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NO. 10-90-135-CR

IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO

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          FLOYD BLACKBURN,
                                                                                            Appellant
          v.

          THE STATE OF TEXAS 
                                                                                            Appellee

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 From 54th Judicial District Court
McLennan County, Texas
Trial Court # 90-147-C

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O P I N I O N

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          Appellant was convicted of possession of amphetamine less than 28 grams and assessed 10
years probation and a $10,000 fine. See Tex. Health & Safety Code Ann. § 481.116 (Vernon
1991); Tex. Penal Code Ann. § 12.34 (Vernon Supp. 1991).  We must decide if a photograph
seized at Appellant's residence was properly admitted into evidence.  Because the photograph was
irrelevant and its admission into evidence harmed Appellant, we reverse the judgment. 
          During the execution of a search warrant at Appellant's residence, a package of
amphetamine powder, guns, ammunition, jewelry, two "coke spoons," and "well over a hundred"
photographs were seized.  One photograph depicts a woman standing beside a daybed, on which
rests a large mirror with a "rail" of a white powdery substance.  The woman is holding a large
cardboard tube to her nose, pointed toward the mirror.  The sponsoring witness did not know (1)
who the woman was, (2) when the picture was taken, (3) where the picture was taken, or (4) what
the white powdery substance was.  He could only say that the woman also appeared in another
seized photograph that depicted Appellant, his wife, and another unknown male on another
occasion.  In fact, the witness thought that the scene depicted by the photograph was "a joke." 
The photograph was admitted into evidence over Appellant's objection that it was irrelevant and
that its probative value was outweighed by its prejudicial effects.
          Rule 402 provides in part: "Evidence which is not relevant is inadmissible."  Tex. R.
Crim. Evid. 402.  Rule 403 provides in part: "Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice . . . ."  Id. at 403.
          The State's position is that the photograph is part of the res gestae of Appellant's arrest
and, as a condition surrounding his arrest, was properly admitted.  Appellant argues that his
possession of the controlled substance was undisputed, that "hundreds" of photographs were seized
but only a few were offered into evidence, and that the State did not connect the woman or the
activity depicted by the photograph to Appellant other than by another photograph showing them
together.  Thus, Appellant says that the photograph was irrelevant because it was not connected
to the charges against him and that, if relevant, its probative value was substantially outweighed
by the danger of unfair prejudice.
           As a general rule, the state is entitled to show the circumstances surrounding the arrest
of an accused, unless such evidence is inherently prejudicial and has no relevance to any issue in
the case.  Paz v. State, 749 S.W.2d 626, 629 (Tex. App.—Corpus Christi 1988, pet. ref'd). 
Whether evidence is relevant to any issue in the case lies within the sound discretion of the trial
court.  Id.  In reviewing questions of this nature, we determine only whether the trial judge clearly
abused his discretion in allowing the evidence to be admitted.  See id.
          Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.  Tex. R. Crim. Evid. 401.  We cannot see how the person or activity
depicted by the photograph tends to make any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the  photograph.  See id.  We
hold that the trial judge clearly abused his discretion in determining that the photograph was
relevant and that it should not have been admitted into evidence.  See id. 
          Even if the photograph were considered to be relevant, we believe that it should have been
excluded because its probative value was substantially outweighed by the danger of unfair
prejudice to Appellant.  See Tex. R. Crim. Evid. 403.  The State did not prove when it was taken,
where it was taken, the identity of the woman, or what the substance on the mirror was.  It was
characterized by the sponsoring witness as a "joke."  As proof of the existence of any fact that was
of consequence to the determination of the action, it was totally unnecessary and its probative
effect was negligible.  See Jiminez v. State, 787 S.W.2d 516, 524 (Tex. App.—El Paso 1990, no
pet.).  In making this determination, we consider the fact that Appellant did not seriously contest
his possession of the controlled substance, as evidenced by his pointing out the contraband to the
searching officers and his defense at trial.  When a defendant pleads not guilty to the offense and
puts the state to the burden of proving all essential facts, his admission of any essential fact cannot
be considered in the determination of relevancy of evidence under Rule 401; however, when a
defendant admits the truth of a specific fact of consequence to the determination of the action, that
admission can enter into the balancing of the probative value of relevant evidence as tending to
establish that fact against its possible prejudicial effects.  See Tex. R. Crim. Evid. 401, 403.  We
hold that even if the photograph were relevant, the trial judge should have excluded it under Rule
403.  See id.
          The dissent argues that Appellant failed to preserve any error resulting from the admission
of the photograph, exhibit 24, into evidence because his objection was too general.  At the time
the photograph was offered, the following exchange took place:
[Prosecutor]:  Your honor, we would offer State's 23, 24, and 25 into evidence. 
22, 23, 24, and 25.
