David Dunkin Ludwick v. State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00579-CR David Dunkin Ludwick, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 98-2161, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING A jury found appellant David Dunkin Ludwick guilty of capital murder and sentenced him to life in prison. See Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). Appellant contends the district court erred in admitting several of the State's exhibits which he contends were unfairly prejudicial and needlessly repetitive. We will affirm appellant's conviction. Background Appellant and his two accomplices were living in Austin in January 1998. They discussed moving to Los Angeles and decided to rob someone in order to fund their move. On January 17, 1998, appellant and his accomplices met John Cavness, Jr., the decedent, at an Austin bar. After drinking and socializing with Cavness at the bar, they accompanied him to his home and then killed him and stole several items from his house. They cut Cavness's throat and hit him in the head with a hammer multiple times. Austin Police Officer George Ewing was the first officer to respond to the crime scene. He testified about the condition of the house, the location of Cavness's body in the house, and the procedure used in securing the crime scene. During Officer Ewing's testimony, the State introduced numerous photographic exhibits showing the crime scene as it appeared on January 19. Appellant objected to exhibits 23, 25, 26, and 32, arguing their potential for prejudice outweighed any probative value. The district court overruled his objections. Dr. Elizabeth Peacock, a deputy medical examiner for Travis County, performed the autopsy. She testified it appeared Cavness had been hit at least ten times in the head and face by a hammer and a blunt object, such as a fist. Cavness also suffered six deep cuts to his neck, which severed the carotid arteries on his left side, and defensive wounds on his left hand from apparent attempts to fend off the knife. The blows to Cavness's head fractured his skull, drove bone fragments into his brain, and tore and bruised his brain. Either the blunt-trauma injuries to Cavness's head or the injuries to his neck would have killed him. Appellant objected at trial to every autopsy photograph showing head or neck wounds, stating, "The only objection I have to the rest of them, all of them in general are that they are so photographic and so strong that I think . . . the prejudicial value outweighs any probative value since Dr. Peacock has already testified to what damage was done and they have already seen the photos at the scene of his head and his neck being slashed." The only autopsy photographs to which appellant did not object show wounds on Cavness's hands. The district court sustained appellant's objections to five exhibits and overruled his objections to the remaining exhibits. In two issues, appellant claims the district court erred in admitting exhibits 23 through 26, 32 , 51, 52, 54 through 62, 75, and 76 because they were repetitive and gruesome and their prejudicial effect outweighed any probative value they might have had. (1) We disagree. Standard of review We will not disturb a trial court's ruling on the admissibility of evidence unless we find an abuse of discretion, that is, the court's decision "falls outside the zone of reasonable disagreement." Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); see Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Poole v. State, 974 S.W.2d 892, 897 (Tex. App.--Austin 1998, no pet.). Relevant evidence is admissible unless otherwise barred by Constitution, statute, or rule. See Tex. R. Evid. 401, 402. 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. When a defendant objects to evidence under rule 403, the trial court must weigh the evidence's probative value against any danger of unfair prejudice. See Santellan, 939 S.W.2d at 169; Poole, 974 S.W.2d at 897. Relevant evidence carries a presumption that it is more probative than prejudicial; only when the probative value is substantially outweighed by the potential for unfair prejudice should the evidence be excluded. See Santellan, 939 S.W.2d at 169; Poole, 974 S.W.2d at 897. Some factors to be considered when weighing probative value against prejudice are the number of exhibits, the level of detail or gruesomeness, the size of the photographs, whether they are black-and-white or color, whether they are close-ups, whether the body is naked or clothed, and the availability of other proof. See Santellan, 939 S.W.2d at 172. Simply because a photograph is disturbing due to the injuries inflicted upon the victim does not mean the photograph should automatically be excluded as unfairly prejudicial. See Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Santellan, 939 S.W.2d at 173; Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Generally, if testimony describing the subject of a photograph is admissible, the photograph is also admissible. (2) See Williams, 958 S.W.2d at 195; Dusek v. State, 978 S.W.2d 129, 136 (Tex. App.