VICTOR GABRIEL NUNEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed June 17, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00711-CR
............................
VICTOR GABRIEL NUNEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-68354-Q
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OPINION
Before Justices FitzGerald, Lang, and Lagarde
Opinion By Justice Lagarde   See Footnote 1 
        Victor Gabriel Nunez was convicted of capital murder and sentenced to life imprisonment.   See Footnote 2  In four issues, Nunez argues the trial court erred in denying his pretrial motion to suppress; he received ineffective assistance of counsel; the statutory scheme under which he was sentenced is unconstitutional; and the trial court erred in admitting six autopsy photographs during trial. We affirm the trial court's judgment.
        
Discussion
Confession
        In his first issue, appellant argues the trial court abused its discretion by denying his pretrial motion to suppress. Appellant claims his statement to the police should have been suppressed because the detective improperly induced him to make the statement.
        The police interrogated appellant in Spanish. The interrogation was video-taped. Appellant ultimately made a handwritten statement in Spanish to the police. The record on appeal includes a videotape of the interrogation and an English translation of the interrogation and appellant's handwritten statement.   See Footnote 3  At the pretrial suppression hearing, defense counsel objected to admission into evidence of both the videotaped interrogation and appellant's written statement. Defense counsel argued (1) the interrogating officer “overcame [appellant's] will based on his state of mind” because appellant was under the influence of pain medication due to a recent back injury; (2) appellant did not intelligently and knowingly waive his rights; and (3) the detective told him what to write in the written statement. In overruling defense counsel's objections, the trial court found that appellant knowingly and intentionally waived his rights as evidenced by the fact the officer consistently repeated those rights, and repeatedly told appellant any written statement should be in appellant's own words. The trial court also found there was insufficient evidence to show appellant was affected by medication. At trial, appellant renewed his pretrial objections and made additional objections to the evidence based on article 38.22 of the code of criminal procedure and the Fifth and Sixth Amendments. See U.S. Const. amends. V, VI; Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). The trial court overruled counsel's objections. The jury charge contained an instruction on voluntariness.
        On appeal, appellant claims “his statements were not given after knowing and intelligent waiver of his rights and free from improper promises, inducements, and coercion.” He specifically argues:
 
Not only was Appellant under the influence of pain medication, but he was improperly cajoled, threatened, and induced to talk by a detective who promised him that if he told the truth (instead of the story he was telling) it would help him, that nothing bad would happen if “the doctor” agreed his story was truthful, and he would be a “good father” instead of a monster and criminal.
 
This argument, however, does not comport with the arguments made at the suppression hearing.   See Footnote 4  It is well-settled that an objection at trial that does not comport with the complaint raised on appeal preserves nothing for appellate review. See Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).
        Furthermore, even if we were to assume appellant preserved error for appellate review, we would conclude his confession was voluntary. As evidence of improper inducements or promises, appellant points to statements made by the investigating officer, Detective Glen Slade, during the video-taped interrogation. The first complained-of statement occurred after Slade read appellant his Miranda rights and told him:
 
I have talked to your brother yesterday. And do you know it hurt him a lot to tell me. But when I started to talk about your temper, (unintelligible) he was hurt. His patience ran out. He is worried about a lot of things. And he is not a man that knows how to be patient anyways. If it was possible that this had happened. Look, I am giving you an opportunity to tell the truth and do something good for you. . . .
 
        Another statement occurred when Slade told appellant he had to take the case “before those whom it concerns.” Slade then presented two scenarios about how the victim might have received her fatal injuries: either appellant was a “good father” who was punishing her for wrong-doing and went too far, or he was a “criminal.” Slade told appellant if he was just being a “good father,” he needed to say so to the detective, otherwise Slade would have no choice but to conclude appellant was a “criminal.” After appellant admitted he had pushed the decedent away when she jumped on his injured back but denied hitting decedent in the head, Slade made the following statement to appellant about which appellant also complains:
 
Look, everything that you tell me happened, I have to take it to the doctors and say this is what he says happened. Are you all going to accept it or not? And if they say yes we can accept that, then I can take it to where I'm supposed to and show, this is what he said and the doctors said, “Yes, this is what could have happened.” But if I take them what you have told me, they are going to tell me, “If he hit her like this with his hand, he hit her hard, this could have happened here. But the head, I have already asked this, if she would have fallen, I have asked this because we've been told that she could have fallen in the shower, when she was showering. And they said that is no good. That she did not fall there.
 
