Domingo Trujillo v. State

• Court: Court of Appeals of Texas
• Decided: February 1, 2007
• Docket: 01-05-00455-CR
• Status: Published

Opinion

Opinion issued February 1, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00455-CR

DOMINGO TRUJILLO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 10000245

MEMORANDUM OPINION

A jury convicted appellant, Domingo Trujillo, of murder and assessed punishment at 40 years' confinement and a $10,000 fine. In four points of error, appellant contends that (1) the trial court erred in overruling his motion to suppress and admitting evidence obtained by police officers while acting outside their jurisdiction, (2) denying his challenges for cause as to two prospective jurors, and (3) admitting prejudicial and inflammatory autopsy photographs into evidence. We affirm.

BACKGROUND

1. The Initial Altercation

Two-year-old Priscilla Perez lived in an apartment with her mother, Jessica Sanchez. Also living in the apartment were Jessica's friend, Lisa McCrory, Jessica's sister, Erica, and Erica's two children. On November 5, 2003, Jimmy Trujillo and Jacob Martinez visited Erica at the apartment. The three drank beer and watched television until Jessica asked them to leave. Jimmy called appellant and asked for a ride home.

When appellant arrived at the apartment he was drunk, and he told Jimmy that he had wrecked his girlfriend's car on the way. Jimmy introduced appellant to the women and Martinez. When appellant noticed Martinez's tattoos, the two began arguing about gangs. The arguing escalated into a physical altercation, with both men shoving each other and fighting. Erica then got a kitchen knife and entered the fray on Martinez's behalf. During the fight, Erica inflicted a small cut on appellant's chest. Appellant yelled that he was going to " **** her up and that he was going to come back and mess her up."

Jessica called the police. When Officer K. Tolls of the Houston Police Department arrived, the fight was over, but Jessica pointed out appellant, who was peeking around the corner of the building. Tolls questioned appellant, who told him that Erica had cut him. Tolls reported that appellant was "belligerent, rude, cursing at officer, uncooperative, [and] intoxicated." Appellant wanted Erica arrested for cutting him. Tolls called the District Attorney's office, but was instructed by intake at the District Attorney's office that charges would not be filed. As a result, Tolls did not arrest anyone, and he told Jimmy Trujillo to take appellant and leave. Appellant was instructed not to return for his girlfriend's car until the next day because he was intoxicated. As Jimmy and appellant drove away, appellant was still yelling and cursing at the officers and taunting them.

2. The Murder

At around 3:30 a.m., Tolls returned to the police station and began writing his report of the incident. After working on the report for about 30 minutes, Tolls heard a dispatch to Jessica's apartment. There had been a shooting and Tolls was certain that it must be related to the earlier altercation. When he arrived, Tolls saw paramedics taking Priscilla away in an ambulance. She died soon thereafter.

Priscilla had been awakened by the sound of her mother and Lisa arguing with Erica over the earlier altercation and had come downstairs. When her mother told Priscilla to go back to bed, Priscilla laughed, stuck her tongue out, and ran towards the living room. As she passed the front door, several shotgun blasts tore through the front door, peppering her head and chest with shotgun pellets. Erica dragged Priscilla into the bathroom, where Lisa picked her up and hid in the bathtub.

3. The Investigation

Because Tolls was aware the Jimmy had driven appellant away after the initial incident, Tolls and other officers went to Jimmy's house. Jimmy showed them where appellant lived. When Tolls arrived at appellant's house at 4:42 a.m., he noticed appellant's girlfriend's car in the driveway, despite Tolls' having instructed appellant to leave the car at Jessica's apartment and not to return for it until the next day.

Officer Hamilton went to the front door and knocked, while Officers Toll and Hensley stationed themselves around the perimeter of the house to make sure that no one left. Appellant's sister, Guadelupe, answered the door and invited the officers in. Tolls asked Guadelupe who owned the house, and she indicated that it belonged to her father, Cuthberto. Guadelupe escorted Toll to Cuthberto's room. Toll woke Cuthberto and told him that they were looking for appellant.

Tolls asked if he could go to appellant's room. Cuthberto responded affirmatively and Guadelupe showed Tolls how to get to appellant's room. Tolls turned on the light and pulled back the covers on the bed where appellant and his girlfriend, Dora Lee Ritter, were sleeping. ⁽¹⁾ While standing in appellant's room, Tolls saw a shotgun on a shelf in the open closet.

