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Univ. of South Carolina School of Law

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Sunday, August 28, 2011

Tattoo You: Court Of Appeals Of Texas, Dallas, Finds Evidence Of Defendant's "187" Tattoo Admissible

Like its federal counterpart, Texas Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, let's say that a defendant is charged with murder and claims that he acted in self-defense. And let's say that after the killing the defendant gets "187" tattooed on his hand. Should the prosecution be able to present evidence of this tattoo at trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Salazar v. State, 2011 WL 3770297 (Tex.App.-Dallas 2011), the answer is "yes."

In Salazar, the facts were as stated above, with the prosecution presenting evidence that the defendant had "187" tattooed on his right hand. Moreover, at trial,

Dallas police officer Germaine Walls testified he saw appellant at the police station on the night of the shooting, and appellant did not have "187" tattooed on his hand at that time. Walls testified that, based on his training and experience, "187" represents the California penal code section for murder, and a person puts such a tattoo on his body to proclaim that he has committed murder. Additionally, Walls testified "it's been used in quite a few rap songs to advertise the fact that they have committed murder." At trial, appellant objected to this testimony and argued there was no dispute appellant killed someone and that the tattoo was more prejudicial than probative. The prosecutor argued the "187" tattoo, clearly visible on appellant's hand, was admissible as an admission by a party opponent. Further, the prosecutor argued the tattoo showed appellant's state of mind and disproved his theory of self-defense because he was proud of the murder. The trial court overruled appellant's objection.

After he was convicted, the defendant appealed, claiming, inter alia, that evidence of his tattoo was inadmissible hearsay and should have been excluded under Texas Rule of Evidence 403. The Court of Appeals of Texas, Dallas, disagreed, concluding that

The record shows appellant did not have a "187" tattoo on the night of the shooting, and the tattoo was placed on him after he was in jail in connection with the underlying murder charge. The fact that appellant got a tattoo marking him as a murderer goes to show his state of mind at the time of the shooting and clarifies the circumstances surrounding the shooting. It is also clear from the placement of this tattoo on his hand that it was an open and obvious statement that he wanted everyone to see. This evidence directly contradicts appellant's defensive theory that he acted in self defense and was not likely to impress the jury in some irrational but nevertheless indelible way....We conclude the trial court did not abuse its discretion in admitting evidence of the "187" tattoo as a statement that appellant committed murder. See TEX.R.EVID. 801(e)(2)(A).

I agree that there was no abuse of discretion, but I disagree with the court's hearsay analysis. Texas Rule of Evidence 801(e)(2)(A) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement in either an individual or representative capacity...." So, if the defendant tattooed himself, the tattoo could have qualified as a party-admission under Rule 801(e)(2)(A), but I'm guessing that someone else tattooed him. And, if that was the case, if the tattoo were an admission, it could not have been a party-admission under Rule 801(e)(2)(A) and could only have been an adoptive admission under Texas Rule of Evidence 801(e)(2)(B) (Of course, it also could have been admitted under Texas Rule of Evidence 803(3), the state of mind exception to the rule against hearsay).

-CM

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