Rodolfo Martinez Alvarez v. State ( 2018 )

NUMBER 13-17-00214-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RODOLFO MARTINEZ ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Rodolfo Martinez Alvarez appeals his conviction for aggravated assault,
a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West, Westlaw
through 2017 1st C.S.). A jury returned a guilty verdict and assessed punishment of
fifteen years’ imprisonment in the Texas Department of Criminal Justice-Institutional
Division and a $7,500 fine. The trial court sentenced appellant accordingly. By one
issue, appellant argues that the trial court abused its discretion when it overruled
appellant’s Rule 403 objection to photographic evidence. We affirm.
I. BACKGROUND
Appellant was involved in a high-speed vehicle collision, injuring Y.C. and killing
Y.C.’s nine-year-old daughter P.C. 1 A grand jury returned a three-count indictment
charging appellant with (1) the murder of P.C., (2) aggravated assault by causing serious
bodily injury to Y.C., and (3) intoxication assault of Y.C. The State proceeded to trial on
count 2 only.
Y.C. testified that she was driving to Wal-Mart in Victoria, Texas late at night.
P.C., who was wearing a seat belt, was asleep in the backseat of her vehicle, a 2001 Ford
Expedition. As Y.C. neared Wal-Mart, she told P.C. it was time to wake up. Y.C. then
noticed a vehicle turning on the road behind her, exiting the Two Step Bar. She observed
a vehicle’s headlights approaching at a high rate of speed in her driver’s side mirror. The
next thing Y.C. remembered was waking up in the emergency room. Y.C. suffered a
broken arm, broken ribs, lacerations to her head, and a collapsed lung. Y.C. was
informed by her husband and hospital staff that P.C. was in a coma and would likely never
regain consciousness. She decided with her husband to take P.C. off of life support.
The State introduced as State’s exhibit 1 a photograph of P.C. taken prior to the accident
and approximately six months before her death. The trial court admitted the exhibit over
appellant’s Rule 403 and relevancy objections. See TEX. R. EVID. 402, 403. The trial
court also admitted State’s exhibit 10, two photographs of P.C. lying on an examination
1 We use initials to refer to the minor decedent and her family to protect their privacy.
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table following her death, over appellant’s same objections.
Brandon Allen, an officer with the Victoria Police Department, testified concerning
his investigation of the accident, which included an accident reconstruction. Officer Allen
testified that the speed limit at the site of the collision was fifty miles per hour. Officer
Allen determined through his investigation, which included reviewing data from the “black
box” of appellant’s vehicle, that appellant was travelling approximately eighty-nine miles
per hour when his vehicle rear-ended Y.C.’s vehicle. As a result of the impact, Y.C.’s
vehicle left the roadway, became airborne while spinning and rolling, before coming to
rest in a ditch 441 feet away. Officer Allen stated that even at such a high rate of speed,
appellant should have been able to avoid colliding with Y.C.’s vehicle.
Caesar Villarreal, a corporal with the Texas Department of Public Safety, testified
that he reviewed data downloaded from the airbag control module of appellant’s vehicle.
Corporal Villarreal stated that appellant’s vehicle was travelling at a speed of ninety-four
miles per hour just prior to impact and eighty-nine miles per hour at the point of impact,
which caused appellant’s vehicle to slow by 21.97 miles per hour. According to Corporal
Villarreal, the data showed that appellant did not brake or take evasive action prior to the
collision.
Blair Cerny, an officer with the Victoria Police Department, testified that he
responded to the scene of the accident. Officer Cerny observed that Y.C. was conscious
and that she was bleeding profusely from her face and head. He also observed P.C.
slumped over in the backseat. The doors to the vehicle would not open, so Officer Cerny
leaned through a shattered window to make contact with P.C. He noticed that P.C. was
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unconscious and her breathing irregular, but he detected a pulse. Officer Cerny stayed
with P.C. to monitor her condition. When P.C.’s pulse stopped, he then decided to
remove P.C. from the vehicle. With the aid of another officer, they removed P.C. by
pulling her through the window. At that point, P.C. was attended to by emergency
medical responders.
Austin Carter, an emergency medical technician for the Victoria Fire Department,
responded to the scene of the accident. Carter testified that he spoke to appellant to
determine if he required medical attention, which appellant refused. According to Carter,
appellant stated that he recently consumed “three to four beers.” Carter stated that
appellant’s breath smelled of alcohol.
