Kenyon Demar Hurd v. The State of Texas--Appeal from 344th District Court of Chambers County

Opinion issued December 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00579-CR

____________

KENYON DEMAR HURD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 13792

MEMORANDUM OPINION

Appellant, Kenyon Demar Hurd, pleaded guilty to the offense of manslaughter (1) without an agreed punishment recommendation from the State. He also pleaded true to the allegations in two enhancement paragraphs that he had two prior felony convictions. The trial court, after finding that appellant had used and exhibited a deadly weapon, a motor vehicle, during the commission of the offense, assessed his punishment at confinement for thirty-five years. In two points of error, appellant contends that the trial court erred in admitting into evidence inflammatory and prejudicial photographs and "in failing to admonish" appellant about "the correct law on parole eligibility requirements."

We affirm.

Background

After appellant entered his guilty plea, the trial court reset the case for preparation of a presentence investigation ("PSI") report. At the subsequent hearing, Texas Department of Public Safety Trooper B. Henry testified that on June 23, 2003, appellant drove his car southbound on State Highway 124 in Chambers County and caused it to collide with a motorcycle driven by the complainant, James L. Pierce, who was traveling northbound.

John Andrew Montgomery testified that he was a passenger in a motor home traveling southbound on the two-lane highway and he saw appellant drive his car up on Montgomery's right, "on the shoulder of the road at a high rate of speed." As appellant drove his car across the lane in front of Montgomery, the rear quarter panel of appellant's car struck the motor home, causing appellant's car to "shoot just almost straight across the highway." Montgomery, sitting on the passenger side of the motor home, looked out of the driver's window and saw the complainant's motorcycle collide with appellant's car. The driver of the motor home stopped, and Montgomery got out to see if anyone was injured. Montgomery went to the complainant and saw that he was dead. He then approached appellant and the passenger in appellant's car. Despite being able to see the destruction that he had caused, appellant acted "just like nothing happened, just no remorse, no reaction, just like nothing."

James Maley, who witnessed the collision while riding on a motorcycle with his wife, Debra Maley, testified that appellant appeared "[l]ike he didn't care, like he was trying to say that the bike jumped over in his lane and hit him instead of him causing the accident." Maley explained that another motorcycle rider, Debbie Sherman, had been "clipped in the wreck." Sherman had "blood all over her," and her motorcycle was "totaled out." Part of the complainant's body and motorcycle had hit Sherman's motorcycle.

Chambers County Sheriff Deputy T. Henry testified that he arrived at the scene approximately fifteen minutes after the collision, and appellant "was basically in another world." Appellant "was dazed, looked confused, glassy-eyed, [and] was not sure what exactly happened." Although he did not immediately detect the presence of alcohol on appellant, he noticed, after speaking with appellant, that he was not able to answer his questions clearly and he smelled "an odor of an alcoholic beverage."

Peggy Richard, appellant's mother, testified that appellant "has shown a great deal of remorse" and that the collision "has impacted him a great deal."

Photographic Evidence

In his first point of error, appellant contends that the trial court erred in admitting into evidence "inflammatory and prejudicial" photographs, which "portrayed body parts of the victim and parts of the motorcycle in various places." He argues that because "[t]hese matters were well-described by [Deputy] Henry during his direct examination," they "added nothing but prejudice." He asserts that the photographs were not relevant as there were "no disputed fact issues" and the photographs were "not necessary to solve any fact issue."

At the hearing, during Deputy Henry's testimony, the State offered into evidence six crime scene photographs, labeled State's exhibits 3, 4, 5, 6, 7, and 8, which depicted appellant's car, the complainant's motorcycle, and the complainant's body. Appellant objected to exhibits 5, 6, 7, and 8, arguing that these photographs were prejudicial because of their gruesome nature and because they depicted matters discussed "in the medical report as well as the report of the police officer." He asserted that the purpose of the pictures was "basically to inflame and incite emotion and nothing more," the "very graphic and horrible pictures . . . do nothing to add to the probative value," and the prejudicial photographs had "already been explained thoroughly by the police officer's report as well as the medical report." In response, the State noted that no medical report existed. The trial court overruled appellant's objections and admitted the photographs into evidence.

We review a trial court's decision to admit evidence for an abuse of discretion. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). The evidentiary rules require that photographs be legally relevant to the solution of a disputed fact issue. Lanham v. State, 474 S.W.2d 197, 199 (Tex. Crim. App. 1972). We note that crime scene photographs are almost always relevant because they "depict the reality of [the] offense," and may show the manner in which it occurred. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).

"Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing." Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2007). 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 fact-finder, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403.

Rule 403, however, favors admissibility and contains a presumption that relevant evidence is more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). A Rule 403 analysis should include, but is not limited to, the following factors: (1) how probative the evidence is, (2) the potential of the evidence to impress the fact-finder in some irrational, but nevertheless indelible way, (3) the time the proponent needs to develop the evidence, and (4) the proponent's need for the evidence. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g). In determining the prejudicial effect of photographs, a court should consider (1) the number of photographs, (2) the size of the photographs, (3) whether the photographs are in color or black and white, (4) the detail shown in the photographs, (5) whether the photographs are gruesome, (6) whether a body shown in the photographs is naked or clothed, and (7) whether the photographed body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). Photographs provide powerful visual evidence of the offense, and a trial court does not abuse its discretion in admitting photographs of a victim into evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).

