No. 05-07-00620-CR
Opinion Filed June 12, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-37288-UP.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice O'NEILL.
A jury found appellant Isaiah Nunez guilty of capital murder of a child under the age of six. The trial court sentenced him to life imprisonment without parole. In five issues, appellant complains (1) the evidence is legally and factually insufficient to establish he intentionally or knowingly caused the baby's death; (2) the trial court erred in admitting a written statement because the officers used "question first tactics" undermining Miranda warnings, and it was involuntarily given because he was under the influence of marijuana; and (3) the trial court erred in admitting an autopsy photograph. We affirm the trial court's judgment.
Background
Appellant and his common law wife, Stephanie Nataren, babysat seven-month-old Jaidyn Silva while his mother worked. On February 22, 2006, appellant watched Jaidyn alone while Stephanie went with a friend to interview for jobs. Appellant took Jaidyn to the bedroom and laid him on the mattress with a bottle around 10:00 a.m. He claimed he later heard a thump followed by crying. Appellant assumed Jaidyn crawled over to the window ledge, pulled himself up, and then fell against it and hit his head. When he checked on him, Jaidyn was not breathing so he administered CPR and called 911. Officer Lee Berg, Jr. arrived on the scene, with the paramedics close behind, and appellant told him Jaidyn hit his head on the window ledge. However, upon inspection, the ledge showed no signs of anyone making contact with it. Appellant agreed to go to the police station for an interview and talked with Officer Oscar Escobar for approximately an hour. At this point, he was not in custody and was not given Miranda warnings because officers were uncertain whether any criminal act had occurred. Appellant told Officer Escobar Jaidyn hit his head on the window ledge. After the interview, appellant left the station and went to his parents' house for the evening. David Webster, a paramedic from Irving Fire Department, was a first responder on the scene. After gathering the necessary information from appellant, Webster's focus returned to assisting the other paramedics with Jaidyn, who initially had a "dying rhythm," which meant he had no pulse. His skin had a blue tint because he was unoxygenated. After paramedics administered several rounds of epinephrine, his pulse returned. Webster testified that at first, he did not notice any bruising or suspicious markings on Jaidyn; however, that changed when his heart beat returned to normal. Webster then noticed bruises appearing on his right cheek and left brow area. Lieutenant Jack Taylor with the Irving Fire Department also acted as a first responder and as the person in charge of Jaidyn's care from the apartment to the ambulance and enroute to Baylor Irving Hospital. The first thing he noticed when he picked up Jaidyn was the underside of his body was cool to the touch, which indicated some time had lapsed since the initial injury, and appellant may not have called for help as quickly as he claimed. He rushed Jaidyn to the ambulance, and paramedics immediately started administering oxygen through a bag valve mask. The only external observations he made at the time was a slight bruise on his right cheek, but it did not catch his eye as being significant. He started an interosseous IV, which he administered directly into the bone. In this case, he drilled a hole into Jaidyn's tibia to administer the fluid as quickly as possible. The needle used was very strong and severe, but Jaidyn had no reaction to it. He then intubated Jaidyn, which resulted in breath sounds returning to both lungs. They eventually got everything metabolically working again, except Jaidyn remained unconscious. As his blood flow returned to normal, Taylor then noticed the slight bruise on his cheek became more prominent, and he developed a hematoma on his left frontal lobe. When they arrived at the hospital, Jaidyn opened his eyes, which Taylor considered a positive sign. He then turned Jaidyn over to medical personnel at Baylor Irving. Appellant's wife called Jaidyn's mother, who immediately rushed to the hospital. She briefly saw Jaidyn before medical staff determined it was best to transfer him to Children's Medical Center Dallas because they had specialists better trained to handle such critical situations. Marita Thompson, a pediatric intensivist at Children's Medical Center, was the ICU doctor who took care of Jaidyn upon his arrival. She reviewed his records from Baylor Irving and found it significant that when paramedics first arrived on the scene, they noted he was cold, which meant he had been in the condition for some time. She also noted his records indicated several signs of severe brain damage including (1) dilated eyes that were unresponsive to light, (2) failure to respond to pain when paramedics drilled an IV line into his bone, and (3) low pH levels. When he arrived at Children's Medical Center, he still required