I join the majority opinion in every respect. I add this concurrence for two reasons. First, I respectfully disagree with Judge Johnson's concurrence insofar as she concludes that Ms. Manning's evidence was erroneously offered and admitted on the punishment issue of "future dangerousness." Second, I think we should distinguish "victim impact" evidence which concerns the emotional consequences upon the crime victim's relatives from "victim impact" evidence which concerns the physical or psychological consequences of the defendant's conduct upon a crime victim himself.

Nothing in the record suggests that the State offered Ms. Manning's testimony during the punishment phase of this capital murder trial solely on the issue of appellant's future dangerousness. Clearly, this evidence was also relevant ⁽¹⁾ under article 37.071(e)(1) as evidence militating against appellant's mitigation question. ⁽²⁾ I cannot conclude that the permanent paraplegic injuries that fifteen-year-old Melanie Almaguer suffered, including the impact of those physical injuries upon her daily life, are not relevant "circumstances of the offense" with which to assess appellant's moral culpability for this crime. In assessing a defendant's moral culpability, it is highly probative that the child he attempted to murder, by shooting her in the head at close range will, for example, be confined to a wheelchair for the rest of her life, just as it is relevant that she will be required to wear diapers, be lifted into a bathtub, and never be able to bear children. If, in assessing the defendant's moral culpability, the jury is entitled to consider the defendant's difficult childhood, why then should it not be entitled to consider the difficult adulthood that his victim will suffer as a direct consequence of his criminal actions?

Judge Johnson states that the jury properly heard that appellant "intended her [Ms. Almaguer's] death. Manning's testimony [regarding Melanie Almaguer's injuries and care] added nothing substantive to that discussion." ⁽³⁾ I cannot agree. The actual physical consequences of the injuries appellant inflicted, as well as their continuing physical impact upon one of his chosen victims, are probative of his moral culpability, as is the fact that he intended to kill her.

Moreover, there is an important legal and factual distinction between "victim impact" testimony and testimony that shows the actual physical disabilities and impairments suffered by a person as a result of the defendant's criminal conduct. The expression "victim impact" testimony has become a legal term of art in capital murder jurisprudence. According to the Supreme Court, "victim impact" evidence may be admitted in a capital murder prosecution to show the victim's "uniqueness as a human being." Payne v. Tennessee, 501 U.S. 808, 825 (1991). Such evidence is admissible at the punishment stage because:

the state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family ...." Id.

The objected-to evidence in this case, however, was not that type of "victim impact" testimony. Instead, it was the testimony of Ms. Almaguer's nurse, who explained how this young girl's physical abilities had been drastically and permanently affected by appellant's act of shooting her in the head. Ms. Almaguer is permanently paralyzed; she has lost most of her normal bladder and bowel functions; she must be catheterized every few hours; she must have special "bladders" positioned and repositioned on her chair throughout the day to avoid bedsores; and she must take a variety of medications to control muscle spasms, and to ward off possible renal failure and neurological problems.

In Miller-El v. State, 782 S.W.2d 892, 894-95 (Tex. Crim. App. 1990), a non-capital case, this Court found that a doctor's testimony, which was exactly analogous to the nurse's testimony in this case, was both relevant and admissible at the punishment stage. In Miller-El, the doctor's testimony was summarized as follows:

[Dr.] Harrison outlined for the jury the "special needs" that "[a] spinal chord [sic] patient, as we call them, ... will have ... related to their injury for the rest if their life." He testified that as a result of his paralysis, Hall will never regain bladder and bowel control. Nor will he ever recover sexual and procreative functions. He will be required to maintain a constant vigilance to prevent infection and bed sores. Recurring spasticity may ultimately deprive him even of the use of a wheelchair.

782 S.W.2d at 894. This Court held that evidence of the extent of a victim's physical injuries and future physical impairment is admissible as a circumstance of the offense "so long as a factfinder may rationally attribute moral culpability to the accused for the injury." Id. at 896; see also Stavinoha v. State, 808 S.W.2d 76, 78-9 (Tex. Crim. App. 1991) (in aggravated sexual assault case, testimony of psychological trauma suffered by child victim and physical manifestations of that trauma was properly admitted). Surely, this jury could rationally attribute moral culpability to appellant for the permanent physical injuries he inflicted upon Ms. Almaguer by shooting her in the head. I fail to understand why one would hold this evidence, a shooting victim's future physical impairment, admissible in a non-capital case, but inadmissible in a capital murder punishment hearing under a theory that it either lacks any probative value or that it is substantially more prejudicial than probative.

Just as civil courts distinguish between subjective "mental anguish" and "pain and suffering" on the one hand, and objective "physical impairment" on the other hand, so too can judges in criminal cases distinguish between a victim's (or his family's) mental anguish and his or her physical disabilities. The former, because they are so purely subjective and incapable of objective demonstration, are much more likely to be unfairly prejudicial.

Sometimes both kinds of "victim impact" evidence, both subjective emotional injuries and objective physical disabilities, are highly probative and admissible. At other times, it is appropriate for a court to exercise its discretion to exclude the emotional impact evidence while admitting the evidence of physical repercussions. This trial judge did the latter, by admitting evidence of Ms. Almaguer's physical injuries and future physical impairment, but excluding the more subjective evidence of her emotional trauma. I do not fault him in the least.

With these comments, I join the opinion of the Court.

Cochran, J.

Date: February 13, 2002

Publish

1. Indeed, at trial, appellant's counsel admitted the relevance of this evidence. He argued that the trial court should have excluded the evidence as unfairly prejudicial under rule 403. However, a defendant may not claim that the consequences of his conduct were so gruesome that the jury should not hear or see of those consequences. As this Court stated in Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995):

The photographs are gruesome. That is to say, they are disagreeable to look at, but they depict nothing more than the reality of the brutal crime committed. The photographs are powerful visual evidence, probative of various aspects of the State's theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as "powerful" which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence.

See also, Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000).

2. Tex. Code Crim. Proc. art. 37.071(e)(1) sets out the defendant's mitigation question:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

(emphasis added).

3. Ante at __ (slip op. at 2).