Once downstairs, appellant got dressed and was taken outside by police, where he was handcuffed and placed in the back of a patrol car at approximately 5:30 to 6:00 a.m. Tolls called the homicide detectives, who told him to secure the scene and wait for them to arrive.

Homicide detective T. Miller and his partner, Sergeant Ladd, arrived at appellant's house at approximately 7:00 a.m. He interviewed Dora, who told him that when appellant first returned that evening, he looked like he had been in a fight. Dora told Miller that appellant had taken his shotgun and returned, with Jimmy and Dora, to Jessica's apartment complex. Once at the apartment complex, Dora got in her car and left. A short time later, appellant returned home, put his shotgun in the closet, and he and Dora went to sleep. Jimmy also gave a statement to Miller implicating appellant.

Miller then talked to appellant, who was sitting in the back of a patrol car. Miller removed appellant's handcuffs and explained appellant's statutory rights. Appellant agreed to waive his rights and speak with Miller about what happened. Miller explained that he was investigating the disturbance and following shooting at the apartment complex. Miller asked appellant if he understood that "he was being detained because of his involvement with that" and appellant replied, "Yes, I understand it's for that stuff earlier."

Miller and appellant did not discuss the facts of the situation. Instead, Miller asked appellant if he had any evidence involved in the shooting, and appellant responded negatively. Miller then asked appellant if he would agree to allow the police to search his room and his parents' house. Appellant said that he would. Miller told appellant that he would need to sign a consent form. Miller "got the consent to search out and went over it with the defendant[,] reading it to him and making sure he understood it while [Miller] filled it out." Miller and appellant were standing at the trunk of the patrol car. Appellant was not in handcuffs and Miller did not have his gun drawn. Appellant was very cooperative, and, around 7:30 to 7:45 a.m., he signed the consent to search form. Once consent was obtained, the police search appellant's room and recovered a shotgun and some ammunition from the top shelf of appellant's closet.

Miller decided to take appellant to the police station for further questioning. At the station, Miller again read appellant his statutory rights. Appellant then gave a statement in which he admitted that he had gone back to Jessica's apartment with a shotgun and fired it through the door. Miller then asked appellant if he would make a formal statement--either in written form or tape-recorded. Appellant agreed to give a tape-recorded statement. Before taking the statement, Miller for a third time gave appellant his statutory warnings, which appellant again waived. Appellant then gave a tape-recorded statement admitting that he fired a shotgun through Jessica's door.

MOTION TO SUPPRESS

In issues one and four, appellant contends that the trial court erred in denying his motion to suppress. Specifically, he contends that he was illegally detained and that the shotgun, shotgun shells, and his confession were the unlawful fruits of his illegal detention, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution and section 14.03 of the Texas Code of Criminal Procedure.

We begin by noting that appellant's motion to suppress was not based on section 14.03 of the Code of Criminal Procedure, and appellant made no objection to the admission of evidence on that basis. As such, appellant has waived his complaint to the extent that it is based on section 14.03. See Tex. R. App. P. 33.1(a)(1)(A). We also note that appellant does not argue or provide authority stating that the state constitution provides greater protection than federal law. See Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ("Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different[ly] from our preferred interpretation of the Fourth Amendment."). Therefore, we address appellant's first point of error by conducting a federal constitutional analysis.

1. Standard of Review

When a motion to suppress is presented, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate court's only role is to decide whether the trial court improperly applied the law to the facts. Williams v. State, 937 S.W.2d 23, 26 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd, untimely filed). Unless the trial court clearly abused its discretion, we will not disturb its findings. Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991); Williams, 937 S.W.2d at 26. Further, the appellate court affords nearly complete deference to the trial court's rulings on "mixed questions of law and fact," such as probable cause and reasonable suspicion, when the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Accordingly, the appellate court reviews the evidence in the light most favorable to the ruling of the trial court. Id.; Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (applying standard and reversing trial court). "In determining whether a trial court's [suppression] decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. However, this general rule is inapplicable where, as in this case, the suppression issue has been consensually re-litigated by the parties during trial on the merits" Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996) (citations omitted).

