Mongo Jabarr Williams v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00151-CR

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MONGO JABARR WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31825-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

In the middle of a Kilgore roadway, Peter Smith was severely beaten with a baseball bat, which left him in a pool of his own blood with a crushed skull and struggling to breathe. He died several months later without ever regaining consciousness.

Evidence suggests that Mongo Jabarr Williams thought Smith had assaulted Williams' mother. Witnesses described Smith being attacked by Williams and his brother, Demarko Dennis. Smith's blood was found on Williams' pants. Williams was convicted of Smith's murder and sentenced to fifty years' imprisonment.

On appeal, Williams contends we should reverse his conviction because a poster-sized bloody photograph of the victim was introduced into evidence, and because a portion of the State's final argument during the guilt/innocence phase of trial was erroneously allowed. We affirm the judgment of the trial court because (1) admitting the enlarged photograph of the victim was not an abuse of the trial court's discretion, and (2) Williams preserved no error regarding the State's jury argument.

(1) Admitting the Enlarged Photograph of the Victim Was Not an Abuse of Discretion

The complained-of photograph, State's Exhibit 12, is essentially an enlargement of a snapshot-sized photograph that had previously been introduced into evidence as State's Exhibit 6. It is a picture of Smith's body lying on the road, his head in a pool of blood. Williams argues that, because the photograph was large 22 inches by 34 inches it displayed the lurid details of the crime scene in an unfairly prejudicial fashion. He contends that it was more prejudicial than probative and that the trial court abused its discretion by admitting it over his objection.

The admissibility of photographs over challenge is within the sound discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000); Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). An abuse of discretion arises only when the probative value of the photograph is small and its inflammatory potential is great. In determining whether certain photographs are admissible under Rule 403, several factors should be considered: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, the availability of other means of proof, and the circumstances of each case. Tex. R. Evid. 403; Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994). Further, photographs are generally admissible where testimony describing the scene is admissible. Emery, 881 S.W.2d at 710.

The photograph provides a pictorial representation of the crime scene, and is of something that could be, and was, described by a witness. It depicts the clothed victim, lying on the road, with a pool of blood at his obviously severely beaten head. The photograph appears to have been taken at night, and while the flash illuminated the victim's clothing so that it is clearly visible, his head and face are virtually indistinguishable in the smaller photo. The larger print provides details a better view of the injury's gravity and more visual clues that the victim was left lying on a roadway that are not apparent in the smaller snapshot; and the trial court concluded the larger image was helpful to the jury in understanding Smith's condition after the beating. This has a heavier weight than it might otherwise, because Smith did not die as an immediate result of the beating. He died of secondary infections several months later.

Once a defendant objects to photographic evidence on the basis of Rule 403, the trial court must weigh its probative value against its potential for unfair prejudice. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). The photograph in question apparently depicted no more than the gruesome nature of the injuries inflicted on Smith. Although a crime scene photograph may be gruesome, that fact alone will rarely render the photograph necessarily inadmissible under Rule 403. Id. at 430; Long v. State, 823 S.W.2d 259, 272 73 (Tex. Crim. App. 1991). The trial court "must consider the host of factors affecting probativeness . . . and balance those factors against the tendency, if any, that the photographs have to encourage resolution of material issues on an inappropriate emotional basis." Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999).

In this case, we find that the enlarged photograph had probative value and was not so improperly prejudicial as to be outside the zone of reasonable disagreement as to its admissibility. The contention of error is overruled.

(2) Williams Preserved No Error Regarding the State's Jury Argument

Williams next complains about comments made by the prosecutor during jury argument in which he suggested that, had Williams called Williams' mother as a witness, the State could have discredited her in cross-examination. Williams also complains of jury argument in which the prosecutor described the attackers as animals.

The general rule for presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). To reach the level of an adverse ruling, if the objection is sustained, counsel must then ask for an instruction to disregard. If the instruction is given, counsel must then move for a mistrial. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984). If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991).

In each case raised on appeal, counsel objected to the prosecutor's comment, the objection was sustained, and the trial court instructed the jury to disregard. No request for mistrial was made. No complaint was pursued to an adverse ruling. Thus, no claim of error was preserved for our review.

The contentions of error are overruled.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 22, 2005

Date Decided: October 5, 2005

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