Opinion
PD-0677-22
05-08-2024
LARRY JEAN HART, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
McClure, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, and Walker, JJ., joined. Richardson, J., filed a concurring opinion in which Hervey and Newell, JJ., joined. Keller, P.J., filed a dissenting opinion in which Yeary, Keel and Slaughter, JJ., joined. Yeary, J., filed a dissenting opinion in which Keller, P.J., and Keel, J., joined. Keel, J., filed a dissenting opinion in which Keller, P.J. and Yeary, J., joined.
OPINION
MCCLURE, J.
Did the trial court abuse its discretion by admitting rap videos during the guilt phase of trial to show the defendant's character and sophistication where their prejudice outweighs their proposed use? Yes. In this case, any probative value of the rap videos and lyrics was outweighed by the overwhelming potential for prejudice and confusing the issues. We reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.
BACKGROUND
On June 21, 2017, Appellant drove an acquaintance, who he claimed only knew by the nickname "Mondo," and three other individuals unknown to him to an apartment complex in Dallas where the complainant, Michael Gardner, lived. As of the day of trial, the identity of the other passengers in Appellant's vehicle were unknown. Appellant testified that he remained in the car with his four-way flashers on while the passengers robbed the complainant and shot him to death. However, surveillance video from a parking lot behind complainant's apartment shows four people entering the complainant's apartment. Further, a 9-1-1 caller said four people were running from the apartment. The State charged Appellant with capital murder while committing or attempting to commit the felony offense of burglary.
Also referred to in the record and at trial as "Little Partner," or "Little Mon."
During the interview by police, Appellant told Detective Pedro Trujillano that he only drove three people to the apartment. At trial, Appellant testified that he was driving, there was someone in the passenger seat and two people in the back.
According to Appellant's statements to police and at trial, when Appellant was at an apartment complex visiting his godbrother, Mondo asked Appellant for the ride and told Appellant that they were going to "break in" to Mondo's uncle's house. Although Appellant was unable to explain another reason for the trip, he denied believing Mondo that the four were going to "break in" to the apartment. Appellant's theory at trial largely comported with his initial statements to law enforcement: he gave a ride to some individuals as a favor but had no idea the group planned to commit a robbery or murder.
Appellant testified at trial to this effect. When Appellant's counsel began to ask whether the fact he called one of other passengers "little partner" meant he had a close relationship with him, Appellant answered:
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. Q. So the-so you understand that this trial is about what-what it looks like some people did that you gave them a ride to. Do you understand that? A. Can you repeat that, Mr. Cox? Q. Okay. You understand that
The Court then excused the jury to conduct a competency evaluation. Dr. Lisa Clayton, who evaluated Appellant, found that Appellant was competent, but had a low IQ. Defense counsel requested to call Dr. Clayton as a witness before the jury, but the court denied the request. As a proffer of proof, however, Dr. Clayton was allowed to testify before the court as to the following:
• Appellant has a below-average IQ in the range of 70-80.
• An IQ of 55-65 is considered intellectual disability.
• Due to Appellant's IQ and history, he would be more likely to seek approval from others.
• Appellant's IQ makes him naïve and unable to think abstractly about motives or consequences.
• When Appellant is under stress he might freeze or be unable to remember things.
The jury never heard Dr. Clayton's conclusions regarding Appellant's diminished IQ and Appellant continued his testimony. He told the jury that he only knew Mondo by his nickname, he didn't see him very often, he couldn't remember what he was thinking about giving him a ride, but he was unaware he was giving Mondo a ride to commit a crime. He testified that he learned a burglary and murder happened about twenty-four hours later and "It made [him] feel like real dumb. It made [him] feel . . . it wasn't right."
When Appellant's testimony on direct examination concluded, the State moved to introduce "character evidence," or evidence of his "level of sophistication" through YouTube rap videos "relat[ing] to his ability to understand what people are communicating to him and form his own opinions about things."
The first video does not depict Appellant but is a picture of three cartoon cough syrup bottles affixed with cartoon faces of the three wise monkeys. The photo also depicts the name of the song "I.W.T." (I Won't Tell) and Appellant's rap name, "Block Da Foo Foo." The second rap video the State sought to introduce depicts Appellant amongst a crowd inside a house. The crowd is dancing and singing, and Appellant appears to be rapping the lyrics which make references to weapons, cough syrup, and being a "trap king."
Appellant objected on grounds of relevance, that the State never proved Appellant wrote the lyrics, how long it took him to come up with the lyrics, or if the voice is Appellant's since Appellant appears to be lip-syncing in the video. He also objected that "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…its prejudicial effect significantly outweighs [its] probative value." In response, the court noted that Appellant "certainly" brought his character into question based on his testimony." The trial court overruled all of Appellant's objections "because the Defendant testified as to him being friendly, [which] opened the door to the character witness evidence . . . in addition to the rest of his testimony." Defense counsel then requested that Dr. Clayton be allowed to testify given that the State was putting on evidence of cognitive ability. The trial court never ruled on that request in the record, and the issue does not appear within the record again.
The State then pursued the following line of questioning to admit the videos:
Q. …Are you a rapper, Mr. Hart?
A. I mean, I do-I do rap, but that's-that's just a hobby I have. It's-it's I write lyrics, that's it.
. . .
Q. Do you currently have two rap videos?
A. Yes, ma'am.
Q. And one of those is called I Won't Tell?
A. Yes, ma'am.
Q. And the other one is called the Dirty Dusty; is that right?
A. No, that's the artist.
The trial court admitted both videos over Appellant's objections, and the State continued its cross-examination:
Q. Mr. Hart, what is the meaning of I Won't Tell? What are you referring to?
A. I mean, this song-I mean, I have no reason-no meaning to that. It's just I-I like to rap. It's-
Q. Okay. Could you possibly be referring to this case, you won't tell?
A. No, ma'am.
Q. Okay. It's just convenient that it matches up?
A. It's-it's just a song, ma'am.
As far as the second rap video, Appellant testified that the other rapper in the video "he totally wrote my version for me." He denied holding cough syrup and stated they were empty bottles the group "wrap[ped] labels on." Moreover, he emphasized he doesn't own any guns. When asked what it means to be a "trap king," Appellant responded," . . . you probably hear of [Gucci] Mane, Jay-Z. And I know you have heard of these guys because they're [mainstream] artists. They talk about it all the time."
Urban dictionary identifies "trap king" as "an exuberant drug dealer that hones a legendary street stature." See Urban Dictionary, available at https://www.urbandictionary.com/define.php?term=trap%20king [last accessed Jan, 10, 2024]. Trap king references are near-ubiquitous in southern "trap" music. See e.g. Gucci Mane, Big Cat Intro (2007); 2 Chainz, El Chapo Jr (Def Jam Recordings 2015) ("I'm the king of the trap"); Yo Gotti, Trap Queen Freestyle (CMG Records 2015) ("and I'm the trap king"); Torey Lanez, Bartenders & Spenders (2017) ("Trap king getting' to the bands though"); Fredo Santana ft. Kevin Gates, Keep Getting' Money (RBC Records & Savage Squad Records 2015) ("Trap king, introduce you to my kitchen").
Appellant's denial of owning any guns led the State to introduce additional rap lyrics and photos, this time posted on Facebook, referencing guns. The court again overruled relevancy and prejudice objections from Appellant. Still on cross-examination, Appellant explained that the posts were either lyrics written by other people or slang that he didn't intend to imply possessing weapons.
"You know I draw down. You draw attention, slime." Appellant replied that the verse was a Young Thug lyric. It actually comes from the Lil Wayne and Chocolate Droppa's (Kevin Hart) 2016 BET Hip Hop Awards performance. Lil Wayne & Chocolate Droppa, BET Hip Hop Awards - Cypher 6 (2016). Appellant likely confused the lyric with Young Thug's "Draw Down." Young Thug, Draw Down (2015). "[P]ull up with them straps on me like Steve Urkel," is a commonly-used metaphor, but appears verbatim in "Just Made a Play." YoungBoy Never Broke Again, Just Made a Play (2017). "The best advice I can give my lil n*****, don't get caught." Again, Appellant was adamant that the verse belongs to another rapper. It does. Gucci Mane, Strippa (Paper Route Empire 2016).
The defense closed its case by calling Appellant's mother to testify that Appellant spent a significant amount of time in remedial courses, that he was bullied as a child, that he doesn't often understand others' intentions, and that he is eager to please people.
The jury returned a guilty verdict and sentenced Appellant to life without parole.
