidence.
The erroneously-admitted photographs were indelibly etched in the
mind of the trial judge. After viewing these photographs, this Honorable
Court will at best find itself “in virtual equipoise as to the harmlessness of
the error.” See O’Neal, 513 U.S. at 435, 115 S. Ct. at 994; Burnett, 88 S.W.3d at
637-38. If so, the Court must find, as Wilson contends, that the error
affected his substantial rights. Id.
Appellant’s Brief Page 31 Summary
The trial court abused its discretion by admitting photographs in
violation of Rule 403. This error cause Wilson to suffer harm. Therefore, the
Court should reverse the judgment as to punishment and remand this
cause for a new punishment trial. See TEX. CODE CRIM. PROC. art. 44.29(b);
TEX. R. APP. P. 43.2(d); State v. Davis, 349 S.W.3d 535, 540 (Tex. Crim. App.
2011).
Appellant’s Brief Page 32 Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant Daniel Lorenzo
Wilson prays that the Court reverse the judgment and remand this cause to
the trial court for further proceedings and grant such other and further
relief to which he may show himself justly entitled.
Respectfully submitted,
/s/ Alan Bennett E. Alan Bennett SBOT #02140700 Attorney for Appellant
Sheehy, Lovelace & Mayfield, P.C. 510 N. Valley Mills Dr., Ste. 500 Waco, Texas 76710 Telephone: (254) 772-8022 Fax: (254) 772-9297 Email: abennett@slmpc.com
Appellant’s Brief Page 33 Certificate of Compliance
The undersigned hereby certifies, pursuant to Rule of
Appellate Procedure 9.4(i)(3), that this computer-generated brief
contains 5,942 words.
/s/ Alan Bennett E. Alan Bennett
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this
brief was electronically served to counsel for the State, Bob Odom,
bob.odom@co.bell.tx.us, on August 24, 2015.
Appellant’s Brief Page 34