        Appellant continued to deny he hit the decedent in the head, and he denied kicking her. Slade described autopsy results showing the victim suffered serious head injuries. Slade also explained he was trained to know when people were lying. Slade told appellant he did not believe his denials. The transcript reads, in relevant part, as follows:
 
So then, I am not just going by the facts, I am going by what you tell me with your body. I know that you know how she hurt her head. You just don't want to tell me. Because you are ashamed. You believe that if you tell me the truth, you will look like a monster or something like that. But I will tell you something. If you don't tell me the truth, I will believe that you are a monster. Because I will think the worst. If you tell me the truth, I will know the truth and I won't have to think anything bad. I will be able to tell the doctors, “This is the truth. He told me what he thought.” And if it's the truth, they will agree. Because they have more years than I studying these things. They make no mistakes with the physical things of the body. . . .
 
        A short while later, appellant admitted he kicked the decedent in the head. Appellant later agreed to write out a statement. Slade again read appellant his Miranda rights, after which appellant asked, “What is going to happen?” Slade said he would “take everything to the attorneys, for court,” and that he would “[t]ake it to the doctors and they are going to say if your declaration is the truth or not.” As appellant began writing, Slade reminded him the statement should be “in your own words” and appellant should indicate “[h]ow you want to explain it happened.” The English translation of the statement reads as follows:
 
It was Sunday, July 15. I was in the living room with my children Liseth and Nathan. I was laying on the floor watching the TV. My wife went to the store and the children were playing on the sofa. The [sic] fell on my back and hurt me greatly, and I went blind with pain and I hit her in the stomach and she went backwards and I hit her with my foot. I then went outside but I didn't think that she was injured so much. When I kicked her with my foot backwards I hit her head and she fell to the floor crying. I ask for forgiveness of my wife for everything that we are going through, this great pain. I never thought to hit her so angry, I was so blind to not see what I was doing.
 
