Efrain Lopez v. State , 478 S.W.3d 936 ( 2015 )

Affirmed and Opinion filed October 22, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00758-CR
EFRAIN LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1428270
OPINION
A jury convicted appellant Efrain Lopez of capital murder and assessed his
punishment at life imprisonment. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon
Supp. 2014). Appellant contends that the trial court committed reversible error by
(1) denying appellant’s motion to dismiss the case for failure to provide a speedy
trial; and (2) admitting an allegedly prejudicial photograph of appellant into
evidence.
BACKGROUND
Appellant and three other men entered the home of Guadalupe Sepulveda on
September 12, 2005, and stole jewelry, guns, marijuana, and cocaine. Sepulveda
was wounded by gunfire during the incident and his brother, Daniel Zamora, was
killed. Appellant and the three other men wore black clothes and gloves, and
covered their faces. This incident, which forms the basis of appellant’s conviction
below, is referred to as the “Loma Vista” case because it occurred at 6401 Loma
Vista Street.1
On December 16, 2005, appellant was arrested for an unrelated aggravated
assault. A day after his arrest, appellant was indicted for a capital murder
committed on Bunker Hill Road (the “Bunker Hill” case).2 Appellant was
represented by attorney Gerald Fry in the Bunker Hill case. Both the Bunker Hill
case and the Loma Vista case were linked to the La Tercera Crips gang.
Appellant remained incarcerated from 2005 to 2011 pending trials in the
aggravated assault and Bunker Hill cases. Appellant was indicted in the Loma
Vista case on May 11, 2011. Joseph Salhab was appointed to represent appellant
in the Loma Vista case on June 14, 2011.
Appellant filed a pro se motion for speedy trial on October 31, 2013, in
which he contended that he was ready for trial in both the Bunker Hill and Loma
Vista cases at all times. In an apparent reference to the Bunker Hill case, appellant
1
The Loma Vista case originally was filed as Cause No. 1305940, and, upon reindictment, as
Cause No. 1428270. Appellant was reindicted for the Loma Vista murder on May 9, 2014, to
correct a mistake made in the original indictment. Originally, the indictment alleged that
appellant caused the death of Zamora while in the course of committing and attempting to
commit the robbery of Zamora. The new indictment alleged that appellant caused the death of
Zamora in the course of committing and attempting to commit the robbery of Sepulveda.
2
The Bunker Hill case was filed under Cause No. 1050629, and was still pending at the time
appellant was convicted of the Loma Vista capital murder.
2
argued that his right to a speedy trial “began upon his arrest approximately three
months prior to return of indictment.” Before this motion was filed, however,
appellant and Salhab signed eleven agreed resets in the Loma Vista case between
June 14, 2011, and September 6, 2013,3 with the final one setting the case for
disposition on February 5, 2014.
Appellant filed a pro se motion to dismiss the indictment in the Loma Vista
case for denial of a speedy trial on December 19, 2013. Appellant alleged that he
was arrested for the Loma Vista case twice: first on October 10, 2005, after which
he was released following a 24-hour hold, and again on December 16, 2005.
Appellant argued that the delay could not be attributed to him or his counsel.
Appellant further argued that the delay caused him to suffer oppressive pre-trial
incarceration and anxiety, and compromised his ability to present his case due to
lost evidence and unavailable witnesses.
Six agreed resets occurred in the Loma Vista case between February 5,
2014, and June 30, 2014, with the final one setting a trial date of August 29, 2014.
Salhab filed a motion on August 29, 2014, to dismiss the Loma Vista indictment
for failure to provide a speedy trial in which he adopted appellant’s October and
3
A twelfth agreed reset entered on January 24, 2013, and resetting the case for disposition on
September 6, 2013, is not evidenced by a reset form in the record on appeal. However, the
record includes the trial court’s docket sheet, which reflects a January 24, 2013 entry stating
“Reset By Agreement Of Both Parties, 9/06/2013 09:00 AM Disposition.” The State asserts that
“from December 13, 2011 until the day of trial, defense counsel had signed agreed resets,” and
appellant does not dispute this contention. We conclude that the record supports the existence of
the January 24, 2013 agreed reset. See Zamorano v. State, 84 S.W.3d 543, 650 (Tex. Crim. App.
