CRISTOBAL CARRILLO JAIMES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed December 3, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00936-CR
............................
CRISTOBAL CARRILLO JAIMES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F09-00637-LY
.............................................................
OPINION
Before Justices Richter, Lang, and Myers
Opinion By Justice Myers
        Cristobal Carrillo Jaimes appeals his conviction for murder. After finding appellant guilty, the jury assessed his punishment at forty-eight years' imprisonment. Appellant brings two issues on appeal asserting the trial court erred (1) by refusing to submit the lesser included offense of aggravated assault and (2) by admitting an autopsy photograph. We affirm the trial court's judgment.
BACKGROUND
        On the evening of June 22, 2008, appellant was at a party at the home of Christian Ramirez. Also at the party were Juan Vacerro and Juan Rocha. At about 8 or 9 p.m., appellant, Ramirez, Vacerro, and Rocha left the party in appellant's pickup truck and went to a gas station. While driving back to the party, they drove past the home of appellant's former girlfriend, Destiny Torres. Torres was standing in front of the house and appeared to be hugging a man, Manuel Martinez. Appellant stopped, got out of the truck, and walked over to Torres and said, “So that's how it is.” Torres answered, “You shouldn't even be here. You ain't gonna do nothin' about it anyways.” Appellant turned to Martinez and told him to wait there because he would be back. Appellant got back in his truck, drove home, retrieved an assault rifle from his bedroom, and drove back to Torres's house. During the drive, appellant talked about fighting Martinez. When he returned to Torres's house, Martinez was backing out of the driveway, and appellant blocked Martinez's car with his pickup. Appellant got out of the pickup with the gun, and he walked toward Martinez's car firing the assault rifle repeatedly. The first few shots hit the ground, but one of the shots went through the windshield and through the top of Martinez's skull. Martinez later died from this wound. After shooting Martinez, appellant got back in the pickup and drove away.
        After appellant turned himself in, a police detective interviewed him at the police station.   See Footnote 1  Appellant told the detective that, a few months earlier, Martinez had told people that he was going to kill appellant because he thought appellant had tried to carjack him. Appellant told the detective, “It's either your life or his life. Nobody's gonna fight for your life but yourself.” Appellant also told the detective that Martinez once had pulled a gun on him. Appellant also said he did not see a weapon on Martinez on the night he shot him. Appellant explained that he shot at Martinez because of Martinez's threats to kill him and not because of Torres.
        The court's charge instructed the jury on the charged offense of murder and the lesser included offenses of manslaughter and criminally negligent homicide. The trial court denied appellant's request to include aggravated assault in the charge as a lesser included offense. The jury found appellant guilty of the charged offense of murder.
LESSER INCLUDED OFFENSE
        In his first issue, appellant contends the trial court erred by denying his request to submit the lesser included offense of aggravated assault. For the trial court to submit a lesser included offense, the record must meet the two-prong Royster test: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (op. on reh'g). Both prongs of the test must be met, regardless of whether submission of the lesser included offense is requested by the defendant or the State. Hampton, 109 S.W.3d at 440 (citing Arevalo v. State, 943 S.W.2d 887, 887 (Tex. Crim. App. 1997)). In determining whether the second prong has been met, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser included offense for the finder of fact to consider before an instruction on a lesser included offense is warranted. Id. (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). Anything more than a scintilla of evidence is sufficient to permit submission of the lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). Whether the instruction should be submitted is determined on a case-by-case basis. See Bartholomew v. State, 871 S.W.2d 210, 212-13 (Tex. Crim. App. 1994).
        Aggravated assault can be a lesser included offense of murder. See Forest, 989 S.W.2d at 367. Accordingly, we turn to whether appellant met the second prong of the Royster test, whether some evidence shows that if the defendant is guilty, he is guilty only of the lesser offense.         A person commits murder if he “(1) intentionally or knowingly causes the death of an individual; [or] (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b) (West 2003). A person commits manslaughter if he recklessly causes the death of an individual, and he commits criminally negligent homicide if he causes the death of an individual with criminal negligence. Id. §§ 19.04, .05. A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another. Id. §§ 22.01, .02 (West Supp. 2010).
