FELIPE LOPEZ CONFER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed March 15, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00471-CR
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FELIPE LOPEZ CONFER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-73459-PM
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MEMORANDUM OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice Wright
        Felipe Lopez Confer appeals his conviction for capital murder. After the jury found appellant guilty, the trial court imposed the mandatory life sentence. In a single issue, appellant contends the trial court erred by admitting certain autopsy photographs. We overrule appellant's issue and affirm the trial court's judgment.
        Appellant maintains the trial court erred by admitting the autopsy photographs of the three victims in this case because the probative value of the photographs was substantially outweighed by their prejudicial effect. Appellant does not explain why he believes the photographs were inflammatory except to note that they were cumulative of the previously-admitted crime scene photographs. The State responds the photographs were properly admitted because they were used by the medical examiner to help explain his testimony about the victim's injuries and did not inject any intangible or inappropriate emotional element into the case. We agree with the State.
        The admissibility of photographs lies within the sound discretion of the trial court. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). As a general rule, photographs are admissible if verbal testimony regarding what is depicted in the photographs is also admissible and the probative value of the photograph is not substantially outweighed by any of the rule 403 counter- factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004). Rule 403 of the rules of evidence favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). An abuse of discretion arises only when the probative value of the photographs is small and its inflammatory potential is great. Long, 823 S.W. 2 at 271.
        In determining whether the trial court erred by admitting the photographs, we consider: (1) the number of exhibits offered, (2) their gruesomeness, detail, and size, (3) whether they are black and white or color, (4) whether they are close-up, (5) whether the body is naked or clothed, (6) the availability of other means of proof, and (6) other circumstances unique to the individual case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994). Autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal cause of death. Drew v. State, 76 S.W.3d 436, 451 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). As long as the autopsy photographs aid the jury in understanding the injury and do not emphasize mutilation caused by the autopsy, the photograph is admissible even though it depicts the autopsy. Id.
        Appellant complains of three sets of photographs. State's Exhibits 114-123 are the photographs taken at the autopsy of Jesus Barajas, State's Exhibits 124-130 are from Alfredo Cedillo's autopsy, and State's Exhibits 131-140 are from the autopsy of Fernando Jasso. The medical examiner testified that he chose these particular photographs from many more because in his opinion, they best explained the evidence that came with the victims and the injuries of each man. In context, the number of photographs was not excessive-seven to ten for each victim. Our record contains black and white photostatic copies of the color photographs introduced at trial. The first photograph in each set shows the way in which the medical examiner received the bodies and the remainder are close-up photographs depicting ligature binding marks and different angles of the gunshot wounds to the three men's heads. The different angles of the gunshot wounds show the entrance and exit wounds, both close-up and from a wider angle. Some of the photographs are very detailed, and the medical examiner used them to explain the significance of soot and fibers in the wounds. Three of the photographs show the victim's nude buttocks, however, the photographs depict the condition of the victims' bodies when they were received See Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004). Moreover, they are not indecent and do not draw attention from the purpose of the photographs. Barnes v. State, 876 S.W.2d 316, 326 (Tex. Crim. App. 1994). Although the photographs are gruesome, they depict nothing more than the reality of the brutal crime committed. When, as here, the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot conclude that the trial court has abused its discretion merely because it admitted the evidence. Paredes, 129 S.W.3d at 540. After reviewing the relevant factors, we cannot conclude the trial court abused its discretion by determining the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. We overrule appellant's sole issue.
        Accordingly, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060471F.U05