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Evidence

I. EVIDENCE RULINGS IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Applicability of the Texas Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Pretrial Evidence Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Motion to Suppress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Motion in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Evidence Rulings During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Judge’s Control Over the Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

D. When and By Whom Made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

E. Judge’s Responses to Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

F. Offer of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. FORM AND SCOPE OF QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Leading Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. When Leading Questions May Be Used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Objecting to Leading Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Scope of Cross-Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. JUDICIAL NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Examples of Facts That May Be Judicially Noticed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Evidence - Table of Contents

1. Verifiable Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

a. Geographical Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

b. Matters of Public Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

c. “Almanac” Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

d. Scientifically Recognized Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. Common Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. Attorneys’ Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4. Laws of Foreign Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5. Laws of Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6. Texas City and County Ordinances, the Texas Register, and the Rules of Agencies Publishedin the Administrative Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. Judge’s Personal Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3. Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

IV. PRESUMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Requirements for Presumptions under Texas Penal Code Sec. 2.05 . . . . . . . . . . . . . . . . . . . . . 14

V. RELEVANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Character Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. Generally Inadmissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

b. Essential Element Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

c. Moral Conduct Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

d. Self-Defense Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

e. Impeachment of a Witness Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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f. Other Admissible Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

g. Punishment Phase - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Methods for Proving Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Evidence of Routine Practice and Habit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

D. Subsequent Remedial Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

E. Compromise and Offers to Compromise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

F. Payment of Medical and Similar Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

G. Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

H. Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

VI. PRIVILEGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Attorney / Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Communications with Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3. Who May Claim the Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

a. Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

b. Claimants through Same Deceased Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

c. Breach of Duty by Lawyer or Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

d. Documents Attested to by a Lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

e. Joint Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

C. Husband / Wife Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Confidential Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Testimonial Privilege in Criminal Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

D. Political Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

E. Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

F. Identity of Informer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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G. Physician / Patient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

H. Clergy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VII. HEARSAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. Defining Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. Hearsay Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4. Truth of the Matter Asserted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Non-Hearsay and Hearsay Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Statements That Are Not Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

a. Prior Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

b. Admissions by a Party Opponent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(1) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(2) Adoptive Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

(3) Authorized Statement by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

(4) Unauthorized Statement by Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

(5) Statements by Co-Conspirators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

(6) Judicial Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

c. Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

2. Hearsay Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

a. Declarant Unavailability Is Immaterial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

(1) Present Sense Impression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

(2) Excited Utterance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

(3) Existing Mental, Emotional or Physical Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

(4) Statements Made for Purposes of Medical Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

(5) Recorded Recollection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

(6) Records of Regularly Conducted Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

(7) Absence of Entry in Business Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

(8) Public Records and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

(9) Records of Vital Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

(10) Absence of Public Record or Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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(11) Records of Religious Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

(12) Marriage, Baptismal, and Similar Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

(13) Family Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

(14) Records of Documents Affecting an Interest in Property . . . . . . . . . . . . . . . . . . . . . . 34

(15) Statements in Documents Affecting an Interest in Property . . . . . . . . . . . . . . . . . . . . . 34

(16) Statements in Ancient Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

(17) Market Reports and Commercial Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

(18) Learned Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

(19) Reputation Concerning Personal or Family History . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

(20) Reputation Concerning Boundaries or General History . . . . . . . . . . . . . . . . . . . . . . . . 35

(21) Reputation as to Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

(22) Judgment of Previous Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

(23) Judgment as to Personal, Family, or General History or Boundaries . . . . . . . . . . . . . . 36

(24) Statements against Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

b. Declarant Unavailability Is Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

(1) Unavailability Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

(2) The Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

C. Hearsay within Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

D. Attacking and Supporting the Declarant’s Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

VIII. WITNESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

A. Exclusion of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

B. Who Can Testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

1. Competency of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

a. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

b. Dead Man’s Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

c. Competency of Judge as a Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

d. Competency of Juror as a Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Personal Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3. Oath or Affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4. Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

C. Impeachment of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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1. Character Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2. Evidence of a Criminal Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

a. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

b. Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

c. Redirect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

3. Religious Beliefs of Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

4. Prior Statements of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

a. Prior Inconsistent Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

b. Prior Consistent Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

5. Evidence of Bias or Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

D. Production of Statements of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

IX. OPINION TESTIMONY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

A. Lay Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

1. Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2. Opinion Regarding State of Mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

3. Opinions Regarding Sobriety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

B. Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

1. Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

a. Expert Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

b. Scientific Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

c. Essential Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

2. Inadmissible Opinion Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

3. Validity of Scientific Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

4. Bases of the Expert Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

5. Testimony Regarding Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

6. Disclosure of Facts or Data Underlying Expert’s Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

C. Opinions on Ultimate Issues in the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

X. DOCUMENTARY EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

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A. Requirement of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

B. Self-Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

C. Writing Used to Refresh Memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

D. Best Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

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I. EVIDENCE RULINGS IN GENERAL

Compiled 5-18-2017.

The rules of evidence provide guidelines for the conduct of a trial, whether a jury trial or abench trial. The rules set forth the responsibilities of the judge and the parties regarding theproduction and admission of evidence.

This section describes the procedural contexts in which evidence rulings occur. Subsequentsections provide the substantive rules and laws that guide the judge’s evidence rulings. Those rules and statutes describe what evidence is or is not admissible in court in Texas.

Previously, evidence rules in Texas were separated into the Texas Rules of Civil Evidenceand the Texas Rules of Criminal Evidence. The civil and criminal rules have now beenconsolidated and are referred to only as the Texas Rules of Evidence. Many of the TexasRules of Evidence are identical in both civil and criminal cases. Therefore, in this discussion,a citation to a rule without a designation as civil or criminal indicates that the rule is the same in both civil and criminal cases. Where there is a difference in the civil and criminal rule, thatdifference is noted.

Effective April 1, 2015, the Texas Supreme Court restyled the Rules of Evidence to moreclosely match the Federal Rules of Evidence. The restyling incorporated more modernlanguage into the rules and rearranged some subdivisions to make the rules more clear. Onlytwo substantive changes were included in the 2015 restyling: (1) Rule 511 was amended toalign Texas law with Federal Rule of Evidence 502 on waiver of privilege by voluntarydisclosure. (2) Rule 613 retained the requirement that a witness have the opportunity toexplain or deny a prior inconsistent statement or a statement showing bias or interest, butthe 2015 amendment removed the requirement that the examining attorney must allow thisopportunity. Under the amendment, the witness may have to wait for redirect examinationto explain the inconsistency or circumstances.

A. Applicability of the Texas Rules of Evidence

Except as otherwise provided by statute, the Texas Rules of Evidence govern civil andcriminal proceedings (including examining trials before magistrates) in all courts in Texas, except small claims court. {Tex. R. Evid. 101(b)}. Special attention should be paid incriminal proceedings, where the laws governing decisions have a specific hierarchy ofimportance. {Tex. R. Evid. 101(d)} lists these laws in the following order, from most toleast significant:

a. the Constitution of the United States;

b. federal statutes that control states under the Supremacy Clause;

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I. EVIDENCE RULINGS IN GENERAL

c. the Constitution of Texas;

d. the Code of Criminal Procedure and the Penal Code;

e. civil statutes;

f. the Texas Rules of Evidence;

g. common law (i.e., case law).

There are also special rules of applicability in criminal proceedings, found in {Tex. R.Evid. 101(e)}. Except with respect to privileges (which apply at all stages of all actions,cases and proceedings), the Texas Rules of Evidence do NOT apply in the followingsituations:

a. suppression hearings (when the judge (under {Tex. R. Evid. 104}) must determinethe preliminary question of whether an item of evidence will be admissible, discussedbelow);

b. grand jury proceedings;

c. extradition, rendition, or detainer proceedings in an application for habeas corpus;

d. competency hearings conducted under Code of Criminal Procedure Chapter 46B,by the court out of the jury’s presence, to determine whether there is sufficientevidence of incompetency to have the jury determine the defendant’s competency;

e. bail proceedings (except when the proceeding is to determine whether bail should be denied, revoked, or increased);

f. pretrial detention hearings to determine whether justification exists to hold adefendant prior to trial;

g. proceedings for the issuance of search or arrest warrants;

h. direct contempt proceedings.

B. Pretrial Evidence Rulings

1. Motion to Suppress

A motion to suppress is a pretrial motion in which a party requests the court to rulethat a certain item of evidence should be suppressed and not admitted as evidence. The


I. EVIDENCE RULINGS IN GENERAL A. Applicability of the Texas Rules of Evidence

basis for a motion to suppress is that the evidence sought to be admitted was illegallyobtained. In a pretrial motion to suppress hearing, a trial court may rely on anyrelevant, reliable, and credible information, including unsworn hearsay. There is norequirement in {Tex. Code Crim. Proc. Art. 28.01} that all information a trial judgeconsiders must be accompanied by affidavit or testimony. Ford v. State, 305 S.W.3d530 (Tex. Crim. App. 2009). Rule 702, which governs the admissibility of experttestimony at trial, does not apply to suppression hearings. Hall v. State, 297 S.W.3d294 (Tex. Crim. App. 2009).

2. Motion in Limine

A motion in limine is a pretrial motion made by a party to prevent the opposing partyfrom attempting to introduce evidence at trial without first getting a ruling on theadmissibility of that evidence. The party opposing the evidence identifies the particular items of evidence to which it plans to object. If the court grants the motion in limine,the party who wants to offer the evidence covered by the motion is not prohibitedfrom offering that evidence at trial. Rather, the effect of a granting the motion inlimine is that the offering party may not attempt to introduce that evidence at trial,even outside of the presence of the jury, without first getting a ruling on theadmissibility of that evidence. Therefore, a motion in limine, if granted, alters the usual procedure of attempting to introduce evidence and getting a ruling only if an objection is made; instead, the offering party must get a ruling before offering the evidence.

If the judge decides at trial to admit the evidence, the motion in limine does notpreserve the objection. The party opposing admission of the evidence must reassert the objection in court and get a ruling on the objection to preserve error. The party mustalso make an offer of proof.

C. Evidence Rulings During Trial

1. Judge’s Control Over the Proceedings

The mode and order of interrogating witnesses and of presenting evidence are underthe reasonable control of the court. {Tex. R. Evid. 611} Therefore, the court has somediscretion in applying the rules. In determining how the case should proceed, withinthe framework of specific rules of evidence, the court should exercise its discretionwith three purposes in mind:

a. to make the interrogation and presentation effective for ascertaining thetruth;

b. to avoid needless consumption of time; and


I. EVIDENCE RULINGS IN GENERAL B. Pretrial Evidence Rulings

c. to protect witnesses from harassment or undue embarrassment. {Tex. R.Evid. 611(a)}.

An appellate court will reverse a trial court’s evidence ruling only if it finds that thetrial court abused its discretion in making the ruling. {Tex. R. Evid. 103} states that for purposes of appeal, error may not be based upon a ruling that admits or excludesevidence unless a substantial right of the party is affected, and that party makes anobjection and offer of proof. However, in a criminal case, nothing in the Rules ofEvidence precludes an appellate court from taking notice of fundamental errorsaffecting substantial rights, even if such errors were not brought to the attention of the court (i.e., through objection).

2. Objections

Objections serve two important purposes at trial:

1. a proper objection will keep out evidence that a party believes will affect the judge’s or jury’s decision in the case; and

2. a proper objection at trial preserves a party’s right to appeal the case basedon an argument that the judge improperly admitted or excluded evidence.

D. When and By Whom Made

The most frequent context in which a court will have to make evidentiary rulings is inresponse to objections made during trial. In our adversary system, it is the job of eachparty to prevent the other party from using improper evidence. It is not the judge’s job to note when one party is trying to offer inadmissible evidence and keep that evidence out.Each party performs its job of keeping the other side from using inadmissible evidence by making an objection when the allegedly inadmissible evidence is offered. The judge thenrules on the objection.

In ruling on an objection, the judge should be guided by the parties’ argumentssupporting or opposing the objection. If the party raises an improper basis for theobjection, the judge does not have to determine whether there exists some other basis forkeeping out the evidence. The judge determines only whether the objection made is avalid one. If the party objecting to the evidence does not include a specific and correctbasis for the objection, and the judge allows the evidence to be admitted, it is notreversible error, even if the evidence would otherwise be inadmissible.


I. EVIDENCE RULINGS IN GENERAL C. Evidence Rulings During Trial

E. Judge’s Responses to Objections

When a party makes an objection to evidence offered by the other party, the judge hastwo possible responses:

1. sustain the objection, that is, agree with the party making the objection that theevidence is inadmissible for the reasons stated in the objection; or

2. overrule the objection, that is, find that the objection is not valid and that theevidence should be admitted.

