CHARLES STANWICK WIGGINS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 20, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01725-CR
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CHARLES STANWICK WIGGINS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-01032-U
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MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Lang
Opinion By Justice Wright
        Charles Stanwick Wiggins appeals his conviction for capital murder. After the jury found appellant guilty of robbing and killing Florencia Estrada, the trial court assessed punishment at life without the possibility of parole. In four issues, appellant contends the trial court erred by (1) admitting certain statements by appellant obtained after his arrest; (2) admitting certain autopsy photographs; and (3) charging the jury on the law of parties. We overrule appellant's issues and affirm the trial court's judgment.
        In his first and second issues, appellant contends the trial court erred by admitting certain oral statements he made following his arrest. In particular, appellant argues the statements should be suppressed as his arrest was illegal because the arrest warrant does not show probable cause. When the State introduced the complained-of statements, appellant objected that the warrant did not show probable cause. The State responded that prior to appellant's reindictment, a motion to suppress had been heard in the 203rd Judicial District Court on this issue. According to the State, that court found there was a sworn complaint filed against appellant for criminal trespass, a warrant had been issued, and the detective was aware of the warrant when he arrested appellant. However, neither the State nor appellant introduced the arrest warrant or the complaint into evidence in the 291st Judicial District Court. Because neither the arrest warrant nor the complaint were introduced into evidence, there is nothing for us to review. See Walsh v. State, 468 S.W.2d 453, 453 (Tex. Crim. App. 1971) (search warrant not introduced into evidence could not be considered on appeal). Further, to the extent appellant is arguing on appeal that the statements should be suppressed because the arrest was a pretext, appellant did not raise that issue in the trial court. Thus, he has failed to preserve that issue for review. See Tex. R. App. P. 33.1. We overrule appellant's first and second issues.
        In his third issue, appellant contends the trial court erred by admitting certain autopsy photographs into evidence. After reviewing the record, we cannot agree.
        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. Id.
        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).
        Appellant contends the trial court abused its discretion by admitting the photographs because they “were presented for the sole purpose of inflaming the minds of the jury.” Appellant complains of three photographs. After reviewing the photographs, we cannot agree with appellant that the “mutilation” caused by the autopsy prohibits the photographs' admissibility. The complained-of photographs show close-up views of the underside of Florencia's scalp and the hemorrhaging present near her thyroid gland and the back of her throat. The medical examiner used the photographs to show the damage that was inflicted on the victim before her death. More specifically, Dr. Quinton used the photographs to show the injuries that could not be seen on the surface of the body. The autopsy's internal examination was critical to Dr. Quinton's findings and conclusions. Although these photographs are gruesome, there was no danger that the jury would attribute the autopsy damage to appellant. Under the circumstances of this case, we cannot say that the trial court abused its discretion in deciding that the probative value of the photographs substantially outweighed the danger of unfair prejudice. See Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008); Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001); Salazar v. State, 38 S.W.3d 141, 150-53 (Tex. Crim. App. 2001). We overrule appellant's third issue.         In his fourth issue, appellant contends the trial court erred by overruling appellant's objection to the jury charge. Specifically, appellant contends the trial court's instruction regarding criminal responsibility for a crime committed by a co-conspirator “actually lowers the mens rea or culpable mental state that's required [for] . . . the specific intent to kill . . . and allows the jury to convict . . . with a lower burden of proof on mens rea.”
        Section 7.02(b) of the Texas Penal Code provides as follows:
        If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
 
Tex. Penal Code Ann. § 7.02(b) (Vernon 2003).
        Appellant misreads section 7.02(b) as requiring appellant to have had the specific intent to kill Florencia before being capable of being convicted for capital murder. This is incorrect. Section 7.02(b) does not require that a defendant have the intent, or mens rea, to kill the victim in order to be convicted of capital murder. See Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App. 1979). Rather, section 7.02(b) permits a defendant, though having no intent to commit capital murder, to be convicted of capital murder where one occurs in furtherance of a conspiracy to carry out a different felony and the defendant should have anticipated that the murder would occur. See Tex. Penal Code Ann. § 7.02(b). Additionally, the court of criminal appeals has consistently allowed the application of section 7.02(b) to the offense of capital murder. See, e.g., Johnson v. State, 853 S.W.2d 527, 536 (Tex. Crim. App. 1992); Fuller v. State, 827 S.W.2d 919, 932 (Tex. Crim. App. 1992); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989); English v. State, 592 S.W.2d 949, 955 (Tex. Crim. App. 1980).
