THE TEXAS LAW OF EVIDENCE
FRANKL! N HDI1ARD r~CCALLUM, JR.
TEXAS LAW OF EVIDE NCE
1.
INTRODUCTION
The Texas law of evidence is neither c ompl e t e l y sta t u -
tory, nor entirely common law.
It i s a comb inati o n of both .
When the legislature bas felt the ne ed to ex tend a n d c lar ify
(perhaps confusing ) the common l a w ru l es of e vi de nc e , i t h as
done so.
This paper· is a p resentation of Tex as e v ide n tiar y
rules, and is written with a view towa rd the needs o f s tuden t s
who desire a broad overview on the sub ject.
Wh ile n ot a ll
rules have been presented, the writer feels t ha t the maj o r
areas have been covered.
A.
Definitions
At the outset, it will perh a ps be help fu l to de fi n e
certain terms as these terms are def i ned b y Tex as l a w.
1.
The word evidence is define d as follo ws :
"evidence si g nifies that which demonstra te s , makes
clear or ascertains the truth of t he v e r y p oint i n
issue, eithe t on the one side or the ot h er."
San
Antonio Tr a ction Co. v. Hi g don, 123 S . W. 7 32 ( 1909) .
2.
Relev a ncY,as applied to · t es timony, me a n s , "tha t
(which) directly touches upon the i ssue which t h e
parties have made by the i r p leadings , so as to
assist in g etting at the truth of it • • • • It is
not necessary, however', that i t
sh ould in itself
bear directly upon the point i n issu e , f or, i f i t
be a link in the chain of evide nc e tendi n g to p r ove
the issue by re a son able infere nc e , i t may n eve r the l ess
2
be relevant."
3.
Id.
Kinds and Degrees of Evidence
a.
Primary and Secondary Evidence - "Primary
or "best evidence" is that kind of proof which
affords the greatest certainty of facts in
question under any possible circumst ances , and
all evidence falling short of such pr oof in
degree is "secondary" evidence.
Pettit v.
Campbell. 149 S.W.2d 633 (Civ. App .-Fort Worth
1941l.
b.
Direct. Indirect. and Circumstantial Evidence
Direct ~vidence is defined as "proof of facts by
!
witnesses who saw the acts done or heard the
words spoken, while 'circumstantia l evidence '
is proof of collateral facts a nd c ircumstances
from which the mind arrives at the conclusion
that the main facts sought to be established in
fact existed."
Glover v. Davis . 360 S.W.2d 924
(Civ.App.-Amarillo 1962).
c.
Prima Facie Evidence - is evidence "of a
fact (which is) merely such evidence as suffices
for proof of the f a ct until contr a dicted and
overcome by other evidence."
Willow Hole Inde-
pendent School District v. Smith . 123 S . W. 2d 708
(Civ.App.-Waco 1938).
d.
Cumulative Evidence
is " additiona l evi-
dence of the same kind. to the same po i n t . "
3
Linthicum v. Richardson, 245 S.W. 71 3 ( Ci v.
App.-B~aumont 1922).
B.
R~levancy
Admissibility of Relevant Evidence.
Evidence will be
deemed relevant and material only if it tends to prove or
disprove any fact in issue.
Nixon Constructio n Co . v.
Rosales, 437 S.W.2d 52 (Civ.App.-El Paso 1969).
There
must be some logical connection, either directly or by
inference, between the fact'offered in evidence and the
fact to be proved to make the former relevant to the
latter.
Pittman v. Baladez,312 S.W.2d 2 1 0 (19 58 ).
Hence,
whatever naturally and logically tends to establish a
fact in issue is "relevant" and admissible subject to
other rules of evidence.
Pound v. Po p ular Dry Goods Co.,
139 S.W.2d 341 (Civ.App.-El Paso 1940).
II.
RELEVANCY OF VARIOUS KINDS OF EVIDENCE
A.
Character in Criminal Cases
See Comment, Character in Evidence, 14 Baylor L. Rev .
59 (1962).
It is well known that a de fendant may introduce evi -
dence of his reputation for being a peaceable citizen.
defendant offers this type of evidence, and the state
unqualifiedly admits the defendant's g ood reputation for
being a peaceful citizen,
such evidence.
th~
defendant c annot intro duce
The fact has already been established by
the State's admission and hence evidence put forward by
the defendant would be cumulative and irre lev ant .
Da v is
If
4
v. State, 290 S.W. 1 63 (Crim. App . 1926) .
It shall be noted that the defendant must first "o pen
the door" on the is s ue of his c haracte r, thus placing his
reputation in issue.
If the State raises the issue of
defendant's reputation first, this can result in reversible
error.
Walker v. iState, 174 S.W.2d 974 (Crim. App . 1943).
However, in Texas when a defendant files an app1jcat ion
for a suspended sentence, he places his character in issue,
and the State may, while putting on its testimony in brief,
introduce evidence of the defendant's bad reputation.
Smith v. State, 283 S.W.2d 9 36 (Crim. App . 1955).
Once the defendant places his character in issu e ,
the character witness who at tests to the good reputation
of the defendant may be asked on cross-examination whether
he has heard of rumors or particular charges of acts of
the defendant that are inconsistent with t he trait of
character the witness is c a lled on to p rove .
Such testimony
is allowed, not to establish the truth of t h <'l charg es ,
but to test the witness' sincerety and knowledg e , and to
enable the jury to weigh this evidence.
200 S.W.2d 400 (Crim.App. 1947).
Kennedy v . St a te ,
The State cannot, however ,
ask the witness questions concerning character tr a its other
than those relating to the offense charged .
Kennedy , id .
At this point, one should realize that the State cannot
ask about specific acts of misconduct to evidence bad
character, except where the acts are in t he form of a
conviction or an indictment for other crimes.
Ro a ch v .
5
State, 74 S.W.2d 656 (Crim.App. 19 34 ).
In this same ' light, the prosecution may not show a
witness' personal knowledge of' alleged s peci fi c ac ts of'
misconduct on the part of' the def'endant.
132 S.W.2d 871 (Crim.App'. 1939).
\-Iest v. State ,
Also, i t is not necessary
f'or a character witness to be personally acq u a in ted with
the def'endant, as the opinion of' one's g eneral reputation
in the community is, by necessity, based upon hearsay.
Sanchez v. State, 398 S.W.2d 117 (Crim. App . 1968 ).
(The
character witness, a deputy sherif'f', testif'ied that def'endant's reputation f'or being a law-abiding citizen was bad .)
B.
Character of' Decedent in Homicide Cases
It is 'e stablished in Texas that a decedent's chara cter
trait f'or violence has probative value.
43 Tex. 242 (18751.
only.
Horb ach v . state ,
This trait can be proven by re put at ion
Watson v. state, 244 S.W.2d 515 (Cr im . App . 1952) .
However, wheri
a
def'endant raise s the af'f'irma tive de f'ense
of' se1f'-def'ense, he may of'f'er evidence of any f' act which
tends to prove the "bona f'ide" of' his belief' tha t he wa s
in danger.
He can rely on proof of' the des pe r ate char-
acter of' his adversary, or on proof' of' some specia l act
of' communication by the deceased to him, which indic a tes
his dangerous character.
(Crilli.App. 1947).
Henry v. State, 207 S.W.2d 76
If' the defendant off'ers evidence of'
the decedent's violent char acter to prove the reasonableness of' the def'endant's apprehension of violenc e , the
defendant must then show that he knew of t he dec eden t' s
6
reputed oharaoter for violenoe.
Earles v. State, 106
S.W. 138 (Crim.App. 1907).
Defendant must first offer proof of the deoedent·s '
oharaoter, thus "opening the door" on the issue.
Pollard
v. State, 45 S.W.2d 618 (1932).
C.
Evidenoe of Other Crimes
As a general rule, a person who is charged with a
orime is entitled to be tried on the merits of the charge
against him.
1931).
Verner v. State, 35 S.W.2d 428 (Crim.App.
Evidenoe that he has committed other orimes, which
has no tendency to prove any material fact in connection
with the crime oharged is insdmissible.
Urban v. State,
253 S.W.2d 38 (Crim.Ap • 1952).
Nevertheless, there are
exoepti,o ns to this general rule.
In a prosecution for
reoeiving and oonc~aling 25 goats which had been stolen,
the owner of 18 goats was permitted to testify that he
found his goats in the same barn where defendant kept the
25 goats for whioh 'he was charged of receiving and concealing.
In affirming defendant·s conviction the court
said:
• • • evidence of other.transaction similar
in charaoter and surroundings, occuring about
or near the time of the instant transaction,
would serve a useful purpose in showing the
attitude of the defendant. • •• On questions
of intent, system, motive or knowledge, such
proof usually becomes admissible of similar.
although disconneoted transactions. Shelby v.
State, 137 S.W.2d 1021 (Crim.App. 1940).
An even earlier case said that a series of other
similar acts is receivable to evidenoe a design, plan or
7
system only when they have such common features in both
preparation and commission as to render it probable that
the various acts are the result of a general plan of
which they are each individual manifestations.
state, 209 S.W. 675
(Crim~App.
1919).
Haley v.
(Prosecution for
murder of decedentievidence that defendant killed his
wife admitted to prove defendant killed the decedent so
that he might have decedent's wife to himself.)
Another exception to the general rule, supra, of not
allowing proof of ' other crimes is where motive or identity
of the defendant is in issue.
901 (Crim.App. 1968).
Ferrell v. State,429 S.vl.2d
There, defendant objected to evi-
dence introduced by the State showing that he was involved
in another robbery and was wearing certain apparel which
appeared to be the same apparel that the complaining witness in the case at bar identified.
The court allowed
the admission of the testimony for the purpose of showing
identity, motive or knowledge.
D.
Character in Civil Cases
See Note, Character of a Party of a Civil Suit, 13
Tex. L. Rev. (1935)
There is no right to introduce character evidence in
any civil action except where the character of a party
by the nature of the action is squarely at issue.
Grant
v. Pendley, 39 S.W.2d 596 (Tex.Com'n.App.-opin. adopted
1931).
Where character is in issue by the nature of the
action, that character cannot be proved by specific acts.
Swift & Co. v. Baldwin, 299 S.W.2d 157 (Civ. App .-Te xarkana
1957) •
E.
Character-Reputation:
Trait for Care or Skill
In certain situations, evidence as to character for
a trait or skill is admissible.
For example, where an
employee is injured by the act of another employee who
was reputed to be incompetent and reckless, it is competent to establish notice and knowledge on the part of
the employer of such qualities of his employee .
P. Ry. Co. v. JOhnson, 34 S.W. 186 (1 896 ).
Texas &
Further,
whenever the law of damages reco gnizes injury to reputation as one of the elements of recovery , plaintiff's bad
reputation may be offered in mitig a tion of damages.
For
example, defendant may prove plaintiff's tarnished re putation prior to publication of de fametory mat ter.
George
Knapp & Co. v. Campbel l, 36 S .W. 765 (1 896) .
F.
Habit and Cu s tom
It is established in Texas that the hab it or custom
of doing a particular act often has probative value in
determining a party's conduct on an occasion in question.
Walker v. Citizen's National Bank, 212 S.Vl.2d 203 (Civ.
App.-Vlaco 1948).
In certain circumstances, evidence of
custom will not be admissible.
One example of inadmis-
sibility is where ,evidence of a custom would show a
I
violation of a statute.
Mrs. Baird's Ba keries, Inc. v.
Roberts, 360 S.W.2d 850 (Civ.App .-Eastland 1962).