{Tex. R. Evid. 103} provides that a party must make a timely objection. This means thatthe party who objects to the offered evidence should make the objection before theevidence is heard by the jury, if possible. Often, the question itself indicates that theanswer will likely contain inadmissible evidence.

Example: A question such as the following indicates that it is likely to call for inadmissible hearsay and should therefore be objected to before the witness has a chance to answer:

ATTORNEY A: “Ms. Smith, what did Mr. Jones tell you about the color of thestoplight at the time the accident occurred?”

The objection to such a question might be stated this way:

ATTORNEY B: “Your Honor, I object; the question calls for hearsay.”

The judge would then ask the party who asked the question to respond to the objection,that is, to explain why the question does not call for inadmissible evidence. After hearingeach party’s argument concerning whether the objection is a valid one, the judge shouldthen make a ruling - “objection sustained” or “objection overruled.”

If the objection is sustained, the witness will not be allowed to answer the question,because the judge agreed that the question called for hearsay and was thereforeinadmissible. The questioner should move on to another question. If the objection isoverruled, the witness will be allowed to answer the question. Even if the judge feels thatthe question asked clearly calls for inadmissible evidence, the judge should not preventthe witness from answering if there is no objection. It is up to the other party to keep theinadmissible evidence from being heard by making a proper objection.

Sometimes, the inadmissible evidence is not apparent from the question asked. In thatinstance, the opposing party may make the objection after the jury has already heard theinadmissible evidence.


I. EVIDENCE RULINGS IN GENERAL E. Judge’s Responses to Objections

For example, in the above situation, the question might have been: “What color was thestoplight when the accident occurred?” If the witness answers, “Mr. Jones told me it wasgreen,” that answer may contain inadmissible hearsay. The objection would have to occurafter the jury has heard the evidence. Because the jury heard the answer, the objectingparty may, in addition to making an objection, make a motion for the court to strike theevidence from the record. That motion should be accompanied by an explanation of thespecific basis for striking the evidence.

Example: In the above situation, an example of what the objecting party would say is:

ATTORNEY B: “Your Honor, I object to the witness’s answer because it containshearsay. I move that the answer be stricken from the record and that the jury beinstructed to disregard the answer.”

The court, if convinced that the answer contained inadmissible evidence, may grant themotion and order that the evidence be stricken from the record. The judge would need toaccompany that order with an instruction to the jury not to consider the inadmissibleevidence. The judge would say:

JUDGE: “The witness’s answer will be stricken from the record. Ladies and gentlemen of the jury, you should disregard the witness’s last answer.”

If the judge believes that the answer did not contain inadmissible hearsay, the judgewould overrule the objection and deny the motion to strike.

Another situation that calls for an instruction to the jury in connection with anevidentiary objection is when evidence is admissible for one purpose but not for another.{Tex. R. Evid. 105} specifically provides that when evidence is admissible for one purpose but not for another, the court must give a limiting instruction, but only if requested to do so.

Example: In the above scenario, the exchange may sound something like the following:

ATTORNEY A: “Ms. Smith, what did Mr. Jones say to you about the color of thestoplight at the time the accident occurred?”

ATTORNEY B: “I object, your Honor; the question calls for hearsay.”

ATTORNEY A: “Your Honor, the question does not call for hearsay because it is notoffered to prove the truth of the matter asserted. It is not offered to prove the color ofthe stoplight at the time of the accident. Rather, it is offered to prove that Mr. Joneswas conscious immediately after the accident occurred and was talking to thosepresent.”



JUDGE: “Objection overruled.”

ATTORNEY B: “Your Honor, I request that the jury be instructed not to considerthe evidence for purposes of deciding the color of the stoplight.”

JUDGE: “Ladies and gentlemen of the jury, you may consider the witness’s answer for the purpose of deciding whether Mr. Jones was conscious immediately after theaccident occurred, but you should not consider it for the purpose of deciding whatcolor the stoplight was.”

F. Offer of Proof

When an objection is made and sustained, the party offering the excluded evidence maymake what is known as an offer of proof. {Tex. R. Evid. 103} In making an offer of proof, the party who offered the now-excluded evidence preserves on record what the substanceof the evidence would have been. This must be done outside the jury’s presence.

The primary purpose for the offer of proof is preserving the record for appeal. But anoffer of proof serves two other purposes:

1. the offer allows the appellate court to better assess whether any harm has resultedfrom an erroneous ruling to exclude evidence, because the record shows what evidencewas excluded, and

2. the offer permits the trial court to reconsider its ruling.

{Tex. R. Evid. 103} states that a party has not preserved any alleged error in excluding the evidence as an issue for appeal unless the party makes an offer of proof, or unless thesubstance of the evidence was apparent from the context within which the questions were asked. The trial court must allow the party to make an offer of proof if the party requeststo do so. {Tex. R. Evid. 103} also discusses the effect of erroneous evidentiary rulingsupon appeal, a subject that is outside the scope of this summary.

The form of the offer of proof is generally left to the party offering the evidence. Theattorney may summarize what the evidence would have shown by simply reading into therecord, or the offer of proof may take the form of questioning the witness and allowingthe witness to give the answers he or she would have given had the evidence not beenexcluded. If a party requests the question and answer format, the court must permit it.

{Tex. R. Evid. 103} states that in jury cases, the judge must conduct the proceedings to“the extent practicable” in a way that prevents the jury from hearing inadmissibleevidence. Therefore, the offer of proof occurs outside the presence of the jury due to itspurpose of preserving for the record the content of inadmissible evidence. The court



should send the jury out of the courtroom if the offering party wants to make an offer ofproof in a way that would expose the jury to the inadmissible evidence if the juryremained. Sending the jury out is usually necessary if the offering party wishes toquestion the witness as a way of making the offer of proof.

II. FORM AND SCOPE OF QUESTIONS

A. Leading Questions

1. Definition

A leading question is a question that suggests the answer. For example, “Was it coldand snowy on the night of January 25?” is a leading question. “What was the weatheron the night of January 25?” is not a leading question.

2. When Leading Questions May Be Used

{Tex. R. Evid. 611(c)} states that leading questions should usually not be used ondirect examination (when a party questions its own witness), to prevent a party frombeing able to get the answers it desires from a friendly witness. However, leadingquestions may be allowed when it is necessary for developing the testimony of thewitness (for instance, if the witness is a child). Examples may include using leadingquestions to learn the witness’s name, address, or occupation. Also note that in 2011,the Texas legislature passed {Tex. Code Crim. Proc. Art. 38.074}, which requiresjudges in criminal prosecutions to minimize the possibility of traumatizing a childwitness. Specific provisions of this law include: making sure questions are stated inlanguage appropriate for the age of the child; allowing a support person (or supportanimal) to be present with the child; and limiting the duration and timing of the child’s testimony.

The court may also allow a party to use leading questions when questioning a hostilewitness, that is, a witness who is not necessarily friendly to the questioner, but who has been called by the party to help establish some element of the case.

Leading questions are also ordinarily allowed on cross-examination, that is, when oneparty is questioning the other party’s witness. Leading questions are allowed oncross-examination because, without leading questions, a party may not be able to getany information from a witness who is unfriendly to that party.


II. FORM AND SCOPE OF QUESTIONS F. Offer of Proof

3. Objecting to Leading Questions

A party may object to leading questions by objecting to “the form of the question” orobjecting to “leading the witness.” If the court finds that an objection is valid, it mayorder the party asking the question to rephrase the question. Often, a party willvoluntarily rephrase a question if an objection to leading is sustained by the court.

B. Scope of Cross-Examination

The Texas rules, unlike the rules used in federal court, do not limit the scope ofcross-examination to matters that have already been introduced during the directexamination. {Tex. R. Evid. 611(b)} specifically states “A witness may be cross-examinedon any matter relevant to any issue in the case, including credibility.” Therefore, it isNOT a valid objection that a party’s questions on cross-examination “exceed the scope of direct.”

III. JUDICIAL NOTICE

A. Generally

Facts usually must be proven through admission of evidence. In certain circumstances,however, a court may accept a fact as true without admission of evidence. This is referredto as taking judicial notice of a fact. Under {Tex. R. Evid. 201}, a court may take judicialnotice of a fact in two instances:

1. if the fact is generally known within the jurisdiction of the trial court, or

2. if the fact is readily determined by reference to a source whose accuracy cannotreasonably be disputed.

B. Examples of Facts That May Be Judicially Noticed

1. Verifiable Certainty

One category of facts that may be judicially noticed are those that are “verifiablycertain” by resorting to sources whose accuracy cannot reasonably be questioned.{Tex. R. Evid. 201(b)(2)} For example:


III. JUDICIAL NOTICE A. Leading Questions

a. Geographical Facts

A court may take judicial notice of the location of cities, counties, boundaries, dimensions, and distances because geographical facts such as these are easilyascertainable and may be verified with certainty.

b. Matters of Public Record

A court may take notice of a recorded hearing (usually restricted to the record of the court taking judicial notice or of the court with appellate jurisdictionover the court taking judicial notice) and of its own orders, records andjudgments. Jubert v. State, 753 S.W.2d 458 (Tex. App. - Texarkana 1988, nopet.).

A court may take judicial notice of the bankruptcy status of a party,disbarment of an attorney, local rules governing attorney conduct, andwhether an attorney holds a license to practice law in the state. Testimonyfrom a prior case may not be admitted or judicially noticed. See the sectionentitled ‘Hearsay’ on pg. 24, and Stowe v. State, 745 S.W.2d 568 (Tex. App. -Houston [1st Dist.] 1988, no pet.).

c. “Almanac” Facts

Facts such as the weather on a particular date, calendar dates, times of sunriseand sunset on a particular date and other easily verifiable facts may bejudicially noticed.

d. Scientifically Recognized Facts

Scientifically recognized facts such as driver reaction time and the scientificvalidity of breathalyzer tests may be judicially noticed. For a discussion ofscientific literature being accepted as judicially noticeable facts, see Mata v.State, 46 S.W.3d 902 (Tex. Crim. App. 2001); Hernandez v. State, 116 S.W.3d26 (Tex. Crim. App. 2003).

2. Common Knowledge

Matters of common knowledge may be judicially noticed. {Tex. R. Evid. 201(b)(1)}For example, the date of an election is generally known by everyone of averageintelligence and knowledge and may be judicially noticed. Similarly, the location of amajor highway with which everyone in the community would generally be familiar may be judicially noticed.


III. JUDICIAL NOTICE B. Examples of Facts That May Be Judicially Noticed

3. Attorneys’ Fees

Most courts have held that a court may take judicial notice of customary attorneys’fees. {Tex. R. Evid. 201(b)(1)}

4. Laws of Foreign Countries

A court is required to take judicial notice of the laws of foreign countries if the partyseeking to introduce them provides the court and all parties with an English translation of the laws thirty days before trial. {Tex. R. Evid. 203}

5. Laws of Other States

A court is allowed to take judicial notice of the constitutions, public statutes, rules,regulations, ordinances, court decisions, and common law of every other state,territory, or jurisdiction of the United States. {Tex. R. Evid. 202}

6. Texas City and County Ordinances, the Texas Register, and the Rules ofAgencies Published in the Administrative Code

A court may take judicial notice of a Texas city or county ordinance, the contents ofthe Texas Register or the contents of the Texas Administrative Code. {Tex. R. Evid.204} The party requesting judicial notice should provide the court with a copy of theportions the party wishes to have judicially recognized. Although the rule does notnecessarily require it, the judicially noticed fact should be entered into the record ofthe trial court proceeding.

NOTE: Previous editions of the County Bench Book stated that judicial notice cannot be taken in the case of municipal ordinances that had not been included in the recordof trial court proceedings due to the difficulty in researching such ordinances.However, at least one appellate court has held that “a court on its own may takejudicial notice of enactments such as a municipal ordinance when the ordinance is inverified form.” Blackwell v. Harris Cty., 909 S.W.2d 135, 140 n.2 (Tex. App. - Houston [14th Dist.] 1995, pet. denied); see also Flores v. State, 33 S.W.3d 907, 922 (Tex. App. - Houston [14th Dist.] 2000, no pet.) (taking judicial notice of ordinance even though it was not verified because: (1) the trial court had taken judicial notice of the ordinance,and (2) “the provisions of the ordinance are readily available to this court”).

