# Griffith v. State

> Court of Criminal Appeals of Texas · December 16, 1998 · 983 S.W.2d 282

URL: https://www.frixlaw.com/law-library/cases/9668260

## Case

- **Full name:** Michael Durwood GRIFFITH, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 16, 1998
- **Citations:** 983 S.W.2d 282; 1998 Tex. Crim. App. LEXIS 170; 1998 WL 870915
- **Precedential status:** Published
- **Opinion:** Concurrence by Meyers
- **Judges:** McCormick, Baird, Mansfield, Keller, Holland, Womack, Meyers, Overstreet, Price
- **Cited by:** 146 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668260

## How later opinions describe it (automated extraction)

- holding the trial court did not abuse its discretion in admitting expert testimony when expert told the jury he reviewed the investigative reports, crime scene photos, autopsy photos, witness statements, and the defendant’s school and personnel records before developing an opi…
- noting, pursuant to Ake and Williams, it is “now without question that Ake requires the appointment of an expert regardless of field of expertise” but concluding defendant did not establish deprivation of an adequate defense by refusal to appoint expert
- holding that expert witness “fit” his expert knowledge with the particular facts of the case in his evaluation of appellant’s future dangerousness
- holding that if the declarant would have testified, the State would have been allowed to impeach his credibility with a prior criminal conviction
- observing that “the purpose of the appointment is to level the playing field; to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense”

## Opinion text

MEYERS, Judge,
concurring.
The majority either assumes the trial court had the foresight to consider factors this Court would, more than two years later, recognize as important in assessing admissibility of victim related evidence at punishment in a capital murder case or undertakes the appropriate consideration of such factors itself in a kind of silent de novo review to which no one is privy. In either case, I decline to join them.
At the time of appellant’s trial admissibility of victim related evidence at punishment was, at the very most, questionable. 1 Mosley v. State, 983 S.W.2d at 262 (Tex.Crim.App.1998)(recognizing “[o]ur jurisprudence in this area has been somewhat inconsistent and confusing”). A majority of the Court in Mosley rendered the issue no longer questionable, holding, “[b]oth victim impact and victim character evidence are admissible-” Id. at 262. But the Court nevertheless placed admissibility within a specific context and purpose:
“Both victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.”
Id. (emphasis added). Further, such evidence has no relevance to the issue on future dangerousness: “[sjuch evidence is patently irrelevant ... to a determination of future dangerousness.” Id. at 263. Trial courts were given considerable direction in assessing admissibility of victim related evidence under Rule 403:
Rule 403 limits the admissibility of such evidence when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim. When the focus of the evidence shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society then the State exceeds the bounds of permissible testimony. We recognize that this standard does not draw a bright and easy line for determining when evidence concerning the victim is admissible and when it is not. Trial judges should exercise their sound discretion in permitting some evidence about the victim’s character and the impact on others’ lives while limiting the amount and scope of such testimony. Considerations in determining whether testimony should be excluded under Rule 403 should include the nature of the testimony, the relationship between the witness and the victim, the amount of testimony to be introduced, and the availability of other testimony relating to victim impact and character. And, mitigating evidence introduced by the defendant may also be considered in evaluating whether the State may subsequently offer victim-related testimony.
Id. at 262.
The trial court in the instant case ruled the evidence admissible without the benefit of the guidance offered by the majority in Mosley, over two years later. How can it be assumed the court took such factors into account? The majority dismisses appellant’s complaint about the admissibility of the victim related evidence, stating only “[t]he trial court did not abuse its discretion to admit this evidence under this Court’s majority decision in Mosley.” Majority opinion at 289. There is no indication from the majority’s opinion whether the admissibility of the victim related evidence was evaluated, by the trial court or by this Court, according to the considerations set out by the majority in Mosley. Perhaps it is the defendant’s burden to request such analysis. 2 The majority *292 does not say. It may be that the only binding value to the Court’s opinion in Mosley is its bottom line holding. Other pearls of wisdom offered the bench and bar in that case are non-binding dicta which needn’t be bothered with. I refuse to join the majority’s so-called application of Mosley.
After reviewing the record, absent a waiver of the mitigation issue by appellant, and considering factors discussed in Mosley which bear on admissibility under Rule 403,1 would at least agree the victim’s brother’s testimony was harmless beyond a reasonable doubt as to the issue of future dangerousness 3 and to the mitigation issue. 4
With these comments, I concur in the judgment of the Court.
. Appellant argued the evidence would "violate rules 401 through 404 B of the Texas Rules of Evidence" and also contended "its probative value is greatly outweighed by its prejudicial impact."
. This may be like a Rule 403 context. The party opposing admissibility of otherwise relevant evidence must make an objection under Rule 403 in order for the trial court to weigh its probative value against its prejudicial effect. See Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. *292 1997)(once trial judge has ruled on relevance beyond character conformity value and on opponent’s Rule 404(b) objection, opponent then required to make objection under Rule 403 in order for trial judge to weigh probative and prejudicial values).
. The jury charge instructed the jury to consider the victim related evidence when deliberating on .the issue of future danger:
In deliberating on Special Issue No. 1 you shall consider all the evidence admitted at the guilt or innocence stage and at the punishment stage of trial, including evidence of the defendant’s background or character or the circumstances of the offense that militate for or mitigate against the imposition of the death penalty.
Mosley held victim related evidence militates for imposition of the death penalty, and that such evidence is not relevant to the issue of future danger.
. As this is a lone, concurring opinion, there is little value in belaboring the bench and bar with my analysis.
My analysis went only so far as appellant’s brief suggested it should. That is, I did not address other issues that could have been, but were not, raised under Mosley. For instance, defendants are now entitled to waive altogether "submission and reliance” on the mitigation special issue and thereby avoid the State's admission of victim related evidence. Mosley, slip op. at 263-264. At the time of appellant’s trial, the law suggested special issues could not be waived. Powell v. State, 897 S.W.2d 307, 314-18 (Tex.Crim.App.1994)(plurality opinion); id. at 318 (Clinton, J., concurringXholding "deliberateness" issue could not be waived, even affirmatively, by defendant). Mosley distinguished that law, holding it inapplicable to the mitigation issue. We have no way of now knowing what choice appellant would have made had he been aware of this option at the time of his punishment hearing. Appellant does not now complain that he was not afforded this option, however.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668260. Public record. Not legal advice.