Opinion
05-19-01394-CR
08-30-2022
LARRY JEAN HART, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F19-00575-W
Before Justices Osborne, Reichek, and Smith
MEMORANDUM OPINION
LESLIE OSBORNE, JUSTICE
A jury found appellant Larry Jean Hart guilty of capital murder while committing or attempting to commit the felony offense of burglary. Accordingly, appellant was sentenced to life imprisonment without parole. See Tex. Penal Code § 12.31 (capital felony). In five issues, appellant contends the trial court erred in its rulings admitting and excluding certain evidence. In a cross-issue, the State requests that we reform the judgment to correct three errors. Concluding that the trial court did not abuse its discretion or that any error did not affect appellant's substantial rights, but that the judgment contains errors, we modify the trial court's judgment and affirm it as modified.
Background
Just before midnight on June 21, 2017, appellant drove three or four unidentified persons to the apartment complex where Michael Gardner lived. Gardner was at home eating dinner. While appellant waited in the car, his passengers entered Gardner's apartment, shot Gardner in the head, and took Gardner's property. A neighbor heard the shots and called 911. By the time emergency personnel arrived, Gardner had died.
Appellant testified at trial that a person he knew only as "little partner" asked him for the ride. Little partner explained that Gardner was his uncle. He told appellant of the plan to break into his uncle's home. Appellant later told police that he did not believe that little partner was going to his uncle's to commit theft, but appellant did not know of, and could not explain, any other plausible purpose for the midnight trip.
Appellant borrowed his girlfriend Rodneisha Jones's car for the trip. From surveillance video of Gardner's apartment complex, police identified the car and later located it. Police interviewed Rodneisha, who told police that appellant borrowed the car. In a recorded interview with police at home, appellant admitted driving several others to Gardner's apartment. But he denied knowing anything else about the crime or the perpetrators. He was subsequently arrested and indicted for capital murder.
Appellant testified at trial. In explaining why he had given rides on the night of the murder, appellant testified:
Q. Would you consider yourself a friendly person?
A. Yes, sir.
Q. Do you give people rides?
A. Yes, sir.
Q. Why do you give people rides?
A. I mean, I was just raised like that, Mr. Cox, just being friendly, giving people rides, and things like that, sir, and having an open heart.
Q. Did you ever consider that giving people rides could lead to problems?
A. No, I never thought that would happen.
Appellant testified that he grew up in "a little small neighborhood in Greenville." When his counsel asked him whether he "ever consider[ed] that maybe things are different in Dallas than they are in a small neighborhood in Greenville?" appellant replied, "Well, I never knew."
Appellant also testified that he had trouble in school "comprehending things." He explained that he had trouble comprehending "my literature and things like that or things people are saying. I will misplace words, and it's-it's-as far as like understanding correctly." He later testified,
Q. Do you think a lot about-when you use words, do you think a lot about the words that you use?
A. No, sir. I just-I just use certain words like-I just have certain meanings for a lot of words. I mean, I don't have-I guess the right comprehension skills to just-you know, referring to somebody as the right thing because I was always around just how I say words or just the people I'm around or just-it just-it rolls out of me, yes, sir.
Appellant's counsel then asked if appellant understood "that this trial is about what-what it looks like some people did that you gave a ride to? Do you understand that?" Appellant asked counsel to repeat the question. The trial court then excused the jury while appellant's competency was evaluated by Dr. Lisa Clayton, a forensic psychiatrist. Dr. Clayton apparently found appellant competent, but she also opined that he had a "below average" IQ.
The defense sought to offer Dr. Clayton's testimony that persons with a below average IQ (1) are more naïve and "child like in their overall understanding of things," including interactions with others in social settings; (2) trust people more easily and seek others' approval; (3) "don't think abstractly about motives or consequences" and might not reach the same conclusions as others concerning other people's actions; (4) "might be more frozen and not remember things" when under stress such as a police interview; and (5) "can't think of things in an abstract manner." The trial court denied the defense's motion, and Dr. Clayton did not testify before the jury.
Appellant testified that although little partner told him he needed the ride to break into his uncle's house, "I didn't think he was going to actually do what he said." He gave little partner and the others a ride "not knowing anything" about what they were going to do. He said that he would have acted differently "knowing what [I] know now," testifying that "I wouldn't took these guys nowhere, Mr. Cox, at all. I feel bad that someone had to die in this situation." He also denied seeing any guns on the night of the murder.
When appellant's counsel concluded appellant's direct examination, the State requested a hearing outside the jury's presence regarding evidence it sought to introduce:
MS. WESTBROOK: Yes, Your Honor, we believe that the Defendant in his testimony opened the door to character evidence. He previously testified that he's a friendly person. We also believe that he opened the door to his level of sophistication. He said that he is not good with literature. Specifically, we know him to be a rapper where he does fluently form sentences and phrases and frequently writes raps. And we believe that that directly relates to his ability to understand what people are communicating to him and form his own opinions about things.
The trial court then viewed the "pertinent part" of State's Exhibit 78 (Part 2), a video recording of a rap song called "Off Days." The video shows a group of approximately ten young Black men rapping about having weapons and selling drugs; the portion played for the trial court was appellant's solo verse. Appellant's rap name, "Block Da Foo Foo," is one of five rap names listed in the video's opening credits. In its appellate brief the State explains, "[t]he segment featuring appellant begins about 2 minutes and 47 seconds into the video, and it shows appellant in various frames holding one or two bottles with white labels as he raps about topics such as 'two Glocks on me' and 'I'm the trap king.' Appellant's rap lasts about 45 seconds in total."
The defense objected that appellant was only lip syncing on the video, and further argued:
MR. COX: Well, okay, so my objections to this are as follows: That if it is-if it is perhaps offered as some type of a rebuttal to show that Mr. Hart is significantly articulate, there's no[t] any evidence that-first, that he wrote these words, or, second, if he did write them, how long it took him to write them. Third, he isn't singing here. He is lip-syncing a song.
Next, I'm objecting because as the Court just heard, this song is a glorification of criminal activity, including guns and drugs and violence. And in a case like this, its prejudicial effect would be quite significant, and accordingly, I'm objecting that its prejudicial effect significantly outweighs its probative value.
So on relevance and prejudicial effect significantly out weighing the probative value, I'm objecting.
THE COURT: Well, I believe he certainly brought his character into question based on his testimony today.
The court also viewed State's Exhibit 78 (Part 1), a video recording of a rap song called "I Won't Tell." This video features a still image of three cartoon cough-syrup bottles with arms and hands. One bottle has its fingers in its ears, the second bottle has its hands over its eyes, and the third bottle has its hands over its mouth. On cross-examination, appellant identified these as "Promethazine bottles," but when asked whether Promethazine was "a recreational drug," testified "I don't-I don't know what that is, ma'am." On the upper portion of the image on the video is the title "I.W.T.," and underneath is the name "Block Da Foo Foo." Appellant testified he did not create the image; he said "I had a person that made that for me." The image remains on the screen during the entire 1 minute and 40 seconds in which appellant is heard rapping about various situations in which he "won't tell," including getting "caught with dirty money," or "even if I go to jail."
The defense objected to its admission, but the trial court overruled the objection:
MR. COX: And, again, Judge, the-I'm asserting that these are not the Defendant's lyrics that he wrote, or that he is actually singing, that at most this is the Defendant in the first video mouthing some words, and so [respectfully, it's] difficult for the Defense to understand how it is that these things might be relevant.
