KELLER, J., delivered a dissenting opinion in which McCORMICK, P.J., and KEASLER, J. joined.


It is an old but true cliche that a picture is worth a thousand words. Our caselaw reflects that truism: generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible. (1) Visual evidence can be highly probative, even if the visual evidence simply corroborates what has already been presented through verbal testimony. (2)

The first question, then, is whether the matters depicted in the contested photograph were a proper subject of testimony in the punishment phase of this capital murder prosecution. The photo showed Paula and her unborn child, both fully clothed, (3) lying side-by-side in a casket. Most of the Court's argument focuses on the unborn child's presence in the photograph.

The Court contends that "the death of the fetus was not a fact of consequence related to an issue in dispute." (4) Because this contention is wrong, the Court's Rule 403 analysis is flawed from the outset.

Article 37.071 permits the introduction of any evidence relevant to the special issues. (5) Violent "bad acts" constitute relevant punishment evidence if they tend to show future dangerousness or reflect upon the defendant's moral culpability. (6) And such bad acts need not be against people to qualify for consideration. We have held that the fact that a defendant brutally killed even a dog (7) or cats (8) against the owners' wishes is relevant to the special issues and admissible at punishment. When a defendant causes the death of an unborn child against the prospective parents' wishes, the defendant has committed a violent bad act. In such a case, the unborn child's death is a circumstance relevant to the jury's assessment of the special issues, and the State should be allowed to prove and argue that circumstance to the jury. For that reason, depiction of the unborn child's death was not, in itself, a basis for declaring the photograph in this case to be unfairly prejudicial.

Prejudice caused by the fact that appellant killed Paula's unborn baby was fair, not unfair, and should not be weighed against the State in a Rule 403 analysis.

So, the Court is mistaken when it suggests that unfair prejudice occurs because the "unborn child in the photograph appears tiny, innocent, and vulnerable [and] [s]ociety's natural inclination is to protect the innocent and vulnerable." (9) That appellant terminated the life of an innocent and vulnerable member of society is a perfectly legitimate point for the State to make. That appellant would terminate a life so innocent and vulnerable shows just how dangerous and morally blameworthy he is.

In its harm analysis, the Court contends that the State "seems to admit" that the photo was intended to influence the jury to make its decision on an improper basis. The State made no such admission. The full context of the conversation shows that the State argued that the photograph was relevant under the special issues:

[DEFENSE COUNSEL]: Then -- I mean this is strictly, Your Honor, to inflame and prejudice the jury and get them to answer the Special Issues One and Two in such a way that Mr. Reese will die.

[PROSECUTOR]: Well, as a matter of fact that is true. However, it is based on fact. The State must prove that the defendant is a future danger. There is no better evidence to show that the defendant is a future danger than the fact that he is willing to shoot and kill not only a young woman but also cause the death of that fetus.

The testimony has already been admitted, therefore you ruled that the facts involved in this photograph are admissible. The photograph is in good taste. We didn't attempt to introduce a photograph of the bloody fetus in her stomach. We chose to admit a photograph that is in good taste that shows the results of the defendant's handiwork and there is nothing that is so prejudicial that outweighs the probative value to show that he is in fact a future danger because if he will do an act that is going to be -- be something that results in the death of something like that then he will do anything and I believe it is highly probative.

[DEFENSE COUNSEL]: It's also cumulative and repetitious. Whatever she is trying to bring to this jury is already in their minds. There is no question.

THE COURT: They do have to make a decision on this. What I am wondering is if this brings to them a sense of -- sense of what the man has done and they want to pass on that in order to make the proper verdict.

[PROSECUTOR]: That is exactly right.

The State was making a polemical point in its response: of course the photograph was intended to prejudice the jury and spur it to answer the special issues in the State's favor; the State's argument was that prejudice produced was not unfair but legitimate. (10) Immediately following this colloquy, the trial court made the point:

THE COURT: Are we a society gone so soft that we can have a trial of this and yet not have the jury confront the effect of the dead on which it is passing judgment?

A photograph of the dead unborn child conveys nothing more than the full effect of appellant's actions.

