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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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rule 803 (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• Where court of appeals held certain evid was admissible under both excited utterance exception and under medical diagnosis exception, and def on PDR only challenged excited utterance holding of court of appeals, failure to challenge alternative ground for court of appeals holding rendered issue raised being held not to be presented for review by court of criminal appeals on PDR. Lane v State (December 8, 2004, No. PD-1122-03)

803(1) present sense impression (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not error to restrict testimony, on state's hearsay objection, of defense witness relating statements made by def concerning offense, that "[def] had told [co-def] to leave all the guns at home. [def] had told [co-def] to leave all the guns there, that they were just going to take Joe's truck back, that they weren't going to go through with it." No merit to contention that this statement was admissible under the present-sense-impression exception to the hearsay rule. Def did not indicate what event or condition he was perceiving when he allegedly told co-def to leave the guns at home. Wood v State, 18 S.W.3d 642 (May 24, 2000)

• The present sense impression exception to the hearsay rule is based upon the underlying premise that the contemporaneity of the event and the declaration ensures reliability of the statement. The closer the declaration is to the event the less likely there will be a calculated misstatement. Brooks v State, 990 S.W.2d 278 (March 31, 1999)

• It was not abuse of discretion to admit testimony* over hearsay objection, under present sense impression exception, where declarant told witness that murder victim was being “jacked” soon after declarant exited the building. The time lapse between declarant’s perception of the event and his statement to witness was minimal. If error, it was harmless in light of other properly admitted evidence proving the same fact. Brooks v State, 990 S.W.2d 278 (March 31, 1999)

803(2) (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• The excited utterance hearsay exception permits admission of a hearsay "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Rule 803(2). It is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception. The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Salazar v State (January 17, 2001, No. 73,451)

803(2) rules (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• A useful rule of thumb is that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared "nervous" or "distraught" and that there was a reasonable basis for continuing emotional upset will often suffice. Apolinar v State (February 2, 2005, No. PD-1057-03)

• To determine whether a statement is an excited utterance, trial courts should determine "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition" when the statement is made. Factors that the trial court may consider include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Apolinar v State (February 2, 2005, No. PD-1057-03)

• The fact that some of declarant's statements are in form of responses to questions does not make them inadmissible under the excited utterance exception. Declarations made either in response to questioning or after some time had elapsed are only two factors in determining whether a statement is an excited utterance. Neither factor alone is dispositive. The key is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. Zuliani v State (February 5, 2003, No. 1168-01)

803(2) not error to admit (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not error for trial court to conclude statement of robbery victim made four days after robbery was an excited utterance, where a reasonable trial judge could have concluded victim was still under influence of startling event, the robbery, when he made the statement. No merit to def's contention that declarant's state of excitement must be continuous and that unconsciousness may not substitute for continuous stress of excitement. While intervening circumstances may diminish the stress from an exciting event, the opposite also can be true. The declarant's state of consciousness is a factor to consider in the analysis. Trial courts and reviewing courts should address this fact within the factors for a traditional analysis to determine whether a hearsay statement falls within the excited utterance exception. No merit to def's contention that if unconsciousness may be considered, declarant was not continuously unconscious from time of event until time of declaration. The declarant need not necessarily have been unconscious for the entire period between the startling event and the statement, so long as the record supports the reasonable conclusion that the declarant did not have a meaningful opportunity to reflect. Facts of instant case supported trial court conclusion that declarant had no meaningful opportunity to reflect between time when he was attacked and when he gave statement. Apolinar v State (February 2, 2005, No. PD-1057-03)

• It was not abuse of discretion to find that out-of-court statement was admissible as excited utterance where X testified to statement of declarant, and evidence showed that declarant had spoken on telephone with X's husband, and that the conversation was irregular with declarant whispering, "help me, help me, help me"; when X arrived, the police were already present, declarant was in a robe, wore no make up, and her hair was not done; declarant was described as withdrawn, with her head down "like a two-year old," "scared to death," or "real scared," and tired; declarant had not told the police what had happened and was reluctant to speak with them; it was only after X grabbed hold of declarant's hand while alone, looked her in the eye, and asked what had happened that declarant answered; declarant first responded that she could not tell, then said that def would get in trouble and then come back and get her; after a pause, declarant started to cry and then gave her version of what had happened; and declarant was described as being scared at this time. Testimony also indicated that at least twenty hours had elapsed from time of altercation to declarant's statement. A startling event had occurred. Although time between the event and statement was twenty hours, declarant had not been separated from def since the incident. Declarant's scalp injury, diagnosed as needing stitches, had not been treated and declarant stated that if def were jailed, she feared what he would do when released. Zuliani v State (February 5, 2003, No. 1168-01)

