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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.

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notes (Rule 703. Bases of Opinion Testimony by Experts)

• In pros for aggravated sexual assault of a child, it was not abuse of discretion to allow state to cross-examine defense witness (case worker) about extraneous offense against another child, where testimony of defense witness on direct was relevant only for inference that def was type of person who did not pose a risk of abuse around children. Cross-examination was permissible for two reasons. (1) Def presented witness as a species of expert witness, one who had conducted a CPS investigation and "did not find any risk of abuse or neglect in the home." Therefore, state was entitled to cross-examine her for two independent but related reasons. First, the opposing party is always entitled to cross-examine an expert witness concerning the facts and data upon which that expert relied in forming her conclusion or opinion. Once witness testified to her "determination," state was entitled to inquire into the circumstances of that investigation, the mode under which she conducted her inquiry, the people she interviewed, the materials upon which she relied, and about information of which she was aware, but upon which she did not rely. State specifically asked her what information she relied on for her official report, and when asked whether she had received information that def may have molested his niece several years earlier, she stated that a law enforcement officer had told her "something like that," but it was hearsay, that she might have asked def or his wife about it, but she made no attempt to investigate that incident or contact the child, and she closed her file. When asked if she would have changed her opinion had she been able to verify the earlier molestation, she stated that she "possibly" would change her opinion that def was not a risk. This was permissible cross-examination into the basis for an expert witness's opinion. (2) State's cross-examination was also permissible to correct the false impression that witness' testimony left concerning def's risk of abuse. By raising the defensive theory that def posed no risk of abuse, he (through caseworker) opened the door for state to cross-examine her regarding an extraneous offense if the extraneous offense would tend to correct the false impression left by the witness' direct examination testimony. Def did not overtly present witness as a character witness, and she did not overtly testify to def's character for moral and safe conduct around children. However, because her testimony was relevant only for the inference that def was the type of person who did not pose a risk of abuse around children, state was entitled to rebut that "false impression" inference with cross-examination questions concerning allegations of similar misconduct toward another child. Wheeler v State (January 30, 2002, No. 815-99)

• An opposing party is entitled to ask an expert witness if her opinions or determinations would change if the data upon which she relied changed. Wheeler v State (January 30, 2002, No. 815-99)

rules (Rule 704. Opinion on Ultimate Issues)

• Def was not denied effective assistance of counsel for failure to object to testimony of officer on grounds it was opinion on ultimate issue in case. Under rule 701 officer could give lay opinion testimony and under rule 704 opinion testimony was not objectionable on grounds urged by def. Court did not rule on whether testimony was objectionable on other grounds. Ex parte Nailor (March 24, 2004, No. 1109-03)

notes (Rule 705. Disclosure of Facts or Data Underlying Expert Opinion)

• It was not abuse of discretion to excluded part of testimony of Dr. X during punishment stage of capital case. The proposed testimony would have been that he would not consider def to be a continuing threat while in prison, based on def’s current jail classification as nonviolent, the offense with which def was charged, and the level of resources that the prison system possesses to control the danger of inmates. The trial court ruled that Dr. X might talk about the prison system classification and level of resources, but he might not speculate how the classification might apply to def; and ruled that Dr. X could not mention def’s current jail classification, but he could state that he had reviewed the jail records of def in forming his opinion. Dr. X stated that he was unable to predict the classification that the prison system would assign to def, and his testimony concerning the prison classification system was not particularized to def, and Dr. X did not establish that the current jail classification would dictate def's classification in prison. Therefore, this restriction on his testimony could not have prevented him from testifying that he did not consider def to be a continuing threat to society. Def could not complain about the restriction of the trial court on the application of the prison classification system to def because Dr. X had no opinion as to that application. The jail classification of def as nonviolent was inadmissible hearsay, and the jailer’s opinion of the dangerousness of def was hearsay because it was a statement not made by Dr. X that would have been offered to prove the truth of the matter asserted, that def was not dangerous. Dr. X was properly permitted to state that he had reviewed the jail classification as a basis for his expert testimony, but the classification itself remained inadmissible. Prystash v State, 3 S.W.3d 522 (September 15, 1999)

rule 705(d) - limiting disclosure to jury (Rule 705. Disclosure of Facts or Data Underlying Expert Opinion)

• It was not error to exclude audio portion of videotaped interview of def's mother and transcript of that interview, over claim it was exception to hearsay rule as basis for expert opinion under rule 705(d). It was not abuse of discretion for trial court to decline to admit interview testimony under rule 705 where there was a danger jury would have considered those statements as substantive evidence; and def's expert testified he relied on that interview and stated some of the facts from interview that were basis for his expert opinion, so def did not need to present actual videotaped statements to show jury expert was relying on significant info conveyed by def's mother. Valle v State (July 2, 2003, No. 74,137)

no error (Polygraph Evidence)

• It was not error to deny def's request to impeach witness with evid she provided deceptive answers in polygraph exam shortly after murders, where her statement that polygraph report indicated 97% likelihood of being false was not part of her trial testimony. Polygraph evid is inadmissible for all purposes. If error, was harmless in light of overwhelming evid of guilt, including def's own statements to police, that corroborated the material aspects of testimony of witness that def sought to impeach. Ross v State (May 5, 2004, No. 74,459)