This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

error (Rule 601. Competency and Incompetency of Witnesses)

• It was error to order defense counsel to testify over objection when called by the State as a fact witness where trial court did not undertake any ameliorative measures to prevent harm to def. Flores v State (December 15, 2004, No. PD-1908-02)

no error (Rule 601. Competency and Incompetency of Witnesses)

• It was not abuse of discretion to overrule def's objection to allowing witness to testify, on grounds that his testimony was prevented by the rules of professional responsibility (rule 3.08), where witness was fact witness who had been police officer at time of offense, and who at time of trial was a prosecutor who worked in same county as trial court and had other matters pending in that court. Because witness was not an "advocate" in def's case, but was only a fact witness, he did not serve dual roles under rule 3.08. When it is clear, as here, that a lawyer is not serving dual roles, the reviewing court should not proceed to determine whether the complaining party was harmed. Powers v State (June 15, 2005, No. PD-1380-04)

notes (Rule 602. Lack of Personal Knowledge)

• No merit to contention that evidence rules 602 and 701 require that an affiant have personal knowledge of the information contained in a controverting affidavit under 31.04 CCP. Personal knowledge is not required, so rules 602 and 701 do not apply to the affidavits required by Article 31.04. Busby v State, 990 S.W.2d 263 (March 31, 1999)

rules (Rule 607. Who May Impeach)

• Rule 607 permits the credibility of a witness to be attacked by any party, including the party calling the witness. The rule abandons the traditional “voucher” rule which prohibited a party from impeaching its own witness. The plain language of Rule 607 also dispenses with the surprise and injury exception to the “voucher” rule which served as a prerequisite to impeaching one’s own witness. Because grafting a surprise requirement would contravene the plain language of Rule 607, court of criminal appeals declined to adopt this common-law distinction. Instead, it concluded the state’s knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. A trial court abuses its discretion under Rule 403 when it allows the state to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible. The impeachment evidence must be excluded under Rule 403's balancing test because the state profits from the witness’ testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect. Hughes v State, 4 S.W.3d 1 (June 16, 1999)

presenting issue (Rule 608. Evidence of Character and Conduct of Witness)

• Nothing presented for review challenging cross examination of def with specific instances of misconduct for impeachment contrary to rule 608(b) where def made no trial objection. Perry v State (December 15, 2004, No. AP-74,591)

• Because of the distinct and different purposes served by Rule 608(b) and Rule 612(b), def's Rule 608(b) objection that “only final felony convictions may be used to impeach testimony” failed to articulate any kind of an objection under Rule 612(b). Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• PDR reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997), on preservation of objection to impeachment, and on merits of allowing impeachment by proof of pending charges over objection based on rules 608(b) and 609. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

• Def preserved for review issue of whether was error to allow state to impeach defense witness with questions about pending felony charges against witness, where def adopted objection* made by witness' attorney, asserting witness' privilege against self incrimination, pointing out the charges were pending and witness had not been convicted, which was suff to apprise trial court that def was relying on both TRCrE 608(b) and 609. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

rules (Rule 608. Evidence of Character and Conduct of Witness)

• While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• Tex.R.Crim.Evid. 608(a) says how to impeach a witness’s general character for truthfulness. Rule 608(b) expressly bars impeaching a witness’s general character for truthfulness with specific acts of conduct “other than conviction of crime as provided in” Tex.R.Crim.Evid. 609. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• Rule 612(b) is different from Rule 608. Rule 608 addresses a witness’s general character for truthfulness. Rule 612(b) addresses a witness’s trustworthiness in the particular case because of some bias or interest. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• TRCrE 612 (now TRE 613) is a general rule that allows the parties to question a witness regarding a bias or interest, whereas Rule 608(b) is a specific rule relating to “specific” instances of conduct and Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction. General rules are not meant to supercede specific rules. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

not error to exclude 608(b) (Rule 608. Evidence of Character and Conduct of Witness)