THE COURT: Okay. The objection is overruled.
MR. COX: And if I understand correctly, the Court is saying because the Defendant testified as to him being friendly, that that opened the door as to the character witness evidence?
THE COURT: Well, that in addition to the rest of his testimony.
Later, defense counsel stated for the record that when the State offered "evidence as to rap lyrics, videos, et cetera," "I objected at sidebar as to relevance and that the prejudicial effect substantially outweighed the probative value and asserted that those were rap lyrics, that the videos were not the Defendant's words, that they were lip-syncing, and, again, that the prejudicial effect outweighed the probative value. The Court overruled those objections and admitted those exhibits."
The State also offered four exhibits of posts appellant made on Facebook. In Exhibit 80, appellant commented, "You know I draw down you draw attention slime." Exhibit 81 contained appellant's photo with the post, "Pull-up with them straps on me like Steve Urkel!!" The State contended that both of these posts were about guns. Exhibit 82 included a picture of appellant with a backpack, and the comment "gotta hide the blicky," which the State contended was a reference to a "blinky," meaning a gun. And in Exhibit 83, appellant commented, "Best advice i kan give my lil [word deleted] dont get kaught." Appellant testified that each comment was a "[Y]oung [T]hug lyric." He explained that he did not carry guns, and the lyrics were not about him.
The State cross-examined appellant about rap music, eliciting appellant's testimony that his "rap name" is "Block Da Foo Foo" and that he rapped and wrote rap lyrics as "a hobby." When the State moved to admit Exhibit 78 into evidence, appellant's counsel objected, "Again, Your Honor, objecting on relevance, just a vilification of character by rap, and also that the prejudicial effect outweighing the probative value." The trial court overruled the objections and admitted Exhibit 78 into evidence. The record reflects that the jury heard the entirety of "I Won't Tell" and the portion of the "Off Days" video in which appellant had a solo part. When cross-examined after each video, appellant replied "it's just rap." On redirect examination, appellant confirmed that he was not "actually singing" in the "Off Days" video; he "was just mouthing the words." He also testified that he did not write the lyrics he rapped in "Off Days."
The State did not mention the rap videos or the Facebook posts in its closing arguments. Defense counsel argued:
So their theory is that Larry Hart, the guy who lip syncs rap-I mean, they show you this rap video where the evidence was he didn't write that, and he's lip-syncing something, and it's about-yeah, it's this
gangster rap. I mean, it's gangster rap. It's singing about gangster kind of stuff. And it's-I think very wrong to try to use that as evidence of somebody being guilty of a crime. And I hope that you see it for what it is, and that is it's basically trying to smear a guy, that's trying to bring up some stuff that doesn't have anything to do with anything.
It isn't showing that he's some master eloquent speaker, or-you know, if you are writing things down, it doesn't-I mean, taking the time to slowly, when you're by yourself, write lyrics down, doesn't mean you have a really good thought process. It doesn't mean that you-the fact that you can write things down, you don't know how long it takes somebody to write them down.
The jury found appellant guilty, and the trial court rendered judgment on the jury's verdict. This appeal followed.
Appellant's Issues
In five issues, appellant challenges the admission and exclusion of evidence. In his first, second, fourth, and fifth issues, appellant challenges the trial court's admission of his rap videos, his Facebook records, his oral statement, and a witness's opinion about appellant's truthfulness. In his third issue, appellant challenges the trial court's ruling excluding an expert's opinions about the characteristics of persons with a below-average IQ.
Standard of Review
An appellate court reviews the trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). The trial court abuses its discretion when the decision falls outside the zone of reasonable disagreement. Id. at 83. An appellate court will uphold a trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Discussion
1. Admission of rap videos and Facebook posts containing rap lyrics (Issues 1 and 2)
In his first issue, appellant contends the trial court erred by permitting the introduction of his rap videos into evidence. He argues that his ability to lip sync rap music was not relevant to any issue in the case, and the introduction of the videos into evidence was highly prejudicial and "an attempt to vilify Appellant's character for cultural reasons" and on the basis of his race and youth. In his second issue, appellant contends the trial court erred by permitting the introduction of his Facebook posts mentioning rap lyrics into evidence, for the same reasons.
The State responds that the videos and Facebook posts were relevant to rebut "appellant's characterization[s] of himself" as "inept with words and comprehension and naïve about life in a big city" and "too naïve to have understood the criminal intentions of his accomplices." The State also argues that the record supports the trial court's findings that the probative value of the evidence was not outweighed by the danger of unfair prejudice.
A. Applicable rules of evidence
Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Tex. R. Evid. 401; see also Henley, 443 S.W.3d at 88 (evidence is relevant if "helpful in determining the truth or falsity of any fact that is of consequence in the case"). Relevant evidence is admissible unless a rule, statute, or constitutional provision provides otherwise. Tex. R. Evid. 402. The trial court may exclude relevant evidence, however, "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403.
"Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Tex. R. Evid. 404(a)(1). But in a criminal case, a defendant may offer evidence of his "pertinent trait," and if the evidence is admitted, the prosecutor may offer evidence to rebut it. Tex. R. Evid. 404(a)(2)(A); Turner v. State, 413 S.W.3d 442, 453 (Tex. App.-Fort Worth 2012, no pet.). A pertinent character trait is "one that relates to a trait involved in the offense charged or a defense raised." Turner, 413 S.W.3d at 453 (internal quotation omitted).
B. Admission of rap videos and Facebook posts as rule 404 character evidence
We first consider whether the trial court abused its discretion in ruling that the videos and appellant's Facebook posts were admissible under rule of evidence 404(a)(2)(A) to rebut the evidence appellant offered about his character. As the trial court noted, appellant "certainly brought his character into question based on his testimony." If the videos and Facebook posts were inadmissible under rule 404, then we need not reach the question whether their probative value was substantially outweighed by a danger of unfair prejudice under rule 403. See Tex. R. Evid. 403, 404.
We have recently concluded that rap recordings found on the internet and social media depicting a defendant singing lyrics relating to drug sales and gun violence were relevant in the punishment phase of a murder trial as evidence of the defendant's character, opinion regarding violence, or propensity for future violence. McDade v. State, 613 S.W.3d 349, 353-58 (Tex. App.-Dallas 2020, no pet.). The record in McDade showed that the defendant had posted his name, contact information, and online handles with the recordings and had written, performed, and posted the songs on the internet. See id. at 355. Although we concluded that rap recordings may be relevant character evidence, McDade is not precisely on point because in that case, the evidence was not offered until the punishment phase of the trial and was offered for a different purpose. See id. at 354-55; see also Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (permitting parties to offer evidence during the punishment phase of the trial "as to any matter the court deems relevant to sentencing," including character evidence).
Appellant admittedly drove little partner and others to and from Gardner's home. Appellant also admitted that little partner told him of the plan to break into Gardner's home. Video surveillance shows appellant driving around Gardner's apartment complex, waiting in his parked car for the others to return, driving two of the individuals away from the scene, and later picking up the other two individuals who had driven away from the complex in Gardner's car. The question for the jury was appellant's intent or knowledge in taking these actions. See Tex. Penal Code §§ 19.02, 19.03 (defining offenses of murder and capital murder and required intent).