[Appellant's Attorney]:  We object to 22, 23, 24, and 25 because they are
irrelevant.  And their probative value is outweighed by any prejudicial effect they may
have.  It's 403 and 404, I believe.
In addition to that, as to No. 24, we will object because it's -- other than the fact
that it was shown apparently to have been found in the residence, there is no connection 
with the defendant.
In addition to that, we object that there is not a proper predicate laid for any of the
photographs identified as 22, 23, 24, and 25.
[Prosecutor]:  Your honor, I think if I have a moment I can establish that predicate
and also establish the relevance.
          On voir dire questions by Appellant's counsel, the sponsoring witness testified that he did
not know where the picture was taken, when it was taken, or who was depicted in it.  When
exhibit 24 was again offered by the State, Appellant's counsel stated:
Your Honor, we will renew the same objection we heretofore made to Exhibits 24
and 25 again on the basis of predicate, relevancy, probative value versus prejudice weight.
          We believe that, because the Rules of Criminal Evidence define the term "relevant
evidence" and prohibit the admissibility of evidence which is "not relevant," an objection that
evidence is irrelevant directs the court's attention to the proper rule.  Id. at 401, 402.  The rules
specifically provide that a timely objection must state the specific ground only "if the specific
ground was not apparent from the context; . . . ."  Id. at 103(a)(1).  Prior to the rules, although
general objections were held not to preserve error, there was a limitation on or an exception to the
rule: When the evidence was not relevant to any issue in the case and could have had no material
bearing thereon, a general objection that it was immaterial and irrelevant was sufficient to preserve
a right of review of error in admitting it.  Bridges v. City of Richardson, 354 S.W.2d 366, 368
(Tex. 1962); see also Xanthull v. State, 358 S.W.2d 631, 632 (Tex. Crim. App. 1962); 1 R. Ray,
Texas Law of Evidence Civil and Criminal § 25 (Texas Practice, 1980).  An objection that
evidence is "irrelevant" or "not relevant" will preserve a right of review of error in admitting the
evidence if the test of relevancy prescribed by Rule 401 is not met.  See Tex. R. Crim. Evid. 401,
402.    We sustain point one. 
          Having found error, we must determine if the error made any contribution to the conviction
or the punishment.  See Tex. R. App. P. 81(b)(2).  We are guided through our harmless error
analysis by the opinion in Harris v. State, in which the Court of Criminal Appeals said we are to
focus, not on the result, but on the error and its effect on the process whereby the jurors apply law
to facts to reach a verdict, examining whether the trial was essentially a fair one.  See Harris v.
State, 790 S.W.2d 568, 588 (Tex. Crim. App. 1989).  If the error was of a magnitude that it
disrupted the jury's orderly evaluation of the evidence, no matter how overwhelming the overall
evidence might have been, then the conviction is tainted.  Id.  The procedure is: first, isolate the
error and all its effects, then ask whether a rational trier of fact might have reached a different
result if the error and its effects had not resulted.  Id.  In isolating the error and its effects,
consideration may be given to the source of the error, the nature of the error, whether and to what
extent it was emphasized by the state, its probable collateral implications, and other considerations
suggested by the facts of the case.  Id. at 587.  In determining whether a rational trier of fact
might have reached a different conclusion, we may consider how much weight a juror would
probably place upon the error and its probable impact on the jury in light of the existence of the
other evidence.  See id. 
          Appellant admitted possession of the controlled substance.  During the guilt-innocence
phase the prosecutor elicited speculation from a State's witness that the type of activity depicted
by the picture was illegal use of an illegal substance.  At the punishment phase, Appellant offered
several witnesses who attested to his good character, while the State offered none.  In argument
at the punishment phase, the prosecutor referred to the photograph, saying:
Now do you seriously believe . . . that this girl in this picture . . . is doing anything but
looking at a rail of either cocaine or amphetamine or some other controlled substance and
. . . here she is with the [Appellant] and his wife in another picture?  Do you think this is
a novice sitting here?
We cannot determine why the prosecutor referred to the photograph in such a manner after its
sponsoring witness called it a "joke."  We believe, however, that the speculative testimony about
the photograph and its presence in the jury room as an exhibit probably interrupted the orderly
consideration of the evidence by the jury.  See Harris, 790 S.W.2d at 588.  We further believe
that in view of the evidence, the range of punishment applicable to the offense, and the argument
of the prosecutor suggesting inferences that he wanted the jury to draw from the photograph, a
rational trier of fact might have reached a different result at the punishment phase of the trial had
the photograph not been admitted into evidence.  See id.  We cannot say, beyond a reasonable
doubt, that the error made no contribution to his punishment.  See Tex. R. App. P. 81(b)(2);
Harris, 790 S.W.2d at 588.
          We reverse the judgment and remand the cause to the trial court.
 
 
                                                                                  BILL VANCE                              
                                                                                 Justice
Before Chief Justice Thomas
          Justice Cummings and 
          Justice Vance
Reversed and remanded (Chief Justice Thomas dissenting)
Opinion delivered and filed June 13, 1991
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