So says the Texas Court of Criminal Appeals in Davis v. State, decided Wednesday:
The First Amendment guarantees the freedoms of religion and association. It protects an individual’s right to join groups and to associate with others holding similar beliefs. However, the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing merely because those beliefs and associations are protected by the First Amendment. Such evidence may be admissible if it is shown to be relevant to the issues involved in the case. Future dangerousness is an issue that is relevant to the sentencing stage of a capital-murder trial.
In order to prove the relevance of a defendant’s membership in an organization or group, the state must show: (1) proof of the group’s violent and illegal activities, and (2) the defendant’s membership in the organization [indirectly citing Dawson v. Delaware, pp. 163-67. The state introduced TDCJ records showing that appellant had identified himself as a Satanist since 2005. Haley testified that some members of the Satanic religion advocate violence, that Satanic religious publications like the ones found in appellant's cell discussed "rituals of destruction" for performing "human sacrifice" on "undesirable [and] obnoxious individual[s],” and that various people had committed murder and mutilation “in the name of Satan.” Although Melton disagreed with Haley’s definition of the term “destroy” and his description of Satanic philosophy, Melton acknowledged that in some instances people had been killed in the name of Satanism. It was within the zone of reasonable disagreement for the trial court to decide that the evidence of Satanism was relevant to the issue of future dangerousness and outside the protection of the First Amendment.
We next turn to appellant’s statutory claims. Relevant evidence is that which has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Appellant’s Satanic tattoo, books, writings, and drawings are indicative of his character, and we have held that such evidence is relevant to the question of future dangerousness at punishment.
Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. “The term ‘probative value’ refers to the inherent probative force of an item of evidence — that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent’s need for that item of evidence.” “‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” All testimony and physical evidence are likely be prejudicial to one party or the other. It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable.
The probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society was a “fact of consequence” in this punishment trial. In the instant case, appellant brutally raped, beat, and strangled a fifteen-year-old girl and then cut off her fingertips to remove potential DNA evidence. The state presented evidence that, in the past, appellant had displayed aggressive behavior, had been in trouble at school, and had been placed on probation for a theft offense in North Carolina. Defense counsel argued, “Maybe he wasn’t a good person back then, but he’s a good person now,” pointing out that “he’s been trying to do the right things” since he was incarcerated and that he had no documented incidents of violence in prison. The evidence that appellant became a Satanist while in prison helped to rebut that defense argument.
As the prosecutor stated in closing argument, evidence of appellant’s affiliation with Satanism was “another piece of the puzzle” for the jury to consider when answering the special issues. This evidence was one of the factors that affected the probability that appellant would be a danger in the future, just like the facts of the offense that he committed and his prior history and violent artwork. It was not so prejudicial that there was a clear disparity between the degree of prejudice and its probative value. Thus, the trial court did not abuse its discretion in admitting this evidence. Point of error one is overruled.