In The Court of Criminal Appeals of Texas
Ronald Jeffrey Prible, Jr., Appellant
The State of Texas
ON DIRECT APPEAL
Of cause no. 9211260 from the 351st District Court
J., delivered the opinion of the Court in which Meyers,
Price, Womack, Johnson and Holcomb, JJ., joined.
Keller, P.J., Keasler and Hervey, JJ., concurred.
O P I N I O N
2002 appellant was convicted of capital murder for intentionally
and knowingly causing the deaths of Esteban Herrera and Nilda
Tirado in the same criminal transaction. (1)
Pursuant to the jury's answers to the special issues set forth in
Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and
2(e), the trial court sentenced appellant to death. Direct appeal
to this Court is automatic. (2)
Appellant raises eight points of error. We will affirm.
In March and
April, 1999, appellant committed a series of bank robberies in
Houston, Texas. He purportedly planned to use the proceeds of the
robberies to go into business with his friend, Esteban ("Steve")
Herrera. Appellant's plan never came to fruition, however, because
Steve Herrera and his family were murdered in their home in
Houston in the early morning hours of April 24, 1999. Appellant
was the last person seen with Steve at his house prior to the
Herrera's brother, Edward, testified that he and Steve both sold
drugs, and he often supplied Steve with drugs. A week before the
murders, Edward went to the house that Steve shared with his
girlfriend, Nilda Tirado, and their three children. Edward, Steve,
and appellant played pool and drank beer in Steve's garage that
night. When Steve went inside the house, appellant told Edward
that he and Steve planned to open a bar together. Edward testified
that Steve never told him that he had any plans to go into
business with appellant. Edward saw appellant at Steve's house
again on the evening of April 21. They played pool in the garage,
and Steve went inside the house at one point. While Steve was
inside, Edward saw appellant take a large amount of money out of
his own wallet and count it.
On April 23,
Steve paged Edward at 9:00 p.m. and 11:00 p.m. When Edward
returned his pages, Steve asked if Edward could get him some
cocaine. Steve called Edward from appellant's cell phone at 2:00
or 2:30 a.m. and said he was on his way home. Edward received
pages again at 3:00 and 4:00 a.m. He spent the night at a friend's
house that night, and he did not learn what happened to Steve and
his family until the next morning.
brother-in-law, Victor Martinez, testified that he went to Steve's
house in his white Ford Escort shortly after 10:00 p.m. on April
23. When he arrived, the garage door was raised and Steve and
appellant were drinking beer and playing pool in the garage.
Sometime around midnight, Nilda opened the door and called to
Steve. He walked over to her and they exchanged a few words and a
kiss, then she went back inside and the men continued playing
pool. During the course of the evening, Victor Martinez heard
Steve and appellant talk about trying to get some cocaine from
to go to a nightclub, Rick's Cabaret, at 12:30 a.m., so Steve
lowered the garage door, and the three men left in Martinez's car.
They arrived at around 1:00 a.m. and left sometime after 2:00 a.m.
It took them about fifteen or twenty minutes to drive back to
Steve's house. On the way home, Steve used appellant's phone to
page Edward. When they returned, they talked in front of the house
while Steve and appellant smoked marijuana, then Steve and
appellant went inside the garage, and Martinez drove home.
Martinez testified that when he left, the garage door was raised
and Steve and appellant were playing pool. Martinez arrived home
at about 3:30 a.m. and went directly to bed. He testified that he
never saw appellant enter Steve's house that evening.
Francisco, who lived across the street from Steve Herrera,
testified that he saw Steve in his driveway with two of his
children at 4:30 or 5:00 p.m. on April 23. At 9:00 or 9:30 p.m.,
he noticed that Steve's garage door was lowered to shoulder-level
and that there were people inside the garage listening to music.
