TIMOTHY JONES v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice FitzGerald

A jury convicted appellant Timothy Jones of murdering Ivonne Zamudio and sentenced him to 40 years' imprisonment.   Appellant raises four issues on appeal, all relating to the admission of gruesome photographs, a video recording, and related testimony.   We affirm.

I. Background

The evidence at trial showed the following facts.   On the morning of June 14, 2008, a 911 operator for the City of Richardson received a call from an address in Richardson.   The caller reported that he “felt like someone in the house had been killed.”   Police officers were dispatched to the address.   They received no response when they knocked on the door, so they forced the door open.   They could hear yelling and screaming upstairs, so they proceeded upstairs.   They forced a bathroom door open and found appellant inside.   He was wearing no clothing except for a belt.   The officers handcuffed him.   There were black bags on the floor of the bathroom.   Syringes and what appeared to be a crack pipe were found on the counter top.

Next, the officers found two persons in a closet:  James Matisi, who owned the house, and his ten-year-old son.   Because it appeared that the boy had made the 911 call, the police officers did not handcuff the boy or Matisi.   Then the officers found a fourth person, Eric Ziegler, in a different bedroom.   Appellant had a cut on his leg and was taken to the hospital by ambulance.   Appellant told the doctors that he and the others had smoked crack.

Crime scene investigators found blood throughout the upstairs of the house, on the walls and in the carpet.   They also recovered a knife from the sink in the master bathroom.   One investigator used a video camera to record the crime scene, and the video was shown to the jury.   Some of the black bags found in the bathroom with appellant were discovered to contain a severed head and other dismembered body parts.   Some photographs of the body parts, including the severed head, were admitted into evidence.   Dr. William Rohr, the medical examiner for Collin County, testified that he was presented with the bags of human remains and performed an examination of them.   Some of his autopsy photographs were admitted into evidence as well.   Although Dr. Rohr identified some premortem bruises on the body parts, he opined that the cause of death was ligature strangulation, based primarily on information he was given by law enforcement.   He further testified that the body was dismembered after death.   The remains were identified as the body of Ivonne Zamudio.

Matisi testified to the following facts.   Ziegler was a drug dealer, and Matisi was letting Ziegler stay at his house at the time of the incident.   The night of June 13, 2008, Matisi discovered Ziegler, appellant, and a woman he had never seen before smoking a crack pipe in Ziegler's bedroom, and Matisi used drugs with them.   Later, Ziegler, appellant, and the woman went into the guest bathroom.   Still later, Ziegler entered Matisi's bedroom, where Matisi was, and said, “I think I hurt the girl.   I think I broke her leg.”   He also said, “She's still breathing.   How do I stop her from breathing?”   Matisi did not believe what Ziegler was saying because Ziegler appeared to be high and because Matisi had not heard any screams.   Matisi locked his bedroom door and went to sleep.   When he awoke the next morning, he heard the shower running, and when he opened the door he saw Ziegler sitting on a chair in his bedroom, facing the wall and smiling.   Matisi got scared that Ziegler had been telling the truth the night before, so he went back into his bedroom, locked the door, and got a pistol.   Then he had his son call 911, and eventually the police arrived.

Appellant testified in his own defense as follows.   He went to Matisi's house with Ziegler and Zamudio.   While appellant was using drugs with Ziegler, Matisi, and Zamudio in Ziegler's bedroom, he started to fear that Ziegler and Matisi were murderers.   Ziegler and Zamudio left the bedroom after a while, and appellant found them in the bathroom.   Ziegler was “tripping real bad” and became violent.   Ziegler put a belt around Zamudio's neck and fell down with her.   Zamudio struggled, and at Ziegler's command appellant held Zamudio's legs.   After Zamudio stopped struggling, Ziegler stabbed her, gave appellant the knife, and told him, “Cut through the joints.”   Appellant insisted that he grabbed Zamudio's legs and that he stayed at the crime scene after she was dead because he was afraid for his own life.   Appellant cut off at least one of Zamudio's feet, and then Ziegler took the knife and started cutting her body up and putting the pieces in bags.   He acknowledged during his testimony that it “seemed like I was part of killing” Zamudio.

As previously noted, the jury found appellant guilty of murder and sentenced him to 40 years in prison.   Ziegler was tried and convicted of murder in a separate trial that took place before appellant's trial.   See Ziegler v. State, No. 08–09–00188–CR, 2011 WL 810060 (Tex.App.—El Paso Mar. 9, 2011, no pet.) (not designated for publication) (affirming Ziegler's conviction).

II. Analysis

All four of appellant's issues on appeal concern the allegedly erroneous admission of evidence.

A. Standard of review

We review a trial judge's decision to admit evidence under the abuse-of-discretion standard of review.  Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.2007).   A trial judge abuses his discretion only if his decision lies outside the zone of reasonable disagreement.  Id.

B. Crime-scene evidence

1.  Admissibility of crime-scene evidence under Rule 404(b)

Appellant objected to five photographs depicting Zamudio's dismembered body at the crime scene, a crime-scene video that also showed her body at the crime scene, and the testimony of various witnesses about these exhibits and what they depicted.   He argued to the trial judge and argues in his first issue on appeal that all this evidence constituted inadmissible evidence of the extraneous offense of abuse of a corpse.   See Tex. Penal Code Ann. § 42.08 (West 2011) (making abuse of a corpse a class A misdemeanor).

