Morales v. State

Jose Morales, Appellant v. The State of Texas, Appellee

NO. 03-19-00210-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

March 26, 2021

FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-17-300766, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Jose Morales guilty of murder and assessed his punishment at confinement for fifty years in the Texas Department of Criminal Justice. See Tex. Penal Code §§ 12.32, 19.02(b). In a single point of error, appellant complains about the trial court's admission of photographic evidence during both the guilt-innocence and punishment phases of trial. We find no reversible error in the trial court's evidentiary rulings. However, on review of the record, we have found non-reversible error in the written judgment of conviction. We will modify the judgment to correct the error and, as modified, affirm the trial court's judgment of conviction.

BACKGROUND¹

The evidence at trial showed that a group of four young women went to a nightclub in South Austin and stayed until the club closed. As they were leaving, a pickup truck occupied by three young men, who were friends of the women, pulled up behind them. Two of the women got out of their car to talk to the men in the truck. One of the women's ex-boyfriend was also in the club parking lot in a car with three of his friends, including appellant, who was his cousin.² Appellant's cousin approached his ex-girlfriend, and, as the two were talking, the passenger of the truck expressed his desire to have the ex-girlfriend and her friends leave the club with him and his friends in the truck. An altercation ensued between the men in the truck and the men in appellant's car. During the altercation, appellant and the passenger from the truck pushed each other. The women intervened to calm the situation down, and the altercation ended. After the altercation, all three vehicles—the car with the group of women friends (the women's car), the pickup truck, and appellant's car—left the parking lot.

Over the course of the next several hours, the interaction between the three vehicles and their occupants continued and involved escalating violence.³ Ultimately, the threevehicles arrived at yet another apartment complex. First, the women's car and the pickup truck arrived and parked in the visitor parking area, and the occupants talked with each other. A few minutes later appellant's car arrived at the complex; appellant was seated in the back seat. He pointed a gun out of the car window and discharged it into the air. The men in the truck tried to leave. However, appellant's car began following the truck through the apartment complex. A high-speed chase ensued. The truck attempted to leave the parking lot at an exit of the apartment complex, but the women's car moved to block the exit. On being blocked, the truck jumped a curb and turned onto a grassy area, where it got stuck. Appellant's car stopped behind the truck, preventing it from backing up.

Appellant got out of the car with a large rifle and fired multiple shots into the passenger side of the truck. The passenger was shot multiple times and died inside the truck.⁴ The driver was also shot but got out of the truck and ran. He was shot again as he ran from the truck. The third occupant of the truck, who was riding in the back seat, hid behind the front seats during the shooting and avoided injury. After shooting into the truck, appellant returned to his car with the rifle. The two cars—appellant's car and the women's car—fled the scene.

During the ensuing investigation of the shooting, police ascertained that appellant was the shooter through eyewitness statements (including that of appellant's girlfriend, who was in the car with appellant that night), corroborating evidence, and appellant's admission to police, but they were unable to recover the murder weapon.

Appellant was charged with two offenses arising out of the shooting: murder for causing the death of the passenger of the truck and aggravated assault for inflicting injuries to driver of the truck. The murder case proceeded to trial, and appellant was convicted and sentenced to fifty years in prison. This appeal followed.

DISCUSSION

In his sole point of error, appellant complains about the trial court's evidentiary rulings relating to the admission of seven photographic exhibits over his objections under Rule 403 of the Texas Rules of Evidence. He argues that the trial court erred "by admitting evidence with no probative value but substantial prejudicial value by showing injury, guns, and circumstances that had no tendency to prove any material issues in either [sic] guilt/innocence other than to appeal to emotions resulting in a very substantial punishment."⁵

Standard of Review

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court's ruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 ("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.'" (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.).

Photographic Exhibits

At trial, appellant objected to the admission of multiple photographic exhibits. On appeal, he complains about the admission of seven of the objected-to exhibits. Specifically, he complains about the admission of States Exhibits 232, 299, 306, 310, and 315 during theguilt-innocence phase of trial and the admission of State's Exhibits 319 and 210 during the punishment phase of trial.

Guilt-Innocence Phase

• State's Exhibit 232

At trial, the driver of the truck testified about the events of the night, including the injuries that he sustained in the shooting. During his testimony, the State offered State's Exhibit 232, a photograph of the driver that depicted his injuries. Appellant objected to the photograph because the exhibit was "highly prejudicial," was not necessary to show that the witness had been shot, and the purpose was "just to inflame the jury." The State responded that, while the aggravated assault involving the driver of the truck had been severed out of the murder case involving the deceased passenger, the State had to prove appellant's criminal intent with respect to the passenger.

The trial court noted that "it was all the same incident how [appellant] shot at these [victims]" and found that the evidence had probative value as to the State's burden of proof of "culpability" and that it outweighed the prejudicial effect. The court explicitly limited that evidence to the one picture of the driver.

• State's Exhibit 299

During the testimony of the firearm and toolmark examiner—who examined the spent shell casings recovered from the murder scene, shell casings recovered from appellant's apartment, and the projectiles recovered from the victims—the State offered State's Exhibit 299, a depiction of an ARX 160 rifle captured from the Beretta firearms manufacturer's website, after the examiner testified that, based on hisexamination of the spent shell casings, the ARX 160 rifle could fire the caliber of ammunition used that night.⁶ The prosecutor acknowledged that "this is not a picture of a weapon recovered in this case" because no weapon had been recovered but offered the exhibit as "an example of a weapon that could be used to fire this ammunition." Appellant objected, asserting, "This is a picture of a weapon. There is no evidence that this picture has anything to do with this case."

The trial court clarified with the State that the exhibit was being offered for "demonstrative purposes" and overruled appellant's objection, stating that "[t]he probative value outweighs the prejudicial effect."

• State's Exhibits 306, 310, and 315

At trial, a certified forensic computer examiner testified about performing a digital forensic analysis of appellant's cell phone and described the extraction of data, including several images, from the phone. The State offered State's Exhibits 306, 310, and 315, which were photographs of images extracted from appellant's cell phone that depicted appellant in various poses holding a semi-automatic rifle, including one photo showing him holding the firearm with both hands, at shoulder height, and pointing it at the camera. Appellant objected to the photographs, complaining that the photos "would be highly prejudicial, more so than the probative value would provide."

The trial court clarified with the State that these photographs were images that had been extracted from appellant's cell phone and noted that the firearm in the photos "is the same type of gun that was used in this shooting" according to the firearm and toolmark expert.⁷ The court overruled appellant's objection, stating that the exhibits were admissible "because they came from [appellant's] phone" and show a firearm that "can shoot the bullets that were found at the scene."⁸

Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise relevant evidence if its probative value is substantially outweighed by the danger of, among other things, "unfair prejudice." Tex. R. Evid. 403. Rule 403 favors the admission of...