Some vehicles were parked in front of the house, including a white
car that looked like a Ford Escort. He went to bed at about 12:30
a.m. When he went outside at approximately 6:00 a.m. the next
morning, Steve's garage door was lowered and he saw smoke and
heard loud music coming from the house. No one answered the front
door when Francisco and his wife rang the doorbell, so they tried
to enter the house through the side door to the garage. The door
was hot, and there was smoke coming out from under it. Francisco
kicked the door open and saw Steve lying face-down in a pool of
blood inside the garage, so he told his wife to call 911.
arrived shortly thereafter and found Nilda's badly burned body on
a couch in the living room. The fire was confined to the couch
area and was merely smoldering at the time, but the house was
filled with smoke. Firefighters also discovered the bodies of
Steve's seven-year-old daughter, Valerie Herrera, and Nilda's
seven-year-old daughter, Rachel Elizabeth Cumpian, in one bedroom,
and the body of Steve and Nilda's twenty-two-month-old daughter,
Jade Herrera, in the master bedroom. The children's bodies were
covered in soot, and they appeared to have died from smoke
Marshall J. Kramer testified that flammable liquids were used to
deliberately set the fire in the living room. A burned red plastic
gasoline container, an aerosol can, and a roll of paper towels
soaked in a flammable liquid were on the living room floor, and a
burned one-gallon metal can was on the couch next to Nilda's body.
The metal can contained Kutzit, an extremely flammable liquid that
is normally used to dissolve tile glue.
of Kutzit were found in lockers inside the garage and in a storage
shed behind the house. Nilda was lying face-down on the couch, and
there was blood around her head. Her body was "charred from the
exterior." Kutzit or gasoline had been poured on her body and the
couch. Police found a spent bullet under the carpet where the
couch was located. There were no signs of forced entry, and Steve
had a wallet in his back pocket that contained approximately $900.
examiner who performed the autopsies testified that the three
children died from inhaling toxic levels of soot and carbon
monoxide. Steve's death was caused by a penetrating gunshot wound
to the back of his neck which severed the connection between his
brain and spinal cord. The stippling around the wound indicated
that the gun was fired within eighteen inches of his body. There
was no exit wound and the bullet was recovered from his body.
Nilda died from a perforating gunshot wound to her neck that
severed her spinal cord. The bullet entered her neck on the back
right side and exited the front left side. She suffered severe
burns along the entire back side of her body that were consistent
with a flammable substance being poured on her body and set afire
after she had been shot. Sperm cells were found on oral, vaginal,
and anal swabs taken during a forensic exam of her body. Steve's
DNA was consistent with the DNA on the vaginal and anal swabs.
Appellant's DNA was consistent with the DNA on the oral swab.
gave two written statements to police. In his first written
statement, he said Steve picked him up at 8:00 or 9:00 p.m. on
April 23, and they went over to Steve's house to play pool and
drink beer in the garage. Martinez joined them at about 11:00 p.m.
They later went to Rick's Cabaret in Martinez's car and stayed
until 2:00 a.m. Martinez drove them back to Steve's house, where
they again played pool and drank beer, and Martinez left twenty or
thirty minutes later. At some point, Nilda opened the door leading
into the garage and gave Steve "a look," so appellant "knew it was
time to leave." Steve drove him home in his black Honda Prelude at
4:00 a.m., and he went straight to bed.
later changed his story when a detective asked him what he would
do if his semen was found in or on Nilda's body. In his second
written statement, he added that he had been having an affair with
Nilda. He said that he went inside the house at one point during
the evening while Steve remained in the garage. He and Nilda went
into a bathroom, and he bent her over the sink and began having
sex with her. They stopped because they mistakenly thought they
heard Steve enter the house. Then Nilda began "sucking [his] dick
and jacking [him] off," and he did not remember "if [he] came or
not." He went back into the garage afterwards and told Steve to
take him home. He claimed that he and Nilda had only "messed
around" and kissed on prior occasions, and that night was the
first time they had sex. He said he had never told anyone about
their affair because it would ruin Nilda's reputation.
searched the home where appellant lived with his parents and found
guns, boxes of ammunition, and receipts for guns and ammunition.
Police also found a semiautomatic-pistol magazine that did not fit
any of the weapons that were recovered. Firearms examiner Matthew
Clements examined the spent bullet found in the living room and
the bullet recovered from Steve's body and concluded that they
were fired from the same weapon. Clements testified that the
magazine recovered from appellant's home was identical in design
to a magazine for a nine-millimeter Ruger P85 pistol.
