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 403. Exclusion of Relevant Evidence on Special Grounds)

• 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 403. Exclusion of Relevant Evidence on Special Grounds)

• Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Powell v State (April 5, 2006, PD-0051-05)

• Rule 403's use of the word "may" reflects the draftsman's intent that the trial judge be given a very substantial discretion in "balancing" probative value on the one hand and "unfair prejudice" on the other, and that he should not be reversed simply because an appellate court believes that it would have decided the matter otherwise. The trial judge, not the appellate judge, is in the best position to assess the extent of the prejudice caused a party by a piece of evidence. If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal. Powell v State (April 5, 2006, PD-0051-05)

• It was error for court of appeals to conduct de novo review of trial court ruling that granted motion to suppress based on Rule 403. Trial court is entitled to broad discretion in ruling on a Rule 403 objection. Trial judge's statement at time of ruling, "All witnesses who testified were credible and this Court did not base its decision upon the credibility of the witnesses," did not alter how to conduct appellate review. That the ruling was made on a pre-trial motion to suppress did not alter review. The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. State v Mechler (January 12, 2005, No. PD-0075-04)

• A proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. The fact that this Rule 403 determination occurred pretrial in the form of a motion to suppress does not alter either an appellate or trial court's use of those factors. But in such instances a trial court often will not have enough information before it to adequately apply these factors and assess whether the contested evidence's probative value is substantially outweighed by its prejudicial effects. State v Mechler (January 12, 2005, No. PD-0075-04)

• Rule 403 does not exclude all prejudicial evidence. It focuses only on the danger of "unfair" prejudice. "Unfair prejudice" refers only to relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. State v Mechler (January 12, 2005, No. PD-0075-04)

• Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Threadgill v State (October 13, 2004, No. AP-74,458)

• When considering the admissibility of victim impact or victim character evidence, courts must carefully consider the following factors: (1) how probative is 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. Salazar v State (November 27, 2002, No. 2180-01)

• Trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value under Rule 403. These factors include: (1) how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable; (2) the extraneous offense's potential to impress the jury in some irrational but indelible way; (3) the trial time that the proponent will require to develop evidence of the extraneous misconduct; and (4) the proponent's need for the extraneous transaction evidence. Wheeler v State (January 30, 2002, No. 815-99)

• Relevant evidence is generally admissible, but it is properly excluded under Rule 403 when its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis. Reese v State (December 6, 2000, No. 73,281)

• A Rule 403 analysis by the trial court should include, but is not limited to, the following factors: (1) how probative is 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. Fourth factor has three subparts: (1) Does the proponent have other available evidence to establish the fact of consequence that the evidence is admissible to show? (2) If so, how strong is that other evidence? (3) Is the fact of consequence related to an issue that is in dispute? Reese v State (December 6, 2000, No. 73,281)

• Application of Rule 403 does not act to automatically bar evidence admissible under Article 38.36(a). Rule 403 acts to exclude Article 38.36(a) evidence only where the probative value of the evidence is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• Harmonizing Article 38.36(a) with Rules 404(b) and 403 is consistent with Article 38.36’s plain language. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• Because Article 38.36(a) and Rules 404(b) and 403 can be congruously applied as mandated by Rule 101(c), and because grafting an exception into Article 38.36(a) contravenes its plain language, court held that evidence admissible under 38.36(a) may be nevertheless excluded under Rule 404(b) or Rule 403. Consequently, if a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue. If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors in Rule 403. Smith v State, 5 S.W.3d 673 (June 23, 1999)

rules: photos (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• Appeals court reviewing admissibility under Rule 403 should, using an abuse of discretion standard, do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court's determination must be reasonable in view of all relevant facts. In the context of the trial court's admitting a photograph, appeals court should consider: the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the def's detriment. Reese v State (December 6, 2000, No. 73,281)

• Several factors may be considered in determining whether the danger of unfair prejudice substantially outweighs the probative value of photographs, including the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and the availability of other means of proof and the circumstances unique to each individual case. Chamberlain v State, 998 S.W.2d 230 (June 16, 1999)