Standard of Review        
 
 
        When reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to determinations of historical facts, especially when those determinations involve assessment of witness credibility and demeanor. See Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005). However, when, as here, we have a videotape of the confession and an uncontroverted version of events, we review the trial court's ruling on an application of law to facts de novo. See Herrera v. State, 194 S.W.3d 656, 659 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd).
Law
        A statement of an accused may be used in evidence against him “if it appears that the same was freely and voluntarily made without compulsion or persuasion.” Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). Texas law uses a four-prong test when evaluating whether police made an improper inducement that renders a confession inadmissible. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) (laying out test for invalid confession under article 38.21); Herrera v. State, 194 S.W.3d at 659.
        To render a confession inadmissible, there must be (1) a promise of some benefit to the accused, (2) that is positive, (3) made or sanctioned by someone in authority, (4) and that is of such an influential nature it would cause a defendant to speak untruthfully. Martinez, 127 S.W.3d at 794; Espinosa v. State, 899 S.W.2d 359, 363 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). The truth or falsity of the confession is immaterial under either state or federal law; the question is whether or not the promise likely would lead to a false confession. Martinez, 127 S.W.3d at 794-95. An improper inducement must be of an exceptional character before it will invalidate an otherwise voluntary confession. Espinosa, 899 S.W.2d at 364. Generally, non-specific offers to help a defendant are unlikely to elicit a false statement by a suspect and will not render a confession invalid. Id. (citing Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983)). Furthermore, general statements about how a confession might result in more lenient treatment will not invalidate the confession. Id.
Application
        Applying these principles, we conclude the alleged inducements are not the type of statements that would invalidate appellant's confession. At no point during the interrogation, for example, did Slade offer any specific promises or inducements to appellant. Instead, at various points during the interview, Slade (1) urged appellant to tell the truth; (2) told him that if he was just punishing the victim and did not intend to kill her, he should say so; (3) speculated that doctors might be able to corroborate appellant's version of events; (4) advised appellant the case had to be presented to an outside authority for further review; and (5) told appellant the statement should be in appellant's own words. The record also shows appellant was repeatedly advised of his rights, including the right to end the interview at any time, and there is no indication Slade compelled appellant to continue talking. The complained-of statements, in other words, are not of such character they would likely influence appellant to confess untruthfully. See Johnson v. State, 68 S.W.3d 644, 654-55 (Tex. Crim. App. 2002) (officer's statement to defendant that his cooperation would be conveyed to the court was not a promise that induced confession); Dykes, 657 S.W.2d at 797 (officer's general, but unspecific offers to help were not likely to induce untruthful statement); Alvarez v. State, 649 S.W.2d 613, 620 (Tex. Crim. App. 1983) (officer's statement that defendant could “probably go home” by giving statement, even if promise, did not render confession involuntary); Gonzales v. State, 4 S.W.3d 406, 414-15 (Tex. App.-Waco 1999, no pet.) (officer's statement to defendant “several times that he was free to go home” did not “influence [defendant] to speak untruthfully” and render confession involuntary); Drake v. State , 123 S.W.3d 596, 603 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (officer's assertion to defendant that she “could help herself” by giving statement did not render statement involuntary); Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim. App. 1996) (detective's statements that he would try to “help” the defendant and that he would talk to D.A. did not render confession involuntary); Stevenson v. State, 780 S.W.2d 294, 298 (Tex. App.-Tyler 1989, no pet.) (“A confession is not rendered inadmissible because an accused has been told by an officer taking the confession that it would be best to tell the truth”). We resolve appellant's first issue against him. Ineffective Assistance of Counsel
        In his second issue, appellant argues that if we conclude appellant's first issue is not preserved, then his trial counsel was ineffective for failing to preserve the issue. Appellant claims (1) the confession “constituted the bulk of the evidence” against him; (2) “[t]rial counsel had the video and the translation in advance of trial” and had “ample opportunity to review” the “glaringly apparent” promises and inducements made by the detective; and (3) the admission of the confession “would have been reversible error if properly challenged.”         To prevail on an ineffective assistance of counsel claim, an appellant must show counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110- 11 (Tex. Crim. App. 2003). Moreover, without evidence of counsel's trial strategy, we will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111. As the Texas Court of Criminal Appeals stated in Andrews v. State, “we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Because the reasonableness of counsel's choices often involves facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
        In this case, appellant's motion for new trial did not contain any allegations of ineffective assistance of counsel. Thus, the record does not provide us with an explanation of counsel's decisions. Appellant argues counsel's actions cannot be characterized as strategic, but there is nothing in the record to affirmatively indicate otherwise. Trial counsel filed a pretrial motion to suppress appellant's confession but the record does not show why defense counsel failed to argue appellant's confession was improperly induced by the police officer's promises. Trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. See Jackson v. State, 846 S.W.2d 411, 414 (Tex. App.-Houston [14th Dist.] 1992, no pet.). Appellant has not overcome the presumption of reasonably effective assistance of counsel.
        Moreover, even if we were to conclude counsel was deficient, appellant has not proven that, but for counsel's omission, the result of the proceeding would have been different. In order to satisfy his burden of proof, appellant must show by a preponderance of the evidence that the result of the proceeding would have been different, i.e., the motion to suppress would have been granted and the remaining evidence would have been insufficient to support his conviction. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998). Because the detective's statements did not render appellant's confession inadmissible, the trial court did not err in denying appellant's motion to suppress. Appellant's second issue is resolved against him.
Sudden Passion
 
