Richard Runnels, Jr. v. State

Opinion issued March 9, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00773-CR

RICHARD RUNNELS JR. , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2002R-0020

CONCURRING OPINION

Because I strongly believe the majority misapplies the law of waiver to this

case and because this case presents an important issue of first impression regarding

the State’s demonstrative use of a mannequin wearing the complainant’s bloody shirt,

I respectfully concur in the judgment only.

Waiver

The majority holds that appellant’s objection at trial did not comport with his

objection on appeal, that the trial court was not alerted to appellant’s complaint on

appeal, and that appellant, therefore, failed to preserve his objection to the State’s use

of the mannequin. I strongly disagree. In my view, appellant clearly alerted the trial

court both to his objection to the demonstrative evidence as so dissimilar from the

actual circumstances as to constitute an abuse of discretion and to his objection as to

its irrelevance and prejudicial effect on the jury. That appellant’s objection was not

well-founded says nothing about the sufficiency of the objection to preserve error.

During its direct examination of Sergeant Weido, the State offered in evidence

the decedent’s jeans and sweatshirt displayed on the mannequin. Appellant objected

that having the mannequin dressed in appellant’s clothes was more prejudicial than

probative. The record states:

My objection is to put a dummy, I guess in some somebody’s clothes,

and I guess trying to explain using that dummy, I think it’s, first of all,

I don’t think it’s relevant. Number Two, I think any probative value, if

any, is outweighed by the danger of unfair prejudice.

When the trial court asked how the dummy was prejudicial, appellant’s counsel

replied, “[T]he jury is going to be sitting up there looking at a dummy in this, in this

man’s clothes.” Before the State could finish its response that “[w]e are going to talk

about where he has been shot, and you can’t just have these kinds of clothes laying

on the ground and explain where the bullet holes went in. It’s important to show—,”

the trial court overruled the objection.

The State then continued its examination of the detective regarding State’s

exhibits 17 and 18—the blue jeans and sweatshirt displayed on the mannequin “that

were cut off, evidently by EMS” and had been recovered from the scene. As the

examination continued, defense counsel asked to take the witness on voir dire,

determined that he had recovered the clothing himself from the scene, and then asked

that the mannequin also be marked as an exhibit. The State refused, and defense

counsel asked to approach the bench, where this exchange ensued:

[DEFENSE COUNSEL]: Judge, what I am concerned about is in

the event that, I hope doesn’t happen, but if this case goes to

appeal, they are not going to have any idea of what—

[COURT]: Did you hear what I said? The state may offer it if

they wish. If they choose not to, they don’t have to. If you wish

to offer it, you may.

The court then admonished defense counsel that he could try to offer the evidence

through his own witness. After the State had dismissed the witness, and the jury had

been dismissed for lunch, defense counsel tried again, stating:

[DEFENSE COUNSEL]: Your Honor, I would request that the

record reflect that during the entire time of Sergeant Weido’s

testimony, the mannequin wearing Mr. Sanchez’ clothes has been

sitting in front of the jury, that was used for demonstration

purposes.

[COURT]: Yes. It has been there since the Court admitted it.

[PROSECUTOR]: Your Honor, may we add something else for

the record?

[COURT]: Yes.

[PROSECUTOR]: May we let the record reflect that is a

mannequin of about five foot tall that is sitting on a piece of about

one foot square glass with a half inch square rod supporting the

mannequin with a board, a board about, a two by two piece of

board sticking out the top. That it has a pair of brownish looking

boots, and also a gray sweat suit underneath it, which we will

stipulate has nothing to do with the case, just part of the

mannequin.

[COURT]: Okay.

[PROSECUTOR]: Mannequin has no head. And we would be

willing to photograph, taken after the clothes are removed from

it, if counsel would like to have that, to have that included in the

record.

[DEFENSE COUNSEL]: Judge, I would like to have a photo

taken of it as it is to be admitted into the record.

