If you are convicted at trial in Texas, and you don’t reach an agreement for the sentence, your sentence will be decided after a punishment hearing.
What kind of evidence can the State offer at a punishment hearing?
During the punishment phase, both the State and defense may offer evidence as to “any matter the court deems relevant to sentencing,” including the circumstances of the offense for which he is charged. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). Relevancy, in the context of punishment, is different than that contemplated by Texas Rule of Evidence 401 because, unlike the guilt/innocence phase where “facts of consequence” are narrowly drawn by the applicable statutes, there are no discrete factual issues to be determined at punishment. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Id.
What about evidence that is highly prejudicial to the defendant under TRE 403?
A 403 objection in Texas is an objection that evidence is more prejudicial than probative. That is, whatever value the evidence has to the fact finder, is outweighed by the inflammatory nature of the evidence. Another way of thinking about it is that the evidence does little to help a judge or jury make a decision, but does a lot to piss them off.
Rule 403 still applies to evidence offered at punishment. See id. at 266. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id. Unfair prejudice does not mean the evidence injures the opponent’s case, which is the central point of offering evidence. Id. Rather, it refers to “an undue tendency to suggest on andecision on an improper basis, commonly, though not necessarily, an emotional one.” Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Evidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence. See Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006).