NUMBER 13-12-00039-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSHUA JERELL WILSON A/K/A JOSHUA JERRELL WILSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court of Jefferson County, Texas.
MEMORANDUM OPINION1 Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant, Joshua Jerell Wilson A/K/A Joshua Jerrell Wilson, appeals his
conviction for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1)
(West 2011). A jury found appellant guilty, and the trial court assessed punishment at
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). ninety-nine years of confinement in the Texas Department of Criminal Justice,
Institutional Division. By four issues, appellant argues that (1) the evidence was
insufficient to support the conviction; (2) the trial court erred in denying his motion to
suppress a photographic lineup that was impermissibly suggestive and that created a
substantial likelihood of misidentification; (3) the trial court abused its discretion by
admitting autopsy photographs over his rule 403 objection; and (4) the trial court erred in
denying his right of confrontation by limiting his cross-examination of one of the State’s
witnesses.2 We affirm.
I. BACKGROUND3
Appellant was convicted for the murder of Hayward David Monceaux a/k/a
“Howard-T.” Howard-T was shot in the back of the head from about twelve to fifteen
inches away while standing in a well-lit “breezeway” between apartments at the Louis
Manor Apartments in Port Arthur, Texas.
Two witnesses, Eric Brisco and Irvrie Williams, testified to seeing a person flee
from the scene of the crime. Brisco testified that at the time of the shooting he was taking
some papers to a fellow church member who resided at the Louis Manor Apartments.
Brisco testified that when he was “maybe two steps from [the church member’s] door,” he
heard “like a loud pop.” He looked to his left and saw Howard-T “fall.” A
dark-complected, African-American man with a full beard was about one or two feet away
from the victim. Brisco was about four or five feet away from the shooting. He
2 We have reorganized and restated appellant’s issues for the sake of clarity. 3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 immediately fled, as did the man that he saw. On the day after the shooting, Brisco
identified appellant in a photographic lineup as the man who fled the scene of the crime.
Irvrie Williams, Howard-T’s cousin, testified that he was in a nearby apartment
when he heard the gunshot. He had opened the apartment’s bathroom window because
he was about to smoke a cigarette, when he heard the gunshot. He looked out the
window and saw Howard-T “fall” to the ground. An African-American person dressed in
black fled from the scene.
Two other witnesses testified to seeing appellant at or near the apartment complex
before the shooting. Raquel Ladet stated that “a couple days before” the shooting, she
saw Howard-T and appellant exchanging “some words, like, not nice words” in the
parking lot adjacent to her apartment. She noted that both men appeared visibly upset,
but that appellant eventually left. Howard T’s wife, Ashley Antoine, testified that
appellant approached her earlier on the day of the shooting, asking where he could find
Howard-T. She later identified appellant in a photographic lineup as the person who
approached her.
Earnest Lamont Nelson testified that about three weeks after the shooting, and
while he and appellant were both in jail, he heard appellant bragging about approaching
Howard-T from behind and shooting him in the head at the Louis Manor Apartments.
According to Nelson, appellant intimated that, during a prior incarceration, he heard “the
name Howard-T and that he had been selling drugs and that he was going to make it his
business or his goal whenever he got out to look for this person to do whatever he had to
do with this person.” Nelson stated further that appellant informed him that his motive
3 was to rob Howard-T and that he took some money and crack cocaine from Howard-T on
the night he shot him.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support his
murder conviction. We disagree.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);
see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The
fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be
given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.
2008)). Reconciliation of conflicts in the evidence is within the fact-finder’s exclusive
province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must
resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
B. Discussion
Appellant argues that the evidence is insufficient because appellant did not
confess and because no eyewitness testified to the murder. He further contends that
4 “[a]ll that is known is that the defendant was in the vicinity earlier[,] until the prosecution
call[ed] a witness who testifie[d] that the defendant admitted murdering the victim.”4
The jury heard testimony that appellant admitted to committing the murder, and it
was free to believe or disbelieve this testimony. In addition, the jury heard Brisco testify
that he was in close proximity to the shooting when it occurred and that he saw appellant
flee the crime scene immediately after the shooting. The jury also heard testimony that
appellant was searching for Howard-T on the day of the shooting and that appellant and
Howard-T were involved in a heated argument a few days before the shooting. We defer
to the factfinder as the exclusive judge on the credibility of the witnesses, and resolve all
inconsistencies in favor of the verdict. See Anderson, 322 S.W.3d at 405. We therefore
conclude that the evidence is sufficient to support the verdict. See Jackson, 443 U.S. at
319. We overrule appellant’s first issue.
III. PRETRIAL PHOTOGRAPHIC LINEUP
By his second issue, appellant argues that the trial court erred in denying his
motion to suppress the pretrial photographic lineup and in-court identifications.