rules: extraneous offense (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• A Rule 403 balancing test includes the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable -- a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• In pros for felony DWI, a balance must be struck between CCP Article 36.01(a)(1), which authorizes the reading of the full indictment (and by this action implicitly authorizes the proof of the previous convictions in the State’s case-in-chief), and Rule 403, which proscribes this evidence if there is a strong likelihood that the jury may improperly use it in reaching its verdict. In cases where the defendant agrees to stipulate to the two previous DWI convictions, the proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief. This allows the jury to be informed of the precise terms of the charge against the accused, thereby meeting the rationale for reading the indictment, without subjecting the defendant to substantially prejudicial and improper evidence during the guilt/innocence phase of trial. Following this logic, any prior convictions beyond the two jurisdictional elements should not be read or proven during the State’s case-in-chief -- as long as the defendant stipulates to the two prior convictions -- as they are without probative value and can serve only to improperly prove the defendant’s “bad character” and inflame the jury’s prejudice. Tamez v State, 11 S.W.3d 198 (Jan. 5, 2000)

rules: specific evidence (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• Rule 607 permits the credibility of a witness to be attacked by any party, including the party calling the witness. The rule abandons the traditional “voucher” rule which prohibited a party from impeaching its own witness. The plain language of Rule 607 also dispenses with the surprise and injury exception to the “voucher” rule which served as a prerequisite to impeaching one’s own witness. Because grafting a surprise requirement would contravene the plain language of Rule 607, court of criminal appeals declined to adopt this common-law distinction. Instead, it concluded the state’s knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. A trial court abuses its discretion under Rule 403 when it allows the state to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible. The impeachment evidence must be excluded under Rule 403's balancing test because the state profits from the witness’ testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect. Hughes v State, 4 S.W.3d 1 (June 16, 1999)

balancing test (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• Court of appeals erred in holding evid of certain act was introduced solely for character conformity purposes and in failing to consider that the evidence had probative value under 38.36(a) CCP to explain the nature of the relationship between def and murder victim at the time of the offense; as a result, court of appeals' Rule 403 analysis was flawed. Garcia v State (June 28, 2006, PD-1633-04)

• No merit to contention that the trial court failed to engage in a Rule 403 balancing test, where the record did not show that the trial court failed to conduct such a balancing test. The trial court’s discussion of the issue at the pretrial hearing indicates that the trial court had conducted a balancing test and determined that the evidence would be admissible if the presentation of the evidence did not deviate materially from what had occurred at def’s previous trial. At trial, in the hearing outside the jury’s presence, the trial court overruled def’s objection but did not expressly rule upon def’s request for a balancing test. Def did not ask the trial court to conduct a balancing test on the record, and def cannot exclude the possibility that the trial court conducted the balancing test in his mind. Moreover, the extraneous offense evidence was so clearly admissible that court could not perceive reversible error stemming from any failure to engage in a balancing test. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

• Rule 404 was promulgated as a specific balancing application of Rule 403's more general balancing test due to the inherent prejudice associated with admitting character evidence. Hence, Rule 404 does incorporate, at least to some extent, Rule 403's concept of prejudice. The plain language of Rule 403, however, states all “relevant evidence” is subject to its general balancing determination. There is no exception for evidence relevant to a defensive theory. Consequently, while evidence may be admissible under Rule 404 the trial court may nevertheless exclude the same evidence if it determines, within its discretion, that the probative value of such evidence is substantially outweighed by its unfair prejudice. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• In reviewing trial court’s balancing test determination, appeals court is to reverse the trial court’s judgment rarely and only after a clear abuse of discretion. The reviewing court, however, cannot simply conclude "the trial judge did in fact conduct the required balancing and did not rule arbitrarily or capriciously.” The trial court's ruling must be measured against the relevant criteria by which a Rule 403 decision is made. In other words, the reviewing court must look at the proponent’s need for the evidence in addition to determining the relevance of the evidence. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value include:

  (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

  (2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";

  (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;

  (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

  Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• Court of appeals failed to properly review trial court ruling that evid offered by def should be excluded under Rule 403, where it failed to discuss the “unfair prejudice” that admission of the evid would have caused the state, and failed to address how this “unfair prejudice” caused the evid’s probative value to be substantially outweighed. Such a discussion was particularly necessary in instant case, in light of the prejudice concerns raised by the evid and because it was the only evid def offered to show her state of mind (that she reasonably believed the victim intended to carry out his threats of violence). Cause remanded for court of appeals to properly address issue. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• A discussion of evid’s prejudice is necessary because Rule 403 creates a presumption of admissibility of all relevant evidence and authorizes a trial judge to exclude such evidence only when there is a “clear disparity between the degree of prejudice of the offered evidence and its probative value.” Evid will be considered “unfairly prejudicial” when it has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

not error to admit (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder it was not error to admit oral statements def made to treating personnel at hospital where he was taken after arrest, over claim admission violated rule 403. Def's statements "Yeah, I shot that faggot cop," and "I killed that mother fucker" were probative of def's intent and whether he knew victim was a police officer when he killed him; probative value was not substantially outweighed by danger of unfair prejudice. Escamilla v State (June 30, 2004, No. 74,494)