C. Judge’s Personal Knowledge

While not specifically prohibited in the Texas Rules of Evidence, it has been generallyheld that a judge’s personal knowledge is not a basis for taking judicial notice. For anexample of such a holding, see Broussard v. State, 598 S.W.2d 873 (Tex. Crim. App. 1980).


III. JUDICIAL NOTICE B. Examples of Facts That May Be Judicially Noticed

Support for this position may also be found in Texas Practice, 1 McCormick & Ray, 2ndEd., Evidence, Sec. 152.

NOTE: A judge’s personal knowledge is different from matters of public knowledge. Seethe section entitled ‘Common Knowledge’on pg. 11.

D. Procedure

1. Generally

A court may take judicial notice whether or not a party requests that it do so. {Tex. R.Evid. 201(c), (d)} However, a court must take judicial notice of a fact when requestedto do so by a party and is supplied with the necessary supporting information. At trialjudicial notice may be taken at any stage of the proceedings. An appeals court may take judicial notice for the first time on appeal. Granados v. State, 843 S.W.2d 736 (Tex.App. - Corpus Christi 1992, no pet.).

2. Hearing

At the request of either party, a judge must hold a hearing on the propriety of takingjudicial notice. This hearing may take place either before or after judicial notice istaken. {Tex. R. Evid. 201(e)}

3. Ruling

The judge should state on the record whether a fact has been judicially noticed. Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978).

4. Jury Instructions

In a civil case, if the court has judicially noticed a fact, the court must instruct the juryto accept this fact as conclusive. In a criminal case, the court must instruct the jury that it may, but is not required to, accept a judicially noticed fact as conclusive. {Tex. R.Evid. 201(f)}

IV. PRESUMPTIONS

A. Generally

The use of a presumption in evidence allows a party to prove one fact through proof ofanother fact. For example, a party may prove that a letter was delivered to someone byproving that the letter was properly stamped, addressed, and placed in the United States


IV. PRESUMPTIONS C. Judge’s Personal Knowledge

mail. Once the party has proven the proper mailing of the letter, the presumption arisesthat the letter was delivered to the addressee.

In most instances, the presumption exists only until the other party presents conflictingevidence. If the other party, for example, presents evidence that the letter was notdelivered, the presumption disappears. The fact-finder then resolves the conflictingevidence just as if there had not been a presumption. However, if the other party does not present any evidence contradicting the fact sought to be proven, the presumption makes a difference in the way the fact-finder considers the evidence. In that situation, the jurymay be instructed to find that by proving proper mailing, the party has also provendelivery. In other words, delivery of the letter is proven solely through proof of propermailing. The presumption eliminates the need to prove delivery of the letter to theaddressee.

At this time, Texas has not adopted any rules of evidence regarding presumptions,although there are several presumptions that arise under statutes and case law.

B. Requirements for Presumptions under Texas Penal Code Sec. 2.05

The Penal Code illustrates the way in which a presumption works in a criminal case. Thelaw on presumptions in criminal cases requires charging a jury that a presumption appliesin an appropriate case. Those requirements are:

1. The presumption must be one established by statute. Presumptions that apply invarious misdemeanor offenses are discussed under the particular offense in theCriminal Procedure section of the County Bench Book.

2. The judge must make an initial finding that the underlying fact (the fact that givesrise to the presumption) is supported by sufficient evidence.

3. The court must submit to the jury the issue of whether the presumed fact exists, butbefore the court submits that issue to the jury, it must be satisfied that all of theevidence in the case does not clearly indicate that the presumed fact could not exist.

4. The jury must find that the fact from which the presumption arises has been provenbeyond a reasonable doubt.

5. The jury must be instructed that although it may find that the presumed fact exists,it is not bound to do so. In other words, the presumption is permissive rather thanmandatory. The jury must also be instructed that if it has a reasonable doubt aboutwhether the fact giving rise to the presumption exists, it should not consider thepresumption for any purpose.


IV. PRESUMPTIONS A. Generally

6. The State must prove all the other elements of the offense beyond a reasonabledoubt.

V. RELEVANCY

A. Generally

{Tex. R. Evid. 401} defines relevant evidence as “evidence having any tendency to makethe existence of any fact that is of consequence to the determination of the action moreprobable or less probable than it would be without the evidence.”

All relevant evidence is admissible, except when prohibited by the Constitution, bystatute, the rules of evidence, or by other statutory rules. {Tex. R. Evid. 402}.

The following sections discuss several types of evidence and when they may or may notbe admissible based on grounds of relevancy.

B. Character Evidence

The rules of evidence limit when a party may introduce character evidence. {Tex. R. Evid.404}

1. Admissibility

a. Generally Inadmissible

As a general rule, evidence of a person’s character or a trait of his or hercharacter is not admissible to prove that he or she acted in conformity withthat character on a particular occasion, unless otherwise provided by the rules.{Tex. R. Evid. 404(a)}

b. Essential Element Exception

{Tex. R. Evid. 405(b)} provides an exception to the general rule of Rule404(a) in cases in which a person’s character or character trait is an essentialelement of a charge, claim or defense. In that situation, proof may be made ofspecific instances of that person’s conduct.

c. Moral Conduct Exception

In a criminal case, the defendant sometimes will present evidence of apertinent character trait. Once the defendant presents evidence of moralcharacter, the prosecution may then present character evidence to rebut the


V. RELEVANCY B. Requirements for Presumptions under Texas Penal Code Sec. 2.05

defendant’s assertions. A defendant may present evidence of good moralcharacter only if the evidence is relevant to an issue in the case. {Tex. R. Evid404(a)(2)(A),(B)}

In a civil case, the defendant may present evidence about character if thedefendant is accused of conduct involving moral turpitude. Once thedefendant presents evidence of moral character, the opposing party may thenpresent character evidence to rebut the defendant’s assertions. A defendantmay present evidence of good moral character only if the evidence is relevantto an issue in a case.

Example: A defendant accused of perjury may present evidence of honesty.The opposing party may then present character evidence - that the defendantis generally dishonest - to rebut the defendant’s claims of honesty.

d. Self-Defense Exception

When a defendant accused of assault claims self-defense, the defendant maypresent evidence of the victim’s violent character. The victim, however, mayrebut that evidence. {Tex. R. Evid. 404(a)(3)}

e. Impeachment of a Witness Exception

Character evidence may be used to impeach a witness. {Tex. R. Evid.404(a)(4)}, {Tex. R. Evid. 607}, {Tex. R. Evid. 608}, {Tex. R. Evid. 609} Seethe section “Impeachment of Witnesses” on pg. 42.

f. Other Admissible Purposes

Character evidence is admissible to prove motive, opportunity, intent,preparation, planning, knowledge, identity, or absence of mistake or accident.{Tex. R. Evid. 404(b)} In a criminal case, the State must, upon request by theaccused, give reasonable notice before trial of its intent to introduce characterevidence for one of these admissible purposes.

Example: Evidence of a defendant’s extramarital affair falls within the scope of “character evidence” and would usually be inadmissible to prove the guilt ofthe defendant in his trial for the attempted murder of his wife. However, theevidence may also show motive and therefore has an independent ground forbeing admissible. In this situation, the defendant is charged with a crime, andthe prosecution would be required to give the defense notice of its intent tointroduce the evidence at trial for the purpose of proving motive.


V. RELEVANCY B. Character Evidence

g. Punishment Phase -

In a criminal case, character evidence, including evidence of the accused’scriminal record, may be offered in the punishment phase. {Tex. Code Crim.Proc. art. 37.07 sec. 3(a)(1)}

2. Methods for Proving Character

When character evidence is admissible, the character of a party may be proven in twoways:

a. by opinion testimony, or

b. by testimony about the reputation of the party. {Tex. R. Evid. 405}

Before a witness is allowed to testify to a party’s character, the witness must first bequalified to testify to this effect. Qualifying a witness is done by showing that thewitness either has sufficient knowledge of the party to form an opinion about theparty’s character or sufficient knowledge of the party’s reputation in the community.

Unless a party’s character is an essential element of a claim or defense, a witness maynot testify about specific instances of conduct on direct examination. However, oncross examination, the witness who testifies as to the opinion or reputation of theparty’s character may be asked about specific instances of the conduct.

C. Evidence of Routine Practice and Habit

Although evidence of a person’s character is not generally admissible to show that theperson acted in conformity with that character, evidence of a person’s routine practice orhabit is admissible to show action in conformity with that habit. {Tex. R. Evid. 406} Rule406 provides that evidence of the habit of a person or the routine practice of anorganization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of that person or organization was in conformitywith the habit or routine practice.

To qualify as a habit for the purposes of this rule, the party claiming habit must do theparticular act as a matter of course. It is not enough to show that the party acts in such away most of the time.

D. Subsequent Remedial Measures

When measures are taken after injuries or harm allegedly caused by an event, which, iftaken previously would have made the injury or harm less likely to occur, evidence ofthose measures is not admissible to prove negligence, culpable conduct, a defect in a


V. RELEVANCY B. Character Evidence

product or its design, or a need for a warning or instruction. {Tex. R. Evid. 407}However, subsequent remedial measures need not be excluded when they are offered forother purposes, such as to prove ownership, control, feasibility of precautionary measures (if that fact is in dispute), or for impeachment.

Example: If, after a consumer sues an automobile manufacturer claiming injuriesfollowing an accident due to negligent manufacture of the car’s brakes, the manufacturerchanges the brakes on similar makes and models, this fact cannot be used to prove thatthe manufacturer was negligent, though it may be admissible to show that precautionarymeasures such as safer brakes were in fact feasible.

E. Compromise and Offers to Compromise

A compromise or an offer to compromise is not admissible to prove liability for a claim,invalidity of a claim, or the amount of a claim. {Tex. R. Evid. 408} Therefore, parties maynot introduce statements made during settlement negotiations. Compromise agreementsmay be used, however, to show bias of a witness. For example, if a witness agreed totestify in exchange for a reduced charge, that fact may be admissible for purposes ofimpeachment or to show that the witness is biased. See section on “Impeachment ofWitnesses” on pg. 42.

F. Payment of Medical and Similar Expenses

Evidence of furnishing, offering or promising to pay medical, hospital or similar expensescaused by an injury is not admissible to prove liability for the injury. {Tex. R. Evid. 409}

G. Pleas

Under {Tex. R. Evid. 410}, defendants making pleas or taking part in plea discussions ornegotiations may not have those statements or certain pleas admitted against them in thefollowing circumstances:

1. a plea of guilty that was later withdrawn;

2. in civil cases, a plea of nolo contendere (no contest), or in criminal cases, a plea ofnolo contendere that was later withdrawn;

3. any statement made in the course of Rule 11 of the Federal Rules of Civil Procedureor comparable state proceeding, including certain pleas;

4. certain statements made during plea negotiations (see {Tex. R. Evid. 410(a)(4) and(b)(4)} for specific limitations).


V. RELEVANCY D. Subsequent Remedial Measures

H. Prejudice

One of the most important considerations when determining whether relevant evidenceshould be excluded is found in Rule 403. That rule allows the judge to exclude otherwiseadmissible evidence if “its probative value is substantially outweighed by the danger ofunfair prejudice, confusion of the issues or misleading the jury, or by considerations ofundue delay, or needless presentations of cumulative evidence.” {Tex. R. Evid. 403}

This rule gives the trial court a great deal of discretion and requires a balancing of thevalue of evidence in terms of helping the jury to assess whether the parties have proventheir cases and any reason enumerated in the rule for excluding the evidence. A partyusually will not make a Rule 403 objection unless all other objections have failed.

Example: Photographs of a murder victim may be admissible if properly authenticated.However, if the photos are particularly gruesome or have been enlarged, the court mayexclude them because of the danger of unfair prejudice. Similarly, although the courtmight admit some photographs of a murder victim, the court may rule that allowing theadmission of twenty photographs is prohibited by {Tex. R. Evid. 403} because theadditional photographs would be needlessly cumulative. See Reese v. State, 33 S.W.3d 238(Tex. Crim. App. 2000).

VI. PRIVILEGES

A. Generally

One category of relevant evidence that is not admissible is evidence protected by aprivilege. See {Tex. R. Evid. 501} The source of a particular privilege may be a rule ofevidence, a statute, or case law. Types of privileges commonly found in Texas law begin in section B, below.