In this
case, . an action for personal injuries caused by a collision
9
of a motorcycle and a bread truck, def e ndant offered to
show the custom of its driver and other drivers of crossing
a highway clearly
~arked
with two yellow dividing line s
for the purpose of making a left turn.
As the statute,
Article 6701(d) §62 V.A.C.S., proscribed this particular
act, the court held evidence of custom contrary to the
statute would be inadmissible.
It is further recognized in Texas that when mail
is properly addressed, stamped, and deposited in a mail
box, then delivery is more likely than not to occur.
Border State r ,ife Insurance Co. v. Noble, 1 38 S.W.2d 119
(Civ.App.-El paso 1940).
Also, if delivery may be pre-
sumed from mailing, then the failure to mail may be inferred from non-delivery.
"This proposition , is valid
where the facts of mailing are issuable facts."
State, Id.
Border
McCormick & Ray, Texas Law of Evidence §70
at 126.
G.
Similar Happenings
See Comment, Admissibility of Similar Acts and Transactions as EVidence in Texas Civil cases, 24 Tex.
L. Rev. 351 (1946).
The question of whether evidence of similar happenings
, is admissible on the issues of notice or knowledge was
settled in Missouri K. T. & R. Co. v.
Ther~
Lon~
23 S.W.2d 401.
the court held that proof of other accident s in the
same place is admissible to show the dangerous character
of the place and whether defendant might have had notice
10
of those dange rous conditions.
Logically exte n din g this
view was Te xas & W.O.R . Co. v . Da vi s , 210 S . W. 2d 195
(Civ.App.-Reaumont 1948), which a lso a llowed such evi dence where proof was offe red that other a ccidents had
occurred during the five-yea r period prior to plai nt iff ' s
accident.
Proof of su ch numerous accidents was held rele -
vant on the issue o f defe nda nt' s knowl edge .
Othe r evidence
of similar transactions has been held admissible .
For
example, in a suit by the State to r estrain defendants
from charg ing usurious interest on lo ans , t es timony of
transactions occur i n g after t he fil i n g of t he su it was
admis s ible when the transactions were so clo sely asso ciated with the State ' s a ll egations th a t defenda nts were
engage d in the business of habitu a lly loaning money at
usurious rates, a s to indic a te a general plan or scheme .
"ilson Finance Co. v. Sta t e ,
341 S . W.2d 11 7 ( Civ . App .-
Austin 1960 l.
As to the adm issibility of e v idenc e rel ating to the
absence of ac cidents during a simil a r period , Pound v .
Popular Dry Goods Co., supra , adm itted such evidencc
when the identical g oods were involved.
The seller may
show that the g oods sold to othe rs wer e sa ti sf a ctory when
the buyer has introduced evidence tha t
the goods bought
by himself and others were uns a tisfactory.
H.
Pound , supra .
Compromise
See Bell, Admission s Arising Out of Comnrom ise - Are
They Irrelevant, 31 Tex. L. Rev. 239 (1953 ).
11
See also, Note, Settlement and Compromise - Adm issibility for Impeachment Purposes, 27 Tex. D. Rev.
555 (1949).
Generally, offers of compromise are not rel evan t on
the issue of the validity of the claim, and are not receivable as an admission.
If offers could be used as
evidence, it would tend to discourage efforts to settle
disputes which is contrary to public policy.
Scott, 425 S.W.2d 9 (Civ.App.-Texarkana 1968 ).
Otwell v.
However,
an independent admission of liability is admissible in
evidence even though coupled with an offer of compromis e.
Crowder v. Snorf, 343 S.W.2d 291 (Civ.App.-Austin 19 61 ).
There a letter was written by the attorney of one of the
makers of the note prior to the institution of t he sui t on
the note.
The letter, which recited property owned by the
maker, set out indebtedness on the specified note, and
stated that the maker would pay at least $250 monthly on
the note, was held admissible.
This rule, however, is not
applicable in a situation when the admission is so closely
connected with the offer tha t
they cannot be separated
to disclose clearly what the offeror had in mind ,
i. ~ .,
whether he is stating his belief as to a fact or whether
he is merely making a concession for the sake of negoti a tion.
Merchant's Cotton Oil Co. v. ACme Gin Co., 284 S . W. 6 80
(Civ.App.-Eastland 1926) (telegram reading "wire me your
price in cancellation of contract").
The court itself plays a vital role in the admiss ion
of this kind of evidence.
It is within the discretion of
12
the trial court to determine from surrounding facts and
circumstances whether a party's offer was in compromise
and settlement of difference or an independent admission
of liability.
Ditto v. Piper, 244 S.W.2d 547 (Civ.App.-
Fort Worth 1951).
In criminal cases, testimony that would show that a
defendant offered to plead guilty if the p rosecutor
would dismiss another charg e, has been held inadmis sible.
Stafford v. State, 675 S.W.2d 285 (Crim. ~pp . 19 34 ).
Testimony may also not be introduced to show that defendant had offered to plead guil t y but l ate r "with drew tha t
plea.
I.
Dean v. State, 161 S.W. 974 (Crim. App . 1 913 ).
Subsequent Rep a irs
Evidence of subsequent re pa irs a re not receivable
as an admission by defendant that he wa s negligent ,
~
Express Agency v. Spain, 249 S.W.2d 644 (Civ. App .-Austin
1952), for such is against principle and pu bl ic p olic y .
Gulf C.
& S. F. Ry. Co. v. McGowan, 11 S . W. 336 (1 889 ).
Such evidence is admissible to show conditio ns existing a t
the time of the in j ury, Winnsbor o Cotto n Oil Co . v . Carson,
185 S.W. 1002 (Civ.App.-Dallas 1916), to prove a substituted appliance, Stephenville N. & S. T. Ry . Co . v. Schr a nk ,
175 S.W. 471 (Civ.App.-Austin
1915), to show what effect
the instrumentality had on an in j ury, Texas & N. C . R . Co . v.
Anderson, 61 S.W. 424 (1901), or to prove subsequent r e pairs in rebuttal of any claim that the con dition which
brought about the injury could not be improved .
Cotton, supra.
\Vinnsboro
13
III.
JUDICIAL NOTICE
A.
Theory
Judicial notice or knowle dge is defined as "that
which is so notorious that everyone knows it, including
judges; therefore, is need not be proved."
Boothe v.
American State Bank, 57 S.W.2d 250 (Civ. App .-Amarillo
1933).
There are two type.s of judicial notice, mandatory
and discretionary.
The only rule in Texas requiring man-
datory judicial notice is Rule 184A, Texas Rules of Civil
Procedure (1967) (see Appendix A).
Discretiona ry judi-
cial notice is defined as that notice which judicial
precedent makes noticeable.
Moreno v. state, 143 S.W.
156 (Crim.App. 1911).
B.
Areas
1.
Judicial Notice of La ws
Texas courts are required to take notice of the
public statutes of this state, and all "facts" recited
therein.
Indemnity Insurance Co. v. Williams, 69
S.W.2d 519 (Civ.App.-Beaumont 19 34).
Courts will
not take judicial notice of special, local or private
laws, unless such statutes are made public acts by
their own provisions.
Caldwell v. Cro s se r , 20 S.W.2d
822 (Civ.App.-Amarillo 1928).
Furthe r, Tex as courts
are required to take notice of laws and public a ct s
of the United States, regulations and r es o lut i on s of
Congress, and proclamations of the Pr eside nt thereunder.
Martin v. Burcham, 203 S.W.2d 807 (Civ.A pp .-Fort \,orth
1947) •
14
2.
Political Facts
See these c ases and areas :
- foreign
governments:
Terrazas v. Donohue
275 S.W . 396 (1 925 )
Lukovick v . Johnston
228 S . W. 2d 327 ( Civ .
'J\pp .-Galveston 1950)
- elections:
- public
officials:
3.
Houston Printin Co. v . Tennant
7 S . W. 2d 7 2 Civ. App - J\u s tin
1931)
Business Pr actices
Courts in Texas will t ake j udici al no tice of
business practices.
Courts will notice th a t the
country is in a depression, Mu r phy v. Phil li ps , 63
S.W.2d 404 (Civ. App .-San Antonio 1933 ), and that
modern busines s institutions provide toilets for
employees and patr9ns.
Bleich & Co . v . Emmett , 295
S.W. 223 (Civ. App .-Galv eston 1927) .
4.
Historic a l Fact s
Judicial notice is a lso t aken of Vle ll-known
fact s of both general a n d loc al ch a r act er .
Hilliams
v. Castleman , 247 S .W. 263 (19 22 ).
5.
Life Phenomena
JUdicial notic e will be t a ken o f well - known facts
concerning the l ife , health, habits, and activities
of human beings.
Examples include notice o f t he
propensity of boys to climb trees , Texas General
utilities Co. v. Ni xon, 8 1 S . W.2d 250 (Civ . App .Beaumont 1935), of a woman's heal th when p re g nant
15
Norvell v. Norvell, 194 S . W. 2d 2 70 (C iv . App .- Amarillo
1 946 ), and that th e character of men who frequent
places where intoxic a ting li quor can be easily obtained is not expected to be the best,
Sur~iner
v.
State, 217 S.W. 145 (Crim. App . 19191 .
6.
Miscellaneou s
See Note, Radar Speed Measurinp, Devices , 12
Baylor L. Rev. 241 (1960).
Courts will also take judicia l notice that
whiskey, beer, a nd brandy , etc. are intoxicati ng and
h ave more than 1% alcohol by volume.
Buchanan v .
State, 25 S ;W.2d 839 (Crim. App . 1930) .
One court,
however, refused to take notice of the alcoho lic
content of "home brew."
~62
Col eman v. State , 1 8 S . W. 2d
(Civ.App. 1929).
Another area where judicial not i ce may be applied
is the area of scientific facts.
A g ood example is
found in Schram v. Pearl Oil Corp., 90 S . VI . 2d 846
(Civ. Ap p .-Austin 1936 ), where the court took notice
of the fact that oil or minerals c annot be located
by the mere use of a divining rod.
IV.
THE HEARSAY RULE
A.
Defined
It is well krlown that evidence of a statement made
out-of-court that is offered to prove the truth of the
matter asserted in the prior statement will be held inadmissible as a violation of t he h earsay rule.
However , a
16
statement may be hearsay for one purpose, but not for
another,
Sweeney v. Taylor Bros., 92 S.W. 442 (19 06) .
One of the best stateme nts of the he ars ay rule is found
in Winn v. Federal Land Bank of Houston, 164 S .W. 2d 864
(Civ.App.-Galveston 1942), wherein the cour t said that:
Evidence is hearsay when its probative forc e
de pends in whole or in p art on the competence
or credibility of some person othe r than the
the person by whom it is sought to be produce d .
The reasons given generally by Te xas court s in
refusing to admit hearsay evidence are two-fold:
(1)
lack of an oath, and (2) lack of opportunity to cros s examine and observe the declarant.
Maryland Ga s Co. v.
Davis, 181 S.W.2d 107 (Civ.App.-Galve s ton 1944 ) •
. B.
Admissibility of He arsay Ev idence
1.
Assertions by Conduct
The Texas courts have stated that sign l anguage ,
or an expressive gesture, · are substantially equivalent to verbal communication,. and a re, therefore,
hearsay.
I
Byrd v. State, 2 31 S.W. 399 (Crim. App . 1921) .
Also, evidence of either non-assertive or assertive
conduct is inadmissible to show the belief or opinion
of the declarant when offered to show tha t the belief
is true, Wells v. state, 67 S.W. 1020 (Crim. App . 1902);
Gillespie v. State, 166 S. W. 1 35 (Crim.App. 1914 ).
