Pugh v. State

Full title: ALLEN BRAY PUGH, Appellant v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas

Date published: Jan 26, 2022

639 S.W.3d 72 (Tex. Crim. App. 2022)

Opinion

NO. PD-1053-19

01-26-2022

Allen Bray PUGH, Appellant v. The STATE of Texas

Britt Lindsey, for State. Jeffrey A. Propst, Frederick T. Dunbar, Abilene, for Appellant.

Britt Lindsey, for State.

Jeffrey A. Propst, Frederick T. Dunbar, Abilene, for Appellant.

Newell, J., delivered the opinion of the unanimous Court. Must a trial court suppress a demonstrative computer animation illustrating otherwise reliable expert testimony purely because it potentially involves some depiction of human behavior? No. Demonstrative exhibits used to illustrate expert opinion testimony must be based upon scientifically reliable testimony that has been based upon objective data. If they are, they are treated like any other piece of demonstrative evidence. Accordingly, a trial court may admit a computer animation exhibit as a demonstrative exhibit to illustrate otherwise admitted testimony or evidence if the exhibit's proponent shows that it: (1) is authenticated, (2) is relevant, and (3) has probative value that is not substantially outweighed by the danger of unfair prejudice. To the extent that a demonstrative exhibit includes a depiction of human behavior, the risk that such depictions will not capture every minute detail of that behavior are addressed by weighing the danger of unfair prejudice against the probative value of the exhibit.

In this case, the State sought to illustrate the testimony of an accident reconstruction expert along with testimony regarding other forensic evidence with a series of computer animations. The three computer animations at issue each show a moving, 3-D diagram of Appellant's truck from three different angles colliding with a human figure, consistent with the testimony of the State's sponsoring accident reconstruction expert.¹ We agree with the court of appeals that the computer animations were properly admitted. The computer animations were relevant, were authenticated, and had probative value that was not substantially outweighed by the danger of unfair prejudice. Accordingly, we affirm the judgment of the court of appeals.

1 Each video can be viewed at the Court's website at the following link: https://www.txcourts.gov/cca/media/

Background

This case concerns events that took place on October 8, 2014, between three neighboring bars in Abilene. The Fat Boys bar, the Lone Star bar, and the Drop Zone bar were situated in a row along Arnold Blvd. The Fat Boys bar was the northernmost bar; the Drop Zone bar was the southernmost bar; and the Lone Star bar was situated between them. Cars as well as patrons could park and travel between the three bars on a common caliche gravel lot.

William Delorme was drinking at the Lone Star bar and was acting strangely. Alexandra Schkade, the bar's sole bartender, noticed Delorme acting strangely and decided to close the bar early. After Schkade closed the bar, Delorme returned and insisted that he had lost his keys inside the bar. Schkade looked for the keys but could not find them. She told Delorme that the keys were not there and tried to get back to closing the bar so that she could go home.

Shortly after, Delorme began to knock on the bar's locked front door and, believing the knocking to be from someone else, Schkade unlocked the door. Delorme forced his way past Schkade and started looking for his keys in the bar. Schkade returned to her duties and attempted to maintain normalcy, but Delorme's frantic behavior deteriorated to the point that he pulled a knife on Schkade.

At this point, Appellant and his friends, believing the Lone Star bar was still open, entered through the unlocked door. Appellant's group entered the bar just in time to see Delorme pull a knife on Schkade. The group attempted to de-escalate the situation by offering to help Delorme find his keys. As part of this effort, the group directed Delorme outside the bar to get him away from Schkade. While the group helped Delorme, Appellant told Schkade, "if [Delorme] tries to pull out that knife again, we'll put him under the car."

While the group helped Delorme outside, Jerry Anderson approached from the neighboring Fat Boys bar. Anderson joined the search for Delorme's keys. During the search, Appellant approached Anderson and told him: "we should knock [Delorme] out or something."

Eventually, Delorme abandoned the search and shuffled out of view across the street. Schkade was able to finish closing the bar and left the scene in her car. When Schkade left the bar, she could see Appellant's group smoking outside near the front of the bar but could not see Delorme. Appellant and Anderson stayed and talked in the parking lot in front of the Lone Star bar for about 15 to 20 minutes until they saw Delorme re-approaching the area. Anderson suggested to Appellant that they leave, and both he and Appellant walked to their cars, which Anderson testified were parked at the neighboring Fat Boys bar. As Anderson drove away, the last thing Anderson saw was Appellant's stationary brake lights.

The Investigation

A few hours later, a dogwalker found Delorme's dead body in the parking lot between the Lone Star bar and the Drop Zone bar. He called 911 and, shortly thereafter, the Abilene Fire Department and EMS arrived on scene. Soon thereafter, officers with the Abilene Police Department arrived and started collecting evidence as part of a criminal investigation.

As part of that investigation, officers observed a set of tire tracks leading directly to Delorme's body, which were documented in State's exhibit 20:

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Officers estimated the tracks to run about 85 feet from their start near the Lone Star bar to where the body was found next to the Drop Zone bar. They also took measurements of the wheelbase and tire width from the tire tracks for future comparisons. Officers also found a knife and sheath well outside of arms reach from Delorme's body.

Officer David Thompson, an expert in accident reconstruction, electronically documented the scene by picking various reference points and taking measurements with a range finder. Thompson documented measurements for the tire marks, body, surrounding buildings, and other objects around the body (totaling 28 separate points of reference). After uploading these measurements into a Measurement Log Report, Thompson used specialty computer software to create a two-dimensional reference diagram of the scene, which was admitted at trial without objection as State's Exhibit 68:

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The diagram demonstrated Thompson's findings of two tire marks avoiding the adjacent roads and heading southbound through the parking lot with a definite turn in the marks’ path. In addition, Thompson saw definite acceleration markings leading southbound to the body and no evidence of deceleration marks at any point on the path. Finally, Thompson noted clear evidence of steering input in the tire marks’ pattern, signaling that the car was not "out of control."

The next day, Dr. Richard Fries, a deputy medical examiner, performed Delorme's autopsy. At the time of the autopsy, Fries observed multiple significant injuries, including rib fractures, a punctured lung, and numerous pelvic fractures. Fries noted that pelvic fractures are usually seen in "crushing-type" injuries and are indicative of being "run-over." Fries further noted a tear in the skin of Delorme's scalp as indicative of impact injuries, such as being struck by a vehicle or striking the ground post-impact.

Fries believed that it was possible that Delorme had been dragged by the car, but not for a significant length. In his opinion, if the body had been dragged under the car, it was likely only for approximately 10 feet. He identified a deep abrasion, about 13 inches long, on Delorme's back that is commonly associated with "impacts with roadways or when somebody has been struck as they hit another surface." He also noted that a body could receive this kind of injury from being under the undercarriage of a vehicle. Fries further noted a collection of fluid underneath the body's skin that was caused by compression of the bodily tissues forcing blood to squeeze out of one area and into another, which was indicative of not merely being hit with a vehicle but being run over. Fries opined that Delorme died from multiple blunt-force injuries from being hit by a motor vehicle and run over. In Fries’ opinion, the left side of Delorme's body took more of the impact because of the relative damage to the left side. However, Fries did not give an ultimate conclusion on which side of Delorme's body was struck by the truck and which side was struck by the pavement. He explained that because the victim suffered injuries from both the impact of the car and the impact of the pavement, he was unable to tell which injury was caused by which impact.

Through their investigation, officers quickly came to suspect Appellant and obtained a warrant to seize his truck. Upon locating the truck, officers immediately noticed that it appeared to have hit something. Specifically, officers observed a clean area underneath the truck that appeared to have "rubbed something," similar to how an otherwise dirty car would look after hitting a deer or hog: "the whole vehicle underneath was dirty and something had rubbed underneath it." The marks started around the front left (driver's side) of the vehicle, around the back side of the driver's side front tire and approximately under the driver's floorboard area and moved backwards underneath the vehicle.

After officers seized the truck, they conducted further forensic analysis that affirmatively tied the truck to Delorme. Officers compared the wheelbase and tires of the Appellant's truck with the measurements taken of the tread marks found leading to Delorme's body. They discovered that the tires were a very close match to those measured earlier. Officers sprayed Bluestar, a chemical reagent that reacts with blood, on the undercarriage and side of the truck. The Bluestar spray reacted in multiple places around the driver's side tire and door. Finally, officers searched along the undercarriage of the truck and discovered pieces of skin with hair attached. Later DNA analysis of the collected hair, tissue, and blood confirmed that the samples belonged to Delorme.

The Trial

Following the investigation, the State charged Appellant with murder. About one month prior to trial, the State disclosed four proposed trial exhibits to Appellant. The four exhibits were computer-generated animations, created by a certified crash reconstruction expert,² illustrating the expert's opinion of the actions of Appellant's truck prior to Delorme's death. One of the exhibits depicted events from Appellant's viewpoint inside the cab of his truck. The remaining three exhibits showed separate long-distance views, a bird's eye view, a northeast view, and a southeast view, of a truck accelerating across a parking lot, striking, and then running over a stationary human figure. The exhibit showing a bird's eye view shows the victim as little more than a dot, while the alternating side views are from a closer vantage point. In the exhibits showing views from the northeast and southeast, the depicted figure is empty-handed, stationary, and lacks any facial features or expression. In addition, the figure does not independently move or react to the truck. When the truck strikes the figure, the body and limbs remain rigid with no apparent reaction beyond falling to the ground with the figure's body. There does not appear to be any application of a physics engine depicting soft body dynamics to the human figure in the animation to mimic a realistic reaction of a human body to the impact of the vehicle and the ground. None of the exhibits depicted any of the victim's injuries from being hit by the truck.

2 At trial, Officer Kropp, who created the contested exhibits, testified as a crash reconstruction expert. He testified that he had received specialized training in crash reconstruction including (1) an 80-hour advanced collision investigation course through "TEEX", (2) an 80-hour course in scientific collision and reconstruction, and (3) a three-week course through the Texas Association of Accident Reconstruction Specialists. Though he testified that he was "certified," he was not asked to identify where he received that certification because his qualifications were not contested. As noted by Judge Hervey in her concurring opinion in Rhomer v. State , traffic accident reconstruction is a discipline that is exempted from the Texas Forensic Science Commission's crime laboratory accreditation requirement. Rhomer v. State , 569 S.W.3d 664, 674 (Tex. Crim. App. 2019) (Hervey, J., concurring).

Following the disclosure of the exhibits, Appellant filed a motion to suppress. In his motion, Appellant argued that the exhibits were mere interpretations based on conjecture that did not and could not accurately depict the events in question. Further, Appellant argued that the exhibits were subject to inaccuracies, could mislead and confuse the jury, and were substantially more prejudicial than probative. During a pre-trial hearing on the motion, Appellant further argued that any staged recreation involving human beings is impossible to duplicate in every minute detail and is therefore inherently more prejudicial than probative. Appellant did not argue that the expert's opinion or testimony was scientifically unreliable under Texas Rule of Evidence 702.³

3 See Tex. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.").

At the suppression hearing, the State called certified accident reconstructionists Thompson and Tyson Kropp to testify regarding the underlying creation of the exhibits. Thompson confirmed the validity of the underlying data used to create the exhibits by explaining his evidence collection process. He also pointed out the tire markings from the parking lot that suggested that Appellant's truck was accelerating and engaged in a turn to the right along its path towards Delorme's body. Finally, Thompson described the process of downloading the data into a computer system, which could create a 2-D image or 3-D representative model of the scene.