• It was not abuse of discretion not to allow def to cross-examine witness regarding his giving a false name after an arrest, and his shooting his stepfather, where neither alleged offense resulted in a conviction. No merit to contention they were admissible under rules 401 and 611(b), where rule 608 required exclusion. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• The Confrontation Clause does not require a special exception to the Rules of Evidence for sexual offenses. In instant case, it did not require admission of evidence of the complainant's prior false allegations of abuse against a person other than the defendant despite Rule 608(b)'s proscription against admitting specific instances of conduct. Court balanced probative value of the evidence offered against the risk of its admission. C/w testified that def forced c/w to perform oral sex on def. According to the testimony at trial, the events occurred when they were alone, so there were no other witnesses to corroborate either person's story; also, state had no additional evidence of def's guilt. Because the trial was a "swearing match," def had a heightened need to impeach c/w's credibility. But the excluded evidence would not have achieved that goal. Def attempted to introduce evidence that c/w had previously falsely accused his mother of physical abuse, but (1) the prior accusation was never shown to be false, and (2) the allegation that def's mother had physically abused him by throwing him against a washing machine had almost nothing in common with allegations of sexual abuse in instant offense. For these same reasons, the risk that this evidence would unduly prejudice and confuse the jury was high. Court therefore concluded that the Confrontation Clause did not demand admissibility of this evidence. Its probative value was extremely low, and the risk that its admission would confuse the jury was high. Although court declined to create a per se exception to the Rule 608(b) for sexual offenses, it expressly acknowledged that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude. Lopez v State, 18 S.W.3d 220 (May 3, 2000)

error (Rule 608. Evidence of Character and Conduct of Witness)

• It was error to overrule objection to impeachment of defense witness by asking him about pending charges. No merit to state's contention that Rule 612 allowed impeachment with proof of pending charges over def objection under rules 608(b) and 609, where the state's cross-examination* was merely to bring out evidence of the pending charges and state never questioned witness regarding his possible bias or motive. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

presenting issuue (Rule 609. Impeachment by Evidence of Conviction of Crime)

• PDR reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997), on preservation of objection to impeachment, and on merits of allowing impeachment by proof of pending charges over objection based on rules 608(b) and 609. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

• Def preserved for review issue of whether was error to allow state to impeach defense witness with questions about pending felony charges against witness, where def adopted objection* made by witness' attorney, asserting witness' privilege against self incrimination, pointing out the charges were pending and witness had not been convicted, which was suff to apprise trial court that def was relying on both TRCrE 608(b) and 609. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

rules (Rule 609. Impeachment by Evidence of Conviction of Crime)

• TRCrE 612 (now TRE 613) is a general rule that allows the parties to question a witness regarding a bias or interest, whereas Rule 608(b) is a specific rule relating to “specific” instances of conduct and Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction. General rules are not meant to supercede specific rules. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

not error to admit (Rule 609. Impeachment by Evidence of Conviction of Crime)

• Where officer who had been def's immediate supervisor in sheriff's department testified about def's bad reputation based on that relationship, and def in cross-examination introduced def's personnel file which included documents from prior supervisors and colleagues about def's good reputation, it was not error to allow state to impeach authors of those documents with evid two of them had been fired from sheriff's department after being convicted of criminal offenses. The documents introduced by def were hearsay under TRCrE 801(d) because they were offered for truth of the matter asserted, so under TRCrE 806 credibility of declarants could be attacked as if declarants had testified, including by prior convictions allowed under TRCrE 609(a). Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

error harmless (Rule 609. Impeachment by Evidence of Conviction of Crime)

• It was not abuse of discretion to deny motion for mistrial after improper impeachment by state of def's mother by asking her about prior conv for which she had been placed on probation and had successfully completed the probation, where jury was instructed to disregard; where jury was informed that witness had successfully completed probation; where only disputed testimony of witness was on issue of whether def had requested counsel before signing written confession, and two state's witnesses as well as two other defense witnesses contradicted testimony of def's mother on events surrounding signing of confession; and where evid of guilt other than def's confession was overwhelming. Ovalle v State, 13 S.W.3d 774 (Mar. 8, 2000)

rules (Rule 611. Mode and Order of Interrogation and Presentation)

