









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 2206-02


ALEX ERAZO, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY



 Price, J., delivered the opinion of the Court, in which Meyers, Womack,
Johnson, Holcomb and Cochran, JJ., joined.  Cochran, J., filed a concurring opinion,
in which Meyers and Holcomb, JJ., joined.  Hervey, J., filed a dissenting opinion, in
which Keller, P.J., and Keasler, J., joined.

O P I N I O N


	A picture is worth a thousand words.  Yet those words, in the context of a criminal
trial, must be the right words.  Otherwise, the picture from whence the words flow is
inadmissible.  A photograph is inadmissible under Rule of Evidence 403 if it is
substantially more prejudicial than probative.  In this case, the trial court admitted a
photograph of the victim's unborn child. (1)  We hold that, under the circumstances of this
case, the photograph was substantially more prejudicial than probative.  We reverse the
judgment of the Court of Appeals.  
I. Facts and Procedural History

	During the punishment phase of the appellant's murder trial, the State offered a 4-inch by 5-inch color photograph of the victim's unborn child that had been removed from
the victim during the autopsy.  The appellant objected that the photograph was inadmissible
under Rules of Evidence 403 and 404.  The trial court overruled the appellant's objection
and admitted the photograph.  
	On direct appeal, the appellant complained that the photograph was inadmissible
under Rule of Evidence 403 and our holding in Reese v. State. (2)  The Court of Appeals held
that admitting the photograph was within the trial court's discretion.  The Court of Appeals
distinguished the photograph in Reese on the basis that the photograph in this case (1) was
not from a funeral but was a standard autopsy photograph, (2) was one of sixty-two
photographs admitted during the trial, (3) showed only the result of the appellant's actions,
and (4) the prosecutor argued that the photograph showed that, contrary to the appellant's
statement that he was the only one who suffered, others had suffered from his actions. (3)
	We granted the appellant's petition for discretionary review, in which he argued that
the Court of Appeals erred in concluding that this photograph was admissible under Rule
403 and our holding in Reese. (4)  A thorough review of the law regarding the admissibility of
photographs and prejudicial evidence under Rule 403 is in order.
II. Law

A. Reese, Montgomery, and Narvaiz

	In Reese, we used the factors found in Montgomery v. State, (5) and Narvaiz v. State, (6)
to determine whether the photograph of an unborn child that had been removed from the
mother's body and placed in the coffin beside her was more prejudicial than probative. (7)  In
Montgomery, we held that a proper Rule 403 analysis by either the trial court or a
reviewing court includes, but is not limited to, the following factors:  (1) the probative
value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible,
way; (3) the time needed to develop the evidence; (4) the proponent's need for the
evidence. (8)  In the context of the admission of photographs, we also consider the factors set
out in Narvaiz.  Those factors include the number of photographs, the size, whether they
are in color or are black and white, whether they are gruesome, whether any bodies are
clothed or naked, and whether the body has been altered by autopsy. (9)
B. Martin

