Biondi Vernard Rolle v. State

Strickland, 691, 104 S.Ct. 466 U.S. at test. fact of the case is not

2052. essential shooting admitted to dispute: Considering totality of the

the victim.

circumstances, say cannot that the re we appel would have been different

sult prosecution’s to objected counsel

lant’s appel questioning. Accordingly,

line issue is overruled.

lant’s second

CONCLUSION appellant’s first respect

With issues, has failed meet

third showing trial burden of counsel’s stan- fell below reasonable

performance had,

dard, for coun- or that if it then but performance, the outcome trial

sel’s respect

would have been different. With issue, find we appellant’s second prosecution’s questioning line

improper, but the error was nevertheless Therefore, because counsel’s

harmless. fall below a reasonable

conduct did not

standard, has to meet failed

high required satisfy burden first

prong the Strickland ineffective assis- Accordingly,

tance of test. we counsel appeal,

overrule three issues judgment of the

and we affirm the trial

court. ROLLE, Appellant,

Biondi Vernard

v. Texas, Appellee.

The STATE of

No. 14-10-01168-CR. Texas, Appeals

Court of (14th Dist.).

Houston

April 2012.

Discretionary Review Refused

May 37.071, § 1 Proc. Ann. art.

Tex.Code Crim. (Vernon contends Supp.2011). Appellant that a new trial is warranted because erroneously admitted into trial court photo murder autopsy evidence an child; unborn victim’s charge affirm. was erroneous. We

BACKGROUND an Appellant and his moved into wife apartment directly apartment above the Yvonne girlfriend, Guillermo Rubio and his initially Although couples Sanchez. friendly eventually had a relationship, began feuding dispute after over electricity. owed for borrowed amount escalated include several dispute to involving in- arguments yelling and one up Rubio appellant stance in which chased then apartment to his staircase door. kicked February three a.m. Shortly before to gun- Rubio awoke the sound of shots in his bedroom and saw a tall shad- owy doorway. near his Rubio at- figure tempted chase the but could to individual not him. Rubio to his catch returned apartment, unresponsive, found Sanchez police. had been called Sanchez asleep shot twice while in her bed—once angle at a from a behind the ear downward feet, three distance of one to and once instantly. died back. She Houston, Goode, appel- Kenneth E. for preg- Sanchez was almost six months lant. nant Paramedics when she shot. Caird, Houston, Jessica Alane for state. to the in an effort hospital rushed Sanchez child, Panel Justice died consists Chief save the unborn but the child HEDGES Justices BOYCE and delivery via cesa- shortly postmortem after CHRISTOPHER. rean a result prema- section as of extreme turity. OPINION officer responding informed the Rubio BOYCE,

WILLIAM J. Justice. responsible believed Appellant’s for wife was shooting. A jury convicted Biondi Ver- incident; home at the time of the murder, alone nard Rolle of the trial via cell spoke after wife punishment court assessed automatic agreed come home. imprisonment parole. phone, appellant life without scene up jury. walked about 30 I Appellant think that a 404-403 review of Appellant 40 minutes later. was asked this prejudice would find that the accompany police the officers they would show would outweigh any station, two gave where he statements. probative value. Appellant admitted in his second state- IAnd want to state the record that other men ment he and two were alleged State’s that my client present apartment, Rubio’s and that he killed person more than one in the same kicked Rubio’s door. claimed episode. They’ve criminal alleged bur- of the other entered one individuals Ru- habitation, glary of a intentional killing apartment and shot Sanchez. bio’s during the committing course of burgla- giving was arrested after his ry of a habitation. I think they So have charged ap- second statement. The State sufficient photos evidence by murder, pellant indictment with deceased, Sanchez, Yvonne as in named alleging that he Sanchez’s death caused the indictment. I think And this is ex- during committing the course of or at- tra, it. don’t need tempting burglary to commit a of a habi- and, And I also object also, to relevance A tation owned Rubio. convicted object to materiality. imposed and the court appellant, trial Honor, Your [STATE]: we would at mandatory imprisonment sentence of life least ask photos one of the be introduced See Tex. Penal Code Ann. parole.

without evidence, into because it is so tied in 12.31(a) (Vernon 2011). Appellant § filed mean, with this case. I we have the timely appeal. child,

autopsy of the and we’ve talked ANALYSIS about the fact that she was pregnant. We have the doctor who’s going deliv- Photograph I. Admission of baby er—who delivered the as the next Appellant argues in his first issue that witness It’s all coming in. relevant to trial court by admitting erred an au- the case. topsy photograph of Sanchez’s unborn mean, I these murders occurred at the into guilt- child evidence trial’s same time. There is no—not—we’re not phase danger innocence because stretching here. We’re not talking prejudice substantially unfair outweighed about a murder that occurred after or value. See photograph’s probative before. happened These at the same Tex.R. Evid. 403. time. into And it’s so tied the case that A. Preservation we ask at be photo least one introduced. State sought pho- The to introduce two Okay. I’m going [THE COURT]: tographs Sanchez’s unborn child your objection overrule and allow one Appellant’s attorney objected, trial. photo be Choose one. admitted. following exchange occurred: Allow me to do that. [APPELLANT]: I think these are still [APPELLANT]: Well, my I’d like objection to state order, and I’m going any to have both; however, them I understand the objection through to State’s Exhibits 45 so, Court’s ruling. And what I would I do have an objection State’s say is I 61 would ask that be the one to Exhibits 61 and 62 for several different admitted, be 62 not be. One, record, reasons. they are—for the will be [THE admitted. 62 COURT]: identifying photographs I’m them as will not be your objec- dead admitted. And baby, baby. or the unborn I that they going think are to inflame this tion is noted for the record. size, photographs, admit- their whether photograph color number eight-by-ten white, depicts unclothed