Appellant offered evidence that he was unsophisticated, friendly, and trusting, and he testified that he lacked "the right comprehension skills . . . around just how I say words." In sum, appellant sought to establish his pertinent character traits of unsophistication, naïveté, and difficulties in communicating with others. Because appellant offered this evidence in the guilt-innocence phase of the trial, rule 404(a)(2)(A) permitted the State to offer evidence to rebut it. See Tex. R. Evid. 404(a)(2)(A).
The State countered that appellant's ability to "fluently form sentences" and "frequently write[ ] raps" was evidence "that directly relates to his ability to understand what people are communicating to him and form his own opinions about things," as the State's attorney argued to the judge at trial. Although the State did not mention the rap recordings or the Facebook posts in closing argument, it challenged appellant's purported credulity:
Ladies and gentlemen of the jury, this is not Ma[y]berry RFD and this guy is no Gomer Pyle. The Defense would have you believe that poor old Larry Hart from Greenville, Texas, is just the kind of guy that gives people a ride, just because. That's the way he was raised. And he'd just help out. He doesn't know anything about Dallas. He doesn't know anything about people in Dallas or how people interact. He doesn't know about the dangers of the streets of Dallas. Poor Larry Hart.
The State argues that the videos and Facebook posts were relevant character evidence "to rebut the defensive theory that appellant lacked the communication and comprehension skills necessary to intentionally assist in the capital murder." The State contends that even though "[n]ot all of the lyrics are entirely intelligible in the two videos," both "feature appellant rapping fluidly without hesitation as he appears to string one thought after another." The State also argues that "based on the subject matter of the videos-guns, drugs, dirty money, and jail-the court could have reasonably determined that the videos were also relevant to rebut the defensive theory that appellant was too naïve to have understood what he was agreeing to when he agreed to give a ride to his little partner and the other individuals." And the State argues that the Facebook posts "demonstrated appellant's casual use of language to allude to criminal subject matter" and "showed appellant was actually savvy about criminal matters." The State concludes that the posts "were relevant to rebut the defensive theory that appellant was too naïve and innocent to have understood that he was aiding in a capital murder."
Before we may reverse the trial court's decision to admit or exclude evidence, we must conclude that "the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree." Henley, 493 S.W.3d at 83 (internal quotation omitted). Further, "[e]vidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). "To decide whether a fact is 'of consequence' to the case, we must look at [the proponent's] purpose for offering the evidence and decide whether that purpose can be achieved with such evidence." Henley, 493 S.W.3d at 88.
We conclude that evidence of appellant's ability to rap, lip sync, or post lyrics about crime is a "small nudge" toward proving a "fact of consequence"- specifically, appellant's ability to comprehend, and to form intent regarding, little partner's plan to break into Gardner's home. See Stewart, 129 S.W.3d at 96. Appellant affirmatively placed his character for credulity into evidence, and we cannot say the trial court erred by ruling the evidence was relevant to that question. See Tex. R. Evid. 404(a)(2)(A) (when defendant offers evidence of pertinent character trait, prosecutor may offer evidence to rebut it). Consequently, we must consider whether the evidence's relevance was substantially outweighed by a danger of unfair prejudice under rule of evidence 403.
C. Danger of unfair prejudice under rule 403
In Casey v. State, the court explained that "[u]nfair prejudice refers not to an adverse or detrimental effect of evidence but to an undue tendency to suggest a decision on an improper basis, commonly an emotional one." 215 S.W.3d 870, 883 (Tex. Crim. App. 2007) (citing Old Chief v. United States, 519 U.S. 172, 180 (1997)). The court continued:
Unfair prejudice does not arise from the mere fact that evidence injures a party's case. Virtually all evidence that a party offers will be prejudicial to the opponent's case, or the party would not offer it. Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence. The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant.Id. (citations omitted). In Manning v. State, the court explained that "'the term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.'" 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (quoting Old Chief, 519 U.S. at 180).
In considering a rule 403 challenge, courts must balance:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). "[T]hese factors may well blend together in practice." Id. at 642. We consider the record in light of these factors. See id.
The factors courts consider in the rule 403 analysis are sometimes stated as the "Montgomery factors," based on the court's analysis in Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (op. on reh'g). The Montgomery factors are usually stated as (1) how compellingly the evidence serves to make a fact of consequence more or less probable; (2) the potential the evidence has to impress the jury "in some irrational but nevertheless indelible way"; (3) the time the proponent needed to use in developing the evidence; and (4) the proponent's need for this evidence. See, e.g., Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. App. 2021). In Gigliobianco, the court explained that by its restatement of the factors to consider in a rule 403 analysis, "we do no more than refine and build upon our previous analysis, and bring it in line with the plain text of Rule 403." Gigliobianco, 201 S.W.3d at 642 n.8. The Court of Criminal Appeals continues to rely on both Gigliobianco and Montgomery in its rule 403 analyses. See, e.g., Inthalangsy, 634 S.W.3d at 758 (citing Gigliobianco but listing the factors from Montgomery); Casey, 215 S.W.3d at 879-80 (citing both cases).
Probative value and State's need for the evidence. The trial court reasonably could have concluded that the inherent probative force of the rap videos and Facebook posts was considerable, as was the State's need for the evidence. When the State sought to introduce the evidence, the jury had just heard and observed appellant's live testimony on direct examination. Appellant often asked his counsel to repeat questions and exhibited enough difficulty in answering them that the trial court sent the jury out and questioned appellant's counsel about a competency exam. During the State's case, the jury had also heard a recording of appellant's interview with law enforcement where appellant exhibited a similar demeanor. Before introduction of the videos and Facebook posts, the jury had heard only appellant's evidence of his purportedly limited communication and comprehension skills and his naïveté, supporting appellant's contention that he lacked intent and understanding of little partner's plans.
Appellant's ability to communicate and his ability to understand others' criminal intentions were highly relevant to the issue of his intent in driving little partner and others on the night in question, the primary disputed issue at trial. As the State argues:
The jury was instructed in part that "[a] defendant conspires with others to commit a felony offense" if: "1. The defendant intends that a felony offense be committed; 2. The defendant agrees with one or more persons that one or more of them engage in conduct that would constitute the felony offense; and 3. One or more of them performs an overt act in pursuance of the agreement. An agreement constituting a conspiracy may be inferred from acts of the parties."
At trial, the fact that appellant drove his little partner and other individuals to the decedent's apartment, where they murdered the decedent, was undisputed. The fact that his little partner told appellant of his plan to break into his uncle's apartment was also undisputed. Appellant's only defense was that he did not intentionally assist in the commission of the capital murder because he was too naïve and slow to have understood what his little partner told him or to have appreciated the nature of the situation. The rap videos directly rebutted this theory by demonstrating appellant's ability to easily communicate with words and his familiarity with criminal subject matter. The videos, in other words, showed appellant was not as innocent and slow as he claimed, and the State's need for the videos was fairly high.
Although appellant argues the videos and posts had no probative value and served only to "vilify Appellant's character for cultural reasons," the trial court reasonably could have concluded that the probative value of the evidence and the State's need for it were high.