APPEAL
On direct appeal, Appellant argued the trial court erred when it introduced the rap videos, Facebook posts, his oral statement to law enforcement, and a witness's credibility opinion. He further argued the trial court erred when it excluded Dr. Clayton's testimony about Appellant's intelligence. A majority of the panel upheld the trial court's ruling on the evidence. Hart v. State, No. 05-19-01394-CR, 2022 WL 3754537 (Tex. App.-Dallas Aug. 30, 2022)(mem. op., not designated for publication). As to the rap videos specifically, the majority held that the rap videos were relevant to guilt or innocence in that they were a "small nudge toward proving a fact of consequence - specifically, appellant's ability to comprehend, and to form intent regarding [] [Mondo]'s plan to break into Gardner's home." Id. at *7 (quoting Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004) (internal quotation marks removed)). Because Appellant put his credulity at issue in his testimony and offered evidence to that effect, the appellate court held, it was not error to admit evidence rebutting it. Id.
The court of appeals also undertook a balancing test under Rule 403. Tex. R. Evid. 403. The court first noted that the evidence held considerable relevance as it rebutted Appellant's "limited communication and comprehension skills." Id. at *8. The court of appeals noted Appellant's argument that introduction of the videos encouraged the jury to "vilify Appellant's character for cultural reasons," but held the trial court could have concluded the State's need for the evidence outweighed such considerations. Id. As to the potential for misleading the jury, the court of appeals agreed: "the evidence did have potential to impress the jury in some irrational but nevertheless indelible way." Id. at *8 (quoting Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (internal quotation marks omitted)). Nevertheless, it did not find the trial court's ruling constituted a clear abuse of discretion. Id.
The dissent agreed that the evidence was admissible under Rule 404(a)(2)(A) as character evidence but should ultimately have been excluded under Rule 403. Hart, 2022 WL 3754537 at *16 (Reichek, J., dissenting). Justice Reichek explained:
Gangsta rap like that at issue in this case is characterized by 'lyric formulas,' a key one of which involved fictionalized bragging about the performer's 'badness' vis-à-vis criminal behavior . . . The genre often emphasizes violence in inner cities albeit not necessarily in an accurate manner.Id. (citing 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); Nicholas Stoia, Kyle Adams & Kevin Drakulich, Rap Lyrics as Evidence: What Can Music Theory Tell Us?, 8 Race & Just. 300, 330-34 (2018). Justice Reichek also noted persistent bias about rap and rap artists meant that introduction of the evidence would have an enormous prejudicial effect and, because the State never proved Appellant authored the lyrics to anything introduced, the rap "shed no light on appellant's ability to communicate with words, because these weren't his words at all." Even assuming Appellant wrote the lyrics to "'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." Id. at *17. Of the lyrics introduced, this song was the least sophisticated and did not establish a connection with any fact of consequence is the case. As a result, Justice Reichek wrote, any perceived probative value was vastly outweighed by the prejudicial effect. Id.
Appellant filed a petition for discretionary review echoing the appellate court's dissent and arguing that court erred when it minimized the "harm, bias, and prejudice injected into the trial" by virtue of the rap videos and Facebook pages. We granted review and, for the reasons set forth below, agree with Appellant, reverse the judgment of the court of appeals, and remand to the trial court for proceedings consistent with this opinion.
LAW
Standard of Review
We review a trial court's decision whether to admit or exclude evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). This Court will not reverse the ruling of the trial court except where there has been a clear abuse of discretion falling outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Although appellate courts offer wide deference to trial courts, "appellate supervision" is necessary in cases of abused discretion. Id. at 392 (quoting 22 Wright & Graham, Federal Practice and Procedure: Evidence §§ 5249 & 5250 (1978), at 540, 544). Moreover, "[t]he trial court has no 'right' to be 'wrong' if that means to admit evidence which appears to the appellate court, affording all due deference to the trial court's decision, nevertheless to be substantially more prejudicial than probative." Id. at 392-93.
Rule 403Texas Rule of Evidence 403 is one of judicial economy. It excludes otherwise relevant evidence when the costs of admission outweigh its utility. It reads: "The [trial] court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. To determine whether evidence is admissible under Rule 403, Texas appellate courts will use the Montgomery factors: (1) the strength of the evidence's probative value, (2) the potential for the evidence to "impress the jury in some irrational but nevertheless indelible way," (3) The amount of time required at trial to develop the evidence, and (4) the proponent's need for the evidence. Montgomery, 810 S.W.2d at 389-90.
ANALYSIS
Appellant's Rap Videos
(1) Probative Value
The initial step in using a 403 balancing test is identifying the probative value of the evidence. Hall v. State, No. AP-77,062, 2021 WL 5823345 (Tex. Crim. App. Dec. 8, 2021). Evidence is probative if it tends to make a fact of consequence more or less likely. Tex. R. Evid. 401(a). Moreover, the State has a need for the evidence where it would prove some consequential fact unavailable from other sources. See Manning v. State, 114 S.W.3d 922, 927-28 (Tex. Crim. App. 2003). Probative value is the first Montgomery factor. 810 S.W.2d at 389-90.
In the instant case, Appellant did not dispute the fact he drove three individuals to the apartment complex where the complainant lived, or that those same individuals committed a burglary of the complainant's apartment, shot him, and left him for dead. Rather, Appellant contested a single fact at trial, one of great consequence to the State's case: Appellant did not understand that he was driving the group to commit a robbery and murder. The parties' opening and closing statements reflect this. The State emphasized:
The Defendant knew. He had been in an apartment complex not far away from the victim's apartment. He knew that he and a group of people were planning to commit a crime. He knew he agreed to commit that crime. He knew they were going to go and commit burglary. They were going to steal some things. And he agreed to take four people to the victim's apartment complex. He agreed to sit there and wait.
The State relied in part on Appellant's statement to the police for this proposition. In the statement, Appellant tells the officers that when he drove the group to the complainant's apartment, he was told they were "breaking into [Mondo's] uncle's house." The State also pointed out inconsistencies in Appellant's testimony: that he said there were only three people in the car when there were actually four; that he knew folks at his godbrother's apartment complex to carry guns but didn't see any on the night in question; that he was only going to wait in the parking lot for five minutes when he really waited eleven; and, that the other individuals didn't have anything when they can be seen carrying something on surveillance. Through surveillance footage, the State also sought to prove that Appellant drove by the complainant's vehicle in the parking lot to "mak[e] sure the victim's car [was] there." It further introduced evidence that following the murder and his own conversations with police, Appellant made internet searches on his phone for "[D]allas murders 2017" and "if you was driver on a murder." The State also pointed out that Appellant went back to the apartments where Mondo and the other individuals spent time, despite his earlier claim that involvement in the crime "scared [him] to death." Finally, the State asked Detective Trujillano:
During his testimony, Appellant said that what he meant by being scared was: "It just was like a car was so close to me - well, it was close with cars flying that same day. Yes, sir."
Q. And if somebody knew that his friends had guns and chose to go along to commit a felony at this time of night on that particular day, looked for the car to make sure he's there, would you say that that person should have anticipated that a capital murder would result?
Detective Trujillano: Yes.
After the State rested, Appellant put on his case-in-chief consisting primarily of his own testimony alleging he is a nice person who does favors for others such as giving them rides and that he did not understand the implications behind the statements and actions of the individuals in his car. In response, the State moved to introduce the complained-of rap lyrics, alleging they were relevant as "character evidence," rebutting Appellant's testimony that he is a "friendly person," that he is not sophisticated, and that he is "not good with literature." According to the State, the proffered evidence, in addition to proving Appellant was a "bad person," "relate[s] to his ability to understand what people are communicating to him and form his own opinions about things."
In response, Appellant objected primarily that the videos were not actually relevant to sophistication and comprehension because there was no evidence Appellant wrote the lyrics, was singing them as opposed to lip-syncing, or, if he did, "how long it took him to write them." The State offered no proof Appellant wrote the lyrics introduced, and Appellant contested that in his testimony, alleging most of the lyrics were written for him or were lyrics borrowed from other rap artists.
As outlined above, a certain piece of evidence is probative if it "tend[s] to make a fact more or less probable…" Tex. R. Evid. 401(a). Here, the song Appellant did not dispute he wrote, "I.W.T," was probative of his comprehension skills. As Justice Reichek noted in her dissent, the lyrics to the song are not "profound," but nevertheless "'provide[] a small nudge toward . . . disproving some fact of consequence,' in this case, his ability to comprehend what people tell him." Hart v. State, No. 05-19-01394-CR, 2022 WL 3754537 at *15 (Tex. App.-Dallas Aug. 30, 2022, pet. granted) (Reichek, J., dissenting) (quoting Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004)).
As to the second song, "Off Days," although Appellant disputed having written the lyrics, and the State produced no evidence he had, the song and video was probative in so far as Appellant claimed he had no prior knowledge about criminal activity in Dallas being different than it was where he was from in Greenville.
The court below concluded 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." Hart, 2022 WL 3754537 at *17. Assuming this is correct, we must consider whether the value of this probative evidence is outweighed by its potential for unfair prejudice. For this, we continue to the second Montgomery factor.
