Frankie Mariano Bustos v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-95-004-CR

FRANKIE MARIANO BUSTOS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 30266

O P I N I O N

Appellant Bustos appeals his conviction for murder for which he was sentenced to 99 years in the Texas Department of Criminal Justice and a $10,000 fine.

Chris Barger, the deceased, his girlfriend, Mindy Upchurch, and another, drove to 814 North Robinson in Cleburne at 10:45 P.M. on September 24, 1994. They exited Barger's pickup and joined Amy Suggs, Renetta Booker, and others, in conversation in the yard. Appellant Bustos and friends, Andrew Diaz, Marky Flores, Mike Anaya, Cody Thornton, and Jeff Carlton, arrived on foot at the location fifteen minutes later. Appellant asked Barger, "Why are you cruising on my street?" Barger replied the street was public and he had a right to use it. Angered, Appellant pulled out a .380-caliber semi-automatic pistol and said, "I'll show you a right," pointed the pistol at Barger's neck, and pulled the trigger. The gun did not fire. Barger started to get into his truck and said, "Okay, I'm leaving." Appellant loaded the chamber of the gun and said, "Bullshit, it's too late for that," and shot Barger in the back. Barger screamed and fell to the pavement. Appellant stood over Barger and fired four more times into Barger until the magazine clip was empty. An autopsy later revealed Barger was shot once in the back, once in the right arm, once in the groin, and twice in the head. Appellant told Mindy she would be next and then, with his friends, he ran away. Mindy called the police and they arrived shortly and took statements from Mindy, Hightower, Booker, and Diaz. A warrant for Appellant's arrest was obtained and he was found the next morning in Fort Worth. A search of the residence yielded a .380-caliber semi-automatic pistol and an empty magazine clip. Appellant was taken to the Forest Hills Police Department where he was arraigned by Judge Bass. He was then taken to the Cleburne Police Department where Lieutenant Laseman read him his constitutional rights from a "Miranda" card and had him initial each of the rights on the card. Lieutenant Laseman then interviewed Appellant, with a secretary taking notes. The secretary then transcribed her notes, Appellant read the statement, and signed same. In his statement Appellant admitted killing Barger.

At trial Appellant pled not guilty, but was found guilty of murder as charged and sentenced to 99 years plus a fine of $10,000.

Appellant appeals on three points of error.

Point one: "The trial court erred in admitting Appellant's written statement because said statement was involuntary."

Specifically, Appellant argues that, although he was given his constitutional rights, he did not understand them because they were not adequately explained to him and because of his low intelligence.

When Appellant was arrested and taken before Judge Bass for arraignment, Judge Bass gave Appellant his statutory warnings and determined with great care that Appellant understood his rights. In fact, Appellant stated to Judge Bass that he understood his warnings. Appellant was then taken to Lieutenant Laseman in Cleburne who once again read Appellant his warnings off of a "Miranda" card, and Appellant stated that he understood his rights and placed his initials by each of the warnings and then signed the back of the "Miranda" card. Appellant's statement was then typed up and Lieutenant Laseman went over the statutory warnings printed at the top of the statement once more with Appellant, who indicated his understanding of same by placing his initials after each warning.

Lieutenant Laseman testified that Appellant understood the "Miranda" warnings given him. At the suppression hearing, Appellant testified, thus giving the trial judge an opportunity to evaluate him. The trial judge, in admitting Appellant's written statement, stated that Appellant had sufficient mental capacity to understand the warning rights given him and to intentionally, freely and voluntarily waive those rights.

We hold Appellant's statement was entered into knowingly, intelligently and voluntarily. Additionally, the record demonstrates overwhelming evidence of Appellant's guilt. Seven witnesses testified to seeing Appellant pull out the .380-caliber semi-automatic pistol and fire five rounds into Barger's body. Any possible error in admitting Appellant's statement was harmless. Tex. R. App. P. 81(b)(2). Point one is overruled.

Point two: "The trial court erred in allowing the State to consistently asking leading questions in violation of Rule 610, Texas Rules of Criminal Evidence."

Appellant complains that on some twenty occasions his counsel objected to the State's leading questions and that in each case the trial court overruled the objection and allowed the questioning.

Tex. R. Crim. Evid. 610(c) states:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."

A question is impermissibly leading only where it suggests which answer, yes or no, is desired, or when it puts into the witnesses' mouth words to be echoed back. Newsome v. State, 829 S.W.2d 260, 269 (Tex. App. Dallas 1992, pet. ref'd).

We have carefully reviewed Appellant's complaints where he objected that the testimony was leading and the trial court overruled his objections. The questions asked by the prosecutor in complaints 1, 2, 3, 5, 18, 19, and 20 were in no way leading; the questions asked by the prosecutor in complaints 4 and, 6 through 17, were asked of hostile witnesses who were members of Appellant's group and were permissibly leading. Moreover, in all of the complained-of instances, Appellant has failed to show how he was prejudiced. Point two is overruled.

Point three: "The trial court erred in admitting photographs when the prejudicial effect outweighed the probative value."

Specifically, Appellant complains of State's Exhibits 5, 7, and 14, which showed views of the bloody victim at the crime scene. Appellant objected to their admission based on the prejudicial effect which outweighed the probative value. The trial court overruled the objection and admitted the photographs. Appellant further complains of the admission of State's Exhibits 52 through 57, which Appellant characterizes as the bloody and gruesome photographs of the deceased victim taken at the hospital. Appellant's objection to their admission was overruled by the trial court.

Rule 403, Texas Rules of Criminal Evidence, governs the admissibility of allegedly prejudicial photographs. Rule 403 provides:

Although 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 consideration of undue delay, or needless presentation of cumulative evidence.

The approach under Rule 403 is to admit relevant evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, causing undue delay or needless presentation of cumulative evidence. The rule favors the admissibility of the relevant evidence, and the presumption is that relevant evidence will be more positive than prejudicial. When admitting evidence, the trial judge does not sua sponte engage in balancing the probative value against prejudice, but only does so upon sufficient objection invoking Rule 403 by the party opposing admission of the evidence. Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991).

Photographs are generally admissible where verbal testimony about the same matters is admissible. Hernandez v. State, 819 S.W.2d 806, 819 (Tex. Crim. App. 1991). The presumption is that relevant evidence will be more probative than prejudicial. This is especially true when dealing with the admission of photographs. Reimer v. State, 657 S.W.2d 894 (Tex. App. Corpus Christi 1983, no pet.).

In Reimer the court stated that it was unable to hypothesize a homicide situation where the descriptions of the body or the crime scene are inadmissible, since such normally provides essential information about the issues involved in a homicide. That court also noted that it had not found a case in which an appellate court in Texas had reversed a conviction because of the prejudicial effect of the admitted photographs outweighed their probative value. Here, the photographs were relevant for the purpose of proving that the victim died as the result of multiple gunshot wounds to his body. Moreover, photographs of the body in any homicide reveals the manner of death and hence are probative of appellant's culpable mental state. Reimer at 895.

The probative value of the photographs here was not substantially outweighed by their prejudicial effect and were properly admitted into evidence by the trial court. Point three is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 22, 1995

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