Erazo v. State

¶1filed a dissenting opinion

¶2A jury convicted appellant of murdering his pregnant girlfriend. On direct appeal, appellant claimed that the trial court abused its discretion to admit at the punishment phase of appellant’s noncapital murder trial a 4-by-5 inch, color, autopsy photograph of the murdered victim’s twenty-eight week old unborn child because it was “highly prejudicial.” The Court of Appeals distinguished our decision in Reese v. State1 and decided that the trial court did not abuse its discretion to admit the photograph. See Erazo v. State, 93 S.W.3d 533, 535-36 (Tex.App.-Houston [14th Dist.] 2002) (distinguishing Reese on basis that Reese was concerned with “the posed nature of the photo and the emotions a funeral tends to invoke”). This Court exercised its discretionary authority to review this decision.

¶3The record reflects that the trial court conducted the balancing test under Tex.R. Evid. 403 before admitting the photograph.

[PROSECUTION]: The State would offer State’s Exhibit 66, Your Honor, after tendering same to Defense Counsel.

[DEFENSE COUNSEL]: May we approach?

[THE COURT]: Yes, sir.

(At the bench, on the record)

[DEFENSE COUNSEL]: I’m going to object to the introduction of State’s No. 66. He’s not being tried for murder or anything else that 66 depicts. I would object to its introduction based on 403 and 404.

There is no purpose for it being offered into evidence other than to influence the jury, and the prejudicial extent of it is not outweighed by any probative value. For that reason I would object.

[THE PROSECUTION]: It is being offered to show the far ranging extent of this crime and the severity of the damage to the complainant^2] and to show that this was obviously a healthy pregnancy.

[THE COURT]: I’m going to overrule your objection and find that the probative value outweighs any prejudicial effect.

¶4According to a scholarly essay written by a current member of this Court, an appellate court under these circumstances misapplies the abuse of discretion appellate standard of review to decide that a *499trial court abuses its discretion to admit the complained-of evidence. See Herasimchuk, The Relevancy Revolution in Criminal Law: A Practical Tour through the Texas Rules of Criminal Evidence, 20 St. Mary’s L.J. 737, 782-94 (1989),3 and at 783 n.113 (discussing treatise concluding that rule 403 does not require trial court to choose admission over exclusion, it requires the trial court to follow the balancing procedure if exclusion is to be based upon the rule) and at 794 (since the policy of rule 403 is based upon the trial court’s conscious balance of competing probative and prejudicial factors, an appellate court will be focusing upon the methodology used by the trial court rather than its result in reviewing any allegations of “abuse of discretion”).4 And, recognizing that the rules of evidence are inclusionary rather than exclusionary with a presumption that relevant evidence is admissible5 and that trial courts are in the best position to make the evidentiary call, it cannot be said that the Court’s opinion correctly applies any reasonable formulation of the abuse of discretion appellate standard of review to the trial court’s decision to admit the photograph. See Montgomery, 810 S.W.2d at 391 (op. on reh’g) (appellate court reviews trial court’s rule 403 decision under abuse of discretion standard meaning that “an appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement”); United States v. Jamil, 707 F.2d 638, 642 (2nd Cir.1983) (given “the superiority of his nether position,” a trial judge is given broad discretion to weigh these competing interests because he is in a superior position to evaluate all of the circumstances connected with them) (internal quotes omitted);6 Herasimchuk at 784 n. 116 (evidence should “very sparingly” be excluded under rule 403, and, if there is any doubt about the existence of unfair prejudice, it is generally better practice to admit the evidence); see also Saltzburg, Capra and Martin, Commentary to Fed. R.Evid. 403 on “trial court discretion” stating:

Rule 403 provides that evidence “may” be excluded, thus imparting significant discretion to the Trial Judge. The Appellate Court will not reverse a Rule 403 decision simply because the Appellate Judges would have ruled differently had they been trying the case. Error will be found only if the Trial Judge’s decision cannot be supported by reasonable argument. (Citations Omitted). Appellate Courts [should] recognize that the Trial Judge has a unique vantage point from which to detect and assess the negative *500factors that might arise from proffered evidence, and from which to balance these factors against the probative value of the evidence. Appellate Courts [should also be] sympathetic to the fact that the Trial Court must ordinarily conduct its Rule 403 balancing process on the spot, during the trial. . The Trial Court does not usually have the luxury of carefully balancing, and even if it had the time, the balance of factors is rarely crystal-clear. As the Court stated in Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325 (6th Cir.1994):

In our view of any trial record, we are mindful that evidentiary questions often require a trial judge to make quick decisions on doubtful questions. This is why we review evidentiary decisions for abuse of discretion. [Rule 403 challenges] demand swift but judicious weighing and balancing. Indeed, because such questions are often subject to a judge’s discretion, this court often would affirm a judge’s evidentiary decision “either way,” whether the response to the lawyer’s objection has been “sustained” or “overruled.”

Essentially, Appellate Courts will check to see that a balancing process has been conducted; the result of a careful balancing process will not itself be second-guessed. (Citation Omitted).

¶5Keeping in mind that rule 403 actually states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” the Court’s decision in this case can only be supported either by reading “may” to mean “must” or rule 403 to really say that “relevant evidence may be admitted unless its probative value is substantially outweighed by the danger of unfair prejudice.” Rule 403 does not say any of this.

¶6The Court’s opinion also misapplies the substantive law set out in rule 403 when it decides that the photograph is “substantially more prejudicial than probative.” See Erazo v. State, 144 S.W.3d 487, 488, 497, 2004 WL 1353463 (Tex.Cr.App. No. 2206-02, delivered this date); Herasim-chuk at 786 n. 120 (“probative outweighfs] prejudicial” standard was significantly altered by the adoption of rule 403). The substantive standard under rule 403, however, is whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice.”7See Robbins v. State, 88 S.W.3d 256, 262-63 (Tex.Cr.App.2002) (each word of the rule 403 test is significant); Herasimchuk at 786-89 (relevant evidence may be excluded only if “unfair” prejudice “substantially [8] outweighs” any probative value). Deciding that the photograph should have been excluded because it is “substantially more prejudicial than probative” is literally a decision that the prosecution should not have offered evidence simply because it injured the opponent’s case which, of course, is the central point of offering evidence. See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Cr.App.1999); Herasimchuk at 788-89 (it must be remembered that virtually all proffered evidence is prejudicial to the opposing party and only “unfair” prejudice should ever be the basis for exclusion of relevant evidence).

¶7Though it is not clear from reading the Court’s opinion, it still appears to be the law that photographs depicting matters described by admissible verbal testimony *501are also admissible unless the probative value of the photographs is substantially outweighed by the danger of unfair prejudice under rule 403. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Cr.App.1991). In Reese, we reaffirmed “that a Rule 403 analysis by the trial court should include, but is not limited to” the following factors: 1) the probative value of the evidence, 2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way, 3) the time the proponent needs to develop the evidence, and 4) the proponent’s need for the evidence. See Reese, 33 S.W.3d at 240-41. We decided that the photograph in Reese was inadmissible under rule 403 because, although “the third and possibly the first factors weighed in favor” of admissibility, these factors were “not enough to overcome the prejudicial qualities of the photograph and the [proponent’s] limited need for the photograph in the context of the contested” special issues at the punishment phase of the defendant’s capital murder trial. See Reese, 33 S.W.3d at 243.

¶8Reese illustrates the point this Court has made in prior cases that the admissibility of evidence at the punishment phase of a capital murder trial is an intrinsically factbound function of relevancy to the discrete factual issues contained in the special issues. See Reese, 33 S.W.3d at 241-43 (analyzing admissibility of the photograph in relation to the special issues); Mosley v. State, 983 S.W.2d 249, 268 (Tex.Cr.App.1998) (Meyers, J., dissenting), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). This Court has, however, recognized that the admissibility of evidence at the punishment phase of a noncapital felony offense (such as the one here) is a “function of policy rather than relevancy” because “there are no discrete factual issues at the punishment stage” and deciding “what punishment to assess is a normative process, not intrinsically factbound.” See Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Cr.App.2002); Rogers, 991 S.W.2d at 265.

