Petruccelli v. State

174 S.W.3d 761, 2005 Tex. App. LEXIS 6593, 2005 WL 1981396
CourtCourt of Appeals of Texas
DecidedAugust 17, 2005
Docket10-03-00034-CR
StatusPublished
Cited by37 cases

This text of 174 S.W.3d 761 (Petruccelli v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petruccelli v. State, 174 S.W.3d 761, 2005 Tex. App. LEXIS 6593, 2005 WL 1981396 (Tex. Ct. App. 2005).

Opinions

OPINION

FELIPE REYNA, Justice.

Anthony Petruccelli was convicted of the aggravated assault of his wife, Carol. He was sentenced to seventy years’ confinement. He argues on appeal that (1) the trial court erred in admitting and publishing to the jury in the guilVinnocence phase of the trial a “day in the life” video depicting Carol’s activities at a rehabilitation facility; (2) there is legally insufficient evidence to prove Petruccelli’s prior conviction; (3) there is legally insufficient evidence to prove that his hands were deadly weapons; and (4) the trial court erred in admitting prejudicial photographs of Carol in the hospital. We affirm.

Background

On an August morning at 9:15am, Everett Platt, Petruccelli’s neighbor, noticed that the rear window of Petruccelli’s truck was smashed. Platt stopped and asked Petruccelli what happened to his window. Petruccelli stated that he threw a pipe into the back of his truck, but it bounced up and hit the rear window. Platt inquired about Petruccelli’s wife, Carol, and he replied that “the bitch is in the bedroom passed out, drunk on the bed.” He explained that he found Carol drunk at a bar last night, brought her home, and that he may have “backhanded” her.

At 10:30am, Platt received a call from Petruccelli who was worried that he could not wake Carol up. He said that she was making gurgling sounds and asked Platt what he should do. Platt told Petruccelli to take Carol to a hospital. At the same time, the Falls county Sheriffs Department received a 9-1-1 call, but all that could be heard was a beeping noise. After tracing the call to Petruccelli, Sheriff Jerry Cowin went to investigate. Petruccelli met Cowin at the front door and told him [765]*765that everything was alright, and that he had just misdialed. Cowin left.

At noon, Platt drove by Petruccelli’s house. He talked to Petruccelli who again expressed concern over Carol’s condition, that she continued to make noises, and that she would not wake up. Again, Platt told him to take Carol to the hospital. Petruccelli finally agreed and asked Platt for his help in getting her to his truck. Platt followed Petruccelli into the house where he saw Carol laying half on the bed and half on the floor with bruises covering her face, eyes, and shoulders. As they were carrying her limp body to the truck, Platt heard Petruccelli say “Oh baby, look what I’ve done to you.”

At the hospital, Carol was listed in critical condition. Her head and body were covered in bruises. She suffered severe head trauma, causing her to have problems with her memory, her thought processes, her speech, and her balance. She also lost most of her vision. Her injuries required that she be placed in a rehabilitation facility.

While at the hospital, Petruccelli told Platt, several medical professionals, and police officers that he did or might have slapped Carol around a few times, backhanded her, hit her, or accidentally hit her. Subsequently, Petruccelli was charged with aggravated assault.

Finding that he used his hands as a deadly weapon, a jury found Petruccelli guilty of aggravated assault. In the punishment phase of the trial, it was shown that Petruccelli had a history of beating his wife and that he had a prior felony conviction for assault and armed robbery. Petruccelli was sentenced to seventy years’ confinement.

Admission of Evidence—

The Photographs

Petruccelli argues in his fourth issue that the trial court erred in admitting photographs of Carol in the hospital because the probative value of the photographs is substantially outweighed by the danger of unfair prejudice.

We review a court’s decision to admit evidence for an abuse of discretion. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App.1999); Gipson v. State, 82 S.W.3d 715, 721 (Tex.App.-Waco 2002, no pet.). Under Rule 403, a trial court may exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid 403. When conducting a Rule 403 analysis, we look to four non-exclusive factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004) (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App.1990)).

Six 14 by 24 inch photographs and four 4 by 6 inch photographs were admitted into evidence. They all portray Carol unconscious in her hospital bed, shortly after she was admitted. Most portray her nude in various positions in order to adequately display the extent of her injuries. Bruises on her arms, breasts, back, buttocks, thighs, and knees are clearly visible along with standard hospital equipment. Also, some pictures depict a close-up of Carol’s face showing bruising around her eyes, a cervical collar, and various tubes entering her mouth and nose.

The State argues that the probative value of this evidence is not outweighed by its unfairly prejudicial effect because proof of [766]*766serious bodily injury is an element of the offense of aggravated assault. Tex. Pen. Code Ann. § 22.02(a)(1) (Vernon 2003). While it is true that the State has the burden to prove serious bodily injury beyond a reasonable doubt, Petruccelli stipulated that there was serious bodily injury. Therefore in this respect, the photographs have limited probative value.

However, one of Petruccelli’s defensive theories was that Carol received her injuries by twice falling out of his moving truck. The State’s expert witnesses emphatically denied that Carol’s injuries were of the sort typically received when a person falls out of a moving vehicle. They explained that if Petruccelli’s theory were true, Carol should have numerous cuts and abrasions usually described as “road rash,” and they referred to Carol’s hospital photographs to demonstrate the absence of road rash on Carol’s body. Thus these photographs are directly relevant and probative to counter the defense’s theory, and the State’s need for this evidence is clear. See Montgomery, 810 S.W.2d at 387-88 (holding evidence is admissible to rebut a defensive theory); Richards v. State, 54 S.W.3d 348, 350 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (holding that despite the defendant’s stipulation to the cause of death, photographs were probative to prove intent).

Because the photographs are genuinely helpful to the jury in making its decision, the photographs are admissible unless the emotional and prejudicial impact of the pictures substantially outweighs their helpfulness. Erazo, 144 S.W.3d at 490. We also consider “the number of photographs, the size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.” Id. at 489. While some of the photographs are fairly large, they number only ten, and none of them portray blood or bleeding wounds. The photographs show a very bruised woman, but they are certainly not so gruesome as to impress the jury in some irrational, yet indelible way. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
174 S.W.3d 761, 2005 Tex. App. LEXIS 6593, 2005 WL 1981396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petruccelli-v-state-texapp-2005.