Erazo, Alex ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 2206-02

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ALEX ERAZO, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

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   Cochran, J., filed a concurring opinion in which Meyers and Holcomb, J.J., joined.

O P I N I O N

I join the majority opinion. I write separately only to emphasize that Rule 403 rulings are highly dependant upon the particular circumstances of the case and the specific context in which the evidence is offered. Rule 403 is a fail-safe mechanism that gives the trial judge some discretion in excluding relevant, otherwise admissible evidence, when one of the explicit counterfactors listed in the rule ("the danger of unfair prejudice, confusion of the issues, or misleading the jury") substantially outweighs the probative value of the proffered evidence. As an exclusionary principle, it should be applied rarely. ⁽¹⁾ Here, however, it should have been applied.

I think that this very same photograph might well be admissible in a different case. It might even have been admissible in this case under other circumstances. Here, however, the photograph simply picked itself up off of counsel's table and floated into evidence without the shepherding wings of a sponsoring witness. ⁽²⁾ Photographs cannot walk into evidence by themselves. They must be talked into evidence by a witness.

The probative value of a photograph that floats into evidence by itself is virtually nil. Looking at this exhibit in a vacuum tells us nothing about the defendant, the victim, the offense, or the context. It is simply a photograph of a live child or of a fetus with a portion of the umbilical cord attached. What, exactly, is the point? Only a witness could explain how this exhibit is probative to some aspect of the punishment phase of this trial.

I fully agree with the majority's discussion of the specific factors to consider and weigh in balancing probative value and prejudicial effect under Rule 403 and with its conclusion that, under these particular circumstances, the trial judge abused his discretion in admitting State's Exhibit 66.

Cochran, J.

Filed:

Publish

1. It goes without saying that I agree entirely with the statements contained in the law review article cited by the dissent.

2. Although the State did attempt to offer this exhibit through the medical examiner during the guilt-innocence stage of trial, the defense objected and the trial judge sustained that objection.