ted as Exhibit in color are black and they are taped a tube to her back with fetus on her any they are whether gruesome, whether her face, tied umbilical legs together, her naked, bodies are clothed or and whether off, multiple identification cord tied been body depicted has body. body around her tags wrapped autopsy. altered is intact does not photographed by autopsy been altered have appear to value 1. Probative procedures. prong The Rule 403 test’s first error with preserved Appellant properly weighs in favor of exclusion because court; therefore, in the trial objection probative issue little admission of we determine whether must offense which value in relation to the reversible er- constitutes appellant was at 492. charged. id. ror. objection, the in- As noted the trial Admissibility B. alleges intentional- dictment pro Rule of Evidence 403

Texas ly in the caused Sanchez’s death while vides: committing or attempting course of relevant, may ex-

Although evidence be burglary. commit See Tex. Penal Code probative value is cluded if its substan- 19.03(a)(2) (Vernon 2011). § The indict- tially outweighed by danger the unfair of appellant mur- allege ment does not issues, the prejudice, confusion of or person during more than the dered one jury, the or considerations misleading criminal transaction. id. same See delay, presentation needless undue 19.03(a)(7)(A). § the Nor does indictment evidence. of cumulative allege the murder of an individual less admissibility 403. of a Tex.R. Evid. The years age. than ten See id. rests within the trial court’s 19.03(a)(8). Therefore, § pho- the autopsy on a determination sound discretion based if tograph any bearing at issue had little proper the exhibit serves a about whether guilt a determination of connection the finder of fact. purpose assisting with the offense with which State, 636, Ramirez v. 815 646-47 State, See v. charged. Prible 175 S.W.3d banc). (en Generally, (Tex.Crim.App.1991) (trial (Tex.Crim.App.2005) 735-36 are if verbal testi- photographs admissible by admitting its court abused discretion 12 mony depicted photo- to matters the autopsy chil- photographs color three Id. at An graphs also admissible. 647. is up dren died in fire set to the who cover proba- abuse occurs when the of discretion their au- parents; murder of admission of tive small and value Rule topsy photos violated 403 because inflammatory potential great. its cause of the children’s death was not “the proper analysis A Rule in charged and disputed” “appellant was not (1) following proba cludes factors: them”). murdering (2) evidence; the potential tive value note significant We also evidence irrational, impress yet in some pertaining pregnancy Sanchez’s (3) indelible, way; the time needed to de baby’s admitted without unborn death was evidence; (4) velop the propo objection during The who trial. doctor nent’s need for the Erazo v. evidence. death baby delivered the after Sanchez’s (Tex.Crim.App. 144 S.W.3d 2004). surrounding described the circumstances reviewing the of a When admission that few babies sur- photograph, delivery additional factors include the and testified stage gestation. The ety’s vive birth at that protect natural inclination is to weighed pound vulnerable.”). one had baby less than innocent and the delivery. respiration heartbeat or after no develop 8. Time needed to evidence per- assistant medical examiner who the autopsy formed on Sanchez and on the develop time needed to the evidence baby baby testified that died from weighs in favor admissibility. Although autopsy report An prematurity. extreme of the unborn child was baby objec- was admitted without published to the jury, State used Sanchez’s testified ob- tion. sister without the photograph while questioning a medi- about

jection pregnancy Sanchez’s witness, cal examiner the questioning of family’s that the anticipation baby would relatively witness was short regarding Aracely. be named the photograph. The State offered the Insofar as the State contends evi photograph for concurrently admission pertaining pregnancy dence to Sanchez’s than more fifteen other exhibits. value, probative the unborn baby autopsy photograph added little to Proponent’s need for the evidence Er already jury. evidence before questions We must answer three when azo, 144 S.W.3d at 498 (photograph addressing this factor: Does the propo- nothing child helpful unborn “adds nent have other available evidence to es- already-admitted testimony that the victim tablish the fact of consequence that pregnant, she knew (2) is photograph so, relevant to show? If pregnant, was and that fetus died a (3) strong how is that other evidence? Is death”). of the result mother’s the fact of consequence related to an issue Ability impress jury Erazo, that is in dispute? 2. 144 S.W.3d at way