Specifically, he complains that the pretrial photographic lineup was impermissibly
suggestive and created a substantial likelihood of irreparable misidentification because
he was the only “person with a full, although light beard . . . .”5
4 Appellant does not challenge the credibility of Nelson, the State’s witness who testified to hearing appellant admit to the murder. 5 We construe appellant’s issue to include a challenge to the in-court identification based on appellant’s reference to the “substantial likelihood of irreparable misidentification,” a phrase associated with the frequent challenge that an in-court identification is tainted by an impermissibly suggestive pretrial photographic lineup. See, e.g., Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995) (en banc). Appellant cites Barley, a case addressing a request to suppress in-court identifications, in support of his argument. This construction of appellant’s argument corresponds to appellant’s pretrial motion to suppress, which explicitly stated, “There is a substantial likelihood of misidentification of the Defendant at 5 A. Standard of Review
Pretrial photographic lineup issues are reviewed de novo. See Loserth v. State,
963 S.W.2d 770, 772–73 (Tex. Crim. App. 1998); Guzman v. State, 955 S.W.2d 85,
88–89 (Tex. Crim. App. 1997). The issue is a mixed question of law and fact that does
not turn on an evaluation of credibility and demeanor. See Loserth, 963 S.W.2d at 772;
Guzman, 955 S.W.2d at 89. Determining the admissibility of in-court identification
involves a two-step analysis: (1) whether the out-of-court identification procedure was
impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Simmons v. United States, 390
U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995) (en
banc). Each case must be considered on its own facts, and the analysis requires an
examination of the totality of circumstances surrounding the identification. Simmons,
390 U.S. at 384–85. Appellant must prove both elements by clear and convincing
evidence. Barley, 906 S.W.2d at 33–34.
Appellant’s challenge is directed solely at the composition of the photographic
lineup. 6 The photographic lineup consisted of six photographs of dark-complected,
African-American men with close-cropped hair and some facial hair. The photographs
trial as a result of the impermissible procedure.” Regardless, our analysis is the same; we must first consider whether the photographic lineup was impermissibly suggestive. Compare Barley, 906 S.W.2d at 33 (addressing attempted suppression of in-court identification), with Cain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010) (requiring de novo review for mixed questions of law and fact that “do not turn on credibility and demeanor” in reviewing a trial court’s denial of the defendant’s motion to suppress). 6 The manner in which the photograph lineup was presented has not been challenged on appeal. In that regard, witness testimony shows the lineup was not presented in a suggestive manner. 6 are all black and white, and three of the subjects have a white shirt and three have a black
shirt.
Detective Herbert Otis of the Port Arthur Police Department was the officer who
prepared and presented the photograph lineup to Brisco and Antoine. He testified that
the photographs and the position of appellant’s photograph in the lineup were generated
by a computer program. He stated that he inserted appellant’s social security number,
and then he asked the computer to “match with similar photos and the computer
automatically” brought up the other photographs. Detective Otis affirmed that, based on
his training and experience, the initial return produced photographs that were the most
similar to appellant’s photograph that could be achieved with the available database in
the computer program.
Without any hesitation or prompting by Detective Otis, Brisco and Antoine each
identified appellant from the photographic lineup. According to Brisco, “when I seen the
eyes in the photo lineup, I just, you know, immediately identified with it and I got really
uneasy” because “I’ve had, you know, nightmares about these eyes.” It is noteworthy
that Brisco emphasized the eyes as being appellant’s distinguishing characteristic in view
of appellant’s challenge that the photographic lineup was suggestive because of the
alleged uniqueness of his beard.
In considering the alleged discrepancies between appellant’s and the others’ facial
hair, we hold the alleged difference was not so great as to be impermissibly suggestive.
See Mallard v. State, 661 S.W.2d 268, 277 (Tex. App.—Fort Worth 1983, no pet.)