--Austin 1998, pet. ref'd). Photographs taken during an autopsy generally are admissible, unless they show mutilation to the victim's body due to the autopsy itself. See Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998); Santellan, 939 S.W.2d at 172. Even post-autopsy photographs showing injuries from an autopsy may be admissible if they do not emphasize the autopsy injuries and if the autopsy injuries do not obfuscate the results of the crime. See, e.g., Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim. App. 1983) (photographs of skull with skin pulled back admissible; showed actual injuries to skull and illustrated and clarified doctor's testimony); Terry v. State, 491 S.W.2d 161, 164 (Tex. Crim. App. 1973) (autopsy photographs emphasized autopsy injuries and those injuries not explained; therefore inadmissible); Griffin v. State, 198 S.W.2d 587, 589-90 (Tex. Crim. App. 1946) (photographs of brain with skull removed admissible); Todd v. State, 911 S.W.2d 807, 820 (Tex. App.--El Paso 1995, no pet.) (photograph of brain admissible; showed fatal injuries and was clinical, textbook-type photograph); Ladner v. State, 868 S.W.2d 417, 427 (Tex. App.--Tyler 1993, pet. ref'd) (photographs of brain admissible; illustrated testimony by showing injuries, bruising, and number of blows); Sandow v. State, 787 S.W.2d 588, 597-98 (Tex. App.--Austin 1990, pet. ref'd) (photographs of victim's brain illustrated testimony; witness distinguished between injuries caused by crime and autopsy injuries); Whitley v. State, 635 S.W.2d 791, 794 (Tex. App.--Tyler 1982, no pet.) (photographs of inside of skull admissible; corroborated testimony as to cause of death). Probative value Appellant argues exhibits 23, 25, 26, 32, 51, 52, 54 through 62, 75, and 76 had extremely limited or no probative value at trial because he did not dispute Cavness's cause of death or the fact that a murder occurred. Appellant argues that because the State did not seek the death penalty, resulting in an automatic life sentence for his capital murder conviction, "the viciousness of the death-inducing blows was also irrelevant to the issue of punishment." We disagree. While appellant did not contest the cause of death, the State was still obligated to prove, as it alleged in the indictment, that appellant intentionally caused Cavness's death "by cutting [Cavness] with a knife, a deadly weapon, and by striking [him] with a hammer, a deadly weapon." See Shavers v. State, 881 S.W.2d 67, 76 (Tex. App.--Dallas 1994, no pet.). Further, the Court of Criminal Appeals has rejected the argument that, because photographs corroborate uncontested testimony, they have slight probative value that is outweighed by their prejudicial nature. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999); see also Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987) ("the State's right to introduce evidence is not restricted by . . . [defendant's] admission of facts sought to be proved"); Sandow, 787 S.W.2d at 598 (even if cause of death not an issue, injuries relevant to identity of assailant). Further, the exhibits visually illustrated the testimony given by the State's witnesses. See Williams, 958 S.W.2d at 195; Dusek, 978 S.W.2d at 136. Ewing testified to the appearance of the crime scene on January 19. He explained that exhibits 23, 25, and 26 showed Cavness's body as it lay in the kitchen, and exhibit 32 showed blood on the wall behind the body. He testified the photographs accurately showed the crime scene and noted that exhibit 25 showed Cavness's pocket pulled inside out. Ewing was asked to indicate on a diagram where and how the body was positioned as reflected by the photographs. The crime scene specialist also utilized exhibits 24 and 32 during his testimony relating to fingerprints and blood spatters found at the scene. Dr. Peacock stated the autopsy photographs would be helpful to her testimony and used them to explain and illustrate the extent, location, and types of injuries Cavness suffered. The photographs helped identify Cavness and the kinds of weapons used to kill him, essential elements of the State's case. See Shavers, 881 S.W.2d at 76. The crime scene photographs illustrated testimony by Cavness's sisters and the police investigating the crime, and the autopsy photographs illustrated Dr. Peacock's scientific testimony. See Tex. R. Evid. 401; Long v. State, 823 S.W.2d 259, 273-74 (Tex. Crim. App. 