      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



                            MEMORANDUM                   OPINION


               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).


   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.

                                                     2
               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.




                                                  3
                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




                                                   4
