Opinion
No. 05-03-00084-CR
Opinion Filed December 31, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-40186-V. Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG.
OPINION
Jeffery Dwayne Gray appeals his conviction by a jury for the capital murder of Danny Rivera. He was sentenced to automatic life imprisonment by the court. Appellant raises five issues on appeal. He claims the trial court erred by: 1) granting the State's challenge for cause of one of the venire panel, 2) failing to charge the jury on the lesser included offense of robbery, 3) failing to charge the jury on the lesser included offense of burglary, 4) admitting inflammatory autopsy photographs of the deceased, and 5) overruling appellant's objection to the prosecutor's improper jury argument. For the reasons set forth below, we affirm the trial court's judgment.
Factual and Procedural Background
Betty Rivera testified she was home alone in bed at about noon when appellant broke into her home through the front door, pointed a gun at her, and demanded she give him $10,000 or he would kill her. Mrs. Rivera protested that she did not know anything about any $10,000, complied with appellant's order to get back into bed, and tried to reach a .357 magnum gun she had in the headboard. Mrs. Rivera testified that appellant saw the gun and took it. Also, appellant took the phone by the headboard, a nine-millimeter gun, and a pearl-handled knife that were also in the bedroom. Appellant then confined Mrs. Rivera to the bathroom with threats of violence while he ransacked the house. Mrs. Rivera testified her husband was out running errands when appellant broke into their home. While she was in the bathroom, she heard her husband return through the back door, and she heard him yell at someone to get out of his house. When she heard her husband's voice, Mrs. Rivera left the bathroom and headed towards the living room. She heard two shots and saw her husband in the entryway of their home clutching his chest. Appellant was running to his car in front of their house. Mr. Rivera died of a gunshot wound to the chest. Appellant's brother testified appellant told him he had broken into a house, taken some jewelry, and killed the man who lived there. Appellant's brother reported this conversation to the police. The police arrested appellant and eventually traced the murder weapon and some jewelry stolen from the Rivera home back to him. Appellant was convicted of capital murder by a jury and sentenced to mandatory life imprisonment.Challenge for Cause of Member of Venire Panel
In his first issue appellant complains the trial court erred in granting the State's challenge for cause of venireman Steele over appellant's objection. Venireman Steele stated he would not convict anyone on circumstantial evidence alone. The State challenged him for cause, the court granted the State's challenge, and appellant objected. "To show error in the trial court's grant of a State's challenge for cause, an appellant must show either that the trial court applied the wrong legal standard in sustaining the challenge or that the trial court abused its discretion in applying the correct legal standard." Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App. 1999). The State is entitled to challenge a potential juror for cause if that juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon Supp. 2004). It is the burden of the challenging party to demonstrate that the venireman he seeks to challenge is in fact incapable of, or at least substantially impaired from, following the law. See Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App. 1995). In Castillo the court held that before a court could grant the State's challenge for cause for a juror's categorical refusal to convict upon the testimony of a single eyewitness, it must be shown that the juror's refusal was predicated upon something other than his understanding of proof beyond a reasonable doubt. Id. "[A] venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law." Id. at 533. However, a venireman who would require more evidence than the testimony of a single eyewitness even if that testimony were enough to convince him of guilt beyond a reasonable doubt, is challengeable for cause. Id. at 534. If a State's contested challenge does not involve a constitutional issue, a reviewing court will disregard any error in granting the State's challenge for cause unless it affected substantial rights. Jones v. State, 982 S.W.2d 386, 391-92 (Tex.Crim.App. 1998). The erroneous grant of the State's challenge to a veniremember for cause will require reversal only if the error actually deprived the defendant of a lawfully constituted jury. See Ladd, 3 S.W.3d at 562.Application of Law to Facts
In its voir dire to the jury the State presented the law on circumstantial evidence as follows:MR. MONTALVO: And the laws in the State of Texas allow for someone to be convicted of any crime, including capital murder, based solely on circumstantial evidence. And if you believe the evidence beyond a reasonable doubt, of course.The State doesn't have a method that the case has to be proven to you. It doesn't have to be proven to you through direct evidence or through circumstantial evidence. The State just must prove the case to you beyond a reasonable doubt, prove the elements that I read to you in the indictment beyond a reasonable doubt. Now direct evidence of course is eyewitness testimony. Circumstantial evidence is things like DNA, fingerprints, ballistics and blood evidence, things of that sort. Is there anyone here that would have a problem convicting somebody just based on circumstantial evidence? The prosecutor proceeded to question particular members of the panel, and at one point stopped and clarified as follows:
MR. MONTALVO: Now you mentioned something I forgot that I needed to address. You said without a doubt. Okay? We're talking about beyond a reasonable doubt.
