Tarrance Branch v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-93-054-CR

TARRANCE BRANCH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19,425CR

O P I N I O N

Tarrance Branch appeals his conviction for murder. Branch, a sixteen-year-old juvenile who was certified to stand trial as an adult, was charged with causing the death of James Frazier, Jr. by shooting him with a .25 caliber pistol on July 29, 1992. The case was tried before a jury that found Branch guilty of murder and returned a verdict of ninety-nine years imprisonment. We overrule the appellant's single point of error and affirm the judgment of the trial court.

The victim, James Frazier, Jr., was working as a lifeguard at the Penn Park Pool in Waxahachie on July 29, 1992. Frazier informed the supervisor of the pool that Branch, who had been diving into the pool from the lifeguard stand, should be ejected from the pool for the remainder of the pool's season. The supervisor informed Branch that he would not be allowed to return to the pool for the remainder of the season but allowed him to remain in the pool area to dry off in the sun. While Branch was drying, Frazier and Branch became embroiled in an argument. During the course of this argument an acquaintance handed Branch a .25 caliber pistol. Branch testified that Frazier then approached him and shoved him with his forearm. The gun discharged once, and the bullet struck Frazier in the center of the chest, pierced his heart and resulted in Frazier's death a short time later. Branch contends that the shooting was accidental, and that the gun went off as a result of being shoved by Frazier.

In his only point of error, Branch asserts that the trial court abused its discretion in admitting several photographs over his objection that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. The relevancy of the photographs is not before this court.

The approach under Rule 403 of the Texas Rules of Criminal Evidence is to admit relevant evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Crim. Evid. 403; Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991), cert. denied, __ U.S.__, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992); Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (on rehearing) (citing Crank v. State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988)).

As is clear on its face, Rule 403 excludes relevant evidence only when its prejudicial effect substantially outweighs its probative value. Rule 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long, 823 S.W.2d at 271; Montgomery, 810 S.W.2d at 389. Two important concepts form the basis of this presumption. First, virtually all evidence proffered by a party to a lawsuit will be prejudicial to the opposing party. Montgomery, 810 S.W.2d at 378 (Tex. Crim. App. 1990). Second, Rule 403 excludes what would otherwise be relevant evidence only when it is unfairly prejudicial to the opposing party that is, when its prejudicial effect substantially outweighs its probative value. See Tex. R. Crim. Evid. 403. In Long, the Court of Criminal Appeals listed nine factors to be considered in determining the prejudicial effect of photographic evidence:

(1) the number of exhibits;

(2) their gruesomeness;

(3) their detail;

(4) their size;

(5) whether they are black and white or color

(6) whether they are close-up

(7) whether the body is naked or clothed

(8) the availability of other means of proof; and

(9) the circumstances unique to each individual case.

Long, 823 S.W.2d at 272. These factors are to be balanced against "the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it." Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992), cert. denied, __U.S.__, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993) (citing Montgomery, 810 S.W.2d at 389-390). The ultimate determination, however, rests on "the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it." Fuller, 829 S.W.2d at 206.

Turning now to the present case, Branch challenges the trial court's admission of State's exhibits 16 through 21, 32, 34, and 38. Exhibits 16 through 21 are 3 -by-5-inch color photographs of the victim's body. Two of the photographs (Exhibits 16 and 19) show the unclothed torso and head of the victim. Three of the photographs (Exhibits 17, 18, and 21) show just the unclothed torso of the victim. The sixth photograph (Exhibit 20) shows the victim's unclothed back left shoulder and neck region. The first five photographs show from various angles both the bullet wound inflicted by the appellant and the "defensive wounds" inflicted by medical personnel in attempting to save the victim's life. The sixth picture shows a small portion of the defensive wounds only. Various amounts of blood are visible on the victim's body in all six of the pictures.

Exhibits 32 and 34 are photographs of the victim's body taken during the autopsy. Exhibit 32 is an 8-by-12-inch color photograph of the victim's unclothed torso and head. Both the bullet wound and the defensive wounds are clearly visible in the photograph as is a modest amount of blood. Exhibit 34 is also an 8-by-12-inch color photograph of the victim's body. It is a close-up of the bullet wound and shows the upper half of the victim's unclothed torso and the lower half of the victim's unclothed head. Part of the defensive wounds of the victim are also visible in this picture.

Exhibit 38 is a 6-by-8 -inch black and white photograph of the victim's father walking behind the stretcher on which his son is being carried from the scene of the shooting to the ambulance. Only the victim's head and the lower half of his legs are visible in the picture.

Branch does not challenge the probative value of the photographs on the basis of the first eight Long factors. Instead, Branch asserts, with neither controlling authority nor persuasive elaboration, that the probative value of the photographs is substantially outweighed by the danger of unfair prejudice because of the circumstances unique to this individual case. We have reviewed the original exhibits, and we disagree. // In considering the probative value of the evidence, it is doubtful that the State's case would have been rendered significantly less persuasive without the introduction of these photographs because at trial the appellant did not contest that he shot the victim once in the chest, that the bullet pierced the victim's heart, or that the victim died as a result. It is unlikely that jurors would have harbored doubts about the cause of death absent the pictures in question. The probative value of these photographs, therefore, was not that great.

Nevertheless, we are not persuaded that the photographs likely influenced the jurors in this cause to decide essential issues on an impermissible basis. The photographs are not, in our estimation, so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of this case after viewing them. See Fuller, 829 S.W.2d at 206; see also Barnes v. State, No. 71,291, slip op. at 16 (Tex. Crim. App. Feb. 9, 1994). We overrule Branch's single point of error and affirm the judgment of the trial court.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 16, 1994

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