Lopez v. State

• Decision Date: 14 April 1982
• Docket Number: No. 3,No. 60907,60907,3
• Parties: Jesus M. LOPEZ, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 936

630 S.W.2d 936

Jesus M. LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 60907.

Court of Criminal Appeals of Texas, Panel No. 3.

April 14, 1982.

Abraham Karp, San Antonio, for appellant.

Bill M. White, Dist. Atty., Richard H. Noll and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DALLY and McCORMICK, JJ.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction of criminal negligent homicide. Punishment was assessed at 120 days and a $500 fine, probated. Appellant challenges the sufficiency of the evidence, so we will briefly highlight the facts now and discuss them more fully later in the opinion.

At 11:30 p. m., on September 1, 1977, the deceased was a passenger in a 1969 Chevrolet driven by Mrs. Trinidad Aguilar. Mrs. Aguilar was backing her car out onto Zarzamora Street from the parking lot of a Church's Fried Chicken store in San Antonio. After Mrs. Aguilar began backing out, she saw appellant's car speeding towards her. Realizing that a collision was imminent, she put her car in drive and tried to reenter the parking lot from which she had exited. Before she could enter the parking lot, her car was hit by appellant's car. Mrs. Aguilar's car was moved thirty-five feet from the point of impact to its final resting place. Immediately after the collision, both cars burst into flames. Mrs. Aguilar and her two passengers, one of whom was the deceased, were all taken to a hospital. The deceased, a seventy-nine year old woman, was first diagnosed as having a large laceration across her forehead, lacerations on her extremities and bruises around her arms. However, shortly after arriving at the emergency room, she went into full cardiac arrest and died.

In his first ground of error, appellant alleges reversible error was committed when the trial court allowed Officer Lewis to give his opinion on the speed of appellant's vehicle, such opinion being predicated solely upon the condition of the damaged vehicles after the collision. The record shows that the prosecutor asked Officer Lewis if he had an opinion as to whether or not the vehicle that struck the 1969 Chevrolet was exceeding the speed limit. At that point, appellant's attorney objected on the basis that no foundation had been laid. When the court asked for clarification of his objection, appellant's attorney argued: "First of all, he was not a witness." The court overruled the objection. The prosecution attorney then began asking questions of Officer Lewis designed to lay a predicate outlining the officer's experience and the damage sustained by the 1969 Chevrolet. The prosecuting attorney again asked the officer if he had an opinion as to the speed of the vehicle. When the officer replied affirmatively, he was asked to state his opinion. The officer testified that appellant had been traveling in excess of thirty miles an hour. There was no objection to this question and answer. Thus, appellant has failed to preserve any error for review by this Court. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978). In addition, we find that later in the trial, after appellant presented case law to the court, the jury was instructed to disregard Officer Lewis' testimony regarding the speed of appellant's car. Appellant suffered no harm. His first ground of error is overruled.

In his second ground of error, appellant asserts that the trial court committed reversible error in refusing to grant his motion for mistrial after striking out the police officer's testimony as to the speed of the appellant's car and instructing the jury not to consider that testimony for any purpose. The record shows that on the first day of trial Officer Lewis was allowed to give his opinion on the speed of appellant's car. At the beginning of the second day of trial, appellant's counsel presented case law to the court and argued that the court had erred in permitting the officer to so testify. Appellant's counsel asked the judge to instruct the jury to disregard Officer Lewis' statement and also requested the judge to grant a mistrial since the testimony was "so extreme that nothing but a mistrial could cure it." The court overruled appellant's motion for mistrial but did instruct the jury to disregard the testimony for any purpose.

"An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or 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." Carey v. State, 537 S.W.2d 757, 759 (Tex.Cr.App.1976).

In Furtick v. State, 592 S.W.2d 616 (Tex.Cr.App.1980), in which Furtick was charged with murder, the trial court allowed the admission into evidence of two white bath towels, a green bath mat and a heat register grill, all covered with stains which resembled blood and vomit. After the items were introduced, it was determined that no analysis of the stains had ever been conducted. The evidence was withdrawn and the jury was instructed to disregard it. Furtick made a motion for mistrial which was overruled. This Court approved the trial court's action, holding that if any error was committed, the court's action in withdrawing the exhibits and instructing the jury to disregard them made it harmless.

In the case at bar, we believe the trial court's instructions to disregard Officer Lewis' testimony regarding the speed of appellant's car cured any error caused by the admission of such testimony. The trial court properly overruled appellant's motion for mistrial. Appellant's second ground of error is overruled.

Appellant's third and fourth grounds of error contend the trial court committed reversible error in admitting a series of colored slides showing the deceased with bloody wounds and then allowing the State to project the slides onto a screen by means of a slide projector. Appellant made a timely objection and now argues the slides inflamed the minds of the jury and were not probative of any material issue. The State contends the slides were admissible as a pictorial description of the deceased's injuries.

If a photograph is competent, material and relevant to an issue at trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body is admissible, then a photograph depicting the same is admissible. Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). Slides, like still photographs and motion pictures, are admissible when they are properly authenticated, relevant to the issue and not violative of the rules of evidence for the admissibility of photographs. Cotlar v. State, 558 S.W.2d 16 (Tex.Cr.App.1977). In the instant case, verbal descriptions of the body of the deceased were admissible. The slides were properly authenticated by the doctor who attended the deceased. Therefore, the trial court did not abuse its discretion in admitting the slides. Clark v. State, 627 S.W.2d 693 (1982); Burks v. State, 583 S.W.2d 389 (Tex.Cr.App.1979), cert. denied 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1136 (1980). Appellant's third and fourth grounds of error are overruled.

In appellant's fifth ground of error, he alleges that the trial court committed reversible error in denying appellant's motion for mistrial when it was brought to the court's attention that Rita Espinosa, a daughter of the deceased, had been sitting in the courtroom listening to the evidence. Appellant contends that somehow the fact that this individual was sitting in the courtroom violated the Rule which had been invoked at the beginning of trial. Article 36.03, V.A.C.C.P. The record shows that the woman was examined by the court and counsel for both the State and the appellant. The woman clearly testified that, although she had sat through the two previous days of trial, she had not spoken with any of the witnesses. It is well established that the object to be attained by placing witnesses under the Rule is to prevent one witness from being influenced by the testimony of another. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970). It is clear from the record that Rita Espinosa was not a witness in the case. There is nothing in the record to show that she conversed with any of the witnesses. If indeed there was injury done, appellant should have requested a bill of exceptions, called the witnesses to the stand and asked them if they had discussed the testimony with Rita Espinosa. Since no injury has been shown, we find that the judge did not commit reversible error in denying appellant's motion for mistrial. Appellant's fifth ground of error is overruled.

Next, appellant contends he was denied a fair trial due to the continuous, leading questions posed by the prosecutor. Appellant's presentation of this ground of error makes it difficult for this Court to locate said errors as appellant's brief furnishes us with only page and line numbers of twenty-three instances of supposedly leading questions. Close scrutiny of these references show that several of them are not pertinent to this ground of error. It would be better practice to quote the actual questions and answers complained of in the brief.

In Hill v. State, 144 Tex.Cr.R. 57, 161 S.W.2d 80 (1941), this Court said:

"Asking harmless leading questions is not commended; yet we note that the courts seldom reverse a case because questions are leading."

In the instances complained of which refer to leading questions, the judge sustained every objection voiced by appellant's counsel. We find that no...