John Maresh, a Victoria Police Department officer, made contact with appellant at
the accident scene. Officer Maresh observed appellant behind the wheel of a Ford F-
350 truck with heavy front-end damage. Appellant was unable to recall any details
concerning the accident. Officer Maresh detected a strong odor of alcohol once
appellant exited the vehicle. He also observed that appellant’s eyes appeared
bloodshot, glassy, and watery.
After appellant was assessed by an emergency medical technician, Officer Maresh
administered field sobriety tests. The trial court admitted a dash-cam video recording
showing the administration of the tests. Officer Maresh observed all six clues of
intoxication when administering the horizontal gaze nystagmus test. During the walk and
turn test, Officer Maresh observed appellant fail to maintain balance, walk heel to toe,
maintain a straight line, turn properly, and take the correct number of steps—all clues of
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intoxication. When asked to balance on one leg, appellant used his arms for balance,
swayed, and put his foot down several times. Officer Maresh concluded that appellant
was intoxicated and placed him under arrest.
Officer Maresh requested that appellant provide a voluntary blood specimen.
Appellant declined to do so, but he said that “he probably had too many or it was over the
limit.” Officer Maresh obtained a search warrant to secure a sample of appellant’s blood.
He then transported appellant to the hospital and observed the drawing of appellant’s
blood. The trial court admitted a laboratory report prepared by the Texas Department of
Public Safety Crime Laboratory which showed that appellant’s blood alcohol
concentration was 0.101 grams of alcohol per 100 milliliters. 2
Cynthia Savage, M.D., a physician at Citizens Medical Center, testified that
appellant was brought to the emergency room following the accident where she examined
him. The trial court admitted appellant’s medical records which indicated that appellant
appeared to be intoxicated and smelled of alcohol.
Matthew Janzow, M.D., treated Y.C. for her injuries. Janzow testified that Y.C.
suffered scalp and back lacerations, a broken arm, eight broken ribs, and a bruised and
collapsed lung. Janzow stated that Y.C. was at risk of death and permanent
disfigurement had her injuries not been treated.
Jeorg-Ann Nevins, a friend of Y.C., testified that on the night of the accident she
carried a sleeping P.C. to Y.C.’s vehicle. Nevins placed P.C. in the driver’s side back
2 A person is intoxicated under the Texas Penal Code if the person’s alcohol concentration is .08
grams of alcohol or more per 100 milliliters of blood. TEX. PENAL CODE ANN. § 49.01(2)(B) (West, Westlaw
through 2017 1st C.S.).
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seat and secured her seat belt with the shoulder strap in front of P.C. Nevins later saw
P.C. at the hospital and noticed a bruise on her face and neck. Nevins stated that the
bruising was located in the area where the seat belt would have contacted P.C.’s body.
Nevins also testified that signs of bruising could be seen on P.C.’s face in State’s exhibit
10.
The State also asked Nevins to identify State’s exhibit 2, which she described as
a photograph of P.C. taken just prior to the accident. Appellant objected to the admission
of the photograph under Texas Rules of Evidence 403 and 404. See id. R. 403, 404.
The State responded that the photograph was admissible to demonstrate that P.C.’s face
was not bruised prior to the accident and that the bruising following the accident
demonstrated that P.C. was wearing a seatbelt. The trial court overruled appellant’s
objections and admitted the exhibit.
The jury found appellant guilty of aggravated assault. The jury also made an
affirmative finding that appellant used or exhibited a deadly weapon during the
commission of the offense. This appeal followed.
II. DISCUSSION
In his sole issue, appellant argues that “[t]he trial court erred by admitting, over
defense objections under Texas Rule of Evidence 403,” State’s exhibits 1, 2, and 10.
A. Standard of Review and Applicable Law
We review a trial court’s decision to admit or exclude evidence under an abuse-of-
discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
A trial court abuses its discretion when its decision lies outside the zone of reasonable
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disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A
trial court’s ruling will be upheld if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002).
Rule 403 provides that, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 403. Rule 403 favors the admission of
relevant evidence and carries a presumption that relevant evidence will be more probative
than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). A
photograph is generally admissible if verbal testimony about the matters depicted in the
photograph is also admissible. See Young v. State, 283 S.W.3d 854, 875 (Tex. Crim.
App. 2009). Rule 403 requires that a photograph possess some probative value and that
its inflammatory nature not substantially outweigh that value. Williams v. State, 301
S.W.3d 675, 690 (Tex. Crim. App. 2009).
