Extraneous offense evidence is always prejudicial in a criminal trial in Texas—much more so in the guilt/innocence phase than in the punishment phase. The general evidentiary rule governing the admissibility of such evidence is Rule 403 of the Texas Rules of Evidence. The admissibility issue under this rule is whether the probative value of the extraneous offense evidence outweighs its prejudicial impact.
The Texas Court of Criminal Appeals (CCA) in 1990 issued a ruling in Montgomery v. State that set forth four continuing factors that guide trial courts in determining whether to allow such evidence in the guilt/innocence phase of the trial. The Montgomery factors are:
- The strength of the evidence’s probative value.
- The potential use for the evidence in some irrational but nevertheless indelible way.
- The amount of time required at trial to develop the evidence.
- The proponent’s need for the evidence.
When extraneous offense evidence is admitted during the guilt/innocence phase of the trial and is timely objected to by its opponent, the standard of review on appeal is whether the trial judge clearly abused their discretion by admitting the evidence; that is where the four Montgomery factors come into play.
These factors were the issue squarely before the CCA in Hart v. State.
On May 8, 2024, the appeals court held that the trial court abused its discretion by admitting “rap videos” promoting drugs, guns, and violence in Larry Jean Hart’s capital murder trial because the “overwhelming prejudice” of this extraneous evidence outweighed any of its probative value. The background facts of the Hart case are as follows:
On June 21, 2017, Hart drove four individuals—one was an acquaintance he knew as Mondo and the others he did not know—to an apartment complex in Dallas where Michael Gardner lived. Hart did not know Gardner either. Hart would tell the police and maintain before the jury that he gave the individuals a ride to the Gardner apartment complex as a favor to Mondo. He said he had no idea why the four individuals wanted to go to the apartment complex or their business with Gardner.
The four individuals exited Hart’s vehicle and entered the apartment complex. A surveillance video showed four individuals entering the apartment complex, and a 911 caller told the dispatcher he had seen four individuals running from the complex.
The four individuals robbed and killed Gardner while in the complex. Hart told the police during interrogation that he was unaware of the individuals’ plan to either rob or kill Gardner, and he did not learn about Gardner’s murder until two days later. He said he remained in the vehicle, with its flashers on, the entire time the other individuals were in the apartment complex.
The police and prosecutors did not accept Hart’s claim of non-involvement. He was indicted for capital murder committed during the commission or attempted commission of a felony. During the subsequent trial on the charge, defense counsel presented the non-involvement defense and put Hart on the witness stand to deny involvement.
It quickly became evident that, based on Hart’s inability to respond to certain kinds of questioning, Hart had an intellectual disability. The court excused the jury to conduct a competency hearing of its own volition. Hart was evaluated by Dr. Lisa Clayton, who found that while he was competent to stand trial, Hart did have the following disabilities:
- A below-average I.Q. in the range of 70–80.
- An I.Q. of 55–65 is considered an intellectual disability.
- Due to Hart’s I.Q. and history, he would be more likely to seek approval from others.
- Hart’s I.Q. makes him naïve and unable to think abstractly about motives or consequences.
- When Hart is under stress, he might freeze or be unable to remember things.
Defense counsel’s request to have these findings put before the jury through Dr. Clayton’s testimony was denied by the court.
Upon completion of Hart’s direct testimony, the prosecution sought and secured permission to introduce “character evidence” or “evidence of sophistication” through YouTube videos to show Hart’s “ability to understand what people are communicating to him and from his own opinions about things.“ The CCA described the two videos in question:
“The first video does not depict Appellant but is a picture of three cartoon cough syrup bottles affixed with cartoon faces of the three wise monkeys. The photo also depicts the name of the song ‘I.W.T.‘ (I Won’t Tell) and Appellant’s rap name, ‘Block Da Foo Foo.‘ The second rap video the State sought to introduce depicts Appellant amongst a crowd inside a house. The crowd is dancing and singing, and Appellant appears to be rapping the lyrics which make references to weapons, cough syrup, and being a ‘trap king.’“
Defense counsel objected to the videos as a “glorification“ of guns, drugs, and violence “whose prejudicial impact is quite significant,“ outweighing any probative value they may have. The trial court overruled the objection, saying Hart put his character at issue when he testified about being a “friendly“ person.
The jury found Hart guilty and sentenced him to life without parole.
Overturning the lower court decisions to uphold Hart’s conviction, the CCA noted that while Texas had yet to address whether the use of “rap videos“ was inherently prejudicial, other state and federal courts have drawn that conclusion.
The CCA cited with approval a 2007 Sixth Circuit Court of Appeals decision that said, “we don’t convict people for murder simply because they have written lyrics about murder.”
Against this legal backdrop, the CCA made these observations:
“… by no means is rap the exclusive genre for glorification of criminal activity. Most song lyrics are often fictitious or exaggerations of real events. Other than Taylor Swift who is known to write songs based on her personal experiences, it is not reasonable to assume that all lyrics are autobiographical as to past or future conduct, unless there is direct evidence to suggest otherwise. Holding song lyrics to their literal meaning would lead to the following conclusions: Freddie Mercury’ killed a man,‘ Bob Marley’ shot the sheriff,‘ Macy Gray ‘committed murder and . . . got away,‘ the band formerly known as The Dixie Chicks killed Earl, and classically, Johnny Cash ‘shot a man just to watch him die.‘ These are conclusions we cannot accept outside of some other evidence demonstrating the lyrics are something more than fiction.
“The videos introduced by the State were a glorification of criminal activity. The lyrics and videos included references to illicit drugs, criminal activity in general (‘dirty money’), snitching, owning weapons, degrading women, and, classically, being a ‘trap king.‘ As discussed above, other courts have recognized that the content of these songs and videos can unduly prejudice the jury because music can impact a jury in an emotional way. As in many of those cases, there is no question here that the introduction of Appellant’s rap videos encouraged the jury to convict him on the improper basis that he is a criminal generally or associates with criminals generally. This is because any song that glorifies criminality, regardless of genre, is inherently prejudicial. The danger associated with playing these videos to the jury is that the jury might regard creative expression as proof that Appellant engaged in criminal behavior based upon his rap videos instead of regarding them as nothing more than creative expression. This is problematic in Appellant’s case for two reasons. First, Appellant lacked the inherent familiarity of a popular artist that provides the ability to disassociate the artist with the individual. Unlike an easily recognizable pop star, the listener cannot disassociate ‘Block Da Foo Foo‘ from the message. Second, the subject matter in the expression is itself inflammatory. Regardless of the genre, inflammatory lyrics create the potential that the jury could ascribe character assessments to the defendant based on the content of the music he listened to or lyrics he wrote. Said plainly, music lyrics do not prove anything about the character of the person who listens to the music or lip syncs to it on video.”
Finally, having found that the introduction of the rap videos was improper, the Texas Court of Criminal Appeals said their introduction was not a harmless error, thereby reversing Hart’s conviction and remanding for a new trial. This case reminds defense lawyers to be prepared and properly object to extraneous evidence.