• Rule 610(c) [now Rule 611(c)] clearly contemplates that some leading questions are acceptable at the trial court's discretion. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

no error (Rule 611. Mode and Order of Interrogation and Presentation)

• No merit to contention that trial court erred by allowing the State to continually and repeatedly lead the State's witnesses over the objection of defense counsel, where def did not specifically point out any of the "numerous" leading-question violations allegedly committed by the State, and at the hearing on def's motion regarding the State's leading questions, the trial judge made it clear that he had been sustaining any objections to leading questions when appropriate, asking the State to rephrase its questions, or admonishing them not to lead. The trial judge further assured def that he would continue to do the same for any further violations if and when they arose. Def cited no instances either at the hearing or on appeal wherein any particular questions prejudiced him or caused him irreparable harm, and on appeal, he made only a general accusation that the trial court's actions were insufficient. Def made no showing that the trial court abused its discretion or that def was prejudiced in any way. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

presenting issue (Rule 613. Prior Statements of Witnesses; Impeachment and Support)

• Because of the distinct and different purposes served by Rule 608(b) and Rule 612(b), def's Rule 608(b) objection that “only final felony convictions may be used to impeach testimony” failed to articulate any kind of an objection under Rule 612(b). Dixon v State, 2 S.W.3d 263 (September 15, 1999)

rules (Rule 613. Prior Statements of Witnesses; Impeachment and Support)

• Rule 613(a) permits a party to impeach a witness with a prior inconsistent statement. In order to qualify for admission under Rule 613(a), the court must be persuaded that the statements are indeed inconsistent. Lopez v State (October 2, 2002, No. 1742-01)

• While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• Rule 612(b) permits impeaching a witness by proof of “circumstances or statements” showing the witness’s bias or interest in a particular case. Unlike Rule 608(b), Rule 612(b) does not expressly bar the use of specific instances of conduct to show bias or interest. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• Rule 612(b) is different from Rule 608. Rule 608 addresses a witness’s general character for truthfulness. Rule 612(b) addresses a witness’s trustworthiness in the particular case because of some bias or interest. Dixon v State, 2 S.W.3d 263 (September 15, 1999)

• TRCrE 612 (now TRE 613) is a general rule that allows the parties to question a witness regarding a bias or interest, whereas Rule 608(b) is a specific rule relating to “specific” instances of conduct and Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction. General rules are not meant to supercede specific rules. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

• A defendant is permitted to cross-examine a State's witness on the status of his deferred adjudication probation in order to show a potential motive, bias or interest to testify for the state, disavowing any language in Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992) holding otherwise. Maxwell v State (June 13, 2001, No. 1671-00)

not error to exclude 612(a) prior inconsistnt statement (Rule 613. Prior Statements of Witnesses; Impeachment and Support)

• Trial court did not abuse its discretion in denying def's request to admit evidence as a prior inconsistent statement, contradicting testimony that witness had not "lied about big things" where witness' prior allegation was not shown to be false, so that prior allegation did not contradict his testimony at trial that he had not "lied about big things." Lopez v State (October 2, 2002, No. 1742-01)

not error to exclude 612(b) bias or interest (Rule 613. Prior Statements of Witnesses; Impeachment and Support)

• It was not error to exclude cross examination of state's witness about sentence he was currently serving where witness was not eligible for good time and was no indication he had expectation that he would be rewarded for his testimony favorable to the state or be punished for testimony that was unfavorable to the state; def's offer of proof* did not establish a nexus between witness' testimony and his prison sentence. No merit to contention def was denied right of confrontation and rights under rule 613(b). Woods v State (December 15, 2004, No. AP-74,430)

error to exclude (Rule 613. Prior Statements of Witnesses; Impeachment and Support)