• 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)

• 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 it was not error to admit victim impact testimony* about the effect of victim’s death on his father and grandmother: No merit to contention that all victim impact testimony is inadmissible as a matter of law. Admission of testimony in instant case did not violate Rule 403. Jackson v State, 992 S.W.2d 469 (April 28, 1999)

• It was not abuse of discretion to overrule Rule 403 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. Probative value of the length of the def’s prior sentences was not substantially outweighed by the danger of unfair prejudice. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

• Admission of victim impact evid, in form of photos of victim's family, during punishment stage of capital case was not abuse of discretion under rule 403, where both the probative value and the potential to impress jury in some irrational but indelible way were low; time needed to present the evid was short; and state had some need for it because victim's family members did not testify. Solomon v State (June 20, 2001, No. 73,459)

not error to admit: extraneous offense & bad acts (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for evading arrest or detention in a motor vehicle, where state offered evid of def's parole status and handgun found in vehicle, it was not abuse of discretion to overrule rule 403 objection to that evid. Trial court was within its discretion to hold that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, where (1) the jury was not informed of the crime for which def was on parole, (2) the strength or weakness of the handgun's connection to def reflected equally on the issues of probative value and prejudice, and (3) there was reason to believe that the State had a significant need for the evidence to show motive where identity was only issue in the case and def had introduced positive testimony controverting issue of identity. Powell v State (April 5, 2006, PD-0051-05)

• In pros for intoxication manslaughter and manslaughter, it was not abuse of discretion to admit evid that def had cocaine metabolite in his body an hour and a half after offense; it was error for appeals court to rule evid was inadmissible under Rule 403. All four factors weighed in favor of admissibility: Indictment included allegation that def's recklessness was caused "by consumption of a controlled substance," and evid of metabolite was strong evid def had consumed cocaine; it was not unfairly prejudicial because it pertained to allegation in indictment; though presentation of this evid consumed one-fifth of evid presented to jury, it did not detract jury from charged offense because it was proof of charged offense; state had no other evid to establish def's consumption of controlled substance caused him to be reckless. Manning v State (September 10, 2003, No. 1287-02)

not error to admit: extraneous offense & bad acts in sex offenses (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for aggravated sexual assault of a child, it was not abuse of discretion to allow state to present testimony of def's niece about extraneous sexual assault by him against her as a child. Defensive theories were essentially that def was never alone with victim, and therefore lacked an opportunity to abuse her, or alternatively, that it would have been impossible for him to abuse her in a room full of people. Testimony of def's niece was relevant to rebut those theories. It was not error under rule 403, where trial court could reasonably have concluded that state had a great need for rebuttal evidence to counteract the small parade of defense witnesses who testified, in essence, that def was not the type to abuse children and did not and could not have done so on alleged two occasions. One little girl (victim) said the events did occur; she was pitted against six defense witnesses whose testimony asserted or implied the events did not occur and that the motive for victim's testimony was money from a civil lawsuit. Wheeler v State (January 30, 2002, No. 815-99)

not error to admit: extraneous offense & bad acts homicide cases (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder it was not abuse of discretion to admit evid of extraneous offense where def conceded that he killed the two victims named in the indictment but disputed that he committed the murders in the same criminal transaction (19.03(a)(7)(A)) or during the same scheme or course of conduct (19.03(a)(7)(B)). In presenting evidence about the extraneous offense (assault/attempted murder), state was able to present to jury evidence that made the existence of this fact more probable by revealing def's common "anti-truck driver" motive or a common scheme behind the shootings. Also, record showed that early in state's case-in-chief, prosecutor read to the jury a letter* def had written and sent to police detective in which def made admission that, along with the minimal evidence of the facts and circumstances of the extraneous assault, made the fact that the murders alleged in indictment were committed during the same transaction or scheme or course of conduct more likely. Hence, the evidence had relevance apart from character conformity, and the judge acted within his discretion in allowing it. Feldman v State (November 21, 2001, No. 73,654)

• In pros for capital murder it was not error to admit evid of extraneous offense of another murder by co-def in instant case in which def participated, where def's intent in instant case was hotly contested and def's participation in extraneous murder four months earlier served to rebut def's argument that he lacked requisite intent to promote co-def in instant murders. Also, that evid was not so prejudicial that jury would have been unable to limit its consideration of it to its proper purpose. Sorto v State (October 5, 2005, No. AP-74,836)