Improper basis for decision, confusion of the issues, and misleading the jury. The trial court reasonably could have concluded that the evidence would not "distract the jury from the main issues" and the jury could properly evaluate the evidence's probative force. See Gigliobianco, 210 S.W.3d at 641. The jury was presented with undisputed evidence of appellant's actions on the night of the murder. The charge's instructions about the sole issue the jury was to decide are unchallenged. Neither party emphasized the videos and posts in closing argument. Although the evidence did have potential to impress the jury "in some irrational but nevertheless indelible way," see Montgomery, 810 S.W.2d at 390, we cannot say the trial court's balancing determination was "a clear abuse of discretion." Id.; see also Gigliobianco, 210 S.W.3d at 642-43 ("The trial court, after balancing the various Rule 403 factors, could have reasonably concluded that the probative value of [the challenged evidence] was not substantially outweighed by the countervailing factors specified in the rule. Therefore, we discern no abuse of discretion on the part of the trial court . . . .").
Undue delay and needless presentation of cumulative evidence. The State did not seek to introduce the evidence until after appellant's direct testimony on the last day of the four-day trial. Although the videos and Facebook posts were a primary feature of the State's cross-examination of appellant, the record reflects that the State spent far more time presenting evidence of the murder and subsequent investigation, including video of the premises on the night of the offense, police officers' testimony of the crime scene, the search for the car used in the offense, the medical examiner's testimony, and appellant's recorded interview with police. Appellant does not dispute this point, arguing that the State did not mention the videos in closing argument because "just getting [the exhibits] before the jury was sufficient" to serve the State's purpose "to prejudice the Appellant." And as we have already discussed, the videos and Facebook posts provided probative and non-cumulative evidence. Consequently, these factors support the trial court's ruling. See Gigliobianco, 210 S.W.3d at 642.
D. Conclusion
After reviewing the evidence in light of the relevant factors, we conclude that the trial court did not abuse its discretion in admitting the rap videos and Facebook posts into evidence. See id. at 641-42. In reaching this conclusion, we agree with the dissenting Justice's concern that in most cases, admission of rap music or lyrics is highly prejudicial and of little or no relevance to the issues the jury must resolve during the guilt/innocence phase of the trial. We do not generally favor the proffer or admission of this evidence during the guilt/innocence phase, for all of the reasons the dissenting Justice expresses. Nonetheless, we conclude that on this record, the trial court did not abuse its discretion in admitting the evidence for the purpose of rebutting character evidence that appellant himself proffered. We decide appellant's first two issues against him.
2. Exclusion of Dr. Clayton's testimony (Issue 3)
During a recess, forensic psychologist Dr. Lisa Clayton evaluated appellant to determine competency. The evaluation took place after appellant testified that (1) he grew up in a small town, (2) he had trouble in school "comprehending things," (3) he considered himself to be a friendly person, (4) he has had head injuries, but has not had time to see a doctor to have them diagnosed, (5) his use of the words "little partner" did not signify any particular close relationship, and (6) he does not have the "right comprehension skills" to understand the words he uses.
Appellant's counsel then asked appellant if he understood "that this trial is about what-what it looks like some people did that you gave a ride to." When appellant asked counsel to repeat the question, the judge excused the jury and asked appellant's counsel whether he believed appellant to be competent. Although counsel answered, "I do," he also suggested that appellant might be evaluated "out of an abundance of caution," "given the seriousness of the offense." The trial court questioned appellant briefly to confirm his understanding of the charges against him, the purpose of the trial, and his opportunity to consult with counsel. The proceedings were then recessed while appellant was evaluated by Dr. Clayton.
After the recess, appellant's counsel reported that "Dr. Clayton is of the opinion that Mr. Hart is competent to go forward." But counsel requested the opportunity to call Dr. Clayton to testify that appellant is "of low IQ." The State objected on the ground that "[i]t's an attempt to argue diminished capacity." The defense then made an offer of proof, calling Dr. Clayton to testify that appellant has a "below average," "70 to 80 IQ." Dr. Clayton clarified that appellant's IQ was above a "borderline retardation" score of 55 to 65, and testified that appellant would not fall into that category. But she also testified that persons with an IQ in the same range as appellant's are "more naïve" and "don't think abstractly" about others' "motives or consequences." She explained that the stress of a trial might cause someone with appellant's IQ to "be more frozen and not remember things" when testifying.
The court ruled that Dr. Clayton could not testify on these matters before the jury. In his third issue, appellant contends the trial court abused its discretion by excluding Dr. Clayton's testimony. Appellant contends Dr. Clayton's testimony was relevant "particularly after the State introduced testimony clearly to show [appellant] could fluently form sentences and phrases and his ability to understand what people are communicating to him and form his own opinion about things." Appellant argues that his "only defense was that he did not know the people he took to the apartment were going to commit burglary or murder. Dr. Clayton's testimony was relevant on that issue." He continues, "[t]he State was permitted to use rap videos and Facebook entries, some years before the date of the offense to refute Appellant's defense."
The State responds that the trial court's ruling was made during appellant's direct examination by his own counsel, before the State sought to introduce the rap videos and the Facebook posts and cross-examine appellant about them. As the State argues, we consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
After the court's ruling permitting admission of the rap videos, defense counsel announced he would be asking to call Dr. Clayton, but the record does not include any ruling on the request.
Appellant further argues that he was "denied an opportunity to present to the jury his defense theory based on Dr. Clayton's testimony," citing Miller v. State, 42 S.W.3d 343, 347 (Tex. App.-Austin 2001, no pet.) (op. on remand). In Miller, the defendant admitted that she had delivered drugs to an undercover officer, but she claimed she was acting under duress because the person who arranged the transaction had threatened her with physical violence, had beaten her in the past, and did so again in the hours following the transaction. Id. at 344, 346. The trial court allowed testimony about a previous assault but excluded evidence of the subsequent attack. Id. at 345. The court of appeals initially affirmed the conviction, but after reversal and remand by the Court of Criminal Appeals, the court held that the exclusion was harmful because the trial court's ruling prevented the defendant from showing she was under a constant state of duress, an issue on which she had the burden of persuasion. See id. at 346-47.
The State responds that even if appellant had all the characteristics to which Dr. Clayton testified-that he might be more trusting than the average person, unable to see through a person's motive, and have difficulty thinking abstractly about consequences of actions-"there was no indication that, due to his lower IQ, appellant was unable to understand what his little partner meant when he plainly asked appellant for a ride so that he could break into his uncle's home." The State argues there is no evidence that appellant "was somehow deceived or manipulated" into driving little partner and others to the decedent's apartment, driving around the parking lot to make sure decedent's car was there, waiting for little partner and the others to return, driving two of the individuals away from the scene, and later picking up the other two individuals from the decedent's car.
Expert evidence of mental illness may be "relevant, reliable, and admissible to rebut proof of the defendant's mens rea," even though Texas law does not recognize a "diminished responsibility" or "diminished capacity" defense to criminal responsibility. Ruffin v. State, 270 S.W.3d 586, 593, 595 (Tex. Crim. App. 2008). But such evidence may be excluded if, among other reasons, "it does not truly negate the required mens rea." Id. at 596. The jury was instructed that "A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Appellant admitted little partner told him the purpose of the trip was to break into his uncle's home. Dr. Clayton testified that a person with appellant's IQ might seek approval from others, be unable to think abstractly about others' motives, and "be more naïve and just slow in their overall uptake on things." On this record, the trial court could have concluded that Dr. Clayton's testimony did not refute the required mens rea, but instead tended to support a finding that appellant took little partner's statement at face value and acted with intent to "promote or assist" little partner in little partner's stated plan. We conclude it was within the trial court's discretion to exclude Dr. Clayton's testimony at the time it was offered. See Henley, 493 S.W.3d at 82-83. We decide appellant's third issue against him.