Even if the statements made are within the persona l
knowledge of a witness wh o would t es ti fy t o them,
they would still be inadmissib le as hearsay.
Atchison
17
T. & S. F. Ry. co. v. Francis, 227 S.W. 342 (Civ.
App.-Arnarillo 1921).
2.
Operative Facts
When
~ords
constitute a necessary part or the
cause of action or defense, they are known as
operative racts.
~ords
~hen
The
~riting
or utterance or t h e
themselves are the facts to be proven; a nd
evidence of such utterance s or
given by one
kno~ledge,
~ho
~riting s
are
testifies to them from persona l
the words are not hearsay. See First
National Bank or It a sca v. Watson, 66 S.W. 2 32 (1902 ).
3.
Bloodhound Testimony
In Parker v. State, 80 S.W. 1 0 08 (Crim. App.
1904), the court held that, in a prosecution for
murder,
~here
the issue was if defendant was the
killer, evidence that a bloodhound personally known
to the . witness to be trained and reliable for the
purpose of tracking
hu~an
beings, had followed
tracks from the scene of the killing to defendant's
dwelling, was admissible.
V.
EXCEPTIONS TO THE HEARSAY RULE
Not all exceptions are discussed, only major
exceptions are inclu de d.)
A.
Former Testimony
1.
Definition.
Statements made in evidence u p on
a previous judicial proceeding may be r e ceived in
a subsequent trial as evidence of the
tr~th
of suc h
18
statements where the witness who gave the evidence
upon the former hearing is now dead or unavailable.
The party against whom the evidence is now offered
(or someone else claiming under the same right or
title) must have had the opportunity to crossexamine the witness at the former trial upon the
same issues as those upon which the evidence is now
offered.
Lone Star Gas Co. v. State, 153 S . vi . 2d 681
(1941).
2.
Elements
a.
Unavailability of Witness
In 1910, the Court of Criminal Appeals
announced that testimony of a witness at a
former trial is not admissible in evidence,
in the absence of a showing that he is dead
or beyond the jurisdiction of the court.
Wy a t t
v. State, 124 S.W. 929 (Crim.App . 1910).
Part
of this requirement was later codified into
Article 39.12 of the Texas Code of Criminal
Proc'e dure (see Appendix B ).
For civil cases ,
the rule is substantially the same .
:
\.Jhite v .
'
Natural Gas Pipeline Co.,
444
S . W. 2d 298 (1969).
Insanity, physical inc apacit y , being beyond the
jurisdiction of the court , or a ct s of the
adverse party in
precludin~
a witness from
attending trial, are all sufficient to me e t
the requirement of un availabilit y .
Houston
19
Fire & Casua l t y Insuranc e Co. v . r'. r it t ai.n ,
402 S.W.2d 509 (19 66 ).
If a witne ss can't be
found, then there must be testimony sho"ling
that a diligent search for him was made .
Rothschild Co. v. Moore , 166 S .W. 2d 744 (Civ.
App.-Beaumont 1942).
b.
Opportunity to Cross-Examine
There must have been a n opp ortunity to
cross-e xamine the witness a t the former proceeding .
Hafer v. Prashn e r, 413 S . W. 2d 759
(Civ.App.-Corpus Christi 1967) .
c.
Identity of Issues
There must also be a sub s tantial i dentity
of issues between the prior proceeding and the
proceeding in Which the testimony i s sought to
be i ntroduced.
O)"le exa mple where the courts
have held there were substantial identity of
issues is Byrant v. Trinit y Universal Insurance
~,
4 11 S .W.2d 945 (Civ. App.-Dallas 1 967 ).
Ther e it was held that testimony of a prosecution witness in a prior cr imi n al proceed ing
against the insured for arson was adm i ssible
in a subsequent civil case to recover for f i re
loss.
Testimony of the witness (who died be -
tween trial #1 and trial #2 ) was that the
insured had asked him about me thod s for burning
his place of business, and the insured then
20
told him how he would burn hi s bu siness .
d.
Identity of Pa rti e s
See Comment, Id e nt i t y o f Par ti e s a s a
Requir eme nt for Admi.s s ion o f Pri or
Testimony , 2 Ba yl o r L. Re v. 172 (1 950 ).
As a general rule, the te s t i mony o f wit-
nesses introduced in another law suit b e twee n
different parties is inadmissib l e i n a s u b se quent suit.
Dunc a n v. Adams , 210 S. W. 2d 1 80
(Civ.App.-Beaumont 1948 ), a ff irme d , 215 S .W. 2d
599 (1948).
Thus, the rule for admi ssion o f
former testimony is that there mu s t be iden t ity
of parties betwee n the s u it s.
Ca mp b e ll v . Hi cks ,
83 S.W.2d 1013 ( Civ.Ap p.- For t Hor th 19 35 ).
B. . Dying Decla r a tions
See Wendorf, Po l ic e Educ a t i on a n d the TA W of Ev i denc e :
The Hearsay Rule, 17 Ba ylor L . Rev . 21..5 ( 1965 ).
In Texas evidence of dying declarat i o n s are admis sible ih a homicide prosecution eithe r for o r against
the defendant, as long as the requirement s o f Arti cle
38.20, Texas Code of Criminal Procedure ( 1965 ) are me t
(see Appendix C).
The cases construing Article 38 . 20 and
its predecessors have held that the "article lays d own no
new rule, but is merely declaratory of the common l a w
rules of evidence with relation to dying d e clara t ion s ."
Benavides v. State, 31 Tex. 579 (1869).
The r a t ion a le
21
for use of these declarations was enumerated in ,lebb
v. State, 106 S.W.2d 683 (Crim.App. 1937), wherein the
court said that:
"Dying declarations are ge n era lly
admissible, from the necessity of
the case, to identify the ac c used
and the deceased, to establish
circumstances of res gestae and
to show the transaction from which
death resulted."
For the admission of a dying declaration , a proper predie ate must be shown.
One case where a proper predicate was established
was Whitson v. State, 495 S . W.2d 944 (Crim.App . 1973).
There the declarant was shot during a s quabble with his
wife's ex-husband concerning visitation rights.
Declar-
ant was shot twice in the stomach, and underwent surgery
for his wounds.
A tracheotomy was performed, resulting
in his incapacity to talk.
He communicated with his
wife by writing messages on a pad .
the pad, "I know I am going to die.
what happened."
Decla~ant
wrote on
I want you to know
On each subsequent visit to the hospital
his Wife testified that declarant told her by writing
that he was going to die, and that the pain was so intens e
that "he prayed it would happen soon."
A case where the proper predicate was not established
was Crow v. State, 180 S.W.2d 354 (Crim. App . 1944).
The
case involved the prosecution o f a game warden who allegedly
had shot and killed the declarant.
A doctor who examined
and treated the declarant testified that the declarant
22
had no realization of impending death when he last
examined him the prior nig ht.
The next mo rn ing , de -
clarant had lapsed into a state of uncon sciousness.
That morning, however, the decla r ant 's wife was with him ,
and she testified that declarant had asked her to p ray
with him, and her test i mony a lso est a blished cer tain
circumstances which tended to show that the de c larant
believed he was about to die.
The court, however, relied
on the doctor's testimony and held an insufficient pre dicate was shown for admission of the decla r ation .
It is interesting to note tha t whene v er there is
doubt as to the law and f a cts of a dying declar a tion the
Texas courts hold that the jury shou ld be l eft untrammeled
to decide whether a proper p red i c ate had been laid , and
they should be instructed th a t
i s they do not so find
that a proper predicate h as been laid , they sh ou ld not
consider the declara tion.
Johnson v. State , 218
s .w.
496
(1920); Walker v. State , 2 14 S . W. 331 ( 1919) .
C.
Spontaneous Declarations
1.
Res Gestae
Usually Texas courts will u tilize the term
"res g estae" rather than spontaneous decl a r ations .
McCormick and Ray in their work on Texas eV idenc e ,
indicate that the term , "res g estae" is vague a n d
sometimes confusing.
means:
They sugg est that "res ge stae "
23
"(i)n its most general sense • • • express(es) the notion that testimony
cannot as a practical matter be confined strictly and barely to those·
items of evidence which have a log ical
bearing upon the issues. A witness
untrained in logical analysis must be
allowed to tell his story, and so
long as he does not stray too far, he
is allowed in describing a happe ning
which in some aspect is relevant, to
describe all of the occurrence in the
way natural to a n ordinary man. Such
a narration will almost necessarily
include many details, brought into the
witness's mind by the associative faculty,
which have no bearing u p on the ultimate
question at stake, but which so long
as they are not prejudicial, may well
be permitted. They could only be
avoided by requiring the testimony to
be confined to answers to question
similar to special issues propounded to
.iurors. Furthermore, these irrelevant
details even h a ve a positive value in
of1'ering opportunities to teRt the consistency of the story, a nd in lending a
picturesqueness and life-likeness to
the accound which enables a jury to
listen with interest. Consequently,
the barebones of the transact ion are
allowed to be clithed with living flesh ,
and, however immaterial, the time and
place of the transaction described, the
acts, gestures, statements, and appearance
of the participants, and other similar
circumstances which went to 1'orm the
complete picture in the witness's memory
are allowed by trial judges to be recounte.d.
2 McCormick & Ray, Texas Law of Evide nce
§911 at · 678-79 (1956).
2.
Elements
It is established that the declarant need
not be unavailable as a witness, and may himself
testify as to his declaration.
265 S.W.2d 110 (Crim.App. 1953).
Wof1'ord v. St ate ,
Defendant was
convicted of indecent fondling of a minor .
The
24
minor was permitted to testify as to ste.tomen ta made
by her to her mother within a few minutes after the
incident occurred.
The statement made wa s :
"Hama ,
there I s a man been here and he I s done something to me."
Further, a res gestae statement must have been made
under such circumstances to r a ise a reasonable presumption that the same was a spontaneous utterance
of thoughts created by or springing out of the transaction itself.
Talbot v. Hogg, 298 S. vJ.2 d 883 (Civ.
App.-Amarillo 1957).
In the application of the rule,
the element of proximity of time of the st a tement to
the startling event is important, but admissibilit y
does not depend solely upon proximity in time.
The
declaration is g enerally admissible when the declarant is still dominated by emotion from the happening
of the startling event.
The a dmissibility of the
statement is necessarily controlled by the particular
circumstances of each case.
Ci ty of Au s tin v. Johnson,
195 S.W.2d 222 (Civ.App.-Austin 1946).
An exception to the rule - of res v.ostae is
Houston Oxygen Co. v. Davis, 161 S .W.2d 474 (Com 'n.
App. 1942, opin. adopted), wher ei n the court seemingly
adopted present sense impressions.
As the decla ration
was prior to the startling event, the stat eme nt
would not seem to have had the same de g ree of trust worthiness as if it were made under the influence of
the starling e vent.
The court indicates that the
25
statement was admissible nevertheless on grounds
that are three-fold:
(1) the safe g uard of no lapse
of memory, (2) lack of time for a calculated misstatement, and (3) the fact that the statement will
usually be made to another who can serve as a check
on the declarant's ob se rvations.
Moreover, other rules on the subject of re s
gestae suggest t ha t the decl a rant' s statement cannot
prove the startling or exciting event .
Truck Insu r-
ance Exchange v. Michling, 364 S.W.2d 172 (1 963 ).
Also, the question of admissibility of a res g est ae
statement is a question of law for the court.
Southern Surety Co. v. Weaver, 273 S . W. 838 (Com'n.