• 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 it was not abuse of discretion to admit evid of extraneous offense where def conceded that he killed the two victims named in the indictment but disputed that he committed the murders in the same criminal transaction (19.03(a)(7)(A)) or during the same scheme or course of conduct (19.03(a)(7)(B)). In presenting evidence about the extraneous offense (assault/attempted murder), state was able to present to jury evidence that made the existence of this fact more probable by revealing def's common "anti-truck driver" motive or a common scheme behind the shootings. Also, record showed that early in state's case-in-chief, prosecutor read to the jury a letter* def had written and sent to police detective in which def made admission that, along with the minimal evidence of the facts and circumstances of the extraneous assault, made the fact that the murders alleged in indictment were committed during the same transaction or scheme or course of conduct more likely. Hence, the evidence had relevance apart from character conformity, and the judge acted within his discretion in allowing it. Feldman v State (February 20, 2002, No. 73,654)

• In pros for capital murder, it was not error to admit evid of def's affiliation with the Mexican Mafia, over rule 403 objection. The evidence was used to show a motive for an allegedly gang-related crime. Trial court did not err in finding the evid did not substantially outweigh the relevant purpose of showing motive for the robbery and murder. Vasquez v State (February 6, 2002, No. 73,729)

• In pros for capital murder it was not error to admit evid of extraneous offenses committed against two others on night of offense on trial, where the extraneous offenses were highly probative because they placed the primary offense in context of the scheme carried out that night and because they tended to prove def's identity as the perpetrator. No merit to contention that state did not need the extraneous offenses because it had so much other evidence identifying him as the perpetrator. Although state's other evidence was strong (state had DNA evidence, fingerprints, def's written confession admitting guilt, and an oral confession that led to the discovery of the body), def challenged the probative value of much of that evidence. Despite the fact that state had this other evidence, the extraneous offense evidence was not unfairly prejudicial; it was very probative and added a significant dimension to the evidence not otherwise before the jury - eyewitness testimony inferentially linking def to the crime. Johnson v State (January 30, 2002, No. 73,765)

• In pros for capital murder of a child under six years of age, it was not abuse of discretion to admit evid of sexual assault of the child that accompanied the murder, over Rule 403 objection. The evidence presented by the prosecution to show def in fact committed the offense of sexual assault was strong: def confessed to the sexual assault of the victim, and the medical evidence supported def's statement. Additionally, def did not dispute this fact on appeal. On the other hand, court noted the repulsion and horror of the general public toward offenses of this nature which could potentially affect the jury in an emotional way. Also, a significant amount of time was devoted to this subject at trial. This evidence, however, was important to the prosecutor's contention that def intentionally committed the murder on the day of the sexual assault. Also, the two crimes were so intertwined, the evidence of one was necessarily probative of the other. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• In pros for capital murder based on gang-related drive-by-shooting, it was not error to admit over Rule 403 and 404(b) objections, testimony that, earlier on the night of the offense, def along with some other members of his gang got involved in an altercation with X, allegedly a relative of a rival gang member, and that def threatened X with a gun. State’s theory of the offense was that def opened fire into the group gathered in front of a home in revenge for the murder of a fellow gang member. In the context of the entire record, the evid was not more prejudicial than probative. The elements of the testimony which might be considered prejudicial to def were facts established elsewhere in the record. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

• 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 photo (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder of X and Y it was not error to admit, over rule 403 objection, crime scene photos of the three children of X and Y who died from smoke inhalation caused by fire def set during commission of charged murders. Prible v State (January 26, 2005, No. AP-74,487)

• It was not abuse of discretion to admit photos of weapons made by prison inmates, over objection any probative value was outweighed by danger of unfair prejudice, where def had presented testimony about prison classification system and controls to maintain security and safety within prison system and state presented witness who testified about violence within prison system and described weapons handmade by inmates, and photos were offered in connection with that testimony. Evid regarding weapons made by prison inmates was at least marginally relevant to testimony concerning inmate violence within various classifications of prison society and court found nothing about photos that rendered their probative value substantially outweighed by their unfair prejudicial effect. Threadgill v State (October 13, 2004, No. AP-74,458)

not error to admit photo of murder victim (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder it was not error to admit photos of murder victim over objection under rule 403 where they were probative of the crime scene and the injuries received by the victim, were necessary for the state in developing its case, and, because they were not overly gruesome, they did not pose the potential of impressing the jury in some irrational way. Shuffield v State (February 15, 2006, No. AP-74,574)

