McDougal, Shawn Alan v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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SHAWN ALAN McDOUGAL, ) No. 08-00-00391-CR

)

Appellant, ) Appeal from

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v. ) 161st District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# B-27,970)

O P I N I O N

Shawn Alan McDougal appeals his conviction for the offense of murder. After Appellant entered a plea of guilty before the jury, the trial court conducted a unitary proceeding, rather than a bifurcated trial. Tex.Code Crim.Proc.Ann. art. 26.14 (Vernon 1989); see Frame v. State, 615 S.W.2d 766, 767 (Tex.Crim.App. 1981). The jury found Appellant guilty, found against Appellant on the sudden passion special issue, and assessed his punishment at life imprisonment. We affirm.

FACTUAL SUMMARY

Appellant pled guilty to causing the death of Melanie Cadena by choking and hitting her with his hands and by stomping her with his foot. Appellant and Melanie had been involved in an on-and-off romantic relationship for several years and had a seven-month-old daughter. The relationship was characterized by numerous arguments and separations, but the couple always reunited. Appellant was incarcerated in the Ector County Jail from September through mid-October, 1999. During this time, Melanie began dating another man.

For a few weeks immediately prior to her death, Melanie and her daughter shared an apartment with her cousin, Heather Cadena. Heather often cared for the baby while Melanie worked. Appellant and Melanie had begun seeing each other once again, and he began living in the apartment with Heather and Melanie a few days prior to the murder. According to Appellant=s statement, he became angry when Melanie came home late from work and told him she had been sitting in the parking lot with some Aguys@ from work and had gotten Ahigh.@ Appellant confronted Melanie and told her she did not spend enough time with the baby. They began to argue and Melanie finally told Appellant that she and the baby did not need him and he needed to leave the apartment. When Melanie began to strike Appellant=s face, he lost his temper and began choking her with both hands. After she fell to the floor, he stomped the back of her neck with his foot, striking a single blow. Appellant determined that Melanie still had a pulse and was breathing before he fled from the apartment with the baby.

Appellant called one of his friends, Ricky Gutierrez, the following morning and told him that he thought he had killed Melanie. Gutierrez eventually convinced Appellant to turn himself in to the police. Melanie was later found dead in her apartment. Although Appellant claimed that he only stomped on her once, the forensic pathologist who performed the autopsy determined that she suffered multiple injuries to her head, face, and upper back as a result of blunt force trauma. Further, she had linear abrasions on her face that appeared consistent with the pattern on the sole of Appellant=s boots.

The jury rejected Appellant=s claim of sudden passion and assessed his punishment at life imprisonment. A few days after trial concluded, Appellant=s trial attorney, the Honorable Leonard J. Bruce, filed an unsworn motion to withdraw alleging that new counsel should be appointed Ashould the defendant elect to file an appeal or motion for new trial.@ He further alleged that his continued representation of Appellant would result in the deprivation of Appellant=s right to allege and effectively argue ineffective assistance of counsel. The trial court denied the motion with a written order the following day. Bruce timely filed a written notice of appeal on Appellant=s behalf.

DENIAL OF MOTION TO WITHDRAW

In his first point of error, Appellant contends that the trial court abused its discretion in denying trial counsel=s motion to withdraw without a hearing. He generally argues that an appellant is denied the effective assistance of counsel on appeal where the same attorney represents the appellant at trial and then on appeal. The trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). The right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice. Id.

Here there is no evidence that counsel filed the motion to withdraw for the purpose of manipulating or obstructing the judicial process. However, the motion to withdraw was not supported by any evidence showing that Appellant wished to complain about counsel=s trial performance. Instead, it was contingent on Appellant=s desire to appeal and based on a general assertion that the same attorney should not represent the defendant at trial and on appeal. In the absence of an allegation or some evidence indicating a need for an evidentiary hearing, the trial court had no obligation to conduct one. Further, Appellant cites no authority in support of his contention that a defendant is automatically denied the effective assistance of counsel on appeal where the same attorney represents the defendant both at trial and on appeal. We decline to create such an arbitrary and unworkable rule.

In passing on the motion to withdraw, the trial court was aware of the strong presumption that counsel=s representation of Appellant falls within the wide range of reasonable, professional assistance and that any decisions made are the result sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Further, the trial judge had the opportunity to observe first-hand counsel=s performance. We will not speculate that there may be some evidence yet to be developed that will support a claim of ineffective assistance. In the absence of any allegations or evidence supporting a claim of ineffective assistance of counsel, we are unable to conclude that the trial court abused its discretion in denying the motion to withdraw. Point of Error No. One is overruled.

ADMISSION OF PHOTOGRAPHS

In Point of Error No. Two, Appellant argues that the trial court abused its discretion in admitting seven photographs of the deceased (State=s Exhibits 2, 6, 8, 11, 12, 18, and 20) which were utilized by the forensic pathologist, Dr. Rodney Tucay, during his testimony. He primarily argues that the photographs are inadmissible under Rule 403 of the Texas Rules of Evidence because their probative value is substantially outweighed by the danger of unfair prejudice. However, he additionally contends that the photographs are irrelevant since the issue of his guilt and the nature of the deceased=s injuries were not contested at trial or were established by other evidence. Although Appellant made what can be construed as arguments related to the relevancy of the photographs, he never argued at trial that any of these photographs were inadmissible because the issue of his guilt and the nature of the witnesses= injuries were not contested issues.[1] Because this particular argument does not comport with his trial objections, we will not address it. See Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997).

