Mayfield v. State

• Decision Date: 31 January 1991
• Docket Number: No. 13-89-382-CR,13-89-382-CR
• Citation: 803 S.W.2d 859
• Parties: Richard Lee MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 859

803 S.W.2d 859

Richard Lee MAYFIELD, Appellant, v. The STATE of Texas, Appellee.

No. 13-89-382-CR.

Court of Appeals of Texas Corpus Christi.

Jan. 31, 1991.

Mark Alexander, McAllen, for appellant.

Theodore C. Hake and Rene Guerra, Dist. Attorney's Office, Edinburg, for appellee.

Before NYE, C.J., and SEERDEN and HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

A jury found appellant, Richard Lee Mayfield, guilty of aggravated robbery. One prior felony offense was alleged in the indictment for enhancement purposes. The jury assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division, plus a $10,000.00 fine. By seven points of error, appellant brings this appeal. We affirm the trial court's judgment.

The State's evidence shows that in the early morning of January 22, 1988, Glen Weathers was working alone at Perez' Exxon station in McAllen, Texas. Appellant came in and wanted to know where he could get a room. Weathers told him that the Red Carpet Inn had rooms. Appellant gave Weathers a dollar and asked for change. Weathers gave him change and heard coins drop into the Coke machine. Appellant told him that the machine did not work. Weathers pushed a selection button, and a Dr. Pepper dropped out. Appellant told Weathers that he wanted a Coke instead of a Dr. Pepper. Weathers told him that he would return his change. As Weathers started to open the cash register, appellant came up behind him and said, "All right. Give me all your money." Weathers turned around, and appellant shot him with a chrome-plated firearm. Weathers said that appellant held the gun about waist high. His arm was not extended. At the time of the alleged robbery, only Weathers and appellant were in the station. The defense was an alibi.

By point one, appellant complains that the trial court erred in admitting two photographs into evidence and allowing the jury to view the victim's surgical scar. During the guilt-innocence phase, the State offered into evidence Weathers' photograph. The photograph shows Weathers lying in bed, wearing an oxygen mask. Weathers' surgeon testified that the photograph fairly and accurately represented the way Weathers looked when the photograph was taken. Counsel objected that the photograph was not relevant and that its prejudicial and inflammatory nature outweighed its probative value. The photograph was admitted into evidence.

Rule 403 of the Texas Rules of Criminal Evidence governs the admissibility of photographs. Madden v. State, 799 S.W.2d 683, 696 (Tex.Crim.App.1990). Rule 403 states that "[a]lthough 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." Rule 402 provides that "[a]ll relevant evidence is admissible.... Evidence which is not relevant is inadmissible." Rule 401 provides that "[r]elevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence." Once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible under Rule 402 unless the opponent of the evidence demonstrates that it should be excluded because of some other provisions, whether constitutional, statutory, or evidentiary. Montgomery v. State, No. 1090-88, slip op. at 4 (Tex.Crim.App. May 30, 1990) (not yet reported).

It is the opponent's burden to not only demonstrate the proffered evidence's negative attributes but to show also that these negative attributes "substantially outweigh " any probative value. Montgomery, slip op. at 6; Crank v. State, 761 S.W.2d 328, 342 n. 5 (Tex.Crim.App.1988). A trial court should be allowed the discretion to exclude or admit evidence, and an appellate court should not set aside the trial court's rulings absent a showing in the record that the trial court has abused that discretion. Montgomery, slip op. at 10.

The indictment alleges that appellant caused bodily injury to Weathers by shooting him. The photograph supports the allegation that Weathers suffered bodily injury. We hold that the photograph is relevant and that the trial court did not abuse its discretion in admitting the photograph.

During the punishment phase, counsel pointed out to the trial court that appellant's pen packet included a photograph of appellant. He argued that the photograph is not relevant and that its prejudicial effect outweighed its probative value. The trial court admitted the pen packet into evidence. At the punishment phase, the State may prove that a defendant is a person previously convicted of a crime. See Daniel v. State, 585 S.W.2d 688, 690 (Tex.Crim.App.1979). One method of doing this is to introduce certified copies of the judgment, sentence and record of the Texas Department of Corrections or a county jail including the accused's fingerprints supported by expert testimony identifying them with the defendant's known prints. Daniel, 585 S.W.2d at 690. Here, the State needed to show that the pen packet belonged to appellant. Even though the State showed that the fingerprints included with the pen packet matched appellant's known prints, the photograph was necessary to show identity. We hold that the photograph is relevant and that the trial court did not abuse its discretion in admitting the photograph.

