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Court of Appeals of Texas, Dallas.


No. 05-08-00938-CR

Decided: February 18, 2010

Before Justices Morris, O'Neill, and Fillmore


Opinion By Justice O'Neill

Curtis Lee Armstrong appeals his conviction for capital murder.   After a jury found appellant guilty, the trial court assessed his punishment at life without parole.   In three points of error, appellant contends (1) the evidence is factually insufficient to disprove self-defense, (2) the trial court erred in admitting inflammatory autopsy photographs into evidence, and (3) he is entitled to additional back-time credit.   For the following reasons, we reform the trial court's judgment to show appellant's actual dates of pre-sentencing incarceration.   We overrule appellant's other points, and affirm the judgment, as reformed.

On the morning of May 3, 2007, appellant killed his ex-wife and the mother of his daughter, Jennifer McCallum.   Appellant killed the victim by stabbing her twice with a knife and then repeatedly hitting her in the head with a hammer.   After he killed her, appellant put duct tape around the victim's hands and feet and put her body in a garbage bag.   He used a dolly he had in the back of his truck to roll her body from her apartment to his truck.   Later that day, he disposed of her body in a wooded area off a highway in Fairfield, Texas.   Appellant also disposed of many items of evidence in various places around Plano.   Appellant was arrested that night in the parking lot of a Plano movie theater.   Nine days later appellant told police where they could find the victim's body.   The grand jury indicted appellant for capital murder.   At trial, he claimed self-defense.

In the first issue, appellant contends the evidence is factually insufficient to show he did not act in self-defense.   The State has the burden of persuasion when self-defense is raised.  Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App.1991).   The State meets this burden by proving its case beyond a reasonable doubt.  Id. at 913.   When a defendant challenges the factual sufficiency of the jury's rejection of self-defense, we review all the evidence in a neutral light and determine whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.  Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim.App.2003);  see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).   We give due deference to the fact finder's determinations concerning the weight and credibility of the evidence.  Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003).   We will reverse only to prevent manifest injustice.   Id.

The facts developed at trial showed that appellant and the victim had one child together during their marriage.   Following a contentious divorce, their relationship remained volatile.   The victim was extremely fearful of appellant and would not have voluntarily been alone with him.   At the time of her death, the victim was working nights as a nurse at the Richardson Regional Medical Center.   Appellant was living in Houston with his new wife.   The evening before he killed the victim, appellant drove to Plano from Houston.   He did not tell his wife that he was going to Plano, instead telling her that he was working a night shift in Houston.   Appellant claimed he did not tell his wife because he initially thought he was working the night shift, but when he discovered he was not scheduled to work, he decided to drive to Plano to look at some HUD houses that were for sale and because he had a meeting with his divorce lawyer in Plano the following afternoon.

The State's theory of the case was that appellant broke into the victims' second floor apartment while she was at work and killed her when she got home.   To prove the break in, amongst other things, the State relied on a videotape of appellant purchasing a ladder at Wal-Mart in Plano at 3:00 a.m. the morning the victim was killed, evidence that a window pane on one of the victim's windows near the window latch had been recently replaced in what appeared to be an amateur job, and the victim's downstairs neighbor heard someone inside the victim's apartment at 5:00 a.m. that morning when the victim was still at work.

Appellant's theory was that he did not break into the victim's apartment that night, but the victim voluntarily let him in the following morning.   Appellant testified he purchased the ladder in the middle of the night when he got to Plano because he wanted to inspect the roof of one of the HUD houses.   According to appellant, after he used the ladder to inspect the roof, he took a nap in his car.

When he woke up, he testified he went to the victim's apartment to discuss visitation issues concerning their daughter.   Appellant said the victim became angry with him and attacked him with a knife.   He was able to get the knife from her.   She then began swinging at him with a hammer and tackled him at which time he “accidently” stabbed her in the back.   Despite this stab wound, appellant said the victim continued to swing the hammer at him.   Appellant then stabbed her in the neck to get her to drop the hammer.   Although the victim dropped the hammer, appellant testified she continued her assault.   Appellant then grabbed the hammer and repeatedly hit the victim in the head with it until she was dead.

