RODRIGUEZ v. STATE | 871 S.W.2d 312 (1994) | w2d31211159 | Leagle.com

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REYNOLDS Chief Justice. A jury found appellant Simon Rodriguez guilty of the offense of murder and assessed his punishment...w2d31211159

REYNOLDS, Chief Justice.

A jury found appellant Simon Rodriguez guilty of the offense of murder, and assessed his punishment at confinement for 99 years and a fine of $10,000.00.

By an indictment returned on 13 December 1990, appellant was charged with knowingly and intentionally causing, on or about 10 November 1990, the death of Sophie Whalin by striking her "with an object unknown to the Grand Jurors at this time."

The State adduced evidence that on the morning of 11 November 1990, the Amarillo trailer home of Sophie Whalin and her son, Charles Whalin, was afire, the origin of which was not determined. When the fire was extinguished, the badly burned bodies of the Whalins were found inside the home. Investigation revealed the Whalins were killed hours before the fire began, the home had been ransacked, and their car was missing.

Later that day, the Whalin automobile, driven by appellant and occupied by three other individuals, was stopped near Fritch. The other individuals were an adult, Terry Benwell, and two juveniles under the age of 15, Antonio Ascencio and Jeremy Sims.1

The testimony of Ascencio and Sims showed that pursuant to the planning and direction of appellant, they entered the Whalin home through a window to steal money, and appellant remained outside. Shortly after the entry, Ascencio hit Sophie Whalin more than once with a pipe, which was earlier handed to him by either Sims or appellant. Appellant entered the home through the door and told Sims to make sure the woman was dead.

Ascencio noticed Sophie Whalin made some kind of movement, and Sims choked her with a clothes hanger. Then, at the direction of appellant, Sims went into the bedroom and hit Charles Whalin once on the head and strangled him with the pipe Ascencio used to hit Sophie Whalin. At the same time, appellant "punched the man in the face," or hit "the man on the top of the head ... four or five times."

During the police investigation, a metal bar was discovered under the sofa in the living room of the Whalin home, a piece of pipe was recovered near the crime scene, and a stick with a taped handle was found in appellant's possession at the time of his arrest. Although both Ascencio and Sims testified at trial that a pipe was used to strike Sophie Whalin, they both denied that the bar, the pipe, or the stick was the weapon used.

Before the grand jury returned the indictment, Sergeant B.J. White, a Potter County deputy sheriff, interviewed appellant and took his statement in which appellant stated that Ascencio hit Sophie Whalin with a pipe, and he was present when Sims gave a statement in which he stated that Ascencio hit her with a bar. The officer also had information from the medical examiner's office that the blows causing Sophie Whalin's death were consistent with the use of a pipe.

Sergeant White was the only witness appearing before the grand jury. He informed the jurors of the discovery of the bar, pipe and stick, that tests were being run, and that the police did not know what instruments had been used. A member of the grand jury which returned the indictment, P.J. Dovalina, testified that the grand jurors sought to find out what object was used to cause the death of Sophie Whalin, but they were unable to reach any definite conclusions about the object other than it was a blunt instrument.2

Doctor Charles Odom, the medical examiner with a specialty in pathology, performed an autopsy on the body of Sophie Whalin on 12 November 1990. He attributed blows by a blunt object to Sophie Whalin's neck as the fatal injury. Approximately two months later, and about a month after the indictment, he received information indicating that a pipe may have been used to inflict the injuries. Even with this information, he still opined that the blows were consistent with "[a] whole variety of instruments," including a pipe, a baseball bat, a heavy piece of board, or even a fist, shoe, knee, or the side of a hand in a Karate chop with enough force.

The court's admission of State's exhibit 10, a photograph of Sophie Whalin, over appellant's objections that it was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice, is the subject of points sixteen and seventeen. The photograph "accurately depicts" the scene viewed by a fireman, who "found an elderly woman sitting semi-upright on the sofa in the living room" and "burned beyond almost recognition." A neighbor identified the person in the photograph as Sophie Whalin. The State concedes the photograph is gruesome, albeit not shockingly so.

Disputing the relevance of the photograph, and therefore its admissibility, appellant, noting the fireman did not identify the person in the photograph, asserts that the photograph does not have any tendency to make the existence of any fact of consequence to the determination of the action more probable than it would be without it. Any fact of consequence, he adds, can be proved by other evidence, albeit he does not suggest any such evidence. Then, appellant argues, the admission of the photograph permitted the jury to draw the natural inference that he caused the injuries resulting from the fire, an incident for which he was not on trial, thereby creating a substantial danger of prejudice.

At the outset, it is observed that nothing in the record indicates any of the participants in

Other than revealing the cause of Charles Whalin's death as the result of blunt force injuries of the neck, Dr. Barnard's testimony essentially confirmed the unobjected to testimony of Ascencio and Sims regarding the attack on Charles Whalin. The three photographs of Charles Whalin shown to the jury were enlarged color pictures, which were monochromatically reproduced for the appellate record. The first depicts his head and neck, and each of the other two shows only a portion of his face. None of the three shows any more than the effect of the fire on his face as described by a fireman at the scene.

In brief, Dr. Barnard's testimony and the photographs were merely cumulative of testimony the jury heard without objection. Because inadmissible evidence can be rendered harmless if other evidence is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove, Brown v. State, 757 S.W.2d at 741, it may be fairly concluded beyond a reasonable doubt that the admission of Dr. Barnard's testimony and the photographs of Charles Whalin did not contribute to the judgment of conviction or the punishment. Id.; Long v. State, 823 S.W.2d at 275. Appellant's seventh through fifteenth points of error are overruled.

The judgment is affirmed.