2002) (noting that the docket sheet reflected 22 resets); McIntosh v. State, 307 S.W.3d 360, 368
(Tex. App.—San Antonio 2009, pet. ref’d) (reviewing docket sheet entries as evidence that trial
was reset); see also Page v. State, 690 S.W.2d 102, 103 (Tex. App.—Houston [14th Dist.] 1985,
pet. ref’d) (“The trial docket sheet reflects a long and confusing list of resets. However,
appellant and the state are basically in agreement as to the sequence of events prior to August 1,
1983.”).
3
December 2013 pro se motions. A hearing on the motion to dismiss was held the
same day.
At the hearing, defense co-counsel Deborah Summers argued that the
passage of time since appellant’s May 11, 2011 indictment in the Loma Vista case
established a sufficiently prejudicial delay to trigger an analysis addressing
whether appellant was denied his right to a speedy trial. See generally Barker v.
Wingo, 407 U.S. 514, 530 (1972) (court must consider length of delay, reason for
the delay, defendant’s assertion of the right, and prejudice to the defendant).
The State called Spence Graham to testify at the hearing. Graham became
felony chief prosecutor of the 179th District Court in May 2009 and was in charge
of handling approximately 30 capital murder cases pending in that court, including
appellant’s Bunker Hill case.
After reviewing the evidence in the Bunker Hill case — which included
evidence of other homicides and aggravated robberies linked to the La Tercera
Crips gang — Graham concluded appellant was “worthy of being charged in the
Loma Vista capital murder.” Graham further testified that a search warrant was
issued regarding the Loma Vista investigation, but that Graham held off filing
charges against appellant in the Loma Vista case at Fry’s request while plea
negotiations were ongoing in the Bunker Hill case.4 Graham testified that he and
Fry did not want to jeopardize the potential Bunker Hill plea deal — which
involved appellant agreeing to testify for the State in another capital murder case
— by indicting appellant in the Loma Vista case.5 Appellant was indicted in the
Loma Vista case after the Bunker Hill plea negotiations broke down. Once the
4
The record does not reflect when the search warrant was issued.
5
Fry contradicted Graham’s testimony at the hearing and denied asking Graham to refrain from
filing the Loma Vista charges.
4
Loma Vista charges were filed and Salhab was appointed to represent appellant in
that case, Graham had a lengthy discussion with Salhab “to get him up to speed.”
Graham further testified that the defense was not yet ready for trial when he left the
179th District Court in December 2011.
At the conclusion of the hearing, the State argued that it had been ready for
trial at least since early March 2014. When the trial was set for July 2014,
appellant was in quarantine for medical reasons and unable to appear. The State
also claimed that Salhab did not want to try the case in July 2014 and had urged the
trial court to reset the case. Salhab confirmed that appellant had been in quarantine
and was unable to communicate with Salhab during the three weeks preceding the
July 2014 trial setting. The trial court denied appellant’s motion and trial was set
for September 2, 2014.
A four-day trial was held beginning on September 3, 2014. The jury found
appellant guilty of capital murder and assessed his punishment at life
imprisonment.
ANALYSIS
I. Right to a Speedy Trial
In his first issue, appellant contends that his Sixth Amendment right to a
speedy trial was violated because he was incarcerated for eight years and nine
months without a trial. Appellant argues that the trial court erred in denying his
motion to dismiss the case because his right to a speedy trial attached when
appellant became an accused. Appellant contends that he became an accused in
the Loma Vista case when he was arrested on December 16, 2005.
5
A. When Did the Appellant Become an Accused?
“[T]he Sixth Amendment speedy trial provision has no application until the
putative defendant in some way becomes an ‘accused,’ . . . .” United States v.
Marion, 404 U.S. 307, 313 (1971); see Gonzales v. State, 435 S.W.3d 801, 808
(Tex. Crim. App. 2014). Generally, a person becomes an accused “once he is
arrested or charged.” Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App.