in an indelible 495-96. The second factor to consider—the abili- Regarding these questions, ample three ty photograph impress of the in testimony during trial established that yet some irrational way indelible pregnant Sanchez that was —also fetus in weighs favor of exclusion. The State died. The State claims that the evidence that trial emphasizes court admitted “necessary appellant’s was to show that single color un- photograph of the murder of Ms. Sanchez caused death of baby born out of more than 50 admitted her daughter infant because she was too photographs; that much of the unborn young to survive outside the womb.” This body baby’s by large was covered identifi- fact never in dispute, and both the tags; body cation that the had not been delivering medical examiner and the physi- by autopsy; altered that unborn cian testified the fetus died due to baby gruesome did not appear or altered prematurity. aside from a tube attached to her nose The State did not strong have a need for a tied-off umbilical cord. cir- these While (1) of the photograph admission because cumstances bear of on whether admission had strong testimony evidence and other error, autopsy photograph was harmful photograph than the to establish that San- we do not believe aas threshold matter (2) died; chez of death the unborn they justify admission under Rule child was not an element of offense as 403’s second factor. Reese v. 33 indictment; alleged in the San- S.W.3d 239 (Tex.Crim.App.2000) (“The in dispute. unborn chez’s death was not This fac- ap- child in photograph innocent, pears tiny, in weighs and vulnerable. Soci- tor favor of exclusion. regarding intentionally murder for victed of

5. Conclusion admissibility factors knowingly causing the deaths parents the same criminal children’s factors four Given three Id. at Prible was not transaction. 726. exclusion, we in favor conclude weigh murdering the children. Id. charged abused its discretion the trial court at 736. admitting autopsy Rule 408 under child of the unborn depict- 12 color photographs Most than substantially prejudicial proba- more organs,” tongue, ed the soot-covered “neck tive. larynx, lungs of each of the three photos Id. Two of children. showed Harm C. of carbon that en- the amount material that the trial court Having determined tered the stomachs of the 22-month-old admitting single abused its discretion seven-year-old chil- child and one of baby unborn dur- Sanchez’s Id,. dren. guilt-innocence phase ing the trial, analysis. must a harm perform we Appeals of Criminal conclud- Court

Reese, 38 S.W.3d at 243. The trial court’s ed that the trial court abused its discretion erroneous admission photo- admitting autopsy color if, reviewing error the en- harmless after graphs during guilt-innocence the trial’s record, we have fair assurance the tire objection. phase Prible’s Rule 403 over but did not influence the or had error autopsy Id. State did not need the “The jury’s slight upon effect verdict. See photographs of the dissected in- children’s 44.2(b); Reese, P. Tex.R.App. fully organs explain ternal the crime ... testimony.” scene or to corroborate that the erroneous ad- Appellant argues provided “Sufficient corroboration photograph during mission this reports, testimony, autopsy witness of his phase trial was guilt-innocence photographs, and other autop- crime scene (1) placed the State “ex- harmful because sy photographs of the children’s bodies emphasis the closing-argument tensive internal had been organs before their re- (2) fetus;” the sent a note death “Furthermore, Id. the cause of moved.” during requesting deliberations the State’s disputed.” the children’s death was not (3) “[ejvidence “pictures;” appel- and of was important, appellant Id. “Most not guilt not overwhelming” given lant’s was with them.” charged murdering Id. of eyewitness testimony the absence that “Thus, probative the minimal value of the fired the fatal shots. issue, any, if autopsy photographs at was Prible, harm is informed analysis by Our substantially outweighed danger the by of the at in which of 175 S.W.3d Court unfair prejudice, confusion issues— Appeals a Criminal addressed whether focusing unduly jury’s the attention trial was based er- new warranted upon of children the deaths the rather 12 color photographs roneous admission of than of their for parents the deaths which during autopsies the of two seven- taken charged pres- needless appellant was —and year-old children and one 22-month-old cumulative Id. entation of evidence.” died in a child who from smoke inhalation concluding that the trial court After to fatal of up shooting fire set cover the Rule its discretion under the abused parents. photographs them were ad- Appeals Court of determined Criminal guilt-innocence phase mitted of under Texas Rule Prible’s trial. at 735. Prible con- error harmless Id. 44.2(b). matter, Id. at Appellate of Procedure As threshold is room there 737.1 about any non-subjec- discussion whether tive exist for analyzing means relative concluding In Prible’s substantial impact single color photograph depict- affected, rights were not noted court ing an intact fetus as compared sup- that other in the evidence record impact 12 color photographs depicting ported closing argument the State’s organs dissected' and soot-covered jury emphasizing children’s deaths. seven-year-olds two and a toddler. One (“While is correct such person may conclude that a dozen color argument we how improper, cannot see photos depicting performed dissection argument the State’s would have af- been upon young likely children are to have a autopsy photographs fected had the been greater emotional impact single than a slightest excluded. Even the reference photograph depicting that has not crime scene and children’s deaths fetus been an argument.”). autopsy. per- could still altered Another support may son reach an entirely different and The court also identified five additional equally defensible will conclusion. We not factors its de- supporting harmless error attempt to characterize type image one (1) already termination: “the being inherently as powerful more than disturbing seen and heard about the cir- any the other because such characteriza- cumstances children’s deaths largely subjective personal. tion is through properly photographs admitted say Suffice types images it to both (2) testimony;” “these photographs powerful are fraught poten- gruesome were not emo- particularly or provoke unquantifiable tial to emotional tionally ... were charged clinical response. tissue;” depicted organs disembodied (3) photos “pale comparison to the These circumstances prompt us focus properly post-mortem photo- admitted objective instead on somewhat more fac- graphs of Herrera and Steve Nilda Tirado analysis. tors to guide harm This

whose deaths charged parallels focus close reveals between this intentionally causing;” “the while case and Prible. emphasizing appellant’s admission ... Here, Prible, family, he had ‘taken an entire out’ did guilt- issue was admitted upon dwell emphasize improperly innocence phase trial. Further post-autopsy photographs admitted more, State upon “did not dwell children;” “these have photographs emphasize” the photograph. admitted See nothing disputed to do with the issue id. never The State referenced Exhibit 61 appellant trial of whether murdered the during closing argument, either number parents charged children’s ... not do or description. guilt affect the determination of appellant’s ... emotionally sway and would not a The did refer a State more than dozen factfinder until and unless he had found during closing times of San death appellant person that was who had chez’s child. unborn These references are parents’ caused the deaths.” Id. amply supported by evi unobjected-to