2. Detention or Arrest?

Appellant contends that he was illegally arrested at his home when he was detained by the officers. The State argues that nothing more than an investigative detention occurred. Whether a detention is an investigative detention or an arrest depends upon the facts and circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991); Hoag v. State, 728 S.W.2d 375, 378-79 (Tex. Crim. App. 1987); Hilla v. State, 832 S.W.2d 773, 778 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). The reasonable use of handcuffs or the ordering of a suspect to lie down alone does not convert an investigative detention into an arrest. Handcuffing alone will not necessarily convert a temporary detention into an arrest. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997); Burkes v. State, 830 S.W.2d 922, 924 (Tex. Crim. App. 1991); Hilla, 832 S.W.2d at 778. Whether an officer believes a suspect is detained or arrested, is not determinative of the issue. Amores, 816 S.W.2d at 412; Hoag, 728 S.W.2d at 378; Hilla, 832 S.W.2d at 778. Rather, we look to the reasonableness of the officer's actions, which is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118. "Furthermore, allowances must be made for the fact that officers must often make quick decisions under tense, uncertain and rapidly changing circumstances." Id. Police may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Id. at 117. An investigative detention implies that the obtrusive act is for the purpose of actually investigating. Burkes, 830 S.W.2d at 925. Thus, where no investigation is undertaken, the detention cannot be considered investigatory and rises to the level of an arrest. Id.

Appellant contends that, under Kaupp v. Texas, 586 U.S. 626, 123 S. Ct. 1843 (2003), he was arrested without probable cause when the officers entered his bedroom, and that the subsequent search of his bedroom, seizure of shotgun and ammunition, and statement made at the police station, were fruits of that illegal arrest. Kaupp, while similar, is distinguishable.

In Kaupp, the police had information that led them to believe that Kaupp was involved in the murder of a 14-year-old girl. 586 U.S. 627-28, 123 S. Ct. At 1844. The police decided that they wanted to " 'get [Kaupp] in and confront him with what [the brother] had said.'" Id. The police went to Kaupp's house and were permitted to enter by Kaupp's father. Id. They went to Kaupp's bedroom, woke him with a flashlight, identified themselves and said, "[W]e need to talk." Id. Kaupp said "Okay," and the officers handcuffed him and took him to the police station wearing only his boxer shorts and a t-shirt. Id. At the police station, after 10 to 15 minutes of interrogation, Kaupp gave a statement admitting that he participated in the crime. Id. The Supreme Court held that, under these circumstances, Kaupp did not consent to go with police, as the State alleged, but was, in fact, arrested when he was taken to the police department for questioning. 586 U.S. at 582, 123 S. Ct. at 1847.

In this case, the police had information that led them to believe that appellant was involved in Priscilla's murder. As in Kaupp, they went to appellant's house and were permitted entry, by his father and sister. And, again, as in Kaupp, the police went to appellant's bedroom and woke him. However, here the similarity to Kaupp ends. Appellant was permitted to get dressed. He was then handcuffed and placed in the patrol car. The patrol officers on the scene then waited for homicide detectives to arrive to conduct an investigation. This, we believe, is the crucial distinction between the present case and Kaupp. In Kaupp, the police had no intention of conducting an investigation of Kaupp's home. They intended only to take him in for questioning, which they did without allowing him the opportunity to refuse to consent to such questioning.

However, in this case, the police actually conducted an investigation at appellant's home. After homicide detectives arrived, they questioned witnesses, secured the scene, and obtained consents to search appellant's home. Only after the search was conducted and the shotgun was recovered did the police decide to take appellant and several other witnesses to the police station for further questioning.

This case is similar to Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). In Goldberg, the police had information that a certain vehicle had been seen driving away from a murder scene and quickly determined that the vehicle was registered to a person living at 2202 Dunstan. Id. at 356. Police drove to that location, found the vehicle in question, and began questioning the maid who was in the house. Id. at 358. While the police were talking to the maid, appellant approached. When police determined that Goldberg had had access to the vehicle used in the murder, he was handcuffed and police read him his rights. Id. After briefly questioning Goldberg, police asked him if he would consent to a search of the house. Id. Goldberg agreed. Id. The police unhandcuffed Goldberg, told him he had the right to refuse a search, and read the consent to search form to him. Id. Goldberg signed the form and the police searched the house, recovering several items of evidence. Id. at 359.

This Court held that the initial handcuffing of Goldberg was not an arrest, but an investigatory detention. The Court noted that (1) it was reasonable for police to detain Goldberg while they completed their investigation of the scene and (2) that the handcuffing was justified by concerns for the officers safety. Id. at 360. The Court then analyzed whether there was reasonable suspicion to justify the investigatory detention and whether Goldberg's consent to search was voluntarily given. Id.