App. 1925, opin. adopted), and , as such , involve s
the discretion of the trial court.
Keystone-Fleming
Transport Co. v. City of Tahok a , 3 15 S.W.2d 656 (Civ.
App.-Amarillo 1958).
D.
Admissions
1.
Definition.
An admission is defined as any
statement made or act done by one of the parties to
an action, or on hi s behalf, which amounts to a p rior
acknowledgment by such party tha t one of the facts
relevant to the issues is not as he now cl a ims .
Addison v. Ball, 262 S.W. 877 (Civ.App .-Fort Worth
1924).
The statement made must be a declaration of
facts as distinguished from interpretations of f ac ts
or mere conclusions of law.
Odom v. Lacy , 405 S . W. 2d
26
718 (Civ.App.-Eastland 1966).
Further, per s on a l
knowledge is not a prerequisite.
Snyder v. SChin ,
388 S.W.2d 208 (Civ.App.-Houston 1965).
2. '
TYpes
a.
Adoptive Admissions
This type or admission has been received
with ravor in Texas.
The court in Mu s e v.
McWilliams, 295 S.W.2d 6Bo (Civ.App.-Amar illO
1956), rev'd on other g rounds, 300 S.W.2d 643,
cites rrom 31 C.J.S., Evidence 5294 at 1058:
• • • where derinite statement or
a matter ' or ract, a rrecting a party
or his rights , is made, the statement, a lthough inadmis sib le as evidence or the racts states is, in
connect,ion with a total, or partial
railure to reply, admissible as
tending to show a concession or
the truth or the racts sta t ed ,
according to the decisions on the
question to the same extent as an
expres s admission.
However, the ract or silence whi le under arrest
or in conrinement may not be used.
Ir admitted ,
this constitutes rever s ible error.
Redding v.
state, 197 S.W.2d 357 (Crim.App. 1946).
The
rationale generally given is that the accused
is not called upon to speak under the circumstances.
Moree v. State, 183 S.W.2d 166 (Crim.
App. 1944),
b.
Judicial Admissions
Judicial admissions are regarded as the
pleadings in the case.
Kirk v. Head, 152 S.14.2d
27
726 (1941).
When a pleading has been abandoned,
superseded or amended, it cease s to be a judicial admission.
It does, however, remain a
statement that was once seriously made, and can
be introduced into evidence as an admission.
Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d
173 (Civ.App.-San Antonio 1962).
c.
Conduct as an Admission
It is also recognized in Texas that evi-
dence of conduct may be received into evidence
as an admission, especially where the.re is an
attempt to supresstestimony.
In this situation,
the attempt to supress testimony is itself evidence and may properly be shown by the adverse
party.
city of Austin v. Howard, 158 S.W.2d 556
(Civ.App.-Austin 1941).
d,
Vicarious Admissions
See Note, Admissibility of Declarations
of Agent Against Principal, 3 Baylor
L. Rev. 594 (1951).
See also Note, Admis sions by Agents Hi thin
the Scope of Their Authority, 4 're x. L.
-
Re~. 506 (1926).
Texas courts have recognized that declarations of an agent or employee are admissible
against the principal employer as an exception
to the hearsay rule provided that the ·f acts
28
bring them clearly within the exce ption.
Not
only must the ract or agency be established
berore the declarations can be admitted, but
also, there must be established that the declaration was one or fact, as distinguished from
opinion.
Texas General Indemnity Co. v. Scott ,
253 s.w.2d 651 (1952).
This type of admission
. is particularly significant in slip and fall
cases.
In Weingarten, Inc. v. Reagan, 306
S.W.2d 879 (Civ.App.-Waco 1963), a store patron
slipped and rell on a g reen bean that
the floor.
Afte~all)a
vJaS
on
store employee said
that, "she had told the boy to remove those
beans."
The court held the statement admissible
as proof that the employee knew that benas
were on the floor.
Assuming the fact of a g ency has been shown,
assertions of an agent are admissible against
his principal when there is a showing of the
agent's express or imp lied authority to make
assertions.
Edwards v. Montgomery
\~a rd
270 S.W.2d 432 (Civ.App.-Beaumont 1954).
& Co.,
If
there is no evidence of the authority of the
one who made the statement, or no sho'''ing t hat
the statement was made in connection with some
authorized act, the court will not receive the
statement as an admission agains t an alleged
29
principal.
Southl and Corp. v. Doss . 4 08 S . VI . 2d
557 (Civ.App.- San Antonio 1 966) .
As noted supra. the fact of agency must
be shown as part of the p redic ate in order to
admit the statement.
Agency cannot be shown by
the declarations of an alle ge d age nt when he
was an agent.
Deaton & Son v. Miller Hell
Servicing Co •• 231 S.W.2 d 944 (Civ.A pp .-Amari llo
1950) •
e.
Co-cons p ir ators
See Note . Acts and Declara tions of Co Consp irat ors Aft e r Consumma tion of the
Conspir acy . 11 Tex. L. Rev . 390 (1 933) .
Texas. ·too. follows the rule admitting
admissions by co-conspirators.
When the te st i-
mony est ab lishes a con spiracy . the acts an d
declarations of a co-cons p irato r made in fur therance of the common desi g n. a re a dmissible
against all the conspir a tors.
Vititoe v . Jenkins .
54 S.W.2d 166 (Civ.App.- San Antonio 1932) .
f.
Predecessor·s in Title
It is the general rule that statements by
a grantor in derogation of his title . and made
after his deed has been e xecuted and deliv e red.
will not be received in evidence.
But . dec l a r -
ations of a person ma de while in p o ssession
of
property. although in t he ir n a ture self- serving
30
and hearsay. are a dmissible to exp l ai n t he
nature and character of his p oss e s s i on and
to show the extent of h i s i nt er es t an d the
character of his holding .
He nde r s on v.
Jimmerson. 2 34 S.W. 2 d 710 (Civ.App .-Texarkana
1950).
E.
Deolarations Against I nte r e st
Declarations against interest are a dmi ss ible in
Texas in civil cases when (1) t he declar ant i s unav a ilable as a witness. and ( 2 ) the s t atement i s ag ain s t the
declarant's pecuniary. property. or pe n a l int er c s t ( in
a limited situat:!.on).
The same rules ar e a pplic al:: }(; for
criminal cases exce pt that there i s no r equ iremen t of
unavailability.
Harrison v. s t a t e . 83 S .H. 699 "( Cr i m. A,., n .
1904).
As to the first requirement. un av a ilability o f t he
declarant. it has been held that the requireme nt i s
fulfilled where t h e declar ant is dead. Dunc an v. Sm i t h .
393 S.W.2d 798 (1965). extremely ill. Gr iffit h v. Sau l s .
14 S.W. 230 (1890). or ins ane. Ne w Ams t e rdam Cas u a l ty v.
First National Bank of Gilme r. 1 34 S . W. 2 d 4 70 (C i v. App.El Paso 1934).
Also. a cla im by the de clarant of h i s
privilege not to testify on the ground th at it mi ght
incriminate him has been held to satis fy the r equ ireme nt
of unavailability.
Liberty Mutua l Insur ance Co . v . Heard &
Jones Drug store, Inc •• 446 S.W.2d 911 (Civ. App .-Amarillo
1969).
31
The second requirement is that the statement must be
against interest.
Texas courts will generally exclude
dec,l arations against penal interest, except that declarations of a third party admitting his guilt of the crime
for which the accused is on trial are admissible when
the State is relying solely upon circumstantial evidence,
when the guilt of such party is inconsistent with the
guilt of the accused, and when the facts show that such
party was so situated that he might have committed the
crime.
F.
Cameron v. State, 217 S.W.2d 2 3 (Crim.App . 1949).
State of Mind
No single Texas case sets forth the specific re-
quirements for admissibility under this exception.
Piece-mealed together, the cases indic a te tha t a declaration must describe a present mental state, if material to the cause.
Examples include Prater v. Trader's & General Insurance Co., 83 S.W.2d 1038 (Civ.App. 1935), where it was
held that declarations made by a party showing the purpose of a journey are admissible if the decl a r a tion
appears to have been made without circumstances of suspicion, purports to evidence declarant's existing st a te
of mind with reference to the purpose of the proposed
journey and is made near enough to the incident involved
as to furnish reasonable assurance that there h as been
no change of purpose in the meantime.
Ano ther interesting
case is Falmer v. State, 445 S.W.2d 546 ( Civ.App .-Fort
32
Worth 1969).
attorney.
There the case involved a diRbarment of a n
The principal point of error assigned was that
a civil suit for disbarment s hould have been stayed as
there were two criminal charges pending , one of wh ich
arose out of the same trans a ction as the civi l suit for
disbarment.
Collaterally, a motion for a neW tria l was
made, since one of the jurors repeatedly stated duri ng
void dire that she did not want to be a juror.
The juror's
sister-in-law was p ermitted to testify that the ju ror ,
after receiving her summons for jury duty, said , "the
defendant ought to be stopped from practising law."
The
court upheld the admissibility of th e statement on the
ground that it constituted an express ion of mental condition or state of mind at the time of making the statement.
In wills c ases when there is an a lle gat ion of undue
influence in the execution of the will, the
~ e xas
courts
have followed the rule proclaimed in In Re Ba rt e l ' s Est a te ,
164 S.W. 859 (Civ.Anp.-Galveston 1914) :
"Undue influence cannot be pred i cated
alone upon the fact that t he will is
unfair or unjust in some of its pro vi sions, and for that r eason un nA tura 1.
There must in addition to th is , be
some evidence direct or circumstantial
tending to show tha t some person in whom
the deceased imposed confidence and
trust, and who was in a p o sition to
exercise influence over the mind of
the testator, exercised that influence
in dictating the disp o s ition of the
property made by the will."
An illustration of this rule is
~te wart
v. Shoemake , 22 5
33
S.W.2d 873 (Civ.App.-Fort Worth 1949).
There, a portion
of the testator's will recited that he intentionally
omitted his children from taking under the will.
This
portion of the will would be admitted, provided that there
was independent evidence of undue influence, to show
testator's state of mind.
C.
Physical Condition
Texas recognizes that descriptive statements made
to a physician to ienable him to understand the declarant's
physicial condition are admissible to show the basis of
the physician's opinion as to the nautre and extent of
the declarant's injury, if the physician is not examining
the party in order to testify as a witness.
Coca-Cola
Bottling Co. v. Kraeger, 239 S.W.2d 669 (Civ.Ap p.- Austin
1951).
Powell v. sanoers, 324s.W.2d 587 (Civ. App.-
Texarkana 1959) says that regardless of whether a doctor
is consulted for purposes of treatment or testifying , he
is entitled to relate his observations, objective symptoms
found, and opinions based thereon.
If, however, the doctor
is employed for the express purpose of testifying , subjective symptoms related to him will be inadmissible as
well as any opinion based thereon.
Brotherhood of Lo co -
motive F. & E. v. Raney, 101 S.W.2d 863 (Civ.App.-Austin
1937).
H.
Prior Identification
See
24
Tex.Jur.2d, Evidence §564 at 76-78.
34
I.
Past Recollection Recorded
Texas courts, like other jurisdictions, permit the
use of memos or notes so that a witness might refresh
his recollection.
However, if the witness cannot re-
fresh his recollection by
usin~
the memo, the writing
itself may be admitted into evidence, subject to the
following elements:
(1) the witness must state that the
matters contained in the memo are correct, Johsnon v.