1991). The photographs had probative value, and their admission was proper unless their value was substantially outweighed by potential for unfair prejudice. See Santellan, 939 S.W.2d at 169; Poole, 974 S.W.2d at 897. Did prejudicial potential outweigh probative value? Appellant argues the exhibits were overly gruesome, causing them to have greater prejudicial effect than probative value. We disagree. I. Crime scene photographs The crime scene photographs are visual depictions of the testimony of the police officers who responded to and investigated the crime. The testimony describing the crime scene was relevant and admissible and therefore the photographs were also admissible unless "so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of this case after viewing them." Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992). While exhibits 23, 25, 26, and 32, which show Cavness as he lay dead on the kitchen floor in a pool of blood, are disturbing and graphic, they reflect nothing more than the gruesome nature of the crime committed. See Chamberlain, 998 S.W.2d at 237; Emery, 881 S.W.2d at 710-11; see also Sonnier, 913 S.W.2d at 519 (photos, while gruesome, are powerful visual evidence); Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995) (photos aided jury's understanding of crime scene). The photographs do not appear to be enhanced or overly enlarged, are not extreme close-ups, and only six of the thirty-two crime scene photographs, including the four to which appellant objected, show any part of Cavness's clothed body. See Santellan, 939 S.W.2d at 172. We cannot hold the trial court abused its discretion in admitting the photographs when appellant has not shown the crime scene photographs were so horrifying and prejudicial as to substantially outweigh their probative value. See Santellan, 939 S.W.2d at 169; Fuller, 829 S.W.2d at 206. We overrule appellant's first issue on appeal. II. Autopsy Photographs The autopsy photographs accompanied Dr. Peacock's testimony describing Cavness's wounds and cause of death. Exhibit 51, taken from the right side of Cavness's head and torso, shows circular wounds on his temple and cutting wounds to his neck. Exhibit 52 is a close-up photograph of Cavness's face and head; wounds to both temples and his mouth are visible. Exhibits 54 and 55 show shaved areas of Cavness's skull where he suffered lacerations. Exhibit 56 is a close-up of circular injuries on the right side of his face, and exhibits 57 and 59 are close-up photographs of circular injuries on his left temple area. Exhibit 58 is a photograph of the left side of Cavness's head and neck, and shows circular injuries on his head and wounds on his neck. Exhibit 60 shows injuries behind his left ear and on the left side of his head. Exhibit 61 depicts injuries to the inside of Cavness's mouth and exhibit 62 shows severe wounds to his neck. In exhibits 75 and 76, Cavness's skull is removed to reveal injuries to his brain. With the exception of exhibits 75 and 76, none of the autopsy photographs show injuries caused by the autopsy. See Rojas, 986 S.W.2d at 249; Santellan, 939 S.W.2d at 172. The injuries depicted are gruesome and disturbing but, as in the case of the crime scene photographs, no more so than the crime committed. See Chamberlain, 998 S.W.2d at 237; Emery, 881 S.W.2d at 710-11. The wounds are cleansed of blood, and the photographs reflect true, non-enhanced depictions of the inflicted injuries. As for exhibits 75 and 76, they are disturbing in that they show Cavness's brain with the skull removed as a result of the autopsy. However, they illustrate Dr. Peacock's testimony about the bruises, cuts, and other injuries caused to the brain by the blunt-trauma inflicted on the skull, accurately portray the brain injuries, and show only the brain, not the entire head with portions of the skull removed. See Harris, 661 S.W.2d at 108; Griffin, 198 S.W.2d at 589-90; Todd, 911 S.W.2d at 820; Ladner, 868 S.W.2d at 427; Sandow, 787 S.W.2d at 598. Reviewing the district court's admission of the autopsy photographs, we are unable to say the trial court abused its discretion by admitting them into evidence. See Rojas, 986 S.W.2d at 249-50. We overrule appellant's second issue on appeal. Were the Photographs Needlessly Cumulative? Appellant also argues the photographic exhibits were unnecessarily cumulative. However, at trial he did not object to exhibits 23, 25, 26, and 32 on the basis that those exhibits were cumulative or repetitive, only that they were prejudicial. He did object to exhibits 51 and 56 as repetitive of one another, 57 and 58 as repetitive of one another, and 75 and 76 as showing injuries illustrated in other photographs. We will examine only those six exhibits which appellant specifically