Victoria Walker Blue v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-99-344-CR

VICTORIA WALKER BLUE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 26,482-85

O P I N I O N

The State indicted Victoria Walker Blue on three counts of aggravated assault and one count of deadly conduct. It was alleged that she committed a drive-by shooting, firing five times at a group of people standing outside a house. Blue apparently was angry at her husband who was in the group. One person s arm was broken by one of the bullets. Another person was struck twice, requiring surgery to repair her intestines, gallbladder, and either a kidney or liver. Three eyewitnesses, including the two victims, all of whom knew Blue, identified her at a jury trial as the assailant. The court granted a directed verdict on one count. The jury convicted Blue on the other three counts, and she elected to have the court sentence her. The judge imposed three ten-year sentences to run concurrently.

Blue raises four issues on appeal.

Issue 1: The Photographs

Blue complains that two photographs admitted as State s exhibits did not accurately depict the crime scene and should not have been admitted. The photographs were taken over a year after the shooting and were taken during the day whereas the shooting occurred at night. Three other photographs taken immediately after the shooting and at night were also admitted. Blue does not complain about these pictures. As Blue states in her brief on page nine: It seems as though State s Exhibits 3 and 5 is extra unreliable evidence, remote in time and description, that is prejudicial to the Appellant and skew the real picture.

The admissibility of photographs is within the discretion of the court and is reviewed for abuse of discretion. Kelley v. State, 22 S.W.3d 642, 644 (Tex. App. Waco 2000, no pet.). We will not reverse on a trial court s evidentiary ruling unless the ruling falls outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

These two photographs were admitted because the other three were taken in the dark and the crime scene was not as visible in them. They aided the jury in understanding the physical setting and distances involved at the crime scene. The court did not abuse its discretion in admitting the two photographs.

Even if admitting the photographs was error, the error was harmless. We will not reverse for evidentiary errors that do not affect substantial rights. Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b). Three other photographs taken at night shortly after the shooting were also admitted into evidence. The jury was thoroughly informed of the date of the shooting and that it occurred at night. Therefore, the jury knew the assailant had the view of the house in the three photographs taken at night, not the view in Exhibits 3 and 5. No harm resulted from admitting the two photographs.

The issue is overruled.

Issue 2: The Police Report

Blue complains that she should have been allowed to review a supplemental police report. Officer Neveu testified he made an original report, which was produced at trial to the defense, and a supplemental report which he could not find. // He testified he reviewed only the original report in preparing for trial. Blue s request for the unlocated supplemental report was refused by the court.

After a witness, other than the defendant, has testified, then on request of the other party, any written statement in the possession of the party who sponsored the witness which was previously made concerning the subject matter of the witness s testimony must be produced. Tex. R. Evid. 615(a) (emphasis added). This Rule applies to police reports. Davis v. State, 780 S.W.2d 945, 949 (Tex. App. Fort Worth 1989, pet. ref d). Neveu testified the supplemental report was lost and he did not review it for trial. Therefore, under the express wording of Rule 615(a), the State did not have to produce it. Amunson v. State, 928 S.W.2d 601, 608 (Tex. App. San Antonio 1996, pet. ref d).

The issue is overruled.

Issue 3: The Shell Casings

Blue complains that the five shell casings recovered from the crime scene should not have been admitted into evidence, because the chain of custody was improper. Officer Neveu testified he recovered five shell casings from the scene and placed them into the police evidence locker. However, there was no evidence about how the casings got to trial. Neveu identified them at trial from black dots he marked on them at the scene.

Rule of Evidence 901 requires authentication of physical evidence (as well as other types of evidence) before it can be admitted. Tex. R. Evid. 901; Jackson v. State, 968 S.W.2d 495, 500 (Tex. App. Texarkana 1998, pet. ref d). Whether the trial court erred in admitting physical evidence is reviewed under an abuse of discretion standard. Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984). A court abuses its discretion if it admits evidence when a reasonable jury could not find that the evidence had been authenticated. Jackson, 968 S.W.2d at 499; Pena v. State, 864 S.W.2d 147, 152 (Tex. App. Waco 1993, no pet.). When the evidence has unique or distinctive properties, the testimony of a witness who viewed the evidence at the relevant time suffices to prove authenticity; otherwise, establishing the chain of custody may be required. Jackson, 968 S.W.2d at 500.

Whether the black dots Neveu placed on the shell casings made them unique or distinctive enough that he could testify to their authenticity without the chain of custody being established is questionable. However, even if the admission of the shell casings into evidence was improper, any error was harmless. We will not reverse for evidentiary errors that do not affect substantial rights. Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b). Even without the shell casings, three eyewitnesses testified the assailant fired five shots and that Blue was the assailant. The gun was never recovered, and so the casings could not be directly tied to the gun, or to Blue, anyway. Therefore, the absence of the shell casings at trial would not have made any difference in the outcome.

The issue is overruled.

Issue 4: The Cross-Examination for Impeachment

Blue complains the court erred by restricting her cross-examination of one of the eyewitnesses, a juvenile named K.P. The State blunted the sword of Blue s cross-examination of K.P. by bringing out on direct examination that K.P. was currently in the custody of the Texas Youth Commission because he committed an aggravated assault. On cross-examination, Blue attempted to elicit testimony from him that the aggravated assault was a stabbing by him of another boy. The State objected, and the court agreed and so ruled that the details of the offense were irrelevant.

Blue presents no authority that supports her argument. Evidence of a juvenile adjudication may be admissible at trial to attack the credibility of a juvenile who testifies. Tex. R. Evid. 609(d). However, the general rule, applicable here, is that details of the offense are not admissible. Lape v. State, 893 S.W.2d 949, 958 (Tex. App. Houston [14th Dist.] 1994, pet. ref d) (citing Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986)). The fact that K.P. was the State s witness is irrelevant, because either party, including the one which called the witness, may impeach the witness s credibility. Tex. R. Evid. 607.

The issue is overruled.

Conclusion

Having overruled Blue s four issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed June 20, 2001

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