(2) Time Needed to Develop the Evidence
As a secondary inquiry, we ask how much trial time was dedicated to the development of the evidence such that its introduction caused undue delay. Montgomery, 810 S.W.2d at 389-90. This factor focuses on the time needed "to develop the evidence, during which the jury [is] distracted from consideration of the indicted offense." State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005); see Montgomery, 810 S.W.2d at 390. Because the concern is the extent to which the jury is distracted from considering the charged offense, we hold that the time needed to develop the character evidence necessarily includes any testimony introduced regarding the evidence, including cross-examination, redirect examination, and any rebuttal offered by the defense in response to the evidence.
Accordingly, the State developed the rap videos when Appellant took the stand in his own defense. The time needed to develop the rap lyric video evidence amounted to about six pages out of the fifteen pages of the record of Appellant's cross-examination of by the State. During the cross-examination, the State played the videos. The time of each video was 4 minutes and 13 seconds and 3 minutes and 17 seconds; however, the State would periodically pause the video to discuss certain video images or specific lyrics. The entire re-direct examination was devoted to the rap video evidence. Appellant's testimony consisted of 45 pages of the record. Eight (8) pages of the record were exclusively focused on the rap videos. Five (5) were exclusively focused on Appellant's photos and rap lyrics from his Facebook postings. Therefore, approximately twenty-eight percent of Appellant's testimony was spent on the extraneous evidence. Evidence that consumes such an inordinate amount of time has the potential to confuse or distract the jury from the main issues. See Gigliobianco, 210 S.W.3d at 641. Therefore, this factor weighs in favor of exclusion.
(3) Prejudicial Dangers
Turning to the third Montgomery factor, we address "the potential the 'other crimes, wrongs, or acts' have to impress the jury in some irrational but nevertheless indelible way." Montgomery, 810 S.W.2d at 390. This "unfair prejudice" question asks whether the evidence has a "tendency to suggest decision on an improper basis," usually emotional in nature. Valadez v. State, 663 S.W.3d 133, 142 (Tex. Crim. App. 2022).
While Texas has not yet addressed this issue, courts in other jurisdictions have recognized that the admission of rap music or rap videos is highly prejudicial due to the nature of the lyrics that distract from the charged offense. See e.g. Baker v. State, 2024 Ga. LEXIS 64, 2024 WL 923100 (holding the trial court abused its discretion by admitting a portion of a rap music video into evidence at defendant's trial for malice murder because it created a substantial danger of unfair prejudice by improperly portraying defendant as having a propensity for violence); United States v. Gamory, 635 F.3d 480, 493 (11th Cir. 2011) (explaining that the admission of a rap video containing explicit lyrics dealing with drugs, sex, profanity, degradation of women, firearms, and violence was error and "heavily prejudicial"); State v. Skinner, 218 N.J. 496, 521 (95 A.3d 236) (2014) ("Finally, the prejudicial effect of defendant's graphically violent rap lyrics overwhelms any probative value that they may have"); and, Commonwealth v. Gray, 463 Mass. 731, 756 (978 N.E.2d 543) (2012) (explaining that the rap video had a prejudicial impact on the jury).
In United States v. Bey, the Eastern District of Pennsylvania noted that lyrics in rap songs often contain inflammatory material that is entirely irrelevant to the case at hand which risks inflaming the jurors and have no bearing whatsoever as to whether the defendant committed the offense charged. No. CR 16-290, 2017 WL 1547006 at *6 (E.D. Pa. Apr. 28, 2017)("Rap lyrics are not necessarily autobiographical statements; rather, rap music is a well-recognized musical genre that often utilizes exaggeration, metaphor, and braggadocio for the purpose of artistic expression.").
But by no means is rap the exclusive genre for glorification of criminal activity. Most song lyrics are often fictitious or exaggerations of real events. Other than Taylor Swift who is known to write songs based on her personal experiences, it is not reasonable to assume that all lyrics are autobiographical as to past or future conduct, unless there is direct evidence to suggest otherwise. Holding song lyrics to their literal meaning would lead to the following conclusions: Freddie Mercury "killed a man," Bob Marley "shot the sheriff," Macy Gray "committed murder and . . . got away," the band formerly known as The Dixie Chicks killed Earl, and classically, Johnny Cash "shot a man just to watch him die." These are conclusions we cannot accept outside of some other evidence demonstrating the lyrics are something more than fiction. See Smith v. Deville, 2020 U.S. Dist. LEXIS 130699 (E.D. La., Apr. 16, 2020)(admitting two rap videos but not another where the admissible videos specifically described the subject of the charge and the inadmissible video did not); United States v. Belfast, 611 F.3d 783, 793, 820 (11th Cir. 2010) (finding no abuse of discretion when defendant performed the song and described violence and killing that was pertinent to defendant's charges under the Torture Act); Gamory, 635 F.3d at 485-93 (finding abuse of discretion in admitting videos performed by a non-defendant that corroborated the defendant's general lifestyle but were cumulative of other testimony and highly prejudicial due to the violence, profanity, and general lawlessness); United States v. Stuckey, 253 Fed.Appx. 468, 473-82 (6th Cir. 2007) (unpublished) (finding no abuse of discretion in admission of rap lyrics that described killing snitches and Government witnesses "wrapping them in blankets" and "dumping their bodies in the street," which was exactly what the Government accused the defendant of doing).
Queen, "Bohemian Rhapsody" on A Night at the Opera (1975).
Bob Marley and the Wailers, "I Shot the Sheriff" on Burnin' (1973).
Macy Gray, "I've Committed Murder" on How Life Is (1999).
Dixie Chicks, "Goodbye Earl" on Fly (1999).
Johnny Cash, "Folsom Prison Blues" on Johnny Cash with His Hot and Blue Guitar! (1957).
The videos introduced by the State were a glorification of criminal activity. The lyrics and videos included references to illicit drugs, criminal activity in general ("dirty money"), snitching, owning weapons, degrading women, and, classically, being a "trap king." As discussed above, other courts have recognized that the content of these songs and videos can unduly prejudice the jury because music can impact a jury in an emotional way. As in many of those cases, there is no question here that the introduction of Appellant's rap videos encouraged the jury to convict him on the improper basis that he is a criminal generally or associates with criminals generally. This is because any song that glorifies criminality, regardless of genre, is inherently prejudicial. The danger associated with playing these videos to the jury is that the jury might regard creative expression as proof that Appellant engaged in criminal behavior based upon his rap videos instead of regarding them as nothing more than creative expression. This is problematic in Appellant's case for two reasons. First, Appellant lacked the inherent familiarity of a popular artist that provides the ability to disassociate the artist with the individual. Unlike an easily recognizable pop star, the listener cannot disassociate "Block Da Foo Foo" from the message. Second, the subject matter in the expression is itself inflammatory. Regardless of the genre, inflammatory lyrics create the potential that the jury could ascribe character assessments to the defendant based on the content of the music he listened to or lyrics he wrote. Said plainly, music lyrics do not prove anything about the character of the person who listens to the music or lip syncs to it on video.
See Jason B. Binimow, Admissibility of Rap Lyrics or Videos in Criminal Prosecutions, 43 A.L.R. 7thArt. 1 (2019) (inventorying American caselaw excluding or admitting rap lyrics and videos on the basis of their prejudice relative to their probative value).
"[W]e don't convict people for murder simply because they have written lyrics about murder." Stuckey, 253 Fed.Appx. at 483. To the Sixth Circuit's point, we certainly wouldn't convict a person of murder for rapping about drinking, drugs, and guns. Here, the State did not offer anything demonstrating that the lyrics and video were somehow representative of Appellant's character in that they applied outside of the artistic rendering, nor did they demonstrate that, even if they had some real-world application, it was relevant to the charged offense. This factor therefore weighs heavily in favor of exclusion.
(4) State's Need
The State's need for this evidence was weak. As discussed above, the State had several other available options to address Appellant's mental state when he drove the individuals to the complainant's apartment. These methods included Appellant's statement that Mondo told him they were going to "break in" to his uncle's house, inconsistencies or "evasiveness" in the same statement, surveillance footage of Appellant pulling the car around the parking lot prior to letting the other individuals out of the car, Appellant's internet-search activity in the days following the murder, and the fact Appellant subsequently visited the apartments again despite being purportedly "scared to death" at the time of the shooting. This evidence tended to show Appellant was aware of the circumstances surrounding the trip to the complainant's apartment. As a result, we find this factor weighs in favor of exclusion.
Weighing the Factors
Considering the extreme danger of prejudice resulting from introduction of Appellant's rap videos, admission of the videos was error under Rule 403. The videos' probative value was incredibly weak, especially where the State introduced no evidence that Appellant authored the lyrics, or merely memorized them. Was he actually singing or was he lip syncing? Did he have any assistance in becoming proficient enough to perform, and how long did it take for him to be able to "successfully" pull off the performance?