        Appellant argues there is evidence he is guilty only of aggravated assault because of Rocha's testimony that he did not think appellant intended to shoot at Martinez. Appellant relies on Rocha's testimony that during the drive back to Torres's house after appellant had retrieved the assault rifle, Torres thought appellant “was just going to try to scare him [Martinez] or something.” Appellant also relies on Rocha's testimony that Rocha did not think appellant was trying to shoot at Martinez because the first couple of shots hit the ground. Rocha thought the recoil from the gun caused the muzzle to rise while appellant was continuing to fire the gun. Rocha's testimony may be evidence that appellant acted recklessly or with criminal negligence in firing the gun in Martinez's direction when the muzzle of the gun rose. However, the evidence is undisputed that Martinez died from the gunshot wound inflicted by appellant. Thus, the evidence would not show appellant was guilty only of aggravated assault, but would also show that he was guilty of manslaughter or criminally negligent homicide. See Jackson v. State, 992 S.W.2d 469, 474-75 (Tex. Crim. App. 1999) (when no evidence shows victim's death was not caused by the defendant, trial court does not err in denying aggravated assault instruction). Because appellant failed to meet the second prong of the Royster test, we conclude the trial court did not err in denying appellant's request that the jury be charged on aggravated assault as a lesser included offense. We overrule appellant's first issue.
AUTOPSY PHOTOGRAPH
        In his second issue, appellant contends the trial court erred by admitting State's exhibit 17, an autopsy photograph showing the gunshot wound. At trial, appellant objected that the photograph was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice.
        The decision to admit or exclude photographic evidence is within the sound discretion of the trial court, and we review the trial court's decision for abuse of discretion. Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005). A trial court's decision that is within the zone of reasonable disagreement is not an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
        In deciding whether photographs are unfairly prejudicial, we consider the number of photographs, the size, whether they are in color or black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether a body has been altered by autopsy. Prible, 175 S.W.3d at 734. In this case, the trial court admitted nine eight-inch by ten-inch color photographs from the autopsy. Eight of the photographs are closeups of the “pseudo-stippling”-minute injuries to the skin caused by windshield and bullet fragments due to the bullet's passing through the windshield before striking Martinez-on Martinez's head, arms, and chest. One photograph, exhibit 17, shows a closeup of the gunshot entry wound.
        Exhibit 17 shows the top of Martinez's head. The scalp has been shaved around the wound to show the gunshot wound and some of the pseudo-stippling. The photograph shows the large, irregular hole in Martinez's scalp and skull with red fleshy material visible in the hole. There is no blood present, and the area depicted is clean and free of gore other than the injuries themselves. The medical examiner testified that the exhibit was necessary for her to describe the gunshot wound to the jury.
        Appellant argues that the photograph was inadmissible because “the gruesome nature of the head wound” was likely to divert the jurors' attention from the lesser included offenses and focus them solely on intentional murder. Appellant argues further that “this photograph was more likely to compel a verdict of murder simply because of its gruesomeness, implying some sort of torture inflicted on the body as opposed to a single shot to the head.” We disagree. The medical examiner used the photograph in describing the gunshot wound. Nothing in the record, including exhibit 17, suggests or implies that appellant inflicted any torture on Martinez other than the single shot to the head.
        Appellant also argues the photograph was irrelevant because the State was not seeking to prove any fact in issue as reflected in exhibit 17. Appellant cites two cases, Prible v. State, and Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004), in support of this argument. In both of those cases, the court of criminal appeals determined that the trial courts erred in admitting autopsy photographs of children and a fetus killed by the defendants' actions, but with whose murder the defendants were not charged, because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. See Prible, 175 S.W.3d at 736; Erazo, 144 S.W.3d at 493. In this case, the exhibit is of the person with whose death appellant was charged. The State was required to prove beyond a reasonable doubt that appellant caused Martinez's death by shooting him with a firearm, and the medical examiner testified that the photograph was necessary for her to explain the gunshot wound to the jury.
        In light of the medical examiner's testimony concerning the necessity of the photograph to explain her testimony to the jury and the photograph itself, we conclude that the trial court's determination to admit the photograph was within the zone of reasonable disagreement, and the trial court's decision to admit State's exhibit 17 was not an abuse of discretion. We overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090936F.U05
 
Footnote 1 The interview was video recorded, and the recording was played for the jury.