James William Hornsby v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-273 CR ____________________ JAMES WILLIAM HORNSBY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 84675 MEMORANDUM OPINION A jury convicted James William Hornsby of murder and sentenced him to fifty years in prison. Hornsby appeals. In his first issue, Hornsby contends the trial court erred in admitting a photograph of the murder victim, T.H., into evidence. The photograph was of the murder victim with several of her school friends, when she was in eighth grade. The victim was seventeen at the time of her death. Hornsby maintains the photograph was an attempt to depict T.H. in a certain light, which was not an accurate depiction of her at the time of her death. He argues the prejudicial value of the photograph outweighed its probative value because it showed her as an eighth grader with school friends, rather than in a setting depicting her at or near the time of her death. He claims the picture presented a false depiction of her character. "The admissibility of a photograph is within the sound discretion of the trial judge." Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). To be admissible, a photograph must be relevant, should assist the jury with its decision, and should add something that is logical to the testimony that accompanies it. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). A photograph is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. When determining whether the trial court erred in admitting a relevant photograph into evidence, we must determine under Texas Rule of Evidence 403 whether the probative value of the photograph 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. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991) (citing Tex. R. Evid. 403). Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g). A court may consider the following factors in determining whether the probative value of a photograph is substantially outweighed by the danger of unfair prejudice: the number of photographs; the size of the photographs; whether the photographs are in color or black and white; the detail shown in the photographs; whether the photographs are gruesome; whether the body is naked or clothed; and whether the body has been altered since the crime that might enhance the gruesomeness of the photographs. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). Here, the only photograph Hornsby challenges on appeal is one four-inch by six-inch color photograph of the murder victim prior to her death. T.H.'s mother testified that although her daughter was seventeen at the time of her death, the picture depicted what her daughter looked like just prior to her death. The picture was offered as proof of the victim's identity. The identity of the victim is certainly "'[a] fact . . . of consequence to the determination of the action.'" Long, 823 S.W.2d at 271 n.18 (quoting Tex. R. Evid. 401). After reviewing the photograph, we are not persuaded that the danger of unfair prejudice substantially outweighed its probative value. See Tex. R. Evid. 403. Hornsby relies on Armstrong v. State, 718 S.W.2d 686 (Tex. Crim. App. 1985), and Hatley v. State, 533 S.W.2d 27 (Tex. Crim. App. 1976), in arguing that the picture was irrelevant and only offered it in an attempt to show the character of the decedent as a young innocent schoolgirl. In Armstrong and Hatley, the Court of Criminal Appeals held that evidence offered by the State of the decedent's peaceful reputation is only admissible as rebuttal evidence after the defense has raised (1) the issue of the decedent's non-peaceable nature, or (2) to justify the homicide on the ground of threats made by the deceased. Armstrong, 718 S.W.2d at 695; Hatley, 533 S.W.2d at 29. Those cases dealt specifically with the admissibility of character testimony and are distinguishable from the present case, where the State is not eliciting testimony as to the victim's character, but is only offering into evidence a picture of the decedent prior to her death for identification purposes. Id. The trial court did not err in admitting State's Exhibit No.1. We overrule Hornsby's first issue. In his second and third issues, Hornsby complains that the trial court committed reversible error by denying his motion for mistrial based upon impermissible testimony elicited by the State that two accomplices in the offense had given written statements that corroborated the State's theory of Hornsby's involvement in the murder. Detective Rodney Harrison testified that he obtained written statements from Kevin Coffey and Melissa Frasier. Hornsby's written statement, which implicated Coffey and Frasier, was introduced into evidence. Then the following exchange occurred: [PROSECUTOR:] But he told you that he hit her in the head with a mug, correct? [HARRISON:] Correct. [PROSECUTOR:] And the autopsy shows her head is caved in, correct? [HARRISON:] Correct. [PROSECUTOR:] The statements given to you by Mr. Coffey and Ms. Frasier, do they lead you in any different direction? [HARRISON:] No, sir. [DEFENSE COUNSEL]: Your Honor, I'm going to object to testimony based upon hearsay. They have not been tendered into evidence. We have not had a hearing on their admissibility. THE COURT: Sustained. [DEFENSE COUNSEL]: I would have ask the jury to disregard the question asked by the prosecutor placing that in their minds. THE COURT: The jury is so instructed. [DEFENSE COUNSEL]: And I move for a mistrial. THE COURT: That's denied. Hornsby states that the trial court should have granted a mistrial based on the prosecutor's reference to the written statements of other individuals alleged to have been involved in the murder. Improper testimony or evidence is usually cured by the trial court's instruction to the jury to disregard, except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Ransom v. State, 798 S.W.2d 572, 585-86 (Tex. Crim. App. 1989); Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988); Kugler v. State, 902 S.W.2d 594, 596-97 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). Under the facts of this case, it does not appear that the evidence is clearly calculated to inflame the minds of the jury or is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. The trial court's instruction was sufficient and timely to cure the alleged error. We overrule Hornsby's second and third issues. Hornsby next argues the trial court committed reversible error in instructing the jury, as a result of a conflict in the verdict, to return to the jury room to correct the verdict. The court's charge directed the jury that if they found that Hornsby proved beyond a preponderance of the evidence that he caused T.H.'s death while under the immediate influence of sudden passion arising from an adequate cause, the offense is a felony of the second degree. The instructions stated that the punishment allowed for a felony of the second degree is confinement for any term of not more than 20 years or less than 2 years. The