Without answers to these questions, using the video introduced in this trial was unfairly prejudicial, and proved very little about his intellectual capabilities. The videos did not reflect any significant amount of credulity or articulacy, and were not relevant to Appellant's character, since there was no evidence outside of the lyrics themselves corroborating that Appellant was a violent or unfriendly person. In fact, the State conceded at oral argument that the mere act of lip syncing a song (regardless of the genre) does not make one a friendly or unfriendly person. Instead, the State seemed to focus more on the usage of the videos for the purpose of refuting Appellant's claim that he was slow and not good with language and was oblivious to any sort of criminal activity occurring around him. However, the State had other evidence to demonstrate Appellant's knowledge of criminal activity and potential association with that activity other than the videos and had the opportunity to cross-examine Appellant's mother, who presumably would have much more pertinent, relevant insight into Appellant's ability to understand language than rehearsed, choreographed, and inflammatory music videos would. Introduction of the videos was therefore unnecessary to a fair adjudication of the issues.
Harm
Having found error, we proceed to a harm analysis. Tex.R.App.P. 44.1(a). Because the error in this case was an abuse of discretion in admitting certain evidence, we review the record for error affecting Appellant's "substantial rights." Tex.R.App.P. 44.2(b). In doing so, we review the entirety of the record to understand the evidence in the context of the trial. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). If the error had more than a slight influence on the verdict, Appellant is entitled to a new trial. Tex.R.App.P. 44.2(b).
Because Appellant did not contest whether he drove four individuals to an apartment complex whereupon they committed capital murder, the only issue at trial was mens rea, whether Appellant knew what he was doing and should have foreseen the result. The State focused its case on proving this mental state. In doing so, it asked law enforcement officers to give several negative credibility determinations of Appellant, which were admitted with no objection.
The State: Okay. During the course of that interview, did he tell you how many people he took to the victim's apartment complex? Detective Trujillano: Eventually he said it was three people. The State: Okay. And was that a lie? Detective Trujillano: Yes. … The State: Okay. Did he say how long he was going to wait for the people once he dropped them off? Detective Trujillano: He said he was only going to wait five minutes. The State: Was that a lie? Detective Trujillano: Yes. … The State: Did he say they had anything with them? Detective Trujillano: No. The State: Was that a lie? Detective Trujillano: Yes. … The State:-is that right? Did you ask him about the victim's vehicle? Detective Trujillano: I did. The State: And what-did he say he knew anything about that? Detective Trujillano: He claimed he didn't know what that was or what car it was. The State: And was that a lie? Detective Trujillano: Yes.
Following the State's case, Appellant's case primarily consisted of his own testimony. He testified that he had a hard time remembering, he is a friendly person and believed he was just giving a ride, he doesn't think critically about the words he uses, he has a hard time understanding things, and when he discovered what happened, he felt dumb.
In providing additional context for Appellant's concededly "dumb" actions, Appellant sought to introduce testimony from his competency hearing that revealed he has a low IQ and potentially could not understand the underlying motives of the individuals in his car on June 21. The trial court did not permit this evidence, however. Had Dr. Clayton been allowed to testify, she would have told the jury that individuals with diminished IQ trust others easily, are more naïve, don't think abstractly about the motives of others, are more forgetful when under stress, and are generally more susceptible to manipulation by others. The jury, in this sense, was not allowed to hear Appellant's side of the story despite it having heard the State's full story assisted by officers' credibility determinations.
Then came the rap videos. After having heard the State cast Appellant as a liar, as testified to by law enforcement, and being deprived of potentially helpful testimony from Dr. Clayton, the State introduced both rap videos to demonstrate Appellant was literate and articulate. As discussed above in the context of Rule 403, these rap videos did very little to prove that fact and instead cast Appellant and his fellow performers as criminals in general, untethered to the particular facts of the charged offense. Moreover, while introducing the videos, the State went as far as injecting its own interpretations of slang words into Appellant's testimony.
The State: And in the I Won't Tell video, you talk about killing somebody over a bill, so killing somebody over cash; is that right? Appellant: I didn't say I killed anyone, ma'am. . . . The State: And you say you keep a heater. A heater is a gun, isn't it? Appellant: I didn't say I keep a heater on that song.
Following Appellant's testimony, Appellant called his mother to testify to the fact that Appellant was in special education classes, had a hard time remembering, and required additional care and instruction as a child. After her testimony, Appellant rested.
The State emphasized both Appellant's mens rea and the "type of criminal" it proposed Appellant was in its closing argument:
[T]his is not Mayberry RFD and this guy is no Gomer Pyle . . . Larry Hart is criminally responsible for Michael Gardner's murder because he knew-he should have anticipated what was going to happen . . . Larry Hart is the kind of criminal that sneaks around at night, breaks into people's apartments, with a gun to their head and leaves them for the coroner to pick up.
While the State argued here that Appellant acted as more than a driver, much of the evidence developed at trial was that Appellant served as the driver and did not enter the residence. Had the evidence more directly implicated Appellant as an active participant instead of a party, this might have been a closer case. However, we decline Appellant's request to draw a bright-line rule that all artistic expression should always be excluded from a criminal proceeding unless it is a truthful narrative of the offense.
Lastly, the jury was not given a limiting instruction to restrict their use of the rap videos to their stated purpose. "[W]here no limiting instruction is given . . . we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated." Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994). Viewed in light of the record as a whole, we find introduction of extraneous rap videos had more than a slight effect on the jury's verdict and therefore affected Appellant's substantial rights.
Appellant's Facebook Posts
Because we found reversible error with respect to rap videos introduced by the State, we need not address the admissibility and harm of the complained-of Facebook posts.
CONCLUSION
We think Appellant stated our view on the issue at hand best when he said, "it's just rap, m'am." Because the rap videos highly prejudicial in nature in the context of a guilt-innocence proceeding, Appellant has shown reversible error. We reverse and remand to the trial court for a new trial.
CONCURRING OPINION
RICHARDSON, J., filed a concurring opinion in which Hervey, and Newell, JJ., joined.
Singing about drugs, guns, and murder is nothing new. It is just as prevalent in our culture as singing about God and love. But what these lyrics and music videos have in common is that they are artistic expressions. And like all other forms of artistic expression, music often courts controversy. It's value may not be appreciated till long after its creator's passing, and even then, there may be strong disagreement. Using someone's art in the guilt-innocence phase of a trial only as character evidence has the potential of being unfairly prejudicial. Black's Law Dictionary defines art as "creative expression, or the product of creative expression." (11th Edition). It is questionable how much logical relevance a jury might be able to extract from an artist's creative expression absent a more concrete connection to the alleged offense. Allowing evidence of artistic expression only as character evidence and without something substantially more is inviting the jury to come to a decision enflamed by emotion, cultural differences, musical taste, and not reason during guilt-innocence.
Wolfgang Amadeus Mozart's The Marriage of Figaro is often called one of the greatest operas of all time. Originally a play by Pierre-Augustin Caron de Beaumarchais, it was widely banned in Europe due to its "incendiary political content"-it criticized the nobility. Converting it to an opera, Mozart convinced Emperor Joseph II to repeal his censorship of the opera. The 20 Best Operas of All Time, BBC Music Magazine (Mar. 19, 2024, 8:07 AM), https://www.classicalmusic.com/features/works/20-greatest-operas-all-time.
Pablo Picasso, the renowned Spanish painter known for starting the Cubism movement, is still controversial to this day. One of his more famous paintings, Les Demoiselles d"Avignon, was met with "almost unanimous shock, distaste, and outrage" when it was first displayed in Paris in 1907. Culture Shock: Pablo Picasso's Les Demoiselles d'Avignon, PBS, https://www.pbs.org/wgbh/cultureshock/flashpoints/visualarts/picasso.html. Nevertheless, there is no dispute as to his importance in modern art.
For instance, Richard Klinkhamer authored a manuscript for a novel on how he might have killed his wife a year after she suspiciously disappeared. After her skull was found buried on the property they formerly lived in, he was tried and convicted for murder.
When the State introduced the rap videos, Appellant's trial counsel objected to their introduction and articulated that their prejudicial effect significantly outweighed the probative value. Appellant's trial counsel argued that the music was "a glorification of criminal activity, including guns and drugs and violence." The connection to any fact of consequence was minor compared to its likelihood to irrationally enflame the jury. Showing the expressive recordings to the jury was "just a vilification of character by rap." I agree. As the majority explains, the videos did not pass the Rule 403 balancing test in this guilt-innocence phase of the trial.