• In pros for capital murder of multiple victims, it was not error to admit photos of their charred remains, where their bodies were burned by def and co-defs after the murders. Paredes v State (January 14, 2004, No. 74,293)

• In pros for capital murder, it was not error to admit six photos of victim taken at crime scene and seven photos of victim taken during autopsy, over rule 403 objection. They were plainly probative of the manner of the victim’s death, and they were not particularly horrible. They showed no more than the gruesomeness of the crime scene and the nature of the victim’s injuries. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

• It pros for capital murder it was not error to overrule Rule 403 objection to photos showing: a closeup of the victim’s face with brain matter extruded through the large wound on the side of the head, a closeup of torn skin around the bullet wound to the head, a closeup of the exit wound in the back of the head, an overview of the rear of the victim’s body with exit and reentry wounds clearly visible, a closeup of the reentry wound on the back of the victim’s shoulder, a closeup of the victim’s duct-taped hands from underneath, and two closeups of the victim’s bound hands from the side. The photographs were in color and accompanied the testimony of the pathologist. No merit to contention that the photos are inflammatory. They are gruesome in that they depict disagreeable realities, but they depict nothing more than the reality of the brutal crime committed. And it is precisely because they depict the reality of this offense that they are powerful visual evidence, probative of various aspects of the State's case. Chamberlain v State, 998 S.W.2d 230 (June 16, 1999)

• On Rule 403 objection to admission of photos, no merit to contention that visual evidence accompanying oral testimony is cumulative of the testimony or that it is of insignificant probative value. Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions. Chamberlain v State, 998 S.W.2d 230 (June 16, 1999)

not error to admit autopsy photo (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• It was not error to admit nine or ten autopsy photos in pros for capital murder over rule 403 objection, where they helped explain medical examiner's testimony describing victim's various wounds for which def was responsible. Escamilla v State (June 30, 2004, No. 74,494)

• In pros for capital murder it was not abuse of discretion to overrule objection to 13 autopsy photos used by medical examiner to help explain his testimony about c/w's numerous gunshot wounds. Newbury v State (April 21, 2004, No. 74,308)

• It was not abuse of discretion to admit autopsy photos at guilt stage of capital case where contested issue was whether state proved kidnapping, and medical examiner used photos to explain why evid showed various injuries were inflicted while victim was still alive, and what might have caused various injuries, having a direct bearing on question of where victim was killed; photos also helped state prove intentional killing. Although some of photos reflected alterations of victim's body or organs due to autopsy procedures, that was fully explained to jury as necessary to a thorough examination of the injuries. Photos served as an aid to medical examiner's explanation of theories relevant to state's case; probative value was not substantially outweighed by any prejudicial effect. Rayford v State (November 19, 2003, No. 73,991)

• It was not abuse of discretion to admit autopsy photos at punishment stage of capital case, from autopsy in prior murder by def, where def's expert witness testified she had viewed the photos in reaching her conclusion that def would not be a future danger, photos were not more gruesome than the murder committed, and effects of any emergency room intervention was explained. Was not abuse of discretion to find photos were relevant to issue of def's future dangerousness, were proper rebuttal evid, and probative value was not substantially outweighed by any prejudicial effect. Rayford v State (November 19, 2003, No. 73,991)

• It was not error to admit autopsy photos over claim they were inflammatory and their prejudicial value far outweighed their probative value. Three showed victim's head and torso from three different angles, showing entry and exit wounds, relevant to way in which victim was killed; one showed skin pulled back around a grazing gunshot wound to the head, showing path of bullet as it passed through victim's face. Hayes v State (September 11, 2002, No. 73,830)

• It was not error to admit color photographs of murder victim's larynx, after it had been removed from victim's throat, over Rule 403 objection that they were unfairly prejudicial because they depicted "massive mutilation caused by the surgery in performing an autopsy." They depicted bruising on the larynx that was not visible externally, so they were highly relevant to the manner of death, manual strangulation of the victim. Given the relevance of the photographs, their probative value was not substantially outweighed by the danger of unfair prejudice. "Mutilation" cases do not apply to photographs depicting organs that have been removed. Ripkowski v State (November 7, 2001, No. 73,590)