We employ analysis pregnancy a similar dence pertaining here. Sanchez’s 1. The Appeals appellant Court of Criminal did ad- phase not ment because the raised no autopsy photographs dress whether the affect- they did at 737 n. 27. contention so. Id. jury's ed the punish- deliberations charged. appellant evi fense which was baby’s death. This the unborn Prible, report San autopsy an on 175 S.W.3d at 737.

dence includes testimony baby, along with sufficiency unborn challenge chez’s does not examiner who medical from the assistant verdict. support jury’s evidence to who autopsy; doctor performed above, As was awakened noted Rubio death; baby after Sanchez’s delivered gunshots a.m. before three the sound light In this unob and Sanchez’s sister. He saw the apartment bedroom. his evidence, “we cannot see how jected-to chase but person gave shadow of a tall argument would have been affected State’s running was to catch the assailant. unable ... been autopsy photograph[ ] had the the assailant was Rubio estimated also Id. The State excluded.” referenced tall; feet six feet between five eleven and of Sanchez’s unborn autopsy photo another features; any he to see facial was unable had been baby during closing that not race; determine the assailant’s or describe However, by into admitted evidence. wearing. what He no- the assailant was already had jury time this “heard about open, apartment ticed that the door disturbing of the un circumstances” kept propped against and a couch he baby’s via evidence multi born death from pushed away. door been Rubio saw ple admissibility witnesses. The apartment. no in the one else Another challenged ap has been evidence people three police witness told she saw circumstances to a peal. point These apart- from the of Rubio’s fleeing direction single impact accompany minimal from a ment wearing jackets. dark hoodie evi ing photograph that was admitted into dence as Exhibit 61. See id. Police recovered two .40 caliber Smith referencing jury “pictures” note casings shell from the bed- Wesson change The note does not this conclusion. preserved room. Police also saw and a garbled. requested is somewhat footprint apartment’s front door. copies charge” along with “states “more appellant he police Rubio told believed pictures of both recorded statements” [sic] shooting; responsible de- friday testimony” and “Defendants [sic]. feud; escalating scribed the described clear It is not whether intended off in which shot incident request “pictures something particu- of’ gun days attempted earlier. Police in- if lar. Even the words “states pictures” but terview determined isolation, in- are viewed trial court home; not at asked disputably pictures admitted more than 50 him, wife locate re- help proffered by the as exhibits State includ- home about 30 or 40 minutes later turned ing photos from Sanchez’s This autopsy. phone. after wife via cell speaking circumstance diminishes the likelihood that any picture one exerted a disproportionate police gun, Appellant told he owned jury’s influence on the deliberations underneath which was retrieved from guilt-innocence phase. the trial’s in the trunk of car. It appellant’s blanket Cf. (“[T]his Reese, 33 S.W.3d at emotional- gun was could not a 9-millimeter that fire ly charged photo- is the A from .40 caliber shells. witness graph that the State offered Police firearms section Houston De- added)). punishment phase.” (emphasis partment opined crime lab bullets body were .40 whole, recovered from Sanchez’s

We also record consider the as a gun, fired same and were from the along with caliber evidence adduced 9- guilt-innocence appellant’s the of- but not fired from phase pertaining to were denied gun. Appellant possess- millimeter at the time of the He shooting. admitted or .40 ing disposing gun. of a caliber kicking in the apartment and carry- door ing a weapon but that Wisnosky claimed Police also a black recovered hoodie apartment entered the fired and the fatal Testing gunshot the trunk. resi- from Appellant explain shots. could why not on the hoodie retrieved from the trunk due Wisnosky would having shoot Sanchez. negative. Appellant was denied the hoodie from worn retrieved the trunk. Appellant testified at trial. He de- Police on pattern noticed that tread escalating scribed the feud and incident pat- similar appellant’s shoes was in which Rubio him challenged fight. on footprint apartment tern Rubio’s He also described the incident in which A Appellant’s door. shoes were tested. appellant’s Rubio kicked two door or three senior consultant with the forensic science days before the murder. training consulting test- company and According appellant, he drove to appellant’s shoes testified that a “likeli- ed apartment Stewart’s after midnight on the exists shoe right hood” night of the he shooting where met Stew- on This print made shoe Rubio’s door. art, Fulton, Wisnosky, and others. While size, shape, based determination was on apartment, Stewart’s he discussed the design, tread wear and the pattern, pres- earlier incident which Rubio kicked his ence random nicks cuts to the tread. and, door spur moment, The consultant also testified: “We are return apartment decided to to his own saying conclusively right that the shoe that door, I was shown kick impression building, made on the Rubio’s and run. just saying Fulton, We’re the Stewart, door. based on Wisnosky accompa- see, agreement of the features that we nied on the him ride back to his own the right likelihood exists that shoe made Appellant building. took his 9-millimeter impression door.” gun waistband, with him and put it in his but knowledge anyone denied else Appellant acknowledged the existence of a gun. the feud when questioned by police, and he

