This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

issue not preserved (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• Hearsay objection at trial did not preserve for appeal contention that evid was not relevant. Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

• Nothing presented for review on claim that admission of evid violated rules 402 and 403 where only trial objection was that proper predicate had not been laid. Trevino v State, 991 S.W.2d 849 (May 12, 1999)

rules (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• Victim-impact evidence is evidence concerning the effect the victim's death will have on others, particularly the victim's family members. Victim-character evidence is defined as evidence concerning the good qualities of the victim. Haley v State (October 5, 2005, No. PD-1531-03)

• Victim-impact evidence or testimony generally may be admissible at the punishment phase when that evidence has some bearing on the defendant's personal responsibility and moral culpability. But the introduction of victim-impact evidence is limited even further when a party attempts to introduce this evidence concerning a victim of an extraneous offense and one not named in the indictment. Haley v State (October 5, 2005, No. PD-1531-03)

• In order to be admissible, a photograph must be relevant, it must be helpful to the jury. Like other demonstrative evidence, photographs should assist the jury with its decision, whether that be deciding guilt or punishment. A photograph should add something that is relevant, legitimate, and logical to the testimony that accompanies it and that assists the jury in its decision-making duties. Sometimes this will, incidentally, include elements that are emotional and prejudicial. If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects. Erazo v State (June 16, 2004, No. 2206-02)

• There is no purely legal test to determine whether evidence will tend to prove or disprove a proposition - it is a test of logic and common sense. Miller v State (January 17, 2001, No. 1939-99)

• Although the Texas Rules of Criminal Evidence superceded common law rules on admission of evid of prior acts of violence by victim, under Rule 402(a)(2) def may still offer evidence of a victim’s character or pertinent character trait, so evid of a victim’s character for violence remains admissible to show the victim was the first aggressor. Also, under Rule 404(b), victim’s extraneous acts of violence remain admissible to show def’s state of mind. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• The Code of Criminal Procedure does not define the term “relevant.” Texas Rule of Criminal Evidence 401 is helpful to determine what should be admissible under 37.07 sec. 3(a). The definition of “relevant” in Rule 401 is not a perfect fit in the punishment context. Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

• Sentences assessed for prior convictions are relevant in the context of the jury’s decision on punishment. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

not error to admit (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• In pros for capital murder it was not error to overrule relevance objection during punishment stage to testimony* regarding dismissal of extraneous offense charge. The fact that prosecutors and courts sometimes dismiss cases due to the less than ideal credibility of the victim or identification witness may aid the jury in deciding whether def had committed the unadjudicated offense for which the charge against him was dismissed. Threadgill v State (October 13, 2004, No. AP-74,458)

• In pros for capital murder of a child it was not error to admit medical evid of sexual assault of victim, where it was relevant; witness testified the anal rape of victim "contributed to her demise" and it was relevant to show def had a motive to kill victim: if he killed her she could not tell anyone who assaulted her. Allen v State (June 11, 2003, No. 74,140)

• In pros for capital murder as part of combination, it was not abuse of discretion to require def to display a Texas Mafia tattoo on his body to jury. It was admissible to prove the "combination" element of the offense and that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. Canales v State (January 15, 2003, No. 73,988)

• Gang membership evidence is admissible under Rules 404(b)and 402 if it is relevant to show a noncharacter purpose that in turn tends to show the commission of the crime. Ortiz v State (September 25, 2002, No. 73,692)

• In pros for capital murder, it was not error to admit evid of def's affiliation with the Mexican Mafia, over claim it was not relevant. The evidence was used to show a motive for an allegedly gang-related crime. Vasquez v State (February 6, 2002, No. 73,729)

• No merit to contention that trial court erroneously overruled motion to suppress statistical data interpreting results of DNA tests, on claim that the DNA results were not relevant because the statistical evaluation was incomplete for failure of the state to compare the DNA of other potential suspects with the sample taken from the victim. State’s DNA expert testified that PCR (polymerase chain reaction) analysis was conducted on the vaginal swab sample; the resulting DNA profile was then compared with DNA taken from def and another suspect. The probability that a randomly selected Southwestern Hispanic (def’s genetic classification group) would match the genetic profile of the sample DNA was one in 19,900,000; def’s DNA matched the sample. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• In pros for capital murder arising out of drive-by-shooting, it was not error to admit over Rule 401 objection, evid of three prior gang-related offenses that occurred at same house. The evidence was relevant to explain the context of gang rivalries in which the offense occurred, and furthered the State’s theory that the home was a target of def’s gang, which had some tendency to show that def had a motive to shoot and kill persons at that house. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

• In pros for capital murder involving a drive-by shooting, it was not error to overrule relevancy objection to evid of prior drive-by shooting and other gang-related offenses occurring at murder scene. The evid was relevant on state's theory that home was target of def's gang. Medina v State, 994 S.W.2d 153 (June 2, 1999)

not error to admit: photos (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• In pros for capital murder it was not error to admit photos of murder victim over objection they were irrelevant where they were relevant at guilt stage because they showed location of body at crime scene and wounds that caused victim's death. Shuffield v State (February 15, 2006, No. AP-74,574)

