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NUMBER 13-10-00086-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HAZAEL GONZALEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 139th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides and Perkes Memorandum Opinion by Justice Benavides
A Hidalgo County jury convicted appellant Hazael Gonzalez of the capital murder of Miguel Cahue, and he was sentenced to life imprisonment without parole. Gonzalez appeals his conviction raising five issues: (1) whether the evidence was sufficient to sustain a capital murder conviction; (2) whether the trial court committed reversible error for not allowing him to present evidence in support of an affirmative defense theory of an independent impulse; (3) whether the trial court committed reversible error for providing instructions on the law of principals; (4) whether the trial court committed reversible error when it prohibited Gonzalez’s attorney from arguing the punishment for a capital murder conviction; and (5) whether the trial court committed reversible error when it admitted the victim’s autopsy photos into evidence. We affirm. I. Background On August 6, 2008, seventy-six-year-old Miguel “Mike” Cahue died on the floor of his McAllen, Texas trailer home after robbers left him lying in a pool of his own blood. The State indicted, among others, then 28-year-old Hazael “Ozzy” Gonzalez for Cahue’s murder and charged that Gonzalez was responsible for the crime under the law of parties, even though he did not commit the act that actually killed Cahue. See Tex. Pen. Code Ann. § 7.02(b) (West 2003); id. § 19.03(a)(2) (West Supp. 2010). Gonzalez pleaded not guilty to the charges. Prosecutors alleged that Gonzalez, who was Cahue’s friend, was cash-strapped and devised a plan with then fourteen-year-old co- defendant Wendy Gomez to trick Cahue into letting someone into his home, then subdue him, tie him up with duct tape, and rob him. Wendy recruited her teenage brothers, Marvin and Alfredo Gomez, and teenage friends, Michael Mancha and Jose Martinez, to assist with the crime. Witnesses testified that Cahue lived alone, was described by friends and family as healthy and active, and was known to have sexual encounters with men. Prosecutors alleged that Gonzalez used his friendship with Cahue and knowledge of Cahue’s sexuality to gain access to his home by introducing Alfredo to Cahue as a potential tryst. The State presented evidence that on August 6, 2008, Gonzalez drove Alfredo and Michael to Cahue’s home first, while the other defendants waited at another location. Gonzalez introduced Alfredo to Cahue, while Michael hid outside the home and readied to invade Cahue’s home after Gonzalez left. Gonzalez left Alfredo inside Cahue’s home, as planned, and drove away to pick up Wendy, Marvin, and Jesus at an agreed location. Gonzalez then drove back to Cahue’s home and dropped off the three co-defendants. At this point, Gonzalez never re-entered Cahue’s home, but instead circled around the neighborhood in his vehicle and waited for the others to exit the home. The State presented evidence that Gonzalez’s co-defendants tackled the victim to the floor to subdue him and proceeded to beat him with their fists, feet, and a candlestick. The State alleged that Michael delivered the fatal blows to Cahue’s body, at which point the group of teenagers moved Cahue’s beaten body to a bathroom floor. The co-defendants eventually ran out of the victim’s home with various stolen items, entered Gonzalez’s vehicle, and Gonzalez drove away. Among the items taken from the home were a digital camera, a jewelry bracelet, and a paper shredder. Gonzalez never received any of the stolen property and claims that at all relevant times, he felt threatened by Wendy and fearful for his life if he did not move forward with the robbery. Gonzalez’s motion for a directed verdict after the State’s case- in-chief was denied. After a three-day trial, the jury convicted Gonzalez of capital murder under the law of parties. See Tex. Pen. Code Ann. §§ 7.02(b), 19.03(a)(2). Because the State did not seek the death penalty, the trial court automatically sentenced Gonzalez to life in prison without parole. See id. §12.31(a)(2) (West Supp. 2010). The trial court later denied Gonzalez’s motion for new trial, and this appeal ensued. II. Issue One: Sufficiency of the Evidence In his first issue, Gonzalez asserts that there was insufficient evidence to support his conviction for capital murder. A. Standard of Review and Applicable Law We must apply the Jackson v. Virginia, 443 U.S. 307, 319 (1979), standard to determine whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (holding that the Jackson standard of review is the “only standard” that