Kropp testified that he used Thompson's data and combined it with other collected evidence to create the 3-D animations. He elaborated by explaining the general process of inputting data points into the FARO HD system to create a 3-D animation and then described the specific steps he took in this case. He further noted that he took previously collected reference points of the scene, created a digital image representing the reference points, and overlaid it with a version of Google Earth. Next, he determined the "most accurate speed" for the animated vehicle by conducting 15 field acceleration tests with an accelerometer specially mounted in a police Tahoe at a similarly surfaced parking lot. He also explained that he used the DNA evidence, forensic evidence, photos taken on scene, the autopsy report, and his own acceleration tests to create the final animations. Finally, Kropp confirmed that the exhibits fairly and accurately represented his opinion regarding what "the evidence shows of the scene that evening."

Appellant offered no challenge to the experts’ qualifications, their opinions, or the underlying process used to create the exhibits. However, he did question Kropp regarding the positioning of Delorme within the animation. Kropp stated that he could use the forensic evidence, including the rub marks and DNA, to tell the approximate area Delorme was struck by the vehicle and what part of the vehicle went over Delorme. While Kropp admitted that he did not precisely know what Delorme's actions were at the time of the collision, he did rely on "the medical examiner's opinion that the injuries sustained were on the left side of his body to orient him in the animation."

For context, later in the trial, Kropp further clarified that he did not place Delorme's body randomly within the animation. He elaborated that the body was placed within a short proximity of its final location because of the medical examiner's opinion that it did not interact with the vehicle for an extended amount of time. Kropp further noted that he saw no evidence that the body ever traveled on the hood of the car. So, although he admitted that he did not know specifically where along the truck's acceleration path the body was struck, he did provide specific details and justifications based upon objective data for his positioning of Delorme's body within the animation.

At the end of the hearing, the trial court overruled defense objections for all but one of the exhibits. The trial court excluded the ‘first person’ animation because it could "get very subjective as to what could be seen from the inside of the vehicle." The trial court clarified that its ruling regarding the other three ‘long-distance’ animations would be subject to the establishment of the State's underlying evidence prior to the admission of the exhibits. In addition, the trial court explained that it would give a limiting instruction regarding the exhibits.

The trial proceeded and the State presented the foregoing evidence surrounding the offense and investigation before the jury. At the end of its case-in-chief, the State indicated that it was prepared to admit and publish the contested exhibits as part of Kropp's testimony. Appellant objected and argued that the probative value of the exhibits was substantially outweighed by the prejudicial effect because "there is no way to know for sure what the alleged victim was doing or purporting to be doing and/or exactly where the alleged victim was."

The trial court overruled the objection and announced its intention to provide an instruction to the jury. Prior to display of the exhibits, the trial court told the jury:

Ladies and gentlemen of the jury, the State has introduced an animation purporting to recreate the events alleged in the indictment. The animation is a visualization of the expert's opinion. It is admitted for the sole purpose of aiding the jury and understanding the events, if any, which happened and may be considered by the jury only to the extent that the jury believes beyond a reasonable doubt that other evidence introduced by the State supports the events as depicted in the animation.

After the State played the exhibits, Kropp explained on cross-examination that he placed the figure in the animation within a short proximity of where it was found based on the medical examiner's belief that the body was not "interacting with the vehicle for an extended amount of time." Kropp further testified that he did not believe the body had hit the hood of the truck or went under the truck from the driver's side because the observable evidence present on the truck did not support that version of events. However, he did acknowledge that no one knew specifically where the Appellant's truck struck Delorme's body in the path of the acceleration marks.

After Kropp's testimony, the State rested its case, and Appellant took the stand. Appellant testified that he saw Delorme threatening the bartender with a knife on the night of October 8, 2014. Appellant claimed that while he was attempting to deal with Delorme, Delorme told him "I'm going to get you" and told him that he knew everything about him and where he lived. Shortly after this, Delorme left the premises. Appellant testified that he and Anderson chatted outside in front of the Lone Star bar until they saw Delorme re-approaching the area from across the road, at which point both men decided to leave in their cars.

Appellant acknowledged that he originally denied to the police that he had run over the victim with his truck. However, in the face of the State's evidence, he admitted that he had. According to Appellant, while he was backing his truck out of its parking space, he saw Delorme and tried to talk to him through his passenger side window. As Appellant attempted to talk to Delorme, Delorme began yelling at Appellant and walked around the front of the truck toward Appellant's open driver's side window. Appellant claimed that Delorme was carrying a knife and screaming that he was going to kill him.

Appellant next claimed that Delorme rounded the front of the truck (to the side of and about even with the front driver's-side tire) and lunged at him with his knife. Appellant claimed he reacted by lying "over on the console" and flooring it. Appellant then described hearing a "thud" and remembers Delorme being "right there" through the front windshield. Appellant finished his direct testimony by claiming that he did not originally believe that he had run over Delorme but believed, instead, that Delorme had "grabbed ahold of the mirror or the inside of my door and just fell off" of the truck.

On cross-examination, Appellant struggled to explain various inconsistencies between his testimony and the physical evidence. For instance, Appellant claimed that Delorme rolled onto the top of the truck's hood; however, Appellant could not explain how Delorme went from standing even with the front driver's-side tire to being on the truck's hood. Finally, Appellant admitted to previously telling law enforcement officers that he would know if he ran somebody over and that he knew he did not run Delorme over. But ultimately, Appellant admitted to the jury that the evidence showed that he had.

In response to the Appellant's testimony, the State recalled Kropp, who noted that the objective evidence did not support Appellant's testimony regarding the victim being near the passenger side of the truck as Appellant tried to pull out of the parking lot. Kropp noted that there was no evidence to show that Delorme's body went under Appellant's truck "in any way other than a long way under the vehicle." Finally, Kropp maintained that "the marks underneath this vehicle support that the deceased went under the vehicle more in the center of the undercarriage of the vehicle" rather than the side near the driver's door as Appellant had claimed in his testimony.

After the State's rebuttal, both parties rested and closed. Appellant requested and received a jury instruction on the issue of self-defense. After argument by both parties, the jury found Appellant guilty of murder and assessed punishment at 50 years confinement and a fine of $10,000. Though the CDs containing the computer animations were admitted into evidence and sent back to the jury for deliberations, it was impossible for the jury to view them without requesting assistance from the trial court. Nothing in the record indicates that the jury ever viewed the contested exhibits during its deliberations. The Appeal

Appellant argued to the court of appeals that the trial court abused its discretion by admitting the three exhibits into evidence.⁴ According to Appellant, the trial court should have excluded the exhibits because they were inherently speculative due to their depictions of human behavior, which is impossible to reproduce in every minute detail.⁵ Further, he argued that the exhibits carried a substantial risk of unfair prejudice because they did not base Delorme's behavior on scientific information.⁶

4 Pugh v. State , No. 11-17-00216-CR, 2019 WL 4130793, at *1 (Tex. App.—Eastland Aug. 30, 2019 pet. granted) (mem. op., not designated for publication).

5 Id. at *2.

6 Id.

The court of appeals disagreed. It held that the trial court did not abuse its discretion in admitting the exhibits because the animations depicted the scene from a distance, showed nothing gruesome, and did not attempt to portray Delorme's actions prior to the truck strike.⁷ Further, the court of appeals noted widespread support for the use of computer animation to recreate the scene of an accident "as long as the animation is based on objective data" as the animations were in this case.⁸

7 Id. at *3 (citing generally Venegas v. State , 560 S.W.3d 337, 347–48 (Tex. App.—San Antonio 2018, no pet.) ; Castanon v. State , No. 08-15-00225-CR, 2016 WL 6820559, at *3 (Tex. App.—El Paso Nov. 18, 2016, no pet.) (mem. op., not designated for publication); Murphy v. State , No. 11-10-00150-CR, 2011 WL 3860444, at *2 (Tex. App.—Eastland Aug. 31, 2011, no pet.) (mem. op., not designated for publication); Mendoza v. State , No. 13-09-0027-CR, 2011 WL 2402045, at *14–15 (Tex. App.—Corpus Christi June 9, 2011, no pet.) (mem. op., not designated for publication)).

8 Id.

On discretionary review, Appellant argues that the exhibits were inadmissible as demonstrative exhibits because the use of a stationary figure to represent the location and position of the victim contradicted the evidence he later presented in his case. Specifically, Appellant argues that the court of appeals erred in holding that the trial court was within its discretion when it allowed the State to introduce three animations to the jury which depicted the decedent Delorme as unarmed and stationary, contrary to the evidence. Underlying his complaint in this regard, Appellant argues that any staged re-enacted criminal acts or defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous and offer little in substance, and the impact of re-enactments is too highly prejudicial to ensure a fair trial. According to Appellant, we should only sanction the admissibility of computer animations featuring human behavior, if we are to do so at all, when three conditions are met: 1) the other evidence presented is inadequate to convey the events to the jury, 2) the animation is consistent with the evidence adduced at trial, and 3) a limiting instruction clarifying that the demonstrative exhibit is not evidence is given. As discussed below, we conclude that the traditional rules of evidence provide an adequate foundation for trial courts to evaluate the admissibility of computer-generated evidence.

Computer Animations Can Be Admissible as Demonstrative Evidence

A computer animation is simply a series of computer-generated images used as demonstrative evidence.⁹ Accordingly, it can be used to "illustrate what a witness saw, demonstrate for the jury the general principles that underlie an expert's opinion, or depict an expert's theory of how an accident occurred."¹⁰ Instead of a witness drawing 1,000 diagrams and lining them up back-to-back to illustrate her testimony, a computer animation allows her to illustrate her testimony pane-by-pane using the advancements of modern technology.¹¹

9 Goode , The Admissibility of Electronic Evidence , 29 Rev. Litig. 1, 22 (Fall 2009).

10 Id.

11 See , e.g. , John K. Powers , 1 Ann.2004 ATLA-CLE 1211, ATLA Annual Convention Reference Materials , Vol . 1 (Association of Trial Lawyers of America, 2004) ("When you think about it, a movie or videotape is simply a series of photographs that are taken so close together that when they are played back at a certain speed there appears to be continuous motion.... Applying the same concept to accident reconstruction is simple. For example, we know that a vehicle traveling at 60 miles per hour travels at 88 feet per second. If you had a drawing of a road that was 100 feet long, you could draw a series of pictures showing where the car started and where it was on that road every second, or every 1/2 second or every 1/4 second. All the computer is doing in this case is making the necessary mathematical calculations and drawing the next picture for you.").