        Under this issue, appellant also appears to argue the trial court erred by submitting an instruction regarding party liability under section 7.02(a)(2) because the law of parties was not raised by the evidence. Again, we disagree.
        A person acts as a party to an offense if, “the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” See Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible as a party to an offense committed by the conduct of another if the person acts with an intent to promote or assist in the commission of the offense, and solicits, encourages, directs, aids, or attempts to aid another person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). In determining whether a defendant is a party to an offense, the court may examine the events occurring before, during, or after the offense is committed and may rely on the defendant's actions showing an understanding and common design to commit the offense. See Marable v. State, 85 S.W.3d 287, 293 (Tex. Crim. App. 2002). An instruction on the law of parties may be given whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999).
        Here, Jose Estrada, Florencia's husband, testified that the night Florencia was murdered, he came home from work about 10:30 p.m. As he walked to his apartment, he noticed two men following him. He opened the door to his apartment and attempted to close and lock it. However, the men pushed opened the door. Both men were holding guns, and they told him “to give them the money.” The men took both Jose's and Florencia's wallets. The men then ordered the Estradas to take their clothes off. When Florencia refused, one of the men pushed Jose into the bedroom and pushed him to the floor. A short time later, the other man brought Florencia into the bedroom, she was nude at that time. The two men then sexually assaulted Florencia. While the shorter man sexually assaulted Florencia, the taller of the two men searched the closet. When the shorter man finished assaulting Florencia, he took her into the bathroom. The taller man began hitting and kicking Jose in the head, and turned his head, breaking his neck. Eventually, both men went into the bathroom and ran water into the bathtub. Jose heard Florencia saying, “No, please, no.” Jose then heard the men hitting something. After a time, he did not hear his wife anymore and one of the men said, “let's go now.” As they were leaving, they felt Jose's neck and one of the men said, “he's not dead.” The men then kicked him, hit him with a gun, and twisted his neck again. Then, one of the men stabbed him in the neck with a knife. The men left and after a few minutes, Jose went into the bathroom and found Florencia floating in the bathtub, not breathing. Jose tried to call the police but was unsuccessful, so he went to a nearby apartment and they called 911.
        Marshanda Smith testified she lived in the same apartment complex. The night Florencia was murdered, she was approached by two black males, each carrying a backpack, who asked her if she would help them target some Mexicans to rob. She refused. Later that night, she heard sirens approach the building and overheard someone telling the police they had seen two black men with backpacks follow a Mexican man into his apartment. Smith notified the police she might be able to help and then later identified appellant as one of the men who had approached her.
        Additionally, the record shows that although appellant initially did not admit to participating in the offense, he later made three statements to the police. First, he claimed Rhiphifeal Funches decided to rob Jose to get money for a taxi. Appellant stayed downstairs and looked to see if anyone was in the vicinity. After a time, he went into the apartment to see what was taking so long. While he was in the apartment, he stole a DVD player and some DVDs which he later pawned for money. Funches came out and told appellant to leave. He told appellant he had tied the people up, but appellant did not know anyone had died during the robbery. In his second statement, he told the police when he arrived in the apartment, he found Jose and Florencia nude and Jose on the floor bound. Funches forced Florencia to the floor and raped her. Appellant then helped Funches take Florencia into the bathroom and sat her between the toilet and the bathtub. As appellant went to take the DVD player, he heard splashing from the bathroom. In the third statement, appellant stated that, prior to taking Florencia into the bathroom, appellant digitally penetrated her vagina.
        Depending upon its assessment of the witnesses's credibility, the jury could draw any number of reasonable deductions regarding whether appellant committed the capital murder as a principal, acted as a party to the offense, or was a bystander to Florencia's murder. Therefore, we cannot conclude the trial court erred in submitting an instruction on the law of the parties to the jury. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). We overrule appellant's fourth issue.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071725F.U05