In Williams v. State, the defendant fatally stabbed the complainant during a bar fight. 176 S.W.3d 476, 479 (Tex. App.--Houston [1st Dist.] 2004, no pet.). During the punishment phase of trial, the trial court admitted four autopsy photographs over the defendant's objection. Id. at 481. These four photographs depicted (1) the complainant's wound, (2) a close-up of the wound, (3) the complainant's heart being held over his body, and (4) the complainant's heart on a tray, spread apart to show the depth of the knife wound. Id. at 482. On appeal, the defendant alleged that the trial court erred in admitting these four photographs because the probative value outweighed the danger of unfair prejudice. Id. at 481. The trial court admitted the photographs, even though an officer testified about the complainant's heart damage and an autopsy report confirmed the photographs' depictions. Id. This Court overruled the defendant's point of error, reasoning that the photographs helped to determine the nature of the complainant's wound and to assess the defendant's sentence. Id. at 481-82. We also stated that the photographs were helpful "because [the defendant] had repeatedly changed her story about the complainant's death." Id. at 481.

Here, State's exhibits 5, 6, and 7, taken from different angles, depict the complainant's body immediately after the accident, and State's exhibit 8 is a photograph of the complainant's arm in the backseat of appellant's car.

Like the photographs in Williams, State's exhibits 5 through 8 were relevant to assessing appellant's sentence, especially in light of the evidence of appellant's complete lack of remorse immediately after the collision. Moreover, we conclude that the exhibits are not cumulative in light of Deputy Henry's testimony because the exhibits demonstrate the reality of the offense and accurately depict the scene. See Chamberlain, 998 S.W.2d at 237. Additionally, appellant does not contend that these photographs are any more gruesome than the crime scene as it was found by police officers. Accordingly, we hold that the trial court did not abuse its discretion in admitting these photographs into evidence.

We overrule appellant's first point of error.

Parole Eligibility Admonishments

In his second point of error, appellant essentially argues that his plea was not "knowing and voluntary" because his trial counsel "misstated the law as to the minimum time [appellant] would have to serve if an affirmative finding of a deadly weapon [was] made." Appellant complains of the following statement made by his trial counsel:

Further you understand that if you are found guilty either of intoxication manslaughter or aggravated assault with a deadly weapon and there is no affirmative finding of the use or exhibition of a deadly weapon, whatever sentence you receive, you will have to serve one-half of that sentence day for day before you become eligible for consideration for parole. Do you understand that?(Emphasis added). Appellant argues that because his trial counsel read the misstatement of the law into the record and neither the State nor the trial court objected, this misstatement became a "rule of law." He asserts that "[a]lthough the parole eligibility requirements are not required as part of the [trial] court's admonishments" under article 26.13 of the Texas Code of Criminal Procedure, "once an attempt is made to admonish [a] defendant, that attempt must be a correct recitation of the law, otherwise the defendant will not have a full and complete understanding of the consequences of his plea." See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2007).

Generally, an inmate is eligible for parole "when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less." Tex. Gov't Code Ann. 508.145(f) (Vernon Supp. 2007). However, when an inmate has committed one of a litany of serious offenses, or an affirmative finding is made that a deadly weapon was "used or exhibited during the commission of a felony offense," the inmate is not eligible for parole until "the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less . . . ." Id. 508.145(d) (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(1)-(2) (Vernon 2007).

Appellant does not explain how his trial counsel's misstatement that if no affirmative finding of the use or exhibition of a deadly weapon was made by the trial court, appellant would become eligible for parole when he had served one-half of his sentence, affected his decision to plead guilty. Rather, he seems to assert that any misstatement will make a plea involuntary.

However, the Texas Court of Criminal Appeals has expressly held that the "erroneous advice of counsel on the subject of parole eligibility [will] not render [a] plea involuntary." Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985). Appellant, without any reference to authority, argues that here, unlike in Evans, his trial counsel's misstatement about parole eligibility "was not given as advice but was intended as a rule of law." We conclude, however, that just because his trial counsel misstated the law on the record does not change the fact that it was indeed "erroneous advice."

More importantly, the reason that the Texas Court of Criminal Appeals held that such erroneous advice does not render a guilty plea involuntary is because of "the speculative nature of parole attainment." Id. Because parole is a speculative proposition, contingent upon many factors unknown and nonexistent at the time of a guilty plea, only if a defendant's "understanding of his parole eligibility is manifested as an affirmative part of the plea bargain and that understanding is relied on as an essential part of the quid pro quo for pleading guilty," will the defendant's "plea [be] involuntary if that part of the plea bargain is not or cannot be carried out." Id.

Here, the erroneous advice of appellant's trial counsel was not manifested in appellant's plea bargain. Accordingly, we hold that the erroneous advice of appellant's trial counsel did not render appellant's plea involuntary.

We overrule appellant's second point of error.Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. 19.04 (Vernon 2003).