Factors that should be considered in Rule 403 balancing include:
1. how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable-a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
2. the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way;"
3. the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;
4. the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990)).
Lyrics of all genres can be violent, twisted, and inflammatory. As is common in many other forms of expression, music of all genres talk about crime. Below is a short compilation of lyrics to provide a feel:
Blues Rock
• "Don't bogart that joint, my friend. Pass it over to me." Fraternity of Man, Don't Bogart Me (1968). Possession of Marijuana Tex. Health and Safety Code § 481.121.
Folk Rock
• "I shot my baby. Down by the river. Dead, ooh, shot her dead." Neil Young, Down by the River (1969). Murder, Tex. Penal Code § 19.02.
Reggae
• "I shot the sheriff, but I didn't shoot the deputy." Bob Marley & the Wailers, I Shot the Sheriff (1973); also Eric Clapton, I Shot the Sheriff (1974).
Aggravated Assault with Deadly Weapon, Tex. Penal Code § 22.02.
Disco/Soul
• "If the price is right, you can score, if your pocket's nice." Donna Summer, Bad Girls (1979).
Promotion of Prostitution, Tex. Penal Code § 43.03.
• "Burn, baby burn, burn that mother down." The Trammps, Disco Inferno (1976). Arson, Tex. Penal Code § 28.02.
Pop
• So lay your cards down, down, down. So park your Lexus. And throw your keys up." Beyonce, Texas Hold'em (2024).
Aggravated Robbery, Tex. Penal Code § 29.03.
• "Hey, let's touch in public." Charles McMansion, T.I.P. (2015).
Public Lewdness, Tex. Penal Code § 21.07.
• "I eat boys up, breakfast and lunch. Then when I'm thirsty, I drink their blood." Kesha, Cannibal (2010).
Abuse of Corpse, Tex. Penal Code § 42.08.
• "I met her in a hotel lobby, masturbating with a magazine." Prince, Darling Nikki (1984).
Indecent Exposure, Tex. Penal Code § 21.08.
• "Private eyes. They're watching you. They see your every move." Hall & Oates, Private Eyes (1981).
Stalking, Tex. Penal Code § 42.072.
Country
• "I just killed a man. Left him in his drive. Watched the light go out of his loving eyes." Catie Offerman, I Just Killed a Man (2023).
Murder, Tex. Penal Code § 19.02.
• "I drew a bead on him, to practice my aim. My brother's rifle went off in my hand." Johnny Cash, I Hung My Head (2002) (cover of a Sting song). Murder, Tex. Penal Code § 19.02.
• "Goodbye Earl. Those black-eyed peas; they tasted alright to me, Earl." Dixie Chicks, Goodbye Earl (1999).
Murder, Tex. Penal Code § 19.02.
Jam
• "Wilson, kill you 'til you die." Phish, Punch You in the Eye (1989). Terroristic Threat, Tex. Penal Code § 22.07.
• "I just jumped the watchman, right outside the fence, took his ring, four bucks in change." Grateful Dead, Jack Straw (1972).
Robbery, Tex. Penal Code § 29.02.
Metal
• "So I kissed him upside the cranium with that aluminum baseball bat." Primus, My Name is Mud, (1993).
Aggravated Assault with Deadly Weapon, Tex. Penal Code § 22.02.
Indie/Alternative
• "Think I'm drunk enough to drive you home now. I'll keep my mouth kept shut under lock and key." Death Cab for Cutie, Champagne from a Paper Cup (1998).
Driving While Intoxicated, Tex. Penal Code § 49.04.
Catie Offerman, a rising star in the country western genre, has previously played as an opening act for George Strait and will do so again at Kyle Field on June 15, 2024.
Singing these songs, either as the artist or just while driving one's car to work, does not make one more or less likely to be a criminal. Such music merely serves as an expressive outlet to millions of law-abiding Americans-though many will strongly disagree on what is tasteful and what is not. And without a more concrete evidentiary focus, the subjective question over what one considers a legitimate expressive outlet is an inquiry that can distract a jury from the actual question at hand.
See 'I Hate Him': Why Picasso's Value and Influence are Waning, Sydney Morning Herald (April 5, 2023 1:22 PM), https://www.smh.com.au/world/europe/i-hate-him-whypicasso-s-value-and-influence-is-waning-20230404-p5cy4p.html (suggesting that Picasso's place as a creative inspiration for modern artists is waning).
There is no confidence that the jury came to a decision of guilty free from the emotional effects of the rap videos. The use of the rap videos by the State was unfairly prejudicial against Appellant and should not have been admitted. With these thoughts, I concur and join the majority.
Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, JJ., joined.
In its Rule 403 analysis, the Court counts in Appellant's favor the absence of a limiting instruction. But Appellant did not request a limiting instruction. Under Rule 105, Appellant's failure to request a limiting instruction forfeited his claim regarding the admission of the rap videos.
Rule 105 says that a party complaining about the admission of evidence that is admissible for one purpose but not another must seek a limiting instruction to preserve his claim:
A party may claim error in a ruling to admit evidence that is admissible against a party or for a purpose-but not against another party or for another purpose-only
if the party requests the Court to restrict the evidence to its proper scope and instruct the jury accordingly.
Under the unambiguous language of the rule, error cannot be predicated on the admission of evidence that is admissible for one purpose but not for another if the complaining party did not request a limiting instruction. The Court's reliance on Abdnor is unavailing: Abdnor requested a limiting instruction, both at the time the evidence was admitted and in the jury charge.
See Sandoval v. State, 665 S.W.3d 496, 531 (Tex. Crim. App. 2022) ("[W]hen admitted evidence was admissible for a non-hearsay purpose but no limiting instruction was given, the defendant "failed to preserve error as to the possible hearsay effects of the evidence" when he failed to request a limiting instruction.) (also quoting from and discussing Rule 105(b)(1)).
871 S.W.2d 726, 730 (Tex. Crim. App. 1994).
The more recent case of Valadez would be better for the Court's position, but it is inapt for two reasons. First, the defendant did request a limiting instruction, even though only in the jury charge, so on the face of it, Rule 105's forfeiture provision did not apply. The Court acknowledged our prior holding that a failure to request a limiting instruction when evidence is admitted forfeits the right to a limiting instruction in the jury charge, but said, "Regardless of whether the trial court had to give any such instruction, the lack of instruction is relevant to the prejudice assessment." But, second, that statement seems to be dictum because the evidence in Valadez was not admissible for any purpose, since it had no relevance under Rule 404(b) apart from character conformity. But, regardless of whether the Valadez statement was dictum or well-considered, it cannot apply here, where no limiting instruction was ever requested. The language of Rule 105 is unambiguous when there is no request for a limiting instruction. If the record in this case supports the admission of the rap videos for one purpose but not for another, then Appellant's claim must fail.
Valadez v. State, 663 S.W.3d 133, 141 (Tex. Crim. App. 2022).
Id. at 142, 146. See Hammock v. State, 46 S.W.3d 889, 893-94 (Tex. Crim. App. 2001) (Failure to request a limiting instruction at the time evidence is admitted forfeits right to limiting instruction in the jury charge.).
See 663 S.W.3d at 143-44, 146 ("But volume alone cannot conjure probative value; no matter how great it might be, any number multiplied by zero still equals zero. The six connections with marihuana were so meaningless that they could not support any inference.").
And the record does support admission of the videos for one purpose but not another. It was admissible to rebut Appellant's claim of a lack of sophistication and comprehension, but it was not admissible as evidence of a propensity to commit criminal behavior. Under Rule 105, Appellant's failure to request a limiting instruction forfeited his claim about the admission of the rap videos.
And finally, it is worth noting that forfeiture under Rule 105 results in no injustice in this case. That is because any risk of unfair prejudice from the rap videos could have been eliminated almost entirely by a well-tailored limiting instruction. Even if rap music is likely to be associated with criminality, a limiting instruction could have explicitly told the jury not to draw that sort of inference. And a limiting instruction could have also told the jury to treat the videos solely as fiction and to consider them only for the purpose of rebutting Appellant's claims of lack of sophistication and comprehension. With such an instruction, the risk of unfair prejudice would be minimal and would not substantially outweigh the probative value of the evidence.
I respectfully dissent.
Yeary, J., filed a dissenting opinion in which Keller, P.J., and Keel, J., joined.
The Court's opinion abandons our usual posture of deference to a trial court's broad discretion in admitting or excluding evidence. Clearly the Court disagrees with the trial court's decision. But the Court's opinion fails to demonstrate that the trial court's decision was outside "the zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). That is because it can't- because the trial court's decision wasn't outside that zone.