In May 1999,
shortly after the murders of Steve Herrera and Nilda Tirado,
appellant confessed to committing March and April bank robberies,
and he was convicted in federal court in September 1999. Michael
Beckcom, a fellow inmate at the federal prison in Beaumont,
testified against appellant at trial. Beckcom testified that
appellant told him that he committed the murders. Appellant
explained to Beckcom that he killed Steve because he "took
$250,000 of [his] hard-earned money." (4)
He said that he and Steve argued about the money in the "pool room,"
and that he thought Steve was going to kill him, so he shot him in
the back of the head. Nilda came into the garage during the
argument and ran inside the house to call the police. He shot
Nilda in the back of the head and she fell face down onto the
couch. He looked for the money inside the house and could not find
it. He stated that he set the fire to cover his tracks, and that
the children were in bed and died from smoke inhalation. He
bragged to Beckcom, "Anybody that can go into a house and take out
a whole family and get out without being seen is a bad mother
fucker, and I'm that mother fucker."
testified that appellant told him that the police had DNA evidence,
but Steve and Nilda had an open relationship, and it was common
knowledge that he and Nilda were having an affair. He said police
were looking for a .38 caliber pistol, but that gun was not the
murder weapon, and it was "clean" because he had sold it to "some
girl." He also stated that police found two drops on his shoe that
looked like blood but were actually catsup.
Alvarez and Cynthia Garcia Flores, two of Nilda's closest friends,
testified that they had no knowledge of the alleged affair.
Moreover, Ms. Alvarez testified that Nilda once told her that she
did not like appellant and that he gave her "the creeps." Ms.
Flores also testified that Nilda once told her that she was tired
of appellant being at her house and that he gave her "the creeps."
Vincent Flores, Cynthia's husband, testified that he did not
believe that Steve and Nilda had an open relationship, and he said
that Steve once got angry at him for "putting a move" on Nilda.
defense case-in-chief, appellant's mother, Sandra Prible,
testified that she met Beckcom while visiting appellant at the
federal prison, after she had sent appellant a copy of the
probable-cause affidavit in his capital-murder case. J. Brent
Liedtke, a former attorney and fellow inmate at the federal prison,
testified that he saw the copy of the probable cause affidavit
when he helped appellant with his case, and he saw appellant show
it to other inmates as well. Brian Maurice Fuller, a former
federal prison inmate, testified that, in his opinion, Beckcom was
opportunistic and untruthful. Christine Bartolla, appellant's
friend, testified that she bought a .38 Special Taurus revolver
from appellant in November 1998 and returned the gun to his father
in November 2001. Appellant's former neighbor, Christina
Gurrusquieta, testified that she looked out her window on the
night of the murder and saw appellant and Steve talking in
appellant's driveway sometime after 1:00 a.m., then Steve left and
appellant went inside the house.
SUFFICIENCY OF THE EVIDENCE
In his sixth
point of error, appellant argues that the evidence is legally
insufficient to support his conviction for capital murder. In
evaluating the legal sufficiency of the evidence, we must view the
evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.
appellant of capital murder, the jury had to find beyond a
reasonable doubt that appellant murdered Nilda Tirado and Steve
Herrera by shooting each of them with a firearm during the same
criminal transaction. The State presented evidence that: 1)
appellant was the last person seen with Steve at the house prior
to the murders; 2) he had a motive to kill Steve; 3) the bullets
that killed Nilda and Steve were fired from the same weapon; 4)
appellant's sperm was deposited in Nilda's mouth at some point
prior to her death; 5) a fire was set to destroy physical evidence,
including evidence of appellant's DNA; and 6) appellant admitted
to Beckcom that he committed the murders.
argues that Beckcom's testimony was "questionable" because he
testified in the hope of having his own sentence reduced and he "could
have learned the details of the alleged offense through the
probable cause affidavit in the appellant's possession." Beckcom,
however, testified about some details that were not contained in
the probable cause affidavit. For example, he knew that there was
a pool table in the garage and appellant had drops of catsup on
his shoe. Beckcom's testimony also contradicted or excluded some
details that were contained in the probable cause affidavit. He
testified that appellant told him that Steve "took $250,000 of [his]
hard-earned money," but the amount recited in the probable cause
affidavit was $45,000. He knew that the police had DNA evidence
and that appellant claimed to have had an affair with Nilda, but
he apparently did not know about appellant and Nilda's alleged
sexual encounter in the bathroom while Steve was in the garage.
