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Character Evidence in Murder Cases

There is an old saying about a victim in a murder case who had bad or violent character.

It goes like this: "He needed killin'." In essence, it was a justification for murder in the old days in Texas that the victim had horrible or violent character. You cannot argue he needed killing in Texas courts but in limited circumstances the defense may introduce evidence of prior acts of violent misconduct or threats of violence by the deceased which illustrate his violent character, Gutierrez v. State, 764 S.W.2d 796, 798 (Tex.Crim.App. 1989).

Specific instances of the deceased's violent character are relevant to prove the reasonableness of the defendant's apprehension of danger if that character was known to the defendant. Thompson v. State, 659 S.W.2d 649, 653 (Tex.Crim.App.1983), Article 38.36 of the Code of Criminal Procedure. However, a 403 analysis would still be necessary to determine admissibility.

The defendant need not be aware of the deceased's violent character if the evidence is offered to prove that the deceased was, in fact, the aggressor. Thompson, 659 S.W.2d at 653-54. In proving the deceased was the first aggressor, violent acts are relevant apart from showing character conformity by demonstrating the deceased's intent, motive, or state of mind.Tate, 981 S.W.2d at 193. However, the proffered violent act mus explain the conduct of the deceased at the time of offense and not merely prove that the deceased is violent in general or that he is acting in conformity with a general propensity for violence. See Tate, 981 S.W.2d at 193. An example of where an act or threat explains the deceased's conduct at the time of the offense would be where the deceased had communicated to a third party his desire to harm the defendant, but the defendant never knew about this communication. Tate v. State, 981 S.W.2d 189 (Tex.Crim.App.,1998) (I'm gonna kill that son-of-a-bitch someday threat was never communicated to defendant). Once again, a 403 analysis would still be necessary to determine if the relevant acts are admissible.

Outside of these situations, the rules usually prohibit the offering of specific acts committed by the victims as character evidence to prove that he acted in conformity therewith on a particular occasion. Tex.R.Crim. Evid. 404(a). Tex.R.Crim. Evid. 404(a)(2). The victim's character for a relevant trait should be proved only by reputation or opinion testimony. Tex.R.Crim. Evid. 405(a). The rules expressly prohibit the use of other crimes, wrongs, or acts as character conformity evidence. Tex.R.Crim. Evid. 404(b). The rules permit the use of specific instances of conduct as direct evidence of character only in cases in which character is an essential element of a charge, claim, or defense. Tex.R.Crim. Evid. 405(b); see Purtell v. State, 761 S.W.2d 360, 369 (Tex.Crim.App.1988) Character as such is almost never an element of a charge or defense in a criminal case. Gilbert v. State, 808 S.W.2d 467, 471 n. 5 (Tex.Crim.App.1991). An example of where character is an essential element in a criminal case is the character of the defendant in the punishment phase of a trial as codified in 37.07 of the Code of Criminal Procedure. A determination that the victim's propensity for violence was an essential element in self defense cases involving murder would render rule 404 of the rules of evidence, 38.36 of the Code of Criminal Procedure, and all caselaw interpreting these provisions to be meaningless. It would lead to the ridiculous outcome that every violent deed ever done by the deceased would be considered by the jury.

By Brian Corrigan
Board Certified Dallas Criminal Defense Attorney
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