After reviewing the evidence in a neutral light, we cannot conclude appellant's rejection of appellant's claim of self-defense is against the great weight and preponderance of the evidence.   The only evidence supporting appellant's self-defense consisted of his self-serving testimony claiming his ex-wife, who was terrified of him, let him into her apartment, and then attacked him first with a knife and then with a hammer.   The State, however, presented evidence that the victim never would have voluntarily let appellant into her apartment.   Further, the objective evidence showed that the victim was badly beaten-she had two stab wounds and multiple blunt force injuries to her head.   When appellant was arrested that night, his only injuries were some scratches and a rug burn.   Moreover, appellant's actions after the offense display a consciousness of guilt.   See Whipple v. State, 281 S.W.3d 482, 498 (Tex.App.-El Paso 2008, pet. ref'd).   After reviewing all the evidence in a neutral light, we cannot conclude (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt is greatly outweighed by contrary proof.   We resolve the first issue against appellant.

In his second issue, appellant contends the trial court erred in admitting unfairly prejudicial autopsy photographs into evidence.   At trial, the State presented fifteen photographs of the victim taken after her body was found by police.   These photos were admitted during the testimony of the medical examiner.   They showed the victim's bound feet, bruises all over her body, the stab wounds, and her badly beaten head.   When the photographs were admitted into evidence, appellant said “based on the fact that he can give a verbal description without using these types of inflammatory photographs, we object.”   The trial court overruled appellant's objection.

Appellant now asserts the trial court should have excluded the photographs under rule 403 of the rules of evidence because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice.   See Tex.R. Evid. 403.   In order to be admissible, photographs must be relevant to the solution of a disputed fact issue.  Lanham v. State, 474 S.W.2d 197, 199 (Tex.Crim.App.1972).   Autopsy photographs provide powerful visual evidence of an offense, and a trial court does not abuse its discretion in admitting photographs of a complainant into evidence merely because they may be gruesome.  Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995).

Assuming without deciding appellant's objection was sufficient to preserve a rule 403 complaint, we cannot conclude the trial court abused its discretion in admitting the photographs.   In this issue, appellant generally states “the photos were gruesome and cumulative.”   He has not attempted to otherwise articulate how the photos were unduly prejudicial.   The fact that photographs accompany oral testimony establishing the same facts does not render the evidence cumulative or of weak probative value.  Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App.1999).   Further, photographs will not be held to be unfairly prejudicial if they depict nothing more than the reality of the brutal crime committed.   See id.   Although the photographs showed some decomposition the body suffered due to the manner appellant chose to dispose of the body, the photos showed nothing more than the reality of the brutal crime committed.   See Chamberlain, 998 S.W.3d at 237;  see also Madden v. State, 799 S.W.2d 683, 697 (Tex.Crim.App.1990).   Moreover, the extent of the victim's injuries, as shown in the photographs, was highly probative in light of appellant's claim of self defense.   We cannot conclude the trial court abused its discretion in admitting the photographs.   We resolve the second issue against appellant.

In his third issue, appellant asserts he was not given the proper amount of “back-time credit.”   The judgment states appellant was incarcerated before his sentencing from May 5, 2007 until April 11, 2008.   However, the record shows appellant was incarcerated from May 3, 2007 until April 11, 2008.   While appellant phrases this point in terms of credit for back time, we fail to see how the two days can be credited against a sentence of life without parole.   Regardless, the judgment is erroneous.   The State concedes the judgment is erroneous and should be reformed to reflect the correct incarceration dates.   Accordingly, we resolve the third issue in appellant's favor and reform the judgment to reflect appellant's incarceration from May 3, 2007 to April 11, 2008.   See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (court has authority to reform judgment when it has information necessary to do so).   As reformed, we affirm the trial court's judgment.


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