PROSPECTIVE JUROR TAYLOR: Beyond a reasonable doubt, yeah, I understand that.
MR. MONTALVO: You mentioned it, and I'm glad you mentioned it, because if you don't have a doubt, you're a hundred percent sure, usually you wouldn't be sitting out there. You'd be getting ready to get up in that seat up there and testify in front of twelve people. Because if you're a hundred percent sure, usually, you know, you've seen it happen firsthand
Well circumstantial evidence can be anything. Let's say-well, before I do that example, let me ask. Does anyone here have a problem with circumstantial evidence, with convicting someone based on circumstantial evidence? Mr. Steele.
PROSPECTIVE JUROR STEELE: Yes.
MR. MONTALVO: Even though that's the law? The law says that people can be convicted —
PROSPECTIVE JUROR STEELE: Yes, I believe that you need more than just circumstantial evidence to convict anyone.Based on the foregoing exchange the State challenged Mr. Steele for cause and the trial court granted the challenge. Appellant objected and the trial court overruled his objection. The State argues Mr. Steele showed "bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction and was therefore properly challengeable for cause." Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon Supp. 2004). According to the State, Mr. Steele would hold the State to a higher burden of proof than allowed by law, because even if the evidence established the appellant's guilt beyond a reasonable doubt, Mr. Steele would not convict if the only evidence were circumstantial. The State analogizes this to the situation where there is testimony from only one witness, and a veniremember will not convict, even if he believes the testimony and it convinces him beyond a reasonable doubt, because he feels there should be more evidence than one witness's testimony. In that case the juror is not following the law because he is requiring more than proof beyond a reasonable doubt and he may be challenged for cause. See Castillo, 913 S.W.2d at 533. Before the State asked the general question whether anyone would have a problem convicting based only on circumstantial evidence, it explained that regardless of the type of evidence, the State was required to prove guilt beyond a reasonable doubt. The State explained its burden of proof immediately before questioning the jurors regarding their ability to convict based on circumstantial evidence. In this instance, the question to the panel members regarding circumstantial evidence implicitly included the condition that they found the evidence sufficient beyond a reasonable doubt. If Mr. Steele answered that despite his belief that guilt had been shown beyond a reasonable doubt he would not convict based on circumstantial evidence alone, he was properly struck for cause. See Castillo, Id. Appellant argues that Mr. Steele was not asked whether he could convict regardless of whether he found guilt had been proven beyond a reasonable doubt, and therefore he was improperly struck. See Castillo, Id. Even if the trial court did err in granting the State's challenge for cause, appellant has not shown he was harmed by such error. Appellant argues that error is presumed because the State had exercised all of its peremptory challenges, citing, Zinger v. State, 932 S.W.2d 511, 514 (Tex.Crim.App. 1996). In Zinger the court relied on its prior decision in Payton v. State, 572 S.W.2d 677 (Tex.Crim.App. 1978). However Payton was overruled in Jones, 982 S.W.2d at 394. In Jones the court held that if the granting of a State's challenge for cause was erroneous, but not of constitutional magnitude, the error would be disregarded unless it affected substantial rights. Id. at 391-92. The court returned to the previous rule that reversal is required "only if the record shows that the error deprived the defendant of a lawfully constituted jury." Id. at 394. One rationale for this holding is that a defendant has no right to have a particular venire member serve on the jury. Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App. 2001) (distinguishing Jones from case where defendant's challenge for cause has been denied because defendant has a right not to have a properly challengeable venire member serve on a jury). We see no issue of constitutional magnitude in the State's challenge for cause, and there is no indication that any error deprived appellant of a fair and impartial jury. See Ladd, 3 S.W.3d at 562. "Even assuming that the trial court erred in its application of Article 35.16(b)(3), appellant has not shown that the error deprived him of a lawfully constituted jury. Without such a showing, reversal is not required." Feldman v. State, 71 S.W.3d 738, 749 (Tex.Crim. App. 2002). Appellant's first issue is resolved against him.