2008). However, there may be instances where a person may invoke his right to a
speedy trial prior to a formal indictment. See Marion, 404 U.S. at 320-21. A
person must be an accused in the course of the prosecution for which he invokes
his speedy trial right. Marion, 404 U.S. at 313.
Mere investigation of a crime is insufficient for a person to become an
accused for purposes of the speedy trial right. See Gonzales, 435 S.W.3d at 812.
The State is not required to discover, investigate, or accuse a person within any
particular period of time. Marion, 404 U.S. at 313. In other words, “[t]here is no
Sixth Amendment right to a speedy indictment.” State v. Kuri, 846 S.W.2d 459,
464 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d), overruled on other
grounds by Johnson v. State, 954 S.W.2d 770 (Tex. Crim. App. 1997).
Appellant contends he became an accused in the Loma Vista case on
December 16, 2005, when he was arrested for an unrelated aggravated assault,
because (1) he was questioned by detectives regarding the Loma Vista case on
December 16, 2005; (2) a co-defendant who was questioned on December 16,
2005, implicated appellant in the Loma Vista case; and (3) a “search warrant [was]
executed in December of 2005 [that] related almost entirely to the facts
investigators had uncovered in their investigation of the Loma Vista incident.”
Evidence that appellant was questioned about the Loma Vista case, and that
a co-defendant implicated appellant in that case, was not presented to the trial court
6
at the speedy trial hearing. Therefore, we cannot consider this evidence in
assessing whether the trial court erred in denying appellant’s motion at the hearing
before trial. See Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App.
1984) (“When appellate courts are asked to determine whether the trial court erred
in overruling a pretrial motion the general rule is that we consider only evidence
adduced at hearing on that motion and do not resort to testimony subsequently
elicited at trial because the ruling in issue was not based on the latter.”). In regard
to the search warrant, appellant does not identify the facts investigators “uncovered
in their investigation” or explain how these facts establish that appellant became an
accused in the Loma Vista case on December 16, 2005.
At the speedy trial hearing, appellant acknowledged that the December 16,
2005 arrest occurred in connection with charges unrelated to the Loma Vista case;
no contrary evidence was presented. This record does not establish that appellant
became an accused in the Loma Vista case on December 16, 2005. Based on the
record before us, we conclude that appellant became an accused in the Loma Vista
case when he was indicted in that case on May 11, 2011.
We next address whether the trial court erred in denying appellant’s motion
to dismiss the Loma Vista case for failure to provide a speedy trial based upon the
time that elapsed between the indictment in May 2011 and the trial in September
2014.
B. Speedy Trial Analysis
To trigger a speedy trial analysis, an accused first must allege that the
interval between accusation and trial has crossed the threshold dividing ordinary
delay from “presumptively prejudicial” delay. Doggett v. United States, 505 U.S.
647, 651-52 (1992). There is no bright-line rule for determining when a delay
violates the right to a speedy trial. Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim.
7
Ohio App. 1985); Webb v. State, 36 S.W.3d 164, 172 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d). “[T]he length of delay that will provoke such an inquiry is
necessarily dependent upon the peculiar circumstances of the case.” Barker, 407
U.S. at 530-31. The more serious and complex a crime is, the more tolerable a
delay becomes. Id. at 531. “In general, delay approaching one year is sufficient to
trigger a speedy trial inquiry.” Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.
App. 2003); see Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). “[T]ime covered by agreed resets is to be excluded
from speedy trial consideration.” Celestine, 356 S.W.3d at 507 (citing Caicedo v.
State, 769 S.W.2d 597, 598 (Tex. App.—Houston [14th Dist.] 1989, no pet.)); see
also Kuri, 846 S.W.2d at 463 (“[A]greement to various resets is inconsistent with
assertion of a speedy trial right.”).