should be applied in a sufficiency review). Under Jackson, this Court must consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Our analysis measures the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). We must defer to the jury’s determinations of credibility and weight of the evidence because the jurors are the sole fact-finders. See Brooks, 323 S.W.3d at 899; see also Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979) (“The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony. . . .”). A person is guilty of capital murder if he intentionally commits a murder in the course of committing or attempting to commit a robbery. Tex. Pen. Code Ann. § 19.03(a)(2). The applicable definition of murder in this case is intentionally or knowingly causing the death of an individual. See id. § 19.02(b)(1) (West 2003). Robbery is classified as a second-degree felony and is defined as intentionally, knowingly, or recklessly causing bodily injury to another, or intentionally or knowingly threatening or placing another in fear of imminent bodily injury or harm while in the course of committing a theft with the intent to obtain or maintain control of one’s property. Id. § 29.02 (West 2003). In this case, the State charged Gonzalez under what is commonly referred to as the “law of parties” to hold him responsible for Cahue’s murder that was allegedly committed by Michael Mancha. See id. § 7.02(b). One is criminally responsible under the law of parties if: [I]n the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Id. Additionally, a person commits criminal conspiracy if he has the intent to commit a felony, agrees with another to engage in conduct that would constitute the offense, and performs an overt act in pursuance of that agreement. Id. § 15.02(a) (West 2003). Accordingly, a hypothetically correct capital murder jury charge in this case would state that Gonzalez is guilty if a jury finds beyond a reasonable doubt that (1) he entered into an agreement with Wendy Gomez, Marvin Gomez, Alfredo Gomez, Michael Mancha, and/or Jose Martinez to intentionally, knowingly, or recklessly cause bodily injury to Cahue or to intentionally or knowingly threaten or place Cahue in fear of imminent bodily injury or harm while in the course of committing a theft with the intent to obtain or maintain control of one’s property; (2) performed an overt act in pursuance of that robbery; (3) during the attempt to carry out this conspiracy to rob Cahue, Michael Mancha intentionally murdered Cahue; and (4) this murder was committed in furtherance of the robbery and was one that should have been anticipated as a result of carrying out the robbery.
B. Discussion On the first and second elements of the charged offense, the State introduced into evidence Gonzalez’s “Statement of the Accused,” in which he voluntarily stated that he “told Wendy that [Cahue] would be a good target” to rob after they both discussed their mutual financial troubles. During this discussion, Gonzalez told Wendy of Cahue’s purported homosexuality, how Cahue allowed strangers into his home for sexual rendezvous, and described items that were available for the taking, such as a “real big TV set.” This discussion and exchange of information formed the basis of the group’s motive, opportunity, and agreement to rob Cahue. The record also shows that their plan included subduing Cahue and tying him up with duct tape in order to take his property. Next, despite Gonzalez’s statements to police that he did not want to go forward with the robbery and attempted to avoid fourteen-year-old Wendy after their agreement, Gonzalez included in his statement that on the afternoon of August 6, 2008, the group (which now encompassed the other co-defendants) “started going over the plans.” Gonzalez also stated that by that afternoon, he had called and set up Cahue to meet Wendy’s teenage brother, Alfredo, who used the fake name “Edward” when introduced to Cahue for a fake rendezvous. According to his statement, Gonzalez continued to go along with the plans and drove Alfredo and Michael to Cahue’s home, while the other co-defendants waited at another location. After dropping off Alfredo and Michael, Gonzalez returned to the agreed location to pick up the other defendants and took them to Cahue’s home, as planned. While Alfredo, Michael, Wendy, Marvin, and Jose were inside Cahue’s home, Gonzalez circled around the neighborhood until they came out of Cahue’s house to flee the scene in Gonzalez’s vehicle. The State elicited testimony from Marvin, who further corroborated that Gonzalez served as the driver for the co- defendants. Therefore, we see ample evidence to support the first two elements of the hypothetically correct charge that Gonzalez (1) entered