During the guilt-innocence phase, counsel argued to the trial court that allowing the jury to view Weathers' surgical scar would evoke their sympathy. He also argued that the scar's appearance was not relevant and that its prejudicial effect outweighs its probative value. A scar is inadmissible if it has an ugly, ghastly or revolting appearance or condition that could be reasonably calculated to influence and prejudice appellant's rights with the jury. Salinas v. State, 363 S.W.2d 265, 266 (Tex.Crim.App.1962); Phillips v. State, 770 S.W.2d 824, 828 (Tex.App.--El Paso 1988, no pet.). Weathers' scar is twelve to fourteen inches long and appears on his abdomen. There is nothing to indicate that Weathers' scar had such an appearance. Here, the scar supports the allegation that Weathers suffered bodily injury. We hold that the scar is relevant and that the trial court did not abuse its discretion in allowing the jury to view the scar.

By point two, appellant contends that the State's conduct denied him due process and a fair trial. Through sixteen subpoints, appellant cites numerous instances of alleged prosecutorial misconduct. By subpoint A, appellant complains that the State invited him to testify. During a pre-trial hearing, the State said that appellant had something to say. Assuming the State invited appellant to testify, the State's remark was made outside the jury's presence. Therefore, it could have no harmful effect.

By subpoint B, appellant complains that the State commented that counsel was being misleading and that the State gave an "unsworn jury speech." Appellant refers to several pages of voir dire examination. Appellant made no objections to the State's comments. Failure to object at trial waives error, if any. Drew v. State 743 S.W.2d 207, 220 (Tex.Crim.App.1987); Esquivel v. State, 595 S.W.2d 516, 522 (Tex.Crim.App.1980), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1981); Tex.R.App.P. 52(a); Tex.R.Crim.Evid. 103(a)(1). Moreover, a mistrial will not be granted during voir dire unless the complained-of statement injects injurious and prejudicial matters before the panel which are reasonably calculated to prevent a fair trial before an impartial jury. Herring v. State, 758 S.W.2d 849, 853 (Tex.App.--Corpus Christi 1988, pet. ref'd). None of these comments inject injurious or prejudicial matters which are reasonably calculated to prevent a fair trial before an impartial jury.

By subpoint C, appellant complains that the State repeatedly led a witness and summed up testimony. Officer Avila testified that he asked two motel clerks, Pena and Bryant, if they had seen anybody fitting the suspect's description. The State asked Avila, "So Pena and Bryant based on the description that you have given them are now saying the individual--." At this point, counsel objected. Here, counsel did not allow the State to finish its question. Therefore, we cannot determine whether the State is leading or summing up testimony.

Later, the State asked Avila, "You then leave to tell your sergeant, and while you are gone you overhear over the radio that the description has changed; is that correct, sir?" Avila answered, "Yes." At this point, counsel objected. A timely objection is required in order to preserve error regarding the alleged improper admission of evidence. Tex.R.App.P. 52(a). In order for the objection to be considered timely, it must be made as soon as the ground for the objection becomes apparent. Thompson v. State, 691 S.W.2d 627, 635 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985); Villalobos v. State, 756 S.W.2d 847, 852 (Tex.App.--Corpus Christi 1988, no pet.). Here, the alleged grounds for objection became apparent at the moment the State completed its question. Appellant has not shown good cause for the delayed objection. Therefore, nothing is preserved for review.

The State also asked Avila, "Okay. Would you tell the ladies and gentlemen of the jury if you then informed the clerk of the change in the description of the suspect?" Appellant objected that the State was leading its witness. The trial court overruled the objection. Even though the question may be leading, the mere asking of a question does not constitute reversible error where no new fact is injected and no statute is violated. Kirkpatrick v. State, 515 S.W.2d 289, 294 (Tex.Crim.App.1974); Tovar v. State...