Lesser Included Offenses
In his second and third issues appellant contends the trial court erred in overruling his objections to the charge for failing to include the lesser included offenses of robbery and burglary. A two-prong test must be met before a charge on a lesser included offense is given: "first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim. App. 1993). However, merely because a lesser offense is included within the proof of the offense charged does not mean that a charge on the lesser offense is required. The charge will be required only if there is evidence which shows that if the appellant is guilty, he is guilty only of the lesser offense. Broussard v. State, 642 S.W.2d 171, 173-74 (Tex.Crim.App. 1982). There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. There may be evidence which refutes or negates other evidence establishing the greater offense, or the evidence presented may be subject to different interpretations. Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App. 1992). It is well established that if evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the court's charge. Id. at 391. A defendant may preserve error to the court's charge by " either written objection or written requested instruction. A defendant is not required to do both." James v. State, 774 S.W.2d 418, 420 (Tex. App.-Dallas 1989, pet. ref'd).Application of Law to Facts
Appellant objected because the court did not charge the jury that burglary and robbery were lesser included offenses. Appellant did not submit requested instructions to the jury, but dictated his objections to the charge to be reduced to writing later in the statement of facts for the record. The trial court overruled appellant's objection. Appellant's objection was sufficient to preserve error for our review. James, 774 S.W.2d at 420. Appellant was indicted for capital murder. The indictment alleged he did "intentionally cause the death of DANNY RIVERA, . . . by shooting the said deceased with a firearm, a deadly weapon, and the defendant was then and there in the course of committing and attempting to commit the offense of Robbery and Burglary of BETTY RIVERA." A person commits capital murder if the person intentionally commits a murder in the course of committing or attempting to commit kidnapping, burglary, robbery . . ." Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). The court included in its charge an instruction on the lesser included offense of murder. A person commits murder if he "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. § 19.02(b)(2) (Vernon 2003). The court instructed the jury that burglary and robbery are felonies. The trial court charged the jury that if they found appellant committed or attempted to commit burglary or robbery of Betty Rivera and in so doing "committed or attempted to commit an act clearly dangerous to human life, to-wit: shooting Danny Rivera with a firearm, a deadly weapon, that caused the death of the said Danny Rivera, then you will find the defendant guilty of murder." Under this charge the State had to prove appellant guilty of "committing or attempting to commit burglary or robbery" to prove the offense of murder or capital murder. However, to warrant a lesser included offense instruction of burglary or robbery, there must be some evidence that would warrant a jury's finding that if appellant was guilty he was guilty only of robbery or burglary. Rousseau, 855 S.W.2d at 673. The court instructed the jury that a person commits robbery if in the course of committing theft, and with intent to obtain or maintain control of the property, he threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). The court instructed the jury that a person commits burglary if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit theft. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). The testimony of Betty Rivera offered ample evidence that appellant committed the offenses of robbery and burglary. Appellant maintains there was also evidence that he committed only the offenses of robbery or burglary. A lesser included offense instruction may be warranted if there is evidence which refutes the evidence establishing the greater offense or if the evidence is subject to different interpretations. Saunders, 840 S.W.2d at 391-92. However, even appellant's interpretation of the evidence does not support his claim he could have been guilty of only a robbery or burglary and does not explain the death of Danny Rivera. There was uncontroverted evidence introduced at trial that Danny Rivera was killed by a bullet from his own .357 gun fired from at least 48 inches away. In his statement to police appellant admitted stealing a nine-millimeter pistol, a .357 pistol, and miscellaneous jewelry and cowboy boots from the Rivera home. The .357 pistol was recovered by the police from a man who said he bought it from appellant. Appellant did not testify at trial, but his statement to the police and a note he wrote to his brother were admitted in evidence. In his statement to police appellant stated he had planned on burglarizing a house and "After picking up several things I was leaving, and a man entered and started hollering and a firearm discharged. During this robbery I think I possibly fired the gun, however, not certain." Appellant's brother testified appellant told him he had broken into a house, gotten into an argument with someone who was there, and "He said they struggled with the gun, the gun went off and the guy shot himself." Appellant's brother notified the police about his conversation with appellant. Later at the police station appellant wrote a note to his brother stating "You just murdered me just like I did that guy that was an accident." The interpretation of the evidence appellant offers to support his argument for a lesser included offense instruction goes to his intent. Cf. Navarro v. State, 863 S.W.2d 191, 206 (Tex. App.