Juan Segura, Jr. v. State

No. 04-98-00369-CR Juan SEGURA, Jr., Appellant v. The STATE of Texas, Appellee From the144th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-3208 Honorable Susan D. Reed, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Phil Hardberger, Chief Justice Catherine Stone, Justice Sarah B. Duncan, Justice Delivered and Filed: July 7, 1999 AFFIRMED Juan Segura, Jr. was convicted of murder and sentenced to life imprisonment. On appeal, he challenges the trial court's admission of twenty photographs as unfairly prejudicial and complains that the trial court failed to adequately charge the jury on the theory of self-defense. Because we conclude that these points of error are without merit, we affirm the judgment of the trial court. Factual Background Segura and Martin Luna, the victim, lived together for a short period of time on Segura's grandfather's property. One afternoon at this residence, Segura and two other friends began drinking beer and playing cards on the property. Several hours later, Luna came home from work. Luna drove Segura and a friend to a convenience store to buy more beer. After returning to the residence, Segura and Luna began arguing. Eventually, the argument evolved into a fight. Segura's friends separated Segura and Luna, but they continued to argue. After the others left, Segura and Luna began fighting again. Segura testified he was afraid for his life. Segura picked up an aluminum baseball bat and hit Luna in the head. Segura noted that Luna came after him again, and Segura hit Luna with the bat for the second time. This blow was fatal. Segura dragged the body to the outhouse behind the residence and disposed of the body and the bat in the well beneath the outhouse. Segura went to sleep or passed out, but later notified his grandfather that he had killed Luna. Segura's grandfather called the police who arrested Segura behind a local convenience store. Admissibility of the Evidence In his first point of error, Segura complains that twenty of the photographs admitted at trial were too gruesome and unfairly prejudicial to be properly admitted. Texas Rule of Evidence 402 provides for the admission of all relevant evidence, evidence which tends to make the existence of any fact that is of consequence to the determination of the action more or less probable. Tex. R. Evid. 401, 402. Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403 (noting that evidence may also be excluded if it confuses the issues, misleads the jury, causes undue delay, or results in the needless presentation of cumulative evidence). Virtually all evidence offered by the prosecution will be prejudicial to the defendant, and, as a result, the trial court should only exclude evidence that is unfairly prejudicial. See Caballero v. State, 919 S.W.2d 919, 922 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). The trial court overruled all of Segura's objections regarding the admissibility of the photographs at issue. We review the trial court's decision to admit evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Generally, a photograph must possess some probative value which is not substantially outweighed by its inflammatory nature. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). Relevant factors in making this determination include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id. at 249. The fact that a crime scene photograph is gruesome does not render the photograph necessarily inadmissible under Rule 403. See Long v. State, 823 S.W.2d 259, 273 (Tex. Crim. App. 1991). A photograph of an object or scene is generally admissible if a verbal description of that object or scene would be admissible. Horton v. State, 986 S.W.2d 297, 305-306 (Tex. App.--Waco 1999, no pet.) (holding that an enlarged close-up photograph of the victim's head which graphically depicted a gruesome and bloody gaping wound which exposed the deceased's brain was admissible as it demonstrated the brutal nature of the offense committed and reflected the testimony of the State's witness). The State correctly groups the twenty photographs in dispute into five general categories: 1. The blood trail outside of the residence (Nos. 40, 43) 2. The outhouse and its contents prior to being drained (Nos. 11, 32, 49) 3. The items recovered from within the residence (Nos. 14, 34, 35, 42, 44) 4. The blood stains and tissue fragments from within the residence (Nos. 37, 38, 39, 41, 47, 48) 5. The victim after the offense (Nos. 13, 17, 20, 52) Segura contends that these exhibits should not have been admitted not only because they were gruesome but because Segura did not contest the fact that he killed Luna, but claimed that he did so only in self-defense. However, the photographs in question demonstrate the brutal nature of the offense committed and reflect the State's theory of the case and support facts relevant to the categories listed. The photographs are relevant as to whether Segura acted in self-defense by indicating the number of blows Luna sustained, the justifiability of Segura's use of the bat, the veracity of Segura's testimony regarding the events of the fight, the location of the use of the bat, and Segura's disposition of the body. As the trial court noted, crime scene photographs are very probative on issues of self-defense. Even though the photographs are numerous and depict a heinous scene, that fact alone does not render the evidence inadmissible. We cannot say that the trial court abused its discretion in admitting these photographs. Segura's first point of error is overruled. Jury Charge In his second point of error, Segura complains that the trial court did not properly instruct the jury on the issue of self-defense. He argues that the trial court should have included a portion of Tex. Penal Code Ann. § 9.32 (Vernon Supp. 1998) which states that a person is justified in using deadly force against another to prevent the other's imminent commission of aggravated kidnaping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. The charge only indicated that a person is justified in using deadly force when he reasonably believes that deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Article 36.19 of the Code of Criminal Procedure provides that: whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981).(1) If charge error is not preserved at trial, the defendant must show that error was so harmful that he was denied a fair and impartial trial, such that he suffered actual egregious harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Dooley v. State, 1998 WL 823687, *3 (Tex. App.--Tyler 1998, pet. ref'd). Segura argues that "attempted" and "imminent" have two distinct meanings. As a result, he contends the jury would not have understood that Segura had the right to use self-defense if he reasonably believed that his own murder was imminent because of Luna's attack. By failing to include language indicating that self-defense is justified to prevent another's imminent commission of murder, Segura argues that he was egregiously harmed. Without deciding whether it was error to omit this portion of the charge in the first place, we decide that any error committed was not egregious. A reasonable jury would understand from the charge as it was written that Segura would be justified in using deadly force if he reasonably believed that deadly force was immediately necessary to protect himself against the other's use of deadly force. This language communicates to the jury the requirement of imminence. Viewing the court's charge as a whole, we conclude that the charge sufficiently presents applicable law and protects the defendant's rights. See Dooley, 1998 WL 823687, *3. Segura has not met his burden of showing that error exists in the charge and that the error was calculated to injure his rights or cause a denial of a fair and impartial trial. See id.; Renfro v. State, 827 S.W.2d 532, 534 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Segura's second point of error is overruled. The judgment of the trial court is affirmed. Catherine Stone, Justice DO NOT PUBLISH 1. At trial, Segura requested a charge on self-defense. The State objected on the grounds that such a charge was not supported by the evidence. The trial court did not rule on the request and recessed. The court charged the jury as indicated and Segura made no objections. Thus, the State correctly asserts that Segura has not preserved error.