Salvador RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
No. 13-07-00539-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
June 25, 2009.
In addition to her concerns and opinions about the course of Dansby‘s treatment and ultimate progress, Young testified about Dansby‘s other behavior and failings that could constitute other grounds for discharge. Among them, Dansby (1) had minimal or no improvement during his year in treatment, (2) “never fully developed underlying beliefs—didn‘t let himself be vulnerable enough to give us that kind of information,” (3) had an inability to admit or self-repоrt about sexual impulses, the use of pornography, or having fantasies, (4) was being manipulative through lying and conning, (5) did not understand that he was a risk based on his deviant sexual desire and personality disorder, (6) failed to participate in group sessions by “refus[ing] to talk” when asked questions, and, (7) as a result of his lack of participation in group sessions, was disruptive. Each one of these examples of Dansby‘s non-compliance is sufficient to support thе trial judge‘s finding of true that Dansby unsuccessfully completed sex-offender treatment.
I agree with the Court that some evidence may suggest Dansby‘s refusal to take a sexual-history polygraph examination could have been one among many factors considered in deciding to discharge Dansby from treatment. However, I disagree with the Court‘s conclusion that, even if we should wade into the fact-finding waters, the evidence rises to the level to forcеfully establish that Young discharged Dansby for this reason alone. Even evaluating this evidence favorably to the Court‘s opinion, it depicts an ambiguous record at best when compared to the other evidence of Dansby‘s non-compliance.
Lastly, although the Court expressly abstains from addressing whether Dansby‘s claim of the Fifth Amendment privilege was legitimate, the Court inherently presumes that it is. To be given any force, the Court‘s new rule must be understood to presume that Dansby‘s Fifth Amendment assertion is valid. This is so because the Court articulates the new rule and the State‘s burden by incorporating the phrases “even without refusing to answer what he took to be incriminating” and “wholly independent of his claim of Fifth Amendment privilege.”11 Surely, the Court cannot be understood to put the State to this heightened burden upon a probationer‘s mere claim of a constitutional violation whether substantiated or not. Here, if Dansby‘s relianсe on the Fifth Amendment privilege is misplaced, there would be no constitutional violation for revoking him solely for refusing to answer questions about his sexual history, and therefore no other grounds for revocation to be “infected.”
For these reasons, I dissent.
Salvador RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
No. 13-07-00539-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
June 25, 2009.
Rene A. Guerra, Criminal Dist. Atty., Theodore C. Hake, Asst. Criminal Dist. Atty., for Appellee.
Before Justices RODRIGUEZ, GARZA, and VELA.
OPINION
Opinion by Justice GARZA.
Appellant, Salvador Rodriguez, was indicted with one count of murder, a first-degree felony. See
I. Background
Because Rodriguez does not challenge the sufficiency of the evidence supporting his conviction, only a brief recitation of the facts is necessary. See
On July 21, 2004, a Hidalgo County grand jury indicted Rodriguez with murder, a first-degree felony. See
At the punishment hearing, the State moved the trial court to admit all of the evidence considered by the jury at the guilt-innocence phase. Among the evidence presented at the guilt-innocence phase was testimony from Christina Pallasser, Rodriguez‘s girlfriend from 2001 to 2006, and several photographs of Cardenas‘s autopsy. Rodriguez renewed objections made during the guilt-innocence phase that: (1) portions of Pallasser‘s testimony were irrelevant, highly prejudicial, violated the parties’ motions in limine, and allegedly was not provided in discovery; and (2) the probative value of introducing the photographs of Cardenas‘s autopsy wаs outweighed by the prejudicial effect and the photographs were cumulative of other evidence contained in the record.2 See
With respect to Pallasser‘s testimony, Rodriguez complains about the following exchange that took place in the presence of the jury during the guilt-innocence phase:
Q: [The State] .... Why did you go visit him [Rodriguez] in jail [in Mexico]?
A: So I—I visited him in jail to—to be safe. I mean—
Q: What do you mean by being safe?
A: I live in Mexico and—and the mother and he could do anything to me.
Once he mentioned I could have sent the— [Counsel for Rodriguez]: Judge, I am—I am going—
A: —person to kill you.
[Counsel for Rodriguez]: —to object. This is—
THE COURT: Sustained.
[Counsel for Rodriguez]: —nonresponsive.
THE COURT: Move along, Counsel. Move along, Counsel.
[The State]: Yes, Your Hоnor, actually I have a problem with that because I think she was explaining why she had to visit him in jail and she said she had to feel safe.3
The trial court overruled Rodriguez‘s punishment phase objections.
The jury subsequently sentenced Rodriguez to twenty years’ confinement. See
II. Analysis
A. Credit for Time Served in a Mexican Jail
In his first issue, Rodriguez arguеs that the trial court erred in denying him credit for the days he spent in a Mexican jail. The State asserts that it is not appropriate to raise this issue by direct appeal; rather, Rodriguez should have filed a petition for a writ of mandamus challenging the trial court‘s failure to rule on his nunc pro tunc motion. The State further asserts that the record does not contain sufficient information to determine the precise amount of jail credit to which Rodriguez is entitled.5
1. Applicable Law
The court of criminal appeals has held that a defendant may file a petition for writ of mandamus challenging a trial court‘s denial of or refusal to rule on a motion for a nunc pro tunc order to add back-time. See Ex parte Ybarra, 149 S.W.3d at 149; Ex parte Deeringer, 210 S.W.3d 616, 617-18 & n. 7 (Tex.Crim.App.2006) (“[B]efore we will entertain a claim of the denial of pre-sentence jail time credit, an applicant must first attempt to correct the omission in the judgment by way of a motion nunc pro tunc, and that if the convicting court should decline to rule on the motion, the applicant must seek a writ of mandamus to the appropriate court of appeals to compel the convicting court to rule.“); see also In re Daisy, 156 S.W.3d at 924 (“Further, if a motion for a nunc pro tunc order for back time credit is filed and the trial judge fails to respond, relief may be sought by petition for writ of mandamus to the court of appeals.“).