Under {Tex. R. Evid. 501}, no one may refuse to be a witness, refuse to disclose anymatter or produce any object or prevent another from being a witness unless a privilegeapplies.

Waiver of a privilege must be in writing and signed by the party who has the right to theprivilege.

Whether a privilege exists is for the court, not the witness, to decide. The burden ofestablishing that a privilege exists is upon the person asserting the privilege.

The standard of review on appeal regarding an issue of privilege is whether the trial courtabused its discretion.


VI. PRIVILEGES H. Prejudice

B. Attorney / Client Privilege

1. Generally

The attorney-client privilege makes inadmissible evidence of any communicationsbetween an attorney and client that were intended to be confidential and that weremade for the purpose of obtaining or providing professional legal services. {Tex. R.Evid. 503}

The scope of the privilege includes communications made to a lawyer when the clientis considering hiring the lawyer, even if the client ultimately does not hire the lawyer.See Mixon v. State, 224 S.W.3d 206 (Tex. Crim. App. 2007).

In criminal cases, a client has a privilege to prevent the lawyer or lawyer’srepresentative from disclosing any other fact that came to the knowledge of the lawyeror lawyer’s representative by reason of the attorney-client relationship.

The privilege also includes communications between the following:

a. the client’s representative and the attorney or the attorney’s representative;

b. the attorney and the attorney’s representative;

c. the client, his or her representative, his or her attorney and an attorneyrepresenting another party in the pending action and concerning a matter ofcommon interest;

d. representatives of the client, the client and his or her representatives; and

e. attorneys and their representatives representing the same client.

2. Communications with Third Parties

The attorney-client privilege does not protect communications that the client or lawfirm had with third parties, unless the communication falls within one of the fivecategories above or another rule of evidence.

3. Who May Claim the Privilege

The privilege may be claimed by the client, persons authorized to act on behalf of theclient, or successors in interest to the client. The lawyer at the time of the relevantcommunication is presumed to have authority to claim the privilege on behalf of theclient. {Tex. R. Evid. 503(c)}


VI. PRIVILEGES B. Attorney / Client Privilege

4. Exceptions

Exceptions to the attorney-client privilege include the following:

a. Fraud

There is no privilege if the communication concerns attempted fraud by theclient. {Tex. R. Evid. 503(d)(1)} This does not mean that the privilege is lostif the party’s cause of action concerns fraud or if the defendant is charged with fraud; the communication itself must have been part of a plan to commit fraud in order for the privilege to be destroyed.

b. Claimants through Same Deceased Client

There is no privilege if the communication concerns an issue between partieswho claim through the same deceased client, regardless of whether the claimsare by testate (i.e., a will) or intestate (i.e., no will) succession, or by intervivos (i.e., during the client’s lifetime) transactions. {Tex. R. Evid. 503(d)(2)}

c. Breach of Duty by Lawyer or Client

If there is a suit for breach of duty by a lawyer or a client, the privilege may bedisregarded if necessary to prove or refute the plaintiff’s claim. {Tex. R. Evid.503(d)(3)}

d. Documents Attested to by a Lawyer

If a lawyer is an attesting witness to a document, there is no privilege as to that document. {Tex. R. Evid. 503(d)(4)}

e. Joint Clients

If an attorney is representing two clients on a related matter, the privilege does not exist between the joint clients. {Tex. R. Evid. 503(d)(5)}

C. Husband / Wife Communication

1. Confidential Communications

There are two separate and distinct privileges associated with marriage. The firstprivilege, the confidential communication privilege, protects any communication madebetween a husband and wife that they did not intend to disclose to other persons. Thisprivilege exists even after divorce. It may be claimed by either the husband or the wifeor a representative of either the husband or the wife. {Tex. R. Evid. 504(a)}


VI. PRIVILEGES B. Attorney / Client Privilege

The husband / wife privilege does not apply if:

a. The communication was made in furtherance of a crime or fraud;

b. The evidence is sought to be admitted in proceedings between spouses incivil cases;

c. The communication is going to be introduced into evidence in a proceedingin which the party is accused of a crime against the spouse, minor child, or any member of the household of either spouse; or

d. The evidence is sought to be admitted in commitment or competencyproceedings.

2. Testimonial Privilege in Criminal Cases

The second privilege, found in Rule 504(b), provides that a spouse may not becompelled to testify against his or her spouse in a criminal trial. Therefore, the spouseof the accused has an absolute right not to be called as a witness by the state. Becausethe privilege belongs to the spouse rather than the accused, the spouse may waive theprivilege and may voluntarily testify. For this privilege to apply, a valid marriage mustexist at the time of trial. {Tex. R. Evid. 504(b)}

The testimonial privilege does not apply if:

a. the proceeding involves a crime against a minor child or a member of thehousehold of either spouse;

b. the events the spouse is to testify to occurred before the marriage; or

c. the defendant is charged with bigamy under {Tex. Penal Code Sec. 25.01}.See {Tex. Code Crim. Proc. art. 38.10(2)}.

The rule previously included a spousal testimonial privilege for prosecutions in whichthe testifying spouse was the alleged victim of a crime committed by the accused, butthis provision was eliminated in 1998 to be consistent with a 1995 amendment to {Tex. Code Crim. Proc. art. 38.10}.

D. Political Vote

A person may refuse to disclose how he or she voted in any secret ballot election,provided the vote was cast legally. {Tex. R. Evid. 506}


VI. PRIVILEGES C. Husband / Wife Communication

E. Trade Secrets

Except in cases of fraud or when justice otherwise requires disclosure, trade secrets areprivileged. {Tex. R. Evid. 507} The privilege extends to employees and agents of theprotected party. If the secret must be admitted, the judge should attempt to protect theholder of the trade secret from further disclosure, for example, by sealing that portion ofthe record.

F. Identity of Informer

A public entity may refuse to disclose the identity of persons giving information thatassisted in an investigation. {Tex. R. Evid. 508} The privilege does not exist if the identity of the informer has been disclosed to “those who could have cause to resent thecommunication” or if the informer appears as a witness for the public entity. The judgehas discretion to order that the identity of the informer be made known if:

1. necessary to a fair determination of a material issue on the merits in a civil case towhich the public entity is a party or on guilt or innocence in a criminal case; or

2. information from an informer is relied upon to establish the legality of the means by which evidence was obtained, and the judge is not satisfied that the information wasreceived from an informer reasonably required to be reliable or credible.

G. Physician / Patient

Confidential communications between a patient and a physician and records of theidentity, diagnosis, evaluation, or treatment of a patient by a physician that are created bythe physician are confidential. {Tex. R. Evid. 509}

Under Rule 509, a physician is anyone licensed to practice medicine or reasonablybelieved by the patient to be licensed. The privilege may be claimed by the patient, by arepresentative of the patient, or by the physician on the patient’s behalf.

The physician/patient privilege does not exist in the following cases:

1. when the physician needs to disclose information to defend against any malpracticeor disciplinary claims by the patient;

2. when the patient validly consents in writing to the disclosure;

3. when the disclosure is relevant in any suit affecting the parent-child relationship;

4. in an involuntary civil commitment hearing;


VI. PRIVILEGES E. Trade Secrets

5. when the communication or record is relevant to some issue of the physical, mental,or emotional condition of a patient and the proceeding involves that condition as a part of the party’s claim or defense; and

6. in a proceedings involving the abuse or neglect of a resident of certain institutions,as defined in {Tex. Health & Safety Code Sec. 242.002}.

H. Clergy

A person may refuse to disclose or prevent others from disclosing confidentialinformation disclosed to a member of the clergy acting in the capacity of spiritual advisor. {Tex. R. Evid. 505} The communication must have been intended to be confidential atthe time it was made. Additionally, the communication must have been made to theclergyperson while he or she was acting as spiritual advisor. For example, letters urging apastor to provide an alibi for a defendant are not privileged communications. Theprivilege may be asserted by the person who made the communication, by his or herguardian or conservator, or by the member of the clergy acting on behalf of the personwho made the statement.

VII. HEARSAY

A. Defining Hearsay

1. Definition

The evidence rules provide that hearsay evidence is not admissible. {Tex. R. Evid. 801}Hearsay is defined as “a statement, other than one made by the declarant whiletestifying at the trial or hearing, offered in evidence to prove the truth of the matterasserted.” Under {Tex. R. Evid. 801}, there are two essential requirements for evidence to be inadmissible hearsay:

a. There must have been a statement by someone made at some time otherthan in the courtroom. That statement not only includes verbal conduct, butmay include such nonverbal conduct as pointing or running, etc. As long asthe conduct was intended to assert something, that out-of-court conductqualifies as a statement and may not be admitted because it is hearsay.

b. The out-of-court statement must be offered to prove the truth of thematter asserted in that statement. If it is offered for some other purpose, it isnot hearsay. Hearsay evidence may be oral testimony or may be contained in a document.


VII. HEARSAY G. Physician / Patient

2. Purpose

Although the hearsay rules are complicated, they are more easily understood if oneconsiders the purpose of the rules. The hearsay rules are based on a policy that afact-finder at trial should hear only the most reliable evidence available. If a partyattempts to prove a fact by repeating what someone else said outside of court aboutthat fact, that proof is not considered reliable.

3. Hearsay Example

If, for example, the state wished to prove the identity of a criminal defendant throughan eyewitness identification, calling the eyewitness to the stand to testify about whatthat eyewitness perceived about the person who committed the crime is consideredreliable.

Reliability is assured by two factors:

a. the jury can watch the witness testify and therefore assess the demeanor ofthe witness to determine if the witness is telling the truth; and

b. the witness is subject to cross-examination about the identification.

If, however, instead of presenting the eyewitness, the state presented to the jury thedeclarant’s (the eyewitness’) brother, who testified that the defendant had committedthe crime because the eyewitness had told the brother over dinner one night what hehad observed, the brother’s testimony would be inadmissible as hearsay. The brother is repeating an assertion made by someone out of court (the physical characteristics ofthe person who committed the crime) and that assertion is being offered to prove thetruth of the matter asserted - that someone with those physical characteristics (thedefendant) actually committed the crime. That evidence is not considered reliablebecause the eyewitness is not making the assertion in court, where the fact finder canassess his demeanor, and the eyewitness is not subject to cross-examination about theidentification.

4. Truth of the Matter Asserted

A common response to a hearsay objection is that the out-of-court statement is notbeing offered to prove the truth of the matter asserted. When the evidence is offeredfor some other purpose, then that response is a valid one, and the evidence should notbe excluded as hearsay.

Example: In an auto collision case, if the plaintiff is trying to prove that the defendantwas negligent because the defendant’s car had defective tires and the defendant knew


VII. HEARSAY A. Defining Hearsay

they were defective, the plaintiff might put a witness on the stand who testifies that she overheard a mechanic tell the defendant, “Your tires are defective.”

That statement is inadmissible as hearsay if offered to prove that the tires weredefective, since that is what is asserted in the out-of-court statement made by themechanic. But, the evidence may be offered to prove that the defendant had been puton notice that there was a problem with her tires. The evidence is not offered to provethe truth of the matter asserted (that the tires were indeed defective) and is, therefore,admissible. If this evidence were then admitted for that limited purpose, a limitinginstruction to the jury would be appropriate. See the section “Judge’s Response toObjections”on pg. 5.

B. Non-Hearsay and Hearsay Exceptions

The Texas Rules of Evidence list a number of types of evidence that seem to fit thedefinition of hearsay, but that are not inadmissible under the hearsay rules. {Tex. R. Evid.803} and {Tex. R. Evid. 804} The easiest way to approach this long list of exceptions is to keep in mind the purpose behind the hearsay rules - to exclude unreliable evidence. Thefollowing exceptions to the hearsay rule further that policy: These categories of evidenceare admissible either because they are considered inherently reliable or because theiradmission advances some policy considered even more important than the policy ofexcluding unreliable evidence.

The exceptions are separated into items of testimony that are excluded from thedefinition of hearsay and items of testimony that are hearsay, but are excepted from theusual rule of inadmissibility.

1. Statements That Are Not Hearsay

a. Prior Statements

Prior statements of a witness are admissible if the witness testifies at trial andis subject to cross-examination. {Tex. R. Evid. 801(e)(1)} Only four types ofprior statements are allowed:

(1) A prior statement of a witness that is inconsistent with a statement thewitness makes at trial is admissible if the prior statement was given underoath. However, in a criminal case, an inconsistent statement from a grandjury proceeding cannot be used against the witness.

