holding photographs taken after autopsy surgery are admissible to show nature of injuries unless “results of surgery have obfuscated the results of the crime”
How later courts described this case
- holding photographs taken after autopsy surgery are admissible to show nature of injuries unless “results of surgery have obfuscated the results of the crime”
- dissenting opinion on motion for rehearing
- “Where a general verdict is returned, and the evidence is sufficient to support a finding under any of the counts submitted, no error is shown.”
- different manner and means of committing murder
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(concurring).
I agree with the Court’s disposition of appellant’s fifth ground of error relating to the charge on independent acts of a third party. I find it necessary, however, to divorce myself from some of the language used by the Court in the treatment of the issue.
The charge complained of read as follows:
“Unless you find from the evidence beyond a reasonable doubt that the death of Imogene McNeill Apple was not caused by the independent act of a third party, if there was such a death, or if you have a reasonable doubt thereof, then you will acquit the defendant.”
At best, the charge was confusing but it did not, as the appellant contends, shift the burden of proof to the defendant. Nor was the charge contradictory as in the case of Black v. State, 137 Tex.Cr.R. 516 , 132 S.W.2d 267 (1939), relied upon by the appellant.
The charge given can be paraphrased as follows:
Unless you find beyond a reasonable doubt that the death was not caused by a third party, then you will acquit the defendant.
An analysis of the issues involved produces the following:
A. The State must prove that death was not caused by a third party.
*324 B. The State must prove “A” beyond a reasonable doubt.
C. The charge should read: Unless you find “A and B,” then you will acquit.
This charge resembles the charge actually given. It is an affirmative statement of the defensive issue. And it does not shift the State’s burden of proof to the appellant.
I take issue, however, with the majority’s reliance on another paragraph of the charge submitted by the court to the jury, “The burden of proof in all criminal cases rests upon the state throughout the trial; it never shifts to the defendant.” It is one thing to “consider the charge as a whole” on review, but quite another thing to' rely on a fortuitous catch-all phrase to cure otherwise reversible error. The majority would seemingly rely on this boiler plate paragraph to cure any and all defects shifting the burden of proof in other portions of the court’s charge. This type of solution is subject to great potential for abuse and I cannot accede to such a practice.
MORRISON, J., joins in this concurrence.