We believe that, as in Goldberg, the seizure of appellant and placing him in handcuffs was not an arrest, but rather was a temporary detention, and was justified by concerns for the officer' safety as well as that of the other members of appellant's household who were present. The appellant's continued detention in the police car was justified by the need to wait for homicide officers to arrive to conduct the investigation.

3. Reasonable Suspicion for Investigatory Detention?

Having decided that the appellant was the subject of an investigatory detention, not an arrest, we must next decide whether it was based upon reasonable suspicion. A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is justified when the detaining officer has specific, articulable facts at the time of the detention which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id.

Under these circumstances, it was reasonable for to suspect that appellant was involved in Priscilla's murder and to temporarily detain him for further investigation. At the time he was detained, the police had the following information:

1. Appellant had been involved in a violent disturbance earlier in the evening at 13503 Northborough, Apt. #407. In fact, appellant had suffered minor cuts as a result of the altercation.

2. At the time of the earlier disturbance, police noted that appellant was drunk and belligerent

3. Appellant would not cooperate with police during the earlier disturbance

4. Police did not arrest appellant or the other person involved in the altercation. Instead, police allowed appellant to leave with a relative.

5. As appellant left the scene of the earlier disturbance, he was taunting the police and yelling at them.

6. Less than an hour after appellant left the scene of the earlier altercation, police were dispatched to a shooting at that same location. Upon arriving at the scene, police noticed several shotgun blasts through the front door and a child's body being removed from the scene.

7. Upon arriving at appellant's home, police noticed that appellant's girlfriend's vehicle, which he had been instructed to leave at the apartment complex on Northborough, was parked in the appellant's driveway.

We hold that the police had "specific, articulable facts" sufficient to conclude that appellant had been engaged in criminal activity. Not even one hour earlier, appellant had been involved in a violent altercation at the same home in which the murder took place, and, when forced to leave by police, appellant was yelling and taunting them. Police also knew that someone had returned to Jessica's apartment complex to retrieve appellant's girlfriend's car. It was reasonable to suspect that appellant had returned to the scene and had thus been involved in the shooting.

4. Voluntary Consent to Search?

Having decided that the investigatory detention of appellant was lawful, we next address whether he voluntarily consented to the search of his bedroom.

A search pursuant to voluntary consent is an exception to the requirement that a search be based upon a warrant supported by probable cause. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). For consent to be valid, however, it must be voluntary. Id. at 817-18. The fact that a defendant is in custody does necessarily mean that his consent was involuntary. Id. To determine voluntariness, trial courts "must [assess] the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation." Id. at 818 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041 (1973)).

In Reasor, the defendant was arrested at gunpoint and the police illegally swept his house for weapons. 12 S.W.3d at 815-17. Nevertheless, the court found that appellant's subsequent consent to search was voluntary because he twice received his statutory warnings, signed a consent to search form, and was repeatedly warned that he had the right to remain silent. Id. at 818. The court concluded that the defendant was aware of his rights, but, nonetheless, voluntarily chose to waive them. Id. at 819.

Similarly, in Goldberg, the defendant, who was handcuffed, was the subject of a lawful investigatory detention. 95 S.W.3d at 361. No weapons had been used to effectuate his detention. Id. The police had read him his statutory rights and explained that he had the right to refuse consent. Id. Goldberg read and signed the consent to search form. Id. This Court held that there was nothing to indicate that Goldberg's "will was overborne" by oppressive police conduct. Id. (citing Jackson v. State, 968 S.W. 2d 495, 498 (Tex. App.--Texarkana 1998, pet. ref'd) and Schneckloth, 412 U.S. at 225-26, 93 S. Ct. at 2041.).

In this case, as we have already determined, appellant was lawfully detained. No weapons were used to effectuate the detention. The police read appellant his statutory rights and went over the consent form with him line by line ⁽²⁾. There is nothing to indicate that appellant's "will was overborne" by oppressive police conduct. See Jackson v. State, 968 S.W.2d 495, 498 (Tex. App.--Texarkana 1998, pet. ref'd) (citing Schneckloth, 412 U.S. at 225-26, 93 S.Ct. 2041). Accordingly, we hold that appellant consented to the search of his bedroom.

