Glen Edward Clinkscales v. State of Texas--Appeal from 23rd District Court of Brazoria County

IN THE

TENTH COURT OF APPEALS

No. 10-00-0216-CR

GLEN EDWARD CLINKSCALES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 23rd Judicial District Court

Brazoria County, Texas

Trial Court # 35,515

O P I N I O N

Appellant Glen Edward Clinkscales was convicted by a jury of the offense of murder in connection with the death of his estranged wife, Mary Clinkscales, and was sentenced by the jury to 63 years confinement. Fifteen points are presented on appeal. Points one through thirteen concern appellant s contention that the trial court erred in admitting into evidence a series of post-mortem photographs taken of the victim s body. Points fourteen and fifteen concern appellant s contention that the trial court erred in failing to provide jury instructions on the lesser-included offenses of voluntary manslaughter and criminally negligent homicide. We will affirm.

Appellant s initial thirteen points concern the trial court s rulings admitting into evidence photographs taken by the medical examiner s office during the course of the post-mortem examination of the victim s body. A review of the circumstances surrounding the victim s death is necessary to understand the context of the trial court s decision.

Mary Clinkscales, appellant s estranged wife, died as a result of a loss of blood caused by multiple blunt force trauma. Appellant was alone with Mary in a motel bathroom when the trauma occurred. The theory advanced by appellant at trial was that Mary died after falling to the bathroom floor while engaged with him in an episode of consensual rough sex. Appellant specifically denied striking Mary s body during the episode. The State s theory was that appellant struck Mary multiple times over many parts of her body, resulting in massive internal injuries that caused her to bleed to death.

The photographs in question are color autopsy slides. Exhibit 107 shows two areas of hemorrhaging under the scalp. Exhibit 108 shows the areas of hemorrhage under the skin of the back. Exhibit 109 shows the hemorrhage in the intercostal muscles on the right side of Mary s chest cavity. Exhibit 110 shows a hematoma in the upper part of her body. The pathologist used this slide to demonstrate the color difference between normal tissue and severely injured tissue. Exhibit 111 reflected the hemorrhage in Mary s bladder. Exhibit 112 shows similar damage to her pancreas. Exhibit 113 shows areas of severe hemorrhage in the small intestine. Exhibit 114 shows severe hemorrhage in the ascending colon. Exhibit 115 depicts hemorrhages in the area of the outer surface of the bowel. Exhibits 116 and 117 show severe injuries to Mary s neck organs, including her tongue, trachea and esophagus. Exhibits 118 and 119 show hemorrhage and lacerations to the liver.

These exhibits were shown to the jurors only after the trial court provided the following limiting instruction:

THE COURT: I want to give you an instruction, ladies and gentlemen. A jury is a fact-finding body. You decide what the facts are and you have to weigh the credibility of the witnesses and the credibility of the evidence and anything that is relevant to the case in the form of documentary evidence or photographs that may be allowed to be presented to the jury in aiding the jury in making a factual determination. This specifically includes photographs. You are fixing to be shown some photographs, which will be Exhibits 106 through 120 for the State, that I have allowed to be admitted into evidence. These are photographs that are post-autopsy pictures. They were taken either during or after the autopsy was performed on Mrs. Clinkscales.

. . .

In this particular case I have allowed these photographs for the limited purpose of allowing you to see them to aid you, if it does aid you, or to assist you, if it does assist you, in determining the cause of death, and for no other purpose whatsoever. So that s the only reason that you will consider these photographs is if it aids you or assists you in determining the cause of death in this case.

The photographs, like the nature of the death Mary suffered, are somewhat gruesome, however, they depict nothing outside of what was included in the testimony of the State s pathologist, Dr. Patricia Moore. Indeed, appellant s primary argument is that because the photographs merely corroborated Dr. Moore s testimony, their probative value was insignificant compared to their inflammatory value.

Appellant s complaints on appeal are not that the photographs were not relevant, but rather that their admission was improper under Rule 403. That rule provides that 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. Tex. R. Evid. 403.