Ashby, 18 S.W.2d 726 (Civ.App. 1929); (2) the memo must
have been made by the witne ss or by someone under his
direction, Harper v. Highway Motor Freight Lines, 89 S.VI.2d
448 (Civ.App. 1936); (3) the memo must ha ve been made at
or near the time of the transactions ·, Vlinters v. '"i nters,
282 S.W.2d 749 (Civ.App. 1955); (4) the memo must be
shown to the adverse party for his inspection, Jackson v.
state, 314 S.W.2d 97 (Crim.App. 1958); and (5) after the
witne s s states he has no independent recollect io n of the
facts contained therein, the writing itself may b e admitted, Inland Waterways Pipe Line Co. v. Lipstate, 78
78 S.W.2d 240 (Civ.App.-Fort Worth 1934).
J.
Business Records
(See Appendix D)
Also see Comment, Opinion Entry Problems in Medical
Records, 19 Baylor L. Rev. 122 (1967).
And, Lowrey,
Admissib ~li ty
of Hospital Records as
an Exception to the Hearsay Rule in Texas and
Federal Courts, 8 Baylor L. Rev. 209 (1956).
35
VI.
IMPEACHMENT AND CROSS-EXAMI NATI ON
A.
Examin a tion
See Note, Co nclu si v e n ess of Evidence on Party
Introducin e; It, 9 Bay l or L . Rev . ( 1957) .
Texas follow s the s am e proc edu ral rules regarding
the examination of wit ne s ses as do most other jurisdic tions.
Initi a lly ther e c an b e no leading questions on
direct examination.
S t. J ohn v . Mo orman , 2 72 S . W. 223
(Civ.App.-El paso 1925 ).
For a ques t i on t o be objec -
tionable as le a ding, the ques ti on mus t not only embody a
material fact, but a lso must s u gges t the desi r ed answer .
Williams v. Crai g , 252 S. W. 8 7 6 (Civ. App .-Dall as 1923) .
There are certain e x cep t i o n s to the genera l rule
that no leading que s tion s may be asked on direc t.
When a
witness in a crimina l cas e is an unwilling or hostile
witness, it is permissib le to ask leading
Jordan v. State, 221 S .W. 2d 44 9 (C rim . Ap " .
q ~e stion .
lql ~ 9) .
An
. example of t his exc eption, Petry v. Stat e , 258 S . H . 2d
808 (Crim. App . 1953 ), is whe re a p ro s ecu t r ix in a r ape
case, while quit e wi ll i n g t o t e ll t h e district attorney
the facts and deta ils of the al l e g e d s e x u a l act, ma y
become fearful and unwill ing to te s t ify a t trial .
Another exception· p e rmi t t i n g the use o f leadi ng
ques·tions occurs wh en it appea rs t hat a wi tness is bi a sed .
Missouri, K.
& T. Ry. Co. v. Mc Anane y , 80 S . W. l o6? (Civ .
App. 1904).
Leading questions may be a sked i f they are
not prejudicial to the obje cting party, i. e ., askin g
36
leading -questions to a witness for purpos e s of cla rity.
Washington v. state, 21 S.W.2d 524 (Crim. Ap p . 1929) ; Hill
v. State, 161 S.W.2d 80 (Crim.App.
19l~1).
Further, le ad ing
ouestions may be used when they are in a i d of a witness'
recollection.
Gulf, C.
133 (Civ.APp. 1904).
English
langua~e
& S. F. Ry. Co. v . Hall , 80 S . W.
If a witnes s has problems with the
and cannot underst and the questions due
to this limitation, the trial court is g iven wide discretion to permit leading questions.
Dave Lehr , Inc . v. Bro,m ,
58 S.W.2d 886 (Civ.App.-Waco 1933).
Leading questions, of
course, may be asked on cross-examination.
The scope of cross-examination may exten d to any
matter relevant to the issues.
The only limitation i s
-that of relevancy, and even this limitation will not be
applied with the same strictness for cro ss -examination as
with an examination-in-chief , i.e., direct examination .
Grocer's Supply Co., Inc . v. Stuckey , 1 52 s . I-J . 2d 911
(Civ.App.-Galveston 1941).
-B.
ImpeaChment
See Note, Prior Felony Conviction I s Inadmissible
Unless It Involved -Moral Turpitude, 4 3 Tex .
-
r..
Rev. 1106 (1965).
Also see Note, Admissibility of Evidence
Sug~esting
Insurance to Show Bias and Prejudice of Witness ,
8 Baylor L. Rev. 209 (1956).
Article 38.28, V.T.C.A. governs impeachment of witneeses in criminal cases.
By the Article, ei the r party
37
may impeach his O>m witness.
However, impeac hment may
not occur until the witness has stated facts that a re
injurious to that party, and the part y · has been surprIsed by the witness' testimony.
S.W.2d 776 (Crim.App. 1972).
The
Norwood v. f'.tate , [,86
n n~.1
Jimi tation on
a party insofar as the method of impeachment that may
be used is that no evidence of the witnes s ' bad character may be introduced.
The rule of civil cases is much the same :
if the
witness gives testimony which to some degree disproves
the case of the party who calls him, then this party ,
if surprised, ma y offer impeaching evi dence .
Federal
Underwriters Exchange v. Rattler, 192 S.W.2d 942 ( Civ .
App.-Texarkana 1946).
Methods that can be used in b oth areas include :
(1) showing that the witness is unworthy of beliaf, e . g .,
bias or interest, Sparks v. Johnson, 235 S.W. 975 (C iv .
App.-Beaumont 1921); (2) use of prior inconsistent
statements, Gulf, C. & S. F. Ry. Co. v. Harrell, 270 S . W.
187 (Civ.App.-Austin 1923); and ( 3 ) use of other witnes ses ,
Pruett v. Mabry, 268 S.W.2d 532 (Civ.App.-Beaumont 1954 ).
A good reason for the court's refusal to admit evidence
of the witness' bad reputation for truth and ver acity is
in Sparks, supra at 976, wherein the court said that:
(a) party is prohibited from doing this
on the theory that when he puts a wi t ness
on the stand he vouches for his veracity,
etc. and, therefore, he should not be
permitted to show his own witness to be
38
otherwise, by showing his general
r e putation for t ruth a nd v eracity
to be bad, or by s u ch g ene ra l evidence as would have the same ef fe c t.
This . rationale is in line with mos t
..
j u r isdi cti ons .
In the impeachment process, Te x as courts hold
that the inquiry (cros s -examina ti on ) s h ou l d be confined
to the witness' g eneral re putation fo r
trut h and v e r a cit y ,
and should not ext e nd to h is g enera l mo ra l c ha r a ct e r.
Garza v. Garza, 109 S.W.2d 1079 (Civ. App .- San An ton io
1937).
Hence, character e vidence of the witnes s' morals
are expressly inadmi ss ible, du e t o i ts collatera l na t ure .
The test for determining whethe r i mpea c hme nt e v ide nc e
relates to a collatera l ma t ter thu s l y ju s t ifying i t s
exclusion is whether t h e part y s e e king t o introduc e it
would be entitled to prove i t a s a par t of his case .
Hanover In s uranc e Co. v. John son , 39 7 S . 11 . 2d 901!. (Civ .
App.-Waco 1965).
(Action on workma n' s compe n f.at i on claim
where claimant said his wife h a d t o help him out of the
car.
Defendant offer e d evidenc e t hat pers on claimant
was living with wa s not his wi fe.
the evidence.
Tr ial cour t excluded
On a ppea l, the court no ted that a wi t ness
may not ordinarily be cross-e xamine d concerning specific
sexual irregularities to affect hi s cre d ibi lity .
The
court then stated that the exclude d ev ide nce would have
value in determining whether cl a iman t was te lli ng the
truth, but ·then said that t h e tri a l c ourt h a d wi de dis cretion in these matter s .)
39
Many times in t he tri a l p roc ess , witnesses are asked
about particular instance s of mi s c onduct and whe t her they
have been convicte d of a cri me .
Whe n the witness is not
a party, the rule is tha t t he question p o sed must be so
framed that the wi tness is re quired to test i fy from onl y
g enera l reputation .
St. LOu i s Southwestern Ry . Co . v .
Ga rber, 11 S.W. 227 (Civ.App . 190t) .
As a general rul e
evidenc e as to s pecific a cts a ffec t ing reputat i on a r e
not admissible.
Ho we v e r, to impeaCh the witness himself ,
if he has been convict e d of a n o ffe n se involving moral
turpitude, or when he h a s b ee n l ega l ly charged with such
an offense and wh ile on the s t and admits his gui l t , such
matters are admis s i ble as affecting his credibility .
~unch
v. Texa s Employer ' s Insurance As s o. , 209 S . W. 2d 657
(Civ.App.-Te xarkan a 194 8 1.
Evi d e nc e of pr i or convi c t ions or indictments not
so remote in time as t o have no probative valu e in indi cating present cha r a cte r, may b e r eceived for i mp e a chment
purpo s es.
Yeager v. St ate , 256 S . W. 914 (Crim . P,pp, 1923) .
This rule has been qualif ied t o s om e extent by Article
38 .29, C.C.P., V. A.C.S.
Th e r u l e pron ounced there for
criminal cases is r eproduc ed in Append i x E att a ch e d .
In civil cases, the rul e i s sim ilar
to Article 38 . 29,
l d . I t should be emphas i zed tha t t he c r i me , to be admissible for purposes of i mpeachment , must also be one
involving moral turp itude .
As so ciation Employers Lloyds
v. Tullos, 197 S.W.2d 2 10 (C i v. App .-Reaumont 1946).
An
40
example of a case where the crime was one not involving
moral turpitude is Travelers Insurance Co . v . Jordan ,
339 S.W.2d 235 (Civ.App.-Dallas 1960) , where the cour t held
that liquor law violations do not involve moral turp itude.
In proving a conviction, if
th~
wit ness is beinv,
cross-examined, and is asked if he has ever been convicted of an offense involving moral turpitude, if he denies
such, the state is not bound by his answer, and may, by
proper proof, show the truth of the matter.
"[right v.
State, 281 S.W. 864 (Crim.App. 1926); Simmons v. State ,
456 S.W.2d 66 (Crim.A pp . 1970 ).
The conviction would be
proven by introduction of the indictment, etc., and the
judgment of the court plus the sentence.
produces the best evidence.
This method
Texas Employer's Insurance
Asso. v. Curry, 290 S.W.2d 767, (Civ. App .-El Paso 1956).
C.
Impeachment:
Prior Inco nsistent Statements
Prior incons is tent statements may n ot be used as
substantive evidence, i.e., they c an not b e used for the
truth of the matter asserted therein.
Texas I ndemnity
Insurance Co. v. Alexander, 174 S.W.2d 109 (C i v.App.Galveston 1943).
If received solely for imp eac hment
purposes these statements do not violate t he hearsay
rule.
1954).
Forbes v. Hejkal, 271 s.w.2d 435 (Civ. App .- Dallac
A witness cannot be impeached by a showing that
he made inconsistent statements on a collateral or imma terial issue.
Orchin v. Fort Worth Poultry & Egg Co.,
43 S.W.2d 308 (Civ.App.-Dallas 19 31).
41
The case of Thompson v. Denh am , 250 S . vl . 2d 460 (Civ.
App.-Galveston 1952) delineates the predicate to be l aid
for the admissio n of the state ment:
" • • • that such s tateme nt was not admi ssible unless the witness had first
been questioned conc ernin g it and had
been given an opp ortunity to ma ke such
explana tion concerning the contradictory ch a racter 'of such statement with
his subsequent testimony ."
Thompson, at 463.
If the witness denies making the prior st a teme nt, then
evidence can be introduced to show that the statement ,las
made.