5. Appellant's Statement at Police Station

Appellant also complains that the statement he gave after being taken to the police station was compelled by his illegal arrest at the time he was initially detained. However, because have already held that appellant's initial detention was lawful, such detention cannot have tainted his subsequent statement. ⁽³⁾

For these reasons, we overrule points of error one and four.

VOIR DIRE ISSUES

In his second point of error, appellant contends that the trial court erred during voir dire by denying his challenges for cause against veniremembers 15 and 33 because they were biased against him as a matter or law.

"Bias" has been defined as "an inclination toward one side of an issue rather than to the other ... [which] leads to the natural inference that [a juror] will not or did not act with impartiality." Anderson v. State, 633 S.W.2d 851, 853 (Tex.Crim.App. [Panel Op.] 1982) (citing Compton v. Henrie, 364 S.W.2d 179 (Tex.1963)). Bias, by itself, is not sufficient for a challenge for cause. See Anderson, 633 S.W.2d at 853. Instead, an appellant must show that the juror was biased to the extent that he or she was incapable of being fair. See id. A juror who indicates this type of bias as a matter of law must be excused despite any protestations by the juror of an ability to set the bias aside and be fair and impartial. See Clark v. State, 717 S.W.2d 910, 917 (Tex. Crim. App. 1986). It is left to the discretion of the trial court to first determine whether bias exists. Anderson, 633 S.W.2d at 854..

1. Juror 15

During the voir dire of the entire panel, Juror 15, when asked whether he could consider the full range of punishment, the following exchange took place:

[Juror 15]: Judge, I'm leaning towards the high side. I deal with a lot of characters in the workplace.

[The Court]: All I'm asking you, can you consider - it just yes or not - in an appropriate case?

[Juror 15]: It's a qualified yes, I'm leaning towards the high side.

[The Court]: Okay. But you could consider the full range"

[Juror 15]: Yes.

. . . .

[Prosecutor]: Well, basically I'm - let me ask that. Do you have anything within you that would bias you, that would either make you start the State off at a lower level and make me prove more than I need to prove? Or the defense, would you make them - start them off at a lower level? Is there anything or can you look at this case, judge it on its facts, be fair and unbiased in your decision?

[Juror 15]: I mentioned earlier that, you know, in general when people get in scenarios like this, it's been my history dealing with police that when they get in situations like this, it's not one instance, it's typically a history of it. And I deal with quite a few characters that are in that position.

[Prosecutor]: Yes, sir.

[Juror 15]: And due to different employee-type of situations and arbitrations and employee discipline, its been my experience that usually when somebody gets in a case like that, they've got quite a bit of history behind them, it's not an isolated instance. So I would say, in general, I would be biased towards the prosecution.

[Prosecutor]: Okay. Now, you know that when - if you're asked to sit on this jury, the Judge is going to instruct you that you can't consider any of that stuff, any prior instances, you're going to have to put that aside, at least for the guilt part of the trial and judge the evidence you hear from that stand and basically make me prove my case. Now, knowing that, are you saying that basically you're not going to make me prove all that I need to prove in order to convict someone of murder, of the offense of murder? Because you realize, we are not talking about - this is completely different from things you may be doing with your employees. Do you think you would make me prove my case?

[Juror 15]: Yeah, you would have to prove it.

[Prosecutor]: And then, I guess, a follow-up question to that is: If I did prove my case to you, can you, as you sit here for the offense of murder, consider the full range of punishment?

[Juror 15]: I can consider the full range, but I will be biased towards the high end.

[Prosecutor]: But at this point, as you sit, because we're not - I'm not asking you to give probation in this case. I'm not asking you can you give probation, I'm just asking you in your mind, can you consider, as you sit here, the full range of punishment, which means probation to life? After you get in a position and you hear other evidence, there may be evidence, there may be not; but you hear it, then if you think life is appropriate, you know, you give life. If you think 60 years is appropriate, you give 60 years. If you think probation is appropriate in this case, then you give probation. Can you do that?

At the bench, away from the other veniremembers, the following exchange took place

with Juror 15.

[The Court]: Okay. No. 15, once and for all, we've asked you 50 different ways the same thing, but can you be fair in this case or are you so biased towards the State that you can't?

[Juror 15]: I think people need to be held accountable for their actions.

[The Court]: And that is what the court of law is about, holding people to account as long as the State can prove it. You just can't hold people accountable for something they didn't do.

[Juror 15]: I agree.

