Steven TriDung Trinh v. State

Appellant=s Motion for Rehearing Overruled; Opinion of September 25, 2007 Withdrawn; Affirmed and Substitute Memorandum Opinion filed November 1, 2007 Appellant=s Motion for Rehearing Overruled; Opinion of September 25, 2007 Withdrawn; Affirmed and Substitute Memorandum Opinion filed November 1, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-06-00875-CR _______________ STEVEN TRIDUNG TRINH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1053996 S U B S T I T U T E  M E M O R A N D U M  O P I N I O N Appellant=s motion for rehearing is overruled. We withdraw our memorandum opinion issued on September 25, 2007 and issue this substitute opinion. A jury found appellant guilty of capital murder. The trial court assessed an automatic life sentence. In four issues, appellant contends the trial court erred in admitting four photographs at trial because their probative value was substantially outweighed by the danger of unfair prejudice and the presentation of cumulative evidence. All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background In the winter of 2005, Huan Vudoan and complainant, Luan Pham, were students at Dobie High School in Pasadena, Texas. After complainant became friends with Vudoan=s ex-girlfriend, the two men were involved in a number of physical altercations. Complainant ultimately approached school officials and complained about two specific incidents. In the first incident, Vudoan broke the windows of complainant=s car, shooting them with a BB gun. In the second incident, which occurred in the cafeteria before school, Vudoan and Thuan Vu wrestled complainant from behind while Vudoan struck complainant in the head. After an investigation, a school district police officer, Mark Grice, filed assault and criminal mischief charges against Vudoan. Apparently in retaliation for bringing the charges, and to keep complainant from testifying against him, Vudoan hired appellant and Micheal Tran to kill complainant. On the afternoon of February 23, 2005, appellant and Tran met complainant at his home. The three went to a What-A-Burger restaurant; their presence was captured on the restaurant=s video surveillance equipment. During the visit to the restaurant, phone records indicate that appellant contacted Vudoan. After eating, the three men returned to complainant=s home to play video games. When complainant fell asleep on the couch, either appellant or Tran placed a pillow over his head and appellant shot complainant in the head with a .9 millimeter handgun at least three times. Appellant and Tran subsequently left the home. Complainant was discovered dead by his mother at 8:00 p.m., when she returned home and removed the pillow from his head. Houston Police Department Officer Robin Young conducted an investigation of the crime scene, recovering six fired cartridge casings and four fired bullets. She documented the crime scene with photographs, including photographs of complainant=s body from various angles. Dr. Mary Anzalone performed the autopsy. She discovered five bullet wounds in complainant=s head, and concluded that any one of them would have been fatal. She documented the autopsy in photographs. During the course of the investigation, officers questioned Thuan Vu, who implicated appellant, among others. After the police contacted him, appellant made a statement admitting his involvement in the shooting. Appellant was eventually arrested. At trial, eyewitnesses, police investigators, and Dr. Anzalone testified for the State. The jury returned a verdict convicting appellant of capital murder. II. Admission of Photographs Appellant contends the trial court erred by admitting four photographs: three taken by Officer Young at the crime scene and one taken by Dr. Anzalone prior to the autopsy. Under the Texas Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or the needless presentation of cumulative evidence. Tex. R. Evid. 403. Appellant claims that these four photographs should have been excluded because their probative value was substantially outweighed by the danger of unfair prejudice and the photographs were cumulative of other evidence. We disagree. A. AUnfair Prejudice@ Objection We review a trial court=s decision to admit evidence under an abuse of discretion standard. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). We will not second guess the determination of the trial court if its decision is within the zone of reasonable disagreement. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). Proper rule 403 analysis should include, but is not limited to, the following considerations: (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. Montgomery v. State, 810 S.W.2d 372, 389B90 (Tex. Crim. App. 1990). In evaluating whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, we also consider the following non-exclusive factors: the number of photographs, the size of the photographs, whether the photographs are in color or black and white, whether the photographs are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Narvaiz, 840 S.W.2d at 429); Whitmore v. State, 183 S.W.3d 522, 531 (Tex. App.BHouston [14th Dist.] 2006, no pet.). Appellant claims that the probative value of the four photographsBState=s Exhibits 2, 4, 13, and 71Bwas substantially outweighed by the danger of unfair prejudice because he did not dispute the location of the body or the fact that complainant was shot, the State had little need for the evidence, and the photographs were gruesome. However, we cannot conclude the trial court abused its discretion. Exhibits 2 and 13 are photographs of complainant=s entire body taken at the crime scene from different angles. Each shows complainant=s body laying on the couch next to a bloody pillow and illustrates the wounds to complainant=s head and the location of blood spatter on complainant=s shirt. Exhibit 4 is a close-up of complainant=s upper body taken at the crime scene and depicts injuries to complainant=s head as well as blood spatter on complainant=s hands and shirt. Exhibit 71 depicts the condition of complainant=s body as it was received by the Harris County Medical