 
        In his third issue, appellant claims the statutory scheme under which he was convicted and sentenced violates state and federal equal protection because it does not allow juries to consider the issue of “sudden passion” in capital murder cases where the State has not sought death.
        Because the decedent was under six years of age, appellant was charged with capital murder. See Tex. Penal Code Ann. § 19.03(a)(8) (Vernon 2003). The State did not seek the death penalty. Thus, after appellant was found guilty of the charged offense, the trial court assessed a sentence of life without parole. See id. § 12.31(a). Texas's current statutory scheme does not allow juries to consider “sudden passion” in capital murder cases in which the State does not seek the death penalty, but it allows juries to consider “sudden passion” in the punishment phase of murder cases. See id. §§ 19.02(b)-(d), 19.03. Appellant argues that affording murder defendants the benefit of the defense of “sudden passion” but not affording the same defense to capital murder defendants violates Equal Protection under both the state and federal constitutions.
        The court of criminal appeals addressed a similar argument in Wesbrook v. State , 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). In that case, the court recognized that “the Legislature, through its broad power to classify crimes and those who stand accused of crimes, chose not to permit the defense of 'sudden passion' in the context of capital murder.” Id . at 113. “No equal protection concerns are present as a result of the Legislature's prerogative to treat capital murder defendants differently from other murder defendants in this manner.” Id . The court clearly upheld the entire statutory scheme, regardless of the theory of capital murder under which a defendant is charged. See id.
        As an intermediate appellate court, we must follow binding precedent from the Texas Court of Criminal Appeals. McKinney v. State , 177 S.W.3d 186, 192 (Tex. App.-Houston [1st Dist.] 2005), aff'd , 207 S.W.3d 366 (Tex. Crim. App. 2006). Appellant fails to explain how the law has changed since Wesbrook or why we should deviate from established precedent. We resolve appellant's third issue against him.
Autopsy Photographs
        In his final issue, appellant argues the trial court abused its discretion by admitting six autopsy photographs.         
        The admissibility of a photograph lies within the sound discretion of the trial judge. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2004); Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). As a general rule, a photograph is admissible if verbal testimony regarding what is depicted in the photograph 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); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 271 n.18 (Tex. Crim. App. 1991). 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. Shuffield, 189 S.W.3d at 787; Long, 823 S.W.2d at 271. 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 judge erred in admitting a certain photograph, we first consider the form, content, and context of the photograph. Erazo v. State, 144 S.W.3d 487, 492 (Tex. Crim. App. 2004); Long, 823 S.W. 2 at 271-73 (court should consider number of exhibits offered; gruesomeness, detail, and size of photographs; whether photographs are black and white or in color; whether they are close-up; whether body is naked or clothed; and availability of other means of proof and circumstances unique to each individual case). We then consider (1) the probative value of the evidence, (2) the ability of the photograph to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Shuffield, 189 S.W.3d at 787; Erazo, 144 S.W.3d at 492-96.
        According to the record, Dr. Amy Gruszecki, a medical examiner at the Southwestern Institute of Forensic Sciences, performed the autopsy on the victim. During the autopsy, Gruszecki took photographs to document her examination.   See Footnote 5 
        Appellant complains about only six of the photographs: State's exhibits twenty through twenty-five. Exhibits twenty through twenty-two depict the injuries the victim sustained to her abdomen, including her ruptured stomach and the blood in her abdomen. Exhibit twenty is a photograph of the internal organs inside the victim's opened abdomen. Exhibit twenty-one shows the victim's stomach and intestines after removal, and exhibit twenty-two is the same as exhibit twenty- one.
        Exhibits twenty-three through twenty-five show the victim's head injuries, including a hair line fracture above the victim's left ear canal and the damage to both sides of her brain. Exhibit twenty- three depicts the inside of the victim's opened skull with the brain removed. Exhibits twenty-four and twenty-five show the victim's removed brain. Dr. Gruszecki testified, without objection, about the victim's internal injuries, including the fact the victim was struck in the head so hard her brain hit the opposite side of her skull and that her stomach was torn from the intestines. The autopsy report, which described the injuries in detail, was likewise admitted without objection.
