GERALD EDMOND PABST, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 18, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01347-CR
............................
GERALD EDMOND PABST, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F07-00899-Y
.............................................................
OPINION
Before Justices Bridges, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted appellant Gerald Edmond Pabst of capital murder and the trial court assessed a mandatory sentence of life in prison. Appellant raises three issues on appeal arguing that the evidence was legally insufficient to support his conviction and that the trial court abused its discretion by admitting certain evidence. We resolve appellant's issues against him and affirm the trial court's judgment.
Background
 
         The Victim
        On April 19, 1986, the victim, Galua Self Crosby, was found in her bed, in the home she shared with her husband, where she had been bound, gagged, beaten, sexually assaulted, and shot three times in the head.
         Appellant's Previous Indictment and Testimony
        Appellant and Clay Reed Chabot were indicted in 1986 for Crosby's murder. Appellant was the State's key witness at Chabot's trial. The gist of appellant's testimony at Chabot's trial was that Chabot was upset with Crosby's husband, Doug Graham, about a recent drug deal, so appellant and Chabot went to the couple's home looking for Graham. Graham was not home, so Chabot forced his way into the home and demanded money and drugs from Crosby. Chabot forced Crosby into the bedroom and told appellant to tie Crosby's feet while Chabot tied her hands. Appellant testified that he complied with Chabot's command because Chabot had a gun and appellant was afraid of Chabot. Appellant testified that he left the bedroom and Chabot stayed with Crosby for about ten minutes. Appellant testified that he heard Crosby say “no,” and also heard two gunshots, before he and Chabot left.
        After appellant's testimony, Chabot was convicted of murder, and appellant's indictment was dismissed on the State's motion.
         New DNA Testing
        In 2007, Chabot filed a motion under code of criminal procedure chapter 64 requesting new forensic testing of DNA evidence. The new testing indicated that appellant was a probable contributor, and eliminated Chabot as a contributor, of DNA found on the palm of Crosby's left hand and spermatozoa deposited inside her vagina.   See Footnote 1 
         Appellant's Trial
        Appellant was indicted for capital murder in 2007 and his case was tried to a jury. The State's evidence at appellant's trial included portions of appellant's testimony from Chabot's trial, testimony from police officers who investigated Crosby's murder in 1986, and testimony from the medical examiner and forensics experts.
Legal Sufficiency of the Evidence
 
        In his first issue appellant argues that the evidence is legally insufficient to prove that Crosby was sexually assaulted by appellant “at a time reasonably congruent with death.”
         Applicable Law and Standard of Review
        Appellant was indicted for capital murder for intentionally murdering Crosby by shooting her with a firearm while in the course of committing or attempting to commit aggravated sexual assault. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009).   See Footnote 2  The court of criminal appeals has defined “in the course of committing” an offense listed in section 19.03(a)(2) as conduct occurring “in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App. 1993).
        We apply well-known standards when reviewing a challenge to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Laster, 275 S.W.3d at 517. We do not re-weigh the evidence or substitute our judgment for that of the fact-finder. See id. An appellate court's role is limited to guarding against the rare occurrence when a fact-finder does not act rationally. See id.
                 The Evidence
        Crosby was found lying face down in her bed wearing only an open bathrobe. Her hands were tied together behind her back, and her ankles were bound approximately two feet apart with the bathrobe's cloth belt. Her underwear was tied across her mouth as a gag.
        Rodney Gregg, one of the police officers called to the crime scene, testified that he observed Crosby's body in her bedroom and it appeared to him that a sexual assault had occurred because of the way Crosby's hands and feet were tied. The medical examiner testified that Crosby suffered three gunshot wounds to the head and died as a result of those wounds. The medical examiner also testified that Crosby sustained other injuries, including blunt-force injuries, multiple abrasions, and an injury to her anus that was consistent with a sexual assault.
        Carolyn Van Winkle, the serologist who performed forensic testing in 1986 on the sexual assault kit collected during Crosby's autopsy, testified that the spermatozoa found in Crosby's vaginal vault had partial tails attached, which indicated that they were likely deposited at or near the time of Crosby's death.
        Cassie Johnson, the DNA analyst who conducted the DNA testing ordered by the trial court in response to Chabot's request in 2007, testified that she tested DNA samples from the palm of Crosby's left hand, and from spermatozoa found in Crosby's vagina, against DNA samples from Graham, Chabot, and appellant. The DNA on those samples was consistent with appellant's DNA and eliminated Graham and Chabot as possible contributors of the DNA.
         Analysis
        Appellant does not challenge the DNA evidence in this case. Instead, appellant argues that “the State failed to prove that the intercourse, if any, between [a]ppellant and [Crosby] happened at a time reasonably congruent with death.” To support his legal sufficiency challenge, appellant cites Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002). In Herrin, the court of criminal appeals concluded that the evidence was legally insufficient to prove that the defendant killed the complainant in the course of a robbery or attempted robbery because the only evidence that any robbery or attempted robbery occurred was the fact that the victim's wallet was missing and was never found, and there was no evidence linking the defendant to the victim's wallet. Id. at 442.
        Relying on Herrin, appellant complains that Van Winkle's testimony about the condition of the spermatozoa found in Crosby's vagina was too inconclusive to prove when it was deposited. We disagree. Van Winkle testified consistently and repeatedly that the condition of the spermatozoa found in Crosby's vagina, and specifically the fact that some of the spermatozoa still had partial tails attached to them, indicated that the spermatozoa were deposited in Crosby's vagina at or near the time of her death. Van Winkle also testified that if the spermatozoa had been deposited, for example, 12 hours prior to Crosby's death, it would have been much less likely that the spermatozoa would still have had partial tails attached.
        After viewing all of the evidence in the light most favorable to the prosecution, we conclude that a rational fact-finder could have found the elements of capital murder as charged in the indictment beyond a reasonable doubt. As a result, we conclude that the evidence is legally sufficient to support appellant's conviction for capital murder. See, e.g., Barron v. State, No. 05-94-00103-CR, 1997 WL 732475, at *5 (Tex. App.-Dallas Nov. 26, 1997, pet. ref'd) (not designated for publication) (DNA evidence implicating defendant and excluding only other suspect legally sufficient to support defendant's conviction for aggravated sexual assault). We resolve appellant's first issue against him.
 