The jury was free to take these discrepancies into account and to
believe or disbelieve Beckcom's testimony based on their
evaluation of his credibility.
asserts that the scientific testimony was "equally questionable"
because the medical examiner could not conclusively determine the
exact time at which appellant's semen was deposited in Nilda's
mouth. Appellant claimed that their sexual encounter was
consensual, but other evidence supported the State's theory that
the encounter was non-consensual. Only Nilda's body was set on
fire-presumably to cover up evidence of sexual assault-and Nilda's
friends testified that she disliked appellant.
further contends that is it "inconceivable" that he committed the
offense because "[t]here was no evidence of blood, soot, or any
combustible materials either on [him] or his clothing." The
evidence showed that the murders took place in the early morning
hours of April 24, and the police did not arrive at appellant's
house until approximately 5:00 p.m. that evening. The jury could
have rationally concluded that appellant had ample time to dispose
of this type of physical evidence.
Based on the
evidence at trial, a rational jury could have concluded beyond a
reasonable doubt that appellant committed the murders of Nilda
Tirado and Steve Herrera during the same criminal transaction.
(6) Point of error six is overruled.
seventh point of error, appellant contends that the evidence is
factually insufficient for the same reasons expressed in his sixth
point of error. In a factual-sufficiency review, we view all of
the evidence in a neutral light, and we set the verdict aside only
if the evidence is so weak that the verdict is clearly wrong and
manifestly unjust, or the contrary evidence is so strong that the
standard of proof beyond a reasonable doubt could not have been
met. (7) A clearly wrong and unjust
verdict occurs where the jury's finding is "manifestly unjust," "shocks
the conscience," or "clearly demonstrates bias."
case, the same facts that make the evidence legally sufficient
also make it factually sufficient. The evidence supporting the
verdict was not so weak as to be clearly wrong and manifestly
unjust, nor was the contrary evidence so strong that the standard
of proof beyond a reasonable doubt could not have been met.
(9) Point of error seven is overruled.
EVIDENCE OF THE CHILDREN'S DEATHS
Evidence of the Children's Deaths and Rule 404(b)
In his first
point of error, appellant argues that the trial court improperly
admitted evidence of extraneous offenses under Rule 404(b).
Appellant was charged only with causing the deaths of Steve
Herrera and Nilda Tirado, but the trial court permitted the State
to introduce evidence that their three children also died from
smoke inhalation caused by the fire.
court's ruling on the admissibility of extraneous offenses is
reviewed under an abuse of discretion standard.
(10) As long as the trial court's ruling was within the
"zone of reasonable disagreement," there is no abuse of discretion,
and the trial court's ruling will be upheld.
evidence of other crimes, wrongs, or acts is not admissible "to
prove the character of a person in order to show action in
conformity therewith," it may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
(12) The list of exceptions under Rule 404(b) is "neither
mutually exclusive nor collectively exhaustive."
(13) This Court has held that such extraneous-offense
evidence is also admissible to corroborate certain kinds of
statements and testimony, such as to rehabilitate an impeached
witness or corroborate a defendant's confession.
(14) In this case, the State used the evidence of the
children's deaths to support the testimony of a jailhouse
informant, Michael Beckcom. This information corroborated the
defendant's confessions to Beckcom by detailing the manner in
which the crimes were committed with information that Beckham
could not have obtained except from appellant himself.
to corroborating a defendant's confession, extraneous-offense
evidence may also be admissible as same-transaction contextual
evidence, where "several crimes are intermixed, or blended with
one another, or connected so that they form an indivisible
criminal transaction." (15) In
that situation, "the jury is entitled to know all relevant
surrounding facts and circumstances of the charged offense; an
offense is not tried in a vacuum." (16)
That is precisely what occurred here.
case, the trial court stated that the evidence was admissible as
same-transaction contextual evidence. This decision was within the
zone of reasonable disagreement. Same- transaction contextual
evidence results when an extraneous matter is so intertwined with
the State's proof of the charged crime that avoiding reference to
it would make the State's case incomplete or difficult to
is a delicate business, and there is the danger that evidence of
the "collateral consequences" of a defendant's actions may
improperly divert the jury from the charged offense or introduce
significantly more prejudice than evidentiary value, it was not an
abuse of discretion in this case for the trial court to conclude
that the murders of Steve and Nilda and the deaths, by smoke
inhalation, of their three children were so connected that they
formed an indivisible criminal transaction.
evidence of the children's deaths was part of the crime scene.