instructions further provided that if the jury found that Hornsby did not prove by a preponderance of the evidence that he caused T.H.'s death while under the immediate influence of sudden passion arising from an adequate cause, the offense is a felony of the first degree. The instructions stated that the punishment allowed for a felony of the first degree is confinement for any term of years not more than 99 years or less than five years, and a fine not to exceed $10,000. The following statements were made as the jury foreman began reading the jury's verdict: THE COURT: Would you please tender your verdict to the bailiff. THE FOREPERSON: (Complying) THE COURT: There is a conflict in your verdict. If you answer that there was -- if your answer to the special issue: Do you find by a preponderance of the evidence that the defendant caused the death of the victim while he was under the immediate influence of sudden passion - - THE FOREPERSON: My apologies. That should be " no." THE COURT: Go back to the jury room and correct the verdict. . . . . THE COURT: Let the record show the jury is back in the courtroom. [Foreperson], have you corrected the verdict of the jury. THE FOREPERSON: Yes, I have. THE COURT: Would you please tender your verdict to the bailiff. THE FOREPERSON: (Complying) THE COURT: [Foreperson], would you please stand and read the verdict of the jury on both the special issue and the punishment. THE FOREPERSON: No problem. The State of Texas vs.- - in the District Court of Jefferson County Texas. Unfortunately it wasn't completed. James William Hornsby on Cause No. 84675: "Do you find by a preponderance of the evidence that the defendant caused the death of the victim while he was under the immediate influence of sudden passion arising from an adequate cause?" Our statement is "no." Cause No. 84675, the State of Texas vs. James William Hornsby, in the Criminal District Court of Jefferson County, Texas: "We, the jury, assess the defendant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 50 years." THE COURT: Thank you, sir. The verdict shall be received and filed at 4:25 p.m. The jury verdict form included in the record evidences the jury's answer to the question regarding whether Hornsby proved by a preponderance of the evidence that he caused T.H.'s death under the immediate influence of sudden passion arising from an adequate cause, had been answered "YES" and then changed to "NO." Hornsby did not object to the jury's instruction to correct the verdict, nor did he request to poll the jury at any time. Hornsby complains that fundamental and reversible error occurred when the trial court instructed the jury to return to the deliberation room and change the verdict that had been returned. He argues the trial court did not allow the original verdict to be read aloud as required by statute even though the jury had been brought into the courtroom and the jury stated it had agreed upon a verdict. He also complains that he was not afforded an opportunity to have the jury polled when the jury first announced that it had reached a verdict. Article 37.04 of the Texas Code of Criminal Procedure sets out the procedure for when the jury has agreed on a verdict: When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court. Tex. Code Crim. Proc. Ann. art. 37.04 (Vernon 2006). Article 37.05 grants the State or the defendant the right to have the jury polled. See id. In Reese v. State, 773 S.W.2d 314 (Tex. Crim. App. 1989), the Texas Court of Criminal Appeals addressed the same complaints raised by Hornsby regarding the verdict. In Reese, the jury returned the first time from deliberation and announced they had reached a verdict. Id. at 316. The trial court noticed the jury had neglected to enter a verdict on one of the charges. Id. The trial court instructed the jury to deliberate further and return with their verdict. Id. The jury again returned from deliberation, but the jury had found the defendant "guilty" of one charge and "not guilty" of a lesser-included charge, thereby creating a conflict. See id. The trial court instructed the jury to deliberate again to correct the conflict. Id. The jury deliberated and returned a third time with a verdict that was read aloud. Id. The defendant argued on appeal that the trial court erred in not following articles 37.04 and 37.05 of the Texas Code of Criminal Procedure by sending the jury back for further deliberations without first reading the verdict, and by not giving him an opportunity to poll the jury before sending the jury back for further deliberations. Id. The defendant did not object at any time to the jury being sent back to deliberate and did not request a jury poll at any point. Id. at 316, 318. The Texas Court of Criminal Appeals approved of the procedure used by the trial court. The same procedure was utilized by the trial court in the instant case. See id. at 318. We overrule Hornsby's fourth issue. Last, Hornsby asserts he has been denied a complete record on appeal because, at the time Hornsby filed his brief, State's Exhibits Nos. 1 through 37, and Defendant's Exhibit No. 2 were missing from the record. At or before the time for perfecting an appeal, an appellant must request in writing that the official court reporter prepare the reporter's record and the appellant must designate which exhibits to include. Tex. R. App. P. 34.6(b)(1). The court reporter is responsible for filing any exhibits requested by the parties. Tex. R. App. P. 34.6(a). If a relevant exhibit is omitted from the reporter's record, any party or the appellate court may direct the reporter to file a supplemental reporter's record containing the omitted exhibit. Tex. R. App. P. 34.6(d). If someone other than the trial court clerk has possession of an original exhibit, we may order that person to turn over the exhibit to the clerk. See Tex. R. App. P. 34.6(g)(1). The rules anticipate supplementation of the appellate record to include for review any relevant item omitted from the record. See Tex. R. App. P. 34.6(c), 34.6(d). If a dispute regarding the record's accuracy arises after the record is filed, the appellate court "may submit the dispute to the trial court for resolution. . . . [and] [t]he trial court must proceed as under subparagraph (e)(2)." Tex. R. App. P. 34.6(e)(3), 34.5(e)(2). On May 22, 2007, we issued an order ordering the court reporter of the Criminal District Court of Jefferson County, Texas to forward the omitted exhibits to the Court's Clerk on or before June 1, 2007. In response to the order, we received the original exhibits requested. We notified defense counsel that the original exhibits had been filed. After the filing of the original exhibits, Hornsby has not further challenged the authenticity of the original exhibits filed. We overrule Hornsby's fifth issue. The trial court's judgment is affirmed. AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted on July 17, 2007 Opinion Delivered January 16, 2008 Do not publish Before Gaultney, Kreger and Horton, JJ.