3. Admission of Detective Trujillano's testimony (Issue 4)
In his fourth issue, appellant contends the trial court erred by permitting Detective Trujillano to comment on whether certain statements appellant made during their interview were lies. In a series of questions, the State asked Trujillano about particular statements made by appellant in the interview. The State asked Trujillano whether each statement was a lie, and if so, how he knew the statement was a lie. Each time, the State elicited the response that appellant's statement was contradicted by what could be seen in the video of the victim's premises from the night in question. For example, Trujillano testified:
Q. Okay. Did [appellant] say how long he was going to wait for the people once he dropped them off?
A. He said he was only going to wait five minutes.
Q. Was that a lie?
A. Yes.
Q. Why was that a lie?
A. The video, you see him parked over 11 minutes.
Appellant concedes he did not object to the testimony, but argues that an objection was unnecessary to preserve a complaint about "fundamental error (Marin I or II)."
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling if the grounds were not apparent from the context of the request, objection, or motion. Tex.R.App.P. 33.1(a)(1); Herrera v. State, 599 S.W.3d 64, 67 (Tex. App.-Dallas 2020, no pet.).
There are only a few exceptions to this general rule. In Marin v. State, the Court of Criminal Appeals set out rules for preserving error in three categories: (1) absolute systemic requirements and prohibitions (structural error), (2) rights that must be implemented unless expressly waived (waivable-only rights), and (3) rights that are implemented upon request. 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Under Marin, "the rules that require a timely and specific objection, motion, or complaint" to preserve error do not apply to the first two, "relatively small categories of errors." Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (discussing Marin, 851 S.W.3d at 280). Errors in these two categories may be raised for the first time on appeal. Id. But errors in the third category must be preserved by objection at trial. See id. at 889.
"Systemic or absolute requirements include, but are not limited to, personal jurisdiction, subject-matter jurisdiction, a penal statute's compliance with the separation of powers section of the state constitution, a constitutional requirement that a district court conduct its proceedings at the county seat, a constitutional prohibition against ex post facto laws, and certain constitutional restraints on the comments of a trial judge." Herrera, 599 S.W.3d at 67 (citing Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002)).
"Waivable-only rights include such rights as the right to assistance of counsel at trial, the right to trial by jury, and the right of appointed counsel to have ten days of trial preparation." Herrera, 599 S.W.3d at 67 (citing Saldano, 70 S.W.3d at 888, and Aldrich v. State, 104 S.W.3d 890, 895-96 (Tex. Crim. App. 2003)).
Appellant contends that Trujillano's opinions usurped the jury's function of determining the truth or falsity of his testimony and his guilt or innocence. He argues that the error was fundamental and falls within both of the first two Marin categories because it deprived him of his constitutional right to a jury trial. He concludes that because the error falls within Marin's first two categories, "Rule 33.1's preservation requirements do not apply." We disagree.
The Court of Criminal Appeals has explained that Marin's third category- "forfeitable rights"-includes "'the myriad evidentiary and procedural rules' compris[ing] our system." Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004) (quoting Marin, 851 S.W.3d at 278). "Unless a litigant exercises his option to exclude evidence it is to be admitted." Marin, 851 S.W.2d at 278. An objection is required "even if the erroneous admission implicates a constitutional right." Zill v. State, 355 S.W.3d 778, 789 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (citing Saldano, 70 S.W.3d at 889).
Complaints regarding the improper admission of evidence must be raised at trial to be preserved for consideration on appeal. See, e.g., Saldano, 70 S.W.3d at 890 ("Because appellant did not object to the admission of the testimony of which he now complains, the question he seeks to present has not been preserved for appeal."); Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) ("To preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection . . . to give the trial court . . . the opportunity to correct the error."). We conclude appellant failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a). We decide appellant's fourth issue against him.
4. Admission of appellant's oral statement (Issue 5)
In his fifth issue, appellant contends the trial court erred by denying his motion to suppress Exhibit 64, his oral statement to the police recorded at Rodneisha's apartment, and by admitting the statement into evidence. We conduct a "bifurcated review" of the trial court's rulings, affording "almost total deference [to] the trial judge's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor," but reviewing "de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor." Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012).
Appellant objected at trial that the in-person interview at the apartment was preceded by a telephone call in which Detective Trujillano coerced appellant "with the threat of further harassment by the police and other vague threats to-for law enforcement to continue to harass him and come after him and stop him until such time as he gave a statement on this case." Appellant argued that he "was at an apartment with his children and Rodneisha's children and Rodneisha was placed under arrest. There was not another adult there to take care of the children. And [appellant] was aware that Rodneisha was under arrest at that time."
The record reflects that appellant was driving Rodneisha's car on the night of the offense. When police located the car the following day, Rodneisha was driving it, and she was arrested at that time for unrelated outstanding warrants.
The trial court heard this objection out of the jury's presence and overruled it. Appellant argues that because of these threats, his statement was not voluntarily made, and he should have been given Miranda warnings before any questioning by police. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); see also Tex. Code Crim. Proc. art. 38.22, § 3(a)(2); Herrera v. State, 241 S.W.3d 520, 525-26 (Tex. Crim. App. 2007).
In Gardner v. State, the court explained that the "appropriate inquiry" in determining whether a person is "in custody" for purposes of receiving Miranda warnings is "whether there is a 'formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). The defendant bears the initial burden of proving that a statement was the product of custodial interrogation. Id. The court in Gardner explained that there are "four general situations that may constitute custody for purposes of Miranda and [code of criminal procedure] article 38.22":
(1) The suspect is physically deprived of his freedom of action in any significant way;
(2) A law enforcement officer tells the suspect he is not free to leave;
(3) Law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and
(4) There is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave.Id. at 294. Appellant argues the third and fourth of these situations occurred here.
The State responds that appellant did not offer any evidence about the circumstances surrounding the interview to support his objection. Before the suppression hearing, the jury heard Trujillano testify that he obtained appellant's telephone number from Rodneisha and called appellant to ask him to come to headquarters and talk. The detective testified that appellant told him he wanted to come but could not because he was at home with small children and could not bring them. Trujillano then went to appellant's home for the interview. In the subsequent hearing outside the jury's presence, appellant did not question Trujillano or point to any specific line of questioning in the interview to support his contention that he was in custody.
When the jury returned, Trujillano testified that he told appellant "he wasn't going to be arrested that day," and "repeatedly" told appellant "he didn't need to worry about being taken in." Although appellant later testified and was questioned about the interview, he did not mention the officer's telephone call before the interview, discuss his freedom of movement, or provide evidence to support a finding that any of the Gardner situations applied. We conclude the trial court did not abuse its discretion in denying appellant's motion to suppress and by admitting Exhibit 64 into evidence.
We decide appellant's fifth issue against him.
5. State's Cross-Issue
In its cross-issue, the State contends the judgment should be reformed because it contains three errors: (1) it states that the jury assessed punishment; (2) it states that appellant was convicted of "capital murder terroristic threat"; and (3) it does not reflect the jury's deadly weapon finding. The State argues the judgment should be modified to reflect that appellant was convicted of capital murder by burglary, the trial court assessed punishment, and the jury made an affirmative deadly weapon finding.