Gause-Ware Funeral Home v. McGinley, 2 1 S.W.2d 347
(Civ.App.-Fort Worth 1929).
D.
Impeachment:
Rehabilitation
In criminal cases, the Court of Crimina l Appeals has
held that when a witness has been impeache d by u se of
,
prior inconsistent statements, that witness may be rehabilitated by showing that shortly after the trans action, and before any motive existe d to fabricate , the
witness made statements consistent with hi s testimony a t
trial.
Rains v. State, 146 S.W.2d 176 (Crim. App. 1940 ).
In civil cases, the rule is qualified to the extent t hat
the witness must be charged'with recent fabrication.
If
the witness is so charged, then the party o f fer ing the
witness may introduce prior consistent statements to
corroborate the witness
l
testimony, provided such declar-
ations were made at a time when he had no motive t o mis represent the fact stated by him.
Ba r more v. safety
casualty Co., 363 S.W.2d 255 (C i v.App.-Be a umont 1962 ).
VII.
OPINIO N, E XPERT I SE & EXPERTS
See, McCormick, Some Ob servations Up on the Opinion Rule
and Expert Testimony, 2 3 ,T ex . L . Rev . 109 (1945 ) .
See also Comment, The Expert Wi tn ess :
Hea rsay v. Opinion ,
24 Baylor L. Re v. 108 (1 972) .
As a g eneral rule, a witness must testify from pe r sonal
knowledge , and c annot Rive conclusions or opini on s .
the function of the jury .
~,
This is
Dunlap Hardware Co . v . E . F . Elmberg
252 S. W. 1 098 (C i v.App .- kmarillo 1923 ) .
(lay) witness i s a llowed to gi v e his
facts on which his opinion is ba sed .
opinio~ ,
If a non- exper t
he mus t
sta te the
Tyrrel l - Comb e:::t R;;c,-,ty Co .
v. Adams, 29 1 S .W. 252 I(Civ. App .-Beaumont 1927) .
I
The eff e c t
of this rule is that t he opinion of a non-e xpert wi to'1e flS \; i 1.'not be received when the data ob served by him c an be full y
presented to the jury s o th a t they may be put in an
e QL< r , l
position with the witness to draw their own conclusions and
inferences.
kmerican Natural Insurance Co. v. Nussbaum, 230
S.W. 1102 (Civ.App .-Galveston 19?1).
For an expert to be able to testify on a particul ar subject ,
the subject must be beyond the knowledge of the average layman ;
therefore, he would aid the jury in their task .
Marshal l, 257 S.W.2d 312 (Civ. App .-Austin 1953 ).
Sternenberg v.
Whether a
witnes s has qualified as an expert is primarily a de te rminati on
for the trial cour t , as the purpose of inquiry i s for the c ourt
to determine the admis sibility of the e vi dence .
El Pas o Elec -
trio Co. v. Gambrell, 292 S.W. 527 (Civ. App .-El Paso 1927) .
The expert may give his opinion b a sed on per s onal knowledge
43
of the f a cts, or h e may be asked a hypothetical question
which inc orporates sufficient facts on which he may give his
opinion.
Texas
Indemn~ty Insur a nc e Co . v. "Tilson , 281 S .H .
289 (Civ.App.-Wa co 1926).
If his opinion i s based on per-
sona l knowledge , no hypothe tic al question is r equired .
Te xas
Employers ' Insurance Asso. v. Morgan , 187 S . W. 2d 60 3 (Civ.
App.-Eastland 1945).
As to the form of the hypothetic a l que s tion, each part y
h as t he rig ht to a n opinion from ' the expe r t on a ny hypothe tical reasonably consi s t e nt with the evidence.
In putting
hypotheticals to his witne ss, the attorney may assume t he f a cts
in evidence in accord a nc e with hi s the ory, and he need not state
all the f acts as they have b een proved .
FUrthe r, the expert
may be asked for his opinion based on facts t estified to b y
several witnesses, p rovided there is no ma t e ri a l co nf lic t in
that testimony.
Da v i s v. St ate, 114 S . W. 366 (Cr im . App .- 1908 );
Aetna Casual t y & Surety Co . v. Sc ruggs , 41 3 S .W. 2d 416 (eiv .
App.-Corpu s Christi 1967).
To digress, if a l ay witn ess g ives his opinion, there are
circumsta nces when he need not state all
the v a r iou s facts
upon which his opini:on is bas e d; his o p i nion being rega r ded
in the nature of a shorthand rendition of the f a cts .
Te xa s
Cities Gas Co. v. Gomez, 160 S .w. 2d 74 (Civ.App .-Galveston
1942) (Testimony by witness of her phys ic al c ondHi on before
gas eruption).
VIII.
PRESUMPTIONS _ BURDEN OF PROOF
A.
Burden of Proof
1.
I
Burden o'f persuas ion
The party on whom this burden rests has the
duty of producing in the mind of the trier of fact
a positive conviction in his favor.
If he fails to
sustain this burden, the berdict must go against
him.
1 McCormick & Ray, Texas Law of Evidence §42
at 36-37.
An example
~f
the above occurs when the
evidence is evenly balanced.
Barton v. Tharp, 27
S.W.2d 885 (Civ.App.-Te xarkana 1930).
Where t he
burden is placed is generally dependent on Hhich
party has the affirmative of the issue.
Bldg. & Loan Asso. v.
San Antonio 1934).
~osa,
Capitol
72 s . W.2d 936 (C i v. App .-
The exception is that the burden
of proving a fact rests u pon the party having pe culiar knowledge of that fact.
Rowe , v . Colorado &
S. R. Co., 205 S.W. 731 (Civ.A pp .-Amarillo 1918) .
2.
Burden of Production
This burden is the burden of producing suffi-
cient evidence to avoid a directed verdict .
1
McCormick & Ray, supra, at 42-43.
3.
Shifting of the Burdens
Since the burden of persuasion is dependent
upon which party has the affirmative of an issue,
this burden never shifts.
Miller v . F a llwell , 42
S.W.2d 644 (Civ.App.-Amarill0 1931).
The p roduc tion
45
burden does shift, acc or ding to the nature a nd
strength of the proof offered in s upport or denial
of the main fact to be established.
Donoho v .
Carioile, 214 S.W. 55 3 (Civ.App.- Da llas 1919) .
B.
Presumptiono
See Note, Presumptions in Ci vi l Cases , 24
Bay~ or
L. Rev. 282 (1972).
Also see, Soules, Presumptions in Crimina l Cases ,
20 Baylor L. Rev. 277 (1968 ).
1.
Defined
A presumption is a "rule" which requ ires or per-
mits the assumption of the existence of one fact from
the existence of another fact.
Geffert v.
Yo r kt o~m
Independent School District, 290 S . W. 1083 (Com'n.
App . 1927).
When a presumption exists, it is not
evidence, but rather is a rule of procedure which
vanishes when positive evidence t o the contrary is
produced.
A true presumption i s a rul e of J. a w Hhich
attaches to fact s certain proc edural
Empire Gas & Fuel Co. v.
Mue ~8e ,
c o~seq uences.
143 S. W. 2d 763
(Com'n.App. 1940, opin. ad o;) te d ).
2.
Certa in presumptions
a.
Death
See, Article 5541 V.T.C.S. (197 3) .
b•
Legitimacy
See, Te'xas Family Code Symposium ,
Te ch L. Rev . at
1~15
5
Texas
(1974) .
(common l aw pr esumption of lep:itimacy i f chi. Jd
i s born d uring wedloc k )
46
IX.
WRITINGS
A.
Be Rt Evid e nc e Rul e
Whe n the cont e nt s of a
wr it i n~
are i s i ssue , the
orig inal writing i s t he bes t e vi denc e , and is required
to be produced.
Pe ttit v. c ampbe l l , 149 S .VI . 2d 633
(Civ.App .-Fort Vlorth 1941).
I f a party cannot produce
the orig inal, it mu s t b e s h own that the
wr i tin~
itself
was lost and was not fou nd a f ter a di l i ge nt search , or
that it is in the po s se s sion of t he o pposing party,
and p roper notice h as b ee n g iven to p r oduce it , and that
part y h a s f a ile d to p rodu c e .
If n one o f thi s is sho,m,
the contents c a nnot b e prov en fr om the writing .
Mi lle r
Mana geme nt co., Inc. v. St a t e , 159 S . H. 2d 218 ( Civ . App .Galveston 1942).
Further, i n Texas , there are no de g rees
of secondary evidence.
Simp,s o n Bank v . Smith , 114 S . VI .
445 (Civ. App. 1908 ).
B.
Authentic a ti on
In order to p rove wr i tt en i ns truments, they mu st be
produced in cou rt wi th a witness who c an i dentify and
authenticat e t hem.
Fire Assn . of Philde l ohia v . DaCamara ,
85 S . VI . 2 d 338 (C i v. App .- san An t o ni o 19 35 ) .
Fur the r, the
writing must b e v e r ifie d b y witnesses who have personal
knowledge that the wri t ing i s corre c t.
Ha rlen- Elzy- Ran da ll
Co. v. American Fru i t Growers Co., 7 S . lV . 2d 132 (Civ . App .Waco 1928 ).
Article 37 37{b), V . T .C. S . g ove r ns questions conc e rn i ng
evidence of handwriting .
The statu te r eads as follows :
47
"In the trial of any civil cas e , i t shall
be c ompetent to give evidence of hand writlng by comparison, made by experts
or by the jur y . The standard of comparison offered i n evide nc e Joust be
proved to the satisfaction of the judge '
to be genuin e before allowing same to
be compared with the hadnwriting in
dispute."
He nce, the statute r equires a predicate in the adm ission
, of the comparison signature, and the c ases so hold .
Nass
v. Nass , 224 S.W.2d 280 (Ci v . App .-Galveston 1949 ).
X.
PRIVILEGE
A.
Attorney- Client
Se e , McCormick , The Scope of Privilep;e in t:'1e
Evidence, 16 Tex . L. Rev .
447
~n ,., 0 ;'
(1 938) .
See also, Note on Clarke v. State 32 Tex . L. Rev .
615 (1954).
And, No te, Confidential Communj,cations - At t orn e yClient Relati o nship , 1 So . Tex . L . J . 1 09 ( 1954) .
Article 38 .10, C.C. P. , V.T.C.A . g overns the attorneyclient privilege
t~
criminal matters.
The statute re ads :
"All other persons , except those enumer ated in Articles 38 . 06 ( insane p ersons
or children), 38 .1 01 ( person involved
in treatment of drug abuser s ), and
38 .11 (hu sband- wife) ~:' , whatever may
be the relation ship between the defendant and witness, are comp etent to
testify , e xcept that an attorney at
law shall not disclose a communication
made to him by his client during the
existence of that 'relationship, nor
disclose any fact which cam e to the
knowledge of such att orney by reason
of such relat ion ship ."
i~(Note:
All persons d escrib ed above in parenthe si s were
added. )
48
Williams v. Willi ams , 10 8 S . W.2d 297 ( Civ. App .- Amarll1 o
1937) held that Article 38 .l 0 's pr e d e c essor , Ar tlcle
713 V.A.C.C.P., was applicable to civil c ase s as we ll
as criminal cases.
The statutory requirements are:
(1 ) be f ore a commu-
nication to an attorney is pr i vileg e d , it mu st appear
that the communication wa s ma de b y a c lie nt seeki ng
legal advice from a lawyer in his ca pa city as s uc h , and
the communication must relate to the pur p o s e s f or wh ic h
the advice is sought, and d i rect or circum st ant ia l e v i dence must indicate a de s ire in t h e client for c o nfidenc e
and secrecy.
