Larry Jean Hart v. the State of Texas ( 2024 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0677-22
LARRY JEAN HART, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
KEEL, J., filed a dissenting opinion in which KELLER, P.J., and YEARY,
J., joined.
DISSENTING OPINION
I agree with and join Presiding Judge Keller’s and Judge Yeary’s dissenting
opinions.
I raise additional objections to the majority opinion for its distortions of unfair
prejudice and probative value and its garbled harm analysis.
I. Unfair Prejudice
Hart dissent—Page 2
Unfair prejudice means provoking sympathy or hostility “without regard to the
logical probative force of the evidence.” Gigliobianco v. State, 210 S.W.3d 637, 641
(Tex. Crim. App. 2006). It means luring the factfinder into convicting “on a ground
different from proof specific to the offense charged.” Gonzalez v. State, 544 S.W.3d 363,
373 (Tex. Crim. App. 2018). Or it means proving “some adverse fact not properly in
issue or [that tends] unfairly to excite emotions against the defendant.” Manning v. State,
114 S.W.3d 922, 927-28 (Tex. Crim. App. 2003) (quoting Montgomery v. State, 810
S.W.2d 372, 378 (Tex. Crim. App. 1990) (original op.)).
It means more than casting a negative light on the defendant. Inthalangsy v. State,
634 S.W.3d 749, 758 (Tex. Crim. App. 2021). It may mean arousing a sense of horror or
provoking an instinct to punish. U.S. v. Long, 92 F.4th 481, 488 (3rd Cir. 2024).
It generally means evidence of conduct that is more inflammatory than the charged
offense. U.S. v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006). For example, an extraneous
murder that was “no more heinous than the [charged murder] was not likely to create
such prejudice in the minds of the jury that it would have been unable to limit its
consideration of the evidence to its proper purpose.” Taylor v. State, 920 S.W.2d 319,
323 (Tex. Crim. App. 1996).
The disputed evidence here was not even evidence of a crime. As Appellant
testified, “It’s just rap, ma’am”—a longstanding, popular music style that has aged out of
its shock value and whose fictional nature—like that of most lyrics—is common
knowledge. This evidence was too innocuous to provoke a contemporary jury to (a)
Hart dissent—Page 3
convict regardless of the evidence of the crime, (b) disregard the logical probative force
of the disputed evidence, or (c) labor under unfairly excited emotions. See Montgomery,
810 S.W.2d at 390; Gonzalez, 544 S.W.3d at 373; Manning, 114 S.W.3d at 927. Nor
would it arouse a sense of horror or provoke an instinct to punish. Long, 94 F.4th at 488.
Compared with the brutal reality of the charged crime—an execution-style killing during
a midnight, home invasion—the evidence was not inflammatory. See Taylor, 920
S.W.2d at 323; Paulino, 445 F.3d at 223.
In an effort to justify its contrary conclusion, the majority departs from Rule 403,
asserting, for example, that the rule “excludes otherwise relevant evidence[.]” But it does
not exclude relevant evidence; it authorizes its exclusion—the trial court “may” exclude
it—only under certain circumstances. The rule presumes relevant evidence is admissible.
Santellan v. State, 939 S.W.2d 155, 159 (Tex. Crim. App. 1997). It may be excluded if
its probative value is “substantially” outweighed—a modifier omitted in the majority’s
rendition of the test. See Tex. Rule Crim. Evid. 403.
Applying its diluted rendition of Rule 403, the majority holds that Appellant’s
videos were inadmissible “because music can impact a jury in an emotional way.” This
is not a limiting principle because all relevant evidence has that potential. The majority
asserts that “any song that glorifies criminality . . . is inherently prejudicial”—a sweeping
assertion that abandons Rule 403’s case-by-case approach to balancing probative value
against substantial prejudice. The majority says that the videos might be seen “as proof
that Appellant engaged in criminal behavior”—but that made them probative, not unduly
Hart dissent—Page 4
prejudicial because they rebutted his naivete defense about criminal intent. If the
majority means to say that the videos might be seen as evidence of extraneous, uncharged
criminal behavior, then it still is distorting Rule 403 because “might be seen” does not
demonstrate that probative value is substantially outweighed by prejudicial effect. The
majority asserts that because Appellant was not well known, a “listener cannot
disassociate [his rap persona] ‘Block Da Foo Foo’ from the message.” But a fictional
persona embodies the creative message, so a listener should not be expected to separate
“Block Da Foo Foo” from his message. Maybe the majority means instead that a listener
could not distinguish a fictional persona from its obscure performer, an unsupported
assertion. Whatever it means, it abandons our usual approaches to prejudicial effect. See
Montgomery, 810 S.W.2d at 390; Gonzalez, 544 S.W.3d at 373; Manning, 114 S.W.3d at
927.
II. Probative Value
The majority maintains that the rap evidence was not probative because it did not
represent Appellant’s character or was not relevant to the charged offense—a new
requirement that abandons the “fact of consequence” standard.
Evidence is probative if it affects the likelihood of a “fact of consequence.”
Gonzalez, 544 S.W.3d at 372. Such facts may be evidentiary or elemental. Taylor, 920
S.W.2d at 321. A fact of consequence is one related to a contested issue. Reese v. State,
33 S.W.3d 238, 242 (Tex. Crim. App. 2000). And contested issues short of ultimate guilt
Hart dissent—Page 5
may be facts of consequence. E.g., Casey v. State, 215 S.W.3d 870, 882 (Tex. Crim.
App. 2007).
Here, the disputed evidence rebutted Appellant’s aw-shucks self-portrayal; in his
telling, he was too naïve to know and believe that his compatriot meant it when he said he
wanted to break into someone’s home. But such naivete would have been under assault
by his avid pursuit of the cynical, “gangsta” rap worldview. It doesn’t matter that the
lyrics were fiction because fiction instructs on real-world human nature and
motivations—that is its superpower. This evidence was probative of a disputed point
related to criminal intent—the most consequential fact in this trial, and the majority errs
to dismiss it.
III. Harm Analysis
The majority’s harm analysis cites the supposed exclusion of the testimony of the
psychiatrist who offered a mid-trial, impromptu opinion about Appellant’s competency.
The majority suggests that the supposed exclusion was error. It is mistaken for three
reasons.
First, the trial court did not exclude the psychiatrist's testimony. Its last word was
that it would “cross that bridge” later, a point it never reached as far as the record shows.
Second, the majority assumes that the psychiatrist’s testimony was admissible. On the
contrary, it likely was inadmissible as less-than-insanity, less-than-intent-negating,
diminished-capacity evidence. See Ruffin v. State, 270 S.W.3d 586, 596 (Tex. Crim.
App. 2008). Third, the majority warps the harm analysis by considering evidence the
Hart dissent—Page 6
jury never heard. It should instead consider what the jury did hear. E.g., Haley v. State,
173 S.W.3d 510, 519 (Tex. Crim. App. 2005). There is no ground for review about the
psychiatrist’s unadmitted testimony, and considering it scrambles the harm analysis.
IV. Conclusion
The majority opinion is flawed. It will cause headaches. I respectfully dissent.
Filed: May 8, 2024
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