        Appellant claims the photographs added nothing to the jury's understanding of the victim's injuries, nor were they relevant to explain any contested issue in this case. He asserts the State had uncontested medical testimony and an autopsy report that described in detail the victim's injuries and cause of death, and the photographs added nothing to the State's case and could only have served to influence the jury in an improper, emotional way. We disagree.
        The complained-of photographs all show various injuries sustained by the victim and were offered during Gruszecki's testimony. Although the photographs depict gruesome details, they are no more gruesome than the facts of this case, which involved the beating death of a four-year-old girl. See Shuffield, 189 S.W.3d at 788 (photographs only showed victim's injuries and were no more gruesome than expected); Sosa v. State, 230 S.W.3d 192, 196 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (prejudice caused by photographs did not substantially outweigh their probative value; photographs were no more gruesome than facts of the offense). We also believe there is no danger the jury would attribute the removal of the stomach, intestines, and brain to appellant. Dr. Gruszecki's testimony explained that the internal organs were removed to show the full extent of the victim's internal injuries, and the medical examiner distinguished the victim's injuries from the damage caused by the autopsy itself; thus, there was no risk of confusion. See, e.g., Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007) (although photographs were gruesome, there was no danger jury would attribute removal of the rib, scalp, or skull cap to defendant); Salazar v. State, 38 S.W.3d 141, 151-52 (Tex. Crim. App. 2001) (affirming admission of color slides showing brain removed from cranial cavity, victim's lung removed from body, and victim's open and dissected heart removed from body).
        Furthermore, we conclude the photographs provided a necessary visual component to, and understanding of, Dr. Gruszecki's testimony regarding the nature and extent of the victim's injuries. The photographs were probative because they showed the full extent and non-accidental nature of those injuries. See Gallo, 239 S.W.3d at 763; Salazar, 38 S.W.3d at 147-53. Thus, they were necessary for the State to develop its case. Although the medical testimony and autopsy report were uncontested, this does not require exclusion of the photographs to which appellant did object. The court of criminal appeals has determined that even offers to stipulate to the cause of death do not preclude admission of autopsy photographs, nor does it render them less probative. See Marshall v. State, 210 S.W.3d 618, 629-30 (Tex. Crim. App. 2006) (admissible autopsy photographs admissible over defendant's offer to stipulate to means of death as point-blank, penetrating gunshot wound to victim's head); Newbury v. State, 135 S.W.3d 22, 41-44 (Tex. Crim. App. 2004) (autopsy photographs admissible over defendant's offer to stipulate to homicide and gunshot wounds as manner and means of death).
        When considered in light of the facts of this case, we conclude the autopsy photographs are not overly prejudicial and did not pose the danger of influencing the jury in an irrational way. Accordingly, the trial court did not abuse its discretion by admitting the autopsy photographs. We resolve appellant's fourth issue against him.
         We affirm the trial court's judgment.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
080711F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The decedent was a child under the age of six years.
Footnote 3 Appellant's statement was translated by G. K. Slade. Our review of the record is based on the English translation of both the interrogation and appellant's statement.
Footnote 4 In the body of his brief, appellant mentions the three arguments that were asserted at the suppression hearing, but he mentions these issues in passing and does not provide any relevant legal authority or analysis. Rule 38.1 requires that a brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). The brief must include, among other things, appropriate citations to the applicable legal authorities and an explanation of how those authorities apply to the facts of the case at hand. See Walder v. State, 85 S.W.3d 824, 826 (Tex. App.-Waco 2002, no pet.). To the extent appellant argues these issues on appeal, we conclude he has failed to adequately brief them.
Footnote 5 The record contains only black and white photocopies of the original photographs. The autopsy photographs were offered into evidence at trial as Sate's exhibits twenty through thirty-two. However, after appellant objected to the photographs, the State offered only exhibits twenty through twenty-five and twenty-eight through thirty-two.