• It was not abuse of discretion to overrule rule 403 objection to admission of photographic slides of victim's internal organs after their removal from victim's body during autopsy, showing injuries to those organs. There was no danger that the jury would attribute the removal of the organs to def, so the fact that the organs were removed from the victim's body in the photos shown to the jury was not, by itself, determinative of whether the exhibits should have been admitted. The photos were highly probative: def claimed that any injury caused by his actions was the result of his pushing the victim down, once, in the bathtub, and the slides were used to show that internal injuries reflected a very different situation, one in which the victim was beaten repeatedly, with extreme force. The State relied upon evidence of the victim's severe internal injuries to prove that def acted with the intent to kill the victim. Also, the State's pathologist testified that the slides were necessary to adequately portray the extent of the victim's injuries to the jury. On issue of their tendency to encourage resolution of material issues on an inappropriate emotional basis: There were four slides in question, all in color, all close-ups of organs, and all projected for viewing by the jury; they were graphic, in that they showed internal organs that had been removed from the victim's body; the victim's body did not appear in any of the shots; all of the organs had been removed and placed on a separate tray for the taking of the photograph; this tended to lessen the gruesome nature of the photographs; although the victim's body was obviously altered to allow the coroner to remove the organs, there was no mutilation to the body shown in the slides at issue; the only damage to the organs pictured was damage done by def; while the slides might have encouraged the jurors to consider the fact that the victim's body had to endure an autopsy, that was already clear based on other slides admitted without objection. Salazar v State (January 17, 2001, No. 73,451)

• In pros for capital murder it was not abuse of discretion to admit two pictures of the victim's anus over Rule 403 objection. They depicted a portion of the deceased's body at the autopsy, were color, 4" by 6" in size, showed some blood at the opening of the child's anus, and were used at trial to show the wound and some bruising caused by the assault. The pictures are not particularly offensive, were not enhanced in any way, and portrayed no more than the gruesomeness of the injuries inflicted. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

not error to admit video (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• It was not abuse of discretion to admit videotape of def's interview by media over Rule 403 objection. The videotape's probative value was that it allowed the jury to see def's behavior and hear his rendition of the facts of the offense firsthand. These are also the factors which make the evidence prejudicial. The videotape simply reflected the reality of the crime committed and def's lack of remorse. In short, the prejudicial effect of this evidence comes from nothing more than what def himself has done. He cannot successfully say, "You must not be outraged by my outrageous behavior." Hall v State (January 16, 2002, No. 73,787)

• It was not error to admit videotape of recovery of murder victim's body over Rule 403 objection that it was cumulative of still photos and def's statements and that it unfairly prejudiced him through dramatization, close-ups of a decomposing body, and lingering camera angles. The videotape simply reflected the gruesomeness of the crime Ripkowski v State (November 7, 2001, No. 73,590)

• In pros for capital murder, it was not error to admit, over Rule 403 objection, a silent, six-minute videotape of the crime scene, which offered a panoramic view of the crime scene, showing the position of the victim’s body and the general disarray of the home. No merit to contention that it was irrelevant and cumulative of the still photographs admitted into evidence. The videotape, like the still photographs, was plainly probative of the manner of the victim’s death. Furthermore, although the videotape was partially cumulative of the still photographs, the trial court could have reasonably concluded that the probative value of the videotape was not substantially outweighed by its tendency to prolong the trial. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

not error to exclude (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder it was not error to exclude photos of crime scenes of prior murders by def, which def attempted to introduce in support of his insanity defense. Although relevant on insanity issue, trial court could have properly excluded photos under rule 403 since they could have led to confusion regarding difference between def being "crazy" and issue of legal sanity under 8.01(a). Also, 8.01(b) specifically states that abnormality manifested by repeated criminal conduct, such as the multiple murders depicted in the photos, is not to be considered a mental disease or defect that negates the responsibility of def for the charged offense. Resendez-Ramirez v State (May 21, 2003, No. 73,849)

• In pros for capital murder it was not error to exclude videotape showing administrative segregation facilities of a Texas prison unit. Even if evid was minimally relevant on future dangerousness issue, it was not abuse of discretion to exclude it under rule 403. It was reasonable for the trial court to conclude that the risks of confusing the jury substantially outweighed any probative value the video might have. Sells v State (March 12, 2003, No. 73,993)

• Def was not denied constitutional right to present a defense when trial court excluded evid offered by def that another individual may have been involved in offense on trial, where the proffered evid was excluded under rule 403 and def did not meet his burden to show that excluded evid regarding alleged alternative perpetrator was sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged alternative perpetrator. Even assuming excluded evid had some marginal relevance, its probative value was slight because of its highly speculative nature, and it presented a great threat of "confusion of the issues." It also presented a threat of "unfair prejudice," as it would invite the jury to blame an absent, unrepresented, incompetent person for an arson when there was not a scintilla of evidence that he was actually involved. Def failed to show how trial judge's ruling was erroneous, much less so clearly erroneous that it violated his constitutional rights. Wiley v State (March 27, 2002, No. 1778-00)

