"Got Anything Under that Pantleg?" Defendant Required to Show Identifying Tattoos to Jury

Since 1960, the Texas Court of Criminal Appeals has repeatedly explained that a defendant may be compelled to diclose identifying markers about himself to the jury, such as eye color, hair color, and the sound of his voice. See Whitlock v. State, 170 Tex. Crim. 153 (1960). Moreover, it has been repeatedly held that the display of the defendant’s tattoos to the jury is likewise not a violation of the right against self-incrimination.

Unfortunately for criminal law practicioners, the Court has provided little or no explanation on the issue.  See Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003).  Most recently, in Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007), the Court stated,

"the tattoos were admissible to prove the 'criminal street gang' element of the offense and their probative value was not outweighed by the danger of unfair prejudice. Also, requiring the appellant to display the tattoos did not violate the Fifth Amendment."

Again, no real analysis or explanation - just a conclusion (one paragraph in a 17-page opinion).

Following the Court's precedent that a defendant may be compelled to disclose his tatoos to the jury, the 7th District Court of Appeals (Amarillo) recently reaffirmed the issue in Saucedo v. State. Kudos to Justice Quinn, however, because, unlike prior Texas appellate court jurists who have considered the issue, he at least provides a nugget of analysis on the issue:

Body art consisting of dragons, skulls, symbols, flowers, or the like are also communicative in nature. They too convey a message of some idea, belief, or expression selected by the person wearing it. But, in each case the message is pre-existing and unlikely to incriminate in the same sense as compelling a confession. And, until the right against self-incrimination is said to insulate a defendant from showing the color of his eyes, providing a writing sample, or even displaying tattoos in general, it did not prevent the trial court from requiring appellant to raise a pant leg to show the jury the name stenciled on his leg. Simply put, the trial court did not abuse its discretion.