large doses of medication to stabilize his blood pressure, he was not breathing on his own, and he was unresponsive to pain stimuli. Overall, he was quite critical and went to the ICU immediately. Later in the evening, he also started producing large amounts of urine, which meant his kidneys were not functioning properly because of the brain injury. Dr. Thompson administered medication to prevent dehydration. Doctor Bradley Weprin, a pediatric neurosurgeon, was the attending neurosurgeon on call when Jaidyn arrived at Children's Medical Center. He testified when Jaidyn arrived at the hospital he exhibited no brain stem reflexes. He explained the results of Jaidyn's CAT scan as showing some swelling, either from lack of blood supply or pressure. He also suffered from bleeding in the brain. The diffuse swelling, or swelling all over the brain, was so bad Jaidyn's brain lost its solation, or the "squiggly lines" people often see on the model of a brain. The white and gray matter was also indistinguishable. He concluded "The combination of bleeding on the surface of the brain, the swelling that we see in the brain suggest that there has been some serious traumatic forces delivered to the brain." Although Jaidyn did not have a skull fracture, Dr. Weprin said that was not unusual for this situation. He believed the evidence established Jaidyn was shaken violently. He testified that a reasonable person would know that such force would cause the death of an infant. Further, these were not the type of injuries that could have occurred a few days earlier and then manifested themselves days later. The "acute blood" on the CAT scan established it was under twenty-four hours old and unconsciousness would occur at the time of the injurious event. Doctors eventually decided to conduct a brain death exam. Several doctors from various disciplines conducted the exam and looked for the most basic of functions. Jaidyn did not have any of the basic brain functions. Doctors declared him brain dead on February 22, 2006. Jaidyn's mother decided to donate his organs. Jill Urban, a forensic pathologist with the Dallas County Medical Examiner's Office, performed Jaidyn's autopsy. She explained Jaidyn had red discoloration of the skin and small abrasions or scratches on the right side of his head near his ear. She also noted a small bruise on top of his right ear, another bruise on his right cheek, and swelling of the right eyelid. He had contusions on the left side of his forehead and a small petechial hemorrhage in the center of his forehead. She testified several of the contusions could be consistent with knuckles from a fist. He also had bruising on his arm consistent with grabbing. He had one swollen eye; however, she said that could have occurred in the hospital from the amount of fluid used to keep Jaidyn hydrated. She explained Jaidyn had subscalpular hemorrhages in the subscalpular tissue and over the surface of the skull. These matched up with the bruising on the outside of his face, which she again said could be consistent with a fist. His brain swelled so much the "sutures" holding the skull together began to come apart. She also testified Jaidyn suffered from subdural hemorrhages, subarachnoid hemorrhages, and cerebral edema. She also observed hemorrhages around the optic nerves of both eyes. He also had swelling and a hemorrhage around his spinal cord; however, she said this did not mean he was hit in the back. Rather, the blood from the head injury could have traveled down to the spinal cord. He had at least five areas of impact based on observation of his injuries. One blow to the head could not cause them; however, five or more different blows from an adult could. Violent shaking could also have caused the injuries, but he also suffered some sort of blunt force trauma. Her final conclusion was that Jaidyn died as a result of blunt force head injuries, despite not having a skull fracture. Based on Jaidyn's extensive injuries, officers obtained an arrest warrant for appellant and arrested him. Detective Randall Johnson, after giving appellant Miranda warnings, asked him if he wanted to talk, and he said yes. Detective Johnson explained the doctor's findings regarding Jaidyn's injuries were inconsistent with appellant's story from the day before, and appellant agreed to continue talking. The interview lasted approximately thirty minutes before Detective Johnson transcribed it. Appellant admitted to striking Jaidyn four times on the back of the head and two times on the side of his head. He also said he tossed him up a few feet in the air two or three times after hitting him. He claimed "I never meant to hurt him. When I slapped him, I didn't realize that it was too hard or it would do that to hurt him. I love all children." A jury convicted appellant of capital murder, and the trial court sentenced him to life imprisonment without parole. This appeal followed. Sufficiency of the Evidence