Ba llard v. Bal lard, 296 S.W. 2 d 811 (C i v.
App.-Galveston 1956); a nd (2) t he r e l ati onship of a tt or neyclient must have existed in f act, F i rst National Bank of
San Antonio v. Mitchell, 362 S.W.2d 1 98 (C i v. App .-Vlaco
1962) •
1.
Examples
There is' no priv ileg e i f a third party overhears
or is a particip ant in the communi c ations .
State, 261 S. W.2d 2 3 9 (Crim. Ap p . 1 9 53 ) .
Clark v.
In the
drafting of wills, the knowledge gained by the
attorney is privileg ed duri ng the l i f et i me of the
.testator.
After death, the a ttorn ey ma y t e st ify as
to any facts affecting, the execut i on or cont en t s of
the will.
Krumb v. porter, 152 S . H. 2d 495 (Ci v . App .-
An tonio 1941).
2.
Who can Claim Privileg e
49
The privilege is personal to the cli en t and may
be claime d by him alo ne,
the attorney,
It cannot be claime d by
Krumh, supra .
It may, of course , be
claimed b y the client's heirs and represent a tives .
Hines v. Howell , 15 S . W.2d 1 060 (Civ.App . 1 9 29) .
B,
Phy sician-P atie nt
There is no rule of a
in Texas. · Caddo Grocer y
physi~ian - patien t p rivile ~ e
& Ic e v. c arpenter , 285 S . W. 2d
470 (Civ,App .-Austin 1955),
C.
Psychiatrist-Patient
Article. 46.02 § 2 (f)(4) C.C.P., V. A. C . S . provides a
ps y chiatrist p rivilege in limited circumstances whe n it
appears to the court that a defendant might pot e nti a l l y
be incompetent to stand trial .
This Article p r ovides t h at
the court may app oint a psychiatrist or other qualified
expert to examine th e accused and assist the court in
determining his competency.
The exp e rt may testify in
court as to the re sults of his examination.
He may not ,
however, t es tify a s to any admission of gui lt y made by the
. ·accused during the course of that examina tion .
Hence ,
a limited p rivil ege is provided by statute .
In Ballard v. state , 5 1 9 S.W . 2d 426 (Crim . Ap p . 1975) ,
defend a nt was examined b y a court-appointed expert in
order that the court could determine his compe tency .
Th e
e xpert testified in the hearing to determine c ompetenc y
as to the results of his exami nation and
te~tified
to
an admission of g uilt made b y t he accused during his
50
e x a minat ion.
Defe n dan t objected to the adm ission of t h e
expert ' s t e st i mony re garding defendant's a ll ', ,·, c.: a dmis s ion
of g uilt an d the court sus tained the objection.
On a pp e a l
the court a g re e d with t h e trial court' s ruling on this
p oint of evid e nc e s t a ting that the admission by the defendant of his gu i lt was a confession which, under
Article 38 . 2 2 C . C.P ., V. A.C . S. requires that the confession b e in writing , and alternatively Artic le ,. u . 02
§2(f)(4) make s such an a dmission of guilt privileged
i nforma tion.
D.
Prie s t - Peni t e nt
Se e Article 3715a V. A.T. S . i n Ap pendi x F .
E.
Husb a nd- Wife
In criminal ma tters, t h e comlnunicat i on of h u s ban d -
wife is governed by Article 38 .11, C .C. P . , V . A. C . S .
(See Appendi x G)
In civil ma tt er s , c onfidential c ommun icat i ons a r e
g overned a s b etween h u s b and and wife by
A r ~ic le
3715
V. T.C.S. which r eads :
"The h usb and or wi fe o·f a pa rt y to a
suit or p roc eeding , or who i s i nte~e s t e d
in t he i ssue to be tried, s h al l not he
incomp e tent to t es t ify t he rei n, exc e pt
as to confi dent i a l c ommu nicat i on s b e tween such husb a nd a n d wife ."
The c ases co nstruing these two st atu tes hav e he l d t h a t
statements made by a husb a n d to his wif e in th e nrc se n c e
of others do not come within the rule of p r i v iJ.e p: c(;
communications, Lawler v. St a t e , 9 S . VI . 2d 2 r;<") ( Cr i m.
51
,A pp. 1927), and those third persons ma y te s tify a3 to t h e
statements made.
Matlock v. s tate, 373 S. W.2d 23 7 (Crim.
App. 1963).
XI.
SCIENTIFIC AND DEMONSTRATIVE EVIDENCE
Results of polygraph tests are inadmissible, even
..though the parties stipulate to its use, as Texa s courts
feel that the test is not a reliable medium of evidence.
Romero v. State, 493 S.W.2d 206 (Crim.App. 1973).
(Romero presents a g ood review of the cases in this a rea.)
B.
Sodium Penothal
See 35 Tex. L. Rev. 600.
C.
Blood Tests
See Note, Admission of Blood Te s t Re s ults, 19 Ba ylor
L. Rev. 158 (1967).
Blood test results are admissible to p rove allege d
intoxication if (1) consent is first obt ained, Tr ammell v.
State, 287 S.W.2d 4 8 7 (Crim.Ap p. 1956) ; and (2 ) p ro perl y
trained personnel administer the test.
Bro"Yn v . St a t e "
240 S.W.2d 310 (Crim.App. 1951 ) • . Breathaly ze r 3 a re subject to the same rules.
Fluett v. State, 33 S.W.2d 144
(Crim.APp. 1960).
D.
Experiments Out of Court
Evidence of ,a n experiment made out of court is
I
admissible when there is substantial similarity betwe e n
conditions existing at the time of the occurr e nce g iving
rise to litigation, and at the time the expe riment is
52
conducted ; identical conditions are not r equired .
Kirk
v. Bennett, 456 S.W.2d 191 (Civ. App .-Vla co 1970) .
E.
In-Court Exhibitions
See Comment, Blood, Bruise s & Photographs , 1 So .
Tex. L. J. 282 (1954).
See Note, Gruesom Photog raphs of
Corp~ e
Anmitted
as Evidence, 40 Tex. L. Rev. 284 (1961 ).
Exhibitions of a child to the jury or othe r trier
of fact appear to be admissible if the child i s not too
young.
In Hilton v. State , 53 S ••I . 113 (Crim. App . 1 89 9) ,
the court held that proof of resembla nce between a
seven-months-old child to its reputed father was inadmissible to estalbish paternity.
Photographs showing the body of a victim at the
scene of a homicide were held inadmissible in Shaver v.
State, 280 S.W.2d 740 (Crim. App . 1955), (no re ason was
given in the decision).
An opposite holding vIa s reached-
in Alcorta v. state, 294 S.vl.2d 112 (Cr-im. App . 1956).
The rationale was' that photographs which shed ligh t
on the sj.tuation and are an a id to the jury shou ld be
admissible and excluded only when no legitima t e pur pose
is served, where the juror's minds mig ht be inflamed ,
and when the photogr aphs might tend to cause the re turn
of an onerous verdict.
Five ph otog raphs showing 32 stab
wounds were admitted in this c as e.
53
XII .
MISCELLANEOUS
See Comment, The Admission of Printed Matter as a n
Exception to the Hear say Rule , 1 9 Baylo r L . Rev .
280 (1967).
See also, Magnus, Psychiatric Evidence in the Common
TflW Courts, 17 Baylo r L. Rev . 1 (1 965 ).
APPEl'IDIX A
Rule 184
D1STIliCT AND COUNTY COURTS
many that deferred part of purchase
price was sum smaller than that shown
by written instruments dcc1ared on and
that parties agreed to defendant's
pay~
mcnt ot sum constituting usurious in~
terest for carrying his debt for such
Part 2
(or injuries and property damage allcg·
edly sustained in South Dakota automo·
bile accident, even though Jaw ot South
Dakota included doclrine of comparative
negligence. Flaiz v. Moore, Sup.1962,
359 S.W.2d 872.
balance was admissible in accordance
with common law rule of evidence un-
der which written agreement may be
varied by parol evidence. Bond Auto
Loan v. Burch, Civ.App.1943, 171 S.W.
2d 154.
3.
Comparative negligence doctrine
Whi.le contributory negJigence ordinarily precludes a recovery under Texas
law, doctrine of comparative negligence
does not violate any public policy ot
Texas. and Texas court
w~s
4.
Subpoena
Subpoena to compel production of
document may be issued at any time
during course ot trial. Dobbins v. Gardner, Civ.App.1964, 377 S.W.2d 665, ref.
n. r. e.
Where instrument is produced in court
in response to subpoena, court may order that it be made available to counsel
for examination and use in evidence. Id.
therefore
not precluded {rom enterl;) il"!inr. transitory tort action between nonresidents
For notes of decisions under Sla lute, see
Vernon's Ann.Civ.SL
Rule 184a. Judicial Notice of Law of Other States, Etc.
The judge upon the motion of either party shall take judicial
notice of the common law, public statutes, and court decisions of every
other state, territory, or jurisdiction of the United States. Any party
requesting that judicial notice be taken of such matter shall furnish
the judge sufficient information to enable him properly to comply
with the request, and shall give each adverse party such notice, if any,
as the judge may deem necessary; to enable the adverse party fairly
to prepare to meet the request. The rulings of the judge on such
matters shall be subject to review. Promulgated by order of June 16,
1943, effective December 31, 1943; amended by order of October 10,
1945, effective February I, 1946.
lIistoricaI
~ote
Source
New rule, effective December 31. 1943. derived from American Law Institute's
Model Code of Evidence, Rules 801 to 806.
Original rule
"The judge may of his own motion, and upon the motion of either party shall.
take judicial notice of the common Jaw, public statutes, and court decisions of every
other state, territory. or jurisdiction of the United States, provided that the } url~r.
shall inform the parties ot the tenor at such matter to be judicially no liced lJ ,' in l'h,
and afford each ot them a reasonable opportunity to present to h.im inro r m,,: ;ull relevant to the propriety ot taking such judicial knowledge or to the tenor of the matter
to be noticed. Any party requesting that judicial notice be taken of such matter
shall furnIsh the judge sufficient infonnation to enable him to properly comply with
250
EVIDENCE
s<c. 9 '
Rule 184a
e request, nnd sholl give each adverse party such nolice. if any, as the judge may
lh
necessa ry. to enable the adverse party to fairly prepare to mee t s uch request.
dccm lings of the judge on such matters shall be subject to review, and the review.The ruurt in its discretion may take judicial notice of the matters herein provided
InJt ~hcthcr or not they were judicially noticed by the trial judge."
'or.
IDtG amendment
Eliminated provisions empowering trial judge and reviewing court to act on
their own motions.
Comments of Advisory Committee
"[Attorneys) appeared before the committee [in 1945] and arg ued
for the outright repeal of this rule. All of the members of the
ISupreme] Court stated that they had no objection to repeal of the ru le
i! the committee thought it advisable to do so. However, the committee
voted unanimously to retain the rule, but to amend it." 8 Texas B.] . 406
(1945) .