participated taped in two interviews Appellant any agreement denied having interview, In the police. first or discussions about would happen what participating denied the crime said kicked; after door Rubio’s denied ask- including he with several friends — anyone him; ing accompany else to Stewart, Cory Graham Wisnosky, and Aar- giving any denied once they instructions on Fulton —at the time Sanchez shot. mean, arrived. also testified: “I Testimony established that is six go there, leave; I wanted to over kick and feet, feet, tall; Wisnosky one inch is five sense, but in a I did want confront tall; feet, ten inches Fulton is five Wisnosky [Rubio].” did not know Rubio seven inches tall. and Sanchez. Stewart, Police Wisnosky, interviewed Appellant parked yards about 50 from Fulton, discrep- and determined that building; Wisnosky Fulton and accom- ancies existed between their version panied appellant apartment to Rubio’s events and the version in appel- described stayed while Stewart with the car. lant’s first statement. Police interviewed again, gave a second re- Appellant testified that he kicked Ru- corded statement. once, causing open couple bio’s door it to a statement, He Wisnosky of inches. testified that then

In his second ad- presence door, mitted his at apartment open, Rubio’s leaned into the and pushed 756 244, at and Erazo v. 167 apartment. Appellant denied S.W.3d the

entered Wisnosky’s Ap in hand. weapon (Tex.App.-Houston 891 14th seeing [ S.W.3d in” that he “leaned and testified pellant cases pet.). no Both involve Dist.] apartment; asked Wisno in” the “stepped punishment the admission the during saw in the doing; nothing he sky what was a murder phase photographs depicting shots; darkness; took off heard two Reese, victim’s unborn child. See running with Fulton. (eight-by-ten photo- at 239 color in her depicted murder victim cas- graph the car first and left

Appellant reached child, They met ket her unborn visible up Stewart. in it with blanket); Erazo, at Wisnosky a short time later wrapped Fulton and in a 167 S.W.3d station, nearby gas drove (autopsy at of fetus photograph re- apartment. Ap- victim). back to Stewart’s all four from murder Both cases moved until summoned remained there pellant the concluded that erroneous admission of to his own apartment wife to return error photographs these was harmful ne- looking him. police the were because punishment a new cessitating hearing. lying acknowledged police Reese, 244; Erazo, 33 S.W.3d at statement, he but claimed that his first S.W.3d at 890-91. truth in his second statement. He told the (1) In doing, so Reese stressed the preg- that Sanchez was knowing denied at issue one photograph ad nant. (2) punishment phase; mitted appeal that harm Appellant contends by the counsel at comments State’s trial error from the admission Exhibit 61 ful photograph to admit that the “seem[ ] given on this record that “[n]o is evident intended to inflame the and influence testimony was adduced that he eyewitness basis;” improper make its decision on an fatal This contention fails fired the shots.” (3) emphasized the State “used and light of Prible. Court of Criminal closing this argu Appeals determined erroneous admis Reese, 33 244-45. ments.” S.W.3d at Er autopsy was harmless error photos sion of argument azo also stressed the State’s (1) that, case, as in this notwithstanding special “called attention to the photograph never gun used to shoot victims Erazo, of the dead fetus.” 167 S.W.3d at recovered; eyewitness no tes State twice referred “[T]he fatal tified that Prible fired the shots. See erroneously admitted autopsy photograph, Prible, n. 3 & 175 S.W.3d at 728 729. The specifying once number.” exhibit Id. not affect autopsy photos “do the determi at emphasized 891. “The State also appellant’s guilt nation of this case and least times the importance four this emotionally sway not would factfinder impact and the strong until and found that appel unless the photograph State believed have would person who had lant was caused jury.” Id. also Erazo considered sum, at 738. we parents’ deaths.” Id. “In pos “the the maximum assessed erroneous conclude admission punishment” arguments. sible after these ... photographs did not affect autopsy rights” during substantial guilt-innocence phase of his trial. Id. In specific emphasizing concerns about above, light of record described Reese animated conclusion here. applies same here, apply as discussed in Erazo do detail above. additional concern Erazo’s reject appellant’s

We likewise contention Reese, imposition jury’s that reversal is under 33 about the maxi- warranted

757 possible germane mum sentence is not inquiry here involves a two- punishment this ease because was au- step process. When we a review claim of reasons, tomatic. For these we conclude error, jury charge we first determine the harm analysis that Prible controls here State, whether there is error. Barrios v. in the context erroneous admission 348, 283 (Tex.Crim.App.2009). S.W.3d 350 of a photograph during guilt-innocence If there error in is the charge appel phase. objected trial, lant to the error at reversal