into an agreement with at least one co-defendant, Wendy, to rob the victim through deception and surprise and (2) committed overt acts in pursuance of the planned robbery, such as setting up the meeting between Alfredo and Cahue and serving as the group’s driver. Examined in a light favorable to the verdict, we determine that a rational juror could find the first two elements of the hypothetically correct jury charge beyond a reasonable doubt as the evidence is sufficient to support these findings. As to the third element of the offense, if during the attempt to carry out this conspiracy to rob Cahue, Michael Mancha intentionally murdered Cahue, the State presented testimony from Marvin, who stated that by the time he entered the victim’s residence, Michael was on the floor struggling with Cahue. In order to subdue him, Marvin testified that Michael punched Cahue’s body with his fists and beat him with a candlestick holder, all while the victim pleaded with Michael not to kill him. After the beating, Marvin testified that he, Wendy, Michael, and Jose moved Cahue’s body into the bathroom where he lied severely beaten and unable to move. To support Marvin’s statements, the State presented expert testimony from Hidalgo County Medical Examiner Norma Farley, M.D., who performed the autopsy on Cahue’s body. Dr. Farley’s examination showed that the victim had lacerations around his right eyebrows, which are consistent with a beating from a punch or a kick. She also testified that Cahue’s skull had overwhelming hemorrhaging, which again was consistent with blunt force trauma and likely caused Cahue to lose consciousness. Dr. Farley’s examination further showed rib fractures on both sides of the victim’s body and more hemorrhaging in his rib cage, which was further proof of a physical beating. In her final conclusion, Dr. Farley classified Cahue’s death as a homicide that was the result of blunt force head and chest trauma. Reviewed in a light most favorable to the verdict, we conclude that sufficient evidence was presented to support a finding of the third element beyond a reasonable doubt. With regard to the fourth element, that this murder was committed in furtherance of the robbery and was one that should have been anticipated as a result of carrying out the robbery, Gonzalez argues that the present case is similar to a case from the Fort Worth Court of Appeals, which held that no evidence existed to show that there was a plan to harm the victim. See Tippitt v. State, 41 S.W.3d 316, 324–25 (Tex. App.—Fort Worth 2001, no pet.) (holding that the evidence presented only showed an agreement to rob the victim, but not murder him). We disagree with this argument and find the Tippitt case readily distinguishable, as there is ample evidence to support the jury’s finding on this element beyond a reasonable doubt. Gonzalez’s “Statement of the Accused” disclosed details of the plans to rob Cahue, which included a scheme to use force to tackle and subdue him, as well as bind his hands and feet with duct tape. Throughout his statement, Gonzalez contends that he felt threatened by his co- defendants and was told by one of his friends that Wendy was capable of hurting Gonzalez and his family. Marvin and Dr. Farley’s testimony provided evidence of Cahue’s violent beating and death, which took place during the course of the robbery. While the evidence may not show that murder was in the original plans crafted by Gonzalez and Wendy, the crime was nonetheless committed in furtherance of the robbery, as the evidence shows that the original plans to tackle and duct tape Cahue were foiled when the 76-year-old victim resisted his attackers. The State’s evidence also shows that the group of co- defendants entered Cahue’s trailer with a BB gun that resembled a real pistol. Gonzalez further admitted, in his statement to police, to being fearful of his co-defendant(s), including Wendy, who had an apparent capability of hurting him and his family. The State argued that Wendy’s propensity for anger and potential violence was within Gonzalez’s knowledge and Cahue’s murder should have been anticipated when the five teenagers entered Cahue’s home to commit the robbery with a BB gun, duct tape, and the element of surprise. We agree and conclude that the evidence, viewed in the light favorable to verdict, was sufficient to allow the jury to draw reasonable inferences from the evidence and support a finding of the fourth element beyond a reasonable doubt. See Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). Gonzalez’s first issue is overruled. III. Issue Two: Refusal to Admit Evidence to Support Defensive Theory In his second issue, Gonzalez asserts that the trial court committed reversible error when it denied