Erazo v. State

Decision Date16 June 2004
Docket NumberNo. 2206-02.,2206-02.
Citation144 S.W.3d 487
PartiesAlex ERAZO, Appellant, v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

Douglas M. Durham, Houston, for Appellant.

Alan Curry, Asst. DA, Houston, Matthew Paul, State's Attorney, Austin.

OPINION

PRICE, J., delivered the opinion of the Court, in which MEYERS, WOMACK, JOHNSON, HOLCOMB and COCHRAN, JJ., joined.

A picture is worth a thousand words. Yet those words, in the context of a criminal trial, must be the right words. Otherwise, the picture from whence the words flow is inadmissible. A photograph is inadmissible under Rule of Evidence 403 if it is substantially more prejudicial than probative. In this case, the trial court admitted a photograph of the victim's unborn child.1 We hold that, under the circumstances of this case, the photograph was substantially more prejudicial than probative. We reverse the judgment of the Court of Appeals.

I. Facts and Procedural History

During the punishment phase of the appellant's murder trial, the State offered a 4-inch by 5-inch color photograph of the victim's unborn child that had been removed from the victim during the autopsy. The appellant objected that the photograph was inadmissible under Rules of Evidence 403 and 404. The trial court overruled the appellant's objection and admitted the photograph.

On direct appeal, the appellant complained that the photograph was inadmissible under Rule of Evidence 403 and our holding in Reese v. State.2 The Court of Appeals held that admitting the photograph was within the trial court's discretion. The Court of Appeals distinguished the photograph in Reese on the basis that the photograph in this case (1) was not from a funeral but was a standard autopsy photograph, (2) was one of sixty-two photographs admitted during the trial, (3) showed only the result of the appellant's actions, and (4) the prosecutor argued that the photograph showed that, contrary to the appellant's statement that he was the only one who suffered, others had suffered from his actions.3

We granted the appellant's petition for discretionary review, in which he argued that the Court of Appeals erred in concluding that this photograph was admissible under Rule 403 and our holding in Reese.4 A thorough review of the law regarding the admissibility of photographs and prejudicial evidence under Rule 403 is in order.

II. Law
A. Reese, Montgomery, and Narvaiz

In Reese, we used the factors found in Montgomery v. State,5 and Narvaiz v. State,6 to determine whether the photograph of an unborn child that had been removed from the mother's body and placed in the coffin beside her was more prejudicial than probative.7 In Montgomery, we held that a proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not limited to, the following 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; (4) the proponent's need for the evidence.8 In the context of the admission of photographs, we also consider the factors set out in Narvaiz. Those factors include the number of photographs, the size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.9

B. Martin

We often have said that photographs depicting matters described by admissible testimony are generally admissible. This statement when viewed in isolation is far too broad and provides no guidance to the bench and bar to determine which photographs may be admitted and which must be excluded. We first made this statement in Martin v. State.10 Martin was decided before the Texas Rules of Criminal Evidence were promulgated. In that case, while referring to the admission of crime-scene photographs, we said that "if a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible."11 For this proposition, we provided no analysis and cited four cases from other jurisdictions.12 The sentence that is rarely quoted along with the preceding sentence is: "We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury."13 The cases we cited for the proposition that, if a verbal testimony of a photograph is admissible then the photograph is admissible, include similar caveats.

In Hinton v. People,14 the defendant complained of the admission of a photograph of the murder victim that showed both the fatal stab wound and a surgical incision that was made to try to save the victim's life. The Colorado Supreme Court concluded that, "A photograph of a deceased homicide victim is admissible in a criminal trial, if it depicts anything which it is competent for a witness to describe in words."15 Because the statement is limited to "a photograph of a deceased homicide victim," the statement is more specific than the broad statement that we generally quote from Martin. In Hinton, the photograph was of the victim and showed the wound that the defendant had inflicted. As such, the photograph was helpful to allow the jury to visualize the injuries described in testimony.

In State v. DeZeler,16 the defendant complained of autopsy photographs that showed the fatal wounds to the victim. In that case, the Minnesota Supreme Court held that the photographs were relevant to material issues in the case.17 The rule the Court set out in that case is:

Photographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice.18

Once again, the Court's statement in DeZeler was more specific than the language we generally quote from Martin. There are several caveats to the general statement that photographs are generally admissible if a verbal description of the photograph is admissible.

The same is true of Vaca v. State19 and Pribyl v. State.20 In Vaca, the Nebraska Supreme Court held that a photograph in a manslaughter case that showed the location, nature, and extent of injuries was admissible.21 The Court said that "[a] photograph proved to be a true representation of the person, place, or thing which it purports to represent, is competent evidence of anything of which it is competent and relevant for a witness to give a verbal description."22 In the next paragraph, the Court said that, "[w]here a photograph illustrates or makes clear some controverted issue in the case, a proper foundation having otherwise been laid for its reception in evidence, it may properly be received, even though it may present a gruesome spectacle."23 In Pribyl, the Court approved of the admission of photographs of the victim in a vehicular manslaughter case. The Court cited the same language in Vaca to support admission of the photographs.24 Both Vaca and Pribyl contain language that limits the broad proposition that photographs are admissible if testimony describing the photograph is admissible.

C. Code of Criminal Procedure Article 37.07

Code of Criminal Procedure Article 37.07, Section 3(a)25 governs the admissibility of evidence during the punishment phase of a non-capital trial. We have said that because the jury's decision in a non-capital case does not involve a discrete finding, the relevance of evidence cannot be determined by a deductive process but rather is a function of policy.26 The policies that operate during the punishment phase of a non-capital trial include (1) giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant; (2) the rule of optional completeness; and (3) whether the appellant admits the truth during the sentencing phase.27 As a result, we have explained that relevance during the punishment phase of a non-capital trial is determined by what is helpful to the jury.28

D. A Uniform Policy

Although we have reviewed the admission of photographs in many cases, we have not tied our authorities together to form a policy that will clearly assist trial courts in determining what photographs are admissible during criminal trials. What we can glean from a thorough review of the relevant authorities is that a photograph must be relevant, thus, 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. Our case law is clear on this point: 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. With this in mind, we will apply this framework to the photograph in this case.

III. Application
A. Description of the Photograph

In Narvaiz, we held that we should consider the form, content, and context of the photograph when reviewing a trial court's decision to admit a photograph over the defendant's objection. The photograph in this case was a 4-inch by 6-inch color photograph29 of an unclothed fetus that is lying on its back on what appears to be a table. There is a small ruler that...

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