On cross-examination, defense counsel established that when Weido arrived on the

scene, the clothing had already been cut off of the decedent and the decedent’s body

had been removed. On cross-examination of those witnesses who had seen the

shooting, defense counsel established that the decedent was a big man, that he had

been harassing the much smaller appellant during the day, that he was very

intoxicated, and that he had been moving towards appellant when he was shot.

The majority finds none of these efforts to be sufficient to put the trial court on

notice that appellant’s counsel objected to the use of the mannequin as demonstrative

evidence because of discrepancies between the actual circumstances of the crime and

the prejudicial effect on the jury of a headless mannequin in the decedent’s bloody

clothing seated before the jury throughout Detective Weido’s testimony. To my

mind, the standard the majority sets for stating an objection to the use of

demonstrative evidence as prejudicial is too high. Neither Rule of Evidence 403 nor

the case law explicating its requirements holds that a defendant must spell out in his

objection exactly how a demonstration is too dissimilar from the actual circumstances

to constitute an abuse of discretion. Nor must he spell out exactly how the admission

of evidence is more prejudicial than probative on pain of waiving error. Rather, the

Court of Criminal Appeals has consistently held that such technicality is not required

to preserve error.

In Ex Parte Little , 887 S.W.2d 62, 65 (Tex. Crim. App. 1994), the Court of

Criminal Appeals stated, “The purpose of an objection is twofold: (1) to notify the

trial judge and the State of the complaint, and (2) to preserve a complaint for

appellate review.” Id. at 65 (internal citations omitted). The court continued, “We

have acknowledged that with regards to objections ‘there are no technical

considerations or form of words to be used. Straightforward communication in plain

English will always suffice.’” Id. (quoting Lankston v. State , 827 S.W.2d 907, 909

(Tex. Crim. App. 1992)). Thus, “an objection may be phrased in any manner which

sufficiently appraises the trial judge and opposing counsel of the nature of the

complaint.” Id . The court noted,

The standards of procedural default, therefore, are not to be

implemented by splitting hairs in the appellate courts. As regards

specificity, all a party has to do to avoid the forfeiture of a complaint on

appeal is to let the trial judge know what he wants, why he thinks

himself entitled to it, and to do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to

do something about it. Of course, when it seems from context that a

party failed effectively to communicate his desire, then reviewing courts

should not hesitate to hold that appellate complaints arising from the

event have been lost. But otherwise, they should reach the merits of

those complaints without requiring that the parties read some special

script to make their wishes known.

Id. at 65 n.3 (quoting Lankston , 827 S.W.2d at 909 ) (emphasis added).

The record demonstrates that both the trial court and the State understood that

the defense did not want the jury to be facing the decedent’s bloody and cut-up

clothes displayed on a still, five foot tall, headless mannequin when appellant’s

defense of self-defense—or, indeed, conviction on the lesser included offense of

manslaughter—depended on defense counsel’s ability to persuade the jury that

appellant was in fear of his life from the much larger, threatening decedent moving

towards him at the time appellant shot him. Under the circumstances of the trial,

defense counsel’s objection to the details about the mannequin, coming as soon as the

State placed the mannequin before the jury, is, in my opinion, clearly sufficient to

preserve appellant’s objection that the mannequin was irrelevant and prejudicial to

his case. See Cantu v. State , 738 S.W.2d 249, 254 (Tex. Crim. App. 1987), cert.

denied sub nom , Cantu v. Collins , 509 U.S. 926 , 113 S. Ct. 3045 (1993) (addressing

merits following objection that testimony of witness who displayed wounds to jury

was “inflammatory, prejudicial and introduced evidence of an extraneous charge”);

Lewis v. State , 486 S.W.2d 104, 106 (Tex. Crim. App. 1972) (addressing merits

following objection to suspending rule to allow witness to observe subjective

demonstration by another witness and “‘permitting the medical expert to respond to

hypothesis not in evidence and to base conclusions thereon as well as on speculative,

subjective demonstrations by another witness’”); Stembridge v. State , 94 Tex. Crim.

