Yates v. State

I agree with the decision to affirm the judgment. I am still troubled, however, by the holding that merely overruling a Rule 403 objection means that the trial court “necessarily conducted the balancing test when it considered the objection.”

I continue to believe that the Court of Criminal Appeals, in deciding Montgomery v. State, intended that the trial judge engage in the balancing process under Rule 403 in such a way that the decision can be subjected to meaningful appellate review. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (on rehearing); Houston v. State. 832 S.W.2d…