KRISTOFFER JOSEPH MCCLARITY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00314-CR
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KRISTOFFER JOSEPH MCCLARITY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-27428-H
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Morris
        A jury convicted Kristoffer Joseph McClarity of capital murder. He complains on appeal that he was denied his constitutional right to a speedy trial, the evidence against him is factually insufficient, the trial court erred by failing to instruct the jury on two lesser included offenses, and the trial court erred by admitting an autopsy photograph into evidence. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
        The deceased in this case was killed during a drug deal. The deceased had delivered a pound of marijuana to appellant and his cohorts in their car. As he leaned into the passenger window of the car seeking to be paid, he was shot two times. Two participants in the deal, who were friends with appellant, testified that appellant shot the deceased from the passenger seat of the car rather than pay him for the marijuana. Appellant admitted at trial he had been sitting in the passenger seat of the car.
        One of appellant's friends was in the driver's seat of the car during the shooting. According to that witness, once appellant had the marijuana in his hands, he told the deceased he was “jacked” and pointed a gun at the deceased's chest. The driver then observed the deceased try to get into the car. As he did so, appellant shot the deceased in the chest.
        The other friend had exited the car to bring the deceased to the drug deal and watched the shooting from a few feet away. According to that witness, when appellant pulled out a gun, the deceased jumped back from the car, and appellant said, “I'll kill you,” before he shot the deceased. A third witness testified that he saw the deceased, his co-worker, leaning into the passenger side of the car where the drug deal took place. He next heard gunshots and saw the deceased fall to the ground. As the car drove from the scene, he saw the driver's left hand on the steering wheel.
        The two bullet wounds to the deceased showed he had been shot once in the chest at a range of only a few inches and once in the head at a distance of more than three feet. Appellant, testifying in his defense, claimed the driver of the car had shot the deceased as the deceased leaned into the car. He could not recall anything in particular about how the shooting took place. According to appellant, it was the driver of the car who had wanted to purchase the marijuana for re-sale. Appellant claimed he had no idea before the drug deal that the driver was going to shoot the deceased.
Discussion
        In his first issue on appeal, appellant complains he was denied his constitutional right to a speedy trial. At trial, however, appellant never raised a complaint about his right to a speedy trial. The clerk's record contains a file-marked motion to dismiss the case for failure to provide a constitutional speedy trial. The portion of the document entitled “Order,” and providing for the trial court to rule on the motion, contains no information indicating the trial court ever considered the motion. Moreover, the court reporter's record contains no reference to appellant ever bringing the motion, or any speedy trial motion, to the court's attention. We cannot say that the trial court's failure to dismiss the case was an implicit overruling of the motion. See State v. Kelley, 20 S.W.3d 147, 153 (Tex. App.-Texarkana 2000, no pet.).
        Because appellant never asserted his right to a speedy trial in the court below, we will not consider it on appeal. See Fraire v. State, 588 S.W.2d 789, 791 (Tex. Crim. App. 1979); Oldham v. State, 5 S.W.3d 840, 846 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (op. on remand); see also Tex. R. App. P. 33.1. We resolve appellant's first issue against him.
        In his second issue, appellant complains the evidence against him is factually insufficient to support his conviction because the State failed to prove he intentionally caused the deceased's death. In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the jury's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the jury's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
        Appellant argues that the shooting was unintentional and caused solely by the deceased's lunging into the car. The evidence, however, showed that appellant announced his intent to kill the deceased and fired the gun into the deceased's chest at an extremely close range before he next shot the deceased in the head. Deferring to the jury's determination of witness credibility, we conclude the evidence is factually sufficient to show appellant intentionally caused the deceased's death. We resolve appellant's second issue against him.
        In his third and fourth issues, appellant claims the trial court erred when it failed to instruct the jury on the alleged lesser included offenses of felony murder and aggravated assault. To be entitled to a lesser included offense instruction, a defendant must show: (1) the lesser included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). The evidence must show the lesser included offense is a valid rational alternative to the charged offense. Id.
        Here, appellant first argues he was entitled to a jury instruction on the included offense of felony murder because the State failed to prove he intentionally caused the death of the deceased. We have already determined the evidence is factually sufficient to prove he intended to cause the deceased's death. Appellant argues that the driver's testimony shows the death of the deceased was unintended and was the result of the deceased lunging into the car after. Appellant further points to the testimony of both his friends establishing that he had the money for the drug deal with him at the time of the shooting. The friends also testified, however, that appellant said he was going to “kill” or “jack” the deceased just before he shot the deceased two times. Furthermore, the driver's testimony did not show appellant's act of shooting was unintended simply because it followed the deceased's attempt at entering the car. Indeed, appellant's firing the second shot into the deceased's head belies his claim that the initial shot was not intentional. At trial, appellant claimed in his testimony that he had not shot the deceased at all. No evidence in the record showed appellant was guilty only of felony murder. We resolve appellant's third issue against him.
        Appellant next complains the trial court erred by failing to instruct the jury on the alleged lesser included offense of aggravated assault. He again argues the testimony at trial established that he did not have the intent to cause the decedent's death. A murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence at trial showed him to be guilty of a homicide, at the least. Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999); see also Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008) (discussing Jackson with approval). In this issue, appellant claims some of the evidence at trial showed that, although he caused the decedent's death, he did so unintentionally. Because under this evidence he was guilty of a homicide, at the least, he was not entitled to a jury instruction on aggravated assault. We resolve appellant's fourth issue against him.
        In his final issue, appellant complains the trial court erred in admitting a gruesome autopsy photograph into evidence. The photo depicts the top of the decedent's head with top of the skull removed. Appellant contends the photograph should have been excluded from evidence under rule of evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The decision to admit photographic evidence is generally left to the sound discretion of the trial court. See Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005). If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if its emotional and prejudicial qualities substantially outweigh its helpful qualities. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004).
        The photograph here was the only photograph offered into evidence to illustrate the medical examiner's testimony about the path the bullet to the deceased's head took to his brain. The medical examiner specifically testified that the gunshot wound to the deceased's head was likely fatal instantly. Only five other autopsy photos were admitted into evidence. The complained-of photo is graphic but not particularly gruesome. We conclude the trial court did not abuse its discretion in admitting the photograph into evidence. We resolve appellant's fifth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070314F.U05