A court may consider several factors in determining whether the danger of unfair
prejudice substantially outweighs the probative value of photographs, including the
number of exhibits offered, their gruesomeness, their detail, their size, whether they are
in color or black and white, whether they are close-up, and whether the body depicted is
clothed or naked. See Young, 283 S.W.3d at 875. But a court should not be limited by
this list. Id. It should also consider the availability of other means of proof and the
circumstances unique to each individual case. Id.
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B. Analysis
Appellant argues that “[w]hile the three photos of [P.C.] would likely be admissible
at the trial of an indictment alleging that [P.C.] was the victim of a murder or other
homicide, it should not be so at the trial of an indictment for aggravated assault on her
adult mother.” (Emphasis in appellant’s brief). Appellant posits that the probative value
of the photos was “to show that a vehicle can indeed serve as a deadly weapon.”
However, appellant argues that this purpose “was thoroughly satisfied when the State
produced evidence of [Y.C.’s] serious bodily injuries from the crash.” The State
responds that evidence of P.C.’s death was indeed relevant to establish appellant was
using his vehicle as a deadly weapon during the commission of the aggravated assault.
The State also maintains that pictures of P.C. in life gave the jury a point of reference to
compare to P.C.’s facial injuries depicted in State’s exhibit 10. The State further notes
that the exhibits are not unnecessarily cumulative or particularly gruesome.
We find the court of criminal appeals’ decision in Prible v. State instructive. 175
S.W.3d 724 (Tex. Crim. App. 2005). In that case, the defendant was convicted of capital
murder for shooting and killing two people during the same criminal offense. Id. at 726.
The State’s evidence established that the defendant also murdered the complainants’
three children in setting a fire to cover up the murders of the parents. Id. at 727. The
court held that evidence of the children’s death was admissible under Texas Rule of
Evidence 404 as same-transaction contextual evidence. Id. at 732. “[I]t was not an
abuse of discretion in this case for the trial court to conclude that the murders of [the
parents] and deaths, by smoke inhalation, of their three children were so connected that
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they formed an indivisible criminal transaction.” Id. The court explained that “testimony
about the children’s deaths fills in gaps of the interwoven events and consequences of a
defendant’s criminal conduct and thus helps the jury to understand the case in context.”
Id.
Next, the court concluded that the admission of evidence concerning the children’s
death did not violate Rule 403. Id. at 733. Such evidence was probative in that it
corroborated witness testimony that the defendant knew the children were in bed when
he set the fire. Id. Therefore, the court concluded that the evidence tended to show
that it was the defendant who committed the crime. Id. Regarding the prejudicial effect
of the evidence, the court explained, “No matter how angry the jury might have been about
the children’s deaths, that emotional response could be connected to appellant only if the
jury first found that he caused their parents’ death.” Id.
The court then concluded that the admission of crime scene photographs depicting
the children’s bodies did not violate Rule 403. Id. at 734. In each of the photographs,
the children were clothed and their bodies were covered in soot. Id. at 735. The
children were not mutilated or charred. Id. The court determined that the danger of
unfair prejudice from the admission of the photos was small. Id. The court continued:
“The crime scene photographs depicting the location and condition of the children’s
bodies were limited in number, and the State focused on them only to the extent
necessary to explain the neighbor’s and firefighters’ attempts to account for all the
inhabitants of the house and to corroborate [a witness’s] testimony.” Id.
Finally, the court concluded that the admission of autopsy photographs of the
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children depicting dissected body parts violated Rule 403 but that such error was
harmless. Id. at 737–38. The court reasoned in part that “at the time of their admission,
the jury had already seen and heard about the disturbing circumstances of the children’s
deaths through properly admitted photographs and testimony.” Id. at 738.
Like Prible, this case involves the admission of evidence pertaining to the death of
a child, which resulted from the same criminal transaction for which appellant was being
tried. Accordingly, evidence that P.C. died in the collision was relevant and admissible
as same-transaction contextual evidence. See id. at 732; see also Wyatt v. State, 23
S.W.3d 18, 25 (Tex. Crim. App. 2000) (explaining that evidence of another crime, wrong,
or act may be admissible as same-transaction contextual evidence where several crimes
are intermixed, or blended with one another, or connected so that they form an indivisible
criminal transaction, and full proof by testimony of any one of them cannot be given
without showing the others). Furthermore, such evidence was probative of whether or
not appellant used his vehicle as a deadly weapon during the commission of the offense
of aggravated assault, a question which the jury answered in the affirmative. See TEX.