Once the length of the delay passes the required threshold and is determined
to be presumptively prejudicial, the court must balance four factors set out in
Barker, 407 U.S. at 530, to determine whether the right to a speedy trial was
violated. See Doggett, 505 U.S. at 652. The factors are (1) length of delay; (2)
reason for the delay; (3) defendant’s assertion of the right; and (4) prejudice to the
defendant caused by the delay. Barker, 407 U.S. at 530. The Barker factors must
be considered together, rather than independently, to establish a violation of the
right to a speedy trial. Cantu, 253 S.W.3d at 281; State v. Wei, 447 S.W.3d 549,
553 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
The State must justify the length of the delay, while the defendant must
establish assertion of the right and prejudice. Cantu, 253 S.W.3d at 280. “The
defendant’s burden of proof on the latter two factors ‘varies inversely’ with the
State’s degree of culpability for the delay.” Id. “In reviewing the trial court’s
ruling on appellant’s federal constitutional speedy trial claim, we apply a
8
bifurcated standard of review: an abuse of discretion standard for the factual
components, and a de novo standard for the legal components.” Zamorano v.
State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). All of the evidence must be
viewed in the light most favorable to the trial court’s ruling. Cantu, 253 S.W.3d at
282.
Appellant argues the State failed to provide any direct evidence justifying
the delay that occurred between January 2012 and the trial in September 2014.
The State counters that “from December 13, 2011[,] until the day of trial, defense
counsel had signed agreed resets. Hence these periods should be excluded from
speedy trial consideration.” Appellant does not dispute the State’s assertion
regarding the existence of agreed resets; instead, he urges us to disregard our
precedent in Celestine and Kuri and include agreed resets in computing the length
of the delay. We reject this invitation because we must follow our precedent
absent an intervening decision from a higher court or from this court sitting en
banc. Medina v. State, 411 S.W.3d 15, 20 n.5 (Tex. App.—Houston [14th Dist.]
2013, no pet.). Appellant has identified no such decision that would allow us to
depart from Celestine or Kuri. Accordingly, we exclude time attributed to agreed
resets when assessing a speedy trial computation. See Celestine, 356 S.W.3d at
507; Kuri, 846 S.W.2d at 463.
As for the time period between appellant’s indictment on May 11, 2011, and
December 13, 2011, the record shows that only approximately two months are not
attributable to agreed resets. The Court of Criminal Appeals has previously held
that a period of approximately four months “could in no way be construed as
‘presumptively prejudicial.’” Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App.
1973). Accordingly, a two-month delay is insufficient to trigger a speedy trial
analysis.
9
Moreover, even if we were to consider the State’s apparent concession that
the period between May 11, 2011, and December 13, 2011, was not covered by
agreed resets, such delay would amount to approximately seven months.6 A delay
of seven months would not be considered presumptively prejudicial in light of this
case’s complexity. See State v. Thomas, 453 S.W.3d 1, 5 (Tex. App.—Dallas
2014, no pet.) (mem. op.) (seven-month delay was not presumptively prejudicial);
see also State v. Jones, Nos. 05-05-00154-CR & 05-05-00155-CR, 2005 WL
2841210, at *1 (Tex. App.—Dallas Oct. 31, 2005, pet. ref’d) (not designated for
publication) (same); Rountree v. State, No. 01-90-00382-CR, 1991 WL 84056, at
*3 (Tex. App.—Houston [1st Dist.] May 23, 1991, no pet.) (not designated for
publication) (same); but see State v. Owens, 778 S.W.2d 135, 138 (Tex. App.—
Houston [1st Dist.] 1989, pet. ref’d) (seven-month delay was presumptively
prejudicial for an ordinary street crime), overruled on other grounds by Johnson v.
State, 954 S.W.2d 770 (Tex. Crim. App. 1997).
Because the length of delay in this case is not a presumptively prejudicial
delay, we need not conduct a Barker analysis. We conclude that appellant’s right
to a speedy trial was not violated. We overrule appellant’s first issue.
II. Admission of Evidence
Appellant contends in his second issue that the trial court erred in admitting
into evidence a photograph of appellant wearing a blue bandana and holding two
shotguns while allegedly displaying a gang tattoo and a gang sign. Appellant
6
This apparent concession by the State may simply be a misstatement. The State contends that
“[f]rom December 13, 2011 on, defense counsel had signed agreed resets, right up until the day
of the speedy trial hearing,” and that “[t]he instant case shows that from December 13, 2011 until
the day of trial, defense counsel had signed agreed resets.” However, the State then cites to a
number of agreed resets in the record in support of that contention, including five agreed resets
covering the majority of the period between June 14, 2011, and December 13, 2011.
