Terry v. State, 45614
| Decision Date | 24 January 1973 |
| Docket Number | No. 45614,45614 |
| Parties | Judy TERRY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Douglas Tinker, Corpus Christi, for appellant.
William B. Mobley, Jr., Dist. Atty., Phillip Westergren and Irma Rangel, Asst. Dist. Attys., Corpus Christi, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The jury in this cause found appellant guilty of the offense of murder without malice; the court assessed punishment at five years and this appeal is taken from the conviction.
The evidence shows that the victim of this homicide was the infant son (approximately one month and three days old) of the appellant and her husband.
Appellant complains of the admission in evidence of eight color pictures.
Recently, in Martin v. State, Tex.Cr.App., 475 S.W.2d 265, we discussed the admissibility of pictures in evidence and the holding therein is controlling. We will further elaborate and then determine if the pictures are admissible in the instant case.
Photographs are admissible in evidence on the theory that they are pictorial communications of a witness who uses them instead of, or in addition to, some other method of communication. Thus, they are admissible on the same grounds and for the same purposes as are diagrams, maps, and drawings of objects of places, and the same rules of admissibility applicable to objects connected with the crime apply to photographs of such objects. This is true whether they are originals or copies, black and white or colored. So, a photograph, proved to be a true representation of the person, place, or thing which it purports to represent, is competent evidence of those things of which it is material and relevant for a witness to give a verbal description.
And, we again pont out, as we did in Martin v. State, supra, and Lanham v. State, Tex.Cr.App., 474 S.W.2d 197, that the admission in evidence of photographs must necessarily rest largely in the discretion of the trial judge, who determines whether they serve a proper purpose in the jury's enlightenment, and his action will not be disturbed in the absence of a showing of an abuse of discretion.
Now, to the case at bar. Eight color slides were introduced and shown on a screen so the jury could view them. The first three (State's Exhibits 2, 3, and 4) show the nude body of the child depicting many bruises; the next (State's Exhibit 5) is an X-ray showing a broken bone in an arm; the remaining four (State's Exhibits 6, 7, 8, and 9) show areas of the body after an autopsy had been performed.
The first three pictures, though gruesome, are admissible as they corroborate the verbal description and bring visibly to the jury the details of the crime by showing the location, nature and extent of the wounds or injuries to the body of the deceased child. Their probative value far outweighs any probable prejudicial effect on the jury. This is especially true since the appellant testified to a single, unintentional act of dropping the child and the pictures show what the jury could reasonably conclude to have been a continual assault.
The X-ray showing the broken arm is admissible. It bears on the degree of the atrociousness of the crime. Such proves a relative issue and enables the jury to better understand the testimony.
Now, we come to the pictures of parts of the body after an autopsy had been...
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