Generally, demonstrative exhibits must be authenticated, relevant, and have probative value that is not substantially outweighed by unfair prejudice to be admissible.¹² While we have not previously addressed the specific admissibility of computer animations as demonstrative evidence, they are not fundamentally different from any other form of demonstrative evidence and should be admitted given the proper evidentiary predicate described above for demonstrative exhibits.¹³ Accordingly, a trial court does not abuse its discretion to admit a demonstrative computer animation, used to illustrate the otherwise scientifically reliable testimony of a witness, if the animation: 1) is authenticated, 2) is relevant, and 3) has probative value that is not substantially outweighed by the danger of unfair prejudice.¹⁴ With regard to authentication, the proponent of the computer animation must show that the computer animation is a fair and accurate portrayal of what its proponent claims it to be, as opposed to "any idea of speculation, conjecture, or presumption of what the exhibit represents."¹⁵ Specifically, when a demonstrative exhibit is used to illustrate the opinion of a testifying expert, it can be authenticated by the expert's testimony that "the animation fairly and accurately represents that opinion."¹⁶ This is because the authentication of demonstrative evidence derives from its status as a "fair and accurate representation of relevant testimony or documentary evidence otherwise admitted in the case."¹⁷ As with any other piece of evidence in a contested trial, the demonstrative exhibit does not have to accurately reflect facts submitted by its opponent so long as it accurately represents the testimony or previously admitted evidence the proponent seeks to illustrate.¹⁸ The accuracy of the demonstrative exhibit is not considered as a matter of authentication but as part of a trial court's weighing of the probative value of the exhibit against the danger of unfair prejudice.

12 Tex. R. Evid. 901(a), 401, 403 ; see also Simmons v. State , 622 S.W.2d 111, 113 (Tex. Crim. App. 1981) (panel op.) ("Visual, real, or demonstrative evidence, regardless of which term is applied, is admissible upon the trial of a criminal case if it tends to solve some issue in the case and is relevant to the cause that is, if it has evidentiary value, i.e., if it sheds light on the subject at hand."); Vollbaum v. State , 833 S.W.2d 652, 657 (Tex. App.—Waco 1992, pet. ref'd) ("An item of demonstrative evidence must be properly identified, i.e., a showing that the matter in question is what its proponent claims."); Torres v. State , 116 S.W.3d 208, 213 (Tex. App.—El Paso 2003, no pet.) ("The trial court may exclude demonstrative evidence if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.").

13 See McCormick On Evidence § 218 (8th ed. 2020) ("[R]e-creation animations must only be shown to be relevant to the issues in the case, authenticated as a fair and accurate depiction of an expert's opinion. In addition, of course, they are subject to trial court discretion under Federal Rule 403 [.]").

14 See Tex. R. Evid. 901(a), 401, 403. Requiring computer animations, serving as demonstrative exhibits, to satisfy traditional evidentiary standards of authentication, relevance, and compliance with Rule 403 is generally in line with the traditional approaches taken by many other state courts when considering the admissibility of computer animations as demonstrative evidence. See, e.g. , People v. Cauley , 32 P.3d 602, 606–07 (Colo. App. 2001) (Colorado); State v. Dodds , 159 N.H. 239, 250–51, 982 A.2d 377, 387–88 (2009) (New Hampshire); Harris v. State , 2000 OK CR 20, 13 P.3d 489, 495 (Okla. Crim. App. 2000) (Oklahoma); Commonwealth v. Serge , 586 Pa. 671, 896 A.2d 1170, 1178–79 (2006) (Pennsylvania); Clark v. Cantrell , 339 S.C. 369, 529 S.E.2d 528, 536–38 (2000) (South Carolina); State v. Farner , 66 S.W.3d 188, 208–09 (Tenn. 2001) (Tennessee); State v. Perea , 2013 UT 68, ¶ 52, 322 P.3d 624, 637 (Utah 2013) (Utah); State v. Denton , 319 Wis.2d 718, 768 N.W.2d 250, 255–60 (Wis. Ct. App. 2009) (Wisconsin); Mintun v. State , 966 P.2d 954, 959 (Wyo. 1998) (Wyoming).

15 Tex. R. Evid. 901(a) ; see Vollbaum , 833 S.W.2d at 657 ("An item of demonstrative evidence must be properly identified, i.e., a showing that the matter in question is what its proponent claims."); see also Hartsock v. State , 322 S.W.3d 775, 779 (Tex. App.—Fort Worth 2010, no pet.) ("Demonstrative evidence must be properly identified by showing that the item in question is what its proponent claims as opposed to any idea of speculation, conjecture, or presumption of what the exhibit represents.").

16 McCormick On Evidence § 214 (8th ed. 2020) ("Thus, as a demonstrative aid, [‘recreation’ animations] could be authenticated by the expert's testimony that the animation fairly and accurately represents that opinion."); see Goode , 29 Rev. Litig. 1, 23–24 ("In each such instance the [demonstrative] evidence may be authenticated by the witness's testimony that the computer animation presents a fair and accurate depiction. In essence, computer animations are no different from other forms of demonstrative evidence and reenactments. They must fairly and accurately represent what they purport to represent. If they do not, they will not be admissible."); see also Torres , 116 S.W.3d at 213 ("The proponent is then required to established that the evidence is fair and accurate[.]").

17 McCormick On Evidence § 214 (8th ed. 2020) ; see Goode , 29 Rev. Litig. 1, 23–24. Of course, this presumes that the underlying expert testimony meets the requirements of Rule 702 and that otherwise illustrated evidence is properly admissible. See Tex. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."). As discussed above, Appellant has made no arguments that the expert testimony (upon which the exhibits was based) in this case failed to satisfy Rule 702.

18 See Vollbaum , 833 S.W.2d at 657 ("An item of demonstrative evidence must be properly identified, i.e., a showing that the matter in question is what its proponent claims. ") (emphasis added); see also Hartsock , 322 S.W.3d at 779 ("Demonstrative evidence must be properly identified by showing that the item in question is what its proponent claims as opposed to any idea of speculation, conjecture, or presumption of what the exhibit represents.") (emphasis added); see, e.g. , Wright v. State , 178 S.W.3d 905, 920–21 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (holding that, under standards for in-court physical demonstrations and experiments, a contested in-court demonstration was substantially similar to "the actual event as theorized by the State" given the State's evidence and reasonable inferences that could be drawn from the evidence.). We note that the court of appeals in Wright did not clarify the exact positioning of the ‘substantially similar’ standard within a broader evidentiary framework. However, in a later case, the same court of appeals handled factual inaccuracies in a contested videotape demonstrative exhibit within a Rule 403-style analysis, consistent with our later discussion regarding inaccuracies and Rule 403. Cockrell v. State , No. 14-05-00862-CR, 2006 WL 2290743, at *3–4 (Tex. App.—Houston [14th Dist.] August 10, 2006, pet. ref'd) (mem. op., not designated for publication).

Second, the proponent of a computer animation must demonstrate that the evidence is "relevant" by showing that it is helpful in illustrating otherwise admitted evidence or testimony.¹⁹ Unlike relevance for the admission of substantive evidence, relevance for demonstrative evidence flows from the assistance that it gives to the trier of fact in understanding other real, testimonial, and documentary evidence.²⁰ Accordingly, a computer animation's relevance cannot be viewed as merely a question of independent probative value of substantive evidence because it has no independent probative value.²¹ Rather, the question of relevance for demonstrative exhibits boils down to its value in illustrating other admitted evidence and rendering that evidence more comprehensible to the trier of fact.²² Demonstrative evidence has no probative force "beyond that which is lent to it by the credibility of the witness whose testimony it is used to explain."²³

19 Tex. R. Evid. 401 ; see also Milton v. State , 572 S.W.3d 234, 240 (Tex. Crim. App. 2019) (citing McCormick On Evidence § 214 (7th ed. 2016) ) ("[D]emonstrations and demonstrative aids ‘do not have independent probative value for determining the substantive issues in the case’; instead, they are relevant in theory ‘only because of the assistance they give to the trier in understanding other real, testimonial and documentary evidence."); Torres , 116 S.W.3d at 213 ("The proponent is then required to establish ... that it helps the witness to demonstrate or illustrate his testimony."); Hartsock , 322 S.W.3d at 779.

20 Milton , 572 S.W.3d at 240 (citing McCormick On Evidence § 214 (7th ed. 2016) ).

21 McCormick On Evidence § 214 (8th ed. 2020).

22 Id. ; see also Torres , 116 S.W.3d at 213.

23 Torres , 116 S.W.3d at 213 ; see also Hartsock , 322 S.W.3d at 779.

Finally, a computer animation is admissible if the danger of unfair prejudice, confusing the issues, misleading the jury, or other 403 factors does not substantially outweigh its probative value.²⁴ In general, a Rule 403 analysis should include, but is not limited to, a balancing of the following factors:

24 Tex. R. Evid. 403 ("The 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."); see Milton , 572 S.W.3d at 240 ("[A] demonstrative aid must not be overly inflammatory."); Baker v. State , 177 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("To be admissible, objects offered as demonstrative evidence must meet the tests of relevancy and materiality, as well as the limitations imposed by rule 403. ") (emphasis added).

(1) the probative value of the evidence;

(2) the potential to impress the jury in some irrational, yet indelible way;

(3) the time needed to develop the evidence; and

(4) the proponent's need for the evidence.²⁵

25 Erazo v. State , 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Montgomery v. State , 810 S.W.2d 372, 389–90 (Tex. Crim. App. 1991) (en banc) (op. on reh'g)).

Specifically, courts weigh "inaccuracies, variations of scale, [and] distortions of perspective" against "the degree to which the judge thinks that the item will assist the trier of fact in understanding a witness's testimony."²⁶ And while a diagram must be "properly proved,"²⁷ we have held that "even where a diagram is not exact in every detail, an objection goes to its weight, rather than its admissibility."²⁸ These general principles apply to all demonstrative exhibits, diagrams²⁹ as well as computer animations.

26 McCormick On Evidence § 214 (8th ed. 2020).

27 See Casselberry v. State , 631 S.W.2d 542, 543 (Tex. App.—El Paso 1982, pet. ref'd) ("Since all of the information on the [diagram of the intersection] had been properly proved, it was admissible and properly went to the jury."); White v. State , No. 01-89-00607-CR, 1990 WL 31589, at *4 (Tex. App.—Houston [1st Dist.] March 22, 1990, no pet.) (mem. op., not designated for publication) ("Where all of the information on the chart or diagram is properly proved, the diagram or chart itself is admissible.").

28 Jackson v. State , 477 S.W.2d 879, 880 (Tex. Crim. App. 1972) ("We fail to understand why the court initially refused to admit these drawings into evidence. Diagrams are admissible to explain and clarify a witness’ testimony. These drawings were not offered as exact scale replicas of the scene but were offered merely to show the layout of the apartment and make the officer's testimony clearer. Any inaccuracy in the scale of the drawings would not, under the circumstances, affect their admissibility.").