In Montgomery, the Court explained that, when reviewing a trial court's decision to admit or exclude evidence under Rule 403 of the Texas Rules of Evidence, an "appellate court should not conduct a de novo review of the record with a view to making a wholly independent judgment whether the probative value of evidence . . . is substantially outweighed by the danger of unfair prejudice." Id. at 392. Instead, Appellate courts "should reverse the judgment of the trial court 'rarely and only after a clear abuse of discretion.'" Id. (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). But the Court dispenses with both of those admonishments today. Although it pays lip-service to the abuse of discretion standard, in effect, the Court performs a de novo review of the trial court record and concludes that, because it would not have admitted the evidence at issue, the trial court abused its discretion to do otherwise-and it was error for the court of appeals to affirm the trial court's decision.
I am convinced the court of appeals correctly upheld the trial court's decision to admit Appellant's rap videos and Facebook posts over Appellant's Rule 403 objection. At the very least, the trial court's decision fell well within the "zone of reasonable disagreement." Id. at 391. Both the State's decision to offer the evidence and the trial court's decision to admit it were fair responses to Appellant's decision to introduce a fact question about whether he was too naïve to have formulated the mental state required to commit the offense alleged. I would therefore affirm the judgment of the court of appeals.
The Court concludes that the trial court's admission of the rap videos alone warrants reversal of the court of appeals' judgment in affirming that decision. However, under the Montgomery factors, I would hold that admission of both the rap videos and Appellant's Facebook posts fell well within the zone of reasonable disagreement.
I. The Montgomery Factors
As the Court's opinion notes, in Montgomery, we articulated factors that a trial court should consider in deciding whether the probative value of a piece of evidence is "substantially outweighed by a danger of . . . unfair prejudice[.]" Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 389-91. Those factors include: (1) the "inherent probativeness" of the evidence, (2) the evidence's "potential . . . to impress the jury in some irrational but nevertheless indelible way[,]" (3) the time required by the proponent to develop the evidence, and (4) the proponent's need for the evidence. Id. Let us focus here, then, on those factors identified by the Court in Montgomery.
A. Inherent Probative Value
The "inherent probative force" of an item of evidence refers to "how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation[.]" Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). Addressing this factor, the court of appeals observed that the "primary disputed issue at trial" was Appellant's intent to participate in a capital murder. Hart v. State, No. 05-19-01394-CR, 2022 WL 3754537 at *8 (Tex. App.-Dallas Aug. 30, 2022) (mem. op., not designated for publication). In light of his claimed naïveté and lack of language comprehension skills, the issue crystalized into whether those conditions prevented him from forming the required mental state, or mens rea. Id.
Citing the State's appellate brief, the court of appeals noted that the rap evidence, and the rap videos particularly, demonstrated Appellant's "ability to easily communicate with words" and his "familiarity with criminal subject matter." Id. Similarly, in contrast to his claims that he did not own or have a gun and that he saw no one with guns on the night of the murder, Appellant's Facebook posts suggested a familiarity with guns, an understanding of illicit uses of them, and an awareness of the need to hide them and to not "get kaught." The court of appeals correctly decided that the "trial court reasonably could have concluded that the probative value of the evidence [was] high." Id. I agree with the court of appeals: the probative value of the evidence with respect to Appellant's friendliness, naïveté, and sophistication was high enough that the trial court could have, without difficulty, reasonably concluded that its value was not substantially outweighed by any risk of unfair prejudice. And the Court does not dispute the court of appeals' judgment with respect to this factor. See Majority Opinion at 14. So far, so good.
In addition to the two rap videos, which the Court describes, see Majority Opinion at 4-6, the State introduced four posts from Appellant's Facebook page under the name "Block FrBndz Hart" as follows:
• State's Exhibit 80: "You know I draw down you draw attention slime."
• State's Exhibit 81: "Pull-up with them straps on me like Steve Urkel!!"
• State's Exhibit 82: "[G]otta hide the blicky."
• State's Exhibit 83: "Best advice I kan give my lill niggas dont get kaught[.]"The State failed to ask Appellant if "Block FrBndz Hart" was his account but had earlier asked Appellant, "Is there a reason why you have Block on all your social media?" Appellant responded: "It's just a name I came up with." The Court asserts that State's Exhibits 80, 82, and 83 are lyrics by other rappers. Id. at 7 n.4. The Court may be right, but it errs to cite facts outside the record in support of that assertion. See Johnson v. State, 624 S.W.3d 579, 585 (Tex. Crim. App. 2021) ("An appellate court cannot consider an item [of evidence] that is not a part of the record on appeal.").
B. Improper Basis of Decision
The court of appeals observed that, while "the [rap] evidence did have [some] potential to impress the jury 'in some irrational but nevertheless indelible way,' [citation omitted] we cannot say the trial court's balancing determination was a 'clear abuse of discretion.'" Hart, No. 05-19-01394 at *8 (quoting Montgomery, 810 S.W.2d at 390). It seems to me that the court of appeals was focused on the right things.
The logical probative force of the evidence at issue in this case was that Appellant's willingness and ability to lip-sync, post, and write (or at least learn) rap lyrics about crime made it more likely that, when he was asked to be the driver in a burglary, he was actually aware that he was agreeing to facilitate a burglary and should have anticipated the resulting capital murder. The risk of unfair prejudice posed by this evidence was that the jury might conclude that Appellant's mere familiarity with the criminal subject matter of the lyrics made it more likely that he participated in this crime-as a straightforward character-conformity inference. Counterbalancing that risk, however, was: (1) defense counsel's opportunity to rebut any impermissible inference during Appellant's re-direct examination, (2) his opportunity to address the same in closing argument, and (3) his opportunity to request a limiting jury instruction-which Appellant did not do here, but could have if he had truly thought it was necessary.
The Court sees things differently. In its view, "this factor weigh[ed] heavily in favor of exclusion." Majority Opinion at 19. In reaching that conclusion the Court appears to largely adopt Appellant's argument that rap lyrics are so inherently inflammatory that, absent some factual nexus between the lyrics and the crime alleged, the risk of unfair prejudice will necessarily outweigh the probative value of the lyrics as evidence. Id. at 15-19; Appellant's Brief at 30. This approach is flawed for a number of reasons.
First, the Court's arguments suggest a fundamental misunderstanding of the reason the State sought to admit the rap evidence in this case. In response to Appellant's testimony on direct examination, the State argued, outside of the presence of the jury, that it had a right to rebut Appellant's own evidence suggesting that he was just friendly and unsophisticated. Specifically, it argued:
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 State did not offer the rap evidence in this case to prove Appellant was a criminal because he sang rap songs about crime. It offered that evidence only to rebut Appellant's evidence-evidence that Appellant was not compelled to offer-that he was so naïve about and unfamiliar with crime, and so cognitively and linguistically limited, that he could not have intended to participate in a burglary on the night of the murder. Put simply, the rap evidence offered by the State here is just the kind of rebuttal evidence that Rule 404(a)(2)(A) explicitly permits. Tex. R. Evid. 404(a)(2)(A) ("In a criminal case, a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.").
Contrary to what the Court seems to argue, the probative value of this kind of evidence-Rule 404(a)(2)(A) rebuttal evidence-does not depend on any factual nexus between the rap lyrics and Michael Gardner's murder. See Majority Opinion at 15-19. Whether Appellant was rapping about true events is beside the point. The point is that the lyrics tended to show that Appellant had the ability to communicate and understand sufficiently to form the intent to participate in the crime at issue.
As Professor Imwinkelried has explained, at least as a general proposition when assessing the admissibility of extraneous offenses under Rule 404(b), "[t]he test should be logical relevance rather than similarity. The better view is that the judge should demand proof of similarity only if the proponent's theory of logical relevance assumes similarity." 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:13 (2023). I see no reason why the same considerations should not apply with equal force to the admissibility of rebuttal evidence under Rule 404(a)(2)(A).
The courts that have held rap lyrics inadmissible have done so when those lyrics were offered to prove "motive, opportunity, intent," etc., under Rule 404(b)(2). See, e.g., United States v. Bey, No. CR 16-290, 2017 WL 1547006 at 1* (E.D. Pa. Apr. 28, 2017) ("The government moves to admit this music video under Rule 404(b)(2) to prove knowledge, intent, and absence of mistake[.]"); Tex. R. Evid. 404(b)(2). But this case is not like those cases. To illustrate, if the State had sought to admit the rap lyrics at issue during its own case-in-chief to prove that, because Appellant sang about gun violence, he intended to participate in the murder of Michael Gardner, then requiring a closer link between the actions the lyrics described and the facts of the crime would make some sense. But when, as here, the evidence is only offered during cross-examination as trait-rebuttal evidence under Rule 404(a)(2)(A), any similarity (or lack of similarity) between the rap lyrics and the facts surrounding the charged crime is irrelevant. Consequently, the fact that the trial court did not require the State to prove some factual similarity between the rap lyrics and the crime at issue does not suggest that the trial court abused its discretion.