Decisions concerning the admissibility of photographs fall generally within sound discretion of the trial court. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Several factors may be considered when balancing probative value against potential for unfair prejudice: the number of exhibits, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and the availability of other means of proof and the circumstances unique to each individual case. Id. Here, the critically contested issue at trial was whether Mary s death was the result of unintentional injury suffered when she fell during an episode of rough sex, or whether she was, in effect, beaten to death by appellant. Therefore, while rote application of Chamberlain factors in isolation might favor their exclusion, the trial court was authorized to conclude the photographs were so highly probative in disproving the explanations given by appellant to police authorities, that their admission was justified. The autopsy photos provided clear visual evidence of the severe nature of the hemorrhages, hematomas and lacerations suffered by Mary in the hours prior to her death.

In Chamberlain, our highest court rejected the premise that visual evidence accompanying oral testimony is cumulative of the testimony or that it is of insignificant probative value. To the contrary, the court stated, [v]isual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions. Chamberlain, 998 S.W.2d at 237. The Chamberlain court also noted that gruesome photos are often admissible because they depict disagreeable realities, and that, as actual realities, they are powerful visual evidence of the State s case. Id.

To be sure, the State does not have carte blanche authorization to introduce gruesome photographs in all murder prosecutions. This court recently held in Kelly that photographs which depicted mutilation caused by attempted lifesaving measures performed on the victim s body had no tendency to prove or disprove the particular theories advanced in that case. Kelly v. State, 22 S.W.3d 642 (Tex. App. Waco 2000, pet. ref d) (ruling photographs had no probative value in disproving defendant s claim of self-defense). In the instant case, however, the photographs were highly probative as reflected in the trial court s ruling:

THE COURT: Specifically on your general objections that the probative value is outweighed by its inflammatory nature, [exhibits] 107, 109, 111, 112, 113, 114, 115, 116, 117, 118, 119, those objections are overruled. They will certainly aid the jury in light of the allegations and the factual presentation in this case, so they will be admitted. Regarding 108, which is the entire body, your objection is overruled to that. Regarding 110, which reflects the upper portion of the body that has been basically skinned, with the testimony of the heavy trauma reflected, I will overrule that objection. I think its inflammatory nature is outweighed by its probative value. That leaves 120. I will overrule the objection to 120 and admit it. The areas of the different types of cirrhosis, I think that goes more to the weight of the testimony as opposed to its admissibility. I think that does aid the jury in determining what is cirrhosis versus traumatic injury. So the objection is overruled. State s 107 through 120 will be admitted. You have a continuing objection so you don t have to raise it again.

We believe the trial court acted within its discretion in conducting the balancing test and thereafter admitting the photographs with a limiting instruction. In fact, the trial court s actions are an example of commendable trial court procedure. Points one through thirteen are overruled.

In his final two points, appellant contends the trial court erred in failing to provide instructions allowing the jurors to return verdicts of guilt on the lesser-included offenses of voluntary manslaughter // and criminally negligent homicide.

To determine whether a jury must be charged on a lesser included offense, we apply a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). The first step is to decide whether the offense is a lesser included offense as defined in article 37.09 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, and not of the greater. Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001); Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992).

The indictment alleged that appellant intentionally and knowingly caused Mary s death or, intending to cause serious bodily injury, intentionally and knowingly committed an act clearly dangerous to human life, by striking [her] multiple times about the body by a manner and means unknown to the Grand Jury. Appellant denied striking Mary, except during his attempt to perform cardiopulmonary resuscitation, and contended she was injured when she fell during a sex act and struck her head on the bathroom floor. There was no affirmative evidence presented at trial showing that if appellant was guilty, he was guilty of only recklessly causing her death or acting with mere criminal negligence. The testimony raised two, and only two, alternative explanations for Mary s death. Either Mary died of natural causes after falling to the bathroom floor during sex, in which case appellant was entitled to a not guilty verdict, or Mary died from blood loss after being intentionally beaten by appellant. Voluntary manslaughter and criminally negligent homicide were not raised by the evidence. Therefore, the trial court did not err in overruling appellant s request for instructions on those lesser offenses. Points fourteen and fifteen are overruled.

The trial court s judgment is affirmed.

DAVID L. RICHARDS

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed January 30, 2002

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