Rules 401 and 403

The admission of photographs is within the discretion of the trial court. Long v. State, 823 S.W.2d 259, 270 (Tex.Crim.App. 1991); Bradley v. State, 960 S.W.2d 791, 803 (Tex.App. -El Paso 1997, pet. ref=d). A photograph will usually be admissible so long as a verbal description of what it depicts is also admissible. Allridge v. State, 850 S.W.2d 471, 494 (Tex.Crim.App. 1991). Rule 403[2] requires a photograph to possess some probative value and that its probative value not be substantially outweighed by its inflammatory nature. Santellan, 939 S.W.2d at 172; see Bradley, 960 S.W.2d at 803. In making this determination, we consider factors including: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id. Photographs showing a victim=s wounds are admissible when offered to clarify and support observations and conclusions about the victim=s injuries and to reveal the manner of death, and not solely to inflame the minds of jurors. Madden v. State, 799 S.W.2d 683, 697 (Tex.Crim.App. 1990); Bradley, 960 S.W.2d at 803.

The State offered a total of eighteen photographs from the autopsy. Each of the seven challenged exhibits are color 8@ x 10@ photographs of the deceased taken prior to the autopsy. State=s Exhibit 2 is a photograph taken of the deceased=s head and chest. Dr. Tucay utilized the photograph to show the injuries he found on the body which he concluded were consistent with strangulation and blunt force trauma. State=s Exhibit 6 is a close-up view of the injuries to the left side of the victim=s head. It is from a different angle than State=s Exhibit 2 and it depicts certain pattern abrasions and petechial hemorrhages on the eyelids which indicated that the deceased had suffered asphyxiation. State=s Exhibit 8 is a photograph of the victim=s back and, as described by the Dr. Tucay, it depicts multiple contusions on both sides of the deceased=s upper back. The photograph also showed lividity or pooling of the blood after death. State=s Exhibit 11 depicted the clothed body of the deceased as she appeared upon arrival at the morgue. State=s Exhibit 12 is a close-up view of the face but from a different angle than State=s Exhibit 11. State=s Exhibits 18 and 20 are two different views of the deceased=s left hand. One photograph shows the top of the hand while the other shows the palm.

These exhibits possesses significant relevance in that all of them, except Exhibits 18 and 20, reveal the extensive injuries suffered by the victim in this vicious attack, regardless of whether the photographs also depict lividity and rigor. Dr. Tucay utilized the photographs in his testimony to illustrate the nature of the injuries he found and to support his conclusions regarding the cause of death. Further, the photographs refuted Appellant=s assertion that he only stomped on the deceased a single time. State=s Exhibits 18 and 20 illustrated the absence of any offensive or defensive wounds on the deceased=s left hand.[3] Therefore, the trial court did not abuse its discretion in finding the evidence relevant.

The photographs are not especially gruesome and the State did not attempt to offer more photographs than were necessary for Dr. Tucay=s use in his testimony. Appellant urges that it was unnecessary for the State to offer any of these photographs since he had pled guilty and admitted choking Cadena and stomping on her neck. However, the photographs assisted the State in refuting significant aspects of Appellant=s version of how the murder occurred. This is relevant because if the jury found that Appellant had not been truthful in relating the details of the murder, it might also disbelieve his claim of sudden passion. The significant probative value of these photographs is not substantially outweighed by the danger of unfair prejudice nor is this a situation in which the State presented unnecessary cumulative evidence. Accordingly, the trial court did not abuse its discretion in admitting these exhibits over Appellant=s objections. Point of Error No. Two is overruled. Having overruled both points of error, we affirm the judgment of the trial court.

July 25, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] A Rule 403 objection, standing alone, does not preserve a relevancy complaint. Although Appellant did not expressly object to the relevance of the photographs, we are able to extract such a complaint from his Rule 403 objection. The better practice is to make a separate and specific relevance objection or risk waiving the error. See e.g., Phipps v. State, 904 S.W.2d 955, 957 (Tex.App. -Beaumont 1995, no pet.)(defendant waived for appellate review issue of relevancy of photographs of victim used at trial where defendant=s objection at trial merely complained of inflammatory nature of photographs and not of their relevancy); see also Smith v. State, 959 S.W.2d 1, 14 (Tex.App. -Waco 1997, pet. ref=d)(objection, by university official accused of soliciting benefit from prospective public contractor, that university solicitation policy was Asignificantly different from the state law, and thus, we object under Rule 403 under confusion of issues@ did not suffice to call court=s attention to policy=s alleged lack of relevance, and thus waived objection that policy was irrelevant).

[2] Rule 403 provides: AAlthough relevant, evidence may be excluded if 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.Evid. 403.

[3] Appellant does not raise a complaint on appeal regarding the admissibility of the photographs of the other hand.