That evidence was necessary to fully understand the situation as
neighbors and firefighters found it. From the moment the Herrera's
neighbor noticed their house was on fire, all of the people who
arrived at the scene were concerned about the survival and safety
of all five family members inside the home.
testified that although the smoke made it virtually impossible to
breathe, he tried to break into the home repeatedly because he
thought he heard the baby cry. Additionally, the firefighters who
testified stated that they, too, made multiple trips into the
smoke-filled home in an attempt to find survivors. Testimony
concerning the search for, and discovery of, the children in the
upstairs bedrooms was an integral part of the discovery of the
murder victims and description of the crime scene.
children's deaths were a direct consequence of appellant's conduct
of setting fire to Nilda. According to appellant's own statements
to Michael Beckcom, he set Nilda's body on fire in the living room,
knowing that the children were asleep in the bedrooms of the house.
And although the fire self-extinguished in the living room, it is
a fair inference that appellant thought that the fire would spread
throughout the rest of the house, killing the children and
destroying all of the crime-scene evidence contained inside it.
Thus, Steve and Nilda's murders are so intertwined with the deaths
of their children that the State's case might well be incomplete
without some mention of the children's presence in the home.
circumstances, testimony about the children's deaths fills in gaps
of the interwoven events and consequences of a defendant's
criminal conduct and thus helps the jury to understand the case in
context. In light of the above, the trial court did not abuse its
discretion in admitting the evidence of the children's deaths
despite appellant's Rule 404(b) objection. Point of error one is
Evidence of the Children's Deaths and Rule 403
next argues that the trial court's admission of evidence that the
children died in the house fire violated Rule 403. In point of
error two, appellant generally challenges the admission of "the
facts and circumstances surrounding the deaths of the complainants'
three children." In point of error four, he argues that the trial
court erred in admitting "the autopsy photographs depicting the
dissection of each of the three bodies of the complainants'
children." In point of error five, he asserts that the trial court
erroneously admitted "the crime scene photographs of the three
bodies of the complainants' children."
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.A proper Rule 403 analysis includes, but is
not limited to, the following 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.
evidence had probative value to a contested matter-Beckcom's
credibility. Beckcom, a key witness in the State's case against
appellant, testified that appellant told him that the children
were in bed when he set the fire and that they died from smoke
inhalation. Evidence of these particular facts and circumstances
corroborated Beckham's assertions and enhanced his credibility.
Moreover, Beckcom's knowledge of these facts and circumstances was
also probative to show that it was, in fact, appellant who
committed the crime. (19) As for
potential prejudice, appellant argues that the admission of this
evidence "carried with it the clear danger that the jury would be
confused by the nature of the charge against the appellant."
there was little likelihood that the evidence would encourage the
jury to reach an irrational verdict or act on the basis of emotion.
Although the children's deaths were tragic, evidence of their
deaths did nothing to prove that appellant was responsible for the
murders of Steve and Nilda. No matter how angry the jury might
have been about the children's deaths, that emotional response
could be connected to appellant only if the jury first found that
he caused their parents' deaths. Therefore, the relatively strong
probative value of the evidence was not substantially outweighed
by the mere possibility of unfair prejudice. The trial court did
not abuse its discretion in admitting this evidence. Point of
error two is overruled.
Evidence of the Children's Deaths and Due Process
In point of
error three, appellant raises a constitutional challenge to the
admission of the evidence that the children died from smoke
inhalation caused by the fire. He argues that the "admission of
the extraneous offense deprived [him] of a fair and impartial
trial, in violation of his right to due process." For the same
reasons expressed in the previous point of error, we hold that the
admission of this evidence did not deny appellant a fair and
impartial trial. The properly admitted same-transaction contextual
evidence did not offend appellant's due-process rights. Point of
error three is overruled.