See also Baker v. State, 899 S.E.2d 139, 141 (Ga. 2024) (State introduced "a 33-second-long portion of a [rap music] video" to establish Baker's identity, motive, and opportunity with respect to malice murder charge); United States v. Gamory, 635 F.3d 480, 488 (11th Cir. 2011) (Government introduced rap video to prove identity and Gamory's connection to co-conspirators in federal drug and money-laundering charges); State v. Skinner, 95 A.3d 236, 238 (N.J. 2014) ("[T]he State maintained that the [rap] lyrics helped to demonstrate defendant's 'motive and intent' in connection with the offense because the rap lyrics addressed a street culture of violence and retribution that fit with the State's view of defendant's role in the attempted murder."); Commonwealth. v. Gray, 978 N.E.2d 543, 560 (Mass. 2012) ("The lyrics show no connection to the defendant that would suggest they were biographical or otherwise indicative of his own motive or intent at the time of the shooting.").
Moreover, I reject the Court's apparent conclusion that because courts in other jurisdictions, and on different facts, have held rap music unfairly prejudicial, the trial court's decision to admit the rap evidence in this case was "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A Rule 403 balancing test is necessarily a case-by-case analysis. Thus, it is not enough to say that, "because any song that glorifies criminality . . . is inherently prejudicial[,]" it was an abuse of discretion to admit the songs at issue here. Majority Opinion at 18. Our rules of evidence require the exclusion of relevant evidence only if the danger of unfair prejudice substantially outweighs its probative value. And as Judge Keel astutely points out, this rebuttal evidence was certainly less inflammatory than the facts of the crime alleged-and so did not seriously risk luring the jury into finding Appellant guilty on an improper basis. Dissenting Opinion of Judge Keel at 2.
In summary, I remain unpersuaded that the videos and lyrics the jury saw and heard in this case were so inherently inflammatory that they threatened to "'to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.'" Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)). I have greater faith in our juries, and I am convinced that the court of appeals properly concluded that the trial court acted within its discretion to leave it to the jury to "evaluate the evidence's probative force." Hart, No. 05-19-01394 at *8.
C. Time Needed to Develop the Evidence
The third Montgomery factor, as the Court correctly notes, "looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense." State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005); see Montgomery, 810 S.W.2d at 390; Majority Opinion at 14. But as the Court in Mechler pointed out, when the evidence under consideration "relate[s] directly to the charged offense, a jury [will] not be distracted away from the charged offense regardless of the required time to present" the evidence. 153 S.W.3d at 441.
The rebuttal evidence presented by the State, here, consisted of two videos, each less than five minutes long (and of the second video- "Off Days"-the record indicates that the State presented only Appellant's own, approximately 45-second, solo), and four one-sentence Facebook posts. By the Court's own calculation, of the fifteen pages of the record that make up Appellant's cross-examination, less than half of them are devoted to the rap evidence. Majority Opinion at 15. And of the forty-five pages of testimony by Appellant, less than a third of those pages are devoted to the rap evidence. Id. Even on its own terms, then, I cannot agree with the Court that the rap evidence consumed "an inordinate amount" of trial-time. Id.
Moreover, it is far from clear to me that the number of pages of Appellant's testimony spent on the rap evidence is the appropriate denominator. See id. In fact, it is probably not. The Court should instead focus on the entire trial, at least that part of the trial involving the presentation of evidence relating to the question of Appellant's guilt. By my count, the presentation of the evidence relating to guilt consumed three volumes of the reporter's record, and those volumes contained roughly 265 pages of testimony. Of those 265 pages, only nineteen, according to the Court, were devoted to the rap evidence. See id. As the court of appeals observed, the State devoted much more time to establishing the facts of the murder and investigation, "including the 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." Hart, No. 05-19-01394 at *9.
And even more critically, this factor did not weigh in favor of excluding the rap evidence, regardless of the time required to develop it, because it related directly to the charged offense. See Mechler, 153 S.W.3d at 441. Appellant's primary defensive theory at trial was his contention that his naïveté and difficulties with language prevented him from forming the intent to participate in a burglary or from anticipating the resulting murder. If the rap evidence was probative of those issues- and even the Court admits that at least the rap videos were-then the time used by the State in presenting its rebuttal evidence was not a distraction at all; rather, it was time devoted to one of the critical issues at trial. See Majority Opinion at 14-15. Or, at least the trial court could reasonably have thought so. Consequently, I cannot agree with the Court that this factor weighed in favor of exclusion.
D. State's Need for the Evidence
This Court has said that, "[w]hen the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance." Montgomery, 810 S.W.2d at 390. However, as the court of appeals observed, before the State proffered the video and Facebook evidence, the jurors had only heard Appellant's own testimony from which he would have had its members infer his traits of friendliness, naïveté, and language comprehension difficulties. Hart, No. 05-19-01394-CR at *8. Beyond the substance of his testimony, the jury had also observed Appellant frequently ask his counsel to repeat questions and Appellant's apparent difficulty in answering-which was evidently so pronounced that, at one point, the trial judge excused the jury to inquire into Appellant's competence. Id. Thus, the court of appeals reasonably concluded that the trial court was justified in finding the State's need for evidence "was considerable[.]" Id.
During Appellant's direct examination, defense counsel asked Appellant, "[Y]ou understand that this trial is about what-what it looks like some people did that you gave a ride to. Do you understand that?" When Appellant responded by asking, "Can you repeat that?" the trial court excused the jury to have Appellant evaluated for competency. Appellant was evaluated by Dr. Lisa Clayton, a forensic psychiatrist, who testified outside the presence of the jury that Appellant was competent but of "below average" IQ. When the defense's direct examination of Appellant resumed, Appellant testified that he understood that he was on trial because the people he had transported had killed someone.
Here, the Court suggests five alternative pieces of evidence the State could have used to prove Appellant's mental state at the time of the offense:
• "Appellant's statement that Mondo told him they were going to 'break in' to his uncle's house[;]"
• "inconsistencies or 'evasiveness' in the same statement[;]"
• "surveillance footage of Appellant pulling the car around the parking lot prior to letting the other individuals out of the car[;]"
• "Appellant's internet-search activity in the days following the murder[;]" and
• "the fact that Appellant subsequently visited the apartments again despite being purportedly 'scared to death' at the time of the shooting."
It is unclear, here, whether the Court's allusion to Appellant's "same statement" refers to his police interview or his trial testimony. In either case, the point remains the same-Appellant's apparent evasiveness or inconsistency in either setting could imply that he was being untruthful. But it could also imply that he cannot communicate clearly or understand what others say to him, as he claimed at trial.
Majority Opinion at 19. But each of these pieces of evidence was either equally consistent with Appellant's defensive theory of the case or occurred after the crime.
First, Appellant's statement that Mondo told him they were going to break into his uncle's home was a key piece of evidence of Appellant's guilt, and one that the State used. But Appellant also testified that he had not believed that Mondo had meant what he had said. Thus, the State needed other evidence probative of Appellant's mental state to rebut that notion after it was injected into the trial by Appellant.
That Appellant gave inconsistent or evasive testimony about Mondo's statement does seem to support the inference that Appellant was lying when he said he did not believe Mondo meant to break into anyone's home. It is equally consistent, however, with Appellant's defensive theory of the case-namely, that Appellant cannot effectively communicate or comprehend what others say to him. Thus, the State, again, needed other evidence to rebut that testimony. And the trial court could have reasonably concluded that the State's need for the additional evidence it proffered to prove Appellant's mental state, was, as the court of appeals put it, "considerable[.]" Hart, No. 05-19-01394-CR at *8.
Similarly, the surveillance footage showing that the car Appellant drove circled the parking lot of the victim's apartment complex before parking down the street was evidence of Appellant's guilt. But it was not "compelling or undisputed evidence" that Appellant knew at the time of the incident that he was participating in a crime. Appellant, after all, might have circled the lot merely at the direction of the others in his vehicle-which, again, would be equally consistent with his defensive theory that he was unwittingly lured into serving as a getaway driver and did not know what he was actually doing.
Further, Appellant's actions after the incident-including his internet searches and returning to the apartment complex where he encountered Mondo-do not necessarily bear on his mental state at the time of the incident. Appellant's internet search history proves only that he learned about the murder sometime after the fact; it does not prove that he knew he was acting as a driver for a burglary at the time of the incident. Likewise, Appellant might have returned to the apartment complex where, according to his testimony, he was approached by Mondo, for any number of reasons. Some of those reasons might imply that Appellant was aware that he was acting as a getaway driver, but others of those reasons would be consistent with Appellant's defensive theory of the case.
Finally, Appellant testified on direct examination that he was "scared to death" on the night of the incident because of traffic speeding past his vehicle as he idled on the street-undercutting the implication that he was scared because he knew that his companions were perpetrating a crime while he waited for them. For that reason, the State, once again, needed other evidence to rebut Appellant's suggestion that he could not have formed the required mental state at the relevant point in time.