We appellant’s overrule first issue. if required the error “is calculated to injure rights defendant,” which II. Charge Error has been defined to mean that there is issue, In appellant argues his second “some harm.” Id. (quoting Almanza v. that he was egregiously harmed State, 157, 686 S.W.2d 171 (Tex.Crim.App. error in jury charge based on trans- 1985)). objected to, If the error was not ferred intent con- Appellant instructions. requires must be “fundamental” and rever tends erroneously the instructions only sal if it was so egregious and created omitted burglary element in the trans- such harm that the defendant “has not had application ferred intent paragraph. impartial a fair and trial.” Id. The jury charge following included A. Error instruction: A may trial court jury instruct the

A person is nevertheless criminally re- law applied transferred intent as sponsible causing the result if the in a capital prosecution. murder Roberts actually between difference what State, (Tex.Crim. 322, v. 273 S.W.3d 331 desired, occurred and what contem- State, App.2008); Norris v. 902 S.W.2d plated, per- or is that a risked different 428, harmed, (Tex.Crim.App.1995). son or property injured, otherwise affected. Appellant contends the in Now, if you believe from the evidence structions on transferred intent in the ap beyond a reasonable doubt that the de- plication portion are erroneous because fendant, Rolle, acting Biondi Vernard require did not to find the Cory alone or with Wisnosky and/or upon elements of murder based a Fulton, offense, Aaron a party as intentionally murder committed Texas, County, Harris on or about committing course of or attempting 3rd day February, did then and burglary. Appellant commit a contends there unlawfully and shoot intentionally that “the omission of the burglary crucial Rubio, a firearm at Guillermo intending element in the intent applica transferred that death would occur to Ru- Guillermo paragraph tion lessened the State’s burden bio, instead, but missed Guillermo Rubio proof In assessing and was erroneous.” Sanchez, and hit causing Yvonne contention, we “examine the death of Yvonne Sanchez with the use charge as a whole instead of series of firearm, a deadly namely, weapon, isolated and unrelated statements.” Din you then will the defendant guilty find (Tex. kins v. capital murder, charged in the indict- Crim.App.1995). ment. person A of capital commits the offense object did not to the transferred the person intent murder “if commits murder as language. returned 19.02(b)(1) guilty verdict on the defined under Section and ... capital murder charge. person intentionally commits the mur- Rubio, in this alleged Guillermo as committing by of or at- course

der the burglary....” charge, specifi- commit ... but that the defendant tempting to also 19.03(a)(2) (West. §Ann. cause of cally Tex. Penal Code intended to the death 2011). in this case The indictment Supp. Sanchez, San- by shooting Yvonne Yvonne about FEB- “on or alleges that chez, weapon, namely, a deadly with a ” there un- did then and RUARY also jury firearm.... The was instructed: in the and com- lawfully ... while course you evidence must find from the [O]r mitting attempting commit[] de beyond a doubt that the reasonable A HABITATION OF BURGLARY Rolle, fendant, Biondi Vernard with RUBIO, in- OWNED BY GUILLERMO or in the com promote intent assist the death of YVONNE tentionally cause of of a burglary mission of offense YVONNE by SANCHEZ SHOOTING Rubio, if habitation owned Guillermo A DEADLY WEAP- SANCHEZ WITH directed, solicited, any, encouraged, aid ON, NAMELY, A FIREARM.” Wisnosky Cory to aid attempted ed or jury charge portion The abstract in shooting Aaron Fulton Yvonne and/or of murder statutory tracked definitions Sanchez, did, if with intention of he capital murder. thereby killing Yvonne Sanchez.... person “[a] The was instructed that jury jury The was further instructed: of murder if he ... commits the offense you find from evidence must [O]r knowingly or causes intentionally beyond a reasonable doubt that on another; ... of or intends to cause death defendant, Bion question occasion in injury intentionally or bodily serious Rolle, agree entered di Vernard into knowingly clearly danger- an act commits Wisnosky Aaron Cory ment with and/or ous to human life that causes the death of of felony Fulton to commit the offense an individual.” burglary of a habitation owned Guil person jury “[a] was instructed Rubio, alleged charge, lermo in this of murder if capital commits the offense he agreement they did pursuant to that murder, intentionally commits as hereinbe- carry conspiracy, out and while in their the person fore ... and intention- defined committing conspira the course of said murder course ally commits the in the of cy, Cory Wisnosky Aaron Fulton and/or attempting or to commit the committing intentionally caused the death of Yvonne of a burglary offense of habitation.” The by shooting Sanchez Yvonne Sanchez per- further was instructed “[a] weapon, namely, a fire deadly burglary the offense of son commits of arm, and the murder of Yvonne Sanchez if, without the habitation effective consent was committed furtherance owner, ... of enters a habitation was an conspiracy and offense theft, felony, commit a or an intent to de anticipated by should have been assault; ... enters a habitation or of carrying fendant as a result out felony, attempts commits to commit a or conspiracy. theft, or an assault.” portion This concluded: charge murder, capital To convict find, you you then cannot “[U]nless so “you find was instructed that must from convict defendant the offense beyond the evidence reasonable doubt capital murder.” question on the occasion in para- intent application transferred was in the of commit- defendant course juiy stated graph subsequently ting attempting the felony commit murder offense of a burglary habitation owned could convict if it B. charged “as in the indictment” be- Harm a beyond

