Sherry Diane Smith v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-294-CR

SHERRY DIANE SMITH, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-151-C

OPINION DENYING MOTION FOR REHEARING

On original submission, we determined (1) that a photograph of the dead victim of the burglary of a habitation was not relevant to any issue in the case, (2) alternatively, that the unfair prejudice created by the photograph substantially outweighed its probative value, and (3) that the error in admitting the photograph into evidence contributed to Smith's punishment and requires another trial. The State asks us to reconsider.

Among its contentions, the State asserts that the photograph was admissible to establish Mrs. Kelly's death and that "her death tied in to her earlier excitement which allowed the admissibility of her statements as excited utterances." Her statements were, however, admitted under Rule 803(2) of the Rules of Criminal Evidence; the availability of the declarant is immaterial to admissibility under that rule. See Tex. R. Crim. Evid. 803(2). In any event, the court, not the jury, determines the admissibility of evidence. Id. 104(a).

Even if we agreed that the photograph was relevant to prove that Mrs. Kelly had died and thus could not appear as a witness, our decision about the unfair prejudice created by it would remain the same. Mrs. Kelly's death was not an element of the offense of burglary of a habitation; it was, at most, an evidentiary fact that might lead inferentially to an elemental fact. The State's motion argues: "[T]he only way that the jury could know for sure from this photograph that Kelly was dead was from the testimony about her death." Thus, the State concedes that it had other evidence to prove the fact of her death. The State's "need" for relevant but unfairly prejudicial evidence weighs heavily in the balancing equation under Rule 403. See Bishop v. State, No. 1516-92, slip op. at 5 (Tex. Crim. App. Nov. 24, 1993).

The State also asks us to hold that the error was harmless. See Tex. R. App. P. 81(b)(2). Its motion states:

The State will readily concede that the fact of the victim's death probably had an impact on the jury and affected the sentence. The severity, however, of the sentence comes not from the picture but from the fact of the victim's death and the testimony about it. Clearly it is the testimony about the death that contributed to the jury's sentence. And quite properly so.

Having reconsidered our analysis, we still cannot say beyond a reasonable doubt that the error in admitting the photograph did not contribute to the punishment. See id.

Finally, citing Rogers v. State, 862 S.W.2d 47 (Tex. App. Houston [14th Dist.] 1993, no pet. h.), the State asks us to "affirm the cause as to guilt and reverse only as to punishment." Although our determination that the error contributed only to Smith's punishment and not to her conviction makes this an ideal case to apply article 44.29 in the manner suggested by the State, we are not at liberty to do so. See Tex. Code Crim. Proc. Ann. art. 44.29(a) (Vernon Supp. 1993). Article 44.29 provides:

(a) Where the court of appeals . . . awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial or on the basis of errors in both the guilt or innocence stage of the trial and the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below.

(b) If the court of appeals . . . awards a new trial to a defendant . . . only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial . . . .

Id. at art. 44.29(a), (b). Thus, the stage at which the error occurred determines the course of events after a reversal, and we are powerless to decide otherwise. Additionally, article 44.29 is not directed to the appellate court, but to the trial court to take appropriate action in appropriate circumstances. Ex parte Sewell, 742 S.W.2d 393, 397 (Tex. Crim. App. 1987).

The motion for rehearing is denied.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion for rehearing denied

Opinion delivered and filed January 12, 1994

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