¶9Unconstrained by the “intrinsically fact-bound function of relevancy” to the special issues, it would have been within the trial court’s discretion in this case to have decided that the photograph was highly probative of, and the prosecution needed the photograph to depict, the “circumstances of the offense” so that the jury could tailor an appropriate sentence for appellant for this noncapital felony offense. See Article 37.07, § 3, Tex.Code CRiM. PRoa, (evidence of the “circumstances of the offense” may be admitted at the punishment phase of a noncapital felony offense); Sunbury, 88 S.W.3d at 233-34 (deciding what punishment to assess for a noncapital felony is a “function of policy rather than relevancy” and some policy reasons to consider when determining whether to admit punishment evidence include giving the jury complete information to tailor an appropriate sentence for a defendant); Rogers, 991 S.W.2d at 265. Unlike Reese, therefore, the first and third factors weigh heavily in favor of admissibility under rule 403.

¶10The Court’s decision in this case really boils down to the second Reese factor and a concern that, even though the jury could have heard about what appellant did to the victim’s unborn child, the jury should not have seen a photograph depicting this because this encouraged the jury to make its sentencing decision on an emotional basis. See Erazo, at 495 (deciding that the second Reese factor weighed in favor of excluding the photograph because it encouraged “the jurors to make a decision on an emotional basis”). Again, this misstates the legal test. Our case-law actually refers to an “undue tendency” to suggest decision on an “improper basis” such as an “emotional one.” See Rogers, 991 S.W.2d at 266 (“unfair prejudice” refers to “an undue tenden*502cy to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”). ' In this case, the powerful and compelling effects of the photograph giving rise to the Court’s concern that the photograph improperly appealed to the jury’s emotions emanates “from nothing more than what [appellant] has himself done.” See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Cr.App.1995).

¶11Under these circumstances, any tendency of the photograph to suggest decision on an emotional basis was not “undue” or “unfair.” See Rogers, 991 S.W.2d at 263; Herasimchuk at 789 n. 127 (courts have almost always held that while it is prejudicial to defendants for a jury to see the precise nature and results of their conduct, it is not “unfairly” so) and at 790 n. 128 (discussing authorities stating that evidence may not be excluded merely because it is unpleasant, that evidence of repulsive injuries is not inadmissiblé because they may excite the jury’s emotions and that a court cannot arrange for lively music to keep the jury cheerful while the State’s case in a murder trial is being presented, and gruesome evidence cannot be suppressed merely because' it may strongly tend to agitate the jury’s feelings). And even if there was an “undue tendency” to suggest decision on an emotional basis (i.e., “unfair prejudice”), the probative value of the photograph was not “substantially outweighed” or even “outweighed” by this “unfair prejudice.” See Robbins, 88 S.W.3d at 263; Herasimchuk at 786-89 (“unfair prejudice” must “substantially” outweigh any probative value) (emphasis in original). Jurors do not have to check their emotions at the courtroom door. Cf. Rogers, 991 S.W.2d at 266 (it is appropriate that jurors make value judgments based on the evidence that they receive); Herasimchuk at 789-90.9 The second Reese factor also weighs in favor of admissibility under rule 403 which further distinguishes this case from Reese.10

¶12I would decide that the trial court did not abuse its discretion to admit at the punishment phase of appellant’s noncapital murder trial one autopsy photograph of the murdered victim’s twenty-eight week old unborn child. I respectfully dissent.

¶13APPENDIX

¶14This Appendix contains the following:

¶15Herasimchuk, The Relevancy Revolution in Criminal Law: A Practical Tour through the Texas Rules of Criminal Evidence, 20 St. Mary’s L.J. 737, 782-94 (1989).