207 , 250 S.W. 180, 181 (1923) (addressing merits and finding objections that

bedstead and bedclothing were not identical to those at homicide scene to be without

merit where State’s effort “was to get before the jury the exact conditions as to the

location of the body upon the bed and the arrangement of the bedclothing at the time

the body was discovered, for the purpose of showing the incorrectness of appellant’s

testimony;” likewise, finding no error in trial court’s permitting physician to testify

as to location of wounds and range of bullets and to demonstrate this on person of

prosecuting officer by having him lie down in jury’s presence).

Nor could appellant’s counsel have objected with the specificity that the

majority requires because the trial court, having heard briefly why the defense

considered itself prejudiced and why the State wanted the clothing to be displayed on

the mannequin, cut both defense counsel and the prosecution off before anything else

could be said; and it similarly cut defense counsel off when he subsequently tried to

introduce the mannequin into evidence during the State’s examination. Clearly, the

court did not think that it needed more of an explanation before overruling the

defense’s objection and allowing the demonstrative evidence.

Admissibility of Evidence

Because I would hold that appellant sufficiently preserved his complaint for

appeal, I would determine whether the trial court erred in allowing the State to use a

mannequin dressed in the decedent’s clothing to show where the decedent had been

shot. In his first point of error, appellant asserts that the trial court erred by allowing

the State to use the mannequin over the objections that there were differences

between the mannequin and the actual circumstances, that such demonstrative

evidence was not relevant, and that the danger of prejudice outweighed any probative

value the evidence might have.

Appellant contends that the use of the small

mannequin could have caused the jury to perceive the dispute as between a small

decedent and appellant, rather than an altercation between a 275-pound decedent and

appellant.

A. Use of Demonstrative Evidence

Appellant contends that this is a case of first impression because there are no

cases regarding the admissibility of mannequins in trial. However, there is a well-developed line of cases regarding demonstrations. See Lewis , 486 S.W.2d at 106 (It

is proper to permit the witness “to demonstrate before the jury as to make more plain

and clear her testimony”); Rogers v. State , 756 S.W.2d 332, 336 (Tex.

App.—Houston [14th Dist.] 1988, pet. ref’d) (“Texas law has long permitted

courtroom demonstrations aimed at clarifying a witness’s testimony.”). The trial

court has discretion as to whether or not to permit demonstrations. Ginther v. State ,

672 S.W.2d 475, 477 (Tex. Crim. App. 1984). The conditions must be similar, but

need not be identical to actual events, since dissimilarities affect the weight, not the

admissibility of the evidence. Cantu , 738 S.W.2d at 254 .

In trial, the State asserted that it wished to use the mannequin to establish

where the decedent had been shot, and it stated that laying the clothing on the ground

would be insufficient. Also, the State used the evidence to show the distance between

appellant and the decedent when the gun was fired. The complainant’s own shirt was

displayed on the mannequin for the purpose of demonstrating to the jury where the

bullets entered his body and the distance from which they were fired. Texas law has

long held that such a demonstration may be proper. See Cantu , 738 S.W.2d at 254

(surviving witness’s testimony that he was shot nine times during commission of

crime and showing his chest to jury, displaying wounds thereon, was redundant of

proper testimony describing them as part of contest of offense of capital murder and

thus was information properly before jury); Stembridge , 94 Tex. Crim. 207 , 250 S.W.

181 (in prosecution for murder by shooting, permitting physician to testify as to

location of deceased’s wounds and range of bullets, and to demonstrate this on person

of one of prosecuting officers by having him lie down in presence of jury was not

error). There is nothing to indicate that the use of a mannequin for the purpose to

which it was put here was intrinsically improper.

B. Relevance and Prejudice

Appellant contends, however, that the disputed evidence was not relevant to

the trial, although he offers no argument or evidence as to why it was not relevant.