10
argues that the photograph was prejudicial and added no probative value to the
State’s argument.
“Although 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.” Tex. R. Evid. 403, 60 Tex. B.J. 1134 (1998,
superseded 2015).7 We review the trial court’s decision to admit or exclude
evidence under Texas Rule of Evidence 403 for an abuse of discretion. Rodriguez
v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Burton v. State, 230
S.W.3d 846, 849 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The
admissibility of a photograph rests within the trial court’s sound discretion and is
based on a determination of whether the exhibit serves a proper purpose in
assisting the factfinder. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex. Crim.
App. 1991). An abuse of discretion occurs when the photograph has little
probative value and great inflammatory potential. Id. at 647. The trial court is
usually in the best position to determine whether evidence should be admitted or
excluded. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
Unless the trial court’s determination is so clearly wrong as to lie outside the zone
within which reasonable persons might disagree, we must uphold its ruling. Id.;
Hartis v. State, 183 S.W.3d 793, 801-02 (Tex. App.—Houston [14th Dist.] 2005,
no pet.). The balance between probative value and the potential for prejudice “is
always slanted toward admission, not exclusion, of otherwise relevant evidence.”
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
7
The Texas Court of Criminal Appeals adopted revisions to the Texas Rules of Evidence, except
as to Rules 511 and 613, effective April 1, 2015. See Final Approval of Amendments to the
Texas Rules of Evidence, Misc. Docket No. 15-001 (Tex. Crim. App. Mar. 12, 2015). We cite to
the previous version of Rule 403 because appellant’s trial occurred in 2014, before the effective
date of the amendments.
11
Additionally, a Rule 403 analysis must balance (1) the inherent probative
force of the proffered item of evidence along with (2) the proponent’s need for that
evidence against (3) any tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to confuse or distract the jury
from the main issues, (5) any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
The indictment charges appellant with intentionally and knowingly causing
the death of Daniel Zamora by shooting Zamora with a deadly weapon, namely a
firearm, while in the course of committing and attempting to commit the robbery
of Guadalupe Sepulveda. The record shows that the cause of Zamora’s death was
a shotgun wound and gunshot wounds to the torso and thigh. Sepulveda testified
that one of the individuals who robbed him had a camouflage-patterned shotgun.
On direct examination, appellant’s wife Yeni Rivas was shown two
photographs, State’s Exhibits 30 and 35. State’s Exhibit 35 is a photograph date-
stamped June 25, 2005, showing a group of men including appellant holding guns;
some of the men depicted in State’s Exhibit 35 display what appear to be gang
signs. The photograph was not offered into evidence or shown to the jury. Exhibit
30 is a cropped version of Exhibit 35 depicting only appellant wearing a blue
bandana and holding two shotguns. Rivas testified as follows:
[THE STATE:] I want to show you what I’ve marked for
identification as State’s Exhibit 35. Do you recognize the individuals
in this photograph?
[RIVAS:] Yes, ma’am.
12
[THE STATE:] Is the defendant one of the individuals in this
photograph?
[RIVAS:] Yes, ma’am.
[THE STATE:] On the date that this photograph was taken, were you
at this location with the four people that are depicted in this
photograph?
[RIVAS:] Yes, ma’am.
* * *
[THE STATE:] And showing you what’s been marked for
identification purposes as State’s Exhibit 30, is that a portion of that
photograph?
[RIVAS:] Yes, ma’am.
[THE STATE:] And who is the individual depicted in that
photograph?
[RIVAS:] That’s [appellant].
[THE STATE:] Were you there then when that photograph was
taken?
[RIVAS:] Yes, ma’am.
[THE STATE:] And the date of June 25th of 2005, does that date
appear to be accurate to you as well, based on your memory of having
been there?
[RIVAS:] Yes, ma’am.
State’s Exhibit 30 was not offered into evidence at that time.
On cross-examination, Rivas testified that she had not seen appellant with a
shotgun around the time of the Loma Vista murder. On redirect examination,
Rivas testified:
13
[THE STATE:] You were asked on cross-examination whether you
had ever seen the defendant with a shotgun before. I want to show
you the photos again that I showed you yesterday, State’s Exhibit 35,
and then a portion of State’s Exhibit 35 marked for identification as
State’s Exhibit 30. I believe you stated you were there at the time this
photo was taken?