On direct examination Appellant had the following exchange with his defense counsel:
Q. You remember talking about how another car zipped past you?
A. Yes, sir.
Q. So was that-did that have any connection do you think, with the people that you had taken?
A. No. No, sir.
Q. Well, you remember the questioning about it on the video as far as you saying that it scared you?
A. Yes, sir.
Q. So if it wasn't connected, why would it scare you?
A. It just was like a car was so close to me-well, it was close with cars flying that same day. Yes, sir.
The Court has failed to identify other compelling or undisputed evidence that the State could have used to rebut Appellant's evidence that he had not intended to participate in a crime with his companions. Consequently, I cannot agree with the Court that this factor weighs in favor of exclusion.
E. Weighing the Factors
Considering all of these factors together, I am convinced that the court of appeals was correct in its assessment: at most, only the improper-basis factor might have weighed in favor of excluding the rap lyric and Facebook evidence at issue in this case. The trial court acted well within its appropriately broad discretion in deciding to admit the evidence when it did so. See Montgomery, 810 S.W.2d at 389 ("trial courts should favor admission in close cases"). And the court of appeals was correct to conclude that the trial court's decision to admit the State's rebuttal evidence was firmly within the "zone of reasonable disagreement." Id. at 391.
I personally find the Court's arguments for reaching the opposite conclusion today utterly unpersuasive. More troublingly, it seems to me that the Court has simply concluded that, because it would not have admitted the evidence at issue had it stood in the trial court's place, the trial court ipso facto abused its discretion in doing otherwise. I cannot agree that, as a purely objective matter, the "zone" within which "reasonable" minds could "disagree" is nearly so narrowly circumscribed.
II. Conclusion
I would affirm the judgment of the court of appeals. The Court does otherwise without proper regard for our role as a reviewing court and on the basis of a flawed Rule 403 analysis. I dissent.
Ordinarily, the Court does not determine questions of harm in the first instance, absent a decision on harm in the court of appeals. Holder v. State, 639 S.W.3d 704, 707 (Tex. Crim. App. 2022). "We '[n]ormally' only do so when the error is so 'plainly harmless' that principles of judicial economy support resolving it ourselves." Id. (quoting Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004)). Today the Court conducts a harm analysis for the first time on discretionary review without attempting to explain why that is appropriate. It is at least not clear to me that any harm from the "error" the court finds would be "plain." See Jordan v. State, 593 S.W.3d 340, 353 (Tex. Crim. App. 2020) (Yeary, J., dissenting) ("[T]he question of harm seems, at least, debatable-not, as the Court would have it, so self-evident as to obviate our usual practice to remand the cause for that analysis."). I dissent on that basis as well.
DISSENTING OPINION
Keel, J., filed a dissenting opinion in which Keller, P.J., and Yeary, J., joined.
I agree with and join Presiding Judge Keller's and Judge Yeary's dissenting opinions.
I raise additional objections to the majority opinion for its distortions of unfair prejudice and probative value and its garbled harm analysis.
I. Unfair Prejudice
Unfair prejudice means provoking sympathy or hostility "without regard to the logical probative force of the evidence." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). It means luring the factfinder into convicting "on a ground different from proof specific to the offense charged." Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Or it means proving "some adverse fact not properly in issue or [that tends] unfairly to excite emotions against the defendant." Manning v. State, 114 S.W.3d 922, 927-28 (Tex. Crim. App. 2003) (quoting Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (original op.)).
It means more than casting a negative light on the defendant. Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. App. 2021). It may mean arousing a sense of horror or provoking an instinct to punish. U.S. v. Long, 92 F.4th 481, 488 (3rd Cir. 2024). It generally means evidence of conduct that is more inflammatory than the charged offense. U.S. v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006). For example, an extraneous murder that was "no more heinous than the [charged murder] was not likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose." Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996).
The disputed evidence here was not even evidence of a crime. As Appellant testified, "It's just rap, ma'am"-a longstanding, popular music style that has aged out of its shock value and whose fictional nature-like that of most lyrics-is common knowledge. This evidence was too innocuous to provoke a contemporary jury to (a) convict regardless of the evidence of the crime, (b) disregard the logical probative force of the disputed evidence, or (c) labor under unfairly excited emotions. See Montgomery, 810 S.W.2d at 390; Gonzalez, 544 S.W.3d at 373; Manning, 114 S.W.3d at 927. Nor would it arouse a sense of horror or provoke an instinct to punish. Long, 94 F.4th at 488. Compared with the brutal reality of the charged crime-an execution-style killing during a midnight, home invasion-the evidence was not inflammatory. See Taylor, 920 S.W.2d at 323; Paulino, 445 F.3d at 223.
In an effort to justify its contrary conclusion, the majority departs from Rule 403, asserting, for example, that the rule "excludes otherwise relevant evidence[.]" But it does not exclude relevant evidence; it authorizes its exclusion-the trial court "may" exclude it-only under certain circumstances. The rule presumes relevant evidence is admissible. Santellan v. State, 939 S.W.2d 155, 159 (Tex. Crim. App. 1997). It may be excluded if its probative value is "substantially" outweighed-a modifier omitted in the majority's rendition of the test. See Tex. Rule Crim. Evid. 403.
Applying its diluted rendition of Rule 403, the majority holds that Appellant's videos were inadmissible "because music can impact a jury in an emotional way." This is not a limiting principle because all relevant evidence has that potential. The majority asserts that "any song that glorifies criminality . . . is inherently prejudicial"-a sweeping assertion that abandons Rule 403's case-by-case approach to balancing probative value against substantial prejudice. The majority says that the videos might be seen "as proof that Appellant engaged in criminal behavior"-but that made them probative, not unduly prejudicial because they rebutted his naivete defense about criminal intent. If the majority means to say that the videos might be seen as evidence of extraneous, uncharged criminal behavior, then it still is distorting Rule 403 because "might be seen" does not demonstrate that probative value is substantially outweighed by prejudicial effect. The majority asserts that because Appellant was not well known, a "listener cannot disassociate [his rap persona] 'Block Da Foo Foo' from the message." But a fictional persona embodies the creative message, so a listener should not be expected to separate "Block Da Foo Foo" from his message. Maybe the majority means instead that a listener could not distinguish a fictional persona from its obscure performer, an unsupported assertion. Whatever it means, it abandons our usual approaches to prejudicial effect. See Montgomery, 810 S.W.2d at 390; Gonzalez, 544 S.W.3d at 373; Manning, 114 S.W.3d at 927.
II. Probative Value
The majority maintains that the rap evidence was not probative because it did not represent Appellant's character or was not relevant to the charged offense-a new requirement that abandons the "fact of consequence" standard.
Evidence is probative if it affects the likelihood of a "fact of consequence." Gonzalez, 544 S.W.3d at 372. Such facts may be evidentiary or elemental. Taylor, 920 S.W.2d at 321. A fact of consequence is one related to a contested issue. Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. App. 2000). And contested issues short of ultimate guilt may be facts of consequence. E.g., Casey v. State, 215 S.W.3d 870, 882 (Tex. Crim. App. 2007).
Here, the disputed evidence rebutted Appellant's aw-shucks self-portrayal; in his telling, he was too naïve to know and believe that his compatriot meant it when he said he wanted to break into someone's home. But such naivete would have been under assault by his avid pursuit of the cynical, "gangsta" rap worldview. It doesn't matter that the lyrics were fiction because fiction instructs on real-world human nature and motivations-that is its superpower. This evidence was probative of a disputed point related to criminal intent-the most consequential fact in this trial, and the majority errs to dismiss it.
III. Harm Analysis
The majority's harm analysis cites the supposed exclusion of the testimony of the psychiatrist who offered a mid-trial, impromptu opinion about Appellant's competency. The majority suggests that the supposed exclusion was error. It is mistaken for three reasons.
First, the trial court did not exclude the psychiatrist's testimony. Its last word was that it would "cross that bridge" later, a point it never reached as far as the record shows. Second, the majority assumes that the psychiatrist's testimony was admissible. On the contrary, it likely was inadmissible as less-than-insanity, less-than-intent-negating, diminished-capacity evidence. See Ruffin v. State, 270 S.W.3d 586, 596 (Tex. Crim. App. 2008). Third, the majority warps the harm analysis by considering evidence the jury never heard. It should instead consider what the jury did hear. E.g., Haley v. State, 173 S.W.3d 510, 519 (Tex. Crim. App. 2005). There is no ground for review about the psychiatrist's unadmitted testimony, and considering it scrambles the harm analysis.
IV. Conclusion
The majority opinion is flawed. It will cause headaches. I respectfully dissent.