29 See Smith v. State , 626 S.W.2d 843, 844 (Tex. App.—Corpus Christi 1981, no pet.) (holding that a diagram was admissible even though an underlying witness later admitted that it was "simplified" and "not an exact replica" because it was offered to explain and clarify testimony by showing the layout of a scene and both underlying witnesses testified that it fairly and accurately what it was purported to represent).

As part of the unfair prejudice analysis, courts must also consider whether a demonstrative exhibit is "overly inflammatory."³⁰ For instance, in analyzing the inflammatory nature of substantive visual evidence, we have looked to, among other things, the evidence's gruesomeness, level of detail, and perspective.³¹ In looking at these factors, a court can consider whether the visual evidence tends to improperly inflame the passions of the jury and cause them to resolve the case on an improper basis.³²

30 Milton , 572 S.W.3d at 240 ("[A]s with jury argument, a demonstrative aid must not be overly inflammatory."); see also Simmons , 622 S.W.2d at 113 ("We hold today that an object, such as a knife, that is not an exact replica or duplicate of the original is admissible if it is relevant and material to an issue in the trial and is not overly inflammatory , and the original, if available, would have been admissible at trial.") (emphasis added).

31 Sonnier v. State , 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

32 Id. at 519.

Judging the potentially inflammatory nature of a demonstrative exhibit is analogous to the way we have considered the potential prejudice associated with autopsy photos. For example, in Rojas v. State , a defendant challenged four autopsy photographs under Rule 403.³³ The first three photographs depicted gunshot wounds received by one victim and the last photograph displayed trauma to the pelvic area of another victim.³⁴ The defendant claimed that all the photographs were inadmissible under Rule 403 because they were gruesome, close-up, and in color.³⁵ We noted that autopsy photos are generally admissible unless they depicted mutilation of the victim caused by the autopsy itself.³⁶

33 Rojas v. State , 986 S.W.2d 241, 249 (Tex. Crim. App. 1998).

34 Id.

35 Id.

36 Id. (citing Santellan v. State , 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) ).

In Rojas , we held that the autopsy photos were admissible because they directly focused on the wounds that could be ascribed to the defendant, were not unnecessarily gruesome, and did not reveal injuries from the autopsy procedures.³⁷ In contrast, in Terry v. State , we held that autopsy photos depicting a "massive mutilation" of a child were inadmissible because they depicted "primarily what was done by the person who performed the autopsy rather than that alleged to have been done by the appellant."³⁸

37 Id. at 249–50.

38 Terry v. State , 491 S.W.2d 161, 163 (Tex. Crim. App. 1973).

Similarly, we have also considered the potential emotional effect of demonstrative exhibits on the jury.³⁹ For example, in Milton v. State , we held that a demonstrative video of a lioness trying to eat a human baby through protective glass was improper because of its potential inappropriate emotional effect on the jury.⁴⁰ Specifically, we recognized that the video could ‘unconsciously mislead’ the jury into punishing the robbery defendant for a much more heinous crime of attempting to eat a human baby.⁴¹ We have also held that a seventeen-minute memorial video of a capital murder victim set to the music of Enya and Celine Dion was inadmissible as victim-impact or victim-character evidence due to the potential to mislead the jury into an overly emotional response.⁴² Accordingly, an animation's probative value must not be substantially outweighed by inflammatory aspects that may cause a jury to render a verdict on an improper basis.

39 See Milton , 572 S.W.3d at 243–44 ; see also Salazar v. State , 90 S.W.3d 330, 338–39 (Tex. Crim. App. 2002) (holding that seventeen-minute memorial video of the victim set to the music of Enya and Celine Dion was inadmissible as victim-impact or victim-character evidence).

40 Milton , 572 S.W.3d at 243–44.

41 Id.

42 Salazar , 90 S.W.3d at 337.

Claims that a demonstrative exhibit relies upon speculation or factual inaccuracies fit more cleanly into a Rule 403 balancing analysis rather than an authentication or relevance analysis. Texas intermediate courts of appeals have generally viewed such claims through the lens of Rule 403.⁴³ For instance, in Venegas v. State , the San Antonio Court of Appeals held that the probative value of a computer animation depicting an accident reconstruction expert's testimony was not substantially outweighed by potential unfair prejudice.⁴⁴ In that case, the State's expert described his team's efforts at diagramming and taking measurements of the scene.⁴⁵ Further, he described how he could use a pre-accident recording of the defendant's vehicle, captured by a camera at a nearby gas station, in conjunction with the placement of other cars in the recording and other fixed objects to determine the defendant's approximate speed at time of impact.⁴⁶ The expert described how he could apply time and distance constants to calculate the information in the computer animation regarding the car's speed and its ultimate path.⁴⁷ The court of appeals held that the probative value of these exhibits was not substantially outweighed by the danger of unfair prejudice from speculation and inaccuracy because the exhibits were based upon calculations derived from quantifiable measurements.⁴⁸

43 See, e.g. , Castanon , 2016 WL 6820559, at *3 (holding that trial court did not abuse its discretion by admitting traffic reconstruction made by police officer because small gaps in underlying information did not cause the probative value to be substantially outweighed by unfair prejudice); Murphy , 2011 WL 3860444, at *1 (holding that trial court did not abuse its discretion by admitting traffic reconstruction with slight inaccuracies as to the appearance of cars, background, and scale because the inaccuracies did not cause the probative value of the evidence to be substantially outweighed by unfair prejudice).

44 Venegas , 560 S.W.3d at 347–48.

45 Id. at 348.

46 Id.

47 Id.

48 Id. at 348.

In contrast, the First Court of Appeals, in Harris v. State , held that a trial court did not abuse its discretion in excluding a live-action video reenactment and separate computer animation based on concerns that they would be misleading and confusing to the jury.⁴⁹ First, the contested live-action video reenactment purported to show the defendant's viewpoint as she drove through a parking lot and struck the complainant.⁵⁰ However, the sponsoring expert admitted that the video misrepresented the defendant's viewpoint in the car and misrepresented the speed of the car.⁵¹ In addition, the expert admitted that he did not know the exact position of the complainant to support his position in the live-action video.⁵²

49 Harris v. State , 152 S.W.3d 786, 794 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd.).

50 Id. at 790.

51 Id.

52 Id. at 793.

Separately, the contested computer animation in Harris depicted the opinion of the expert that the defendant had only run over the complainant's body once, in contrast to the State's evidence.⁵³ However, unlike the live-action video, the computer animation omitted any figure to represent the complainant.⁵⁴ Instead, the expert placed an ‘X’ to mark a bloodstain discovered next to the complainant's body.⁵⁵ But the expert testified that the defendant's car never drove through the bloodstain.⁵⁶ The trial court excluded the live-action video because he believed that the inaccuracies within the recreation led to a substantial danger of misleading or confusing the jury.⁵⁷ In addition, the trial court excluded the computer animation exhibit because he believed that the absence of a body and inclusion of a bloodstain marker within the animation would mislead or confuse the jury.⁵⁸

53 Id.

54 Id. at 790.

55 Id.

56 Id.

57 Id. at 793–94.

58 Id. at 793.

After reviewing the inaccuracies in the live-action video exhibit, the court of appeals upheld the trial court's decision to exclude the exhibit as within the realm of reasonable disagreement.⁵⁹ In addition, the court of appeals upheld the trial court's exclusion of the computer animation exhibit.⁶⁰ The court pointed out that the real issue was whether the defendant ran over the complainant's body more than once, not where the body was located when it was run over.⁶¹

59 Id. at 794.

60 Id.

61 Id.

Similarly, the Amarillo Court of Appeals, in the companion cases of Lewis v. State and Hamilton v. State , held that a computer animation was inadmissible due to its speculative nature.⁶² The animation purported to recreate the events surrounding a shooting from the perspective of a lay witness.⁶³ On cross-examination, the eyewitness admitted that the animation was inaccurate in some respects, including: the lack of a window-screen in the animation, a different elevation for her apartment, different decibels for the gunshots, different body sizes for the human figures, and a different number of gunshots.⁶⁴ In addition, the creator of the animation admitted that some details had been omitted "because they require more memory to run the computer program."⁶⁵

62 Lewis v. State , 402 S.W.3d 852, 862–66 (Tex. App.—Amarillo 2013, pet. granted), aff'd on other grounds , 428 S.W.3d 860, 865 (Tex. Crim. App. 2014) ; Hamilton v. State , 399 S.W.3d 673, 680–85 (Tex. App.—Amarillo 2013, pet. ref'd.).

63 Lewis , 402 S.W.3d at 862 ; Hamilton , 399 S.W.3d at 681–82.

64 Lewis , 402 S.W.3d at 862 ; Hamilton , 399 S.W.3d at 681–82.

65 Lewis , 402 S.W.3d at 863 ; Hamilton , 399 S.W.3d at 682.

The court of appeals ultimately concluded that the animation was inadmissible because many details of the animations were completely unsupported by the record and "were provided by nothing more than pure speculation[.]"⁶⁶ Although the Amarillo Court of Appeals did not explicitly categorize its analysis under Rule 403, its overall analysis falls in line with the other Texas courts of appeals that have addressed this issue using a 403-style analysis.⁶⁷ Accordingly, computer animations can be admissible if their probative value (i.e., their helpfulness to the jury) is not substantially outweighed by risk of unfair prejudice, misleading the jury, or confusing the issues.⁶⁸

66 Lewis , 402 S.W.3d at 865 ; Hamilton , 399 S.W.3d at 684.

67 See, e.g. , Venegas , 560 S.W.3d at 347–48 ; Harris v. State , 152 S.W.3d at 794 ; Castanon , 2016 WL 6820559, at *3 ; Murphy , 2011 WL 3860444, at *1.

68 See, e.g. , Clark , 529 S.E.2d at 536 (recognizing that an inaccurate portrayal within a computer animation can pose a high potential for misleading the jury and creating lasting impressions that unduly override other evidence); Farner , 66 S.W.3d at 209 ("If a computer animated portrayal is inaccurate, its probative value decreases and the likelihood that it will be subject to exclusion under [Tennessee] Rule 403 increases.").

So, a computer animation used as a demonstrative aid is admissible if its proponent shows that it: 1) is authenticated, 2) is relevant, and 3) has probative value that is not substantially outweighed by the danger of unfair prejudice.⁶⁹ In analyzing the exhibit's authenticity, the trial court should consider whether the exhibit is a fair and accurate portrayal of what its proponent claims it to be.⁷⁰ In determining relevance, the trial court should consider the helpfulness of the exhibit in illustrating testimony.⁷¹ Finally, in analyzing the exhibit's probative value versus danger of unfair prejudice, the trial court should weigh its probative value (i.e., its helpfulness to the jury) with its potential for unfair prejudice, misleading the jury, or confusing the issues.⁷² As with any other trial court's ruling on an evidentiary matter, a trial court's ruling admitting demonstrative exhibits will not be disturbed absent a clear abuse of discretion.⁷³

69 See Tex. R. Evid. 401, 403, 901(a).

70 Tex. R. Evid. 901(a) ; see McCormick On Evidence § 214, 218 (8th ed. 2020).

71 Milton , 572 S.W.3d at 240 (citing McCormick On Evidence § 214 (7th ed. 2016) ).

72 See, e.g. , Clark , 529 S.E.2d at 536 (recognizing that an inaccurate portrayal within a computer animation can pose a high potential for misleading the jury and creating lasting impressions that unduly override other evidence); Farner , 66 S.W.3d at 209 ("If a computer animated portrayal is inaccurate, its probative value decreases and the likelihood that it will be subject to exclusion under [Tennessee] Rule 403 increases.").

