Gallo v. State

In Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007), the trial court admitted into evidence autopsy photographs marked as State's exhibits 91-99, three and one-half inch by five-inch color photographs, showing "injuries discovered during the internal examination of the victim's body." The court noted that exhibits 91 and 92 are close-up views of the victim's cracked ribs and that in exhibit 91, the rib had been removed from the body. Id. Exhibits 93-99 showed various views of the underside of the victim's scalp, the victim's skull, and one picture of the victim's brain. Id. The court of criminal appeals noted that "the medical examiner used the photographs to show the massive amount of damage that was inflicted on the victim before her death, including a twelve-inch fracture that began at the base of her skull where the bone is thick." Id. The court also noted that the medical examiner "used the photographs to show the injuries that could not be seen on the surface of the body." Id. The court stated that "athough these photographs are gruesome, there was no danger that the jury would attribute the removal of the rib, scalp, or skull cap to the defendant. Furthermore, the photographs were highly probative to show the full extent of the injuries appellant inflicted on the victim." Id. The court held that under the circumstances of this case, the trial court did not abuse its discretion in deciding that the probative value of the photographs substantially outweighed the danger of unfair prejudice. Id. The Texas Court of Criminal Appeals set forth the standard of review. First, the admissibility of a photograph is left to the sound discretion of the trial judge. Id. at 762. A photograph is generally admissible if verbal testimony as to the matters depicted in the photograph would be admissible. Id. However, even if a photograph is relevant and admissible, it may be excluded if the probative value of the photograph 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." Id. (citing Rule 403). Rule 403 favors admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Id.