(2) A statement by a witness that is consistent with a statement the witness makes at trial is admissible, but only to counter an allegation that thewitness lied or was improperly influenced. In other words, a witness’scredibility can be bolstered by a prior consistent statement only when the


VII. HEARSAY A. Defining Hearsay

witness’s credibility has been attacked. Only those consistent statementsmade before the alleged fabrication or improper motive occurred areadmissible under this exception.

(3) A witness can identify another person whom the witness has a reason to recognize. This exception is generally used to admit pre-trial lineupidentifications.

(4) In a criminal trial only, a prior statement of a witness can be admitted ifthe statement is in a videotaped or filmed segment of a child victim,according to {Tex. Code Crim. Proc. art. 38.071}. Note, however, that theCourt of Criminal Appeals has ruled that written interrogatories in lieu oflive cross-examination may violate the Confrontation Clause. Coronado v.State, 351 S.W.3d 315 (Tex. Crim. App. 2011) (art. 38.071, sec. 2procedures do not satisfy Crawford).

Hearsay statements are also admissible in criminal trials through an outcrywitness for a child younger than 14 or with a disability who has been thevictim of a sexual crime. {Tex. Code Crim. Proc. art. 38.072}. Note,however, that because an art. 38.072 hearing does not give a defendantadequate opportunity to cross-examine an outcry witness’s credibility,admitting testimony from an art. 38.072 hearing at trial when the witness isunavailable violates the Sixth Amendment. Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011).

b. Admissions by a Party Opponent

(1) Generally

Regardless of its hearsay quality, an admission made by a party may beadmitted against that party if it was the party’s own statement in either anindividual or representative capacity. {Tex. R. Evid. 801(e)(2)} Forexample, Bob is on trial for robbing a convenience store. Bob told Sue thathe robbed a convenience store. Sue’s testimony can be offered by theprosecution as an admission against a party opponent.

Note that in criminal trials, Texas appeals courts have held that “thedefendant and the State, not the complaining witness or witnesses, are party opponents. A statement by a victim or complainant in a criminal case is notadmissible under Rule 801(e)(2) as an admission by a party opponent.”Logan v. State, 71 S.W.3d 865, 869 (Tex. App. - Fort Worth 2002, pet.ref’d), Davis v. State, 177 S.W.3d 355 (Tex. App. - Houston [1st Dist.]2005, no pet.) (overruling Willover v. State).


VII. HEARSAY B. Non-Hearsay and Hearsay Exceptions

(2) Adoptive Admissions

A party can also be deemed to have adopted a statement made by someoneelse. This adoptive admission is admissible against the party as it is anexception to hearsay.

A frequent situation in which conduct is an admission occurs when guilt isinferred from the fact of a person’s flight.

In some instances, a person’s silence may be an adoptive admission. If aperson is accused of something and does not respond when a reasonableperson would be expected to refute the accusation if it were false, theperson’s conduct may be an adoptive admission. However, the silence of aperson after he or she has been arrested will not be admissible against thatperson because of constitutional considerations.

(3) Authorized Statement by Agent

A statement that was made by an agent authorized to speak on theprincipal’s behalf may be admitted against the principal who is a party to alawsuit. For example, John tells Carl to make an offer to Patty to buy hercar. In a later action by Patty against John for breach of contract, Carl’sstatement is admissible against John because John authorized Carl to makethe offer.

(4) Unauthorized Statement by Employee

An unauthorized statement by an employee or agent is admissible againstan employer or principal if two conditions are met:

First, the statement must concern a matter within the scope of theemployment or agency; and

Second, the statement must be made while the person is actually anemployee or agent. Statements made after the relationship hasterminated do not satisfy the rule.

Example: An employee’s statement that the shelves in a store were notsecurely fastened to the wall would be admissible against the store owner in a suit involving a customer injured by a falling shelf in the store.

(5) Statements by Co-Conspirators

The rules allow statements by co-conspirators to be admitted if threerequirements are met:

First, the offering party must show that a conspiracy existed by evidence other than the statements sought to be admitted;



Second, the statement must be made by a co-conspirator; and

Third, the statement must have been made during the course of theconspiracy and for the purpose of furthering the conspiracy.

NOTE: Statements made after the conspiracy has concluded are notadmissible under this rule.

(6) Judicial Admissions

A statement made by a party during a judicial proceeding may be admissible against the party as an admission. In order to be admissible, the statementmust be deliberate, clear, and unequivocal. The admission may occur during testimony, in a pleading, in a stipulation, or in a writing introduced intoevidence.

c. Depositions

In civil cases only, depositions taken in the case are not hearsay. {Tex. R. Evid. 801(e)(3)} See {Tex. Code Crim. Proc. art. 39.10} allowing depositions incriminal cases in limited circumstances and {Tex. Code Crim. Proc. art.39.025}, allowing depositions of elderly or disabled individuals in criminalcases. (See VIII.D. “Production of Statements of Witnesses” for moreinformation on depositions of elderly or disabled witnesses.)

2. Hearsay Exceptions

The exceptions to the general hearsay rule are separated into two separate categories,depending on when the declarant (the person making the statement) is unavailable, orwhen unavailability is immaterial. The definition of unavailability is found in thesecond of the following sections (“Declarant Unavailability Material”), because for thefirst section, whether the declarant is unavailable does not matter.

a. Declarant Unavailability Is Immaterial

(1) Present Sense Impression

A statement that describes or explains an event or condition and is made atthe time or immediately after the declarant perceives the event is admissible as a hearsay exception. {Tex. R. Evid. 803(1)} This timing of the statementis crucial. The statement must be made during an event or at a close enough time after the event that the statement would be trustworthy. Thestatement must be based on personal first-hand knowledge of the declarant. The event may be perceived through any of the senses. Further, thestatement must describe or explain the event or condition.



Example: A witness to a chemical plant explosion makes the statement,“Look at all the smoke and fire at the chemical plant.” Because thisstatement was made while the witness perceived the explosion, it would beadmissible as a present sense impression.

(2) Excited Utterance

Under {Tex. R. Evid. 803(2)}, a statement made about a startling eventwhile the declarant was still under the excitement of the event is admissibleif three conditions are met:

1. The person offering the evidence must show that the event orcondition was a startling one. Typically accidents and criminal acts willbe startling events. The question should be whether the declarant wouldreasonably view the event as startling in light of the circumstances. What may be startling to one declarant may not be startling to another.

2. The statement must relate to the event.

3. The statement must be made before the excitement caused by theevent or condition has worn off. Spontaneity of the statement is anindicator of its trustworthiness. As a result, utterances in response toquestions sometimes will not be considered excited utterances.

Example: John witnesses a shooting in an apartment. He rushes out of theapartment and moments later encounters someone on the street, yelling atthem, “Burt just shot Natalie!” This would be an excited utterance.

Note that in 2004, the U.S. Supreme Court held in the landmark case ofCrawford v. Washington, 541 U.S. 36, that if a statement is testimonial, it isinadmissible unless the declarant is unavailable and the defendant has had aprior opportunity for cross-examination. Statements made in an emergency situation (for instance, to a 911 operator or the first police officer on thescene of a domestic violence dispute) are not considered testimonial andmay be admitted without violating the Confrontation Clause. A victim’sstatements about a past crime to a police officer, however, cannot beadmitted without giving the defendant the chance to cross-examine thevictim. Davis v. Washington, 547 U.S. 813 (2006). The rule in Crawfordextends to situations outside the family violence realm, and the U.S.Supreme Court and state courts are still clarifying the reach of the rule.(See further discussion below under VII.B.2.a.(6) “Records of RegularlyConducted Activity.”)

(3) Existing Mental, Emotional or Physical Condition

Statements by a declarant about his or her mental, emotional, or physicalcondition are admissible as an exception to the hearsay rule. {Tex. R. Evid.803(3)} A statement concerning the intent to do something in the future isadmissible because it concerns a current state of mind. Statements by the



declarant relating to his or her mental, emotional, or physical conditionoccurring in the past (i.e., a memory) are not admissible, except as theyrelate to the declarant’s last will and testament.

For instance, John says, “I wish I were dead.” In a later suit to determinewhether a shooting incident in which John was killed was an accident orsuicide, this statement would be admissible to show John’s state of mind atthe time he made the statement.

(4) Statements Made for Purposes of Medical Treatment

This exception allows the admission of statements made to medicalpersonnel if they were made for the purpose of making a medical diagnosisor treatment. {Tex. R. Evid. 803(4)} This includes statements of a person’spast medical history.

(5) Recorded Recollection

Under this exception, certain documentation of an event or condition maybe admitted when the declarant cannot remember enough about the eventor condition to testify. {Tex. R. Evid. 803(5)} There are severalrequirements that must be met before a statement can be admitted underthe recorded recollection exception to the hearsay rule:

(a) there must be a memorandum or record of the matter;

(b) the witness must have had personal knowledge of the mattercontained in the memorandum or record;

(c) the witness must have made or adopted the memorandum or record;

(d) the memorandum or record must have been made while the eventswere still fresh in the witness’s mind; and

(e) the witness must not be able to remember enough about the matterto testify accurately without the memorandum or record.

A court may exclude this evidence if it finds that the circumstancessurrounding preparation of the memorandum or record make the evidenceuntrustworthy. This type of evidence may only be read into the record andmay not be admitted as an exhibit unless it is offered by an adverse party.

(6) Records of Regularly Conducted Activity

This is the exception generally referred to as the business recordsexception. {Tex. R. Evid. 803(6)} The concept of what is a record is broad,and any type of business record will be admissible. A “business” is definedas “any and every kind of organized activity whether conducted for profitor not.” Police records, including laboratory reports, have normally been



treated as business records. See also {Tex. Code Crim. Proc. art. 38.41}(Certificate of Analysis) and {Tex. Code Crim. Proc. art. 38.42} (Chain ofCustody Affidavit). The U.S. Supreme Court has held that laboratoryreports are subject to the rule in Crawford (see discussion of Crawfordabove under VII.B.2.a.(2) “Excited Utterance”), and therefore, failing toallow the defendant the chance to cross-examine the chemist who preparedthe report (or another chemist who was significantly involved in theprocess) may violate his confrontation clause rights. Melendez-Diaz v.Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S.Ct.2705 (2011). The Supreme Court ruled, however, that states may adoptnotice-and-demand statutes, specifically citing {Tex. Code Crim. Proc. art. 38.41} to deal with the non-testifying chemist issue. The defendant alwayshas the burden of raising his Confrontation Clause objection;notice-and-demand statutes simply govern the time within which he mustdo so. States are free to adopt procedural rules governing objections, theMelendez-Diaz court held.

To be admissible under Rule 803(6), the party offering the record mustprove:

(a) that the evidence is a record;

(b) that the record was made with knowledge of the matter contained inthe record and that the person was under a business duty to report theinformation (the record can be made either by the person withknowledge, or another person can make the record based upon thepersonal knowledge of another);

(c) that the record was made at or near the time of the event;

(d) that the record was made in the course of the business;

(e) that it was the regular practice of the business to keep the records;and

(f) that the motivation for making the record was for a business purpose.

This exception also allows a court to exclude the record if it does notappear to be trustworthy.

Example: A balance sheet of a corporation prepared by one of itsaccountants will probably be admissible as a business record. First, it is arecord. Second, the accountant would have personal knowledge of thecorporation’s finances and it would be part of the accountant’s job toreport the information. Finally, the balance sheet was made during thecourse of the corporation’s business and the corporation regularly keepssuch records.

In Texas, there are two ways to prove the business records exception:



1. a records custodian or another witness who has knowledge of thekeeping of those records can testify as to the above elements; and

2. the exception may be proven by an affidavit that complies with {Tex.R. Evid. 902(10)}.

(7) Absence of Entry in Business Records

This exception allows a party to use the fact that a record cannot be foundto show that a matter did not occur or exist. In order for such an omissionto be admissible, the party offering the evidence must show that this typeof record is one that would normally be kept in the course of a regularlyconducted business activity. {Tex. R. Evid. 803(7)} The judge may refuseto admit the evidence due to lack of trustworthiness.

(8) Public Records and Reports

In civil cases, the exception in {Tex. R. Evid. 803(8)} allows theadmissibility of three types of records:

1. official records of the activities of a public office;

2. matters observed and reported pursuant to an official duty to observeand report such matters; and

3. factual findings and results of official investigations.

