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Click here for the full text of this decision FACTS: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 Texas 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 the holding in Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000). 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. HOLDING:Reversed and remanded. In Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g), the court 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. In the context of the admission of photographs, the court also considers the factors set out in Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992). 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. The relevance value of a photograph is to show appearance. The appearance of the dead fetus in this case was irrelevant. The image appeals to the jury’s emotional side and encourages the jurors to make a decision on an emotional basis. This factor weighs strongly in favor of exclusion, the court finds. Because little time was taken to admit the photograph, this factor weighs in favor of admissibility. The state did not need this photograph for any relevant purpose. OPINION: Price, J., delivered the opinion of the Court, in which Meyers, Womack, Johnson, Holcomb and Cochran, JJ., joined. Cochran, J., filed a concurring opinion, in which Meyers and Holcomb, JJ., joined. Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined. CONCURRENCE:Cochran, J.; Meyers and Holcomb, JJ., join. “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. Photographs cannot walk into evidence by themselves. They must be talked into evidence by a witness.” (footnote omitted). DISSENT:Hervey, J.; Keller, P.J., and Keasler, JJ., join. “Our case-law actually refers to an “undue tendency” to suggest decision on an “improper basis” such as an “emotional one.” See Rogers, 991 S.W.2d at 266 (“unfair prejudice” refers to “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”). In this case, the powerful and compelling effects of the photograph giving rise to the court’s concern that the photograph improperly appealed to the jury’s emotions emanates “from nothing more than what [appellant] has himself done.” See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Cr.App. 1995). . . . “I would decide that the trial court did not abuse its discretion to admit at the punishment phase of appellant’s non-capital murder trial one autopsy photograph of the murdered victim’s twenty-eight week old unborn child.”

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