[The Court]: Okay. So we don't want you to be such, the kind of person that you're so interested finding people accountable that you would find him guilty for less than what the law requires. So can you, or can't you?

[Juror 15]: Can I or can't I?

[The Court]: Follow the law and make the State prove their case beyond a reasonable doubt and no less?

[Juror 15]: I know I can follow the law.

[The Court]: Will you?

2. Juror 33

During the voir dire of the entire panel, the following exchange took place with Juror 33:

[Prosecutor]: Do you think that if the Judge instructed you, you know, to follow the law - she is going to give you the law, she's going to ask you to follow it. Do you think if she does that, that you can follow the law that she gives you and judge this case and give Mr. Trujillo basically the same chance or the same shot that you would want if you were in his position, and judge the facts on what you hear from that stand, and judge the evidence that I bring forth? Now that doesn't mean that after - if I do prove my case to you and you do find him guilty that you can't you know - fair to you may be different that fair to somebody else. So when I ask you if you can be fair, do you think that you can be fair and give him the same shot that you would want if you were sitting in his spot?

[Juror 33]: Yes. I explained to the Judge, I guess we are all - you know, we have the benefit of all our experiences throughout life and it makes us be the person that we are; but I come from a very rule-oriented profession, being a CPA, and I go by the rules. And I think I can set it aside and apply the rules that fit in this particular case.

[Prosecutor]: Are you going to make me prove my case?

[Juror 33]: Yes.

[Prosecutor]: Are you going to hold me to any - are you going to start me off ahead of [defense counsel] here?

[Juror 33]: No.

At the bench, away from the other veniremembers, the following exchange took place with Juror 33.

[The Court]: This is the one time when you're not a lawyer you get to go behind. Look, we've done a lot of conversations when I started with you and then through the two lawyers. So here's the bottom line, you're an intelligent man. Can you be fair and unbiased in this case or are your [sic] leaning one way or the other?

[Juror 33]: Well, I'll try to be as fair and unbiased as I can.

[The Court]: Nobody wants to say they're unfair, but I'm just asking you if you - leaning I think you said.

[Juror 33]: I did. I really had some bad experiences with criminals in our life with theft and this sort of thing. And as I said, I'm a fairly rules-oriented person and I tend to look at things fairly black and white. And I guess the older I've gotten, probably the less patience I have with certain things. And I'll try to be as unbiased as I can, but I probably have, like the gentleman said, probably a certain amount of bias that I kind of just - it's kid of built into my personality.

[The Court]: Bias towards - against the State, against the defense.

[Juror 33]: No, against the defendant. I'm pretty much of law-and-order kind of person, I guess, from that background.

[The Court]: Well, we all are.

[Juror 33]: Yeah; but, you know, I feel like rules are rules and ought to be enforced.

[The Court]: Even [defense counsel] is kind of a law-and-order kind of person.

[Juror 33]: I'm sure he is.

[The Prosecutor]: Can I follow up on that? The Judge is going to give you all the law in this case and even if you might not agree with it or you dislike it, will you still follow it?

[The Court]: Well, what's your concern about your bias and how would you ever think that your bias might come into play because, you know, you have to follow the law in regards to a case. The maybe you don't know -

[Juror 33]: Well, you know, I guess it's - I haven't given this a great deal of thought. I haven't dwell [sic] on it a lot, but I feel like people that break the law need to be punished. And a little bit like the gentleman was having a discussion with you about, alcoholism, not be an excused - I know those are the wrong words - I kind of feel sort of the same way, that, you know, we're responsible for our own actions.

[The Court]: But that's the law. If you find - I guess, you know, what everybody wants to be comfortable about is that you're not leaning one way of the other when you start because the law - you already know what the law is, I've been talking to you about it for almost four hours.

[Juror 33]: Right.

[The Court]: And I know you've been listening. So there's a presumption of innocence, the State has the burden of proof and you have to follow that, if you can. If you experiences in past are such that you can't, just tell us. You're the only one who knows.

[Juror 33]: I think I can, I think I can follow the law. That's what I've been doing for 43 years and practicing, you know accounting.

[Defense counsel]: Thank you. With respect to the punishment issue, if a person were convicted of murder - and we've talked about there's all kinds of different ways?

[Juror 33]: Sure.

[Defense counsel]: Can you consider the full range of punishment from five years probation all the way to 99 years or life?