him the ability to present evidence on his defensive theory of independent impulse. A. Standard of Review and Applicable Law “A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (en banc) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). The prevailing policy behind this rule and its limits is to “assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. We review the trial court’s decision to bar the admission of evidence to support Gonzalez’s independent impulse defense under an abuse of discretion standard. Id. For evidence to be relevant, it must satisfy two requirements: (1) that it is material; and (2) that it is probative. See id.; Tex. R. Evid. 401. To be material, it “must be shown to be addressed to the proof of material proposition;” to be probative, the evidence must “tend to make the existence of the fact ‘more or less probable than it would be without the evidence.’” Miller, 36 S.W.3d at 507. B. Discussion Gonzalez argues that the trial court erred for not allowing testimony to support his independent impulse defense. The independent impulse defense “embraces the theory that the accused, although admittedly intent on some wrongful conduct, did not contemplate the extent of criminal conduct actually engaged in by his fellow conspirators, and thus cannot be held vicariously responsible for their conduct.” Fincher v. State, 980 S.W.2d 886, 888 (Tex. App.—Fort Worth 1998, pet. ref’d). On an offer of proof, Gonzalez’s counsel proffered evidence that Michael told McAllen Police Department crime-scene investigators that Cahue bit his hand and that he knew that Cahue carried HIV. While counsel argued—and the McAllen Police Department investigator’s report apparently listed—that Cahue had AIDS, the record appears to the contrary and instead indicates that the victim was only potentially HIV-positive. Gonzalez’s counsel then argued that this evidence would show that Michael murdered Cahue because Cahue bit him and because Michael knew that Cahue carried HIV. Gonzalez’s counsel argued further that these events were unforeseen. When questioned by the trial court, the following colloquy took place: The Court: How does that hinder your defensive theory? I know that you’re arguing sudden impulse.
[Defense counsel]: Well— The Court: I mean, how does that help you to prove your sudden impulse? I mean, sudden impulse, your whole case revolves around the fact that your client was not inside the—the house and that there was no plan as far as that they were going to kill him.
[Defense Counsel]: Okay. That—that substantiates that. The killing came about because of the rage, which was also substantiated by the State’s own witness, the testimony of Marvin. He went into a rage when he was bitten because he knew that he had AIDS and this prompted them to kill. This was an unforeseen situation, could not have been foreseen by [Gonzalez] and, therefore we are entitled to a charge.
The Court: I just don’t—I just don’t see it. I think that there’s too many assumptions to get into that.
The trial court barred the evidence of Cahue’s possible HIV condition because it found it irrelevant and too speculative for the proceedings. We agree with the trial court’s determination. The proffered evidence is irrelevant and does not support Gonzalez’s defensive theory because all it shows is that Cahue bit Michael, as the victim attempted to defend himself, and that Michael knew of Cahue’s possible HIV infection. We fail to follow Gonzalez’s position that this evidence is enough to support his defense of independent impulse, because the excluded evidence is immaterial, lacks probative value, and is highly speculative of Michael’s motives, if any. See Tex. R. Evid. 403. We agree with the trial court that the strongest, and perhaps only, evidence in this case that would tend to support Gonzalez’s theory of independent impulse is Michael’s direct testimony about what his specific knowledge and intent were following the bite. However, co-defendant Michael did not testify at Gonzalez’s trial. Accordingly, we conclude that the trial court did not abuse its discretion in barring this testimony, as it was irrelevant to the proposed reasons for its offer and highly speculative. See Tex. R. Evid. 401; Miller, 36 S.W.3d at 507. Gonzalez’s second issue is overruled. IV. Issue Three: Jury Charge on Law of Principals In his third issue, Gonzalez asserts that the trial court erred in providing a jury instruction on the law of principals when there was insufficient evidence to support the charge. A. Standard of Review Our first duty in analyzing a jury-charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find error, we analyze it for harm. Id. The degree of harm necessary for reversal depends on whether the error was