Where, as here, the record contains the necessary information to do so, the appellate court has the authority to modify the incorrect judgment. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); Estrada v. State, 334 S.W.3d 57, 63- 64 (Tex. App.-Dallas 2009, no pet.) (same).
The record reflects that after the jury returned its verdict of "guilty of capital murder, as charged in the Indictment," the trial court imposed a mandatory sentence of life without parole. See Tex. Code Crim. Proc. Ann. art. 37.071, § 1. (a) ("If a defendant is found guilty in a capital felony case in which the state does not seek the death penalty, the judge shall sentence the defendant to life imprisonment or to life imprisonment without parole as required by Section 12.31, Penal Code."). Consequently, we may modify the judgment to reflect that the court assessed punishment. See Estrada, 334 S.W.3d at 63.
Regarding the description of the offense and the deadly weapon finding, the indictment contains the heading, "capital murder by terror threat/other felony," but provides in its substance:
That LARRY JEAN HART Jr, hereinafter called Defendant, on or about the 22nd day of June, 2017, in the County of Dallas, State of Texas, did unlawfully then and there intentionally cause the death of MICHAEL GARDNER, an individual, hereinafter called deceased, by SHOOTING DECEASED WITH A FIREARM, and the defendant was then and there in the course of committing and attempting to commit the offense of BURGLARY of said deceased,
Against the peace and dignity of the State.
The charge included instructions and definitions regarding burglary and criminal responsibility for an offense committed by the conduct of another. The jury was also instructed that "'Deadly weapon' means a firearm . . .," and the charge's application paragraph for capital murder included "shooting deceased with a firearm" in describing the offense. The jury found appellant "guilty of capital murder, as charged in the Indictment."
We conclude the record includes the necessary information regarding the offense and the affirmative deadly weapon finding. The charge, as quoted above, instructed the jury regarding capital murder by burglary. And although the words "deadly weapon" were not used in the indictment or the charge, both the indictment and the charge included the phrase, "by shooting deceased with a firearm." A court "can determine that the trier of fact actually made an affirmative finding of a deadly weapon" where "the indictment did not use the words 'deadly weapon' but alleged use of a deadly weapon per se (such as a firearm)." Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016).
Accordingly, we modify the judgment in Cause No. F19-00575-W to reflect that (1) the trial court assessed punishment, (2) appellant was convicted of capital murder by burglary, and (3) the jury found that a deadly weapon was used in the commission of the offense.
Conclusion
We modify the trial court's judgment and affirm it as modified.
Reichek, J., dissenting
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that:
(1) the trial court assessed punishment,
(2) appellant was convicted of capital murder by burglary, and
(3) the jury found that a deadly weapon was used in the commission of the offense.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 30th day of August, 2022.
DISSENTING OPINION
AMANDA L. REICHEK, JUSTICE
At trial, the court admitted (1) two music videos featuring appellant singing or lip-syncing rap lyrics, and (2) appellant's Facebook posts containing rap lyrics written by other artists. I believe that this evidence's risk of unfair prejudice substantially outweighs its probative value, so I disagree with the majority's decision to affirm the trial court's judgment. I would instead find the trial court abused its discretion by admitting this evidence and that this error affected appellant's substantial rights, so I would reverse the trial court's judgment and remand for a new trial.
I agree with the majority opinion in all other respects.
The majority opinion sets forth the background facts in this case at length, and I will not repeat those facts other than to note the following. It is undisputed that on June 21, 2017, appellant drove three or four people to Michael Gardner's apartment, and his passengers robbed and killed Gardner while appellant waited in the car. Appellant's intent in driving these individuals to Gardner's apartment was the primary disputed issue at trial. Appellant's defensive theory was that he was too naïve or slow to appreciate the nature of the situation, and his attorney elicited testimony to support this theory when appellant testified during the guilt-innocence phase of trial. Before it began its cross-examination, the State argued that appellant opened the door to character evidence pertaining to his level of sophistication and comprehension, and that the State "know[s] him to be a rapper where he does fluently form sentences and phrases and frequently writes rap [and this] directly relates to his ability to understand what people are communicating to him and form his own opinions about things." The court agreed, and during its cross-examination the State introduced two different rap videos over appellant's Rule 403 objection- appellant's segment of a collaboration with other rappers entitled "Off Days" and a video entitled "I Won't Tell"-and four posts appellant made on Facebook-the words "You know I draw down you draw attention slime"; a picture of appellant with the caption "Pull-up with them straps on me like Steve Urkel!!"; a picture of appellant with a backpack and the comment "gotta hide the blicky"; and the words "Best advice i kan give my lil niggaz dont get kaught."
The subject matter of the videos is, as the State put it, "guns, drugs, dirty money, and jail." In appellant's segment of "Off Days" he can be seen swinging one or two bottles with white labels and smoking what looks like a marijuana joint as he raps about "pouring drink," having "two glocks," and being a "trap king." Appellant is not visible in "I Won't Tell" but can be heard rapping about various bad acts that he wouldn't admit to, including being "caught with dirty money" and "killing someone over a bill." A cartoon image is visible throughout the video depicting three bottles of promethazine, which is sometimes used as a recreational drug.
Although the State attempted to draw a connection between the lyrics of "Off Days" to the events of June 21, appellant maintained that "Off Days" was nothing more than a song. During his redirect he also testified that he didn't write the lyrics to his segment of the video, and that he was just lip-syncing in the video. Appellant likewise explained that "I Won't Tell" was "just rap" and did not relate to the events of June 21. Appellant explained his Facebook posts were merely lyrics by popular rap artists like Young Thug. This testimony was uncontroverted.
There was no evidence at trial that appellant used drugs, was a drug dealer (i.e. a "trap king"), or owned a gun or had one in his possession on June 21.
There was no evidence at trial that appellant drank promethazine on June 21 or that he received any money for participating in Gardner's robbery (i.e. "dirty money").
The majority concludes that the two videos and the Facebook posts were admissible under Texas Rule of Evidence 404(a)(2)(A), and I agree. Appellant's intent in driving the others to Gardner's apartment was key to his defense; to explain how he couldn't have understood that the group intended to rob Gardner even after he was told they planned on breaking into his apartment, appellant testified he had "trouble … comprehending things," such as "things people are saying." At one point his attorney asked appellant if he had any "conditions" and asked him if he recalled the detective asking him if he had any head injuries. Appellant wrote the lyrics to "I Won't Tell" and performed the song in the video. Although the lyrics of "I Won't Tell" aren't profound, his ability to write and perform them "provides a small nudge toward . . . disproving some fact of consequence," in this case, his ability to comprehend what people tell him. See Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). I therefore agree with the majority that "I Won't Tell" was relevant to character traits that appellant placed into evidence, and the trial court did not abuse its discretion in admitting it under Rule 404(a)(2)(A).
This is an inference based on the fact that appellant's attorney did not seek to clarify whether appellant wrote the lyrics or sang "I Won't Tell," while his attorney did establish that appellant did neither of these things with respect to "Off Days."
The majority also determined that appellant affirmatively placed his character for credulity into evidence by testifying that he's a "friendly person" with an "open heart" who gives people rides, consistent with his small-town upbringing. When asked if it occurred to him that giving people rides could lead to problems, and whether things might be different in Dallas than they were in the small neighborhood in Greenville where he grew up, appellant responded that he "never knew" because he "never just roamed," sticking to a few spots in Dallas. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Tex. R. Evid. 401. Although appellant didn't write the lyrics to "Off Days" and his Facebook posts were lyrics written by other artists, he was at least made aware of guns, trap houses, marijuana, and evading detection when committing crimes via this music, and his knowledge of these things rebutted his testimony that he was not hip to big city life. Given the low bar for determining relevance, the importance of intent in this case, and appellant's position that it was inconceivable to him that his passengers intended to break into Gardner's apartment and rob him, I agree with the majority that the court did not abuse its discretion by admitting this evidence under Rule 404(a)(2)(A).
