Mohammed, Furqan v. The State of Texas--Appeal from 179th District Court of Harris County

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Affirmed and Memorandum Opinion filed September 1, 2005

Affirmed and Memorandum Opinion filed September 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00284-CR

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FURQAN MOHAMMED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 928,423

M E M O R A N D U M O P I N I O N

Appellant Furqan Mohammed was convicted of aggravated assault with a deadly weapon. In two issues, appellant argues that the trial court erred in (1) admitting photographs of the complainant=s injuries because they were cumulative and more prejudicial than probative, and (2) allowing expert testimony because the State failed to offer a sufficient predicate. We affirm.


Background

The complainant, Bridget Mielke, and appellant had recently ended a relationship and were living in separate residences. On March 4, 2004, Mielke went to appellant=s house to retrieve some of her personal belongings. Appellant told Mielke her belongings were around the corner, so Mielke drove appellant to a dead-end road where he said he had dumped her things. When Mielke got out of the car, appellant attacked her with his fists and strangled her with a coat hanger until she passed out in front of her vehicle. Mielke awoke sometime later on the ground next to her car. Her clothes were torn, her shirt and jacket were off, and she was badly cut around the neck, stomach, and back. A broken and bloody knife blade was also found nearby. Mielke got back into the car and fired gunshots into the air in hopes of summoning the police, who arrived shortly thereafter. Later that evening, when Detective Tracy Shipley saw appellant, she noticed small cuts on his hands. At trial, Detective Shipley explained the cuts were consistent with cuts one would get from breaking a knife with bare hands. Following a jury trial, appellant was convicted and sentenced to thirty-seven years= imprisonment.

Analysis

Photographs

In his first issue, appellant argues that the trial court erred by admitting five photographs of Mielke=s injuries. The State offered photographs of Mielke=s injuries that were taken on the road where she was found by police and prior to her being treated for her injuries. Referencing the photographs of Mielke=s injuries, Officer Terry Ashabranner and Detective Shipley testified to the injuries they observed, and they also used the photographs to characterize the various types of injuries. Appellant objected to these photographs as being both cumulative and prejudicial under Rule 403 of the Texas Rules of Evidence, and the court overruled these objections.


We review a trial court=s ruling on the admissibility of photographs for an abuse of discretion. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). An abuse of discretion is only found when the trial judge=s decision was so clearly wrong as to lie outside a zone within which reasonable persons might disagree. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003). Rule 403 provides that relevant evidence may be excluded if it is cumulative or if the probative value of the evidence is substantially outweighed by potential prejudice. Tex. R. Evid. 403. For a photograph to be admissible, it must be helpful to the jury, and if the photograph is helpful, it will only be inadmissible if the prejudicial aspects substantially outweigh the probative value of the photograph. Erazo v. State, 144 S.W.3d 487, 491B92 (Tex. Crim. App. 2004). Generally, if verbal testimony concerning the subject matter of the photographs would be admissible, the photographs will also be admissible. Id. at 491.

In Paredes, the Court of Criminal Appeals found that although photographs of the victims= charred remains were prejudicial, they were admissible to assist witness testimony that was helpful to the jury. 129 S.W.3d at 539B40. The court noted that the pictures were helpful to the jury because they were used by a witness to identify the victims and describe the condition of the victims= bodies when recovered. Id. at 540. The court held that because the photographs were helpful in the guilt determination, the mere goriness of the photographs would not make them inadmissible because A[a]lthough the photographs are gruesome, they depict nothing more than the reality of the brutal crime committed.@ Id.


Similarly, though the pictures in this case were gruesome, they were used by witnesses to describe the extent and nature of the injuries they observed and were therefore helpful to the jury. For example, Detective Shipley identified the wounds depicted by the photographs as slicing cuts and explained that slicing cuts would mean that the perpetrator would not be covered in blood following the assault. Furthermore, the photographs were taken at the scene of the crime and prior to Mielke receiving medical attention, and therefore they show only her state following the attack. As in Paredes, the photographs show nothing more than the brutal nature of the crime. Id. Therefore, the trial court did not abuse its discretion in determining the probative value outweighed the prejudicial effect.

Appellant also asserts that the photographs were inadmissible because they were cumulative. However, each photograph showed Mielke=s injuries and body at varying vantage points and were each used to show something different about her or her injuries that evening. Due to the numerous angles and injuries each picture showed and the different facts gleaned from each picture, the trial court did not abuse its discretion by determining the photographs were not cumulative. See Etheridge v. State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994) (finding multiple autopsy photos were not cumulative because each showed something necessary to Aclearly illustrate the full extent of the injuries and the general state of the body@); see also Bacey v. State, 990 S.W.2d 319, 326 (Tex. App.CTexarkana 1999, pet. ref=d) (AWhen there are two or more pictures that depict the same thing but from different perspectives, the jury can gain information it might not otherwise have when viewing other pictures from other perspectives.@).

Finally, appellant argues the exhibits were inadmissible because the trial court failed to make findings of fact sufficient for appellate review. Appellant has failed to preserve this argument for appeal because he never objected to the trial court=s failure to make findings of fact.[1] Tex. R. App. P. 33.1(a). Even assuming no objection was required to preserve this argument, it is without merit because the trial court is not required to automatically put its Rule 403 analysis on the record. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (holding that judge is presumed to engage in the required balancing test once Rule 403 is invoked); see also Blondett v. State, 921 S.W.2d 469, 474 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). We overrule appellant=s first issue.


Expert Testimony

In his second issue, appellant argues that the trial court erred when it overruled appellant=s objection to Detective Shipley=s testimony due to insufficient predicate. Detective Shipley testified that the cuts on appellant=s hands the night of the assault were consistent with the type of injuries that someone could receive from breaking a knife barehanded. Defense counsel objected to the testimony, saying, A[y]our Honor, I don=t think this witness can testifyB.@ Appellant argues that this was expert testimony and that the court erred when it overruled this objection because the State had not established a proper predicate for Detective Shipley=s testimony.

We need not reach the merits of this argument because it was not properly preserved for appeal. To preserve a complaint for review, appellant must have presented a timely objection with enough specificity to make the trial court aware of the complaint, unless the grounds were apparent from the context of the objection. Tex. R. App. P. 33.1(a). AAn objection to an improper predicate that fails to inform the trial court exactly how the predicate is deficient will not preserve error.@ Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d). In Penry v. State, the defense counsel made an objection similar to the one made in this case, stating A[n]o basis for asking the witness about that, that is not the subject of his testimony.@ Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995). The Court of Criminal Appeals found that this trial objection did not comport with the argument on appeal that the witness was not an expert qualified to testify to the issue in question, and thus this objection did not preserve the issue. Id.


In this case, defense counsel=s objection was vague at best, consisting only of, A[y]our Honor, I don=t think this witness can testifyB.@ The State then stated, A[h]ypothetical, Judge,@ and the trial judge overruled the objection. The only other objection to Detective Shipley=s testimony was to relevance. At no point did appellant attempt to clarify that he objected based on predicate, and thus, the trial court was not adequately informed of appellant=s complaint. Accordingly, we overrule appellant=s second issue.

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed September 1, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).


[1] Appellant asserts that an objection is not necessary to require a clear finding of fact, citing Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995), and Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983). These cases deal with a trial court=s determination regarding the voluntariness of a confession and are not applicable to a trial court=s ruling on a Rule 403 objection.