[Juror 33]: Yeah. I'm a little bit like the other gentleman who talk [sic] about probations, I just - you read all these things where the jury thinks they gave one verdict and found out later and then something else comes into play that nobody know about and they end up getting half of what the jury thought they were getting, those kinds of things. Those kinds of things bother me, but generally I can go from the full range, either end.

3. Analysis

As detailed above, the trial court conducted extensive questioning of Jurors 15 and 33 to determined whether they were biased, i.e., whether they were incapable of being fair. Despite Juror 15's remarks that people need to be held "accountable for their actions" and Juror 33's remarks that he was a "law-and-order kind of person," both were able to assure the trial court that they could, in fact, follow the law. Accordingly, we hold that the trial court did not abuse its discretion in determining that Jurors 15 and 33 were not biased as a matter of law. See Cordova v. State, 733 S.W.2d 175, 182-84 (Tex.Cr.App.1987) (statements by one venireperson that "he wanted to fry the guy" and by another venireperson that defendant should be punished according to the Biblical adage "an eye for an eye, a tooth for a tooth" did not necessarily disqualify the venirepersons, absent a showing that they could not follow the law as given them by the trial court).

We overrule point of error two.

ADMISSION OF AUTOPSY PHOTOGRAPHS

Appellant contends that the trial court erred in overruling his objections to the admission of several autopsy photographs of Priscilla. Specifically, appellant argues that the photographs should have been excluded under Rule 403 of the Rules of Evidence because their probative value was substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid.403. When the trial court rules on a rule 403 objection, we review the court's ruling under an abuse of discretion standard. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. Id. We will not reverse a trial court's ruling that is within the zone of reasonable disagreement. Id. at 440. In determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, a court should consider (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. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

In determining the prejudicial effect of photographs, courts may consider the number of photographs offered; their gruesomeness, detail, and size; whether they are in color; whether they are taken close-up; whether the person in the photograph is clothed; and any other factors unique to the situation. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006); Long v. State, 823 S.W.2d 259, 270 (Tex. Crim. App. 1991). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). When photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim by autopsy. Salazar v. State, 38 S.W.3d 141, 151-52 (Tex . Crim. App. 2001). Furthermore, photographs depicting mutilation by the medical examiner may be admissible when the photographs show bruising or other damage that is attributable to the defendant's actions but is not visible externally, thereby making the photographs highly relevant to the manner of death. See Ripowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001). Alterations caused by the autopsy are "of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant." Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). Overall, the photograph must be helpful to the jury: "If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo, 144 S.W.3d at 491-92.

At issue in the case are four autopsy photographs. Exhibits 100, 101, and 102 show different angles of Priscilla's skull with the scalp reflected back. All three show the severe hemorrhaging caused by the shotgun pellets that penetrated Priscilla's scalp. Exhibit 104 is a picture of Priscilla's skull after the blood had been cleaned off and shows where several shotgun pellets penetrated her skull. The photographs are small, in color, and it took very little time to develop the evidence.

As part of its case, the State had to prove that Priscilla was shot by a firearm and that her death was caused by that shot. Appellant argues that the photographs could not have been helpful to the jury because he did not dispute the severity of the injuries or the cause of Priscilla's death. However, a defendant need not dispute the severity of the injuries or the cause of death to make photographs probative. Holford v. State, 177 S.W.3d 454, 464 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).

Appellant also argues that the photographs were unnecessary because other autopsy photographs, which showed Priscilla's shaved, but intact scalp, had already been admitted into evidence. The State, however, argues that the photographs with the scalp reflected back were necessary to show the massive hemorrhaging caused by the shotgun. We agree that the extent of Priscilla's injuries is not readily apparent from the photographs in which the scalp was left intact. Those photographs show only tiny black spots where the pellets penetrated Priscilla's scalp. In contrast, the photographs at issue show that the tiny pellets caused a massive amount of bleeding under the scalp, which led to Priscilla's death. The disturbing nature of the photographs comes from the amount of damage inflicted by the shotgun pellets, not the alterations to the body by the autopsy. See Hayes, 85 S.W.3d at 816. Furthermore, the photographs showed internal bleeding caused by appellant's action that was not otherwise apparent. See Ripowski, 61 S.W.3d at 392-93.

Accordingly, we hold that the trial court did not abuse its discretion by overruling appellant's objections to the admission of the autopsy photographs.

We overrule point of error three.

CONCLUSION

We affirm the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. ' ' '

2.

3. ' '