           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD–1400–06



                             TERRY HACKLER, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SECOND COURT OF APPEALS
                         COOKE COUNTY

              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION

       I fail to see how a video of the victim’s child’s birthday party is in any way

relevant to determining the length of Appellant’s sentence. Victim impact evidence is

supposed to show the harm suffered by the victim’s family as a result of the death of the

victim. A video depicting an event that occurred prior to the accident does not show this.

Victim character evidence is evidence that shows the unique characteristics of the life that

was taken. While the video of the victim’s daughter’s birthday party shows that the
                                                                       Hackler dissent–Page 2

victim was the mother of a young child, I disagree with the majority that such evidence is

relevant here. Victim character evidence is only relevant if it has a direct link to the

circumstances of the case. What would happen if the victim of a drunk driving accident

was a drug dealer and the defense wanted to admit evidence of the victim’s criminal

record in order to show that he had a low value to society and that, in essence, the

defendant did society a favor by ridding the earth of this criminal? Certainly we would

not allow such irrelevant evidence to be admitted. The Supreme Court stated in Payne v.

Tennessee, 501 U.S. 808, 823, that “victim impact evidence is not offered to encourage

comparative judgments of this kind – for instance, that the killer of a hardworking,

devoted parent deserves the death penalty, but that the murderer of a reprobate does not.

It is designed to show instead each victim’s ‘uniqueness as an individual human being,’. .

. .” But the video showing the victim’s child’s birthday party does not show the victim’s

uniqueness as an individual or the good qualities possessed by the victim. Rather, it

showed only that the victim had a young daughter, which did not in any way relate to the

circumstances of the case or to Appellant’s moral culpability in causing the victim’s

death. It is very sad that the behavior of the Appellant caused the death of someone,

however, the fact that the victim was a mother should not be used to increase the

defendant’s sentence any more than evidence that the victim was a criminal should be

used to decrease the sentence.

       Under Rule of Evidence 401, “‘Relevant evidence’ means evidence having any
                                                                     Hackler dissent–Page 3

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.” To

what fact of consequence to the determination of the action does this evidence relate? In

my opinion, the video focusing on the victim’s child is not relevant to Appellant’s

personal responsibility for the drunk driving accident. Additionally, because the video

focuses not the victim but on her child, there is great danger of unconsciously misleading

the jury. See Salazar v. State, 90 S.W.3d 330, 337. For these reasons, this evidence

should not have been admitted, therefore I respectfully dissent.




                                                 Meyers, J.




Filed: February 6, 2008

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