The Court also presents a "slippery slope" argument. If the evidence in the present case is admissible, the Court asks whether an ultrasound picture of a three-month-old fetus would be admissible or whether a fetus' picture would be admissible if the fetus were killed in a traffic accident. But appellant was not a stranger who killed a woman who happened to be pregnant, nor was the death in the present case an accidental one. Appellant knew Paula, knew she was pregnant, and the jury could infer from the familial relationship that appellant knew that Paula and her husband were looking forward to having this child. (11) Despite appellant's knowledge of the specific circumstances surrounding Paula's pregnancy, he intentionally chose to end her life and that of her unborn child. Perhaps there are hypothetical situations in which a fetus' death might be so unforeseeable that a person should not be saddled with the impact that death might have on the jury's assessment of punishment. But that is not the case before us.

The final question is whether unfair prejudice was generated in the present case by the manner in which the unborn child's death was depicted. Three significant aspects of the photo reflect the manner of depiction: the unborn child was (1) shown apart from the mother outside the womb, (2) dressed in clothing, and (3) laying in a casket. Finding no Texas authority regarding the significance of these facts, I have conducted some research in other jurisdictions to help in determining whether these facts should be considered decisive in the Rule 403 balance. In State v. Alfieri, an Ohio court of appeals evaluated a photograph of a dead fetus. (12) The defendant in that case was convicted of aggravated vehicular homicide for causing the unlawful termination of a pregnancy. (13) At the guilt stage of trial, a photograph of the fetus was admitted into evidence. (14) The photograph depicted the "fetus, fully clothed in a knitted cap and long gown; no portion of the fetus's body, with the exception [of] its face and hands, are visible in the photograph and no outward signs of physical injury are apparent." (15) The Court of Appeals concluded that the trial court did not abuse its discretion under Ohio's version of Rule 403 in admitting the photograph because: "(1) only one photograph was introduced into evidence, (2) the photograph was not unduly gruesome, and (3) it was probative of a material fact (that the pregnancy was terminated as a result of the collision) and was illustrative of medical testimony on that issue." (16)

In State v. Williamson, the Tennessee Court of Criminal Appeals addressed the admissibility of a similar photograph. (17) The defendant was charged with vehicular homicide resulting in the death of a viable fetus. (18) The court found that the photograph was relevant to establish the viability of the fetus, an element of the offense that was contested at trial. (19) In rejecting the defendant's contention that a doctor's testimony and a photograph of the fetus were unfairly prejudicial under Tennessee's version of Rule 403, the court described the photograph as follows: "The photograph of the infant victim was not gruesome. The infant was fully clothed and the eyes of the infant were shut." (20)

The present case is analogous to Alfieri and Williamson. In each of the latter two cases, the evidence concerning the fetus was relevant to an element of the offense charged. The photograph in each case was considered admissible even though the government possessed and introduced other relevant non-photographic testimony to prove the same facts. Although the death and viability of Paula's unborn child were not elements of the capital murder offense in the present case, those facts were relevant to both the future dangerousness and mitigation special issues. And the photograph in the present case had characteristics similar to those discussed in the two out-of-state cases: the photograph was not gruesome, it did not show any injuries, and the fetus was fully clothed with only the face exposed and eyes closed. Finally, as in Alfieri, the State in the present case introduced only one photograph of the fetus.

The only potentially significant difference between the photograph in the present case and those in Alfieri and Williamson is that the photograph in this case showed the fetus in a casket lying beside his dead mother. My research has uncovered two cases involving photographs of caskets although neither involved a dead fetus. In Beckwith v. State, the defendant was charged with murder, and the State introduced into evidence in the guilt phase of trial two photographs, taken at two different funerals, of the victim's body in a casket. (21) The defense stipulated to the identity of the deceased and objected to the introduction of the photographs on relevance grounds. (22) The trial court overruled the defense objection and admitted the photographs into evidence. (23) On appeal, the defendant argued that the photographs had no probative value after the defense stipulated to the victim's identity, and the defendant argued that the photographs "served only to inflame and prejudice the jury and create sympathy for the victim and his family." (24) The Mississippi Supreme Court held that the photographs were relevant to show the circumstances of the killing and the corpus delicti, and that "[a]lthough unpleasant, as are any photographs of a murder victim's body, the photographs were not so gruesome or used in such a way as to be overly prejudicial or inflammatory." (25)