Although this evidence was admissible under Rule 404(a)(2)(A), I believe it should have been excluded under Rule 403 because it was more prejudicial than probative. Tex. R. Evid. 403. Gangsta rap like that at issue in this case is characterized by "lyric formulas," a key one of which involves fictionalized bragging about the performer's "badness" vis-à-vis criminal behavior. Erin Lutes et al., When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77, 84 (2019). The genre often emphasizes violence in inner cities albeit not necessarily in an accurate manner. Nicholas Stoia, Kyle Adams & Kevin Drakulich, Rap Lyrics as Evidence: What Can Music Theory Tell Us?, 8 Race & Just. 300, 330-34 (2018). As one commentator put it:
It is true that these artists used their experiences to "keep it real," but the Gangster Rapper - the persona that drew the ire of a nation - was less a portrait of any real person and more a product of artistic hyperbole. It is a professional identity that artists continue to adopt today. Therein lies the first persistent myth about rap: the assumption that the events detailed in the music are wholly factual. When Ice-T released his single "6 'N the Mornin," he woke the music world up to gangster rap. . . . Regardless of what one thinks about the art, the song was only semiautobiographical. Ice-T later called his music "faction" - a blend between fact and fiction. The pure truth of the story was less important than the gravity of it. The shocking lyrics and perceived authenticity of it all brought attention to the harsh realities of people living in "the hood."Reyna Araibi, "Every Rhyme I Write": Rap Music As Evidence in Criminal Trials, 62 Ariz. L. Rev. 805, 815 (2020) (footnotes omitted). In other words, gangsta rap is not autobiographical. The dilemma is that listeners often believe that it is:
The mass appeal of hip-hop culture, combined with the success of packaged rap acts that cultivate fashionable images, has no doubt fueled many popular conceptions about the character of certain rap artists. Today, we as a society have come to expect the content of rap lyrics to accurately depict the true lifestyle of the artists who profess them, and our views of particular rappers' mental states and dispositions have been molded accordingly.Sean-Patrick Wilson, Rap Sheets: The Constitutional and Societal Complications Arising from the Use of Rap Lyrics As Evidence at Criminal Trials, 12 UCLA Ent. L. Rev. 345, 355 (2005). There is empirical evidence that people react negatively to gangsta rap, and these negative perceptions impact jury verdicts. In 1996 psychologist Carrie Fried conducted a study whereby she gave participants identical lyrics from the folk song "Bad Man's Blunder" by the Kingston Trio. Carrie B. Fried, Bad Rap for Rap: Bias in Reactions to Music Lyrics, 26 J. Applied Soc. Psychol. 2135 (1996). She told each set of participants that the lyrics came from either folk, country, or rap music and asked them to gauge how likely the lyrics were to incite violence. The results showed that people judged the song "significantly more negative on all measures" when told it was rap. Dr. Fried repeated the experiment but instead tied the lyrics to the race of the artist rather than the genre. Participants received the same lyrics but half of them were told a black man wrote the song while the other half were told a white man wrote the song. When participants believed that the musician was black, they found the lyrics more offensive and potentially violent. Fried concluded that genre and race significantly impact how people react to music lyrics, even when they are asked to judge them solely on the words. As she observed, "[e]ven a Kingston Trio song would be threatening if it were a rap song." Id. at 2141. Fried repeated the study in 1999 and reached the same result: people expressed instinctive bias towards rap, believing that its offensive lyrics were likely to promote "violence, riots, and civil unrest." Carrie B. Fried, Who's Afraid of Rap: Differential Reactions to Music Lyrics, 29 J. Applied Soc. Psychol. 705 (1999). Fried posited that "the lyrics of rap music are judged more harshly because rap is music associated with Black artists or Black culture. Rap lyrics may be rated as more hostile or aggressive or dangerous because of negative culturally held stereotypes." Id. at 708. More recently researchers replicated Fried's studies and found that negative reaction to lyrics increased when participants believed they were reviewing rap lyrics. Adam Dunbar, Charis E. Kubrin & Nicholas Scurich, The Threatening Nature of "Rap" Music, 22 Psychol. Pub. Pol'y & L. 280 (2016). Participants also believed rap lyrics were "more literal" than lyrics from other genres. Id. at 288.
Psychologist Stuart Fischoff studied how rap lyrics negatively impact the impartiality of criminal proceedings. Stuart P. Fischoff, Gangsta' Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psychol. 795 (1999). For his study Fischoff created a sample group of potential jurors, and each participant was assigned one of four conditions, each of which corresponded to a specific "target male." For each condition the target male was a black male. Condition 1 was only that the target was a black male; it did not mention his being accused of murder or that he wrote rap lyrics. Condition 2 stated the target male had been accused of murder, but made no mention of his writing rap lyrics. The target male in condition 3 was not accused of murder, but each participant in this group reviewed a set of violent rap lyrics purportedly written by the target male. The target male in condition 4 was both accused of murder and alleged to have written the same rap lyrics as the target male in condition 3. Not only was the target male who was accused of murder and wrote gangsta rap lyrics seen as more likely to have committed murder than a target male accused of murder who had not written such lyrics, but potential jurors were "significantly inclined" to judge a gangsta rap lyricist not accused of murder more harshly and with more disdain than a non-gangsta rapper who was accused of murder. Wilson summarized Fischoff's findings:
We may infer from the unambiguous results of these findings that people who write inflammatory gangsta lyrics invite a strong association with inferences about other negative traits. Indeed, it appears that - at least when it comes to gangsta rappers - the public firmly believes that the artist's "creative" expression is actually an authentic expression of their personality. After reading Fischoff's study, one could even argue that authoring rap lyrics vies with being charged with murder in terms of how a person perceives the target individual's personality traits. The results of the study clearly indicate that showing rap lyrics at a trial has the distinct potential of exerting a "significant prejudicial impact" on a juror's evaluation.Wilson, 12 UCLA Ent. L. Rev. at 373. In short, this connection between "rhyme and punishment" counsels restraint when it comes to admission of rap music in criminal trials.
This phrase was coined by the creators of the podcast "Louder than a Riot," which explores the "interconnected rise of hip-hop and mass incarceration." Sidney Madden, Louder than a Riot, NPR (2022), https://www.npr.org/podcasts/510357/louder-than-a-riot (last visited Aug. 30, 2022).
In considering a challenge under Rule 403, courts must balance what are known as the Montgomery factors: (1) how compellingly the evidence serves to make a fact of consequence more or less probable; (2) the potential the evidence has to impress the jury "in some irrational but nevertheless indelible way"; (3) the time the proponent used developing the evidence; and (4) the proponent's need for this evidence. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g).