2. Discussion
Here, Rodriguez filed a nunc pro tunc motion, requesting that the trial court grant him additional credit for time served in a Mexican jail; however, the trial court has not ruled on this motion. The record does not reflect that Rodriguez filed a petition for writ of mandamus with this Court seeking to comрel the trial court to rule on his nunc pro tunc motion. See Ex parte Ybarra, 149 S.W.3d at 149; Ex parte Deeringer, 210 S.W.3d at 617-18 & n. 7; see also In re Daisy, 156 S.W.3d at 924. Because Rodriguez is entitled to all pre-sentence time served in jail pursuant to
B. “Beyond a Reasonable Doubt” Instruction During the Punishment Phase
In his second issue, Rodriguez contends that the trial court committed reversible error by failing to submit a “beyond a reasonable doubt” instruction at the punishment phase of the trial with respect to extraneous-offense evidence introduced—specifically, an allegation that Rodriguez had previously threatened to kill Pallasser. The State counters by arguing that there was no evidence admitted at the punishment phase that required such an instruction.
1. Applicable Law
At the punishment phase of a non-capital case, the use of extraneous-offense evidence is governed by article 37.07 of the code of criminal procedure. Delgado v. State, 235 S.W.3d 244, 252 (Tex.Crim.App.2007); see
2. Discussion
Here, the trial court did not include an
C. Prejudicial Photographs at the Punishment Phase
In his third issue, Rodriguez asserts that the trial court committed reversible error by allowing autopsy photographs of the victim at the punishment phase of the trial. Sрecifically, Rodriguez contends that there was no dispute that he shot the victim, and that the State sought to introduce the photographs solely to inflame the jury. The State argues that Rodriguez failed to preserve this issue for appeal by failing to object. The State further argues that the trial court did not abuse its discretion in admitting the photographs.
1. Standard of Review
“The admissibility of a photograph is within the sound discretion of the trial judge.” Shuffield v. State, 189 S.W.3d 782, 786 (Tex.Crim.App.2006). Therefore, following an abusе of discretion standard, we should “do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court‘s determination must be reasonable in view of all relevant facts.” Id. at 787 (internal quotations omitted).
2. Applicable Law
the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant‘s detriment.
3. Discussion
At the outset of our analysis of this issue, we address the State‘s argument that Rodriguez failed to object to the admission of the photographs at the punishment phase. See
[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.
Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).
Here, Rodriguez objected to the admission of the photographs at the guilt-innocence phase. In his objection, Rodriguez argued that the photographs were highly prejudicial and cumulative of other evidence in the record. See
We must now determine whether the trial court abused its discretion in admitting the photographs. During the guilt-innocence phase, Fulgencio Salinas, M.D., a pathologist, used the photographs to explain his analysis of Cardenas‘s autopsy conducted by Ruben Santos, M.D. and to describe the injuries sustained by Cardenas.10 The State then tendered the photographs—thirteen in all—for inclusion in the record. Rodriguez objected to the photographs as being cumulative and highly prejudicial, see
On appeal, Rodriguez only complains about two of the photographs admitted—State‘s Exhibits 32 and 40. Rodriguez argues that the photographs were highly prejudicial because: (1) State‘s Exhibit 32 “is a color photograph of the deceased [Cardenas] who is bloody, swollen, and on an autopsy table“; and (2) State‘s Exhibit 40 “is a post[-]autopsy color photograph of the deceased with the skin pulled back from the chest exposing the ribs, muscle tissue, and fat tissue.” Rodriguez further argues that these photographs were not necessary because it was undisputed that he had shot Cardenas and that Cardenas had died from the gunshot wounds.
In addressing similar photographs, the court of criminal appeals noted that:
The photographs are powerful visual evidence, probative of various aspects of the State‘s theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as “powerful” which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome.
Sonnier, 913 S.W.2d at 519 (citation omitted) (emphasis added). Because these photographs are not overly gruesome and were necessary for the State in developing its case, we find that the photographs did not pose the potential of impressing the jury in some irrational way. See Shuffield, 189 S.W.3d at 788. Moreover, because the photographs emanate “from nothing more than what the defendant [Rodriguez] has himself done,” we cannot hold that the trial court has abused its discretion. See id. Accordingly, we overrule Rodriguez‘s third issue.
III. Conclusion
Having overruled all of Rodriguez‘s issues on appeal, we affirm the judgment of the trial court.
Notes
THE COURT: What‘s the law on credit? I don‘t want to give him credit for any time in Mexico, just the time here.
[The State]: Your Honor—
THE COURT: I‘ll give you credit for the time spent here. Sit down.