### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00065- CR

Humber to Z uni ga, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 07- 3022 02, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Humberto Z uniga g uilty of m an s l aug hter and assessed his punishment at twenty

y ear s’ imprisonment. See Tex. P enal Code A nn. § 19.04 (West 2003). I n a single point of err or, appellant contends that the trial court err ed by admitting a cer tain photogr aph in evidence . We overrule this contention and aff irm the conviction. On the night of September 7, 2007, there was a party at the apar t m en t appellant share d with his g irlfriend and their infant son. One of the persons at the party was J esse Sanchez. After midnight, and soon afte r Sanchez had left the party , appellant noticed that money and coca ine

wer e missing. Appellant arme d himself with a pistol and went looking for Sanchez, who he believed

was the thief. Appellant found Sanchez in the alley behind the apar tment c omplex and, during the ensuing confr ontation and strug g l e, appellant fata lly shot Sanchez in the neck. Appellant was indicted for mur der, but the jury convicted him of the lesser inc luded offe nse of mansla ug hter.Appellant urg es that the trial court err ed by admitting State’s exhibi t 79, a photogr aph

of a y oung man identified only as J ohnny , the ex-boy friend of appellant’ s g irlfriend’ s cousin. I n the photogr aph, J ohnny is holding a semi-automatic pistol in one hand and making a g ang sign with the

o t h er. The photogr aph was taken in the kitchen of appellant’ s apar tment during a p ar t y o n Aug ust 31, 2007, one wee k befor e the fata l shooting

. Appellant contends that this ex hibit shoul d 1 have been excluded beca

use its probative value was substantially outweig hed by the dang er of unfair prejudice , confusion of the issues, and misleading the jury

. See Tex. R. Evi d. 403.

The photogra

ph was offere d by the S tate during it s cr o s s -e x amination of appellant
at the punishment stag e. I n response to questions by defe nse counsel, appellant had testified to his elig ibilit y for probation, his reha bilitative activities while in jail awa iting trial, and his resolve to end his involvement with g ang s and drug s. During cross-e x amination, appellant acknow ledg ed that he had regularly had parties at his apar tment d u ri n g whi ch alcohol and marihuana wer e consumed. Appellant identified another photogr aph of J ohnny , also taken in his kitchen on Aug ust 31, in which J ohnn y i s making the g ang sign with both hands. This photogr aph was offe red and admitted as State’s exhibit 78 without objection. I n response to further questions by the prosec utor, appe llant admitted that J ohnny had broug ht a g un to the p ar t y in question. Appellant then identified the challeng ed photogr aph, and it was admitted in evidenc e over appellant’ s rule 403 objection. We revie w the trial court’s d ec i s i o n t o admit the photogr aph for an abuse of discretion. Montgomery

v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (op. on re h’g ).

Appellant erroneously asser ts that the t ime and place of the phot og raph were not proved. I n 1 fac t, the photogr aph is date- stamped Aug ust 31, 2007, and appellant himself acknow ledg ed at trial that it was taken in the kitche n of his apar tment. 2Among the fac tors th at h av e b een held to be rele vant in a rule 403 analy sis are :

(1) the pr obative value of the e vidence ; (2) the potential for the evidenc e to impress the j ury in an irrational but indelible way ; (3) the time neede d to dev el o p the evidenc e; and (4) the proponent’s need for the evidenc e. Shuffield v. State , 189 S.W .3d 782, 787 (Tex. Crim. App. 2006). I n apply ing these fac tors, we must co n s i d er t hat the photogr aph was admitted at the punishment stag e of appellant’ s trial. The task of assessing punishment within t h e p resc ribed rang e is a normative judgme nt th at u sually does not depend on the deter mination of discrete fac ts. Ex parte Chavez , 213 S.W .3d 320, 323 (Tex. Crim. App. 2006). By statute, a trial court may admit evidenc e as to any
matter it deems rele vant to sentenc ing, including the defe ndant’s char acte r. Tex. Code Crim. Proc. Ann. ar t. 37.07, § 3(a)( 1) (West Supp. 2009). Appellant arg

ues that the photogr aph in question had the potential for confusing the issues, g iven that it was a picture of a person who wa s not prese nt on the night of the char g ed offe nse, who was holding a wea pon that was not involved in the char g ed offe nse, and who had only

a m ar gi nal connec tion to appellant. Appellant asser ts that by sug g esting a connec tion betwee n appellant and J ohnny ’s wea pon, the photogr aph had the potential to impress the jury in an irrational
way . The S tate responds that the phot og raph was evidence of appellant’ s char acte r, showi n g t hat he permitted the car

ry ing and display of wea

pons in his residenc e. The State further argues that the photogr aph serve d to rebut appellant’ s testimony that he had moved to Austin from Corpus Christi
to esca pe the influence of g ang s. The State notes that littl e time was devoted to the admission of the photogr aph, which w as not mentioned there afte r, eve n during final ar g uments.

3Considering the rec ord in lig ht of the fa ctors listed in Shuffield and the tria l court’s d i s cr et i o n u nder section 3 of article 37.07, we hold that the court did not abuse its discretion b y admitting exhibi t 79 over appellant’ s rule 403 objection. The trial court could rea sonably conclude that the probative value of the photogr aph as punishment evidenc e was not substantially outweig hed by the dang er of

unfair pr ejudice, c onfusion of the issues, or misleadingthe jury

. Fi n al l y , appellant admitted being a g ang member and that other g ang members attended parties in his apar tment, someti m es arme d. Appellant also admitted using and selling marihuana and coca ine, and he testified that he purcha sed the pistol he used to kill Sanchez from a drug addict. I n light of this other e vidence , we a re c onfident that the a dmission of the photogra ph did not substantially aff

ect the jury ’s punishment decision even if it was an abuse of the trial court’s discretion. See Tex. R. App. P . 44.2(b).

The point of er

ror is over

ruled, a nd the judg ment of convic tion is affirmed.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: January

26, 2010 Do Not Publish

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