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.

801(a) statement (Rule 801. Definitions)

• It was not error to admit over hearsay objection, testimony that murder victim told witness three weeks before the offense that she was afraid of a man named Virgil, and if anyone saw him, to call the sheriff's department. There are two aspects of the testimony: (1) victim's statement that she was afraid of def, and (2) victim's plea to witness to call the sheriff if anyone saw def. The statement that she was afraid of def was a statement of the declarant's then existing state of mind, within the Rule 803(3) hearsay exception. Her request to call the sheriff's office, even if it may be characterized as a "verbal expression" under Rule 801(a), was not hearsay. The request was not admitted to show that the sheriff's office was called, but was admitted to show victim's fear of def. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

801(d) - whether offered to prove truth of matter (Rule 801. Definitions)

• Whether the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the content of the out-of-court statement can be inferred from the context. Head v State, 4 S.W.3d 258 (October 27, 1999)

801(d) not error to admit (Rule 801. Definitions)

• It was not error to overrule hearsay objection to testimony of lab supervisor about his opinion based on results of lab tests that he did not personally perform. Witness testified at trial as to his present opinion of the test results. While he relied on subordinate's report to form the opinion he testified to, the report itself was never offered into evidence. The underlying data and facts were never elicited before the jury. Neither the report nor its contents were offered for the truth of the matter asserted and therefore did not trigger the exclusion of the testimony on hearsay grounds. Because witness testified as to his present expert opinion, his testimony was not hearsay at all. Martinez v State, 22 S.W.3d 504 (Jun. 28, 2000)

• Where trial court implicitly found lab supervisor qualified as an expert, state had no burden to invoke an exception to the hearsay rule. Witness was free to offer his opinion based on subordinates's report. Since def never challenged supervisor's expert qualifications, his present opinion regarding the test results was properly admitted over hearsay objections. Martinez v State, 22 S.W.3d 504 (Jun. 28, 2000)

• It was not error to admit testimony about name and number listed in address book over hearsay objection, where it was not offered for truth of matter asserted (to prove phone number), but was offered as circumstantial evid of link between persons. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

• It was not abuse of discretion to overrule hearsay objection to testimony of prosecution investigator, that statements of two persons he interviewed were "consistent" with facts related to him by victim. It was not abuse of discretion for trial judge to conclude the testimony did not reveal a "statement" within scope of Rule 801(d). Trial court could have reasonably concluded the testimony, when taken in context, did not lead to any inescapable conclusions as to the substance of the out-of-court statements. Head v State, 4 S.W.3d 258 (October 27, 1999)

801(e)(2) admission by party opponent (Rule 801. Definitions)

• Unlike declarations against interest (Rule 803(24)), nonhearsay of the exception under Rule 801(e)(2) neither requires the statement be against the party’s interest nor corroborated. Like declarations against interest, however, the witness testifying to the party admission must have firsthand knowledge of the party’s admission; otherwise any testimony regarding the admission is hearsay. Consequently, because witnesses in instant case did not have first hand knowledge of def’s confession their testimony was inadmissible for substantive consideration under Rule 801(e)(2). Hughes v State, 4 S.W.3d 1 (June 16, 1999)

• Statements against interest under Rule 803(24) and admissions by a party-opponent under Rule 801(e)(2) are distinct. While statements against interest are admissible due to their reliability, admissions by party-opponents are admissible precisely because they are being admitted against the party alleged to have made those statements. Thus, that party cannot complain of an inability to cross-examine him/herself, and since s/he is their author, s/he is estopped from complaining of their untrustworthiness. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• Admissions by party-opponent are considered non-hearsay, rather than an exception to the general rule excluding hearsay. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

801(e)(2)(A) own statement (Rule 801. Definitions)

• Party admissions, unlike statements against interest, need not be against the interests of the party when made; in order to be admissible, the admission need only be offered as evidence against the party. Trevino v State, 991 S.W.2d 849 (May 12, 1999)

801(e)(2)(A) not error to admit (Rule 801. Definitions)

• It was not error to admit testimony that def told witness not to say anything to police and that def replied to his co-conspirator’s compliments with statement that he had learned to kill in prison, which were admissible under Rule 801(e)(2)(A) as the admissions of a party. Trevino v State, 991 S.W.2d 849 (May 12, 1999)

801(e)(2)(B) manifested adoption of statement (Rule 801. Definitions)

• In pros for capital murder it was not error to overrule hearsay objection and admit testimony under 801(e)(2)(B) where def was present when declarant made statements to witness describing circumstances of murders committed by declarant and def, and during conversation def listened to declarant's description of murders and surrounding events without disputing them, and said that witness "should have been there" because he "would have had some fun," manifesting def's agreement with declarant's statements. Paredes v State (January 14, 2004, No. 74,293)