Crime-Scene Photographs of the Children and Rule 403
We next turn
to appellant's complaints regarding the trial court's admission of
photographs. Appellant contends that even if the admission of the
crime-scene and autopsy photographs of the children were
admissible under Rule 404(b), they were unfairly prejudicial and
thus violated Rule 403. The decision to admit or exclude
photographic evidence is generally left to the sound discretion of
the trial court. (20) In deciding
whether photographs are unfairly prejudicial, we must also
consider the following factors: the number of photographs, the
size, whether they are in color or black and white, whether they
are gruesome, whether any bodies are clothed or naked, and whether
a body has been altered by autopsy. (21)
presence of the jury, appellant objected to the crime scene
photographs depicting the children's bodies. In response, the
trial court excluded five of the challenged photographs. Seven
photographs depicting the children's bodies and their locations
were admitted before the jury. (22)
Five of these photographs depict the bodies of Rachel and Valerie
as they were found in their bedroom, and two of the photographs
depict Jade's body as she was found in the master bedroom.
State's Exhibit 47 shows Rachel lying face-down on the bedroom
floor. In State's Exhibit 49, Rachel is lying face-up on the floor,
after being rolled over by the paramedics. State's Exhibit 50
shows Valerie's bed, with her body lying face-down at the top of
the bed and parallel to the headboard. State's Exhibit 52 more
clearly depicts Valerie's body lying face-down on the bed. In
State's Exhibit 55, Valerie is lying face-up on the bed, after
being rolled over by the paramedics. The other two photographs
depict Jade's body as it was found in the master bedroom. State's
Exhibit 63 shows Jade lying face-up on the floor next to the bed,
and State's Exhibit 65 offers a closer view of her body.
In all of
the photographs, the children are wearing their bedclothes, and
their bodies are covered in soot. The photographs of the children
lying face-up show the soot and mucus that accumulated in and
around their mouths and noses. Although deceased, the children
were not mutilated or charred. With the exception of the
discoloration around their noses and mouths, they look like they
are sleeping. The danger of unfair prejudice from the admission of
these photos is small, particularly because the jury also viewed
extremely grisly photographs of Nilda's badly burned body.
photographs accompanied the testimony of Marshall J. Kramer, who
investigated the crime scene. Kramer testified that the children's
bodies were found in the bedrooms and that the accumulation of
soot and mucus in their mouths and noses was indicative of smoke
asphyxiation. Here, Rule 403 did not prohibit witnesses from
testifying that the children died from smoke inhalation as a
result of the fire. The crime scene photographs depicting the
location and condition of the children's bodies were limited in
number, and the State focused on them only to the extent necessary
to explain the neighbor's and firefighters' attempts to account
for all of the inhabitants of the house and to corroborate
Beckcom's testimony. Therefore, the probative value of the crime-scene
photographs was not substantially outweighed by the danger of
unfair prejudice, and the trial court did not abuse its discretion
in admitting these photographs over appellant's Rule 403 objection.
(24) Point of error five is overruled.
Autopsy Photographs of the Children and Rule 403
We now turn
to whether the admission of the children's autopsy photographs
violated Rule 403. In a hearing outside the presence of the jury,
appellant objected to the autopsy photographs depicting the "dissected
body parts" of the children. Defense counsel argued that the
photographs were unnecessary and unfairly prejudicial, and offered
to stipulate to the cause of death. The trial court admitted the
photographs over defense counsel's objection.
contains twelve color photographs taken during the children's
autopsies. All of the photographs are detailed close-ups, and the
medical examiner used instruments to hold the organs open in some
State's Exhibits 144 through 146 are photographs taken during the
autopsy of Rachel. State's Exhibit 144 is a picture of her "neck
organs," showing a thick layer of soot on her tongue and into the
opening of her larynx. State's Exhibit 145 offers a closer view of
the carbon material going down into her larynx. State's Exhibit
146 is a picture of her lungs, which have been dissected to show
the amount of carbon material contained within them.