• It was error for trial court to refuse def the opportunity to cross-examine a key state's witness concerning his deferred adjudication and subsequent conviction, where at time of def's trial witness was on deferred adjudication probation, under condition that he not commit any offense, and he had been subsequently convicted of a misdemeanor, so at time he testified he was facing possibility of adjudication with a possible sentence beyond limit of term of his probation. His status was essentially the same as a witness with a pending charge; his freedom was subject to the will of the state, who called him to testify and supervised his probation. Maxwell v State (June 13, 2001, No. 1671-00)

rules (Rule 614. Exclusion of Witnesses)

• When a witness is prohibited by the trial court from testifying because the witness was present in the courtroom during the trial, appeals court determines (1) if the rule was violated and the witness disqualified, were there particular circumstances, other than the mere fact of the violation, which would tend to show def or his counsel consented, procured or otherwise had knowledge of witness's presence in the courtroom, together with knowledge of the content of that witness's testimony; and (2) if no particular circumstances existed to justify disqualification, was the excluded testimony crucial to the defense. Routier v State (May 21, 2003, No. 72,795)

rules on exemptions (Rule 614. Exclusion of Witnesses)

• Under Rule 614, a party has the burden to show that its witness is one of those whose exclusion from the courtroom is not authorized by that Rule. Russell v State (February 2, 2005, No. AP-74,595)

• When witness is erroneously excluded from the rule, the issue of harm from allowing the witness to remain in the courtroom is whether he was influenced in his testimony by the testimony he heard. Russell v State (February 2, 2005, No. AP-74,595)

not error to exclude testimony (Rule 614. Exclusion of Witnesses)

• It was not error to exclude testimony under rule 614 where the excluded testimony was not crucial to def's defense in the case. It tended to support def's theory of the case, but was not highly probative of question of def's guilt. Routier v State (May 21, 2003, No. 72,795)

harmless to excuse from the rule (Rule 614. Exclusion of Witnesses)

• It was error to exclude primary homicide detective in the case from the rule, on state's request that the witness be designated a "case agent." The State's designating a witness as a "case agent" does not make a witness one whom the court may not exclude from the courtroom under Rule 614. The government's designation of a "case agent" in the trial of a criminal case is permitted in federal courts by the federal counterpart of Rule 614, but it is not permitted in the courts of Texas. Neither the State nor a defendant who is a natural person may take away the court's authority to exclude one of its witnesses by simply designating the witness. Error was harmless where court concluded his testimony was not influenced by testimony he heard while in the courtroom. Russell v State (February 2, 2005, No. AP-74,595)

• It was error for trial court to exclude murder victim's parents from the rule under Article 56.02(b), which applies only to victims, not to parents of murder victim, but under facts of case the error was harmless under rule 44.2(b). Ladd v State, 3 S.W.3d 547 (October 6, 1999)

rules (Presenting Evidence)

• A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

• The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

• A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

improper question (Presenting Evidence)

• It was not abuse of discretion to deny motion for mistrial where state asked a prosecution witness if he was "aware of whether or not Mr. Ladd [def] and Mr. [Johnny] Roberson were together smoking crack cocaine ... on the night ... and the morning that [the victim] was missing and was found?” Before the witness could answer, def objected, asked for an instruction to disregard, and moved for a mistrial. The trial court sustained the objection on the ground that the State’s question violated a motion in limine. The trial court then instructed the jury to disregard the question, but the court denied a mistrial. The question did not actually assert that def was smoking cocaine on the night of the murder, and the trial court could have reasonably concluded that the question was not so inflammatory as to be incurable by an instruction to disregard. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

• It was not abuse of discretion to deny motion for mistrial where state asked a prosecution witness, “And at some point a few months before the fire, before the summer, was [the defendant] terminated from his [employment]?” The witness responded, “Yes, he was.” At that point, def objected on the ground that the termination of his employment was “irrelevant and prejudicial.” The trial court sustained appellant’s objection and, at his request, instructed the jury to disregard the question and answer. Def then requested a mistrial, which the trial court denied. Trial court could have reasonably concluded that its instruction to disregard was sufficient to cure any harm. Ladd v State, 3 S.W.3d 547 (October 6, 1999)