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Criminal Law No. 73-849, 5/21/2003. Click here for the full text of this decision FACTS: On May 18, 2000, the appellant was convicted of capital murder. The trial judge sentenced the appellant to death. HOLDING: Affirmed. The appellant claims he was denied a fair trial when the trial court refused to admit crime scene photographs relating to extraneous offenses committed by the appellant. In his second point of error, the appellant argues the trial court abused its discretion in excluding the photographs because the probative value of the photographs was not outweighed by “any valid justification.” At the guilt phase of trial, Dr. Bruce Cohen testified for the defense that he believed the appellant was insane at the time he committed the capital murder in this case. He testified that he relied on various interviews, letters, records and reports, as well as crime scene photographs of six other murders committed by appellant in forming his opinion. On direct examination, Cohen was shown the crime-scene photographs and was asked to describe to the jury what the photographs depicted. The defense then offered the photographs into evidence. The state objected pursuant to Texas Rule of Evidence 705(d) that the photographs were not relevant simply because Cohen relied upon them to form his opinion. The state argued that the photographs were not relevant because the question in this case was whether appellant was insane at the time he committed Dr. Claudia Benton’s murder, not the murders depicted in the photographs. The trial court sustained the state’s objection. The trial court ruled that the crime scene photos were not relevant because they did not depict the crime scene where Benton was killed, thus they were inadmissible. Texas Rule of Evidence 402. The court then conducted the balancing test for inadmissible evidence under Rule 705(d) and determined that the photographs could have been used for improper purposes. The court also gave an alternative theory for excluding the photographs, even if they were relevant, stating: “But relevant evidence may still be excluded by the court under Rule 403. If, uhm, it’s, you know, cumulative, you know, needless delay, confusion of the issues, and basically it’s under that rule as well.” Under Rule 401, evidence is relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the case more or less probable than it would be without the evidence. The photographs in this case were relevant because they go to the issue of appellant’s sanity. Viewing multiple photographs of various crime scenes may make the jury more likely to find that no “normal” person could commit such gruesome acts, and thus find that appellant is mentally ill or “crazy.” However, as stated by the trial court, under Rule 403, 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. Evidence may confuse or mislead the jury if it distracts the jury from the main issues in the case or tends to focus the jury’s attention on facts tangential to the case before them. The photographs in question were likely to distract the jury from the facts of the crime charged and focus their attention on other crime scenes. While the photographs were relevant to the issue of appellant’s sanity, merely viewing the photographs would not necessarily prove that appellant was legally insane, therefore their probative value was limited. Additionally, viewing the other crime scenes may have led to confusion regarding the difference between appellant being “crazy” and the issue of legal insanity as defined in Texas Penal Code �8.01. While gruesome and shocking photographs depicting other crime scenes may convince the jury that appellant has committed acts unthinkable to most “normal” people, this does not mean that, at the time of the Benton offense, appellant did not know that his conduct was wrong as required under �8.01(a). Additionally, �8.01(b) specifically states that abnormality manifested by repeated criminal conduct, such as the multiple murders depicted in the photographs, is not to be considered a mental disease or defect that negates the responsibility of appellant for the charged offense. Because the danger that the photographs would confuse or mislead the jury outweighs their probative value, the trial court did not abuse its discretion in excluding these particular photographs. The trial court’s alternative theory for the exclusion of the photographs under Rule 403 was correct. OPINION: Meyers, J.; Price, Keasler, Hervey, Holcomb and Cochran, JJ., join. Keller, P.J., concurred in points of error one and two and otherwise joined the opinion of the court. DISSENT: Womack, J., filed a dissenting opinion, in which Johnson, J., joined. “No one suggests that the photographs of the six other homicides that the appellant committed were misleading or unreliable in any way. There is no serious question of their relevance to the issue of insanity; the Court and I do not disagree on that point. Why would the State not want the jury to have this reliable, relevant evidence to decide the issue of the appellant’s insanity? I fear that the Court’s opinion hints at the answer: The State did not want the jury to see these photographs because they would have been powerful evidence that the appellant was crazy. Proof of craziness was a necessary step in his effort to prove that he was insane and should be confined in a mental hospital rather than given the lethal injection that the State desired. I do not intimate any view as to his sanity, or suggest that the facts would require or even justify a finding of insanity. I do think that his evidence was admissible, that he should have a trial in which the jury sees it, and that the law requires that he does.”

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