Texas Bar Journal • December 2024

Criminal Law

Written by Dwight McDonald

Rule 403: Prejudice vs. Probative Value
In Hart v. State,¹ a jury convicted the defendant of capital murder. The defendant drove a vehicle used in a robbery/ murder. One of the passengers allegedly told the defendant about the plan to commit the burglary. The defendant claimed he did not understand or believe the plan was real. He then tried to present evidence of his low IQ. He was not allowed to do so, but the state was allowed to present evidence of the defendant’s rap videos in which he glorified crime and violence. The state claimed the videos were probative of the defendant’s ability to understand a plan to commit robbery and thereby rebut his claim that he was “friendly” and not sophisticated. The 5th Court of Appeals in Dallas upheld the trial court’s ruling and found that the lyrics were permissibly prejudicial in light of the state’s need to rebut the defendant’s claim that he was not smart enough to understand the plan to commit the robbery. The Court of Criminal Appeals reversed—“The danger of unfair prejudice weighs heavily.” Rap lyrics are often inflammatory but are also often fictitious. The court also noted that holding song lyrics to their literal meaning would lead to the following conclusions: Freddie Mercury “killed a man,” Bob Marley “shot the sheriff,” the band formerly known as The Dixie Chicks killed Earl, and Johnny Cash “shot a man just to watch him die.” Here, the state offered no evidence demonstrating that the lyrics and video were somehow representative of the appellant’s character. The admission of the rap video and their lyrics was violative of Rule 403.

Texas Code of Criminal Procedure Article 39.14
In State v. Heath,² the defendant requested discovery a few days after being indicted for injury to a child. The state provided discovery and announced “ready” at three different trial settings. Six days before trial, the prosecutor emailed defense counsel additional discovery. The defendant filed a motion to suppress the 911 call that was provided six days before trial. The prosecutor advised they only learned of the 911 call when they met with the complainant’s mother who told them she had called 911 on the date of the incident. The prosecutor alleged there was no violation of Texas Code of Criminal Procedure Article 39.14 because she ordered the recording a few days after learning of it and promptly provided it to defense counsel. The trial court granted the suppression motion. The state argued on appeal that Article 39.14(a)’s directive to produce discovery “as soon as practicable” applies only to items in the prosecutor’s possession, custody, or control and does not extend to what is in exclusive possession, custody, or control of law enforcement agencies. The court determined that once a timely request is received from the defendant, the state is obligated to produce evidence that is “in the possession, custody, or control of the state or any person under contract with the state.” Here, Article 39.14 was violated.

Confrontation Clause
In McCumber v. State,³ the defendant was convicted of continuous sexual abuse of a child and sentenced to 60 years in prison. At trial, an outcry witness was allowed to testify via Zoom. The defendant objected and cited his right to confront the witness under the Sixth Amendment. The state showed 1) it tried to subpoena the witness seven days before trial to no avail; 2) the state’s investigator could not locate the witness until after the jury was seated and by then, the witness had moved to Colorado; and 3) the witness feared retaliation and was caring for an injured husband. The court of appeals reversed and held that the state had not shown sufficient necessity for denying the defendant the right to face-to-face confrontation. The Court of Criminal Appeals determined that to deny face-to-face confrontation requires a case-specific trial court finding, and in this instance, the trial court declared a necessity based on the witness’ articulated and substantiated fear of testifying in person and a public policy interest in preventing witness retaliation. The trial court ruling was affirmed.

DWIGHT MCDONALD is a professor in the Criminal Defense Clinic at Texas Tech University School of Law. He is a former chair of the State Bar of Texas Criminal Justice Section and a former member of the State Bar of Texas Board of Directors and the Texas Criminal Defense Lawyer’s Association.