Exhibits 159 through 162 are photographs taken during the autopsy
of Valerie. State's Exhibit 159 depicts her "neck organs," with a
thick layer of carbon material from the tip of the tongue to the
trachea. State's Exhibit 160 is a closer view of the larynx.
State's Exhibit 161 depicts her dissected lungs and the amount of
carbon material contained within them. State's Exhibit 162 is a
picture of her esophagus, showing the amount of carbon material
that entered her stomach.
Exhibits 167 through 171 are photographs taken during the autopsy
of Jade. State's Exhibit 167 shows her dissected lungs and the
amount of carbon material contained within them. State's Exhibit
168 is a closer view of one of her lungs. State's Exhibit 169
depicts the amount of carbon material on her dissected tongue, and
State's Exhibit 170 depicts the amount of carbon material in her
larynx. State's Exhibit 171 is a picture of her stomach, showing
the amount of carbon material inside it.
did not need the autopsy photographs of the children's dissected
internal organs to fully explain the crime scene or to corroborate
Beckcom's testimony. Sufficient corroboration was provided by
witness testimony, autopsy reports, crime scene photographs, and
other autopsy photographs of the children's bodies before their
internal organs had been removed. Furthermore, the cause of the
children's death was not disputed. Most important, appellant was
not charged with murdering them. (25)
Thus, the minimal probative value of the autopsy photographs at
issue, if any, was substantially outweighed by the danger of
unfair prejudice, confusion of the issues-by unduly focusing the
jury's attention upon the deaths of the children rather than the
deaths of their parents for which appellant was charged- and
needless presentation of cumulative evidence. The trial court
abused its discretion in admitting the photographs over
appellant's Rule 403 objection. (26)
error in the admission of evidence, however, does not end our
analysis. We must next determine whether the error was harmless
under Rule 44.2(b). Although it is a close call, we cannot
conclude that the State's use of these autopsy photographs
affected appellant's substantial rights. Appellant argues in his
brief that the State emphasized the children's deaths to the jury
and argued his bad character because he could "take out a whole
family and come out clean." While appellant is correct and such
argument is improper, we cannot see how the State's argument would
have been affected had the autopsy photographs been excluded. Even
the slightest reference to the crime scene and the children's
deaths could still support that argument.
are additional reasons for our conclusion. First, at the time of
their admission, the jury had already seen and heard about the
disturbing circumstances of the children's deaths through properly
admitted photographs and testimony. Second, these photographs were
not particularly gruesome or emotionally charged; they were
clinical and depicted disembodied organs and tissue. Third, they
pale in comparison to the properly admitted post-mortem
photographs of Steve Herrera and Nilda Tirado whose deaths
appellant was charged with intentionally causing. Fourth, the
State, while emphasizing appellant's admission to Beckcom that he
had "taken out" an entire family, did not dwell upon or emphasize
the improperly admitted post-autopsy photographs of the children.
Fifth, these photographs have nothing to do with the disputed
issue at trial of whether appellant murdered the children's
parents as charged. Thus, these photographs do not affect the
determination of appellant's guilt in this case and would not
emotionally sway a factfinder until and unless he had found that
appellant was the person who had caused the parents' deaths.
(27) In sum, we conclude that the erroneous admission of
the autopsy photographs depicting the children's internal organs
did not affect appellant's substantial rights.
(28) Point of error four is overruled.
In point of
error eight, appellant asserts that the trial court improperly
instructed the jury that they could not consider sympathy when
answering the special issues. Appellant argues that this anti-sympathy
charge restricted the effect of the mitigation evidence and
violated his Eighth Amendment right against cruel and unusual
previously held that anti-sympathy charges do not
unconstitutionally contradict mitigation instructions.
(29) We have further held that anti-sympathy charges are
appropriate in that they properly focus the jury's attention on
those factors relating to the moral culpability of the defendant.
(30) Finding no error in this punishment change, we
overrule appellant's eighth point of error.
the judgment of the trial court.
January 26, 2005
have said that photographs depicting matters described by
admissible testimony are generally admissible. This statement when
viewed in isolation is far too broad and provides no guidance to
the bench and the bar to determine which photographs may be
admitted and which must be excluded.
at 489. In attempting to provide a more useful guideline for the
admission of photographs, we concluded that:
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
Id. at 491-492.