lieved from the evidence reason- Even if for argu assumed “acting appellant, doubt that alone or able ment’s sake the trial court erred in Fulton, Wisnosky Cory Aaron and/or the transferred intent application para party unlawfully as a to the offense ... graph charge, of the jury we conclude that ... firearm at intentionally a [shot] appellant by was not harmed the alleged Rubio, intending that death Guillermo charge error. Rubio, would occur to Guillermo but in- stead, Guillermo and hit missed Rubio appellant Because failed to ob Sanchez, death causing Yvonne the of error, ject any alleged charge reversal deadly with the Yvonne Sanchez use of is warranted if egre was ” weapon, namely, a firearm.... giously harmed. Warner v. 461 (Tex.Crim.App.2008). To whole, Viewing charge reject the as a we harm,” “egregious determine we examine charge contention that the was jury “the entire charge, the state of the erroneous because “omission the crucial of evidence, including in the contested burglary element the transferred intent issues evidence, application paragraph weight probative the lessened State’s arguments counsel, of The proof....” disputed burden instruc- of any other rele capital charged tion referenced murder “as vant information revealed by the record of thereby indictment” and directed Almanza, trial as a whole.” Id. (citing jury charge 171). 686 S.W.2d at The appellant must “while in the committing course and actual, have suffered rather than theoreti attempting to BURGLARY commit[] cal, harm. Id. “Errors that in egre result AOF HABITATION BY OWNED GUIL- harm gious are those that ‘the very affect LERMO “intentionally RUBIO” did cause case,’ of ‘deprive basis the defendant of the death of YVONNE SANCHEZ by a valuable or right,’ ‘vitally a defen affect ” SHOOTING YVONNE WITH SANCHEZ Almanza, theory.’ sive (quoting jurors A DEADLY WEAPON....” 172.). S.W.2d at twice, heard the indictment read aloud factors, respect With first two we beginning once at the of dire voir conclude that do not support deter- again above, at arraignment. As discussed egregious mination of upon harm based burglary the indictment’s reference to of a intent application para- transferred habitation reinforced in- was additional graph. addressing structions and bur- definitions above, As jury charge discussed as a glary of a habitation as a required element references, multiple whole contained defi- capital jury of murder this case. The nitions, and regarding burgla- instructions “We, the Jury, answered: find the defen- ry of a as capital habitation the basis for dant, Rolle, Biondi of guilty capi- Vernard Thus, charge murder. did mislead murder, charged in tal the indictment.” or indicate that the element of Given the reference in the indictment burglary unnecessary appel- to convict along with additional instructions and defi- of capital lant murder. nitions, we do not believe the transferred dire, During voir the State announced intent application paragraph confusing its intent to establish murder capital as to so mislead the or cause it to burglary proving believe that element that the murder occurred of unnecessary going of a burglary: to convict course “[W]e’re defendant, charged murder. prove that murder, intent to commit specific of the indi- with intentionally the death causing felony then vidual, intentionally burglary murder committed the commits committing attempting murder, here of intentionally in the course commits burglary.” felony offense commit in- or under transferred Yvonne Sanchez of the evidence overwhelming nature Rubio.” also be Guillermo tent could element concerning burglary at trial argued: The State also reinforces in this case murder capital are three that the defendant ways There harm egregious no oc- that determination charge guilty be found under this could of an ex- upon the absence curred based One, kicked capital murder. that he of burglary in the trans- to plicit reference door, he, in in the course that that application The paragraph. intent ferred intentionally committing shot burglary, between escalating dispute of an existence Yvonne Guillermo Rubio and killed undisputed; in and Rubio CJ, this, Sanchez, buddy, that did contrast, not know Rubio or Wisnosky did in course of that he knew was kicking admitted to in Sanchez. murder, capital and he as- committing he apartment; to Rubio’s also the door in aid attempted sisted or even to CJ he in” while “stepped that armed admitted offense, or that commission that handgun. Appellant with a 9-millimeter and in the burglary, went in to commit Wisnosky, Fulton and Stewart drove the murder burglary, commission that building; accompanied apartment Rubio’s have been of Yvonne Sanchez should apart- Rubio’s Wisnosky and Fulton to in furtherance of that anticipated ment; to Stew- and then drove them back So, hearing although you’re murder. shooting. apartment art’s after over, same those those terms over and factor, appel- respect to the third With be asked questions you are the will State referred emphasizes lant that the you go when back to deliberate. closing. intent The transferred burglary arguments These underscore that “If argued, you believe the defendant State was re- capital as an element murder but to kill Rubio in- intended Guillermo discussed reinforced peatedly room, stead, by going up in that dark closing. in the Sanchez lump bed shot Yvonne record, with the intent to have killed Guillermo this we conclude that light In Rubio, guilty capital then he’s still mur- harm not been established egregious has continued, you State be- “[I]f der.” The intent in connection the transferred only between what lieve that difference charge. in the application paragraph desired, he actually occurred and what overrule second issue. We there, contemplated or risked that differ- person injured, harmed or other- ent Conclusion affected, guilty