• It was not error to admit testimony that, as conspirators drove away from murder scene, one of them commented to def that it was cool how he (def) had snapped victim's neck and used the knife. Because def indicated his agreement by his response to it (that he learned to kill in prison), the statement was not hearsay, but an adopted admission, admissible under Rule 801(e)(2)(B). Trevino v State, 991 S.W.2d 849 (May 12, 1999)

• Where oral statement was admissible under 38.22 sec. 3(c), but officer was unable to recollect the complete statement, it was not error to allow officer to read transcription of def’s statement, where def had signed officer's transcription of the oral statement. By signing officer’s transcription, def manifested an adoption or belief in its truth, making it an admission by a party opponent, and not hearsay, under terms of Rule 801(e)(2)(B). No merit to contention that the statement was hearsay and should not have been admitted as a recollection recorded because officer lacked the personal knowledge required by Rule 803(5). Moore v State, 999 S.W.2d 385 (April 21, 1999)

801(e)(2)(E) - statement of co-conspirator (Rule 801. Definitions)

• Testimony by co-def's girlfriend, of statements made to her by co-def, about instant offense, was not admissible under 801(e)(2)(E), where the statements did nothing to advance the cause of or facilitate the conspiracy. The statements were not made in an effort to enlist girlfriend’s assistance or cooperation, elicit information that could be used in the conspiracy, or do anything other than report the status of the conspiracy to girlfriend. Co-def was merely describing what was occurring or what had occurred. Because the conspiracy was not furthered by the conversations, the statements were not admissible under Rule 801(e)(2)(E). Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

801(e)(2)(E) - statement of co-conspirator - error (Rule 801. Definitions)

• Def's brother's out-of-court statement, admitted at def's murder trial, in which def's brother rhetorically asked why did def have to hit the victim, was not admissible under rule 801(e)(2)(E) as a statement by co-conspirator, where it did not advance the objective of the conspiracy to hinder def's apprehension, but the error was harmless where def's brother testified at trial consistently with that out-of-court statement and was subject to cross-examination. Def's brother testified at trial that he saw def strike the victim with the barbell, so his out-of-court statement was not the only evidence presented at trial identifying def as the one who struck the victim with the barbell. Also, the state did not mention the out-of-court statement during closing jury arguments. Therefore, the error in admitting the out-of-court statement did not have "a substantial and injurious effect or influence in determining the jury's verdict Byrd v State (December 14, 2005, No. PD-0235-04)

presenting issue (Rule 802. Hearsay Rule)

• Nothing presented for review on claim was error to admit written statement of murder victim over hearsay objection, where same info had been admitted without objection by testimony of officer who had taken statement. Reyes v State (September 11, 2002, No. 73,805)

• In considering a trial court's ruling on the admissibility of evidence, an appellate court must determine whether trial court abused its discretion; it must uphold trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Also, it must review trial court's ruling in light of what was before trial court at time ruling was made. In instant case, where court of appeals held that even though the parties treated the evidence in question as hearsay, it was actually not hearsay and, therefore, admissible, court of appeals failed to properly apply the abuse of discretion standard of review. Willover v State (March 13, 2002, No. 746-01)

• Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. As a general rule, hearsay evidence is inadmissible unless it falls within one of the many exceptions. In order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon. Where state, def, and trial court all assumed videotapes offered by def were hearsay and treated them as such, and no one at trial disputed that the videotapes were hearsay, it was up to def, not the trial court, to specify which exception to the hearsay rule he was relying upon or to specify how the evidence was not hearsay. Willover v State (March 13, 2002, No. 746-01)

• Def did not fail to preserve error as to admission of the complainant's videotaped testimony over hearsay objection by not objecting to live testimony by the complainant. Def was not objecting to the substance of the videotaped testimony, but to the form, i.e., that it was hearsay. Matz v State, 14 S.W.3d 746 (Mar. 22, 2000)

• Where def at trial objected to entire pen packet on hearsay grounds, but on appeal argued certain documents in the packet were hearsay, while conceding the other parts of the packet were admissible, no error was presented. Trial court was not required, in the face of a global hearsay objection, to search through the pen packet and segregate the admissible from the inadmissible. Ladd v State, 3 S.W.3d 547 (October 6, 1999)

not error to exclude (Rule 802. Hearsay Rule)

• Where def sought to admit the videotapes for impeachment purposes, specifically as prior inconsistent statements, and trial court excluded them saying, "I have no editing equipment" and "you can't show the tape in its entirety," trial court did not abuse its discretion. Because some of statements on videotapes were arguably prior inconsistent statements, others were arguably prior consistent statements, and many were arguably irrelevant and inadmissible hearsay, it was reasonable for trial judge to conclude that def was attempting to offer into evidence a videotape containing both admissible and inadmissible statements. When a trial judge is presented with a proffer of evidence containing both admissible and inadmissible statements and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial court may properly exclude all of the statements. Since def did not specify and extract the statements he wanted to use for impeachment purposes, it was not an abuse of discretion for the trial court to exclude the videotapes. Willover v State (March 13, 2002, No. 746-01)