• It was not abuse of discretion to overrule hearsay objection, and admit under excited utterance exception, testimony that when witness was helping two-year-old child take her coat off, the child cried out in pain, and when witness noticed an injury to child's shoulder (shown to be a broken collarbone and a dislocated shoulder) and asked who had injured her, the child said "Robert did it." Amount of time between injury and statement was not shown, so could not be considered by appeals court. Testimony indicated child was upset and in pain at time of statement. Trial court could reasonably have found the statement related to a startling event or condition, that being the "startling event" of the child sustaining the injury or the "startling condition" of the pain the child suffered when her coat was removed, and that the child was still under the physical and emotional "stress of the excitement caused by the event or condition" when she made the statement to witness. Salazar v State (January 17, 2001, No. 73,451)

803(2) not error to exclude (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not error to restrict testimony, on state's hearsay objection, of defense witness relating statements made by def concerning offense, that when def and co-def returned from robbery, def stated that "[co-def] had threatened to kill [def's child] and [def's former girlfriend] if he didn't go along with it." No merit to contention that this statement was admissible as an excited utterance because he was "still under the stress, excitement and shock of the crime he had committed." Witness never indicated that def appeared excited or nervous when he allegedly told her that co-def had threatened him. Def had returned home and spoken with witness in the evening, at least ten to twelve hours after the robbery; during the interim, def and co-def had traveled to def's parents' house, removed the money from the safe, and shopped for cars and stereos. Given the fourteen-hour delay and def's activities after the robbery, the trial court did not abuse its discretion in rejecting def's excited-utterance argument. Wood v State, 18 S.W.3d 642 (May 24, 2000)

803(2) error (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• In pros for indecency with a child, testimony by victim's mother of statement to her by victim was not admissible as an excited utterance, where record failed to show victim's statements to her mother fit excited utterance exception. Her mother testified she cried the evening she returned from def's ranch [scene of offense], and that the following day she was angry. However, this alone is not sufficient to prove that victim was still dominated by the emotions, excitement, fear or pain of the event when she told her mother about the alleged acts. She had not been near def for over two days, and there is no evidence in the record that she was in the instant grip of violent emotion, excitement or pain immediately before or during her recount of the events. Without further evidence that she had no time or opportunity to calm herself and reflect upon the two-day-old events, court could not conclude that her statements to her mother fit the excited utterance exception to the hearsay rule. Martinez v State (November 2, 2005, No. PD-1654-04)

803(3) not error to admit (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• 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)

803(6) not error to exclude (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not abuse of discretion to exclude document on hearsay objection by state, and rule it was not admissible under the business records exception, where there was no evidence showing who prepared the document or whether it is a record of regularly conducted activity. If error, was harmless, where it was offered as mitigation evid in capital case, and def presented from other sources a significant amount of mitigating evidence that was cumulative of the mitigating evidence contained in the document. Halprin v State (June 29, 2005, No. AP-74,721)

803(6) harmless (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• In pros for capital murder it was error to admit hearsay within hearsay, where statements made by murder victim to battered women's shelter were admitted as business records of shelter. Admissibility under business records exception of 803(6) does not mean all information, from whatever source or of whatever reliability, contained within those business records is necessarily admissible. When a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception. Those statements must independently qualify for admission under their own hearsay exception, such as statements made for medical diagnosis or treatment, statements concerning a present sense impression, an excited utterance, or an admission by a party opponent. No merit to state's contention statements were admissible under 803(4) as statements made for purposes of medical diagnosis or treatment, where was no evid victim was specifically seeking medical treatment when she spoke with shelter employee. Error was harmless where was considerable other evid that def had been abusive towards victim, and was more than ample evid to support affirmative verdict on future dangerousness. Garcia v State (January 21, 2004, No. 74,294)

803(8) error (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was violation of right of confrontation to admit at punishment stage in capital case county jail "incident reports" and prison "disciplinary reports" under business records exception to hearsay rule [803(6)] where the reports contained statements which appeared to have been written by corrections officers and which purported to document, in the most detailed and graphic of terms, numerous and repeated disciplinary offenses on the part of def while he was incarcerated. It further appeared that, in writing the statements, the corrections officers relied upon their own observations or, in several instances, the observations of others. None of the individuals who supposedly observed appellant's disciplinary offenses testified at his trial. Given the highly damaging nature of the reports and the fact that the prosecutor repeatedly emphasized them during his closing argument, it was impossible to say beyond a reasonable doubt that the reports did not influence the jury in its assessment of def's future dangerousness. Russeau v State (June 29, 2005, No. AP-74,466)

