explaining that harm from erroneous exclusion of evidence may be mitigated by admission of evidence similar to excluded evidence, and finding no harm where excluded testimony was not “different or more powerful than that of other witnesses that actually testified”
How later courts described this case
- explaining that harm from erroneous exclusion of evidence may be mitigated by admission of evidence similar to excluded evidence, and finding no harm where excluded testimony was not “different or more powerful than that of other witnesses that actually testified”
- holding that closing statement that implied defense counsel wanted to divert jury from the truth was "mildly inappropriate” and was not reversible error because the statement did not directly accuse defense counsel of lying or manufacturing evidence
- holding that “a prosecutor runs 42 a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel’s character”
- holding that "a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character"
Written by the judges who cited it.
Distinguished
Distinguished by Thompson v. State, 2002 Tex. App. LEXIS 7979 (2002)
We distinguish Mosley.
The opinion
MANSFIELD, Judge,
concurring on court’s own motion for rehearing.
Prior opinion withdrawn. For several years this Court has struggled to determine to what degree so-called “victim impact/character” evidence should be admissible at the punishment phase of a capital murder trial. The Supreme Court, in Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), held the Eighth Amendment is not a per se bar to the admission of evidence of the victim’s personal characteristics or the impact of his death on his loved ones.
[T]he testimony illustrated quite poignantly some of the harm that Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by defendant ... [A] state may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s- family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.
Payne, 111 S.Ct. at 2609 .
I. Categories of Victim Impact/Character Evidence
The Supreme Court in Payne did not precisely define what constitutes victim im-paei/charaeter evidence. Yet, in order to answer the question as to the extent such evidence should be admissible it is necessary to do so.
Victim impact evidence is évidence of the effect the death of the complainant has had on his or her family and friends. For example, in Payne v. Tennessee the grandmother of the surviving child victim testified at the punishment phase as to the effect on the child of the loss of his mother and younger sister. She testified further as to how the child (who was severely wounded during the attack on his mother and sister, both of whom died) cried often for his mother and asked about what happened to his baby sister. We have not been consistent on whether victim impact evidence is admissible. See Ford v. State, 919 S.W.2d 107 (Tex.Crim.App.1996) (Mansfield, J., concurring); Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996) (Mansfield, J., concurring); Johnson v. State, 1997 WL 209527 , — S.W.2d - (Tex.Crim. *267 App.1997) (plurality op.) (Mansfield, J., concurring).
In my concurring opinion in Johnson , I stated:
In order to avoid violation of the due process rights of the defendant and to minimize the risk of admission of irrelevant evidence (I duly note that victim impact evidence is by its nature, highly emotional and likely to have a significant impact on the jury), it is my opinion that only close family members (parents, grandparents, spouses and siblings) should be allowed to testify as to the victim’s character and/or effect the victim’s death has had on them. In the present case, the mothers of the victims testified as to the effect the loss of their sons has had on them as well as what kind of young men they were. Such evidence, testimony of close family members, is relevant under Rules 401 and 402, and is not excludable as prejudicial under Rule 403.
Johnson, supra, slip op. at 17, — S.W.2d at -.
I agree with the majority that allowing only close family members to testify as to the effect the death of the victim had on them may be, in certain cases, overly restrictive. Certainly, the effect of the victim’s death on a lifelong friend, work colleague, or romantic partner may well be more traumatic in some instances than on a close family member. Not allowing these individual to testify merely because they are not related by blood, I am now convinced, would be unjust. Therefore, victim impact evidence should be admissible within the context of the special issues at a capital trial, and, like any other evidence, should be subject to Texas Rules of Criminal Evidence 401 and 402. Under Rule 403 victim impact evidence which is needlessly cumulative, or whose probative value is outweighed by the danger of undue prejudice would be subject to exclusion by the trial court, subject, on review, to an abuse of discretion standard. Certainly, a long parade of witnesses testifying as to the impact of the victim’s death on them could, in some instances, be so cumulative and so prejudicial as to implicate the defendant’s due process rights; such is not an issue in the present case.
The second major category of victim-related evidence is victim character evidence. This evidence pertains to the personal attributes of the victim, e.g., she was generous and involved in charitable activities, was a good mother, or was successful and well-liked in the community. The purpose of such evidence is to inform the jury that the victim was more than just a name; he or she was a unique individual and had worth as such. See Payne v. Tennessee, 111 S.Ct. at 2607, 2609 . The defendant is permitted to put into evidence before the jury at punishment a nearly unlimited range of evidence of his character and background as mitigating against imposition of the death penalty under Texas Code of Criminal Procedure, Article 37.071, § 2(e). Evidence of the victim’s character and background is, in my opinion, equally relevant in the context of the mitigation special issue. As with victim impact evidence, the admissibility of victim character evidence is subject to Rules 401, 402 and 403. In the present case, I agree with the majority that the testimony of three witnesses related to the victims as to the victims’ good character and the effect of their deaths on them was relevant victim impact/character evidence under Rules 401 and 402. Furthermore, the evidence was not needlessly cumulative, nor did its prejudicial effect outweigh its probative value, requiring its exclusion under Rule 403. Accordingly the trial court did not abuse its discretion in allowing the admission of this testimony.
With these comments, I join the opinion of the Court.