73 See Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

The Computer Animations Were Properly Admitted as Demonstrative Evidence

Here, Appellant did not object that the underlying expert testimony and opinions were unreliable under Rule 702. Consequently, we are only concerned with the admissibility of the demonstrative exhibits themselves. We consider that question under the assumption that the expert testimony illustrated by the demonstrative exhibit was scientifically reliable.

As will be discussed in more detail below, the State authenticated the contested exhibits. The State further established that they were relevant and had probative value that was not substantially outweighed by the danger of unfair prejudice. Kropp's testimony established that the exhibits were fair and accurate representations of his expert opinion. The exhibits were helpful illustrations of the complex mix of forensic evidence and expert testimony. And finally, the exhibits’ probative value was not substantially outweighed by the danger of unfair prejudice. Accordingly, the court of appeals properly upheld the trial court's admission of the animations.

Authentication

First, the State properly authenticated the exhibits.⁷⁴ As the trial court told the jury, the exhibits were "a visualization of the expert's opinion." And, as shown by Kropp's explicit testimony, the exhibits fairly and accurately reflected what they purported to reflect. Kropp specifically testified that the exhibits accurately depicted what he intended them to and had not been altered in any way. He also testified that the exhibits fairly and accurately represented what the available evidence showed. Accordingly, they were authenticated by the explicit testimony of their sponsoring witness.⁷⁵

74 See Tex. R. Evid. 901(a).

75 See Vollbaum , 833 S.W.2d at 657 ("An item of demonstrative evidence must be properly identified, i.e., a showing that the matter in question is what its proponent claims. ") (emphasis added); see also Hartsock , 322 S.W.3d at 779 ("Demonstrative evidence must be properly identified by showing that the item in question is what its proponent claims as opposed to any idea of speculation, conjecture, or presumption of what the exhibit represents.") (emphasis added); Casselberry , 631 S.W.2d at 543 ("Since all of the information on the [diagram of the intersection] had been properly proved, it was admissible and properly went to the jury.").

Relevance

Next, the demonstrative exhibits were relevant because they assisted the trier of fact in understanding the testimonial and documentary evidence in a concise and easy-to-understand form.⁷⁶ Similar to a blackboard diagram of a crime scene drawn by a witness to illustrate his testimony, the animation in this case tracked Kropp's conclusions and testimony for the jury in an easy-to-follow visual form.⁷⁷ It did this by combining the accident reconstruction evidence of tire tracks and acceleration patterns with the medical evidence of Delorme's injuries and the forensic evidence of Delorme's skin, scalp, and DNA under certain sections of Appellant's vehicle in one short presentation. In doing so, the animation provided a digestible aid that could illustrate the testimony of multiple witnesses in a simple experience. Further, it provided a clear understanding of the State's theory of the case and highlighted how Appellant's version of events was inconsistent with the physical evidence. Accordingly, the computer animations were relevant as pieces of demonstrative evidence.

76 Tex. R. Evid. 401 ; see also Milton , 572 S.W.3d at 240 (citing McCormick On Evidence § 214 (7th ed. 2016) ); Simmons , 622 S.W.2d at 113 ; Torres , 116 S.W.3d at 213 ; Hartsock , 322 S.W.3d at 779.

77 See Jackson , 477 S.W.2d at 880 ("We fail to understand why the court initially refused to admit these drawings into evidence. Diagrams are admissible to explain and clarify a witness’ testimony. These drawings were not offered as exact scale replicas of the scene but were offered merely to show the layout of the apartment and make the officer's testimony clearer.").

Probative Value vs. Danger of Unfair Prejudice

Finally, the probative value of the exhibits was not substantially outweighed by the danger of unfair prejudice.⁷⁸ Generally, all four traditional factors for Rule 403 analysis weigh in favor of admissibility. As relevant to the specific issues in this case, the exhibits were not overly inflammatory.⁷⁹ They accurately reflected the objective evidence. And the stated assumptions underlying the placement of the victim's body prior to, during, and after the collision did not unduly increase the danger of misleading the jury or confusing the issues.⁸⁰

78 See Tex. R. Evid. 403.

79 See Milton , 572 S.W.3d at 240.

80 See Venegas , 560 S.W.3d at 347–48.

Probative Value

As we described above, the exhibits were probative because they illustrated the testimony of multiple witnesses in a simple visual experience. Being fair and accurate depictions of Kropp's opinions, they allowed the jury to visualize the plausibility of the State's theory of the case in an easy-to-understand form. In addition, they provided a visual emphasis to Kropp's conclusions that could be used to weigh the plausibility of Appellant's later account of the events in question as they related to the position of his truck and general location of Delorme in the acceleration pattern.

In this way, the probative value of the animations is similar to the probative value of a contested in-court demonstration analyzed by the Fourteenth Court of Appeals in Wright v. State .⁸¹ In Wright , the prosecutor attempted to demonstrate the State's theory of a murder by bringing a bed into the courtroom and physically demonstrating the way that the State's testifying witness believed the defendant stabbed the victim.⁸² According to the court of appeals, the demonstration had probative value because "it enabled the jury to visually evaluate the plausibility of both the State's theory and appellant's self-defense claim."⁸³ Because of this, the demonstration "conveyed the evidence more effectively than if a witness had merely described it."⁸⁴ Similarly, the animations in this case provided a visual medium for the jury to evaluate the plausibility of the State's case and its relation to the Appellant's counter-version of events. Accordingly, we believe that this factor weighs in favor of the admissibility of the exhibits. Danger of Unfair Prejudice

81 See Wright , 178 S.W.3d at 923–24.

82 Id. at 912–15.

83 Id.

84 Id. at 924.

The exhibits also did not have an undue tendency to suggest a decision by the factfinder on an improper basis. The exhibits were not overly inflammatory.⁸⁵ In fact, the exhibits were the least gruesome depiction of Delorme offered into evidence by the State. Pictures of Delorme's body at the scene and during the autopsy showed blood, gore, and grisly injuries.⁸⁶ The animation, meanwhile, showed a nondescript, expressionless, and motionless representation of Delorme only marginally more detailed than a stick figure.⁸⁷ And, unlike the crime scene and autopsy photos, the animation does not attempt to show the actual injuries and merely depicts opinions regarding the way the injuries were sustained.

85 See Milton , 572 S.W.3d at 240.

86 State's Trial Exhibits 5-7, 9-18, 29-30, and 34-44. We recognize that autopsy photos are generally admissible "unless they depict mutilation of the victim caused by the autopsy itself." Rojas , 986 S.W.2d at 249 (citing Santellan , 939 S.W.2d at 172 ).

87 The animations also do not contain dramatic camera angles, sound effects, or a soundtrack. See also Salazar , 90 S.W.3d at 340 (Keller, P.J., concurring) (agreeing that the memorial video at issue in the case was inadmissible because the demonstrated evidence was presented in a manner designed to have an unduly emotional impact).

This, again, makes the exhibits similar to the contested in-court demonstration in Wright .⁸⁸ In Wright, while analyzing factors that kept the in-court demonstration from impressing the jury in an irrational way, the court of appeals noted that the demonstration "was less graphic than the actual event."⁸⁹ To support this, the court of appeals pointed out that the State did not attempt to reproduce the nearly 193 stab wounds, did not attempt to recreate the "gruesome, bloody scene" depicted in photographs, and did not attempt to reproduce alleged sexual aspects of the offense.⁹⁰ Similarly, in this case, the exhibits did not attempt to recreate Delorme's injuries or any other gruesome aspects of the scene.

88 Wright , 178 S.W.3d at 926.

89 Id. at 925–26.

90 Id. at 926.

Moreover, the exhibits accurately reflect the objective evidence and are not based on speculation that might have misled or confuse the jury.⁹¹ Appellant does not claim that the animation inaccurately reflects the movements of Appellant's truck or the positioning of the buildings in the animation—nor could he. As was the case with the contested exhibits in Venegas , the State established in this case that all of the details in the exhibits were based on calculations derived from objective data and quantifiable measurements.⁹² Officer Thompson, who collected the underlying measurements, testified regarding his measurement collection and described the process of picking fixed reference points of the scene with his range finder. He noted the 28 separate points of reference that were collected on scene and described the length and unique curvature of the accelerating tire marks leading to Delorme's body. Kropp described using Thompson's underlying data, the forensic evidence found under Appellant's truck, photos from the scene, and Fries’ autopsy report to construct the animations. In addition, Kropp described his 15 field acceleration tests to create the "most accurate speed" for the animation. While Kropp and Thompson did not have the benefit of a close-in-time video like the expert in Venegas , they had more quantifiable data including the autopsy report, forensic evidence, and the clear tire marks demonstrating curvature, vehicle control, and acceleration patterns.⁹³

91 See Venegas , 560 S.W.3d at 347–48.

92 See id.

93 See Venegas , 560 S.W.3d at 347–48.

Further, Kropp's testimony distinguishes these exhibits from the inadmissible exhibits in Lewis and Hamilton because Kropp was able to justify all of the details within the exhibits with explanations based in the objective evidence.⁹⁴ In Lewis and Hamilton , the animation did not account for a window screen, had an inaccurate elevation, contained inaccurate gun decibels, an inaccurate number of gun shots, and contained three identical figures in contrast to witness testimony that the subjects had different body types.⁹⁵ The expert in Lewis and Hamilton even admitted that some details had been intentionally left out to save memory on the computer program.⁹⁶

94 See Lewis , 402 S.W.3d at 863–65 ; Hamilton , 399 S.W.3d at 684.

95 Lewis , 402 S.W.3d at 862 ; Hamilton , 399 S.W.3d at 681–82.

96 Lewis , 402 S.W.3d at 863 ; Hamilton , 399 S.W.3d at 682.

While Appellant centers his arguments on the placement of the depiction of Delorme within the animation, Kropp's placement of the Delorme figure was supported by objective scientific evidence. As Kropp explained, Delorme's body was discovered about 85 feet from the beginning of the accelerating tire marks. There was no forensic evidence that the body had traveled on the hood of the car prior to being run over, and there was every indication that the body traveled from the front to the back of the undercarriage of the truck. From the medical examiner's testimony, if the body had been dragged by the Appellant's truck, it would have been for only a short distance of about 10 feet. As Kropp explained, that combined evidence justified placing the Delorme animation within a short proximity of where the body ended up rather than closer to where Appellant's truck started.