In issue one and two, appellant challenges the legal and factual sufficiency of the evidence to support his capital murder conviction because the State failed to prove he knowingly or intentionally caused Jaidyn's death. The State responds the evidence is sufficient and relies on the severity of Jaidyn's injuries to establish intent. The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App. 2005). When reviewing the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Under either standard, the fact finder is the sole judge of witness credibility and the weight given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson, 23 S.W.3d at 7 (factual sufficiency review). Appellant argues he did not intend to kill Jaidyn, and he was unaware that striking him was reasonably certain to cause his death. He further relies on his statement to police that he never meant to hurt him. For the State to prove appellant committed capital murder, it was required to prove he intentionally and knowingly caused Jaidyn's death. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2003 Supp. 2007). Intent to kill is a question of fact determined by the jury from all the facts and circumstances in evidence. McWhorter v. State, 957 S.W.2d 928, 930 (Tex.App.-Beaumont 1997, no pet.). However, proof of a culpable mental state almost invariably depends upon circumstantial evidence. Martin v. State, 246 S.W.3d 246, 261 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Intent can be inferred from the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). It may also be inferred from the extent of the victim's injuries, the method used to produce the injuries, and the relative size and strength of the parties. Id.; Martin, 246 S.W.3d at 262. In a murder case, a particularly brutal or ferocious mechanism of death, inflicted on a helpless victim, can be controlling upon the issue of intent or knowledge. Martin, 246 S.W.3d at 263 (concluding evidence of severe brain injuries was legally and factually sufficient to show intent to kill ten-month-old and support a capital murder conviction). The extent of Jaidyn's injuries and appellant's actions establish intent. Lieutenant Taylor testified Jaidyn was cool to the touch when he picked him up to transport to the hospital, which indicated some time had lapsed between the injury and appellant calling 911 for help. He and paramedic Webster both noticed only a small bruise on Jaidyn's right cheek prior to regulation of his heartbeat. However, once his heart began beating and the oxygen circulating again, bruising became more prominent and a large hematoma developed, which indicated a recent trauma caused the injuries. Although appellant's two-year-old son was also in the apartment at the time of the injuries, doctors testified he could not have created enough force to cause the injuries. Thus, the evidence showed appellant was the only person in contact with Jaidyn when the injuries occurred. Further, two doctors testified his extensive brain injuries were similar to those resulting from a severe car crash or a fall from two stories or more, not from a short fall from a mattress. His injuries were consistent with a severely shaken baby or from some blunt force trauma, such as a fist. A review of Jaidyn's medical records revealed no prior conditions that could have caused the brain damage. However, Dr. Urban admitted on cross-examination it was possible some of the bleeding in his brain occurred from them trying to keep him alive; therefore, the autopsy may have showed more blood than what resulted from the actual injury. But, this did not change her opinion about the extent and nature of the injuries. She also testified neither being on life support nor donating organs would cause such hemorrhaging. The jury was also free to consider the difference in size between appellant and Jaidyn in establishing intent. While the record does not establish appellant's size, it is reasonable to assume he was much larger than a seven-month-old baby. See, e.g., Martin, 246 S.W.3d at 262. The jury also heard appellant's written statement in which he claimed he did not mean to hurt Jaidyn and he loves all children. As the judge of witness credibility, the jury was free to disbelieve this evidence and instead rely on appellant's statement admitting he hit him several times and Detective Johnson's testimony that people often minimize their actions in such situations. See Morales v. State, 828 S.W.2d 261, 263 (Tex.App.-Amarillo 1992) (concluding evidence sufficient to support intent of capital murder of a child based on acts and conduct revealed in medical evidence rather than appellant's statement "I didn't mean to hurt him like that"), aff'd, 853 S.W.2d 583 (Tex.Crim.App. 1993). Thus, having reviewed the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to permit a rational jury to find appellant intentionally or knowingly committed capital murder of a child under the age of six. Therefore, his first issue is overruled. After reviewing all the evidence in a neutral light, we find the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met, nor is the evidence supporting the verdict so weak it is clearly wrong and manifestly unjust. Therefore, we overrule appellant's second issue. Admission of Written Statement-"Question-First Tactics"