	We often have said that photographs depicting matters described by admissible
testimony are generally admissible.  This statement when viewed in isolation is far too
broad and provides no guidance to the bench and bar to determine which photographs may
be admitted and which must be excluded.  We first made this statement in Martin v. State. (10)
Martin was decided before the Texas Rules of Criminal Evidence were promulgated.  In
that case, while referring to the admission of crime-scene photographs, we said that "if a
verbal description of the body and the scene would be admissible, a photograph depicting
the same is admissible." (11) For this proposition, we provided no analysis and cited four cases
from other jurisdictions. (12)  The sentence that is rarely quoted along with the preceding
sentence is:  "We hold that if a photograph is competent, material and relevant to the issue
on trial, it is not rendered inadmissible merely because it is gruesome or might tend to
arouse the passions of the jury, unless it is offered solely to inflame the minds of the
jury." (13)  The cases we cited for the proposition that, if a verbal testimony of a photograph is
admissible then the photograph is admissible, include similar caveats.
	In Hinton v. People, (14) the defendant complained of the admission of a photograph of
the murder victim that showed both the fatal stab wound and a surgical incision that was
made to try to save the victim's life.  The Colorado Supreme Court concluded that, "A
photograph of a deceased homicide victim is admissible in a criminal trial, if it depicts
anything which it is competent for a witness to describe in words." (15)  Because the statement
is limited to "a photograph of a deceased homicide victim," the statement is more specific
than the broad statement that we generally quote from Martin.  In Hinton, the photograph
was of the victim and showed the wound that the defendant had inflicted.  As such, the
photograph was helpful to allow the jury to visualize the injuries described in testimony.
	In State v. DeZeler, (16) the defendant complained of autopsy photographs that showed
the fatal wounds to the victim.  In that case, the Minnesota Supreme Court held that the
photographs were relevant to material issues in the case. (17)  The rule the Court set out in that
case is:
	Photographs are admissible as competent evidence where they accurately
portray anything which it is competent for a witness to describe in words, or
where they are helpful as an aid to a verbal description of objects and
conditions, provided they are relevant to some material issue; and they are
not rendered inadmissible merely because they vividly bring to jurors the
details of a shocking crime or incidentally tend to arouse passion or
prejudice. (18)
Once again, the Court's statement in DeZeler was more specific than the language we
generally quote from Martin.  There are several caveats to the general statement that
photographs are generally admissible if a verbal description of the photograph is
admissible.
	The same is true of Vaca v. State (19) and Pribyl v. State. (20)  In Vaca, the Nebraska
Supreme Court held that a photograph in a manslaughter case that showed the location,
nature, and extent of injuries was admissible. (21)  The Court said that  "[a] photograph proved
to be a true representation of the person, place, or thing which it purports to represent, is
competent evidence of anything of which it is competent and relevant for a witness to give a
verbal description." (22)  In the next paragraph, the Court said that, "[w]here a photograph
illustrates or makes clear some controverted issue in the case, a proper foundation having
otherwise been laid for its reception in evidence, it may properly be received, even though
it may present a gruesome spectacle." (23)  In Pribyl, the Court approved of the admission of
photographs of the victim in a vehicular manslaughter case.  The Court cited the same
language in Vaca to support admission of the photographs. (24)  Both Vaca and Pribyl contain
language that limits the broad proposition that photographs are admissible if testimony
describing the photograph is admissible.
C. Code of Criminal Procedure Article 37.07

	Code of Criminal Procedure Article 37.07, Section 3(a) (25) governs the admissibility
of evidence during the punishment phase of a non-capital trial.  We have said that because
the jury's decision in a non-capital case does not involve a discrete finding, the relevance of
evidence cannot be determined by a deductive process but rather is a function of policy. (26) 
The policies that operate during the punishment phase of a non-capital trial include (1)
giving complete information to the jury to allow it to tailor an appropriate sentence for the
defendant; (2) the rule of optional completeness; and (3) whether the appellant admits the
truth during the sentencing phase. (27)  As a result, we have explained that relevance during the
punishment phase of a non-capital trial is determined by what is helpful to the jury. (28)
D. A Uniform Policy

	Although we have reviewed the admission of photographs in many cases, we have not
tied our authorities together to form a policy that will clearly assist trial courts in
determining what photographs are admissible during criminal trials.  What we can glean
from a thorough review of the relevant authorities is that a photograph must be relevant,
thus, it must be helpful to the jury.  Like other demonstrative evidence, photographs should
assist the jury with its decision, whether that be deciding guilt or punishment.  A photograph
should add something that is relevant, legitimate, and logical to the testimony that
accompanies it and that assists the jury in its decision-making duties.  Sometimes this will,
incidentally, include elements that are emotional and prejudicial.  Our case law is clear on
this point:  If there are elements of a photograph that are genuinely helpful to the jury in
making its decision, the photograph is inadmissible only if the emotional and prejudicial
aspects substantially outweigh the helpful aspects.  With this in mind, we will apply this
framework to the photograph in this case.
III. Application

A. Description of the Photograph

	In Narvaiz, we held that we should consider the form, content, and context of the
photograph when reviewing a trial court's decision to admit a photograph over the
defendant's objection.  The photograph in this case was a 4-inch by 6-inch color
photograph (29) of an unclothed fetus that is lying on its back on what appears to be a table. 
There is a small ruler that provides perspective.  Several inches of pale umbilical cord can
be seen protruding from the abdomen of the fetus.
B. The First Montgomery Factor:

The Probative Value of the Evidence

	Under the circumstances of this case, the photograph of the fetus had almost no
probative value.  As a result, this factor weighs strongly in favor of exclusion.
	The State had attempted to introduce this photograph during the guilt phase of the
appellant's trial.  When the medical examiner testified about the injuries to the victim in
this case, the following exchange occurred.
	[State]:	During your autopsy of [the victim], did you discover that she
was pregnant?

	[Witness]:	Yes, I did.

	[State]:	Can you tell the ladies and gentlemen of the jury approximately
how far along she was in her pregnancy?

	[Witness]:	Twenty-eight weeks gestation so somewhere between six to
seven months.