preserved by objection. Id. If the error was preserved by objection, we will reverse if we find “some harm” to the defendant’s rights. Id. If no objection was made, we will reverse only if the record shows “egregious harm” to the defendant. Id. B. Discussion Gonzalez argues that the charge erroneously instructed the jury to convict him if, among other instructions, they found him culpable as the primary actor for the crimes of capital murder, murder, and aggravated robbery. We agree.. Upon review of the record, we found no evidence to support the principal-actor instructions with regard to Gonzalez’s actions and thus conclude that the principal-actor instructions were erroneous. See Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996) (en banc) (holding that the State is required to properly instruct the jury if it proceeds upon parties theory). Because these instructions were erroneous, we must analyze for harm. See Ngo, 175 S.W.3d at 743. Gonzalez’s appellate brief stipulates that defense counsel did not object at trial to any portion of the jury instruction, so we examine whether this error amounted to egregious harm that requires reversal. See id. Gonzalez argues that he was egregiously harmed because the effect of the trial court’s erroneous instruction confused the jury, left the possibility open that the jury found him guilty as a principal actor, and/or caused egregious harm to the defendant to deny him a fair and impartial trial. We disagree. Egregious harm is defined as those errors that affect “‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Ngo, 175 S.W.3d at 750. Our review of the record reveals that the evidence adduced at trial would not support a verdict against Gonzalez as a principal actor, but rather supports a verdict against Gonzalez under the law of parties; therefore, any error by the trial court in charging Gonzalez as a primary actor, when the evidence supports his guilt under the law of parties, and the jury was instructed as such, is harmless. See generally Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999); see also Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986) (en banc) (holding the inverse, that trial court’s instruction on law of parties was harmless because the evidence clearly supported defendant’s guilt as a principal actor). Furthermore, confusion of the jury, if any, was likely minimal because the law-of-parties instruction accompanied the primary-actor instruction. The record does not indicate that these erroneous instructions were placed in the jury charge so as to injure Gonzalez’s rights, and we also conclude from our review that this error did not deny him a fair and impartial trial. See Reyes v. State, 741 S.W.2d 414, 426 (Tex. Crim. App. 1987) (en banc) (citing Carrillo v. State, 566 S.W.2d 902, 910 (Tex. Crim. App. 1978).[1] Accordingly, any error by the trial court in its instructions to the jury on the primary-actor theory was harmless. We overrule Gonzalez’s third issue. V. Issue Four: Mentioning Punishment During Closing Arguments In his fourth issue, Gonzalez contends that the trial court committed reversible error when it prohibited his attorney from making closing arguments that Gonzalez faced mandatory life imprisonment without parole if found guilty of capital murder. A. Standard of Review and Applicable Law In a capital murder trial in which the State does not seek the death penalty, prospective jurors shall be informed that the State will not seek the death penalty and that a sentence of life imprisonment without parole is mandatory on conviction. See Tex. Pen. Code Ann. § 12.31(b)(2). However, it is improper during the guilt- innocence stage of a trial involving two or more offenses to discuss ranges of punishment because it encourages the jury to convict on the basis of the amount of punishment, rather than facts surrounding guilt or innocence. See Bruton v. State, 921 S.W.2d 531, 536 (Tex. App.—Fort Worth 1996, writ ref’d). Generally, an improper discussion of ranges of punishment during closing arguments may be sufficiently cured and remedied by a limiting instruction, unless the argument was so manifestly improper to inflame and prejudice the minds of the jury. Id. B. Discussion The following exchange is at the crux of Gonzalez’s issue on appeal. [DEFENSE COUNSEL]: The law of parties is what the State will have you convict Hazael Gonzalez of the crime of Capital Murder causing this judge to sentence him to life in the penitentiary.
[PROSECUTOR]: Your honor, I’m going to object, Judge. Improper argument.
THE COURT: Sustained, [Defense Counsel]. Ladies and gentlemen, the only issue before you is guilt or innocence.
. . . . THE COURT: Remember what I told you that what the lawyers say is not evidence.