Even though Appellant testified that Delorme was standing closer to his truck than the exhibits depicted, that testimony was not a basis for Kropp's testimony or conclusions and was even contradicted by Kropp's rebuttal testimony as not reflective of the objective evidence. In addition, Appellant questioned Kropp in front of the jury regarding the placement of the Delorme figure and Kropp was candid regarding his exact reasons for the placement of the Delorme animation. Accordingly, any perceived inaccuracies were made very apparent to the jury, lessening the potential for their improper use.⁹⁷

97 McCormick On Evidence § 214 (8th ed. 2020) (In discussing diagrams, "[w]hen a trial court has exercised its discretion to admit, it will rarely be found in error. This is particularly true if the potentially misleading features have been pointed out by witnesses for the proponent or could have been exposed on cross-examination.").

Ultimately, Appellant's core concern is that the exhibits carried a potential to implicitly convey to the jury that the victim did not engage in provocative behavior towards the defendant because the exhibits showed no behavior on the part of the victim at all. Appellant's argument is well-taken. But when considering the content of each exhibit, the human figure is clearly not meant to convey any information about the victim's behavior. One of the three exhibits barely even features a human figure. And the lack of any physical reaction by the figure in the other two exhibits, prior to, during, and after the collision, as well as absence of any depiction of the wounds suffered by the victim, minimized the potential of the jury to regard the exhibit as anything other than an illustration of the opinion testimony. To the extent that the use of a stationary figure to represent the victim could have implicitly suggested to the jury that the victim did not engage in aggressive behavior, the danger of that unfair prejudice was not substantial when considering the context in which the stationary figure was used in the exhibit.⁹⁸ This factor weighs in favor of admission.

98 By way of contrast, the excluded exhibit depicting Appellant's point of view while driving carried with it significant danger of unfair prejudice. That exhibit necessarily focused more on Appellant's point of view rather than the opinion testimony regarding the travel of the truck. It required a great deal of speculation regarding where Appellant would have been looking as he drove as well as centering the viewer upon the behavior or non-behavior of the victim. That exhibit was much more like the inadmissible video re-creation of the defendant's point of view in Harris . See Harris , 152 S.W.3d at 793.

Time to Develop the Exhibits

The time needed to develop the contested exhibits did not unfairly prejudice the defendant because the presentation of the exhibits did not distract the jury from consideration of the charged offense. Rather, the presentation of the evidence fixed the jury's focus of the evidence underlying the State's theory of the case. The animation directly related to the State's substantive proof of the underlying offense and could not have distracted they jury regardless of the required time to present the results.⁹⁹

99 Regarding the "time needed to develop" factor at issue in a Rule 403 analysis, we have previously made clear that we are only concerned with how the time needed to develop the evidence distracts the jury from the charged offense. See State v. Mechler , 153 S.W.3d 435, 441 (Tex. Crim. App. 2005). If the demonstrative exhibit merely focuses the jury's attention on evidence proving the charged offense, then the jury cannot be distracted by the exhibit regardless of the time required to develop the particular evidence. See id.

Moreover, the exhibits themselves each only last a matter of seconds. The time devoted to the admissible testimony regarding the accident and the facts supporting the expert opinions in the case far exceeded the time necessary to explain the process by which the exhibits in this case were created and to display them before the jury. Accordingly, this factor favors admission.

Need for the Exhibits

Finally, the State had at least some need for the contested exhibits. As in Wright , the exhibits in this case were a much more forceful and clear illustration of the State's theory than mere testimony and almost certainly heightened the jury's comprehension of the State's theory despite the fact that they were duplicative of other evidence.¹⁰⁰ They provided a useful tool for the jury to evaluate the plausibility of both the State's and Appellant's respective theories of the case. This factor weighs at least slightly in favor of admission.

100 Wright , 178 S.W.3d at 928.

No Per Se Prohibition Against the Depiction of Human Behavior in Demonstrative Exhibits

Appellant argues that the exhibits were unduly prejudicial and should have been excluded because the inclusion of Delorme's body in the animation depicted human behavior. According to Appellant, this Court has established a per se bar to recreations of human behavior and the exhibits violated this rule. We disagree. First, Appellant's argument centers on general language from our opinion in Miller v. State, but his reliance is misplaced.¹⁰¹ Miller did not deal with an animation depicting human behavior; rather, it dealt with a videotape that showed a series of pictures of a route taken by the defendant to where the victims in the case where murdered.¹⁰² Though the defendant argued on appeal that the exhibit was based upon speculation, we held that error had not been preserved.¹⁰³ We did not decide Miller on the issue of whether depictions of human behavior are too speculative.¹⁰⁴

101 Miller v. State , 741 S.W.2d 382, 388 (Tex. Crim. App. 1987).

102 Id.

103 Id.

104 Id.

Indeed, Appellant relies upon language in Miller that was not central to the holding of the case. After the Court determined that the defendant's challenge to the video had not been preserved, we noted a previous statement from the Fort Worth Court of Appeals in Lopez v. State regarding staged, re-enacted criminal acts.¹⁰⁵ The court of appeals had stated that "[a]ny staged, re-enacted criminal acts or defensive issues involving human beings are impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of re-enactments is too highly prejudicial to insure the State or the defendant a fair trial."¹⁰⁶ While we did note the persuasiveness of this logic, Miller did not involve staged, re-enacted criminal acts. And, regardless, we had already resolved the pertinent issue on preservation grounds.¹⁰⁷ Accordingly, our statement in Miller was dicta.¹⁰⁸

105 Id.

106 Lopez v. State , 651 S.W.2d 413, 414 (Tex. App.—Fort Worth 1983) opinion withdrawn by Lopez v. State , 667 S.W.2d 624 (Tex. App.—Fort Worth 1984), which opinion was reversed on other grounds, Lopez v. State , 664 S.W.2d 85 (Tex. Crim. App. 1983).

107 Miller , 741 S.W.2d at 388.

108 See Oliva v. State , 548 S.W.3d 518, 524 (Tex. Crim. App. 2018) ("[L]anguage in an opinion can be dictum if it is broader than necessary to resolve the case. This is so because a court might not have carefully considered fact situations that vary substantially from the one before it.").

Second, the exhibits in this case did not attempt to recreate human behavior. The figure representing Delorme did not independently move at all and appears solely placed to demonstrate the details of the truck's path through the collision, not Delorme's actions prior to impact. Unlike even the animated human figures in Lewis and Hamilton , the Delorme figure was not engaging in any other kind of behavior.¹⁰⁹ Rather, the figure simply served as a marker for the place that Kropp believed the evidence showed the strike most likely occurred as well as how the car traveled over the body.

109 Cf. Lewis , 402 S.W.3d at 862 ; Hamilton , 399 S.W.3d at 681–82.

The animation appears just detailed enough to illustrate the expert's conclusions without extraneous and speculative detail.¹¹⁰ It is, in effect, a moving diagram that was used to illustrate the expert's conclusions about the truck's movement through the collision with the victim. There is no independent movement of the computer figure's limbs beyond what might be expected from a plastic figure. The figure remains motionless and does not react to the truck as it approaches him. When the truck hits the figure, the figure remains unnaturally rigid throughout the impact. Accordingly, rather than a recreation of human behavior, the animation relies upon a figure that more closely resembles a mannequin or doll, which courts have regularly approved as useful tools for demonstrative purposes.¹¹¹

110 See Milton , 572 S.W.3d at 240 ; see also Lewis , 402 S.W.3d at 861–65.

111 See, e.g. , Reyna v. State , 797 S.W.2d 189, 193 (Tex. App.—Corpus Christi 1990, no pet.) (noting that the use of anatomically correct dolls in a sexual assault case "as demonstrative evidence to assist the jury in understanding the oral testimony of the witness is permissible."); Perez v. State , 925 S.W.2d 324, 326–27 (Tex. App.—Corpus Christi 1996, no pet.) (same); Vollbaum , 833 S.W.2d at 657 (determining that a Styrofoam model of a woman's head was properly used as demonstrative evidence during the testimony of a medical examiner).

Finally, Appellant argues that the lack of a knife in the animated figure's hand rendered the demonstrative exhibits inaccurate. However, adding the knife would have added speculation to the exhibit by changing the focus of the demonstrative aid. While photos did show a knife and sheath located near Delorme's body after his death, none of the State's witnesses testified to their whereabouts immediately preceding Delorme's death. And although Appellant later testified to Delorme holding a knife in the parking lot prior to impact, that testimony was entered into evidence after the admission of the exhibits and was not a basis for Kropp's expert conclusions.

The animations were offered to illustrate the testimony about how the truck accelerated and ran over the victim, not to suggest that the victim remained motionless and facing to the left as Appellant's truck accelerated towards him. Given this, we cannot say that the absence of the knife substantially increased the danger of any unfair prejudicial effect of the animation. Accordingly, we hold that the trial court did not abuse its discretion in determining that the exhibits in this case had probative value that was not substantially outweighed by the danger of unfair prejudice.

Limiting Instruction

Appellant also argues that a limiting instruction should be required at the time the computer animation exhibits are introduced. According to Appellant, such an instruction should clarify that the demonstrative exhibit is not probative evidence itself. While we agree that the trial court's instruction prior to the display of the demonstrative exhibits in this case could have been more targeted on that point, any deficiencies in the instruction given by the trial court do not alter our analysis about the admissibility of the exhibits.

Generally, a limiting instruction clarifying the limited basis for the consideration of evidence can ameliorate the potential unfair prejudice in the admission of a computer animation.¹¹² But by rule, the responsibility for requesting such an instruction falls to the parties. Rule 105(a) allows for an instruction, upon request, that restricts evidence to its proper scope if it is offered for a limited purpose.¹¹³ In giving a limiting instruction prior to the display or admission of a demonstrative exhibit, the trial court reminds the jury that the demonstrative evidence may only be considered as an illustration of other evidence. Other state courts have explicitly required trial courts to give such limiting instructions prior to the publishing of a computer animation.¹¹⁴

112 See, e.g. , Garcia v. State , 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) (in analysis under Texas Rule of Evidence 403, limiting instructions can diminish potential prejudice produced by evidence); Henderson v. State , 962 S.W.2d 544, 567 (Tex. Crim. App. 1997) ("whether a limiting instruction would have been effective in preventing the jury from being influenced by the evidence's prejudicial aspects" is a factor in analysis under Texas Rule of Evidence 403 ).

113 Tex. R. Evid. 105(a).

114 See Harris , 13 P.3d at 495 ("The court should give an instruction, contemporaneous with the time the evidence is presented, that the exhibition represents only a re-creation of the proponent's version of the events; that it should in no way be viewed as an actual recreation of the crime, and like all evidence, it may be accepted or rejected in whole or in part."); see also Clark , 529 S.E.2d at 536–38.