In criminal cases, matters observed by police officers and law enforcementpersonnel are excluded from the exception and are therefore inadmissibleunder this exception, although they may be admissible on other grounds,such as under Rule 803(6). Factual findings of official investigations areadmissible only against the prosecution, and the judge has discretion toexclude those records if they do not appear to be trustworthy.

(9) Records of Vital Statistics

Records of vital statistics that are reported to a public official pursuant tolegal requirements are admissible under this hearsay exception. {Tex. R.Evid. 803(9)} Such records concern births, fetal deaths, deaths, andmarriages.

(10) Absence of Public Record or Entry

This exception is similar to the exception for absences of entry in a business record. {Tex. R. Evid. 803(10)} The type of record that is missing mustqualify as a public record under the evidence rules. The person offering the evidence must show proof that a diligent search was made for the record.This may be proven by testimony or by a certification made according to



{Tex. R. Evid. 902}. The absence of such a record may be used to show that an event or matter never occurred or existed.

(11) Records of Religious Organizations

Records of births, marriages, death, legitimacy, ancestry, etc., may beadmissible under this exception if they are part of a regularly kept record of a religious organization. {Tex. R. Evid. 803(11)}

(12) Marriage, Baptismal, and Similar Certificates

Marriage, baptismal, and similar certificates are admissible under thehearsay exceptions. {Tex. R. Evid. 803(12)} The certificate must have beenmade by a clergyperson, public official, or other person authorized toperform the act, and the certificate must have been made at the time of theevent or within a reasonable amount of time thereafter.

(13) Family Records

This exception allows statements concerning personal or family historycontained in records such as Bibles, genealogies, charts, engravings, orinscriptions. {Tex. R. Evid. 803(13)}

(14) Records of Documents Affecting an Interest in Property

Records of documents affecting an interest in property are admissible toprove the content of the original document. {Tex. R. Evid. 803(14)} Theserecords must be in a public office and must have been made according to astatute authorizing such records.

(15) Statements in Documents Affecting an Interest in Property

This exception applies to statements in documents purporting to establishor affect an interest in property. {Tex. R. Evid. 803(15)} The statementcontained in the document must be relevant to the purpose of thedocument. This exception applies regardless of whether the document hasbeen recorded. However, if further dealings with the property areinconsistent with the statement, then the statement is not admissible.

(16) Statements in Ancient Documents

Documents that are twenty years old or older are admissible as long as they are authenticated. {Tex. R. Evid. 803(16)}

(17) Market Reports and Commercial Publications

This exception allows market quotations, tabulations, lists, directories, orother published compilations to be admitted if generally used and relied



upon by the public or by persons in particular occupations. {Tex. R. Evid.803(17)}

(18) Learned Treatises

Statements from learned treatises may be admitted in connection with thetestimony of an expert witness. {Tex. R. Evid. 803(18)} Learned treatisesinclude published books, journals, and pamphlets. An expert witness mustestablish that the treatise is a reliable authority, or a judge may take judicialnotice that it is reliable. Statements from these treatises may be read intoevidence but may not be admitted as exhibits.

(19) Reputation Concerning Personal or Family History

This exception allows evidence about personal or family history to beadmissible. {Tex. R. Evid. 803(19)} Statements about a person’s reputationamong his or her family (those related by blood, adoption, or marriage),among his or her associates, or in the community, concerning his or herbirth, adoption, marriage, divorce, death, legitimacy, relationship by blood,ancestry, or other similar fact of his or her personal or family history arepermitted.

(20) Reputation Concerning Boundaries or General History

Reputation in a community concerning boundaries of or customs affectinglands in the community as well as reputation concerning general history inthe community or state is admissible. {Tex. R. Evid. 803(20)} However,the reputation must have arisen before the controversy that is the basis forthe lawsuit in which the evidence is sought to be admitted.

(21) Reputation as to Character

A person’s reputation as to character among his or her associates or in thecommunity is an exception to the hearsay rule. {Tex. R. Evid. 803(21)}However, reputation evidence may be subject to limitations or guidelinesfound in {Tex. R. Evid. 404} (conduct of a person), 405 (methods forproving character), and 608 (character for truth-impeachment). See thesection entitled “Character Evidence” on pg. 15.

(22) Judgment of Previous Conviction

Under {Tex. R. Evid. 803(22)}, evidence of a previous conviction may beused to prove the existence of the essential facts sustaining the judgment.In civil cases, only judgments of convictions of felonies are admissible. Incriminal cases, a judgment of conviction entered after a trial, after a plea ofnolo contendere, or after a guilty plea may be used. In criminal cases,convictions for criminal offenses are admissible. If a case is on appeal, theconviction is generally inadmissible in either a civil or criminal case.



Example: Bill is convicted of arson. In a later suit to collect on a fireinsurance policy, the judgment of conviction will be admissible to showthat the fire was not an accident.

(23) Judgment as to Personal, Family, or General History or Boundaries

This exception allows judgments on personal, family, or general history orboundaries to be used to prove facts essential to such judgments. {Tex. R.Evid. 803(23)} The exception is limited by the requirement that the factssought to be proven must be provable by reputation evidence.

(24) Statements against Interest

Under {Tex. R. Evid. 803(24)}, certain statements made by a person thatare against his or her interests may be admissible. Such statements are onesthat:

(a) are contrary to the declarant’s monetary or property interests;

(b) tend to subject the declarant to civil or criminal liability;

(c) render a claim by the declarant against another invalid; or

(d) make the declarant the object of hatred, ridicule, or disgrace.

These statements must be so against the declarant’s interests that he or shewould not have made the statement unless he or she believed it to be true.

In a criminal case only, a statement that would tend to subject the declarant to criminal liability must be corroborated. This exception applies tostatements by non-parties. When such a statement is made by a party, itcomes within the admissions exception.

b. Declarant Unavailability Is Material

{Tex. R. Evid. 804} allows some types of hearsay to be admitted if thedeclarant of the statement is unavailable to testify at trial, and the rule definesthose situation in which a declarant is considered unavailable.

(1) Unavailability Required

The exceptions in this rule apply only if a declarant is unavailable. Adeclarant is unavailable in the following instances:

(a) The court exempts the declarant on grounds of privilege;

(b) The declarant persistently refuses to testify although the court hasordered him or her to;



(c) The declarant testifies to a lack of memory on the subject matter ofthe statement;

(d) The declarant cannot attend the hearing because of death or thenexisting physical or mental illness or infirmity; or

(e) The declarant is absent and the party offering the evidence has beenunable to procure the declarant’s testimony or attendance by process orother reasonable means.

NOTE: If the party offering the statement has caused the declarant to beunavailable for the purpose of preventing the declarant from attending ortestifying, then the declarant will not be considered unavailable. Under thedoctrine of forfeiture by wrongdoing, a defendant’s misconduct will causehim to lose his right to complain about admission of his hearsaystatements. Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006)(doctrine of forfeiture by wrongdoing may apply even when the act withwhich the defendant is charged is the same one by which he allegedlyrendered witness unavailable)and {Tex. Code Crim. Proc. art. 38.49}.

In general, the party offering the evidence should use all reasonable meanseither to depose to declarant or to procure the declarant’s attendance. If the offering party does not use due diligence, then this exception may notapply.

(2) The Exceptions

(a) Former Testimony

Testimony from a hearing, either in the same proceeding or in a different one, may be offered against a party. {Tex. R. Evid. 804(b)(1)} Also,deposition testimony taken in the same or a different proceeding may be offered against a party.

(b) Dying Declarations

A declarant’s statement concerning his or her death may be admissibleunder {Tex. R. Evid. 804(b)(2)}. If the declarant believed that death was imminent, his or her statement concerning the cause of death may beadmissible.

(c) Statement of Personal or Family History

A declarant’s testimony concerning his or her own pedigree and thepedigree of others may be admitted under {Tex. R. Evid. 804(b)(3)}. Adeclarant’s statement about his or her own birth, adoption, marriage,divorce, legitimacy, relationship by blood, ancestry, or other similar factconcerning personal or family history is admissible even though the



declarant did not have the means to gain personal knowledge of thesematters.

Likewise, if the declarant was related to another person by blood,adoption, or marriage, or was intimately associated with that person’sfamily so that the declarant’s knowledge is likely to be accurate, thedeclarant’s statement concerning the above matters will be admissible.

C. Hearsay within Hearsay

Sometimes a situation can occur in which a statement is admissible under a hearsay rule,but contained within that statement is another statement that contains further hearsay. In that instance, the person offering the evidence must find a hearsay exception for eachinstance of hearsay. {Tex. R. Evid. 805} Each layer of hearsay must have an independentbasis for exception from the general hearsay rule, or that portion of the statement is notadmissible.

Example: A note made by a witness, read to the jury, which recounted statements byco-conspirators regarding the conspiracy creates a double layer of hearsay. While thisevidence would generally be inadmissible, each portion may qualify for a hearsayexception and restore admissibility. For instance, the witness’s note will qualify under the“recorded recollection” exception, and the alleged statements by the co-conspirators willqualify under the exception for statements by co-conspirators during the course and infurtherance of the conspiracy. Therefore, both the note and the recounted statements arehearsay but are admissible due to the independent exceptions. United States v. Steele, 685F.2d 793 (3d Cir. 1982).

D. Attacking and Supporting the Declarant’s Credibility

A declarant under the hearsay rules can be impeached. {Tex. R. Evid. 806} This is trueeven if the declarant is not in court. Evidence may be admitted about the credibility of the person who made the statement.

VIII. WITNESSES

A. Exclusion of Witnesses

“The Rule”

Witnesses may be excluded from the courtroom so that they cannot hear the testimony of other witnesses. {Tex. R. Evid. 614} The rule allowing this exclusion of witnesses issometimes called the rule of sequestration or simply “the rule.” Therefore, when a lawyerasks the court to “invoke the rule,” the lawyer is requesting that the court exclude


VIII. WITNESSES B. Non-Hearsay and Hearsay Exceptions

witnesses from the courtroom. Certain people are not subject to the rule and cannot beexcluded:

In civil cases:

1. a party who is a natural person (a human being, as distinguished from an artificial“person” [i.e., entity] created by law), or the spouse of that party;

2. an officer or employee of a business entity that is a party, if the officer or employeeis designated as the party’s representative by its attorney; and

3. a person whose presence is shown by a party to be essential to the presentation ofthe case (an example is an expert witness whose opinion is to be based upon thetestimony of other witnesses).

In criminal cases:

1. a party who is a natural person (a human being, as distinguished from an artificial“person” [i.e., entity] created by law);

2. an officer or employee of a business entity that is named as a defendant, if the officer or employee is designated as the defendant’s representative by its attorney;

3. a person whose presence is shown by a party to be essential to the presentation ofthe case (an example is an expert witness whose opinion is to be based upon thetestimony of other witnesses); and

4. the victim, unless the victim is to testify and the court determines that the victim’stestimony would be materially affected if the victim hears other testimony at trial.

Unless one of these exceptions applies, the trial judge is required to exclude a witness ifone of the parties requests the exclusion. {Tex. R. Civ. P. 267(d)} and {Tex. Code Crim.Proc. art. 36.06} provide for specific instructions to be given the witnesses when the ruleis invoked. If a witness violates the rule, a court may disqualify the witness from testifying or find the witness in contempt.


VIII. WITNESSES A. Exclusion of Witnesses

B. Who Can Testify

1. Competency of Witnesses

a. In General

The general rule is that every person is competent to be a witness. {Tex. R.Evid. 601} However, there are two basic exceptions, and the judge mustdetermine the competency of such persons:

(1) Insane persons are not allowed to testify if they are under a mentaldisability at the time of the proceeding or if they were under a disability atthe time of the events about which they are to testify. A person shouldonly be disallowed from testifying because of insanity if the mentalcondition affects the person’s ability to testify accurately. The mere factthat a person has been found insane previously does not mean that he orshe is necessarily incompetent to testify.