wise is still judgment. affirm the trial court’s We added, “If you named offense.” The State intent things find the between the HEDGES, dissenting. C.J. hurt, then got the outcome who Justice, HEDGES, ADELE Chief guilty.” defendant is dissenting. note that also We the State referred although the majority The holds times multiple during closing burglary in abused discretion admit- trial court its an element of murder. capital child, unborn ting photograph explained murder in- State I defendant, no harm. Because volves a situation which “a suffered in inflammatory depict believe of this gunshot wounds, admission two small a small respectful- I appellant, harmed incision in the decedent’s arm where the dissent, certain ly that the admission of the bullet, medical examiner removed a and a did not influence or picture of the decedent with her eyes only slight. that its influence was There- mostly photographs that do not closed— fore, I would conclude that admission make the photograph here “pale in com- of this was harmful error for parison.” following reasons. Finally, harmless, holding error majority heavily relies on Prible v. the Prible court noted the State “did analyzing State the harm this case. not dwell upon or emphasize improper- See ante at 752-56. The admission of the ly admitted post-autopsy photographs of autopsy photographs held inadmissible in the children.” case, Id. at 737 In this was be

Prible determined to harmless er State referred to either the murder of the State, 724, ror. Prible v. 175 S.W.3d unborn child or the unborn child itself at I (Tex.Crim.App.2005). 737 believe the least thirteen during closing times argu- case present distinguishable is for several ments-including in its last statement be- Although reasons. the court in Prible the jury fore retired deliberations the autopsy photo found admission of the the when State also referenced another error, graphs to be harmless the court photograph of the unborn child that was noted that it was a “close call.” Id. Sever excluded. push al factors the in photograph the case Much Erazo, like the in photograph the at hand farther toward harmful error than image only here showed the fetus on an autopsy the photographs held inadmissible autopsy State, table. See Erazo v. 167 First, but harmless in Prible. the autopsy 889, (Tex.App.-Houston S.W.3d 890 [14th in photographs distinguishable Prible are (“This 2005, pet.) Dist.] no image of the in that were all close-ups” “detailed deceased complainant’s dead fetus was only depicted organs “disembodied likely appeal jury’s to the emotions and Id. at A photo and tissue.” 736-37. color encourage jury the make punishment its case, graph, such as the one in this is more basis.”).1 decision on an emotional likely prejudicial and more to incite the in photograph held harmful Erazo was ad- jury than the close-up photographs of mitted during punishment phase the organs,” lungs, esophagus, “neck the during not the guilt-innocence phase the a stomach jury inside viewed the happened However, in Prible. See id. at 736. here. Id. at 889. the for relevancy test is much broader during Second, the court in Prible noted that punishment the phase because the purpose autopsy photographs children punishment of a proceeding is not to prove in “pale[d] comparison properly to the ad- guilt, but instead to allow a to assess post-mortem photographs mitted [of the punishment objectives in line with parents] whose deaths was State, the Texas Penal Bain Code. v. 115 with charged intentionally causing,” which 47, (Tex.App.-Texarkana 2003, S.W.3d 50 “extremely included grisly photographs” of ref'd). Here, pet. body the mother’s the court’s error in ad badly that had been mitting Id. at In present undisputed by burned. 737. case, photographs Thus, of the decedent only majority. if the photograph in opinion is the This after the (Tex.Crim.App.2004), issued Court of Appeals Criminal found error in the admis- analysis. remanded for a to our court harm the photograph, sion of v. see Erazo

Erazo, completely which was during punishment photograph, color admitted error, case, harmful was deemed proceeding, to the State’s resulted unrelated a similar could follows that Holding harmful that admission error. greater impact have had an even nothing to do photograph, this which for relevan when test guilt-innocence, offense, was harmless charged Erazo, significantly narrower. As cy is encourage will State to con- error likely image of the deceased fetus and un- inflammatory such tinue offer en jury’s emotions and appeal necessary to attain the maximum evidence courage to make its decision do possible. When our courts sentence rational, emotional, than rather basis. rules, very fabric play not case, And in we must bear mind this system may become justice our criminal with harm charged I frayed ultimately be torn. could fetus; rather, charged ing the believe erroneous admission based on the death of the capital murder pro- photograph in this case loosened decedent, occurred com which justice sys- tective threads of our criminal attempted commission of bur mission or respectfully I dissent. Accordingly, tem. glary of habitation. in the case Because the very

bar is similar held Erazo, and harmful

inadmissible placed heavy emphasis

because the State child, I cannot be certain unborn erroneously admitted jury did not influence the or that did so Isaas Isaas Jose HERRERA aka Jose only slightly. See Reese v. Herrera, Sr., Appellant, (Tex.Crim.App.2000). It v. possible photo- that the admission graph emphasis and the on the unborn Texas, Appellee. STATE jury’s child State influenced No. 14-11-00069-CR. finding guilt, jury as the could—and did—convict of an offense that Texas, Appeals Court of came punishment, with an automatic (14th Dist.). Houston very which the was aware. At the least, April the photograph may have influenced to convict murder of- instead lesser-included felony

fense of murder. For these rea-

sons, I hold that would the admission of

this was harmful error

reverse for a and remand new trial.

Conclusion agree majority

I trial admitting

court its discretion in abused

photograph of the unborn fetus this However, part

case. I ways with ma-

jority analysis. harm I would con- prejudicial

clude the admission of this

Case Details

Case Name: Biondi Vernard Rolle v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 5, 2012

Citation: 367 S.W.3d 746

Docket Number: 14-10-01168-CR

Court Abbreviation: Tex. App.