Here the fact of consequence was appellant's intent in driving his passengers to and from Gardner's residence where burglary and murder occurred. The State argued the rap videos make culpable intent more probable:
Appellant's only defense was that he did not intentionally assist in the commission of the capital murder because he was too naïve and slow to have understood what his little partner told him or to have appreciated the nature of the situation. The rap videos directly rebutted this theory by demonstrating appellant's ability to easily communicate with words and his familiarity with criminal subject matter. The videos, in other words, showed appellant was not as innocent and slow as he claimed, and the State's need for the videos was fairly high.
But appellant did not write the lyrics to "Off Days," and his Facebook posts were merely lyrics from popular rap music. This evidence shed no light on appellant's ability to communicate with words, because these weren't his words at all. Assuming appellant wrote "I Won't Tell," there was no evidence of the ease with which he wrote these lyrics, how long it took him to write them, or whether anyone assisted him with the lyrics. Instead of developing this evidence, the State sought, improperly and unsuccessfully, to establish a connection between the events of June 21 and the actual content of the song. The lyrics themselves were unsophisticated, and for the most part simply repeated the same refrain with slight variations. As set forth above, although gangsta rap typically explores criminal subject matter, and these videos and Facebook posts are no exception, most gangsta rap is hyperbole. As appellant testified repeatedly, this was "just rap" and the State never proved otherwise. It also goes without saying that "familiarity" with criminal subject matter does not make someone more likely to participate in criminal activities.
We also consider the videos' potential to impress the jury "in some irrational but nevertheless indelible way." See Montgomery, 810 S.W.2d at 390. None of the subject matter of the videos was at issue at trial, yet as explained above, research demonstrates the jury could have concluded that appellant's knowledge of them through rapping made his guilt in this case more likely. The State spent a considerable portion of appellant's cross-examination on these videos and Facebook posts. See id. (considering time needed to develop the evidence). Regarding the State's need for the videos, the jury had both appellant's videotaped interview with police and appellant's live testimony at trial as evidence of appellant's credibility and demeanor, as well as video of appellant's admitted participation in the crime and his admission that he was told that the group intended to break into Gardner's home. The jury also heard testimony that appellant had graduated from high school, that he had graduated on time, and that he was working in home health. See id. (considering proponent's need for the evidence). In short, the jury had ample evidence with which to weigh appellant's purported lack of intelligence and the plausibility of his defense.
Few Texas cases address admission of rap videos during the guilt-innocence phase of trial. In Magee v. State, the court held that some, but not all, questions about defendant's "work as a 'rap' musician" were permissible during the guilt- innocence phase of a murder trial. 994 S.W.2d 878, 887-89 (Tex. App.-Waco 1999, pet. ref'd). The defendant testified about his work history, and over objection, the trial court permitted questioning on the defendant's "musical career" as a "rap musician with the stage name 'Demize,'" including that "his record label was 'Killer Instinct'; he was on an album titled 'Sex, Drugs and Guns, The American Way'; and that detractors may refer to the music as 'gangsta rap.'" Id. at 887.
Appellant cites Williams v. State, 47 S.W.3d 626, 630 (Tex. App.-Waco 2001, pet. ref'd), and Hughes v. State, 962 S.W.2d 689, 695 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd), both of which contain some reference to the admission of rap music evidence at the guilt-innocence phase, but appellant does not argue that either case provides an applicable analysis. See Williams, 47 S.W.3d at 630 (when considering a complaint about a jury instruction, court noted without further discussion that an accomplice "wrote rap lyrics about the string of robberies committed by the group"); Hughes, 962 S.W.2d at 695 (any error in admitting "brief and unclear" evidence about appellant's rapping was harmless where other eyewitnesses identified appellant as perpetrator of aggravated robbery at issue).
The court of appeals concluded that testimony about defendant's work as a rap musician and reference to the genre as "gangsta rap" was admissible because defendant "had testified as to part of his work history, and the State was entitled to complete that history." Id. at 888. But admitting the evidence of the "labels" such as "Demize," "Killer Instinct," and the album title was error. Id. at 888. The court explained that "[t]he inflammatory nature of these 'labels' does not compellingly serve to make a fact of consequence more or less probable, and it had the potential to impress the jury in an 'irrational' way." Id. Accordingly, the unfair prejudicial effect of the testimony about the "labels" substantially outweighed any probative value. Id. Ultimately the court concluded that this error was harmless given the testimony of numerous witnesses and the physical evidence supporting a finding of defendant's guilt. Id. at 889.
The issue of unfair prejudice arising from admission of rap lyrics into evidence has been considered in many other jurisdictions in the previous three decades. As one court recently noted, there is "a converging analysis among various state appellate courts: the probative value of a defendant's rap lyrics spikes-and consequently, the danger of unfair prejudice decreases-when a strong nexus exists between specific details of the artistic composition and the circumstances for the offense for which the evidence is being adduced." Montague v. State, 243 A.3d 546, 559, 559-66 (Md. 2020) (internal quotation omitted) (collecting cases). Holding that the trial court did not err in admitting the lyrics in question, the court in Montague explained, "While rap lyric evidence often has a prejudicial effect as improper propensity evidence of a defendant's bad character, those concerns are diminished when the lyrics are so akin to the alleged crime that they serve as 'direct proof' of the defendant's involvement." Id. at 569-70. Conversely, where "the violent, profane, and disturbing rap lyrics authored by defendant constituted highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged," admission of the evidence "risked unduly prejudicing the jury without much, if any, probative value." State v. Skinner, 95 A.3d 236, 238, 253 (N.J. 2014).
I conclude that appellant's ability to lip sync or sing rap lyrics about criminal activity unrelated to the burglary and murder at issue was "highly prejudicial evidence" that "bore little or no probative value as to any motive or intent behind the . . . offense[s] with which he was charged." See id. at 238. As the court in Magee reasoned, the "inflammatory nature" of the rap lyrics in question "does not compellingly serve to make a fact of consequence more or less probable, and it had the potential to impress the jury in an 'irrational' way." Magee, 994 S.W.2d at 888. I would hold that the evidence was inadmissible under Rule 403.
Any error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is affected if an error has a substantial and injurious effect or influence in determining the jury's verdict. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). In assessing harm caused by a Rule 403 error, some factors the court considers are "whether other evidence of the accused's guilt is substantial or overwhelming; whether and to what extent the State placed emphasis on the error; and whether other extraneous-conduct evidence reflecting poorly on the accused's character was properly admitted or admitted without objection. Magee, 994 S.W.2d at 889. Here, the evidence erroneously admitted was used as primary evidence to rebut an essential element that had been placed in question, namely appellant's ability to form the requisite intent to assist in a capital murder. While the State did not mention the videos or Facebook posts in closing, it dedicated a significant portion of appellant's cross-examination to this evidence. Moreover, rather than focusing on its justification for admission, i.e. its relevance to appellant's sophistication and ability to comprehend, the State's questions went entirely to the actual content of the videos and Facebook posts, emphasizing the inflammatory yet largely irrelevant nature of these materials. These inferences could and likely did influence the jury into thinking appellant had committed crimes in the past and to convict him not because he committed this crime but because he was a criminal in general. And in contrast to Magee, where there was other witness testimony and physical evidence to support a finding of guilt, see id., appellant's own words and credibility were the primary sources for the jury's determination whether appellant conspired with others to commit the offense in question. Accordingly, I conclude that the trial court's decision to admit the evidence "falls outside the zone of reasonable disagreement," see Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016), and I have far from a fair assurance that the error did not influence the jury or had but a slight effect. See Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
Based on the foregoing, I would reverse appellant's conviction and remand for a new trial.