(2) Children who do not appear to be sufficiently mature to testify aboutthe events about which they will be questioned are considered incompetent.

b. Dead Man’s Statute

The Texas Rules of Evidence limit testimony concerning statements by insanepersons or deceased persons. The portion of the limitation dealing withdeceased persons in civil cases is often referred to as the “Dead Man’s Rule.”{Tex. R. Evid. 601(b)} This rule disallows testimony concerning anuncorroborated oral statement by a testator (the deceased writer of a will),intestate (a person who dies without a will), or ward in certain proceedings.The proceedings in which such testimony are excluded are:

(1) legal proceedings by or against an executor, administrator, or guardianin which judgment could be rendered for or against the executor,administrator, or guardian in his representative capacity; and

(2) a legal proceedings brought by or against an heir or legal representativeof a deceased person in which an oral statement by the deceased is the basisof the action.

Parties, executors, administrators, guardians, heirs, and legal representativesare prohibited from testifying to the uncorroborated statements. However, ifone of the above persons disclaims an interest in the litigation or renounceshis representative capacity, he or she may testify. If the rule is applied, thejudge must instruct the jury that the person is not allowed to testify unless his


VIII. WITNESSES B. Who Can Testify

or her statement is corroborated or unless the person is called by the oppositeparty.

c. Competency of Judge as a Witness

The judge who presides over a trial may not testify as a witness in that trial.{Tex. R. Evid. 605} It is error for the judge to testify at trial even if neitherparty objects.

d. Competency of Juror as a Witness

A member of the jury cannot testify before the jury in the trial in which he orshe is a juror. {Tex. R. Evid. 606} Further, upon an inquiry as to the validityof a verdict, a juror may not testify as to the jury deliberations, the effect ofany matter on any juror’s mind or emotions, or the mental processes of thejuror in reaching a verdict.

A very narrow exception exists for both civil and criminal cases for jurors totestify after rendering a verdict only about “outside influences” that affectedthe verdict. Civil and criminal courts narrowly interpret the term “outsideinfluences,” holding that the influence must not only arise from informationand expertise not in evidence, but also must come from outside the jury andits deliberations. In other words, comments or statements made by one jurorto the other jurors during deliberations do not amount to “outside influence.”See Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 369 (Tex. 2000); {Tex. R.Civ. P. 327(b)}.

{Tex. R. App. P. 21.3} also sets out three grounds for jury misconduct thatcan potentially entitle a defendant to a new trial in a criminal case:

(1) deciding a verdict unfairly;

(2) receiving other evidence, unauthorized conversations, or beingintoxicated while deliberating; or

(3) depriving the defendant of a fair and impartial trial.

This test has been interpreted very conservatively, and courts have ruled thatparties are entitled to a new trial based on jury misconduct in very limitedcircumstances. See White v. State, 225 S.W.3d 571 (Tex. Crim. App. 2007). Ajuror’s affidavit concerning the verdict cannot be used in any instance in which his testimony may not be heard.



2. Personal Knowledge

The rules require that, in additions to being competent, the witness have personalknowledge about the events to which he or she is testifying. {Tex. R. Evid. 602}

This requires that the witness’s knowledge be based on personal observations andperceptions.

3. Oath or Affirmation

Before testifying, a witness must declare that he or she will testify truthfully. {Tex. R.Evid. 603} No special form of oath or affirmation is required as long as the oath oraffirmation is administered in a form calculated to awaken the witness’s conscience and impress his or her mind with the duty to testify truthfully.

4. Interpreters

Under {Tex. R. Evid. 604}, an interpreter may translate for a witness if the interpretermeets two qualifications:

a. the interpreter must establish that he or she is qualified to translate thelanguage interpreted; and

b. the translator must take an oath to translate accurately.

C. Impeachment of Witnesses

When a witness’s credibility is being attacked, that witness is being impeached. {Tex. R.Evid. 607} Generally, an attempt at impeachment will occur during cross-examination bythe opponent of the party who called the witness. The rules specifically provide, however, that a party may impeach its own witness. Therefore, a party who presents a witness, butthen finds that the witness’s testimony is unfavorable to the party, may attack thatwitness’s credibility on direct examination. {Tex. R. Evid. 613} Types of impeachmentevidence include:

1. Character Evidence

Character evidence may be admitted to impeach a witness. {Tex. R. Evid. 608}However, there are two restrictions on this use of character evidence:

a. the evidence is admissible only if it refers to the witness’s character fortruthfulness or untruthfulness; and



b. character evidence of truthfulness can be admitted to bolster the witness’scredibility only after the truthfulness of the witness has been attacked.

An attorney may not ask about specific instances of the witness’s own conduct toimpeach the witness on cross-examination, nor may the attorney introduce otherevidence of specific instances of that witness’s conduct to impeach the witness (exceptfor previous convictions).

However, an attorney may cross-examine a witness who testifies about the character of another witness as to his or her knowledge of specific instances of conduct of the other witness whose credibility is being impeached.

Example: If Anthony testifies that Bob is not truthful, Anthony can be asked if heknows that Bob has been commended for his honesty.

2. Evidence of a Criminal Conviction

a. In General

Evidence of prior convictions of some types of crimes can be used to impeacha witness. {Tex. R. Evid. 609} Only evidence concerning convictions offelonies or crimes involving moral turpitude may be used. Crimes involvingmoral turpitude may be either felonies or misdemeanors.

Moral turpitude is not defined in the evidence rules, but crimes have beenevaluated on a case-by-case basis by Texas courts. Some examples of acts thathave been considered to show moral turpitude are theft, forgery, swindling,sexual assault of a child, aggravated assault on a female, and prostitution. Some crimes that have been held not to be crimes of moral turpitude includedelivery of marijuana, possession of cocaine, assault, DWI, and gambling.

Evidence of the prior conviction may be introduced either by the witnessadmitting the conviction or by admission of the public record of theconviction.

b. Limitations

The rule allowing evidence of criminal convictions for impeachment includesseveral limitations:

(1) The court must determine that the probative value of the evidenceoutweighs its prejudicial effect on the party against whom it is offered.


VIII. WITNESSES C. Impeachment of Witnesses

(2) If it has been ten years since the conviction or the release of the personconvicted (whichever is later), the court cannot admit the evidence unlessthe court determines that the probative value of the evidence substantiallyoutweighs the prejudicial effect.

(3) Evidence of a conviction may not be admitted if:

(a) a person has been pardoned after rehabilitation and has not beenconvicted since of a felony or crime involving moral turpitude, or

(b) the witness successfully completed probation and has not beenconvicted of a subsequent felony or crime involving moral turpitude, or

(c) the witness has been pardoned because of innocence.

(4) Evidence of juvenile adjudications are not admissible, unless required by either the Texas or United States Constitutions.

(5) If the case is on appeal, evidence of the conviction is not admissible.

(6) A party intending to use evidence of a conviction to impeach a witnessmust give notice to the party offering the witness.

(7) The evidence should be limited to the type of offense, the date of theconviction, and the type of punishment.

c. Redirect

On redirect examination, a witness can explain the circumstances of a criminalconviction.

3. Religious Beliefs of Opinions

A person’s religious beliefs may not be used either to impeach or to bolster a witness’scredibility. {Tex. R. Evid. 610} However, this evidence may be admissible to showbias.

4. Prior Statements of Witnesses

Statements made previously by a witness may be admitted either to support or toimpeach a witness. {Tex. R. Evid. 613(a)} Types of prior statements include:



a. Prior Inconsistent Statements

When a witness is asked about a prior inconsistent statement made by thewitness, the witness must be told the contents of the statement, the time andplace of making the statement, and the person to whom it was made. Thewitness must be given an opportunity to explain or deny the statement. If theprior inconsistent statement was in writing, it need not be shown to thewitness but must be shown to the opposing counsel if the opposing counselasks to see it. If the witness admits making the prior inconsistent statement,no outside evidence of the statement may be introduced.

b. Prior Consistent Statements

An earlier statement by the witness that is consistent with a statement made at trial is admissible to support the witness only if it meets the requirements ofthe hearsay rule. That rule requires that the witness be subject tocross-examination concerning the prior consistent statement and that it beoffered to rebut an express or implied charge against the witness that thewitness has recently fabricated the statement or that his or her testimony isaffected by an improper influence or motive. Without any showing of recentfabrication, improper influence or motive, a witness’s prior consistentstatement is not admissible.

5. Evidence of Bias or Interest

A witness may be impeached on the grounds that the witness’s testimony is influencedby bias or interest. A prior statement of the witness may be used to impeach for thispurpose, but other evidence of bias or interest may also be offered. {Tex. R. Evid.613(b)}

The rule requires that when a witness is impeached by a showing of bias or interest, the witness must be told of the circumstances supporting the allegations of bias or interestand must be given the opportunity to explain or deny those circumstances.

If the evidence of bias or interest is in writing, the writing does not need to be shownto the witness but must be shown to opposing counsel if opposing counsel requests it.

If the witness admits bias or interest, outside evidence of bias or interest should not beadmitted. If a party’s credibility is attacked by a showing of bias or interest, that partycan offer any evidence rebutting the claim of bias or interest.



D. Production of Statements of Witnesses

In criminal cases only, an adverse party may request a statement of any witness in thepossession of the other party after the witness has testified. {Tex. R. Evid. 615}Statements of a defendant are explicitly excluded from this rule. The statement mustrelate to the witness’s testimony. There are three types of statements that qualify underthis rule:

1. a written statement either signed, adopted, or approved by the witness;

2. an oral statement that was recorded in some manner at the time the statement wasmade; and

3. a statement made to a grand jury.

The State may use depositions in limited circumstances in a criminal trial. Previously,{Tex. Code Crim. Proc. art. 39.01} only allowed defendants to introduce depositions inlimited cases when the witness was unavailable.

The opposing party may obtain either the full statement or a partial statement, dependingupon whether the statement relates to the witness’s testimony. If the entire statement isrelevant, then the court must order the party to produce the statement. However, theparty calling the witness may claim that certain portions of the statement are not relevant. In this instance, the court must review the statement and excise any portions that may not relate to the testimony.

For example, portions of the statement protected by privilege may be excised. Once astatement has been given to the opposing counsel, the court must call a recess to allowcounsel to examine the statement, if requested. If a party fails to produce a statementunder this section, the court can strike the testimony, or, if the prosecution fails toproduce the statement, the court can order a mistrial.

In criminal cases, {Tex. Code Crim. Proc. art. 39.025} permits the prosecution - but notthe defense - to depose an elderly or disabled person who is the alleged victim of orwitness to an offense for the purposes of preserving the person’s testimony. This statuteprovides deadlines, extensions of deadlines, continuances, rules governing the deposition,and the presence or absence of the defendant at the deposition. {Tex. Code Crim. Proc.art. 39.026} also permits a court to order a prosecutor to take depositions in Medicaid orMedicare cases.


VIII. WITNESSES D. Production of Statements of Witnesses

IX. OPINION TESTIMONY

Statements of fact are preferred to statements of opinion. However, the rules specificallyprovide that both lay and expert witnesses may testify as to an opinion if certain conditionsare met.

A. Lay Witnesses

A lay witness is a witness who does not have specialized expertise in the area about whichthe witness offers an opinion.

1. Qualifications

There are several ordinary matters about which lay witnesses are usually qualified totestify: identity, handwriting, time, distance, speed, size, weight, demeanor andemotion, age, love or affection, credibility, and value. {Tex. R. Evid. 701} The purposeof allowing this type of opinion evidence is that these matters are usually difficult todescribe without including an opinion.

A lay witness should be allowed to give any type of opinion testimony, as long as it isnot inadmissible under some other rule, and as long as two requirements are met:

a. The opinion must be based on the witness’s own perceptions. The witnessmay not testify about events or matters that have been perceived by anotherperson and related to the witness.

b. The opinion must be helpful to the fact-finder.

2. Opinion Regarding State of Mind

Lay witnesses are usually allowed to testify about their opinion of a person’s state ofmind or mental capacity. The witness cannot state an opinion about whether a personmet the legal test of capacity but can give an opinion, for example, about whether aperson was capable of understanding the consequences of his acts. In other words, awitness can testify about his or her opinion about whether a person possessed thedifferent elements of mental capacity, but cannot testify as to the legal conclusion thatthe witness possessed such capacity. A person cannot testify about another person’sintent or motive. Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997).


IX. OPINION TESTIMONY D. Production of Statements of Witnesses

3. Opinions Regarding Sobriety

Lay witnesses, including police officers, can offer their opinion about whether a person was intoxicated. This opinion is allowed because the average person can recognizesymptoms of intoxication.

