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Huckaby v. A.G. Perry & Son3/23/2000
on in allowing Shipley to testify as an expert on this subject. This testimony assisted the trier of fact in determining a fact issue, i.e., the proximate cause of the accident. This point of error is overruled.
In their tenth point of error, the Huckabys contend that the trial court erred in not admitting all photographs of the deceased taken immediately after the accident when their bodies were still in the Toyota. They argue that plaintiffs' exhibit seventy-seven, a group of about sixteen photographs, is relevant to show Joshua Huckaby's mental anguish as he realized his approaching death, the severe injuries suffered by Joshua due to the trailer, the fact that he was slaughtered, and the issues of malice and criminal responsibility. The trial court did admit one of these photographs. The general rule is that pictures or photographs that are relevant to any issue in the case are admissible. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 671 (Tex. App.-Texarkana 1991, writ denied). Rule 401 of the Texas Rules of Evidence defines "relevant evidence" as follows:
vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401.
However, Rule 401 is qualified by Rule 403 which states:
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. Tex. R. Evid. 403.
Relevant evidence will not be excluded simply on the ground that it would create prejudice if permitted. Fibreboard, 813 S.W.2d at 671. The fact that photographs are gruesome does not render them inadmissible. Id. Where relevant, however, the rejection or admission of photographs is a matter which rests largely within the discretion of the trial court, whose decision will not be disturbed on appeal absent the showing of abuse of discretion. Id.
Assuming all of the photographs were relevant for the purposes stated by the Huckabys, the trial court did not abuse its discretion in allowing them to enter only one of these sixteen photographs and disallowing the remainder. In handling the matter as it did, the court allowed the Huckabys to make their point without running the risk of presenting too many photographs and thereby substantially outweighing the probative value of the photographs by their potential for unfair prejudice, i.e., to inflame the jury. As well, curtailing the presentation of sixteen photographs can be seen as preventing the needless presentation of cumulative evidence. The Huckabys have not shown that the other photographs would prove any element not shown by the photograph admitted into evidence. This point of error is overruled.
We do not reach other points urged by the Huckabys because their determination is not necessary to our decision in the case.
Because of our determination in point seven in determining that improperly admitted evidence resulted in an improper verdict, this case is reversed and remanded to the trial court for a new trial.
Ben Z. Grant Justice
Date Submitted: April 22, 1999
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