Evidence that tends to make the existence of a consequential fact more or less

probable is considered relevant, and all relevant evidence is generally admissible.

Tex. R. Evid. 401. Considering that appellant argued self-defense, a reasonable trial

court could have decided that showing the distance between the two men was useful

in determining whether deadly force was necessary. Because it could have

determined that such demonstrative evidence tended to make the existence of a

consequential fact more or less probable, the trial court could have considered the

mannequin relevant evidence. See Simmons v. State , 622 S.W.2d 111, 113 (Tex.

Crim. App. 1981). Thus, the trial court did not act outside of the zone of reasonable

disagreement in impliedly finding the demonstrative evidence relevant.

Appellant also argues, however, that, even if relevant, the display of the

complainant’s shirt on a small headless mannequin was unduly prejudicial. Evidence

is unfairly prejudicial if it has “a tendency to suggest decision on an improper basis.”

Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). A Rule 403

analysis to determine unfair prejudice requires the trial court to balance (1) the

probative value of the evidence; (2) the potential of the evidence to impress the jury

in an irrational but indelible way; (3) the time needed to develop the evidence; and

(4) the proponent’s need for the evidence. Erazo v. State , 144 S.W.3d 487, 489 (Tex.

Crim. App. 2004); Howland v. State , 966 S.W.2d 98, 103 (Tex. App.—Houston [1st

Dist.] 1998), aff’d , 990 S.W.2d 274 (Tex. Crim. App. 1999), cert. denied sub nom ,

Howland v. Texas , 528 U.S. 887 , 120 S. Ct. 207 (1999); see also Wright v. State , 178

S.W.3d 905, 919 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (probative value

of state’s in-court demonstration showing its theory as to how defendant allegedly

murdered her husband substantially outweighed danger of unfair prejudice, confusion

of issues or misleading jury when all parts of demonstration were supported by and

consistent with testimony based on personal observations and deductions from facts

in evidence). Relevant evidence is presumptively more probative than prejudicial.

Howland , 966 S.W.2d at 103 . The trial court’s decision is reviewed for abuse of

discretion. Cantu , 738 S.W.2d at 255 .

Here, the trial court inquired into the purpose and prejudice of the evidence

before cutting the State off before it could explain why using the mannequin was

important and overruling the defense’s objection to its use. The record does not have

to include the logic behind the balancing test used by the trial court to determine that

evidence is more prejudicial than probative under rule 403; nor does it even have to

mention that one was conducted. See Howland , 966 S.W.2d at 103 (“The trial court

must perform a rule 403 balancing test if requested. However, it need not conduct a

formal hearing or even announce on the record that it has mentally conducted this

balancing test.”). Because the trial court overruled the rule 403 objection, we may

presume that the balancing test occurred. See id. Furthermore, photographs of the

decedent were also admitted into evidence, there was testimony as to the actual

circumstances, and appellant’s counsel mentioned the weight and height of the

decedent on multiple occasions. The trial court could thus have concluded that, in

light of this additional evidence, the mannequin would not have placed a false image

into the jury’s mind as to the size of the decedent and would not have substantially

prejudiced appellant. Because the trial court impliedly conducted the appropriate test,

and because its decision to allow the evidence did not fall outside of the zone of

disagreement, I would hold that the trial court did not abuse its discretion in admitting

the evidence.

Conclusion

For the foregoing reasons, I do not agree with the majority that appellant’s brief

on appeal “blindsides” the trial court. Nor do I agree that the trial court’s rights are

at stake in this appeal. Rather, it is appellant’s right to a fair trial—and appellant’s

right to a full and fair review of the trial court’s errors, if any—that is at issue. I

would hold that appellant preserved his objection to the State’s use of demonstrative

evidence and his Rule 403 objection, even though I would also hold that the trial

court was within its discretion in overruling appellant’s objections to the mannequin.

I would overrule appellant’s first point of error on its merits.

I respectfully concur in the judgment only.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Publish. Tex. R. App. P. 47.2 (b).