• In pros for capital murder it was not error to admit two pictures of the victim's anus over contention they were not relevant. They depicted a portion of the deceased's body at the autopsy, and were relevant to show the sexual assault injuries that were sustained prior to the child's death and also to corroborate def's confession. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

not error to admit: relevant to mental state (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• In pros for capital murder it was not error to overrule objections under rules 401, 403 and 404(b), to testimony that earlier on night of offense def along with some other members of his gang were involved in an altercation with X, allegedly a relative of an H-Town Crips gang member, and that def threatened X with a gun. State’s theory of the offense was that def opened fire into group of people gathered in front of a home in revenge for the murder of a fellow gang member. Various witnesses testified that, at the time of the offense, the H-town Crips and def's gang were at odds. In this context, the testimony was most relevant as to def’s motive and intent on the night of the offense. In the context of the entire record, it cannot be said that the testimony was more prejudicial than probative. The elements of the testimony which might be considered prejudicial to def (that he was a gang member, that he had a violent grudge against the H-town Crips, that he carried a deadly weapon and that he did not hesitate to threaten others with this gun) were facts established elsewhere in the record. Medina v State, 994 S.W.2d 153 (June 2, 1999)

not error to admit: relevant on defense theory (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• It was not error to overrule relevance objection to testimony by FBI special agent (a clinical psychologist), that def was an "organized sexual serial killer." It was relevant to rebut insanity defense. Resendez-Ramirez v State (May 21, 2003, No. 73,849)

not error to admit: relevant on punishment (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• It was not abuse of discretion to overrule relevance objection to admission at punishment stage, of evid showing length of sentences in def's prior convictions. Def had been convicted of robbery in 1976, 1981, and 1986 before he committed instant offense. Punishment for the 1976 and 1981 convictions was 15 years each. Punishment for the 1986 conviction was 75 years. Evidence at trial showed def committed instant offense while on the run from committing two bank robberies and escaping from jail in Mississippi. A logical and permissible inference from the evidence is that the 75-year sentence was not severe enough to prevent def from committing robberies or other violent crimes. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

not error to exclude (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• It was not error to exclude evid offered in mitigation of punishment in capital case, about history of sexual abuse in def's family over multiple generations. The fact that others in def's family were abused does not by itself make def more or less morally culpable for the crime for which he was on trial. Nor does it, by itself, make a jury's finding of mitigation any more or less probable than it would be without the evidence. Evidence that def himself was sexually abused is relevant and probative when a jury is considering evidence in mitigation of the death penalty. However, the State made clear that, not only did it not object to this type of evidence, the substance of the relevant evidence came in through other witnesses. Shuffield v State (February 15, 2006, No. AP-74,574)

error to admit (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• In pros for poss of cocaine with intent to deliver, it was error to admit punishment stage victim-impact and victim-character testimony from mother of extraneous offense murder victim. That testimony in the form of victim-impact and victim-character testimony regarding an extraneous offense or bad act was irrelevant under Rule 401 to the determination of the appropriate sentence def should receive on the facts of this case. The finding of the court of appeals that the jury's verdict was substantially affected and influenced by the erroneously admitted evidence was both reasonable and supported by the record. The state's extended jury argument concerning the suffering the murder victim's family endured had a substantial effect and influence on the jury's punishment assessment. The record clearly showed that the murder victim's family's pain was a prominent piece of the state's argument for a weighty sentence. In this case, court could not relegate the pervasive and emotional characteristics of this impermissible testimony, especially the manner in which it was used, to the benign category of harmless error. Haley v State (October 5, 2005, No. PD-1531-03)

error to exclude (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• In pros for poss of controlled substance, erroneous exclusion of defense evid was not harmless error under rule 44.2(b) where exclusion of the evid resulted in jury not having benefit of third-party testimony on the most critical element state had burden to prove. Facts of case: Def was passenger in car and convicted for possession of eight rocks of crack cocaine found in a medicine bottle recovered from a narrow space between def's seat and center console. Police also recovered narcotics paraphernalia from def's purse. At trial, def admitted to possessing the paraphernalia but challenged state's theory that she had care, custody, and control of the drugs. Trial court excluded the testimony of X, an acquaintance of def's, who had been with both def and driver of the car shortly before the car was stopped. By offer of proof, def showed that X would have testified that the driver of the car took one rock of crack cocaine from a container, similar to the one found in the car, and gave it to X just before def and the driver of the car were stopped by police. Def was prejudiced because she was precluded from presenting third-party witness testimony which would have corroborated and given independent credibility to the defense she sought to establish. Because def's only argument was that she did not possess the drugs, and the State's case rested on a contrary argument, the erroneous exclusion of testimony that tended to establish possession in another was a "serious" error. Ray v State (November 16, 2005, No. PD-1827-04)

• In pros for delivery of cocaine, where def raised defense of duress by X, it was abuse of discretion to exclude testimony offered by def (that X assaulted def after delivery), as irrelevant based on when the assault occurred. The evidence of the assault was relevant under Rule 401. [In instant case, def testified that X threatened her, forcing her to make the delivery to the undercover officer. There was little, if any, attenuation between the delivery of the cocaine and the assault. Def proffered testimony that X pursued her after she made the delivery. When X caught up to her a few hours after the delivery and discovered the deal had not gone down the way he wanted and that he would not receive the money from the delivery which he expected, he then carried out the threat he made before the delivery and assaulted def. A rational jury could find that this evidence helps to prove that def was under a constant state of duress from X when she delivered the cocaine, that this duress caused her to fear for her safety, and that her fear was reasonable.] Miller v State (January 17, 2001, No. 1939-99)

error cured or harmless (Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible)

• It was error to admit knives found at def's apartment over relevance objection, and even if marginally relevant they should have been excluded under rule 403, but error was harmless where def confessed to offense, other evid supported and corroborated confession, def did not contest guilt, and jury arguments did not mention knives. Cobb v State (May 29, 2002, No. 72,807)

• It was not error to deny motion for mistrial, when state introduced alleged victim-impact evidence* at the guilt/innocence phase of capital case, where under circs of case, the instruction to disregard cured admission of the irrelevant evidence, in light of evid of guilt. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)