
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-09-00065-CR


Humberto Zuniga, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-1-DC-07-302202, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



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


A jury found appellant Humberto Zuniga guilty of manslaughter and assessed his
punishment at twenty years' imprisonment.  See Tex. Penal Code Ann. § 19.04 (West 2003).  In a
single point of error, appellant contends that the trial court erred by admitting a certain photograph
in evidence.  We overrule this contention and affirm the conviction.
On the night of September 7, 2007, there was a party at the apartment appellant
shared with his girlfriend and their infant son.  One of the persons at the party was Jesse Sanchez. 
After midnight, and soon after Sanchez had left the party, appellant noticed that money and cocaine
were missing.  Appellant armed himself with a pistol and went looking for Sanchez, who he believed
was the thief.  Appellant found Sanchez in the alley behind the apartment complex and, during the
ensuing confrontation and struggle, appellant fatally shot Sanchez in the neck.  Appellant was
indicted for murder, but the jury convicted him of the lesser included offense of manslaughter.
Appellant urges that the trial court erred by admitting State's exhibit 79, a photograph
of a young man identified only as Johnny, the ex-boyfriend of appellant's girlfriend's cousin.  In the
photograph, Johnny is holding a semi-automatic pistol in one hand and making a gang sign with the
other.  The photograph was taken in the kitchen of appellant's apartment during a party on
August 31, 2007, one week before the fatal shooting. (1)  Appellant contends that this exhibit should
have been excluded because its probative value was substantially outweighed by the danger of unfair
prejudice, confusion of the issues, and misleading the jury.  See Tex. R. Evid. 403. 
The photograph was offered by the State during its cross-examination of appellant
at the punishment stage.  In response to questions by defense counsel, appellant had testified to his
eligibility for probation, his rehabilitative activities while in jail awaiting trial, and his resolve to end
his involvement with gangs and drugs.  During cross-examination, appellant acknowledged that he
had regularly had parties at his apartment during which alcohol and marihuana were consumed. 
Appellant identified another photograph of Johnny, also taken in his kitchen on August 31, in which
Johnny is making the gang sign with both hands.  This photograph was offered and admitted as
State's exhibit 78 without objection.  In response to further questions by the prosecutor, appellant
admitted that Johnny had brought a gun to the party in question.  Appellant then identified the
challenged photograph, and it was admitted in evidence over appellant's rule 403 objection. 
We review the trial court's decision to admit the photograph for an abuse of discretion. 
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Among the factors that have been held to be relevant in a rule 403 analysis are: 
(1) the probative value of the evidence; (2) the potential for 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.  Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).  In applying
these factors, we must consider that the photograph was admitted at the punishment stage of
appellant's trial.  The task of assessing punishment within the prescribed range is a normative
judgment that usually does not depend on the determination of discrete facts.  Ex parte Chavez,
213 S.W.3d 320, 323 (Tex. Crim. App. 2006).  By statute, a trial court may admit evidence as to any
matter it deems relevant to sentencing, including the defendant's character.  Tex. Code Crim. Proc.
Ann. art. 37.07, § 3(a)(1) (West Supp. 2009).  
Appellant argues that the photograph in question had the potential for confusing the
issues, given that it was a picture of a person who was not present on the night of the charged
offense, who was holding a weapon that was not involved in the charged offense, and who had only
a marginal connection to appellant.  Appellant asserts that by suggesting a connection between
appellant and Johnny's weapon, the photograph had the potential to impress the jury in an irrational
way.  The State responds that the photograph was evidence of appellant's character, showing that
he permitted the carrying and display of weapons in his residence.  The State further argues that the
photograph served to rebut appellant's testimony that he had moved to Austin from Corpus Christi
to escape the influence of gangs.  The State notes that little time was devoted to the admission of the
photograph, which was not mentioned thereafter, even during final arguments.
Considering the record in light of the factors listed in Shuffield and the trial court's
discretion under section 3 of article 37.07, we hold that the court did not abuse its discretion by
admitting exhibit 79 over appellant's rule 403 objection.  The trial court could reasonably conclude
that the probative value of the photograph as punishment evidence was not substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  
Finally, appellant admitted being a gang member and that other gang members
attended parties in his apartment, sometimes armed.  Appellant also admitted using and selling
marihuana and cocaine, and he testified that he purchased the pistol he used to kill Sanchez from a
drug addict.  In light of this other evidence, we are confident that the admission of the photograph
did not substantially affect 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 error is overruled, and the judgment of conviction is affirmed.


				__________________________________________
				J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Affirmed
Filed:   January 26, 2010
Do Not Publish
1.        Appellant erroneously asserts that the time and place of the photograph were not proved.  In
fact, the photograph is date-stamped August 31, 2007, and appellant himself acknowledged at trial
that it was taken in the kitchen of his apartment.