[RIVAS:] Yes, ma’am.
[THE STATE:] Now, was Alejandro Garcia at this location where
this photo was taken at the time it was taken?
[RIVAS:] No, ma’am.
[THE STATE:] And I believe you stated yesterday that this was in
fact [appellant] depicted here in the photograph?
[RIVAS:] Yes, ma’am.
[THE STATE:] And is that a fair picture? Is that what he was doing
on that date, June 25th of 2005, when you were there at that location?
[RIVAS:] Yes, ma’am.
The State then offered State’s Exhibit 30 into evidence over the defense’s
objection. In a bench conference outside the presence of a jury, the State argued
that “the door was open[ed] when defense counsel asked [Rivas] if she had ever
seen the defendant with a shotgun and she said that she had not.” The trial court
overruled the objection and admitted State’s Exhibit 30 into evidence.
Appellant argues that State’s Exhibit 30 lacked probative value because (1)
the photograph was needlessly cumulative of Rivas’s testimony that she
remembered appellant in a photograph holding shotguns, and (2) the State put forth
other evidence at trial that appellant had access to a camouflage-patterned shotgun
like the one seen by Sepulveda at the time of the murder, and the photograph
therefore was needlessly cumulative without direct evidence that the shotgun in the
photograph was the same shotgun used to kill Zamora.
14
Appellant argues that the photograph added no probative value because
“Rivas had already stated in front of the jury that she remembered that [a]ppellant
had taken a picture holding shotguns in 2005.” However, contrary to appellant’s
assertion, Rivas was asked only to identify who was in the picture — she was not
asked what the person in the picture was doing or holding. In any event,
photographs are generally relevant and admissible if verbal testimony as to the
contents of the photograph is also admissible. Williams v. State, 958 S.W.2d 186,
195 (Tex. Crim. App. 1997). This photograph was probative to clarify Rivas’s
testimony, which was muddied when Rivas testified on cross-examination that she
had not seen appellant with a shotgun around the time of the Loma Vista murder.
See Cantu v. State, 994 S.W.2d 721, 732 (Tex. App.—Austin 1999, pet. dism’d)
(“The trial court may have determined that the [autopsy] pictures were probative to
clarify the medical examiner’s testimony.”). The jury was not aware that Rivas’s
testimony contradicted what she saw the day before because the photographs had
not been introduced or described. Introducing State’s Exhibit 30 provided the jury
context and clarified that Rivas had in fact seen appellant previously with a
shotgun. The State took steps to eliminate any prejudicial effect from poses struck
by others shown in State’s Exhibit 35 by cropping State’s Exhibit 30 so that only
appellant was depicted.
Additionally, State’s Exhibit 30 was relevant to corroborate Sepulveda’s
testimony that one of the assailants had a camouflage-patterned shotgun, and to
provide evidence that appellant had access to a shotgun matching that description
before the murder.
Appellant argues that State’s Exhibit 30’s prejudicial effect outweighed any
probative value because it shows appellant wearing a blue bandana, exhibiting an
alleged gang sign with his hands, and displaying a pitchfork tattoo, all signs of
15
gang membership. In analyzing the photograph, appellant’s tattoo is too blurry to
discern, which the trial court noted. In comparison to the other individuals in
State’s Exhibit 35, appellant’s hands as shown in State’s Exhibit 30 do not exhibit
the same signal and do not appear to do anything more than hold two shotguns.
Lastly, the presence of a blue bandana alone is not sufficiently prejudicial to
outweigh the photograph’s probative value.
The trial court’s determination is not so clearly wrong as to lie outside the
zone within which reasonable persons might disagree. Thus, we conclude that the
trial court did not abuse its discretion by admitting State’s Exhibit 30 into
evidence. We overrule appellant’s second issue.
CONCLUSION
Having overruled both of appellant’s issues, we affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, McCally, and Donovan.
Publish — Tex. R. App. P. 47.2(b).
16