Examiner. The photograph shows complainant from his waist up and illustrates the injuries to his face as well as concentrations of blood on complainant=s clothing. This photograph was taken before the autopsy and therefore depicts only the wounds resulting from the offense; it does not show any alteration of the body caused by the autopsy. The relevant factors weigh in favor of admissibility. The photographs are probative because they support the State=s theory that complainant was killed by a gunshot wound to the back of the head. The photographs had only a slight potential to impress the jury in an irrational way because they depicted only the results of appellant=s actions. The State used little time to develop the evidence. The testimony developing the four photographs consists of only two out of 294 pages of trial testimony. Finally, the State had a need for the contested photographs. They corroborated the testimony of Officer Young, the crime scene investigator, and Dr. Anzalone, the medical examiner. Additionally, the photographs aided the jury=s understanding of complainant=s injuries and the general nature of the crime. Turning to the other relevant factors, all four photographs at issue are eight by ten and three quarters inches or smaller. All four photographs are in color: Exhibit 2 is a glossy color print and Exhibits 4, 13, and 71 are color copies. Nevertheless, the fact that the photographs are in color does not outweigh the factors in favor of admissibility.[1] While the photographs of complainant=s body taken at the crime scene and prior to the autopsy may be somewhat disturbing to jurors unused to viewing such images, they are not especially gruesome. The photographs depict only the consequences of appellant=s actions, and to the extent the photographs are gruesome, they are no more gruesome than the facts of the offense. See Sonnier, 913 S.W.2d at 519 (stating that a trial court does not err merely by admitting gruesome photographs when the gruesomeness Aemanates from nothing more than what the defendant has himself done@); see also Johnson v. State, 32 S.W.3d 388, 396 (Tex. App.BHouston [14th Dist.] 2000, no pet.) (recognizing the fact that a crime scene photograph is gruesome will seldom, in itself, render the photograph inadmissable under rule 403). Complainant is clothed in each of the four photographs, although in State=s Exhibit 71 complainant=s shirt has bunched around his chest exposing a portion of his midriff. Lastly, the photograph of complainant=s body taken before the autopsy shows the body as it was received in the morgue; it depicts no alteration of complainant=s body due to the autopsy. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002) (stating that autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself). In sum, the trial court=s finding that the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice was within the zone of reasonable disagreement. B. ACumulative@ Objection Appellant argues that admission of the four photographs also violated rule 403 because they are cumulative of other admitted photographs. However, rule 403 does not require the exclusion of all cumulative evidence; rather it requires exclusion if the probative value of the evidence is substantially outweighed by the needless presentation of cumulative evidence. See Tex. R. Evid. 403. The State introduced nine photographs taken at the crime scene depicting some part of complainant=s body.[2] Exhibits 3, 11, and 15 show complainant=s body laying on the couch from different angles and emphasize different points of interest. Exhibits 5, 6, and 7 focus on complainant=s legs and show different spatters of blood on the couch. Exhibits 8 and 9 depict complainant=s shirt and illustrate different concentrations of blood on his shirt and the couch. In contrast, exhibits 2, 4, and 13, the photographs-at-issue taken at the crime scene, focus on the wounds to complainant=s head. Although all the photographs are cumulative to the extent that they all show some aspect of complainant=s injuries, the complained of photographs are not needlessly cumulative because they allowed the jury to see complainant=s head injuries in greater detail than the other exhibits. The State also introduced seventeen photographs taken during the autopsy.[3] Exhibits 73, 74, 75, 78, 79, 81, 82, 83, 84, and 85 are close-up views of entrance and exit wounds on complainant=s body. Exhibits 76, 77, and 80 are X-ray photographs detailing the location of bullets and bullet fragments. Exhibits 87 and 88 focus on complainant=s hair before it was shaved to reveal his injuries. Exhibit 72 depicts complainant=s face, after it was cleaned in preparation for the autopsy. In contrast, Exhibit 71, the photograph-at-issue taken before the autopsy, shows complainant as he was received at the morgue. This photograph was taken before complainant had been cleaned and prepared for the autopsy, and it emphasizes the condition in which appellant left complainant. Therefore, we cannot conclude that it is needlessly cumulative of the other photographs. Accordingly, the trial court did not abuse its discretion by admitting the photographs because the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice or the needless presentation of cumulative evidence. We overrule appellant=s four issues. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Substitute Memorandum Opinion filed November 1, 2007. Panel consists of Justices Yates, Seymore, and Edelman.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] In our original disposition, we reviewed only black and white copies of the photographs at issue. A review of the appellate record has uncovered two sets of photographs, one set black and white and another set color. We have reviewed the color copies of the photographs at issue, and although color is a factor weighing against admission of the photographs, our conclusion that the trial court did not abuse its discretion in admitting the four photographs at issue is unchanged. [2] State=s Exhibits 2-9, and 15. [3] State=s Exhibits 71-85, 87, and 88. * Senior Justice Richard H. Edelman sitting by assignment.