803(15) (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not error to admit document under hearsay exception of 803(15). The document, entitled “Trial Inventory and Appraisement of Robert A. Fratta,” reflects that it was filed in the 308th District Court of Harris County, Texas, in the Matter of the Marriage of Farah Fratta and Robert Alan Fratta. Listed among the “Community Estate of the Parties” is a 1980 Jeep CJ-7 in the possession of Robert Fratta. The document reflects the existence of a lien on the vehicle with a balance of $4,500, and a net equity of $3,500. The document was filed in Fratta’s divorce as evidence of his and the deceased’s respective interests in various property. The document was executed under oath by Robert Fratta. The document does not “establish” or “affect” an interest in property in the sense of a deed or mortgage, but reflects Fratta’s interest in the property listed there and it “bears more than an adequate indicia of reliability.” The document was executed under oath and filed in a district court in connection with a matter that would ultimately affect the property interests listed in the document. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

803(24) (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• A number of factors are relevant to whether statement offered under 803(24) is sufficiently corroborated to indicate its trustworthiness: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts. The first two factors logically apply only when the defendant is the proponent of the statement against interest that tends to exculpate the defendant. When the statement is offered by the State to inculpate the defendant the first two factors are not relevant. Woods v State (December 15, 2004, No. AP-74,430)

• Testimony by co-def's girlfriend, of statements made to her by co-def, about instant offense, was admissible in part under 803(24). Her testimony in which she described co-def’s statements against his own interest was admissible, while the testimony relating his statements against def’s interest was not admissible under 803(24). Admission of testimony about his statements that were against his own penal interest were per se reliable and thus admissible under the Confrontation Clause, as statements falling within a “firmly rooted” hearsay exception. Error in admission of statements against def's interest was harmless, where girlfriend’s admissible testimony, the testimony of the victim’s neighbors, def’s two written confessions, def’s videotaped statement and walk-through of the crime scene, and the discovery of the murder weapon in def’s possession all rendered the inadmissible portions of girlfriend’s testimony relatively insignificant. Appeals court concluded beyond a reasonable doubt, in light of this evidence, that admission of co-def’s statements regarding def’s participation in the offense did not contribute to his conviction or punishment. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

• In order for a declaration against interest to be admissible under Rule 803(24), the statement must be self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statements. It is not necessary for the declarant to be unavailable as a witness. A statement which is self-inculpatory can be admissible against a defendant who was not the declarant of the statement. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

• The statement against penal interest exception is a firmly rooted exception to the hearsay rule. First, a statement made against one’s penal interest is extremely reliable. A co-defendant declarant is not likely to incriminate himself for a crime that he did not commit. Therefore, if a co-defendant declarant makes a statement incriminating himself and another co-defendant, there is a high probability that the statement is true. Second, such statements have tremendous evidentiary value. They can give reliable details to a crime that would otherwise never be learned. Adversarial testing of the co-defendant declarant rarely strengthens the reliability or evidentiary value of these types of statements. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

• Statements against interest, admissible under Rule 803(24), are considered reliable regardless of whether or not the criminal defendant is the declarant of the statement. The exception under Rule 803(24) is not limited to cases in which the criminal defendant is the declarant of the statements. Bingham v State, 987 S.W.2d 54 (Jan. 27, 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)

• If statements offered by state were properly characterized as statements against interest, they could not be held inadmissible in a trial against def solely on the basis that def was not the declarant of the statements. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• Any determination regarding the admissibility of a statement in accordance with rule 803(24) requires a two-step inquiry. First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Second, the trial court must determine if there are corroborating circumstances that clearly indicate the trustworthiness of the statement. If both these criteria are met, then rule 803(24) is satisfied. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• The standard for an appellate court’s review of a trial court’s decision to admit or exclude a hearsay statement under Rule 803(24) is whether the trial court abused its discretion. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• When appeals court reviews trial court ruling under Rule 803(24), the corroborating circumstances must be sufficiently convincing to clearly indicate the trustworthiness of the statement. The focus of the inquiry should be on verifying to the greatest extent possible the trustworthiness of the statement, so as to avoid the admissibility of a fabrication. When conducting such an inquiry, any number of factors may be considered, including: whether the guilt of the declarant is inconsistent with the guilt of the accused; whether the declarant was so situated that he might have committed the crime; the timing of the declaration and its spontaneity; the relationship between the declarant and the party to whom the declaration was made; and the existence of independent, corroborative facts. Evidence which undermines the reliability of the statement as well as evidence corroborating its trustworthiness may be considered, so long as the Court is careful not to engage in a weighing of the credibility of the witness. (citing Davis v State, 872 SW2d 743 (Tex. Crim. App. 1994)) Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• All evidence should be considered in order to determine whether there are corroborating circumstances clearly indicating the trustworthiness of a statement against interest. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

