In Mosley v. State, we found that victim impact and character evidence is relevant to the mitigation special issue at the punishment stage of a capital murder trial "to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence." ⁽¹⁾ We held that this type of evidence is admissible at punishment subject to the limitations of Texas Rule of Evidence 403. We stated that Rule 403 would be violated if "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." ⁽²⁾ We further cautioned that trial judges should carefully screen testimony to limit the amount and type of evidence admitted to reduce the risk of unfair prejudice:

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 discretion in permitting some evidence about the victim's character and impact on others' lives while limiting the amount and scope of such testimony....[W]e caution that victim impact and character evidence may become unfairly prejudicial through sheer volume. Even if not technically cumulative, an undue amount of this type of evidence can result in unfair prejudice under Rule 403. Hence, we encourage trial courts to place appropriate limits upon the amount, kind, and source of victim impact and character evidence. ⁽³⁾

Mosley's reasoning also applies to the punishment phase of a non-capital trial. Non-capital sentencing calls for an inquiry similar to that conducted in evaluating the mitigation special issue. Both involve open-ended normative assessments of the defendant's moral blameworthiness and of whether he deserves a particular punishment. Non-capital sentencing is also susceptible to the same potential prejudice inherent in the admission of victim-related evidence - that the evidence may shift the focus of the trial from the defendant's culpability to the victim's worth. I agree with the Court that Mosley applies to non-capital sentencing proceedings.

Turning to the evidence presented here, I would hold that the seventeen-minute video montage containing approximately 140 still photographs set to music was unduly prejudicial under Rule 403 and ran afoul of the cautions given in Mosley. The Court of Appeals was correct to hold that the music was unnecessary and should not have been allowed. But it is also true that the sheer volume of the photographic evidence was far more than required to satisfy the purposes of introducing victim impact and character evidence, and the evidence was presented in a manner designed to have an unduly emotional impact.

With these comments, I concur in the Court's judgment.

KELLER, Presiding Judge

Date filed: November 27, 2002

Publish

1. 983 S.W.2d 249, 262-263 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999).

2. Id. at 262.

3. Id. at 262-263.