by Sam Rutherford

The Court of Criminal Appeals of Texas, that state’s highest court of review in criminal cases, held that a trial court erred in admitting rap videos and other social media posts against a defendant on trial for murder. The Court determined that any probative value of the evidence was substantially outweighed by its prejudicial effect.

Background

On June 21, 2017, Larry Jean Hart drove three men to an apartment complex in Dallas. Hart knew one of the men by his nickname, “Mondo,” but did not know the other two at all. He gave them a ride as a favor. When the four arrived at the apartment complex, Hart parked his car out front with its emergency flashers on. The men exited the vehicle, entered the apartment complex, robbed a man, and then shot him to death.

Hart was subsequently arrested and questioned by police. He gave a statement saying that he had given the three men a ride to the complex but did not know them by their real names, and he had no idea they were going to commit a crime. Hart maintained that he remained in his vehicle the entire time. The only evidence suggesting otherwise was a surveillance video that seemed to show four men exiting Hart’s vehicle and a 911 caller stating that he saw four men enter the apartment complex. The three other men were never apprehended. Hart was charged with and tried for capital murder committed during the course of a burglary.

Hart testified in his own defense at trial consistent with his statement to police. His defense attorney portrayed him as an unsophisticated man with a limited intellect who was easily convinced to give the three men a ride to the crime scene and unwittingly assisted them commit the murder. To counter this defense, the prosecution sought to enter into evidence two YouTube rap videos. The first video does not depict Hart but shows an image of three cartoon cough syrup bottles with cartoon faces of the three wise monkeys. The video contains Hart’s rap name, “Block Da Foo Foo,” and the title of a song, “I Won’t Tell.” The second video depicts Hart dancing at a house party while lip syncing the lyrics to a rap that make references to weapons, cough syrup, and being a “trap king.”

The prosecution sought to introduce the videos as “character evidence” or evidence of his “level of sophistication … relat[ing] to his ability to understand what people are communicating to him and form his own opinions about things.” The defense objected, arguing that the evidence was not relevant and that any marginal relevance was outweighed by its potential for unfair prejudice. The trial court admitted the videos as well as some of Hart’s Facebook posts containing rap lyrics referencing guns. When asked about the videos on cross-­examination by the prosecutor, Hart testified that “it’s just a song, ma’am.” The jury returned a guilty verdict, and Hart was sentenced to life in prison.

Hart timely appealed. The Fifth District Court of Appeals upheld the trial court’s ruling concerning the YouTube videos and Facebook posts in a divided opinion. The Texas Court of Criminal Appeals granted discretionary review and reversed in a 5-­4 decision.

Analysis

The sole issue before the Court was whether the videos and posts were properly admitted under Texas Rule of Evidence 403, which states that a trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” To determine whether evidence is admissible under this rule, Texas courts apply the following test: “(1) the strength of the evidence’s probative value, (2) the potential for the evidence to ‘impress the jury in some irrational but nevertheless indelible way,’ (3) [t]he amount of time required at trial to develop the evidence, and (4) the proponent’s need for the evidence.” Quoting Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991).

Turning to the first factor, whether the evidence is probative (i.e., relevant to prove or disprove some fact of consequence), the Court concluded that it was because it slightly undermined Hart’s defense that he was unsophisticated and unwittingly participated in the crime. This is so because evidence of Hart’s ability to rap, lip sync, or post lyrics about crime was a “small nudge” toward proving his ability to comprehend and form intent regarding the other men’s plan to break into the victim’s apartment. The first factor therefore favored admission but only slightly, according to the Court.

Next, the Court address the third factor—how much time it took at trial to develop the challenged evidence. The Court’s focus here is whether the time needed to develop the evidence distracted the jury “from consideration of the indicted offense.” Quoting State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). Approximately 28 percent of Hart’s testimony was spent on the videos and posts. “Evidence that consumes such an inordinate amount of time has the potential to confuse or distract the jury from the main issues,” the Court stated. Citing Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). Consequently, the Court determined that this factor weighed in favor of exclusion.

Then, the Court turned to the second factor, which asks whether the challenged evidence might “impress the jury in some irrational but nevertheless indelible way.” Montgomery. “This ‘unfair prejudice’ question asks whether the evidence has a ‘tendency to suggest decision on an improper basis,’ usually emotional in nature.” Quoting Valadez v. State, 663 S.W.3d 133 (Tex. Crim. App. 2022). Citing numerous cases from other jurisdictions, the Court concluded that the rap lyrics were highly prejudicial because “they were a glorification of criminal activity.” But the Court was careful not to limit its holding to just rap music, noting that most “song lyrics are often fictitious or exaggerations of real events.” In other words, “music lyrics do not prove anything about the character of the person who listens to the music or lip syncs to it on video,” the Court declared.

But the danger of unfair prejudice was also present for other reasons as well. The videos and posts could have caused undue prejudice “because music can impact a jury in an emotional way.” Moreover, the Court explained that the evidence was inherently prejudicial because it encouraged the jury to convict Hart “on the improper basis that he is a criminal generally or associates with criminals generally.” And last, the evidence encouraged the jury to “regard creative expression as proof that [Hart] engaged in criminal behavior based upon his rap videos instead of regarding them as nothing more than creative expression.” Thus, the Court concluded that the third factor weighed “heavily in favor of exclusion.”

The fourth and final factor, the State’s need for the challenged evidence, also weighed in favor of exclusion, the Court determined. This was so because the State had numerous other avenues to address Hart’s mental state, including the statements he made during his interrogation and the surveillance footage showing four men entering the apartment complex. Moreover, the challenged evidence did not really prove what it was intended to prove—that Hart was sophisticated enough to commit the crime because he was sophisticated enough to write and perform the raps—because the State never bothered to establish whether he actually wrote the raps, whether he had help performing them, or whether he even sung them. “Without answers to these questions, using the video introduced in this trial was unfairly prejudicial, and proved very little about his intellectual capabilities,” the Court stated.

Finally, the Court addressed whether erroneous admission of the YouTube videos required a new trial. As the Court explained, a new trial is required whenever the erroneous admission of evidence impacts the defendant’s “substantial rights” and had more than a “slight influence” on the verdict. Tex. R. App. Proc. 44.2(b). The Court concluded that this test was satisfied in light of the highly prejudicial impact of the rap videos versus the overall strength of the evidence against Hart, which was far from overwhelming.

Conclusion

Accordingly, the Court reversed Hart’s capital murder conviction and life sentence and remanded the case for a new trial consistent with its opinion. See: Hart v. State, 688 S.W.3d 883 (Tex. Crim. App. 2024).  

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