In his third issue, appellant claims the trial court erred in admitting his second written statement taken after officers arrested him because officers used "question-first tactics" undermining the effect of the Miranda warnings. The State responds appellant was not in custody at the time of the statement, and even if he was, officers did not use "question-first tactics." We review a trial court's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial court's determination of historical facts, but review issues of law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Rice v. State, 195 S.W.3d 876, 882 (Tex.Crim.App.-Dallas 2006, pet. ref'd). The trial court is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Rice, 195 S.W.3d at 882. Thus, if the issue involves witness credibility, making the evaluation of that witness's demeanor important, we defer to the trial court's application of law to the facts. Rice, 195 S.W.3d at 882. In reviewing a trial court's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Rice, 195 S.W.3d at 882-83. Appellant asserts he was a victim of "question-first tactics" by police. The U.S. Supreme Court disapproved of such tactics in Missouri v. Seibert, 542 U.S. 600 (2004). It specifically determined whether statements made after the police give "midstream" warnings, that is, when police begin a custodial interrogation without advising the suspect of his Miranda rights, obtain incriminating statements, and then continue questioning after administering warnings in order to re-elicit the incriminating statements may be inadmissible. Id.; see also Martinez v. State, 204 S.W.3d 914, 918 (Tex.App.-Corpus Christi 2006, pet. granted). The Court established the following factors to determine whether Miranda warnings delivered midstream could be effective enough to accomplish their objective, despite prior questioning: (1) the completeness and detail of the questions and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of the first and second interviews; (3) the continuity of the police personnel; and (4) the degree to which the interrogator's questions treated the second round as continuous with the first. Seibert, 542 U.S. at 615. Although appellant does not challenge the admissibility of the first written statement, a discussion of it is necessary to determine whether the police obtained it while appellant was in custody and without Miranda warnings, thereby making his second incriminating statement inadmissible because of "question first tactics." Thus, the first step in our analysis is to determine whether the trial court properly concluded appellant was not in custody when he provided his first written statement. The determination of custody is made on a case-by-case basis after considering all of the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). A suspect is "in custody" for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement to the degree associated with formal arrest. Id.; Garcia v. State, 237 S.W.3d 833, 836 (Tex.App.-Amarillo 2007, no pet.). The Texas Court of Criminal Appeals has outlined four general circumstances that would constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when law enforcement officers tell the suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Dowthitt, 931 S.W.2d at 255. Here, the trial court heard testimony from Officer Berg that when he arrived on the scene he asked appellant if he wanted to talk and "he was very congenial about the situation. He was nervous, but he said he would talk to the detectives at this point." He further testified appellant was not under arrest at the time, and he did not remember putting appellant in handcuffs to escort him to the station. Officer Escobar, who conducted the interview, also stated appellant was not under arrest and had he not wanted to talk, he would have let him go because it was an initial investigation. At the time, he was uncertain whether a crime had even occurred. Because it was simply an initial investigation, Officer Escobar did not give appellant Miranda warnings. In his statement to Officer Escobar, appellant claimed Jaidyn was in the bedroom when he heard a loud thump. Appellant checked on him and thought Jaidyn had pulled himself up and then fallen against the window ledge and hit his head. When he noticed Jaidyn was not breathing, he called 911. Officer Escobar typed out his statement, and appellant reviewed and signed it. The interview lasted approximately an hour and then appellant went home to his parents' house, further indicating he was not in custody. After reviewing the record in the light most favorable to the ruling, the trial court did not abuse its discretion in determining appellant was not in custody at the time he gave his statement. Although officers knew appellant was the only adult present when the incident occurred, being the focus of an investigation does not equate to custody. Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App. 1990). Further, courts have held that, ordinarily, when a person voluntarily accompanies an officer to a certain location, even though the person knows or should know the officer suspects he may have committed or may be implicated in the commission of a crime, the person is not restrained or in "custody." Garcia, 237 S.W.3d at 836. Likewise, the mere fact an investigation took place in a police station does not make it custodial. California v. Beheler, 463 U.S. 1121 (1983) (concluding person not in custody when he voluntarily accompanied the police to the station, talked for less than thirty minutes, and was permitted to return home). Thus, we conclude none of the four general Dowthitt circumstances constituting custody are present in this case, and the trial court properly admitted the first written statement. Having concluded the trial court properly admitted the first statement, we now turn to appellant's argument regarding admission of his second written statement to Detective Johnson in which he admitted to striking Jaidyn several times on the back of the head and tossing him in the air. Because appellant's first written statement was not the result of custodial interrogation, we conclude the "question-first tactics" denounced in Seibert do not apply to these facts. Seibert only applies if an officer obtained the first statements in violation of Miranda. See United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 2006). Thus, we reject appellant's argument the officers engaged in "question-first tactics." Therefore, the trial court did not abuse its discretion in admitting the second written statement. Even if we concluded appellant was in custody when he gave his first statement, after applying the Seibert factors, our conclusion would be the same. First, Officer Escobar conducted the first interview as merely an initial investigation of events and sought basic information regarding what happened to Jaidyn. At this point, he was not sure whether a crime had occurred and was simply seeking information from the only adult witness at the scene. In contrast, when Detective Johnson interviewed him the following day, appellant received Miranda warnings and was under arrest; however, he agreed to talk. Because Detective Johnson had information from the doctor indicating Jaidyn's injuries could not have happened from hitting his head on a window ledge, his questioning of appellant was more specific than Officer Escobar's from the previous day. Thus, the detail and questions in the first round of questions was different from the second and supports admission under the first Seibert factor. Further, the statements from the two days do not overlap in content because appellant did not confess to hurting Jaidyn in his first interview, rather, he said he fell and hit the window ledge. It was not until the next day when Detective Johnson confronted him with information from medical reports that he made an incriminating statement. Therefore, this Seibert factor favors admission of the statement. When considering the timing of the two interviews, the Supreme Court determined a twenty-minute break between one incriminating statement without Miranda warnings to a repeat of the same statement after the warnings favored inadmissibility because a reasonable person was unlikely to believe he retained a choice about continuing to talk. Seibert, 542 U.S. at 616. Here, appellant left the station and went to his parents' house until he was arrested and brought back in for questioning the next day. We cannot conclude the timing of the second interview would allow a reasonable person to believe it was a continuation of the first interview. When Detective Johnson interviewed appellant, he had already been arrested and spent approximately one hour in jail. Prior to the interview, he received his Miranda warnings. Thus, these events would have informed a reasonable person the interview was under different circumstances than the previous one and is clearly distinguishable from the facts in Seibert. The continuity of the police personnel also favors admissibility. Two different officers conducted the interviews and although Detective Johnson admitted he reviewed appellant's affidavit from the first interview, there is not evidence he discussed specific questions or information regarding the interview with Officer Escobar before conducting his interview. In fact, the focus of his interview was to determine whether appellant could explain why the medical records showed Jaidyn's injuries occurred in a manner different from what appellant previously described. Thus, his interview was more in depth and focused than the initial interview. Lastly, we cannot say Detective Johnson treated the second interview as a continuation of the first interview. As previously noted, appellant did not confess to injuring Jaidyn in the first interview; therefore, the focus of the second interview was different. We acknowledge that Detective Johnson referred to appellant's previous written statement and said it did not "jive" with Jaidyn's medical reports; however, we do not believe this establishes any continuation from one interview to the next. Moreover, as previously discussed, appellant was under arrest and in custody during the second interview, which occurred a day later, and a reasonable person would consider it a separate interview. Having considered the Seibert factors, we conclude the trial court did not abuse its discretion in admitting appellant's second written statement. Appellant's third issue is overruled. Admission of Written Statement-Intoxication
