The Boy with the Crime Scene Tattoo: Tattoo Evidence in Texas Courts

According to a recent survey, four out of ten adults in the U.S. (ages 18 to 69) have at least one tattoo, with roughly a quarter of the respondents acknowledging that they bear multiple examples of body art.1 Thirty percent of all college graduates have tattoos. One side effect of this popularity is the growing importance of tattoos as evidence in criminal cases. It’s so important that the U.S. government, through the National Institute of Standards and Technology, recently completed a tattoo image-matching system, Tatt-E (Tattoo Recognition Technology Evaluation) to assist law enforcement in finding criminal suspects.2

Indeed, body ink can reveal a lot about a person, and its importance transcends use as a mere form of identification. In one high-profile example in 2017, a Massachusetts judge allowed evidence of former New England Patriots tight end Aaron Hernandez’ tattoos to be admitted in a double murder trial; the tattoos, which were done soon after the slayings, included one of a revolver with five bullets in the chamber—supposedly indicative of the five shots fired into the victims’ car.3 Tattoos have become so critical that judges have sometimes resorted to creative measures to obscure a defendant’s ink during the guilt or innocence phase of a trial. One Florida judge had a cosmetologist (paid $125 a day by the state) use makeup to cover up the disturbing neo-Nazi facial tattoo of one murder defendant, while an Indiana judge had the hair of another murder suspect dyed to hide a “death row x 3” neck tattoo that apparently referred to two other murders unrelated to the one that was the subject of trial.

The significance of tattoos as evidence has even reached the U.S. Supreme Court. In the 1992 case of Dawson v. Delaware, the Court considered the case of an escaped prisoner who burglarized a house, stole a car, and brutally murdered the woman who owned the car.4 After being convicted of first-degree murder, Dawson was confronted with evidence during the penalty phase of trial about his membership in a white supremacist prison gang—including multiple swastika tattoos and an “Aryan Brotherhood” tattoo on his hand. The jury recommended the death penalty and Dawson appealed, arguing that because the murder wasn’t racially motivated, the evidence of his tattoos and association with the hate group wasn’t relevant. The Supreme Court agreed, holding that both Dawson’s Fourteenth Amendment rights and his First Amendment rights of freedom of association were violated by the admission of the tattoo evidence.

In addition, a number of courts have held that tattoo evidence can be used not just as a form of identification or as proof of an association (such as with gangs) but can be testimonial evidence as well. For example, in the 2011 case of U.S. v. Greer, the Second Circuit considered the conviction of a man arrested after police found ammunition in a car linked to the suspect, along with a car rental agreement signed by someone named “Tangela Hudson.” At the time of his arrest, police noticed the name “Tangela” tattooed on Greer’s left arm, a fact that was brought up at trial. The Second Circuit held that while the tattoo evidence was indeed both testimonial and incriminating (thus implicating his Fifth Amendment rights), since it hadn’t been compelled by the government, there was no Fifth Amendment violation.5

But there are some cases that give new meaning to the term “testimonial,” like our titular “boy with the crime scene tattoo.” The 2011 murder conviction of California gang member Anthony “Chopper” Garcia owed much to the sharp-eyed detective who noticed that Garcia’s chest tattoo bore an eerie resemblance to the crime scene of an unsolved 2004 murder of a man outside Ed’s Liquor store in east Los Angeles. The tattoo depicted a helicopter, or “chopper,” raining down bullets on the body of a man (pointed in the same direction as the actual victim), along with the Ed’s Liquor store itself complete with Christmas lights, a distinctively bowed street lamp, and a street sign—all under the chilling banner “RIVERA KILLS” (a reference to Garcia’s gang, Rivera-13). As Sheriff’s Captain Mike Parker described it, “He tattooed his confession on his chest.”

As bizarre as the Garcia case may be, he’s not the only “boy with the crime scene tattoo.” In late February 2019, Eastland’s Eleventh Court of Appeals issued its opinion in Martin v. State, in which Richard Joseph Martin, a member of the Rolling 60s Crips gang, contested his conviction for murdering fellow gang member D’Quay Harris. Believing that Harris and another gang member had robbed him and his stepdaughter, Martin shot Harris multiple times. The prosecution introduced a photo of Martin’s tattoo, which featured the following elements: a bent stop sign at Seminole Street (the shooting took place at the intersection of Seminole and Rochester); a rat with its mouth taped shut, hanging from the stop sign and shot in the chest (Harris had been shot in the chest); the rat’s legs were torn off (Harris was initially paralyzed, losing the use of his legs, before succumbing to his gunshot wounds); on one side of the rat was a person with “Ke Loc” on the eyebrow (a reference to Harris’ friend and purported eyewitness Kevorick Shedwin, who went by the nickname “Ke Loc”); and on the other side of the rat was the name “Desi” (the name of Martin’s stepdaughter who was robbed). As the court put it, “the jury was able to see that Appellant’s tattoo reflected many of the details and circumstances surrounding the shooting.”

