Floyd Blackburn v. State

820 S.W.2d 824, 1991 Tex. App. LEXIS 1854, 1991 WL 132050
Court of Appeals of Texas·Decided June 13, 1991·No. 10-90-00135-CR·Published·Cited by 4 cases

Opinions

OPINION

VANCE, Justice.

Appellant was convicted of possession of amphetamine less than 28 grams and assessed 10 years probation and a $10,000 fine. See Tex.Health & Safety Code Ann. § 481.116 (Vernon 1991); Tex.Penal Code Ann. § 12.34 (Vernon Supp.1991). We must decide if a photograph seized at Appellant’s residence was properly admitted into evidence. Because the photograph was irrelevant and its admission into evidence harmed Appellant, we reverse the judgment.

During the execution of a search warrant at Appellant’s residence, a package of amphetamine powder, guns, ammunition, jewelry, two “coke spoons,” and “well over a hundred” photographs were seized. One photograph depicts a woman standing beside a daybed, on which rests a large mirror with a “rail” of a white powdery substance. The woman is holding a large cardboard tube to her nose, pointed toward the mirror. The sponsoring witness did not know (1) who the woman was, (2) when the picture was taken, (3) where the picture was taken, or (4) what the white powdery substance was. He could only say that the woman also appeared in another seized photograph that depicted Appellant, his wife, and another unknown male on another occasion. In fact, the witness thought that the scene depicted by the photograph was “a joke.” The photograph was admitted into evidence over Appellant’s objection that it was irrelevant and that its probative value was outweighed by its prejudicial effects.

Rule 402 provides in part: “Evidence which is not relevant is inadmissible.” Tex. R.Crim.Evid. 402. Rule 403 provides in part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Id. at 403.

[826]*826The State’s position is that the photograph is part of the res gestae of Appellant’s arrest and, as a condition surrounding his arrest, was properly admitted. Appellant argues that his possession of the controlled substance was undisputed, that “hundreds” of photographs were seized but only a few were offered into evidence, and that the State did not connect the woman or the activity depicted by the photograph to Appellant other than by another photograph showing them together. Thus, Appellant says that the photograph was irrelevant because it was not connected to the charges against him and that, if relevant, its probative value was substantially outweighed by the danger of unfair prejudice.

As a general rule, the state is entitled to show the circumstances surrounding the arrest of an accused, unless such evidence is inherently prejudicial and has no relevance to any issue in the case. Paz v. State, 749 S.W.2d 626, 629 (Tex.App.—Corpus Christi 1988, pet. ref’d). Whether evidence is relevant to any issue in the case lies within the sound discretion of the trial court. Id. In reviewing questions of this nature, we determine only whether the trial judge clearly abused his discretion in allowing the evidence to be admitted. See id.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R.CRim.Evid. 401. We cannot see how the person or activity depicted by the photograph tends to make any fact that is of consequence to the determination of the action more probable or less probable than it would be without the photograph. See id. We hold that the trial judge clearly abused his discretion in determining that the photograph was relevant and that it should not have been admitted into evidence. See id.

Even if the photograph were considered to be relevant, we believe that it should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice to Appellant. See Tex.R.Ceim.Evid. 403. The State did not prove when it was taken, where it was taken, the identity of the woman, or what the substance on the mirror was. It was characterized by the sponsoring witness as a “joke.” As proof of the existence of any fact that was of consequence to the determination of the action, it was totally unnecessary and its probative effect was negligible. See Jiminez v. State, 787 S.W.2d 516, 524 (Tex.App.—El Paso 1990, no pet.). In making this determination, we consider the fact that Appellant did not seriously contest his possession of the controlled substance, as evidenced by his pointing out the contraband to the searching officers and his defense at trial. When a defendant pleads not guilty to the offense and puts the state to the burden of proving all essential facts, his admission of any essential fact cannot be considered in the determination of relevancy of evidence under Rule 401; however, when a defendant admits the truth of a specific fact of consequence to the determination of the action, that admission can enter into the balancing of the probative value of relevant evidence as tending to establish that fact against its possible prejudicial effects. See Tex. R.Crim.Evid. 401, 403. We hold that even if the photograph were relevant, the trial judge should have excluded it under Rule 403. See id.

The dissent argues that Appellant failed to preserve any error resulting from the admission of the photograph, exhibit 24, into evidence because his objection was too general. At the time the photograph was offered, the following exchange took place:

[Prosecutor]: Your honor, we would offer State’s 23, 24, and 25 into evidence. 22, 23, 24, and 25.
[Appellant’s Attorney]: We object to 22, 23, 24, and 25 because they are irrelevant. And their probative value is outweighed by any prejudicial effect they may have. It’s 403 and 404, I believe.
In addition to that, as to No. 24, we will object because it’s — other than the fact that it was shown apparently to have been found in the residence, there is no connection with the defendant.
[827]*827In addition to that, we object that there is not a proper predicate laid for any of the photographs identified as 22, 23, 24, and 25.
[Prosecutor]: Your honor, I think if I have a moment I can establish that predicate and also establish the relevance.

On voir dire questions by Appellant’s counsel, the sponsoring witness testified that he did not know where the picture was taken, when it was taken, or who was depicted in it. When exhibit 24 was again offered by the State, Appellant’s counsel stated:

Your Honor, we will renew the same objection we heretofore made to Exhibits 24 and 25 again on the basis of predicate, relevancy, probative value versus prejudice weight.

We believe that, because the Rules of Criminal Evidence define the term “relevant evidence” and prohibit the admissibility of evidence which is “not relevant,” an objection that evidence is irrelevant directs the court’s attention to the proper rule. Id. at 401, 402. The rules specifically provide that a timely objection must state the specific ground only “if the specific ground was not apparent from the context; ...” Id. at 103(a)(1).

Free access — add to your briefcase to read the full text and ask questions with AI

Floyd Blackburn v. State, 820 S.W.2d 824, 1991 Tex. App. LEXIS 1854, 1991 WL 132050 (Tex. Ct. App. 1991).

820 S.W.2d 824 (Floyd Blackburn v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Luis Cesar Gutierrez v. State
Court of Appeals of Texas, 2017
Roderick Dixon v. State
Court of Appeals of Texas, 2016
Bobby Lee Hranicky v. State
Court of Appeals of Texas, 2004
Chilton v. Gorden
952 S.W.2d 773 (Missouri Court of Appeals, 1997)