(holding photo array was not impermissibly suggestive even though defendant was the
only participant who had facial hair); see also Ramirez v. State, No. 11-01-00230-CR, 7 2002 WL 32344501, at *2 (Tex. App.—Eastland July 25, 2002, no pet.) (mem. op., not
designated for publication) (overruling as irrelevant defendant’s contention that the other
men appearing in the photographic lineup “lacked the distinctive facial hair pattern which
he possessed”). All of the subjects had some form of light facial-hair growth. The fact
that the other men did not have identical features to appellant’s appearance does not
invalidate the lineup. See Dickson v. State, 492 S.W.2d 267, 271 (Tex. Crim. App.
1973); see also Chavez v. State, No. 14-07-00244-CR, 2008 WL 516782, at *3 (Tex.
App.—Houston [14th Dist.] Feb. 28, 2008, no pet.) (mem. op., not designated for
publication). Neither due process nor common sense requires that pictures in a lineup
be individuals whose every feature matches. See Dickson, 492 S.W.2d at 271.
Physical discrepancies between individual photographs in a lineup are not inherently
impermissibly suggestive. See Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App.
1984); see also Stevenson v. State, No. 05-01-000974-CR, 2002 WL 826954, at *3 (Tex.
App.—Dallas May 2, 2002, no pet.) (mem. op., not designated for publication).
Having held that the pretrial photographic lineup is not impermissibly suggestive,
we need not address the second element regarding whether there was a very substantial
likelihood of irreparable misidentification at trial. We overrule appellant’s second issue.
IV. ADMISSION OF AUTOPSY PHOTOGRAPHS
By his third issue, appellant challenges the trial court’s admission of three autopsy
photographs, State’s Exhibits 25, 26, and 30, over his rule 403 objection. See TEX. R.
EVID. 403. Appellant generally cites case authority, without application, regarding the
mutilation/alteration of a victim so as to enhance the photograph’s gruesomeness.
8 We review a trial court's determination on the admissibility of evidence for an
abuse of discretion and will only reverse if the decision to admit or exclude the evidence
was arbitrary and falls outside the “zone of reasonable disagreement.” Rodriguez v.
State, 203 S.W.3d 837, 843 (Tex. Crim. App. 2006); see Williams v. State, 301 S.W.3d
675, 690 (Tex. Crim. App. 2009). Rule 403 provides that evidence may be excluded “if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” TEX. R. EVID. 403. When performing a
rule 403 analysis, the trial court must consider “the host of factors affecting probativeness
. . . and balance those factors against the tendency, if any, that the photographs have to
encourage resolution of material issues on an inappropriate emotional basis.” Salazar v.
State, 38 S.W.3d 141, 152 (Tex. Crim. App. 2001) (quoting Ladd v. State, 3S.W.3d 547,
548 (Tex. Crim. App. 1999)).
In considering the admissibility of photographs, we consider several factors,
including, without limitation, the number and size of the photographs, whether they are
black and white or color, their gruesomeness, the detail shown, the availability of other
means of proof, the unique circumstances to the case, and “whether the body has been
altered since the crime in some way that might enhance the gruesomeness of the
photographs to the appellant’s detriment.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex.
Crim. App. 2006) (citing Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992));
Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) (en banc). Autopsy
photographs are generally admissible unless they depict mutilation caused by the
autopsy itself. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (en banc);
Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). 9 All three of the complained-of photographs are autopsy photos showing the back
of the victim’s head. The first photo shows the bullet’s entry point, but the bullet hole is
difficult to see because the victim’s hair is covering the site of the wound. The second
photo is a similar picture, but a small portion of the victim’s hair has been shaved around
the bullet’s entry point, so as to better expose the bullet hole in the back of the victim’s
head. Both photos focus on the entrance wound and are not particularly gruesome.
The third picture is a photo of the victim’s interior cranial cavity, which has been
opened to expose bullet’s pathway through the brain. With respect to this photo, the trial
court did inform the State that it was “very concerned about the photograph that is
gruesome,” but the court then allowed the State an opportunity to elaborate on its
relevance before making a ruling. Doctor Tommy Brown, the Jefferson County forensic
pathologist, testified about the entrance wound and the trajectory of the bullet, after which
the trial court determined the probative value of the photograph outweighed its prejudicial
effect and admitted it into evidence. Although this photo showed the victim’s dissected
cranium, it directly corresponded to Dr. Brown’s testimony regarding the bullet’s entrance
and trajectory and the cause of death. See Salazar, 38 S.W.3d at 151–52; see also
Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (en banc) (“Visual
evidence accompanying testimony is most persuasive and often gives the factfinder a
point of comparison against which to test the credibility of the witness and the validity of
his conclusions”).