We have previously declined to require the trial court to sua sponte give a contemporaneous limiting instruction regarding extraneous offenses. In Delgado v. State , we reasoned that the decision to request a limiting instruction concerning the proper use of certain evidence may be a matter of trial strategy.¹¹⁵ We observed that an attorney might reasonably choose not to request the instruction because doing so might emphasize the evidence at issue.¹¹⁶ This reasoning applies equally to demonstrative exhibits. Additionally, the rule regarding limiting instructions also places the burden upon the parties to request an instruction and not the trial court to give one. Consequently, we reject Appellant's argument that trial courts must sua sponte instruct the jury on the nature of the demonstrative exhibit at the time it is admitted or displayed.

115 Delgado v. State , 235 S.W.3d 244, 250 (Tex. Crim. App. 2007).

116 Id.

As mentioned above, prior to display of the exhibits, the trial court told the jury:

Ladies and gentlemen of the jury, the State has introduced an animation purporting to recreate the events alleged in the indictment. The animation is a visualization of the expert's opinion. It is admitted for the sole purpose of aiding the jury and understanding the events, if any, which happened and may be considered by the jury only to the extent that the jury believes beyond a reasonable doubt that other evidence introduced by the State supports the events as depicted in the animation.

We agree with Appellant that the instruction, which appears patterned after an extraneous offense instruction, should have explicitly stated that the demonstrative exhibits in this case were not evidence themselves. Nevertheless, this discrepancy did not render the exhibits themselves inadmissible.

Here, the instruction explained that the animation was simply a visualization of the expert's opinion. In addition, it required the jury to believe that an illustrated detail was supported beyond a reasonable doubt by other admitted evidence prior to considering it. Though the instruction did not explicitly tell the jury that the demonstrative exhibits were not themselves evidence, it did tell the jury not to consider them unless it believed the testimony they were based on. As discussed above, the trial court did not abuse its discretion to admit the exhibits because the probative value of the exhibits was not substantially outweighed by the danger of unfair prejudice. In that light, the trial court's instruction here could only limit any lingering potential for unfair prejudice from the exhibits.¹¹⁷ Any deficiencies in the trial court's wording of its limiting instruction did not harm Appellant.¹¹⁸ Conclusion

117 See, e.g. , Garcia , 201 S.W.3d 695 at 704 ; Henderson , 962 S.W.2d at 567 ; see also Harris , 13 P.3d at 495 ; Clark , 529 S.E.2d at 536–38.

118 Cf. Abdnor v. State , 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (noting in the context of the admission of extraneous offenses that the lack of a limiting instruction leaves any prejudice resulting from the introduction of the prejudicial evidence unabated); see also Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) ("On appeal, [the Court of Criminal Appeals] generally presume[s] the jury follow[ed] the trial court's instructions in the manner presented.").

A computer animation, used to illustrate an expert's testimony, is a demonstrative exhibit like any other. Assuming that the demonstrative exhibit is based upon scientifically reliable opinion testimony, it may be admitted if it: 1) is authenticated, 2) is relevant, and 3) has probative value not substantially outweighed by the danger of unfair prejudice. Because the State demonstrated that the exhibits in this case were authenticated, were relevant, and had probative value that was not outweighed by unfair prejudice, the trial court did not abuse its discretion to admit them. Accordingly, we affirm the judgment of the court of appeals.

Walker, J., filed a concurring opinion.

CONCURRING OPINION

Walker, J., filed a concurring opinion.

I agree that the admission of the computer-generated animations in this case was not an abuse of discretion. I write separately to emphasize that even though computer-generated animations can be "demonstrative," they are vastly more persuasive than other demonstratives like diagrams or charts. Because of their persuasiveness, when the prosecution seeks to use computer-generated animations at trial, the defense should not sit on its hands. Instead, expert assistance in computer-generated animations may be necessary, and the defense should seek to obtain expert assistance. And trial courts must remember that indigent defendants may be entitled to funds for expert assistance, and the Code of Criminal Procedure covers reimbursement to counsel for experts which I believe includes experts in computer-generated animations.

I — Expert Assistance Is Necessary When Computer-Generated Animations Are Involved

Computer-generated animations are increasingly part of the courtroom experience. More commonly found in high-stakes civil litigation, they have been found more and more in criminal cases. One infamous example is the Amanda Knox trial in Italy. Knox was accused, along with her Italian boyfriend Raffaele Sollecito and a third man, Rudy Guede, of murdering Knox's roommate, British student Meredith Kercher.¹ In closing argument, the prosecutors presented a computer-generated animation illustrating the prosecution's theory of the case.² The completely one-sided animation portrayed Kercher drinking with Knox's friends; an argument between Kercher, Knox, and Sollecito; and then a brutal attack by Knox and Sollecito on Kercher, "animated with a great deal of blood to match the actual bloodiness of the crime scene."³ Interjected into the animation were still photographs of the crime scene showing the wounds to Kercher.⁴ The animation was especially damning to Knox, as it depicted Knox delivering the final, fatal wound with the screen turning red and showing a gory crime scene photo of Kercher's body.⁵ The animation finally depicted certain actions allegedly taken by Knox and Sollecito "to create a false cover story of a violent break-in by a burglar."⁶ Unsurprisingly, Knox was found guilty by the jury, though her conviction was eventually overturned upon appeal.⁷

1 Gareth Norris, Computer-Generated Exhibits: The Use and Abuse of Animations in Legal Proceedings , 40 Brief 10, 11 (2011).

2 Id. ; see also Richard K. Sherwin, Visual Jurisprudence , 57 N.Y.L. Sch. L. Rev. 11, 13 (2013) ; Michael D. Murray, The Ethics of Visual Legal Rhetoric , 13 Legal Comm. & Rhetoric 107, 151–52 (2016).

3 Murray, supra note 2, at 151–52.

4 Norris, supra note 1, at 11.

5 Id. ; Sherwin, supra note 2, at 13.

6 Murray, supra note 2, at 152.

7 Elahe Izadi & Peter Holley, Following Acquittal, Tearful Amanda Knox Says She Is ‘Incredibly Grateful’ , Wash. Post (Mar. 28, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/03/27/italian-high-court-overturns-amanda-knox-murder-conviction/.

While most computer-generated animations used in trial are far more benign than the one used in the Knox trial, animations that appear relatively harmless can nevertheless have an outsized impact. "[H]umans are essentially visual learners; 87% of the visual information presented to us is retained, while only 10% of the information we hear is retained."⁸ When it comes to jurors, studies have shown jurors can recall 65% of evidence presented three days earlier, if that evidence was a combination of visuals and oral testimony.⁹ Accordingly, much has been written about the persuasiveness of computer-generated animation.¹⁰ Studies have shown the impact computer-generated animations can have,¹¹ and jurors who view testimony with computer animation can recall information more accurately and in more detail than those who did not view animation.¹²

8 Betsy S. Fiedler, Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding the Admissibility of Computer Generated Evidence , 48 N.Y. L. Sch. L. Rev. 295, 306 (2004).

9 Id.

10 See e.g. , Fiedler, supra note 8, at 302–15 (section III, titled "How Social Science Studies Can Help Courts Understand the Potential Dangers of Animation"); Jennifer L. Ceglinski, Admitting Animations: Applied Psychology Research as a Call for Improved Guidance in Assessing the Prejudicial Impact of Computer-Generated Animations , 6 Drexel L. Rev. 177, 198–207 (2013) (section III, titled "Applied Psychology Research").

11 See Linda C. Morell, New Technology: Experimental Research on the Influence of Computer-Animated Display on Jurors , 28 Sw. U. L. Rev. 411 (1999) ; Fiedler, supra note 8, at 303–05, 307 (discussing study conducted by Saul M. Kassin & Meghan A. Dunn, Computer-Animated Displays and the Jury: Facilitative and Prejudicial Effects , 21 Law & Hum. Behav. 269 (1997)); Ceglinski, supra note 10, at 198–207.

12 Morell, supra note 11, at 414.

Not only can computer-generated animations be powerful tools to persuade jurors, but the animations can mislead jurors, even if not intentionally.¹³ It has been noted that computer-generated animations are not neutral but instead reflect the biases of those who created the animation and may contain inaccuracies.¹⁴ As Justice Castille of the Pennsylvania Supreme Court emphasized:

13 Id. at 415 ("Kassin and Dunn's research indicates that jurors can be misled.").

14 See Marc A. Ellenbrogen, Lights, Camera, Action: Computer-Animated Evidence Gets Its Day in Court , 34 B.C. L. Rev. 1087,1099–1100 (1993).

the fact that the computer creates a drawing or image does not mean the product is inherently neutral or trustworthy. The content of the computer's product, whether it be a [computer-generated animation] CGA or a simulation, always depends upon some very subjective human agency—in the creation of the computer program, in the human entry of the data, and in the human review, revision and interpretation of the computer's product. The testimony of the person who created the CGA in this

case, Randy Matzkanin, testimony which the Majority summarizes at some length, ... made clear that the computer product at issue was intended to reflect not the conclusions of the computer, but the conclusions and opinions of the Commonwealth's flesh and blood forensic witnesses, as related to and interpreted by Mr. Matzkanin. Indeed, this was so much the case that the CGA was modified and manipulated by the programmer until the end-product satisfied the Commonwealth's forensic witnesses’ assessment of the criminal act.

The point, though it may appear to be minor, is no less essential. A CGA is not an inherently objective or neutral presentation of the evidence or the theory of the case. As with all human endeavors, the process of creating a CGA offers an opportunity for coloring and manipulating the end-product. As the trial court told the jury, if garbage goes into the production, garbage will come out. Thus, the accuracy of a CGA or computer simulation is always subject to challenge for accuracy and bias, no less than any other evidence.

Commonwealth v. Serge , 586 Pa. 671, 896 A.2d 1170, 1189 (2006) (Castille, J., concurring).

The fact that these computer-generated animations have great persuasive value of their own, along with the fact that they are inherently biased because they are made by people, means that it is important that a defendant be able to properly defend against the prosecution's use of a computer-generated animation. This means being able to hire a defense expert, and an expert in computer-generated animations may be constitutionally required. As one commentator succinctly put it:

Can court-appointed counsel overcome the powerful effects of computer images and ensure his client a fair trial merely by cross-examining the state's expert witness? The answer ... is no. Without being afforded the opportunity to rebut the State's exhibit through either a court-appointed expert or a computer animated exhibit that reflects the defendant's theories, there is little that a public defender can do to level the playing field.¹⁵

15 Carlo D'Angelo, The Snoop Doggy Dogg Trial: A Look at How Computer Animation Will Impact Litigation in the Next Century , 32 U. S.F. L. Rev. 561, 582–83 (1998).

II — Ake and the Right to Expert Assistance at Trial

In Ake v. Oklahoma , the United States Supreme Court held that, "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." Ake v. Oklahoma , 470 U.S. 68, 74, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

While Ake itself was limited to the issue of insanity, in Rey v. State we determined that:

Ake is not limited to psychiatric experts; but the type of expert requested is relevant to the determination of whether the trial was fundamentally unfair without the expert's assistance. The nature of an expert's field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be helpful.

