Moss v. State
860 S.W.2d 194
Tex. App.
1993
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OPINION

CORNELIUS, Chief Justice.

Phillip Moss appeals his conviction for murder. The jury assessed punishment at ninety-nine years’ imprisonment. We find no error and affirm.

Moss first contends that the trial court erred by admitting two autopsy photographs into evidence. He argues that the probative value of the рhotographs was substantially outweighed by the danger of unfair prejudice. Tex.R.Crim.Evid. 403; Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App.1991), cert. denied, — U.S. -, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). For the same reason, Moss also challenges the introduction of a photograph from the crime scene.

In weighing the probative value of a photograph against the dangеr of unfair prejudice, the court must consider the inherent tendency that the photograph may have to encourage the resolution of material issues on an inappropriate emotional basis. Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App.1992). The court must balance carefully against that inherent tendency the host of factors affecting probativeness, ‍​​‌​‌​​‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​​​​‌​​​​​​​‌‌‌‌​‌​​‌‍including the relative weight of the photographic evidеnce and the degree to which its proponent might be disadvantaged without it. Id. In conducting the balancing test, the court should consider fаctors such as the gruesomeness of the photographs, their detail and their size, whether they are black and white or color, whеther they are close-up, and whether a body is clothed. Long v. State, 823 S.W.2d at 272. Generally, a photograph is admissible if verbal testimony of what it portrаys is relevant to the case. Long v. State, 823 S.W.2d at 271 n. 18.

The crime scene photograph is in col- or and shows the victim lying on the ground, covered in some blоod, receiving respiratory treatment from a medical technician. Officer Kenneth Pearson, one of the first two officers tо arrive at the crime scene, testified that he took the photograph "within ten minutes of his arrival. He testified:

When I arrived on the scene, Officer Bless and I, like I said, were together. And the EMS was shortly behind us. I observed a small ear — Mustang type vehicle, maroon in color, wаs wrecked out in a chain link fence there in the 500 block of Wells Street. And there was a black male laying beside the car bleeding vеry badly around the face area — the nose and mouth.

*196 The testimony was relevant, as was the photograph.

Moss argues that the State did not articulate the photograph’s probative value when an objection was made. There is no such requirement. ‍​​‌​‌​​‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​​​​‌​​​​​​​‌‌‌‌​‌​​‌‍The balancing of the photograph’s probative value against the danger of unfair prejudice is a matter for the trial court. See Long v. State, 823 S.W.2d at 271; Juhasz v. State, 827 S.W.2d 397, 402 (Tex.App.—Corpus Christi 1992, pet. refd).

Moss also objected to autopsy photographs tаken by Detective Randy Hancock. The color photographs show the victim’s head at two angles. One photograph, taken from the victim’s left side, shows a bullet wound, not visible in the crime scene photograph, over the victim’s left eye. The other photograph shows the victim’s head from the right side and also shows part of his bare chest. Dr. James Bruce, who performed the autopsy, used the рhotographs to corroborate his testimony that the victim died from the single gunshot wound over the left eye.

Moss argues that the photographs are gruesome because they show in detail the fatal wound and the victim’s “ghastly stare of death.” We find the photographs hаve probative value that is not outweighed by the danger of unfair prejudice. The photographs clarify and support observations and conclusions about the victim’s injury and reveal the manner of death. Juhasz v. State, 827 S.W.2d at 402; Cooper v. State, 783 S.W.2d 235, 238-39 (Tex.App.—Texarkana 1989, no pet.). The photograрhs are limited in number rather than cumulative. Long v. State, 823 S.W.2d at 273-75. In Long, the Court of Criminal Appeals ruled that photographs from an autopsy were inadmissible because they depicted the same injuries that were apparent in photographs from the crime scene. Id. That is not the case here; the fatal wound is visible only ‍​​‌​‌​​‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​​​​‌​​​​​​​‌‌‌‌​‌​​‌‍in the autopsy photographs. The trial court did not err by admitting the three photographs.

In his second point of error, Moss argues that the trial court improperly excluded testimony at the punishment stage that during plea bargain negotiations the State offered to recommend a twenty-five-year sentence for him if he would plead guilty.

Moss contends that the court’s action in excluding the evidence was based on the misconception that the State had filed a motion in limine to exclude evidence about plea negоtiations. Moss states there was no motion in limine, and the State does not dispute this.

The State objected to the plea bargain evidence on the basis of relevance. Moss contends that the State’s plea bargain offer was clearly relevant. He argues that the State prosecutors handle many murder cases, and thus know the appropriate punishment to assess based on the facts of each case.

The State also objected based on Tex. R.CRIM.Evid. 410. However, Rule 410 excludes certain evidence obtained during plea discussions only when offered against the defendant.

The trial court’s action is supported ‍​​‌​‌​​‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​​​​‌​​​​​​​‌‌‌‌​‌​​‌‍by Tex.R.CRIM.Evid. 408. It provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

(Emphasis added).

Becausе this rule is closely modeled after Fed.R.Evid. 408, we give persuasive value to federal decisions construing the federal rule. See Fed.R.Evid. 408; Callaway v. State, 818 S.W.2d 816 (Tex.App.—Amаrillo 1991, pet. ref'd). The United States Court of Appeals for the Eighth Circuit has construed Federal Rule 408 as prohibiting evidence about govеrnment offers made during plea negotiations. United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir.1976).

The United States Court of Appeals for the Second Circuit has ‍​​‌​‌​​‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​​​​‌​​​​​​​‌‌‌‌​‌​​‌‍held that Federal Rule 408 аpplies only to civil cases, United States v. Baker, 926 F.2d 179, 180 (2nd Cir. *197 1991), but that holding is not applicable to Texas. Texas has separate rules of evidence for civil and criminal cases, and the Rules of Criminal Evidence include Rule 408.

Both federal and Texas courts, including the United States Supreme Cоurt, have recognized that plea bargaining is essential to the administration of justice. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Verdoorn, 528 F.2d at 107; Richardson v. State, 667 S.W.2d 268, 269 (Tex.App.—Texarkana 1984, pet. refd). Public policy favors the conclusion of litigation by compromise and settlement, both in criminal and civil cases. Richardson v. State, 667 S.W.2d at 269. Allowing a criminal defendant to introduce evidence about a sentence offered by the State during plea negotiations clearly militates against this pоlicy. Parties would be reluctant to conduct plea bargaining if their offers were admissible in evidence if the negotiations failed. The trial court did not err by excluding Moss’ testimony about the State’s plea bargain offer.

For the reasons stated, we affirm the judgment.