The other case uncovered by our research is Kane Furniture Corp. v. Miranda, an appeal in a civil wrongful death action. (26) The photo of a casket was part of a very emotional slide presentation, depicting: "the Mirandas' wedding; a daughter's graduation; Christmas; family birthday celebrations; visits to Disney World and SeaEscape; and decedent's casket." (27) Detailed testimony was also presented by four witnesses about the good-natured disposition of the decedent, the loving family relationship of the Mirandas, and the family's reaction to the decedent's death. (28) The Florida Court of Appeals found that the "presentation was so prejudicial as to have deprived Kane of a fair trial." (29)

The present case is more similar to Beckwith than to Kane. As in Beckwith, the photograph in the present case is a photograph of the bodies inside the casket. The photograph's relevance is derived from its portrayal of the bodies. In Kane, however, the casket was apparently shown for its own sake, and it was shown as part of what was at best a marginally relevant depiction of significant events in the deceased's life.

And the photograph in the present case was the only photograph depicting the unborn child. Appellant has not given us any reason to believe that the State possessed any other photographs of the fetus, much less an alternative photograph picturing the fetus without the casket or omitting some other detail appellant finds objectionable.

After viewing the photograph in the present case, and reviewing holdings in other jurisdictions, I am persuaded that the trial court did not err in determining that the photograph was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. Appellant knew Paula was pregnant at the time he shot her, and the photograph, while of significant emotional import, really just illustrates the logical and foreseeable consequences of appellant's actions. The image of the fetus was relevant to help the jury visualize the circumstances of the crime by helping them understand and visualize what stage of pregnancy Paula was in. The photograph showed the enormity of what appellant did, gave the jury a sense of the kind of harm appellant inflicted upon the victims, and showed the kind of person appellant would have to be to commit such a crime. Because the photograph was the only evidence containing the unborn child's image, the State's need for it was high. And because the State introduced only one photograph of this nature, the photo did not require much of the State's time to present.

From a Rule 403 perspective, this is a hard case. But trial courts are usually given deference on the hard cases, and that should occur here. I would hold that the trial court did not abuse its discretion in admitting the photograph.


DATE DELIVERED: December 6, 2000


1. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).

2. Chamberlain v. State, 998 S.W.2d 230, 236-237 (Tex. Crim. App. 1999).

3. The fetus was wrapped in what appears to be a blanket.

4. Slip op. at 8.

5. Texas Code of Criminal Procedure, Article 37.071 §2(a); see also §§2(b) & (e). The future dangerousness issue asks: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Article 37.071, §2(b)(1).

The mitigation issue asks:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Texas Code of Criminal Procedure, Article 37.071, §2(e)(1).

6. See Cooks v. State, 844 S.W.2d 697, 734 (Tex. Crim. App. 1992)(angry outbursts initiated by the defendant).

7. Willingham v. State, 897 S.W.2d 351, 355 (Tex. Crim. App. 1995); Johnson v. State, 853 S.W.2d 527, 532 (Tex. Crim. App. 1992).

8. Emery v. State, 881 S.W.2d 702, 706 (Tex. Crim. App. 1994).

9. Slip op. at 7.

10. See Montgomery, 810 S.W.2d at 378.

11. Evidence at trial showed that this would have been Michael's first child and that he was especially excited about the child's coming birth.

12. State v. Alfieri, 724 N.E.2d 477, 486-487 (Ohio App. 1 Dist. 1998), appeal not allowed, 709 N.E.2d 849 (1999).

13. Id. at 480.

14. Id. at 486.

15. Id. (bracketed material added).

16. Id. at 487.

17. State v. Williamson, 919 S.W.2d 69, 78-79 (Tenn. Crim. App. 1995).

18. Id. at 79.

19. Id.

20. Id.

21. Beckwith v. State, 707 So.2d 547, 593 (Miss. 1997).

22. Id.

23. Id.

24. Id.

25. Id. at 594.

26. 506 So.2d 1061 (Fla. App. 2 Dist. 1987)

27. Id. at 1067.

28. Id.

29. Id.