Ewings v. State, No. 07-08-0132-CR (Tex. App. 2/23/2009)
| Decision Date | 23 February 2009 |
| Docket Number | No. 07-08-0132-CR.,07-08-0132-CR. |
| Parties | LAWYAR T. EWINGS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 108th District Court of Potter County, No. 54359-E, Honorable Abe Lopez, Judge.
Panel A: Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Lawyar T. Ewings, pled guilty to murder.1 During the punishment phase of trial, he attempted to mitigate his punishment by asserting that he acted under the influence of sudden passion arising from an adequate cause.2 The jury did not find Appellant caused the death under the influence of sudden passion and they sentenced him to confinement for thirty-five years. In a single issue, Appellant contends the trial court erred by admitting photographs of the crime scene and the victim's injuries that were irrelevant, inflammatory, repetitious, and more prejudicial than probative. We affirm.
Appellant and Jessica Termain were involved in an ongoing relationship for a number of years during which he supplied her with money and/or drugs in return for sex. Although Appellant was aware that she also traded sex with other men for money and/or drugs, he was not bothered so long as she did not show affection toward other men in his presence. Nevertheless, their relationship was troubled by her addiction and prostitution which were a constant source of discord between them.
On September 15, 2006, Appellant and Felicia Mahone, his cousin, went to the Wishing Well Bar at approximately 1:00 p.m. At the bar, they met Termain and Appellant purchased crack cocaine at her request. Before leaving the bar, Appellant and Termain argued about where she was going to stay. Appellant wanted her to go with him and she wanted to remain at the bar. Later, at dusk, Termain accompanied Mahone and Appellant to his apartment where she smoked crack while Appellant and Mahone continued drinking. Appellant and Termain also continued to argue about where she would be staying. Termain wanted a ride across town. Before departing, Appellant placed his loaded, twelve gauge shotgun in the backseat of his truck.
Later that evening, Appellant and Mahone returned to the Wishing Well. As he drove up, Appellant observed Termain kissing Billy Ray. He became upset because he had bought crack for her and she was with another man. When he approached to speak with her, she told him to get away and leave her alone. Appellant walked away for a time but returned and said: "Bitch, you mess with too many men, you're trying to get somebody killed." Appellant and Mahone then left the Wishing Well and drove to another bar where they continued drinking.
Early in the morning of September 16, Appellant returned to the Wishing Well looking for Termain. He pulled his truck into a parking area adjacent to a site where homeless people camped out across the street from the Wishing Well and observed Termain sitting on a mattress across from Larry Frazier, a homeless man. He "[didn't] know if they were making out," but "[he] thought they might be making out . . . because of the way they were laying together . . . [i]t was suspicious to [him]." He also observed Termain was not wearing the same shirt she was wearing when she left his apartment earlier that night.
Appellant got out of his truck and retrieved the loaded shotgun from the back seat. He walked over to where Termain was sitting and made an angry utterance.3 Termain said nothing. He then leveled the shotgun at her face, leaned in, and pulled the trigger.
During the punishment phase of trial, Appellant testified as follows:
Appellant placed his shotgun back in the truck and Mahone drove him home. Less than an hour after the shooting, Appellant called the police from a pay phone. He told the dispatcher that he thought he had "just killed someone" and that he believed he was dreaming. Shortly thereafter, he was taken into custody, confessed to shooting Termain, and signed a written statement.
Prior to commencing the punishment phase of trial, the trial court conducted a hearing to determine whether to exclude certain photographs of the crime scene and Termain's injuries that the State intended to present to the jury. Appellant's counsel contended that certain photographs were repetitious, inflammatory, and more prejudicial than probative. The trial court noted that the photographs contained gore and excluded a number of them. The jury subsequently assessed punishment at confinement for thirty-five years.
Appellant asserts that the photographs unfairly prejudiced the jury and resulted in a sentence that fell within the punishment range applicable to a conviction for first degree felony murder rather than second degree felony murder. In support, he contends the photographs were irrelevant because, due to his guilty plea, any issues of cause and manner of death were undisputed and the evidence was cumulative because the State offered testimonial evidence related to the crime scene and Termain's injuries. He also contends the photographs were more prejudicial than probative because of their gruesome nature and repetitive presentment.
The admissibility of a photograph is within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). We will not disturb a trial court's ruling admitting or excluding evidence so long as the trial court's decision falls within the "zone of reasonable disagreement." See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996).
A trial court has wide discretion in deciding the admissibility of evidence presented at the punishment phase of trial. Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The Texas Code of Criminal Procedure provides that, whether punishment is assessed by the trial judge or the jury, the circumstances of the offense for which the defendant is tried may be considered. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). Further, the State's right to introduce evidence during the punishment phase of trial is not restricted by the entry of a plea by the defendant or an admission of facts sought to be proved by the State. York v. State, 566 S.W.2d 936, 938 (Tex.Crim.App. 1978).
Here, the photographs of the crime scene and victim were probative of the circumstances related to the shooting and the nature of the fatal wound Appellant inflicted on Termain. As such, they were relevant, or helpful, to the jury in tailoring an appropriate sentence for Appellant. See Williams v. State, 176 S.W.3d 476, 481 (Tex.App.-Houston [1st Dist.] 2004, no pet.). This is particularly so because Appellant asserted that he caused Termain's death under the immediate influence of sudden passion arising from an adequate cause.4 That the jury also heard testimony regarding the injuries depicted by the photographs did not necessarily reduce the relevance of the visual depiction. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006), cert. denied, 549 U.S. 1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2007). Accordingly, we find the trial court correctly determined that the photographs were relevant "to enable the jury to intelligently exercise their discretion which the law vests in them to assess [Appellant's] penalty." York, 566 S.W.2d at 938. We must next determine whether the photographs were more prejudicial than probative.
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." See Tex. R. Evid. 403. We consider the following four factors when reviewing a trial court's evidentiary ruling under Rule 403: (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. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). We also consider 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 the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment. See Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992). In sum, "[i]f 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 helpful aspects." Erazo, 144 S.W.3d at 491-92.
Appellant objects to thirty-four color photographs admitted as State's Exhibits 43-48, 50, 52-67, 69, 71, 73-74, 78-83, 85 and 87. The photographs were admitted into evidence in conjunction with the testimony of Jimmy Rifenberg, the Amarillo Police Department crime scene investigator who documented the crime scene and Termain's injuries and were briefly published to the jury by projection onto a screen.5 The photographs provided a logical progression leading the jury through the crime scene, assisted the jury...
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