Testimony regarding the influence of drugs is more problematic. One court has heldthat only an expert may render an opinion as to whether a person was under theinfluence of drugs. Smithhart v. State, 503 S.W.2d 283 (Tex. Crim. App. 1973).However, in that case, the defendant was charged with driving under the influence ofdrugs, making intoxication an ultimate issue in the case. Other cases have distinguished Smithhart when intoxication by drugs is not an ultimate issue in the case. See Gallegosv. State, 2003 Tex. App. LEXIS 4925 (Tex. App. - Houston [14th Dist.] June 12,2003); Payne v. State, 2003 Tex. App. LEXIS 7650 (Tex. App. - Tyler 2003, pet. ref’d)(“in the absence of direct opinion testimony, such intoxication may be shown bycircumstantial evidence”).

B. Expert Witnesses

Expert witnesses are frequently used in both civil and criminal litigation. Remember thatnot everyone will qualify as an expert and that the scope of an expert’s testimony islimited. {Tex. R. Evid. 702}

1. Qualifications

Under {Tex. R. Evid. 702}, three requirements must be met before an expert can givetestimony:

a. Expert Witness

First, the witness must in fact be an expert on the subject about which he orshe will testify. A person may be an expert based upon “knowledge, skill,experience, training or education.”

The qualification of an expert is within the court’s discretion. A party mayobject to a witness giving an opinion on the basis that the witness has not been qualified as an expert or is not an expert in the particular area that is thesubject of his or her testimony. This objection means that the party who putthe witness on the stand has not shown that the witness has sufficientspecialized knowledge to be considered an expert under the rules.

There is no particular showing that has to be made to qualify the witness as anexpert. As long as the court is satisfied that the witness’s “knowledge, skill,


IX. OPINION TESTIMONY A. Lay Witnesses

expertise, training, or education” provide the witness with specializedknowledge, the court may find that the witness is qualified as an expert.

If an objection is made, the party offering the expert may be required to askthe witness questions about the witness’s specialized knowledge in an attemptto qualify the witness. Additionally, the party making the objection may beallowed to ask the witness questions in an attempt to show that the witnessshould not be qualified as an expert.

b. Scientific Theory

The proposed testimony must be grounded in scientific, technical, or otherspecialized knowledge. To be considered valid, evidence from a scientifictheory must satisfy three criteria:

(1) the underlying scientific theory must be valid;

(2) the technique applying the theory must be valid; and

(3) the technique must have been properly applied on the occasion inquestion.

c. Essential Testimony

The witness’s testimony must be such that it will help the fact-finderunderstand the evidence or decide a fact question. The expert’s testimony isnot required to be essential to the fact-finder’s understanding of the case aslong as that testimony will assist the fact-finder’s understanding.

2. Inadmissible Opinion Testimony

An expert cannot testify on some types of issues. {Tex. R. Evid. 703}

For example, an expert will not be allowed to testify as to whether another witness istelling the truth. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). Also, expertscannot testify as to facts within common knowledge, or when the jury is equallycompetent to form an opinion as to the ultimate facts of the case. Lee v. Andrews, 545S.W.2d 238 (Tex. Civ. App. - Amarillo 1976, pet. dism’d).

Although as a general rule an expert cannot testify as to a purely legal conclusion, theTexas Supreme Court has held that an expert may offer an opinion on negligence andproximate cause if it can be shown that the expert is applying proper legal definitions.The key is whether the expert was given sufficient legal criteria on which to form anopinion on this mixed question of law and fact.


IX. OPINION TESTIMONY B. Expert Witnesses

3. Validity of Scientific Foundation

Before a court will find that expert scientific evidence meets the requirements of {Tex.R. Evid. 702}, it must find that the preferred evidence is both relevant and reliable. The Texas Court of Criminal Appeals set out a list of six factors that will guide the trialcourt in deciding relevance and reliability in the case of Kelly v. State, 824 S.W.2d 568(Tex. Crim. App. 1992), relying on Daubert v. Merrell Dow Phar., Inc., 509 U.S. 579(1993). The list, while not exhaustive, includes:

a. the extent to which the scientific theory has been tested;

b. the degree to which the technique depends upon the subjectiveinterpretation of the expert;

c. whether the theory has been the subject of peer review or publication;

d. the potential rate of error;

e. whether the technique has been generally accepted in the relevant scientificcommunity; and

f. the non-judicial uses that have been made of the technique.

4. Bases of the Expert Opinion

An expert’s opinion can be based on either facts or data personally perceived by theexpert or on facts or data made known to the expert at or before the proceeding atwhich the expert is testifying. {Tex. R. Evid. 703} For example, an expert’s opinion asto a patient’s medical problem may be based on that expert’s examination of thepatient. Personal perception would form the basis for this opinion.

The opinion, however, also could be based on a review of the patient’s medical recordsrather than on personal examination of the patient. That opinion would be admissibleif the medical records were made available to the expert before or during theproceedings in which the expert was testifying.

Facts or data that form the basis for an expert’s opinion may be presented to the expert at trial in the form of a hypothetical question. An expert may rely on facts or data thatwould not be admissible at trial (for example, hearsay evidence) if those facts or dataare of a type reasonably relied upon by experts in the particular field in formingopinions or inferences upon the subject.


IX. OPINION TESTIMONY B. Expert Witnesses

5. Testimony Regarding Facts

Experts can testify about certain facts in addition to testifying about opinion. {Tex. R.Evid. 702} For example, a doctor could testify about the symptoms of a disease.

6. Disclosure of Facts or Data Underlying Expert’s Opinion

An expert may disclose the facts or data upon which the opinion is based on eitherdirect or cross-examination. {Tex. R. Evid. 705} However, the expert is not specifically required to state the basis of the opinion on either direct examination orcross-examination.

Although an expert is allowed to reveal the basis of the opinion, if the basis of thatopinion is founded on inadmissible evidence, the court should be careful in how muchinadmissible information is revealed. If too much is revealed, a limiting instruction may be necessary. See the section entitled “A Judge’s Responses to Objections” on pg. 5.

C. Opinions on Ultimate Issues in the Case

Both expert and lay witnesses may testify in the form of an opinion about mattersconcerning an ultimate issue in a case. {Tex. R. Evid. 704} Therefore, an objection that awitness is offering an opinion regarding an ultimate issue in the case is not valid.

X. DOCUMENTARY EVIDENCE

Although much evidence consists of oral testimony, parties may also use documents,photographs, and physical evidence to prove a fact. Those types of evidence come within the category of documentary evidence.

A. Requirement of Authentication

A party seeking to introduce documentary evidence must first establish that the evidenceis authentic, that is, that the evidence is actually what it purports to be. {Tex. R. Evid.901} For example, if a party wants to offer into evidence a photograph of the scene where a collision occurred, the party must authenticate the photograph as actually showing thelocation of the collision as it looked at the time the collision occurred. Authenticating the evidence is the same thing as laying the proper foundation for the admission of theevidence. There are several ways that evidence may be authenticated:

1. A person with knowledge of the evidence may identify the evidence. The identifyingwitness must establish where he or she obtained knowledge of the evidence.


X. DOCUMENTARY EVIDENCE B. Expert Witnesses

Example: When a police officer seizes evidence it is common practice to mark theevidence, usually with a tag, so that the officer may identify the evidence at trial. At trial,the officer must:

a. identify the object;

b. state where he or she first saw the object;

c. state how he or she knows the object is the same one that the officer seized (forexample, by examining the identifying mark or a unique quality of the evidence;, and

d. testify that such evidence is in the same condition as when the officer first identifiedit.

2. If the evidence is not unique, the officer must testify about where the evidence has been and the procedures used to ensure such evidence has not been tampered with from thetime it was taken from the scene to the time it is used in court. Authenticating theevidence by establishing where the evidence has been is sometimes referred to asestablishing the “chain of custody” for the evidence.

3. A lay witness may give an opinion about the genuineness of the handwriting on adocument if the witness is familiar with a person’s handwriting. The witness must:

a. know the person whose signature he or she is identifying;

b. show that he or she has seen the signature on previous occasions, excludingpreparation for the trial;

c. be allowed to examine the signature before the court; and

d. testify that the object is, in fact, the signature of the party in question.

4. Authentication of a photograph does not require that the person who took thephotograph identify it. It is sufficient if someone familiar with what is depicted in thephotograph testifies that the photograph is an accurate depiction of what is shown in thephotograph.

Judges make authentication decisions, including about electronic communications such as email and information from social media websites, under Rule 901 on a case-by-case basis. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (admitting evidence fromMySpace webpage).


X. DOCUMENTARY EVIDENCE A. Requirement of Authentication

B. Self-Authentication

Certain items are self-authenticating. {Tex. R. Evid. 902} This means that they do notneed to be authenticated by a witness because the evidence rules provide that courtsshould presume they are what they purport to be. The following items areself-authenticating:

1. domestic public documents under seal;

2. domestic public documents not under seal, if the document bears the signature of an officer or employee acting in an official capacity attesting to the genuineness of thedocument;

3. foreign public documents, if a seal or signature attests to the genuineness of thedocuments and the parties have had a reasonable opportunity to investigate theauthenticity of the documents (see {Tex. R. Evid. 1009}, Translation of ForeignLanguage Documents);

4. certified copies of public records;

5. official publications (books, pamphlets, or other publications purporting to beissued by public authority);

6. newspapers and periodicals;

7. trade inscriptions and the like purporting to have been affixed in the course ofbusiness that indicate ownership, control or origin;

8. acknowledged documents (documents that are accompanied by a notarizedacknowledgement of authenticity);

9. commercial papers and related documents; and

10. business records accompanied by an affidavit setting out that the record was kept as a business record. The rules set out a sample form of the affidavit that mustaccompany a business record for this purpose in {Tex. R. Evid. 902(10)}.

C. Writing Used to Refresh Memory

A witness who has temporarily forgotten something may have his or her memoryrefreshed with a writing: (1) while testifying; (2) before testifying in civil cases, if thecourt in its discretion determines it is necessary in the interests of justice; or (3) beforetestifying in criminal cases. {Tex. R. Evid. 612}


X. DOCUMENTARY EVIDENCE B. Self-Authentication

The adverse party then is entitled to have the writing produced at the hearing or at trialfor purposes of inspecting it, cross-examining the witness, and introducing in evidencethose portions that relate to the testimony of the witness.

On occasion, parties may disagree as to the admissibility of certain portions of a writing,such as when matters not directly related to the subject matter of the witness’s testimonyare included in such documents. {Tex. R. Evid. 612} provides specific procedures forruling on these types of disputes and should be consulted if such a dispute occurs.

NOTE: There is a special consideration for criminal cases where the court orders theprosecution to produce a document used to refresh the memory of a witness. If theprosecution does not comply, the court must order the refreshed testimony stricken from the record, or, if the court in its discretion determines that “the interests of justice sorequire,” declare a mistrial. {Tex. R. Evid. 612}.

D. Best Evidence Rule

The best evidence rule applies only to documents (writings, recordings or photographs).{Tex. R. Evid. 1002} It requires that when someone seeks to prove the contents of adocument, the person must produce the original, unless the rules or other laws provide an exception.

A duplicate will be admissible to the same extent as an original unless a question is raisedas to the authenticity of the original, or unless it would be unfair under the circumstancesto admit the duplicate in lieu of the original. {Tex. R. Evid. 1003}.

{Tex. R. Evid. 1004} states that an original is NOT required (and other evidence of thecontents of a writing, recording or photograph) is admissible if:

1. the original has been lost or destroyed, unless the party offering the evidence lost ordestroyed them in bad faith;

2. the original is not obtainable by any available judicial process or procedure;

3. no original is located in Texas;

4. the original is in the possession of an opponent (under the control of the partyagainst whom it is offered, when the party was put on notice that the contents wouldbe a subject of proof at the hearing, and the party does not produce the original at thehearing); or

5. the writing, recording or photograph is not closely related to a controlling issue.


X. DOCUMENTARY EVIDENCE C. Writing Used to Refresh Memory

For example, if a party wants to prove the contents of a written contract, the party mustdo so by introducing the contract itself rather than by oral testimony about what thewritten contract provides. Under the rules, either the original contract or a copy satisfiesthe best evidence rule. If the party trying to prove the contract can show that the writinghas been lost, destroyed, or is otherwise not obtainable, then the best evidence rule doesnot require proof of the contract through admission of the document. Under thosecircumstances, oral testimony may be used to prove the contents of the contract.

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X. DOCUMENTARY EVIDENCE D. Best Evidence Rule