Martin argued on appeal that the tattoo was not relevant, since it merely reflected his support of a “no snitch culture” in which informants shouldn’t cooperate with law enforcement. He also maintained that introducing the photo of his tattoo violated his First and Fifth Amendment rights, and that the prejudicial nature of the tattoo outweighed its probative value. The Eleventh Court rejected all these arguments and pointed out that the detailed tattoo was “highly probative” because “[i]n many respects, the tattoo can be viewed as a confession.” The court observed that while the tattoo was a testimonial communication, Martin had not been compelled to make it, making it “more akin to a preexisting documentary communication.”

In fact, Texas courts have routinely held that the display of a defendant’s tattoo to the jury is not a violation of Fifth Amendment rights against self-incrimination.6 Texas courts have treated tattoos as a personal identifying characteristic, just like (as one court put it) “the color of a person’s eyes, the sound of his voice, or the color of his hair.”7 Because of this, an accused may be compelled to disclose his or her tattoo to the jury regardless of its location on the body.

Evidence of particular types of body ink has been used to prove a defendant’s gang affiliations.8 It has also been deemed relevant to illustrate the defendant’s background or character or to provide evidence of the defendant’s beliefs or motives for committing the crime in question. For example, the Court of Criminal Appeals upheld the compelled display of the defendant’s tattoo of a “demon eating the brains of Christ” as relevant not only to the defendant’s character but also “an assessment of future dangerousness.”9 In various contexts such as the punishment phase of a trial, tattoo evidence has been introduced to show that the defendant has a history of violence or white supremacist ties.10

In one of the more bizarre examples in Texas law, tattoo evidence was used to show not just the defendant’s moral character, but also his “disregard for the truth” and “lack of respect for society.” In Wood v. State, the defendant challenged the admission of testimony by Sheriff David Halliburton during the punishment phase about Wood’s unique eyelid tattoos.11 The word “Lying” appeared on one eyelid, while the word “Eyes” was inked on the other. The Eastland Court of Appeals held that this testimony (which was referenced by the prosecutor during closing argument) was relevant to show Wood’s disregard for the truth, and that such evidence did not violate the defendant’s First Amendment rights.

So, when it comes to tattoo evidence, you might say (with due apologies to Don Henley), that “there ain’t no way to hide your lying eyes.” Tattoo evidence can speak volumes about a defendant, and in the case of certain poorly chosen tattoos, even provide evidence of motive and the crime scene itself. A picture is indeed worth a thousand words.

Footnotes

  1. Martin Armstrong, 4 in 10 U.S. Adults Have a Tattoo, statista.com (June 26, 2017), https://www.statista.com/chart/9980/us-adults-with-a-tattoo/.
  2. Dan King, In 2019, Your Tattoo Could Get You Arrested, Wash. Examiner (Dec. 29, 2018), https://www.washingtonexaminer.com/opinion/in-2019-your-tattoo-could-get-you-arrested.
  3. Denise Lavoie, Tattoos as Evidence: Aaron Hernandez’s Far from the First, APNews.com (Jan. 12, 2017), https://www.apnews.com/302e7cc1364b40eb93c82f459ab46236.
  4. Dawson v. Delaware, 503 U.S. 159 (1992).
  5. United States v. Greer, No. 09-4362 (2d Cir. 2011).
  6. See, e.g., Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App. 2003); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007); Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet. ref’d); Garcia v. State, 239 S.W.3d 862, 868 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
  7. Sauceda, 309 S.W.3d at 769.
  8. See, e.g., Gaytan v. State, Case No. 05-14-01315-CR (Tex. App.—Dallas 2015); Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001).
  9. Robles v. State, No. AP-74, 726 (Tex. Crim. App. Apr. 26, 2006); see also Conner, 67 S.W.3d at 201; Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994); Corwin v. State, 870 S.W.2d 23, 35 (Tex. Crim. App. 1993).
  10. Dozier v. State, Case No. 09-11-00618-CR (Tex. App.—Beaumont 2013); Mixon v. State, 179 S.W.3d 233 (Tex. App.—Houston [14th Dist.] 2005).
  11. Wood v. State, Case No. 11-07-00167-CR (Tex. App.—Eastland 2009) (unpublished opinion).
TCDLA
TCDLA
John G. Browning
John G. Browning
John G. Browning is a former Justice on the Fifth Court of Appeals in Dallas. He is the author of five law books, more than 40 law review articles, and hundreds of other legal articles. A graduate of Rutgers University and the University of Texas School of Law, Justice Browning is the immediate past Chair of the Computer & Technology Section of the State Bar of Texas, past Chair of the Texas Bar Journal Board of Editors, member of the Professional Ethics Committee of the State Bar of Texas, and editor-in-chief of the Journal of the Texas Supreme Court Historical Society.

John G. Browning is a former Justice on the Fifth Court of Appeals in Dallas. He is the author of five law books, more than 40 law review articles, and hundreds of other legal articles. A graduate of Rutgers University and the University of Texas School of Law, Justice Browning is the immediate past Chair of the Computer & Technology Section of the State Bar of Texas, past Chair of the Texas Bar Journal Board of Editors, member of the Professional Ethics Committee of the State Bar of Texas, and editor-in-chief of the Journal of the Texas Supreme Court Historical Society.

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