-Austin 1993) (holding in case in which State showed appellant had killed another person with a firearm, a deadly weapon per se, that court did not err by refusing to give lesser included offense instructions of involuntary manslaughter, criminally negligent homicide, or aggravated assault based on speculation on appellant's state of mind and his out of context remark that he did not "mean to" kill) ( pet. ref'd 891 S.W.2d 648 (Tex.Crim.App. 1994)). If the jury had believed appellant did not specifically intend to kill Danny Rivera, they could have refused to find him guilty of capital murder and found him guilty of the lesser included offense of murder in accordance with the trial court's charge. See Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 2003). Appellant pled not guilty and the jury could have found he committed no crime. However, if appellant committed a crime, that crime resulted in Danny Rivera's death as a result of a gunshot wound. The evidence does not support a finding of only robbery or burglary. Appellant's second and third issues are resolved against him.Autopsy Photographs
In his fourth issue appellant complains of the admission of autopsy photographs he alleges were inflammatory. Although relevant, 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, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. The admissibility of a photograph is within the sound discretion of the trial judge. See Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). "Generally, a photograph is admissible if verbal testimony as to matters depicted in the photographs is also admissible." Id. Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. See Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). In determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice the court may consider many factors, including: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether the body depicted is naked or clothed. Id. at 196. Autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal cause of death. "[W]here pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, a trial judge does not abuse his discretion in admitting these photographs. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim. App. 1983).Application of Law to Facts
Appellant objected at trial to the admission of State's Exhibits 35-39 on the ground that their prejudicial effect outweighed their probative value, and were unnecessarily duplicative of other evidence. These exhibits are autopsy photographs which were introduced during the testimony of the medical examiner. The photographs are in color and depict the nude body of the deceased victim, but they are not particularly gruesome or vulgar. See Barnes v. State, 876 S.W.2d 316, 326 (Tex.Crim.App. 1994). The photographs did not reveal any damage caused by the autopsy and were used by the medical examiner during her testimony to explain the nature of the victim's wounds. See Harris, 661 S.W.2d at 108. The photographic exhibits here illustrated and clarified the medical examiner's description of the injuries, and the trial court did not abuse its discretion in admitting them. We resolve appellant's fourth issue against him.Jury Argument
In his fifth issue appellant complains of a portion of the State's closing argument in which the State asked the jury to speculate what would have happened if the victim had not returned home when he did. Proper jury argument falls into one of four areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to arguments of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. at 115 (citations omitted). The standard of harm for comments upon matters outside the record is that for nonconstitutional errors. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). Nonconstitutional errors that do not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). In evaluating harm the courts look to three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim. App. 1998) (op. on reh'g).Application of Law to Facts
In his fifth issue appellant complains of the following portion of the State's closing argument:"Have you thought to yourself, what if Danny Rivera hadn't come home when he did? Would Mrs. Rivera still be here to testify? Would he have killed her, leaving no witness behind? We don't know that. But based on how badly he wanted to get away in killing Danny Rivera, I think you can deduce from the evidence Betty Rivera would not be here had her husband not come home.
MR. HUFF: Your honor, I object to counsel speculating about another crime being committed in this offense for which there's no evidence.
THE COURT: Overruled. It's a jury argument."Appellant argues the State improperly invited the jury to speculate on an extraneous offense for which there was absolutely no evidence and which never occurred. Appellant contends the State's argument exceeded the permissible bounds of jury argument and was a willful and calculated effort to deprive appellant of a fair and impartial trial. See Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1977). The State argues its comment fell into one of the permissible areas of proper jury argument because it was a reasonable deduction from the evidence. See Wesbrook, 29 S.W.3d at 115. "[C]ounsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith." Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). Given the fact that Danny Rivera was killed, the possibility that his wife might have been killed had he not returned home and interrupted the crime in progress, was a reasonable deduction from the evidence. Even assuming the State exceeded the permissible bounds of jury argument, any error was harmless. The trial court overruled appellant's objection, so no measures were adopted to cure any error. However, even if the State's comments were improper, when viewed in the context of the death of Danny Rivera, these comments did not constitute harmful error. The State did not dwell on this argument, and given the abundance of evidence against the appellant, including the testimony of Betty Rivera and the physical evidence, the likelihood of conviction without this argument was strong. We resolve appellant's fifth issue against him.