Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision Error stemming from the erroneous admission of the videotape cannot be disregarded, but must be considered harmful. FACTS:Defendant was charged with capital murder, but convicted of the lesser offense of murder. During the punishment phase, the trial court admitted into evidence a 17-minute videotape consisting of a photo montage chronicling the life of the murder victim, underscored by emotional music. The jury assessed a 35-year sentence and fined him $10,000. The 13th Court of Appeals originally said the photo montage was admissible victim-impact evidence but the audio portion was not. The appellate court ruled that the error in admitting the audio portion was, however, harmless. The Court of Criminal Appeals reversed, ruling the 13th Court erred in concluding that the videotape’s probative value was not substantially outweighed by unfair prejudice. The high court remanded for application of a harm analysis under T.R.Evid. 44.2(b) to both the audio and visual portions of the videotape. HOLDING:Affirmed in part; vacated and remanded in part. The court notes that when conducting a 44.2(b) harm analysis, the appellate court should consider: 1. everything in the record, including any testimony or physical evidence; 2. the nature of the evidence supporting the verdict, the character of the alleged error; and 3. how it might be considered in connection with other evidence in the case. In the first instance, the record includes evidence that the victim was a drug dealer and a burglar, and the defendant was a 16-year-old special-ed student. The evidence shows the defendant and another boy were recruited by one of the victim’s associates to kill the victim, which they did by beating him with baseball bats and choking him. The state’s evidence showed how the victim’s family loved and missed the victim on the one hand, and how, on the other hand, the defendant was disruptive the few days he was present in school. The defendant’s evidence included six witnesses who said the defendant was basically a good kid, if not a bit lost. In the second instance, the court notes that it previously found the evidence was factually and legally sufficient. Considering the third factor, the court quotes at length the Court of Criminal Appeals, which said the videotape was “very prejudicial.” On direct appeal, the state conceded that the music was not relevant, and on remand, the state again concedes that the photo montage was “accompanied by highly emotional and moving background music.” The court concludes that the error in admitting the videotape cannot be disregarded and must be considered harmful. The court affirms the verdict, but remands for a new punishment proceeding. OPINION:Baird, J.; Hinojosa, Rodriguez and Baird, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.