• It was not error to exclude evid about murder victim, over contention state opened door by testimony that murder victim took care of his family members. Such testimony was not evid that he was of a peaceable character. Even if it did have some small tendency to falsely confer an impression of peaceful character, it was within trial court's discretion to exclude offered evid under rule 403. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• Exclusion of testimony did not violate def's due process right to present a defense, where def contended the testimony of four prospective witnesses was relevant and admissible for purposes of the jury’s evaluation of both the credibility of the investigating officers who took def's confessions and, ultimately, the voluntariness of the confessions. Def never suggested the confessions were false or otherwise unreliable; and the facts contained in his confessions were consistent with other evidence presented in the case. Even assuming the testimony had impeachment value and was relevant in that limited respect, given its limited relevance in the scope of instant case, it could have been excluded under Rule 403, on conclusion that it would be a greater source of confusion than insight to the jury, and consequently have little probative value. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

• It was not error to refuse to allow def to cross examine state's witness with "have you heard" questions about offenses committed by murder victim, over contention state had opened the door in witness' testimony* on direct examination showing victim's good character. Even though direct examination testimony was character evid, it was not abuse of discretion to exclude the particular questions def wanted to ask, where state’s questions were solely related to victim’s character as demonstrated by his conduct at the store where murder occurred, while def’s questions sought to elicit evidence regarding his character in general. Def did not show how victim’s criminal history or character were relevant to any issue in the case. To admit evidence regarding victim’s generally unlawful conduct might reasonably have been viewed as presenting a danger of confusing the jury, which outweighed the questionably probative rebuttal value such evidence may have had. Fuentes v State, 991 S.W.2d 267 (April 28, 1999)

error to admit (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• It was error to overrule Rule 403 objection and admit seventeen-minute video montage of photos depicting the murder victim's life, set to music from the movie Titanic, as victim-character evidence. Videotape's probative value was not substantially outweighed by unfair prejudice. Cause remanded for harm analysis. Salazar v State (November 27, 2002, No. 2180-01)

• In pros for felony DWI, admission of evid of two prior convs alleged for felony jurisdictional purposes was unfairly prejudicial under Rule 403 where def agreed to stipulate to their existence. The evid was not relevant to any contested issue in the case. Without a stipulation the evid would be relevant to show existence of those prior convs, but the stipulation would have diminished the probative value of the prior convs because the same info would have been admitted in an alternate form. Def's offer to stipulate removed from contention the existence of the prior convs. The risk of unfair prejudice from the evid was great because the judgments contained info that was not relevant in the guilt stage of the trial: Each judgment contained a notation that it was a DWI-third offense, and the judgments contained the sentences that were imposed in each case. Therefore, the jury could have gleaned, during the guilt stage, that the instant DWI charge was def's fifth alcohol-related offense and that he had not served his full term for his last prior conv. That kind of evid is prejudicial and possesses no probative value. The admission of evid of prior convs was error, even though they were jurisdictional elements of the offense, because the danger of unfair prejudice from introduction of the evid substantially outweighed its probative value. Robles v State (May 8, 2002, No. 1305-00)

• It was abuse of discretion under Rule 403 for trial court to permit state to present evidence of witness' prior inconsistent statements to impeach her testimony, where state knew before calling witness how she would testify and was attempting under Rule 607 to use her prior inconsistent statements under the guise of impeachment for the primary purpose of placing before the jury evidence which was not otherwise admissible. State had little, if any, legitimate purpose in admitting the prior inconsistent statements to impeach her testimony. Due to the highly prejudicial nature of this evidence, court concluded any probative value it may have had was substantially outweighed by its prejudicial effect. Cause remanded to court of appeals for a harm analysis. Hughes v State, 4 S.W.3d 1 (June 16, 1999)

error to admit extraneous offense (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for felony DWI under 49.09(b), it was error to allow state, over def's objection, to read each of the six alleged prior DWI convictions at the beginning of trial and to prove the six convictions during its case-in-chief, where def stipulated to truth of the allegations. Cause remanded for a harm analysis. Tamez v State, 11 S.W.3d 198 (Jan. 5, 2000)