Admissibility of Appellant's Statement to Investigators
 
        In his second issue appellant argues that the trial court erred by allowing an investigator to testify about an oral statement appellant made while in custody.
                 Background
        Appellant filed a pretrial motion to suppress his statements to investigators, and the trial court conducted a hearing outside the presence of the jury to determine the admissibility of one particular oral statement. During the hearing, Craig Mankins, an investigator with the Dallas County District Attorney's office, testified that he and another investigator, George Espinoza, traveled to Ohio in July 2007 to arrest appellant after he was indicted in Dallas, Texas for capital murder. Appellant was taken into custody by Ohio authorities and was at the police station when Mankins and Espinoza arrived. Espinoza advised appellant of his Miranda rights, and appellant wrote a brief, voluntary statement. The investigators told appellant that he would need to attend an extradition proceeding, and appellant told the investigators that he was willing to go to Dallas with them. As the investigators were preparing to leave, appellant made the statement, “I beat this once, I'll beat it again.”
        On cross-examination during the hearing, appellant's counsel questioned Mankins about Espinoza's written notes concerning appellant's interview. Those notes state, in part, as follows:
 
Pabst was moved to an interview room and read his warnings by Espinoza at approximately 2:30 p.m. Pabst was asked if he understood the warnings and Pabst told Espinoza that he did. Espinoza then asked Pabst to sign and date the [M]iranda card. Espinoza then asked Pabst if he was willing to waive his rights and speak to Espinoza about the offense. Pabst told Espinoza that he wanted to speak about the case.
 
. . .
 
 
 
Espinoza asked Pabst if he was willing to waive extradition and return to Texas and get this matter cleared up. Pabst told Espinoza that he would because he had beat it before and he would beat it again. Espinoza asked Pabst if he would write a statement regarding what he knew about the case and Pabst did after reviewing his rights again which were printed on the statement form. Pabst was then transported to county court for an extradition hearing.
 
        After Mankins finished testifying, appellant's counsel objected to the admission of appellant's statement. Pertinent to this appeal, appellant's counsel essentially argued that appellant's oral statement was inadmissible under code of criminal procedure article 38.22, section 3(a), because Espinoza's notes indicate that appellant's statement was made as a result of custodial interrogation, and the prerequisites identified in section 3(a) for admitting an oral statement were not followed. Appellant's counsel also argued that the statement did not qualify for the exception identified in article 38.22, section 3(c), because it “did not lead to any additional new evidence in this case.” In response, the State essentially argued that appellant's statement was an unsolicited comment not made as a result of custodial interrogation. The trial court agreed with the State and ruled that the statement was admissible because it “was not responsive to any interrogation.” After the trial court's ruling, Mankins testified before the jury that appellant made the comment, “I beat this once, I'll beat it again.”
        Applicable Law and Standard of Review
        Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Article 38.22 does not preclude the admission of a statement that does not stem from custodial interrogation. Id. at 525; see also Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005) (“[n]othing in this article precludes the admission . . . of a statement that does not stem from custodial interrogation”). The defendant bears the initial burden of proving that a statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526.
        In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts that depend on credibility, and conduct a de novo review of the trial court's application of the law to those facts. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole judge of the credibility of the witnesses and decides the weight to be given to their testimony. St. George, 237 S.W.3d at 725. We must sustain a trial court's ruling on a motion to suppress if it is reasonably supported by the record and correct under any theory of law applicable to the case. Id.
        Analysis
        On appeal, appellant argues that Espinoza's notes from appellant's interview “make it clear” that appellant's statement was the result of custodial interrogation. And as a result, he argues that the statement is governed by, and inadmissible under, article 38.22. We disagree.
        Mankins testified that appellant waived his Miranda rights, agreed to waive an extradition hearing, and then made the statement at issue as he and the investigators were leaving. We do not agree that Mankins's testimony about appellant's interview was inconsistent with Espinoza's written notes about that interview. But even if Espinoza's notes contradicted Mankins's testimony, we must defer to the trial court's determination of historical facts that depend on credibility, such as a witness's testimony. See Ford, 158 S.W.3d at 493; Guzman, 955 S.W.2d at 89. Viewing the evidence in the light most favorable to the trial court's ruling, Mankins's testimony supports a finding that appellant's statement was voluntary and not the product of custodial interrogation. As a result, the trial court's ruling that the statement was admissible is supported by the record and applicable law. See, e.g., Houston v. State, No. 08-07-00047-CR, 2009 WL 1108661, at *2 (Tex. App.-El Paso Apr. 23, 2009, no pet.) (not designated for publication) (although defendant was in custody, record supported trial court's ruling that statements were voluntary and admissible and did not stem from custodial interrogation). We resolve appellant's second issue against him.   See Footnote 3 
 