complained were cumulative. See Santellan, 939 S.W.2d at 171. Exhibit 51 shows the right side of Cavness's body from his waist up. Exhibit 56 is a close-up view of the right side of Cavness's head. While taken from the same angle and showing some of the same injuries, exhibit 51 also shows Cavness's neck injuries and exhibit 56 more clearly reflects the circular injuries on Cavness's right temple. They are not so similar to one another as to make their admission an abuse of discretion. Exhibit 57 is an extreme close-up of the top left side of Cavness's head, and exhibit 58 shows the entire left side of Cavness's head, face, and neck. On both exhibits, Dr. Peacock placed numbered tags next to the head wounds so that the jury could understand which injuries she was describing; wound 6 is particularly vicious. Exhibit 58 reveals the deep wound to the left side of Cavness's neck and damage to the left side of his mouth. Exhibit 57 shows wounds 6 and 8 in detail while exhibit 58 shows wounds 6 through 9 at more of a distance. Exhibits 57 and 58 are not so similar to one another as to make their admission an abuse of discretion. Finally, exhibits 75 and 76 both show Cavness's brain injuries and show his brain with the skull removed. None of the other photographs show the actual injuries done to the brain. Exhibits 75 and 76 show different views and are not so similar to one another as to make their admission an abuse of discretion, nor are they so similar to other photographs as to render them cumulative of other exhibits. The district court did not err in overruling appellant's objections that exhibits 51, 56, 57, 58, 75, and 76 were cumulative. Conclusion Having held the district court did not err in finding the photographs had probative value that was not substantially outweighed by any prejudicial effect and having held the photographs were not needlessly cumulative, we overrule appellant's issues on appeal. We affirm the district court's judgment. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Kidd and Smith Affirmed Filed: May 18, 2000 Do Not Publish 1. Appellant did not object at trial to exhibit 24. When exhibits 9 through 41 were offered, appellant stated, "A number of photographs, 13, 23, 25, 26, 32, those, your Honor, show -- depict various scenes of great amount of blood and open wounds, and I think that they are such that just the viewing of them could prejudice the jury, so we would ask that the Court exclude those based on the prejudicial value." In overruling appellant's objection, the district court stated, "Let the record reflect that State's Exhibits 13, 23, 24, 25, 26, and 32, with one exception are photos of the deceased, 32 is not a photo -- well, there is a portion of his face in that photo. The objection is overruled." Appellant's complaint on appeal as to exhibit 24 does not comport with an objection made at trial. See Tex. R. App. P. 33.1(a); Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997). Absent any objection, any error as to exhibit 24's admission is not preserved. We overrule his issue as it applies to exhibit 24. 2. Appellant claims the proposition that photographic depictions of admissible verbal testimony are admissible is a "pre-Rules adage [that] is not consistent with the required balancing test under Rule 403." Appellant is correct that, once a defendant makes a rule 403 objection, the trial court must weigh the exhibit's probative value against its risk of unfair prejudice. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990); Poole, 974 S.W.2d at 897. However, the Court of Criminal Appeals continues to affirm the validity of the general rule that "photographs [are] admissible if verbal testimony as to matters depicted in the photographs is also admissible . . . [a]n abuse of discretion arises only when the probative value of the photograph is small and its inflammatory potential great." Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991) (citation omitted); see Williams, 958 S.W.2d at 195; Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994) (quoting Hernandez v. State, 819 S.W.2d 806, 819 (Tex. Crim. App. 1991)). clearly reflects the circular injuries on Cavness's right temple. They are not so similar to one another as to make their admission an abuse of discretion. Exhibit 57 is an extreme close-up of the top left side of Cavness's head, and exhibit 58 shows the entire left side of Cavness's head, face, and neck. On both exhibits, Dr. Peacock placed numbered tags next to the head wounds so that the jury could understand which injuries she was describing; wound 6 is particularly vicious. Exhibit 58 reveals the deep wound to the left side of Cavness's neck and damage to the left side of his mouth. Exhibit 57 shows wounds 6 and 8 in detail