• Appeals court must conduct review of trustworthiness determination by trial court under Rule 803(24) by examining pertinent factors, favorable and unfavorable, which are relevant to corroborating circumstances, and by giving due deference to the trial court’s decision to admit or exclude the hearsay. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

803(24) not error to admit (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• In pros for capital murder it was not error to admit under 803(24) statements made by co-def to two witnesses over objection statements were not sufficiently corroborated to indicate trustworthiness where co-def spontaneously made the statements to X and Y, his acquaintances from coffee shop who knew victim but were not connected to commission of the murders; he made the statement to X prior to commission of the murders and made the statement to Y not long after commission of the murders; they were "street corner" statements that co-def made to his friends without any motive to shift blame to another or minimize his own involvement in the murders. Thus, the timing and spontaneity of the statements tended to establish their reliability. State also presented evidence of independent corroborative facts that verified the reliability of the statements. (X testified that he received a denied credit card charge for admission to a festival in the mail, and that the charge was in victim's name, corroborating co-def's statement to Y; the murders took place on the night that co-def said he had a job for def to do, corroborating statement to X.) The physical evidence and def's own admissions demonstrated that def and co-def acted in concert throughout commission of the offense. Woods v State (December 15, 2004, No. AP-74,430)

• It was not error to admit over hearsay objection, statements of co-defendant, under Rule 803(24). Because co-defendant/declarant’s statements containing “we” implicated him in the capital murder on trial, his statements were sufficiently self-inculpatory to be reliable. Co-defendant/declarant’s statements bore the necessary indicia of trustworthiness where (1) declarant’s guilt of the capital murder on trial was not inconsistent with def’s guilt (evidence at trial indicated they acted in concert throughout the commission of the offense); (2) they were seen together both before and after the offense, demonstrating declarant was situated so that he could have committed the instant offense; (3) declarant made the incriminating statements before he or def became suspects in the case; and (4) a majority of his statements were either spontaneously made or made in response to casual inquiries from (5) friends and criminal acquaintances not connected to the commission of the offense. Also, the State developed independent corroborative facts, which verified the statements. Dewberry v State, 4 S.W.3d 735 (October 20, 1999)

• Where none of evidence summarized in opinion of Court of Criminal Appeals was discussed by the Court of Appeals, and where instead, the Court of Appeals focused solely on the timing of declarant’s statements to officer and the possibility that she could have made them to shift blame or curry favor, and Court of Appeals ignored evidence which could have been viewed by the trial court as factors establishing their reliability, held: Court of Appeals erred in its conclusion of what constitutes “corroborative circumstances” under a Rule 803(24) trustworthiness analysis; and Court of Appeals erred in conducting a de novo, subjective review in its consideration of the admissibility of Rule (803)24 hearsay evidence. Bingham v State, 987 S.W.2d 54 (Jan. 27, 1999)

803(24) not error to exclude (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was not error to restrict testimony, on state's hearsay objection, of defense witness relating statements made by def concerning offense, that "[def] had told [co-def] to leave all the guns at home. [Def] had told [co-def] to leave all the guns there, that they were just going to take Joe's truck back, that they weren't going to go through with it." No merit to contention that this statement was admissible under the statement-against-penal-interest exception to the hearsay rule. The self-serving nature of def's statement that he did not want to participate in the offense outweighed the minor inculpatory significance of the statement. Wood v State, 18 S.W.3d 642 (May 24, 2000)

• It was not error to restrict testimony, on state's hearsay objection, of defense witness relating statements made by def concerning offense, that when def and co-def returned from robbery, def stated that "[co-def] had threatened to kill [def's child] and [def's former girlfriend] if he didn't go along with it." No merit to contention that this statement was admissible as a statement against interest, because def admitted his involvement in the crime. This statement tended more to exonerate than to inculpate def of criminal liability. Def clearly sought admission of this statement to support his duress defense, which if believed, would have entitled him to an acquittal. Thus, it falls outside the statement-against-interest exception. Wood v State, 18 S.W.3d 642 (May 24, 2000)

803(24) error to admit (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• Though state was correct that witness' testimony relating to def’s confession to that witness would qualify as a statement against interest, any statements first witness may have made to other witnesses concerning def’s confession do not fall within the parameters of Rule 803(24) because those other witnesses did not have firsthand knowledge of the confession. Hughes v State, 4 S.W.3d 1 (June 16, 1999)

803(24) harmless (Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial)

• It was error to overrule hearsay objection to admission of declarations* by def's wife to witnesses about def's conduct during offense, where they did not implicate declarant except to suggest her presence, which was not enough to render statements sufficiently against her interest to be admissible under 803(24). Error was harmless where the declarations did not contribute to def's conviction in light of other evid. Simpson v State (October 1, 2003, No. 74,029)