• It was abuse of discretion to allow state, under Rule 403 balancing test, to impeach def with evid that he was on felony community supervision and could be sent to prison if he were convicted of DWI. Moreno v State, 22 S.W.3d 482 (Oct. 27, 1999)

error to admit photo (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• It was error to overrule rule 403 objection and admit at punishment stage photo of murder victim's unborn child removed from her during autopsy. (1) The photo had almost no probative value: no witness during the punishment phase of the trial sponsored the photo when it was admitted, and no witness properly authenticated it during the entire trial; it added nothing helpful to the already-admitted testimony that the victim was pregnant, that def knew she was pregnant, and that the fetus died as a result of the mother's death. (2) The ability of the photo to impress the jury in some irrational yet indelible way, also weighed strongly in favor of exclusion. (3) The state did not need the photo for any relevant purpose. (4) Only factor weighing in favor of admission was the short time taken to develop the evid. Erazo v State (June 16, 2004, No. 2206-02)

• It was abuse of discretion to admit, at punishment stage of capital case, over rule 403 objection, an eight-inch-by-ten-inch color photograph of a victim of the offense, in her casket, which also showed victim's unborn child, who died when victim was killed. The fetus had been removed from victim after her death and wrapped in what appeared to be a blanket. Court's Rule 403 analysis: First factor: court assumed for argument that probative value weighed in favor of the state. Second factor: Facts depicted by photo were not relevant to jury's determination of the special issues. The unborn child in the photo appeared tiny, innocent, and vulnerable. Society's natural inclination is to protect the innocent and the vulnerable. The contents of photo had an emotional impact that suggests that the jury's decision be made on an emotional basis and not on the basis of the other relevant evidence introduced at trial. Third factor (time needed to develop the evidence) weighed in favor of state: It did not take much time to lay the foundation for admission of the photograph. Fourth factor (proponent's need for the evidence): The State had other photographs, admitted during the guilt-innocence phase, that would have served the proper purposes of this photograph, showing the consequences of def's conduct and his violent nature in killing. Def did not challenge that victim was killed or that the fetus was also killed. The jury, by its verdict of guilt, had already found beyond a reasonable doubt that the victim was dead. The photograph was relevant to show those facts, but those facts were not in dispute during the punishment phase. There was no indication the state had other pictures of the fetus; but the death of the fetus was not a fact of consequence related to an issue in dispute. Conclusion: The second and fourth factors weigh heavily in favor of the def. Although the third and possibly the first factors weigh in favor of state, these factors are not enough to overcome the prejudicial qualities of the photograph and state's limited need for the photo in the context of the contested issues. The photo was substantially more prejudicial than probative and that the trial court abused its discretion by admitting the photograph. No merit to state's contention error was harmless. Reese v State (December 6, 2000, No. 73,281)

error to exclude (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for DWI it was abuse of discretion for trial court to suppress intoxilyzer test results under Rule 403. (1) Def's intoxilyzer results indicated he had consumed alcohol. As a result, they tend to make it more probable that he was intoxicated at the time of driving under both the per se and impairment definitions of intoxication. (2) The intoxilyzer results were undoubtedly prejudicial to def, but they were not unfairly prejudicial because the evidence related directly to the charged offense. This contested evidence did not have a great potential to impress the jury in an irrational way. (3) Because the intoxilyzer results related directly to the charged offense, a jury could not have been distracted away from the charged offense regardless of the required time to present the results. (4) In light of other evidence probative of def's intoxication, the state did not have a great need for the test results. The sum of the factors weighed in favor of admissibility; the trial court abused its discretion in suppressing the test results on Rule 403 grounds. State v Mechler (January 12, 2005, No. PD-0075-04)

error cured or harmless (Rule 403. Exclusion of Relevant Evidence on Special Grounds)

• In pros for capital murder of X and Y it was abuse of discretion to admit, over rule 403 objection, autopsy photos of the three children of X and Y who died from smoke inhalation caused by fire def set during commission of charged murders, but error was harmless under rule 44.2(b) where (1) at the time of their admission, the jury had already seen and heard about the disturbing circumstances of the children's deaths through properly admitted photographs and testimony; (2) photos were not particularly gruesome or emotionally charged; they were clinical and depicted disembodied organs and tissue; (3) they pale in comparison to the properly admitted post-mortem photographs of X and Y whose deaths def was charged with intentionally causing; (4) the state, while emphasizing def's admission to jailhouse informant that he had "taken out" an entire family, did not dwell upon or emphasize the improperly admitted post-autopsy photographs of the children; (5) the photos had nothing to do with the disputed issue at trial of whether def murdered the children's parents as charged. Thus, the photos did not affect the determination of def's guilt in the case and would not emotionally sway a factfinder until and unless he had found that def was the person who had caused the parents' deaths. Prible v State (January 26, 2005, No. AP-74,487)

• 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)