Evidence of other crimes or acts is not admissible to prove a person's character in order to show action in conformity therewith.  Tex.R. Evid. 404(b).  Such evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Id. For example, evidence of extraneous conduct may be admissible to show consciousness of guilt or an intent to conceal evidence or prevent the identification of the victim.  Schexnider v. State, 943 S.W.2d 194, 201–02 (Tex.App.—Beaumont 1997, no pet.);   accord Williams v. State, No. 14–04–00371–CR, 2006 WL 1330983, at *4 (Tex.App.—Houston [14th Dist.] May 11, 2006, no pet.) (mem. op., not designated for publication).   In Schexnider, the State adduced evidence that the appellant killed the victim, robbed him, and dismembered the body about a week later before dumping the body in a marshy area.  943 S.W.2d at 197.   The court of appeals held that the evidence, which was apparently testimonial in nature, that Schexnider dismembered the corpse of the victim was admissible under Rule 404(b).  Id. at 201–02.   The court reached the same conclusion in Williams, in which the evidence of the dismemberment of the victim's body included photographic evidence.   See 2006 WL 1330983, at *4–7.   Because the evidence of the dismemberment of Zamudio's corpse was relevant to show consciousness of guilt or an intent to conceal evidence, we conclude the trial judge did not abuse his discretion by overruling appellant's Rule 404(b) objection.

2. Admissibility of crime-scene evidence under Rule 403

In his second issue on appeal, appellant argues that the above-referenced crime-scene evidence should have been excluded under Rule 403 because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.   See Tex.R. Evid. 403.   He argues that the photographs and videotape footage of the dismembered body are so gruesome that the trial judge abused his discretion by admitting them.

A number of factors bear on a court's decision to admit photographs after performing the Rule 403 balancing test.   These factors include:  the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and any other circumstances unique to the case.  Williams v. State, 301 S.W.3d 675, 690 (Tex.Crim.App.2009), cert. denied, 130 S.Ct. 3411 (2010);  see also Williams v. State, 958 S.W.2d 186, 196 (Tex.Crim.App.1997).   Here, the objected-to exhibits were five photographs and a videotape out of about seventy exhibits.   Although the depictions are gruesome, they portray no more than the gruesomeness of the crime scene that appellant participated in creating.   Appellant points out that a juror asked for a break during the playing of the videotape, but the record does not show why the juror asked for a break, and we will not speculate that the request was caused by the gruesomeness of the images in the video.   The trial judge's decision that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice was within the zone of reasonable disagreement and was not an abuse of discretion.   See Williams, 301 S.W.3d at 691;  see also Ziegler, 2011 WL 810060, at *9–10 (overruling complaints about the admission of the same photographs at Ziegler's trial).

C. Autopsy photographs

In his third issue on appeal, appellant argues that the trial judge abused his discretion by admitting three autopsy photographs of the victim,¹ the autopsy report, and the testimony of the medical examiner, contending that this evidence was not relevant and was thus inadmissible.   See Tex.R.App. P. 401–02.   However, autopsy photographs are generally admissible unless they depict the mutilation of the victim caused by the autopsy itself.  Davis v. State, 313 S.W.3d 317, 331 (Tex.Crim.App.2010), cert. denied, 132 S.Ct. 122 (2011);  Williams, 301 S.W.3d at 690;  Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App.1997).   The medical examiner testified that the photographs would assist him in explaining his findings to the jury and would enhance the jury's understanding of the victim's injuries.   The medical examiner also used the photographs to point out bruises on Zamudio's body that he concluded reflected injuries suffered before her death.   The testimony and autopsy report concerned the cause of Zamudio's death, a relevant fact in this case.   The photographs are not entirely clear, but as far as we can tell, they depict only the initial condition of the body, and not the mutilation caused by the autopsy itself.   The trial judge's decision that the autopsy evidence was relevant was within the zone of reasonable disagreement and was not an abuse of discretion.

In his fourth issue on appeal, appellant argues that the autopsy photographs and the medical examiner's testimony about the details of how Zamudio's body had been dismembered should have been excluded because their probative value was substantially outweighed by the danger of unfair prejudice.   See Tex.R. Evid. 403.   We disagree.   Evidence of the efforts taken to cover up a crime is probative of the issue of guilt.  Paredes v. State, 129 S.W.3d 530, 540 (Tex.Crim.App.2004).   And although the evidence in question was gruesome, it depicts nothing more than the reality of the brutal crime that had been committed, including the steps taken to conceal the crime.   See id.   The trial judge's decision that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice was within the zone of reasonable disagreement and was not an abuse of discretion.   See Ziegler, 2011 WL 810060, at *9–10 (overruling complaints about the admission of the same photographs at Ziegler's trial).

III. Disposition

For the foregoing reasons, we affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

TIMOTHY JONES, Appellant

No. 05–10–01094–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 416 th District Court of Collin County, Texas.  (Tr.Ct.No.416–81735–08).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered March 27, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

FN1. The State contends that only two of the photographs were admitted into the evidence because the judge stated that the third one was admitted “for record purposes.”   The master index of the reporter's record indicates that the third photograph was offered and admitted.   Our analysis is the same whether or not the third photograph was admitted and shown to the jury..  FN1. The State contends that only two of the photographs were admitted into the evidence because the judge stated that the third one was admitted “for record purposes.”   The master index of the reporter's record indicates that the third photograph was offered and admitted.   Our analysis is the same whether or not the third photograph was admitted and shown to the jury.

KERRY P. FITZGERALD JUSTICE