PENAL CODE ANN. § 1.07(17)(B) (West, Westlaw through 2017 1st C.S.) (defining deadly
weapon as “anything that in the manner of its use or intended use is capable of causing
death or serious bodily injury”); Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App.
2016) (explaining that the entry of a deadly weapon finding affects a defendant’s eligibility
for parole).
With respect to the complained of photographs, we conclude that they are no more
prejudicial than the crime scene photographs in Prible. State’s exhibits 1 and 2 depict
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P.C. prior to her death—exhibit 1 shows P.C. months earlier, exhibit 2 shows P.C. hours
before the accident. State’s exhibit 10 contains two photographs of P.C. lying on an
examination table following her death. One of the photographs shows a close-up of
P.C.’s face and neck. No injuries are apparent in the photograph aside from a faint
bruise on P.C.’s face. The second photograph depicts P.C.’s full body from the side.
While P.C. is not clothed, a cast covering her left leg obscures her lower half. Other than
the cast, there are no injuries indicated in the photograph.
The State’s focus on these photographs was primarily limited to corroborating
testimony that P.C. was properly secured with a seatbelt. This was done by highlighting
bruising where the shoulder strap would have contacted P.C. The four photographs
contain no gruesome depictions. While they are in color, they do not show in great detail
the injuries sustained and do not appear to be atypical in size. The number of
photographs was not voluminous, and the State’s introduction of the evidence did not
consume an inordinate amount of time. We also note, as did the court in Prible, that any
emotional response by the jury to the photographs would not be connected to appellant
unless the jury first found that appellant was responsible for the accident. See Prible,
175 S.W.3d at 733.
Where elements of a photograph are genuinely helpful to the jury in making its
decision, and the photograph’s power “emanates from nothing more than what the
defendant himself has done[,] we cannot hold that the trial court has abused its discretion
merely because it admitted the evidence.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex.
Crim. App. 1995). The trial court’s determination that the photographs’ probative value
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was not substantially outweighed by a danger of unfair prejudice was not outside the zone
of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Therefore, we
conclude that the trial court did not abuse its discretion in overruling appellant’s Rule 403
objection. See Weatherred, 15 S.W.3d at 542.
Even if we were to find error in the admission of the photographs, we would not
conclude that appellant was harmed by the error. Error in the admission of evidence is
non-constitutional error. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91,
93 (Tex. Crim. App. 2011); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston
[1st Dist.] 2008, no pet.). We disregard any non-constitutional error that does not affect
a defendant’s substantial rights. Barshaw, 342 S.W.3d at 93. “A substantial right is
affected when the error had a substantial and injurious effect or influence in determining
the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing Morales v. State, 32 S.W.3d 862,
867 (Tex. Crim. App. 2000)). We should not reverse a conviction for non-constitutional
error if, after examining the record as whole, we have “fair assurance that the error did
not influence the jury, or had but a slight effect.” See id. (citing Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998)).
In making this determination, we consider the entire record, including any
testimony and physical evidence admitted for the jury’s consideration, the nature of the
evidence supporting the verdict, the character of the alleged error, and how it might be
considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d
510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim.
App. 2002). The weight of evidence of the defendant’s guilt is relevant in conducting the
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harm analysis under rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App.
2008); Motilla, 78 S.W.3d at 356–57. We may also consider the closing statements and
voir dire, jury instructions, the State’s theory, any defensive theories, and whether the
State emphasized the alleged error. Motilla, 78 S.W.3d at 355–56.
Similar to Prible, the jury had already heard evidence about the circumstances of
P.C.’s death. Appellant identifies no characteristic of the photographs that would tend to
be more harmful than other properly admitted evidence. The State did not overly
emphasize the photographs. Rather, as noted above, the State’s discussion consumed
very little of the trial. Moreover, evidence of appellant’s guilt was strong. Appellant, who
recently left a bar, was operating his vehicle while legally intoxicated. He collided with
Y.C.’s vehicle from behind at a velocity which exceeded the speed limit by forty miles per
hour. Furthermore, appellant did not brake and took no evasive action to avoid the
collision. Finally, there was ample evidence that Y.C. suffered serious bodily injury as a
result of the collision. The admission of photographs of P.C., even if erroneous, did not
violate appellant’s substantial rights.
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of August, 2018.
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