Appellant argues in his fourth issue he was intoxicated at the time he provided his second written statement and, therefore, his confession was involuntary. Intoxication, while relevant, does not render a confession involuntary per se. Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). Instead, the question becomes whether the defendant's intoxication rendered him incapable of making an independent, informed decision to confess. Id. Appellant's evidence as to intoxication consists of testimony from his friend Orlando Perez and himself. Perez testified the two men smoked marijuana together the day of his arrest. He claimed appellant smoked six or seven joints, which made him lazy and "kind of on his own." He said appellant gets nonresponsive or agreeable when he smokes joints. On cross-examination, however, he admitted appellant smoked joints almost every night, and he could still carry on a conversation with Perez. Perez also admitted to having a long criminal record. Appellant admitted to smoking joints on the day of his arrest because he needed to relax and "take the edge off." He testified he becomes non-confrontational after smoking. He also claimed he smoked so much that day anyone looking at him could tell he was high. He also claimed he told Officer Gutierrez, who transported him to the police station, he was high. The State presented several witnesses who all testified appellant did not appear to be under the influence of drugs at the time he made his statement. Karen Curry, a senior office assistant at the police department, witnessed appellant's written statement. She stated if appellant appeared under the influence, she would have notified her lieutenant or captain; however, that was not the case here. Officer Burkett testified he did not observe any signs of intoxication. He noted it is quick and easy to detect marijuana because of the smell, but he did not detect it on appellant. Officer Gutierrez also testified he observed no signs of intoxication when he transported appellant to the station. He agreed passiveness could be a sign of intoxication; however, he also stated it was possible for an individual to function, make decisions, and understand everything going on around him. Because the issue of intoxication involves the credibility of witnesses, the evaluation of the witnesses' demeanor is important; therefore, we defer to the trial court's application of law to the facts. Ross, 32 S.W.3d at 855; Rice, 195 S.W.3d at 882. We conclude the evidence supports the trial court's finding appellant was not intoxicated at the time of his confession. Therefore, we hold the trial court did not abuse its discretion by overruling appellant's motion to suppress. Admission of Autopsy Photograph
In his final issue, appellant asserts an identification autopsy photograph, which shows "gross stitching" where doctors removed Jaidyn's organs for donation, was highly prejudicial, and the trial court erred in failing to exclude it. He further claims he was harmed by the photograph because it was "highly inflammatory." We disagree. The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990). Assuming without deciding the trial court erred in admitting the photograph, appellant can not establish harm. Improper admission of evidence constitutes a non-constitutional error we disregard unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Jones v. State, 111 S.W.3d 600, 608 (Tex.App.-Dallas 2003, pet. ref'd). Thus, we affirm a criminal conviction despite non-constitutional error if, after examining the record as a whole, we are left with fair assurance the error did not influence the jury or had but a slight effect. Jones, 111 S.W.3d at 608. Here, the jury heard appellant's written statement in which he admitted to hitting Jaidyn approximately six times and tossing him in the air repeatedly. The jury also heard several doctors testify in explicit detail about how Jaidyn was violently shaken and/or hit, which resulted in extensive brain injuries. It also saw numerous photographs from Jaidyn's autopsy showing the inside of his skull and brain, which were far more gruesome than the identification photograph. Based on the record as a whole, we cannot say the jury was influenced by a photograph that showed slight stitching from where his organs were removed for donation. Likewise, Dr. Urban explained the stitching to the jury when the trial court admitted the photograph; therefore, the jury knew the stitching was not caused by any injuries inflicted by appellant. Thus, after reviewing the record we conclude error, if any, was harmless. We overrule appellant's final issue. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.