The trial court’s ruling during this exchange was not erroneous. We hold that the trial court properly sustained the State’s objection and properly cured the improper argument by admonishing the jury that their sole role was to determine Gonzalez’s guilt or innocence and that counsel’s argument was not evidence to be taken into deliberations. See id. Furthermore, the record shows that during voir dire, prospective jurors were informed by the trial court, pursuant to statute, of the State’s decision not to seek the death penalty and decision to pursue life imprisonment without parole instead if the jury found Gonzalez guilty of capital murder. See Tex. Pen. Code Ann. § 12.31(b)(2). Gonzalez cites no authority, and we find none, to support his argument that the court was required to instruct the jury in its charge of the possible mandatory punishment. Instead, our reading of the penal code requires that only prospective jurors need be informed of the possible life imprisonment without parole punishment, which was satisfied in this case. See id. Because we do not find error, our analysis on this issue concludes here. See Tex. R. App. P. 44.2. Gonzalez’s fourth issue is overruled. VI. Issue Five: Admission of Autopsy Photos In his final issue, Gonzalez argues that the trial court committed reversible error when it admitted photos of the victim’s autopsy. A. Standard of Review Admissibility of photographs is within the sound discretion of the trial court. See Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). Generally, a photograph is admissible if verbal testimony about the matters in the photograph is also admissible. Id. We will review the trial court’s ruling for an abuse of discretion. Id. A trial court’s ruling on admissibility of evidence should not be disturbed if the ruling was within the zone of reasonable disagreement, and we should not substitute our own decision for that of the trial court. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). B. Discussion Gonzalez argues that at trial, he objected to autopsy photos (State’s Exhibits 101, 102, 104–11) first on relevance grounds, and in the alternative, on rule of evidence 403 grounds. See Tex. R. Evid. 401, 403. The trial court overruled all of Gonzalez’s objections and admitted the photographs. First, relevant evidence, as defined earlier in this opinion, is “evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. The photographs at issue depict matters that Dr. Farley testified to about the manner and method of Cahue’s death, including lacerations to Cahue’s head, hemorrhaging of blood in the head and chest, and fractured rib bones. Gonzalez argues that the photos lack relevance because he did not challenge the cause of death. While it is accurate that Gonzalez’s counsel agreed to stipulate to Cahue’s cause of death, the State nonetheless had the burden to prove to the jury the manner and method of Cahue’s death, which it elicited through Dr. Farley’s testimony. See Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). We hold that the trial court did not abuse its discretion by finding the autopsy photographs relevant in this case. Next, we examine whether the trial court abused its discretion by ruling that the probative value of the photographs substantially outweighed the danger of unfair prejudice to support their admission into evidence. Gonzalez contends that the photos are more prejudicial than probative because they depict the bloody, bruised, and gruesome state of the victim’s body at the time of the autopsy. Further, Gonzalez argues that the photos served more to inflame the jury rather than assist them in any relevant part of the trial. We disagree. “A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include: (1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size; (5) whether they are in color or black-and-white; (6) whether they are close-up; (7) whether the body depicted is clothed or naked; (8) the availability of other means of proof; and (9) other circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). The ten photographs at issue were not any more gruesome than what would be expected in a case such as this, where Dr. Farley testified that Cahue’s cause of death was repeated blunt force trauma to the head and abdomen. Further, the photographs tracked Dr. Farley’s testimony that presented a clinical examination and autopsy of Cahue’s body following his death. Gonzalez’s argument that the photos were unfairly prejudicial is not persuasive in light of the State’s need for the photographs to prove its case. The photos depicted Cahue’s bloody and bruised face and were vital to the State’s case to the jury with regard to the manner and method of Cahue’s death. We have reviewed these photographs and conclude that the trial court’s ruling was within the zone of reasonable disagreement and that it did not abuse its discretion in admitting them. See id.; see also Tex. R. Evid. 403. Gonzalez’s fifth issue is overruled. VII. Conclusion We affirm the judgment of the trial court.
________________________ GINA M. BENAVIDES, Justice
Do not publish. Tex. R. App. P. 47.2(b).
Delivered and filed the 2nd day of February, 2012.
----------------------- [1] Gonzalez’s reliance on two cases for support are distinguishable from the present case. In Savant v. State, defense counsel timely preserved error at trial, which was not done in this case, and requires a “some harm,” rather than “egregious harm” analysis under Ngo; and in Oliver v. State, the trial court provided a limited instruction that was not supported by the evidence, which was also not done in this case because instructions on the law of parties were nonetheless provided to the jury. See Savant v. State, 544 S.W.2d 408, 409 (Tex. Crim. App. 1976); Oliver v. State, 268 S.W.2d 467, 470 (Tex. Crim. App. 1954).