21. Narvaiz v. State,
840 S.W.2d 415, 429 (Tex. Crim. App. 1992).
22. The record contains the
original crime scene photographs, which were neither close-up nor
particularly detailed. Rule 34.6(g)(2) of the Texas Rules of
Appellate Procedure provides for the appellate court's use of
If the trial
court determines that original exhibits should be inspected by the
appellate court or sent to that court in lieu of copies, the trial
court must make an order for the safekeeping, transportation, and
return of those exhibits. The order must list the exhibits and
briefly describe them. To the extent practicable, all the exhibits
must be arranged in their listed order and bound firmly together
before being sent to the appellate clerk. On any party's motion or
its own initiative, the appellate court may direct the trial court
clerk to send it any original exhibit.
TEX. R. APP.
23. In his brief, appellant
also mentions State's Exhibits 56, 57, 60, 61, 62, 64, 66, and 67.
State's Exhibits 56, 57, and 67 depict the areas where the
children were found, after their bodies had been removed. State's
Exhibits 60 and 61 are photographs of the master bedroom where
Jade is not visible. State's Exhibit 62 is a photograph of a
ceiling vent. State's Exhibits 64 and 66 were not admitted.
Appellant also mentions State's Exhibit 68, which is a crime scene
videotape, not a photograph. Appellant's argument in his brief
encompasses only the admission of the crime scene photographs
depicting the children's bodies; thus, we decline to address the
admission of these other exhibits.
24. Compare Sonnier v.
State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995)(crime scene
photographs and a videotape were admissible to show the reality of
a brutal double murder) with Erazo, 144 S.W.3d
at 488 (admission of photograph of fetus removed from murder
victim's womb during autopsy violated Rule 403).
this Court distinguished between the admissibility of crime-scene
photographs, which depict the direct and immediate results of a
defendant's actions, and other photographs, such as those taken
after an autopsy, which do not depict what the defendant actually
did, but rather the collateral results of the crime or steps in
the investigatory process far removed from the crime scene as the
defendant left it. We stated that:
photograph or an autopsy photograph is not admissible simply to
show the death of the individual. These photographs are admissible
despite the fact, and because, they show more than the
testimony. But that "something more" must be relevant and helpful
to the jury.
Id. at 493.
25. The cases that the
State relies upon as holding that autopsy photographs are
generally admissible as relevant in helping the medical examiner
explain the cause of death, deal with autopsy photographs of the
victim whose death the defendant was charged with causing. See
Rayford v. State, 125 S.W.3d 521, 530 (Tex. Crim. App. 2003)
(admitting autopsy photos of capital murder child victim because
one disputed issue was whether victim had been kidnapped and
dragged into culvert while alive; photos showed pre-death injuries
consistent with kidnapping theory); Salazar v. State, 38
S.W.3d 141, 151 (Tex. Crim. App. 2001) (autopsy photographs of
capital murder victim showed child's extensive internal injuries
which could not have been caused in the manner defendant had
explained them); Rojas v. State, 986 S.W.2d 241, 249 (Tex.
Crim. App. 1998) (autopsy photos of capital murder victim showing
injuries to her pelvic area, although not the cause of her death,
were "probative of appellant's mental state at the time of the
murder, the specific circumstances of the murder, and the fact
that appellant omitted some information from his statements to the
police"). In each of those cases, the photographs were probative
of some disputed fact concerning the murder victim's
death. Here, the children were not the victims of the charged
murder, and no one disputed that they died of smoke inhalation
which was the ostensible purpose for which they were admitted.
26. See Erazo, 144
S.W.3d at 496.
27. Appellant does not
claim that the autopsy photographs affected the jury's
deliberations during the punishment phase, and thus, we will not
address that question.
28. Tex. R. App. P.
29. Tong v. State,
25 S.W.3d 707, 711 (Tex. Crim. App. 2000); Fuentes v. State,
991 S.W.2d 267, 276 (Tex. Crim. App. 1999).
30. Tong, 25 S.W.3d
at 711; McFarland v. State, 928 S.W.2d 482, 522 (Tex.
Crim. App. 1996).