Admissibility of Photographs
 
        In his third issue appellant argues that the trial court erred by allowing “inflammatory autopsy photographs” into evidence over his timely objection. He alleges that the photographs were inadmissible under rule of evidence 403 because they are cumulative and unfairly prejudicial. He also argues that because “[t]he cause of Crosby's death was not a contested issue,” the photographs “failed to assist the jury in resolving any significant factual controversy.”
        Applicable Law and Standard of Review
        Relevant evidence may be excluded under rule 403 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. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. See Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Relevant factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice include “the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). “Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” Id. Pre-autopsy photographs are generally admissible if they aid the jury's understanding of the victim's injuries. See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. 1995) (photographs of victim's body at morgue before autopsy admissible because they “add to the jury's understanding of the nature of the wounds involved”).
        We review the trial court's ruling on the admissibility of photographs under an abuse of discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 1015 (U.S. Dec. 14, 2009).
        Analysis
        Appellant complains about the trial court's decision to overrule his timely objection under rule of evidence 403 and admit into evidence State's Exhibits 43 through 66 and 75. Appellant generally describes these exhibits as “color photographs [that] were taken during [Crosby's] autopsy” (emphasis added). But the exhibits are displayed in the appellate record as 8 x 10 inch black-and-white photocopies,   See Footnote 4  and the medical examiner testified that the photographs were taken before the autopsy and show how Crosby's body was presented to the medical examiner's office. The medical examiner testified that the photographs show, for example, how Crosby's hands and feet were tied, Crosby's multiple “defense-type injuries,” an injury to Crosby's anal region that is consistent with a sexual assault, and the gunshot wounds to Crosby's head. The medical examiner also testified that the photographs would aid him in describing Crosby's injuries to the jury.
        Appellant argues on appeal that the photographs are “inflammatory” and cumulative of the autopsy report that was also admitted into evidence. We disagree. The photographs at issue illustrate the medical examiner's testimony about Crosby's wounds and do not depict the body during or post autopsy. And a trial court does not abuse its discretion by admitting into evidence photographs that portray “no more than the gruesomeness of the injuries inflicted by appellant.” See, e.g., Williams, 301 S.W.3d at 691.
        We cannot conclude that the probative value of the photographs is substantially outweighed by the danger of unfair prejudice. As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection and admitted State's Exhibits 43 through 66 and 75 into evidence. See id. We resolve appellant's third issue against him.
Conclusion
 
        We resolve appellant's three issues against him and affirm the trial court's judgment.
 
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081347F.U05
 
Footnote 1 The court of criminal appeals recently granted Chabot's application for writ of habeas corpus, reversing his conviction and remanding his case to the trial court for a new trial. See Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009).
Footnote 2 Section 19.03 of the penal code has been amended several times since the date of the offense. But because the language pertinent to this appeal remained substantially the same, we cite the current version of the statute.
Footnote 3 Appellant also appears to argue that his statement should have been suppressed because it was irrelevant and unfairly prejudicial. But appellant does not cite any authority to support these conclusory arguments, and appellant did not argue below that his statement was inadmissible because it was irrelevant or unfairly prejudicial. As a result, and to the extent that appellant argues on appeal that his statement was inadmissible because it was irrelevant or unfairly prejudicial, we conclude that these arguments were not preserved for appellate review and were not adequately briefed on appeal. See Tex. R. App. P. 33.1(a), 38.1(i).
Footnote 4 As the court of criminal appeals recently explained,“[i]f appellant believed that the colors in the actual photographs would have made a difference in our assessment of prejudice, then it was incumbent upon him to ensure that either the original photographs or color photocopies were included in the record.” Williams, 301 S.W.3d at 690 n.6.