Rey v. State , 897 S.W.2d 333, 338 (Tex. Crim. App. 1995). Thus, in Rey we held that Ake could apply to forensic pathologists. Id. at 338–39. And in Taylor , we reasoned that "the tenets of Ake ... could, in principle, require the appointment of a DNA expert to assist the defense[.]" Taylor v. State , 939 S.W.2d 148, 152 (Tex. Crim. App. 1996). But we rejected applying Ake to jury consultants. See Busby v. State , 990 S.W.2d 263, 271 (Tex. Crim. App. 1999). This was so because "[s]electing a jury is part of an attorney's stock-in-trade." Id. As the Eighth Circuit explained:

[t]here is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.

Little v. Armontrout , 835 F.2d 1240, 1243 (8th Cir. 1987) ; see also Rey , 897 S.W.2d at 338 (quoting Little , 835 F.2d at 1243 ).

Because of how persuasive computer-generated animations can be and how likely it is that appointed defense counsel may be ill-prepared to properly analyze and criticize the prosecution's animation, I believe that an expert in computer-generated animations is more like an expert in mental health and an expert in forensic pathology, and not like a jury consultant. Funds to procure an expert in computer-generated animations therefore may be necessary, if an indigent defendant makes the necessary showing under Ake . Three interests must be balanced in determining whether the government must provide such access:

The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Ake , 470 U.S. at 77, 105 S.Ct. 1087. The key question is "whether there is a high risk of an inaccurate verdict" if the requested expert is not appointed. Busby , 990 S.W.2d at 271.

If the defendant makes a sufficient threshold showing of the need for expert assistance on a particular issue, the defendant is entitled to access to at least one expert. Taylor , 939 S.W.2d at 152 ("Yet, if appellant met the threshold showing of Rey , he was entitled to at least one expert."). Even if the expert cannot or will not testify to the defense's theory of the case, that expert must still be "available to consult with counsel, to interpret records, to prepare counsel to cross-examine State's witnesses, and generally to help present appellant's defense in the best light." De Freece v. State , 848 S.W.2d 150, 160 n.7 (Tex. Crim. App. 1993).¹⁶ But there must be a showing; the Supreme Court has stated that an indigent defendant is not entitled to the appointment of experts when he offers "little more than undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Mississippi , 472 U.S. 320, 323 n.1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). He must provide concrete reasons for requiring the appointment of any particular expert. As Professor LaFave notes,

16 "However, the State need not ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.’ " Ex parte Jimenez , 364 S.W.3d 866, 876–77 (Tex. Crim. App. 2012) (quoting Ake , 470 U.S. at 77, 105 S.Ct. 1087 ). "Nor is a defendant entitled to choose an expert of his own personal liking or one who will agree with his defense theory." Id. at 877. "A defendant does not have a due-process right to ‘ ‘shop’ for experts—at government expense—until he unearths a person who supports his theory of the case.’ " Id. (quoting Taylor , 939 S.W.2d at 152 ). This is because the purpose of appointing an expert is "to level the playing field; to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense." Griffith v. State , 983 S.W.2d 282, 286 (Tex. Crim. App. 1998). In the words of the Seventh Circuit, the Constitution does not entitle

a defendant to the best (or most expensive) expert, or to more than one expert if the first does not reach a conclusion favorable to the defense. Just as a defendant who relies on counsel at public expense must accept a competent lawyer, rather than Clarence Darrow, ... so a defendant who relies on public funds for expert assistance must be satisfied with a competent expert.

United States v. Mikos , 539 F.3d 706, 712 (7th Cir. 2008).

[c]ourts uniformly stress that the showing of need must set forth in detail what assistance is being requested and why it is needed. The defense must identify the expert, explain what the expert will do, and explain why that will be important in representing the defendant.

WAYNE R. LAFAVE ET AL. , 3 CRIMINAL PROCEDURE § 11.2(e) (4th ed.)

Thus, when the prosecution has indicated that it will use a computer-generated animation at trial, defense counsel must do more than ask for an expert of his own. Counsel should seek out an appropriate expert before filing the Ake motion, so the Ake motion can set out the requested expert by name, why the expert is necessary in the particular case, and the approximate cost of appointing that expert.

III — The Code Provides for the Costs of "Other Experts"

Once the defendant makes the necessary showing, funds should be made available to him. The Code of Criminal Procedure provides for reimbursing counsel for the costs of experts which should include experts in computer-generated animations:

(d) A counsel in a noncapital case, other than an attorney with a public defender's office, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.

TEX. CODE CRIM. PROC. Ann. art. 26.05(d). And in a capital case, appointed counsel may be entitled to not only reimbursement but also advance payment for expert expenses:

(1) An attorney appointed ... to represent a defendant at trial or on direct appeal is compensated as provided by Article 26.05 from county funds. Advance payment of expenses anticipated or reimbursement of expenses incurred for purposes of ... expert testimony may be paid directly to ... an expert witness in the manner designated by appointed counsel and approved by the court.

Id. art. 26.052(l).

But trial court judges and appointed defense attorneys might not think of computer-generated animations as a field requiring expert assistance. Defense counsel might neglect to request funds for an expert, and even if defense counsel requested an expert, a trial court judge might reject it out-of-hand. As computer-generated animations become more prevalent, I suggest that the Legislature amend article 26.05(d) to specifically identify experts in computer-generated animation in addition to their reference to mental health experts (i.e., "including expenses for investigation and for mental health, computer-generated animation , and other experts."). See id. art. 26.05(d). It would then be clear to all that computer-generated animation is a field of expertise, and funds are available for an indigent defendant to get assistance if necessary. The Legislature could even create a special indigent defense fund to help counties pay for experts in computer-generated animations. See Bullock v. Calvert , 480 S.W.2d 367, 370 (Tex. 1972) ("The appropriation of state money is a legislative function.").

As for attorneys with public defender's offices, they, too, may also need assistance from experts in computer-generated animations, even though article 26.05(d) does not provide them funding for experts. See TEX. CODE CRIM. PROC. Ann. art. 26.05(d) (referencing "counsel in a noncapital case, other than an attorney with a public defender's office ") (emphasis added). In counties where there are public defender's offices, the county commissioners could consider increasing the funding for their public defender's offices, so their attorneys may obtain, when appropriate, expert assistance in computer-generated animations.

IV — Money, and Rule 403 as an Alternative

But the money may not be available for the defense. When that happens, an indigent defendant, aided by counsel who may not be trained or equipped to deal with the prosecution's computer-generated animation, will be at a severe disadvantage. This is made even more glaring by how much the State can spend on its animations. On the extreme end, the computer-generated animation used in the Amanda Knox case ran for twenty minutes and cost 182,000 euros.¹⁷

17 Amanda Knox: Italy Court Investigates Video Cost , BBC News (May 2, 2012), https://www.bbc.com/news/world-europe-17922339.

One would hope prosecutors in Texas would not spend that much money on what are supposedly demonstrative exhibits. The animation in Serge cost between $10,000 and $20,000. Serge , 896 A.2d at 1183 & n.9. But even considering this lesser amount, it should go without saying that $10,000–$20,000 is a lot of money that an indigent defendant does not have laying around. Unsurprisingly, Serge raised the issue of cost, noting that his entire indigent defense fund was limited to $10,000. Id. at 1183.¹⁸ In his concurring opinion, Justice Castille noted that:

18 The Pennsylvania court found the argument "waived" because it was not presented at the trial court, but the court nevertheless addressed the issue "in dicta. " Id. at 1184–85, 1190 (Castille, J., concurring). Because the Pennsylvania court had refused to extend Ake v. Oklahoma beyond issues of insanity, the court determined that an indigent defendant is not entitled to funds to create a computer-generated animation of his own. Id. at 1184–85 (majority op.).

In a case where both parties are well-funded, each will have the resources available to hire the computer professionals necessary to challenge the accuracy of a proffered CGA or to generate a competing animation. In contrast, in a criminal case involving an indigent defendant, the cost of assuring that the defense is able to adequately assess the accuracy of a Commonwealth CGA, or to produce a competing CGA of its own either contesting the accuracy of the Commonwealth's depiction or depicting a defense theory, would have to be borne by the state. If such funding is denied, the burden will fall upon appointed counsel to attempt to school himself in a field in which he most likely is not expert. As this case reveals, the cost of this evidence, in terms of both time and money, is substantial—the fifteen second CGA here apparently cost $10,000–$20,000 and a substantial portion of the trial was consumed in examining how Mr. Matzkanin produced it.

Id. at 1189 (Castille, J., concurring). Justice Castille "would [have left] open the prospect that the interests of justice may require providing an indigent defendant with the funds necessary to respond" to a computer-generated animation produced by the Commonwealth. Id. at 1190. Justice Castille concluded that, "in those situations where the defense cannot secure an equivalent production[,]" "the wisest course for the trial judge might be to exclude such evidence entirely[.]" Id.

Our Texas trial courts might not have that much money available for indigent defendants to use to hire experts to evaluate and rebut prosecution animations and to potentially create animations of their own. If there is no appetite for a special indigent defense fund to help pay for experts in computer-generated animations, Rule 403 may provide the necessary balance—the "wisest course"—because it may be more cost-effective to level the playing field by keeping the prosecution's animation out.

Supposedly, the computer-generated animations are demonstrative only. Therefore, when used appropriately, they do not present anything new to the jury but instead repackage what the jury has already been told. In other words, they are cumulative. When the balance is between a demonstrative that is, by definition, cumulative yet also carries the potential for an outsized impact on the jury and an indigent defendant's right to a fair trial, it would not be a stretch to say that the demonstrative's value is outweighed by its prejudicial impact. Id. at 1188 (Cappy, C.J., concurring) ("This monetary disparity between the Commonwealth and defense in obtaining a CGA is a relevant factor when considering the prejudice to the defense."). If the funds provided to an indigent defendant are simply not enough to match the resources put into the prosecution's animation, exclusion may be the prudent choice. Id. at 1190 (Castille, J., concurring).¹⁹

19 See also Edward J. Imwinkelried, Impoverishing the Trier of Fact: Excluding the Proponent's Expert Testimony Due to the Opponent's Inability to Afford Rebuttal Evidence , 40 Conn. L. Rev. 317, 342 (2007) (noting that the opponent's inability to afford a rebuttal witness can increase the danger of overvaluation of expert testimony, and such danger is a recognized basis for invoking Rule 403 ).

V — Conclusion

In sum, although we can call it "demonstrative," a computer-generated animation is much more powerful than a simple diagram. A computer-generated animation, even if it exactly replicates the oral testimony of a witness, can be much more persuasive than a traditional demonstrative exhibit. Because of how powerful and how technical a computer-generated animation can be, when the prosecution uses a computer-generated animation, an indigent defendant whose appointed defense counsel is likely to be untrained and unable to competently challenge the animation will need expert assistance and funds to hire an expert. With these additional thoughts, I join the Court's opinion.