	[State]:	Was she in good health, [the victim], in good physical health
other than the gunshot wound?

	[Witness]:	Yes.

	[State]:	Was the fetus in good health?

	[Witness]:	There was no evidence of congenital abnormality noted.

	[State]:	So it was a normal pregnancy?

	[Witness]:	Yes.

	[State]:	May I approach the witness, Judge?

	The Court:	Yes, sir.

	[State]:	Let me show you what's been marked State's Exhibit 64, 65,
and 66.  Were those photographs taken during the autopsy?

	[Witness]:	Yes, they were.

	[State]:	What is depicted in those photographs?

	[Witness]:	The baby.

	[State]:	I'd offer at this time State's 64, 65, and 66 after tendering the
photographs to Defense counsel.

	[Defense]:	May we approach?

	(At the bench, off the record)
The photographs were not mentioned again until the punishment phase, during which the
State offered and the trial court admitted State's Exhibit 66 without a sponsoring witness. 
After the State's second and last punishment witness was excused, the State sought to
introduce State's Exhibit 66.
	[State]:	The State would offer State's Exhibit 66, Your Honor, after
tendering same to defense counsel.

	[Defense]:	May we approach?

	The Court:	Yes, sir.

	(At the bench on the record)

	[Defense]:	I'm going to object to the introduction of State's No. 66.  He's
not being tried for murder or anything else that 66 depicts.  I
would object to its introduction based on 403 and 404.

			There is no purpose for it being offered into evidence other
than to influence the jury, and the prejudicial extent of it is not
outweighed by any probative value.  For that reason I would
object.

	[State]:	It is being offered to show the far ranging extent of this crime
and the severity of the damage to the complainant, and to show
this was obviously a healthy pregnancy.

	The Court:	I'm going to overrule your objection and find that the probative
value outweighs any prejudicial effect.
No witness during the punishment phase of the trial sponsored this photograph when it was
admitted.  And no witness properly authenticated the photograph during the entire trial.
	The State argues that this case is factually distinguishable from Reese because, in
this case, the appellant knew the victim and knew that she was pregnant.  This is no
distinction.  Our opinion in Reese, which was also a Harris County case, reveals that the
female victim in that case was the defendant's girlfriend's daughter and that the defendant
knew the victim and knew that she was pregnant.  This case is not factually distinguishable
on this basis.
	The State also argues that the photograph in this case shows the death of the fetus
and is helpful to the jury because the appellant knew the victim was pregnant.  It is true that
the death of the fetus was a relevant part of the circumstances of the offense.  It is also true
that the fact that the appellant knew that the victim was pregnant and that he was the father
of the unborn child is very relevant to the jury's process of tailoring a sentence for this
appellant for this offense.  These specific facts are helpful to the jury in tailoring the
sentence for this defendant for this crime.  
	But this photograph adds nothing helpful to the already-admitted testimony that the
victim was pregnant, that the appellant knew she was pregnant, and that the fetus died as a
result of the mother's death.  The photograph does not show that the appellant knew that the
victim was pregnant.  And, the photograph does not show that the appellant was the unborn
child's father.  In contrast to a crime-scene photograph, which would assist a jury in
visualizing the scene, the photograph in this case does not add anything that is relevant to
these facts. (30)
	In other words, the relevance value of a photograph is to show appearance.  The
appearance of the dead fetus in this case was irrelevant.  A crime-scene photograph or an
autopsy photograph is not admissible simply to show the death of the individual.  These
photographs are admissible despite the fact, and because, they show more than the
testimony.  But that "something more" must be relevant and helpful to the jury.
	In contrast to this case, there are cases in other states in which photographs of
fetuses in homicide cases were helpful to the juries in those cases.  Those cases, cited by
the Court of Appeals and the State, are distinguishable from this case.
	In Sitton v. State, (31) the defendant was charged with the manslaughter of the twin
fetuses that appeared in the photograph admitted at trial.  To obtain a conviction for
manslaughter of a fetus, the State was required to show that the fetus was "quick." (32)  The
photograph of the two fetuses was relevant to show how developed the fetuses were.
	Similarly, in Commonwealth v. Lawrence, (33) the defendant was convicted of the
murder of a young woman and the involuntary manslaughter of the fetus she was carrying. 
The Supreme Judicial Court of Massachusetts held that the photograph of the fetus was
relevant to show, by inference from the size of the fetus, whether the defendant knew that
the adult victim was pregnant, an element of the charged offense. (34)
	In People v. Heard, (35) the appellant was convicted of the murder of a pregnant
woman and two other people.  The Illinois Supreme Court upheld the admission of a
photograph showing a six to eight-week fetus inside the victim's uterus because the
photograph served the proper purpose of aiding the jury in understanding the medical
examiner's testimony about the victim's wounds. (36)
	In another case closer to home, the Corpus Christi Court of Appeals upheld the
admission of a photograph of a still-born child in a medical malpractice case.  In Krishnan
v. Ramirez, (37) the doctor-defendant appealed a finding of medical malpractice following the
still-born death of the plaintiff's child.  The Court of Appeals concluded that the photograph
was relevant in that case to show the normal appearance of the still-born child and to assist
the jury in  resolving a factual dispute. (38)  In this case, the normal appearance of the fetus
was not factually disputed or relevant to the jury's decision on punishment.  In this way,
Krishnan is factually distinguishable from this case.
	The photographs in the cases cited above were helpful to the juries in those cases
because they showed wounds suffered by the victim (or victims) for whose death the
defendants were on trial or demonstrated elements that the State or plaintiff was required to
prove to obtain a conviction or judgment.  As a result, these photographs added something
logical and relevant that made the photographs more probative than prejudicial.  Because
the circumstances surrounding the photograph in this case are distinguishable from those
surrounding the photographs in the cases cited above, and because the photograph in this
case was not helpful to the jury in assessing punishment, this factor weighs strongly in
favor of exclusion.
C. The Second Montgomery Factor:

The Ability to Impress Jury in Some Irrational Yet Indelible Way

	The second factor, the ability to impress the jury in some irrational yet indelible
way, also weighs strongly in favor of exclusion.  The State argues that this was a small
photograph-smaller than the photograph that we held was inadmissible in Reese.  Although
the size of the photograph is a factor to consider, it is not the only factor.  Although we
have a black-and-white photocopy of the picture, at trial a color photograph was admitted. 
The State also argues that this was one of 62 photographs that was admitted during the trial. 
But, when we discussed this factor in Reese, we noted that the inadmissible photograph was
the only one admitted during the punishment phase of  the trial-not the whole trial.  In this
case, the photograph was one of two admitted during the punishment phase.  The other
photograph was a mugshot of the appellant.
	Also, the State argues that, during closing argument, it focused on the victim's
murder and the appellant's criminal record.  Although the State did initially focus on the
victim's murder and the appellant's criminal record, like the State's argument in Reese, the
last portion of the State's argument in this case focused on the fetus.  The State left the jury
with these thoughts as they went to deliberate:
	Yesterday I introduced a photo into evidence which was marked Exhibit No.
66.  I know most of you didn't want to look at it.  I didn't want to offend you
in any way and I can understand why you didn't want to look at it.  Believe me,
I understand, but I want to remind you of what we talked about in voir dire.  I
believe I said at the beginning or asked who of you watched those T.V. shows
like The Practice and Law and Order.  I told you that we're not here to
entertain you.  This whole thing is far more serious than that.  

	The reason that was important is that I knew when I introduced that
photograph that you would be asked to look at it so you can appreciate just
how serious this is and far reaching and devastating an effect this defendant's
crime has had.  When he murdered Kendy Palma, he ended her life.  He also
ended what was a normal healthy pregnancy and what should have resulted in a
beautiful child.  That's a very serious thing and he deserves to pay a serious
penalty for it.  His actions are final.  They cannot be changed, but they can be
punished in a just way.

	Ladies and gentlemen, I'm not asking you for a number.  When you go back
there and deliberate, I'm going to ask you for a word and that word is life
because that's what this defendant deserves.  Thank you.

The photograph shows a small and vulnerable unborn child.  This image appeals to the jury's
emotional side and encourages the jurors to make a decision on an emotional basis.  This
factor weighs strongly in favor of exclusion.
D. The Third Montgomery Factor:

Time Needed to Develop the Evidence

	The time needed to develop the evidence weighs in favor of admissibility.  The State
took very little time to introduce the photograph.  There was no witness on the stand when
the State introduced the photograph.  Instead, after the court excused the State's last
witness, the State offered the photograph into evidence.  Because little time was taken to
admit the photograph, this factor weighs in favor of admissibility.
E. The Fourth Montgomery Factor:

The Proponent's Need for the Evidence

	There are three questions that the reviewing court should answer when addressing
this factor:  "Does the proponent have other available evidence to establish the fact of
consequence that the [photograph] is relevant to show?  If so, how strong is that other
evidence?  And is the fact of consequence related to an issue that is in dispute?" (39)
	Regarding the first and second questions, testimony from the medical examiner and
photographs of the victim had established during the guilt phase that the victim was pregnant
and that the fetus died.  Ample and adequate evidence of these facts existed.  
	And, the facts of consequence that this photograph was admitted to show were not in
dispute.  No one disputed the fact that the victim had been pregnant and that the fetus died. 
The Court of Appeals implied that the photograph was admitted to rebut the appellant's
testimony that nobody suffered like him. (40)  But this photograph was admitted before the
appellant's testimony was offered.  The trial court could not reasonably have found that the
State needed this photograph to rebut the defendant's testimony.
	The State did not need this photograph for any relevant purpose.  These answers to
these questions lead to the conclusion that the fourth factor weighs in favor of exclusion.  
IV. Conclusion

	Having concluded, through a thorough analysis of the factors, that the photograph of
the fetus was substantially more prejudicial than probative, we hold that the photograph was
inadmissible during the punishment phase of the appellant's trial.  We reverse the judgment
of the Court of Appeals and remand for a harm analysis. 
Filed:  June 16, 2004.
Publish.
Appendix A
Appendix B



1. See Appendix A.
2. 33 S.W.3d 238 (Tex. Crim. App. 2000).
3. This testimony came after the trial court admitted the photograph at issue.
4. The exact ground on which we granted review is:  Did the Court of Appeals's resolution of the
appellant's second point of error, regarding the admission of a photograph of an unborn fetus at twenty-eight weeks gestation, during the punishment phase of the mother's murder trial, violate Rule 403 and
Reese v. State?
5. 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh'g).
6. 840 S.W.2d 415 (Tex. Crim. App. 1992).
7. See Appendix B.
8. Montgomery, 810 S.W.2d at 389-90.
9. Id. at 429.
10. 475 S.W.2d 265, 267 (Tex. Crim. App. 1972).
11. Ibid.
12. Ibid. (citing Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969); State v. DeZeler, 230
Minn. 39, 41 N.W.2d 313 (1950); Pribyl v. State, 165 Neb. 691, 87 N.W.2d 201 (1957); Vaca v.
State, 150 Neb. 516, 34 N.W.2d 873 (1948)).  We also cited, more generally, 73 A.L.R.2d 769
(1960).
13. Ibid.
14. 169 Colo. 545, 458 P.2d 611 (1969).
15. Id., at 554, 458 P.2d at 615.
16. 230 Minn. 39, 41 N.W.2d 313 (1950).
17. Id., at 47, 41 N.W.2d at 319.
18. Id., at 46-47, 41 N.W.2d at 319.
19. 150 Neb. 516, 34 N.W.2d 873 (1948).
20. 165 Neb. 691, 87 N.W.2d 201 (1957).
21. Vaca, 150 Neb. at 521, 523, 34 N.W.2d at 876-77.
22. Id., at 522, 34 N.W.2d at 876.
23. Ibid.
24. Pribyl, 165 Neb. at 701-02, 87 N.W.2d at 209-10.
25. Article 37.07, Section 3 states, in relevant part 

	(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or
the jury, evidence may be offered by the state and the defendant as to any matter the
court deems relevant to sentencing, including but not limited to the prior criminal record
of the defendant, his general reputation, his character, an opinion regarding his
character, the circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an
extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to
have been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or finally
convicted of the crime or act. A court may consider as a factor in mitigating punishment
the conduct of a defendant while participating in a program under Chapter 17 as a
condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of
Evidence, and subject to Subsection (h), evidence may be offered by the state and the
defendant of an adjudication of delinquency based on a violation by the defendant of a
penal law of the grade of:
 
	(A) a felony; or

	(B) a misdemeanor punishable by confinement in jail.
26. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).
27. Mediola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000).
28. Rogers, 991 S.W.2d at 265.
29. The copy in the record is a black and white photocopy.  The parties both say that this was a
color photograph, however.
30. Cf. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).
31. 760 So. 2d 28, 31 (Miss. 1999).
32. Ibid.  A "quick child"  is defined as "one that has developed so that it moves within the
mother's womb."  Ibid.
33. 404 Mass. 378, 536 N.E.2d 571 (1989).
34. Id., at 390, 536 N.E.2d at 579.
35. 187 Ill. 2d 36, 718 N.E.2d 58 (1999).
36. Id., at 77-78; 718 N.E.2d at 81.
37. Krishnan v. Ramirez, 42 S.W.3d 205, 219 (Tex. App.-- Corpus Christi 2001, pet.
denied).
38. Ibid.
39. Montgomery, 810 S.W.2d at 390.
40. See Erazo, 93 S.W.3d at 536.