The photos are highly probative of the manner of the death. The three 8x10
photos were used in progression, so as to explain where and how the bullet entered the
body; the distance traveled, trajectory, and path of the bullet; the location where the bullet 10 fragments came to rest in the victim’s head; and the mechanism of death. The trial
court’s admission of the photograph, after considering Dr. Brown’s correlative testimony,
was not outside the “zone of reasonable disagreement.” See Rodriguez, 203 S.W.3d at
843. Moreover, the manner of presentation left no danger the jury would attribute the
autopsy incision to appellant’s conduct. See Shuffield, 189 S.W.3d at 787.
We conclude the probative value of the autopsy photos is not substantially
outweighed by the danger of unfair prejudice or the cumulative or misleading nature of the
evidence. The trial court did not abuse its discretion by refusing to exclude these
photographs. We overrule appellant’s third issue.
V. CONFRONTATION RIGHT
By his fourth issue, appellant argues that the trial court erred by limiting his
cross-examination of Dr. Brown. Specifically, appellant’s counsel asked Dr. Brown
whether he observed a tattoo on the victim that said, “Louis Manor 14th Street G.” The
trial court sustained the State’s objection to the question, and appellant contends that the
trial court’s ruling violated his confrontation rights under the federal and state
constitutional right to confront witnesses. See U.S. CONST. amends. VI; TEX. CONST. art.
1, § 10.
During cross-examination, the State objected to the question’s relevancy and
because it “clearly desired [sic] to inflame the jury against the deceased, and it’s
prejudicial.” Appellant responded by informing the trial court, “I’m merely trying to show
how meticulous the doctor was in his external examination . . . .” Later, the trial court
held a hearing on a bill of exception, during which appellant contended that by sustaining
the State’s objection, the trial court improperly limited appellant’s cross-examination. 11 Appellant reiterated that his only intent underlying the questions was to elicit “the
procedures that [Dr. Brown] used to arrive at the conclusion that he made that this was
death due to a gunshot wound of the head . . . .” The trial court responded:
[I]n addition to the Court’s rulings [sustaining the State’s objection], the Court under Rule 403 is going to additionally find that . . . any probative value was substantially outweighed by the danger of unfair prejudice and needless presentation as well of [sic] cumulative evidence as this Court finds that [the State’s] cross-examination had effectively addressed that area and you had explored that area thoroughly without needing, this Court felt, the presentation of substantially prejudicial information concerning tattoos, which included what this Court drew a fair inference relation to [sic] a tattoo involving something that purported to reflect the deceased may have been affiliated with a gang.
A. Applicable Law and Standard of Review
“A primary interest secured by the Confrontation Clause is the right of
cross-examination.” Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) (citing
Davis v. Alaska, 415 U.S. 308 (1974)). Confrontation Clause issues are weighed on a
case-by-case basis, and a trial court must balance the probative value of proposed
evidence against the risk that admission might entail. See id. (citations omitted). The
trial court enjoys broad discretion in imposing reasonable limits on cross-examination to
avoid harassment, prejudice, confusion of the issues, endangering the witness, and the
injection of cumulative or collateral evidence. See id. The trial court exceeds its
discretion “only when it prohibits a defendant from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the
witness.” Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997) (en banc)
(citing Moody v. State, 827 S.W.2d 875, 891 (Tex. Crim. App. 1992)). We review the trial
12 court’s decision to limit cross-examination under an abuse of discretion standard.
Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
The trial court did not abuse its discretion. The information sought did not involve
“a prototypical form of bias” by Dr. Brown, but rather potentially prejudicial information
about the murder victim. Limiting prejudicial information during cross-examination is
within the broad discretion of the trial court. See Lopez, 18 S.W.3d at 222. Moreover,
appellant failed “to show the relevancy of the questions,” as required of the proponent of a
vein of cross-examination. See Carpenter v. State, 979 S.W.2d 633, 634–35 (Tex. Crim.
App. 1998) (en banc); see also Arroyo v. State, 259 S.W.3d 831, 835 (Tex. App.—Tyler
2008, no pet.). Appellant provided no “causal connection” between the presence of a
particular tattoo, which coincidentally sounded gang-related, and the credibility of Dr.
Brown or the thoroughness of his examination. The preclusion of cross-examination
regarding a potentially prejudicial tattoo did not preclude appellant’s ability to otherwise
impeach Dr. Brown or challenge the thoroughness of his forensic examination. We
overrule appellant’s fourth issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 18th day of April, 2013.