\"i~orousty
Opinions of Subcommittee on Interpretation of Rules
Applicability to federal law
The purpose of this rule is to ·permit T exas Courts to tak e judicial
notice of the common law, public statutes or court decisions of other
.tates or territories. The Rule does not extend to, nor does it change,
Any existing principle of judicial notice of federal law. Prior to the eflective date of the rules, state cou rts could take judicial notice of federal
.1.lute5 and deci sions, and this is unchanged, 8 Texas BJ, 174 (1945),
Pl.eading forei gn law
Pleading the law of fo rei gn s tates and other jurisdict ions referre d to
in this rule is not necessa ry. If the tr ial . , , :,r l takes judicial no tice in
.uch a case, the parties must be held m ova lll s Ih clcfo r or put on notice
bc:Corchand as required in the rule. If they so move or are put on notice,
the trial judge may consider th e matter and come to a conclusion u pon
it. In the absence of the indicated procedure the ordinary rule hereto(are obtaining in Texas will apply. That .is, the law of Texas will govern. In the absence of the condition which sets in force the exception,
the Texas common law rule will apply. 6 Texas RJ. 500 (1943); 8
Tex.s B.J. 37 (1945).
Library References
C,J.S, Evidence § 18 et seq,
~. Vfcst.'B: Key No. Digests, Evidence €==I35.
McCormick and Ray, Texas Evidence. §§ 8. 99. 152, 153. 173.
Stayton Texaa Forma, § 4956,
251
I\PPEND I X B
ARTICLE 39 .12
Predicate to Read
Deposition s taken i n criminal actions "hal J not be read
unless o ath be made th a t the witness resides out o f the S tate ;
or that since his deposition was t aken , the vli tness haG died ;
or that he has r emoved beyond the limit s of the State ; or that
he has been preven te d from attending the court through the act
or agency of the de f endant ; or by the act or agency of any
pe rson whose ob jec t wa s to -de p rive the defenda nt of the benefit
of the testimony; o r that by reason of age or bodily in fir mity,
such witness cannot attend .
When the deposition is sought to
be u sed by the Sta te, the oath may be made by any credib l e
person.
When sought to be used by the defendant , the oa th
shall be made by him i n person.
APPRNDIX
r:
Dying Declaration s
ARTICLF. 38 . 20
The dying d e claration of a deceas e d ,'Arson may be offered
in evidence, either for or
~ainst
a defendant cha r F,ed with
the homicide of such deceased pe r son , under the restrictions
hereafter provided .
To r e nder the der.lnrations of the deceased
competent evidence, it must be sati s facto r ily proved:
1.
That at the tfime
of makin g such de c lar a tion he
,
was conscious of approaching death , and beli e ved there
was n o hope of recovery;
2.
Th a t
such d ec l a r a tio n was voluntarily made , and
not through the persuasion of any person ;
3.
That s uch declaration was not made in answer to
. interroga tori es ca lculated to l ead the de cea sed to make
any particular statement; and
4.
That he was of sane mind at the time of making
the declaration.
Al'PF.NDIX D
Art. 3737e
. Art. 3737e.
EVIDENCE
Title 55
Memorandum or record of act, event or condition; abo
senCe of memorandum or record as evidence
Competence ot ,record
8S
cvltlcnce
Section 1. A memorandum or .record of nn act, event or condition
shall. insofar 8S relevant. be competent evidence of the occurrence of th~
act or event or the existence of the condition if th~ judge finds that:
(a) It was made in "the regular course of business;
,(t) It was the regular course of that business for an ~mployee or rep;'
. resentative of 8uch business with personal knowledge of such act, event
or condition to make 8uch memorandum or record or to transmit information thereof to be included in 8uch memorandum or record:
(c) It was made at or ncar the time of the act, event or condition or
reasonably 800n thereafter.
Proof of Idcntft;y and m04:1e of prcparntion.i lack
o~
personal knowledge.
Sec. 2. The "identity nnd m'ode of ~~e"paration of the" mcmora~dum
record in accordance with the provisions of paragraph one (1) 'may be
proved by the testimony of the entrant. custodian or othe'r qualified witneS8 even though he may not have personal knowledge as to the various
items or contents of such memorandum or record. Such hick of persona)
knowledge may be shown to affect the weight and credibility of the -memorandum or record but shall not affect its admissibility. .
o.
Absence of record
Sec. S. Evidence to' the effect that the records of a bu si ness do not
. contain any memorandum or record of an all eged act, event or condition
shall be competent to prove the non-occurrence of the act or event or the
Don·existence of the condition in that business if the judge finds that it
was the regular course of· that business to 'make such memoranda or
records of all such acts. events or conditions at the time or w.i thin rea·
aonable time thereafter and to preserve them.
Dwline8S defined
Sec. 4. -'Business" as used" in this Act includes any and every ki~d
of regular organized activity whether conducted for profit or not. Acts
1961, 62nd Leg., p. 346, ch. 32L .
'.' .. , ," ,
Records or'
photo copIes:
"
.'
~.'
admissibility; " nffldnvlt'; ' filing
Sec. 6. Any record or set of records or photographically reproduced
copies of such records, which would be admissible pursuant to the provisions of Sections 1 through 4 shall be admissible in evide nce in any
court in this state upon the affidavit of the person who would otherwi se
provide the prerequisites of Sections 1 through 4 above, th a t s uch r ('(" i)1' {~ "
attached .to such affidavit were in fact so kept as required by Sectiol l,j 1
through '4 above, provided furth e r, that such record or records along with
such affidavit are filed ,with the clerk of the court for inclu si on with the
papers in the cause in which the record or l'ecor~s are Bought to be used
as evidence at least fourteen (14) days prior to the "d ay upon which tria l
9f 8~jd cause commences, and provided the other parties to sa id cause are
given prompt notice by the party. filing same of the filing of s uch r ecord
or records and affidavit•. which notice shall identify the. na me and em~
player, if any, of the pe r son making the affidavit an d Buch n~ c ords shall
be made available to lhe coun s el for othe r pa rlic8 t.o UH! fic tio n or li t igation for inspecti on and ('o p y i n ~, '1' 11 (' ClI pc n sp f o r ' (-.py i ns: ~h fl ll he bo rne
by the party, parties or persons who desire .copie~ and not by the party
94
TWe SS
Art. 3737e
EVIDENCE
or ~ partie8 who files the records and serves notice of said filing, in
compliance with this Act. Notice shall be deem ed to have bee n promptly
given if it is served in th e manner contemplated by Rule 21a, Texas Rul es
of Civil Procedure, fourteen (14) days prior to commencement of trial
in said cau8e~
.
.
.
. Sec. 5 added by Acts 1969. 61st Leg., p. 1076, ch. 353, § 1, 'emerg. eff. May
27, 1969. Amended by Acts 1973, 63rd Leg.; p. 276, ch. 128, § 1, eff. Aug.
27, 1973.
Rospitru X-nay pictures: rulmlss llliJIt y;
nftJdavit; rUing
,
Sec. 6. X-rays ' whi~ h ' nre rn"a de"' in any hospital in the Uni ted States
of America, which are made a s n regular part of th e bu siness of that
. hospital, which nre JTI:lric in accordance with good radiol ogy techniques,
by a person competent to make X-rays, whi ch are made und er the s upe rvision of the Department of Radiology of s uch hospital, which h ave
photographed thereon thE! na me a nd, if appli cable, th e h ospital number
assigned the person X-rayed; · along 'with the date of s uch X-ray and, if
the person's name is nol known, then th e words "Na me Unknown" and the
number assigned said person, shall be a dmi t ted into evidence in the trial
of any cause in this state if they are accompanied by t he affidavit of the
head of the Radiology Depa rtment of said hospital or one of hi s partner s,
which affidavit shall affirmatively state th a t the conditions of this section have been met. and if the Rad iology Department has b.e en chan ged,
then such affidavit may be made by th e person who was the' head of the
Radiology Department of said hospital or one of his partners at t he time
said X-rays were mnile, provided such X-rays are accompanied by such
affidavit and shall be filed with the clerk of the court for incl usion with
the ' papers 'in the cause in which the ' X-rays are sou ght to be used as
evidence at least fourte en (14) days prior to the day ' upon which trial of
said -cause commences, and 'provided th e other ' pa~tie s to said cau se are
given prompt notice by the party filing same of the filin g of such X-rays
and affidavit, which: notice shall 'identify the name and employe r. if any,
of the person making the affidavit and which notice ,shall be deemed to
have been promptly given' if it is served in th e' manner contempl ated by
Rule 21a, Texas Rules of Civil Procedure, fourteen (14) days prior to
commencement of trial in said cause; the ,clerk of th~ court shall permit
~any party to said cause to remove the X-rays from bis possession for th e
purposes of examination, 'provided a receipt is presented therefor and said
X-rays shall bereturned to the clerk of s aid couz:t at least seven (7) days
prior tothe ~ay upon which trial of said cause commences.
'. ..
Sec_ 6 added by' Acts 1?69, 61st Leg., p. 1076, ch. 353, § 1; emerg. eff. May '
27, 1969: ' Amended by Acts 1973, 63rd Leg., p. 277, ch; 123, § 2, eff. Aug.
27, 1973. ' - ,
-.- .. .
,
Art. 3737e
EV([)ENCE
Talc 55
l\fC'lllcnl )'ccorcJs; form of "rrltlnvlt
Sec .. 7. A form for the affidavit of such person as shall make su ch
affidavit os is permitted in Section 5 Above shall be s ufficient if it. fol ..
lows this (orm, though this (orm shalt not be exclusive, and an Hffidavit
which substnntially complies with the provisio ns of this Act. shall s uffice,
to·wit:
. .
.
.
.
No,-"_ _ _ _ __
Jv.ohn Doe (Name
Of.
Plaintif~)} . IN THE "
COURT IN AND FOR
John Roe (Name of Defendant)
COUNTY, TEXAS
AFFIDAVIT
. Bef~r~ " me, 'the undersi~~~d authority. personally 'appe~~ed _ _ _ _~
who, ' being by me duly sworn, deposed as follows: - ' .
.
.
My name is
I am over 21 yc'a rs of age, of sound
"mind, capable o f making this affidavit, and personally acquainted with
th~ facts herein stated:
.
I am the medical r eco rds librarian of _ _ _~_-,.,. Hos pital and
8S such I am the custodian of the · records of the said _ _ _ _ __
Hospital. Atla.ched hereto are _ _ pages of r ecords from the _ _ __ _
HospitaL These sa.id __ pages of record s arc kept by the _ _ _ _ __
Hospital in the regular course of business, and it was the r egular course '
of business in the
.
Hos.pital for an employee or r e·presen ta~
tive, or a doctor permitted to practice in the
department or division, of the
Hospital, with personal knowl edge of th.e .
act, event or condition recorded to make the memorandum or record or to
transmit information thereof to be included in s uch memorandum or record; and the memorandum or r ecord was made at or near the time of the
act. event or condition recorded or rea sonably soon thereafter. The records attached hereto are exact duplic·ates of the original, and it is a rule
of the
·
Hospital to not perinit the 'originals to leave· lh'e hospital.
.. .. . . .
.. . .
.
I
.
Affiant"
.
.
SWORN TO AND SUBSCRIBED before me on the ._. _. day of
19_'_
'
.
_..:....~
Notary Public in and for
County, .
Texas <
• •
See. 7. added by Acta 1969,:61st'Leg:, p. 1076; ch. 353, § l;einerg: eff. May
27, 1969. .
.J
Xarn.ys; fonn of ntfldnvtt . .
Sec.:S. A ·form for the affidav"it of such person · as shall make slI ch
affidavit as is permitted in Section 6 nbove shall be sufficient if it fo)lows this fonn. though this form shall uot be exclusive, and an affidavit
which substantially complies with the provisions.of this Act, shall s'u ffice,
to-wit:
. :.
No. · _~_~-,-
John Doe (Name of Plni. ntiff)}
v;
IN THE _ _ _ _ _ _ __
COURT; IN ,AND FOR
John Roe (Nan;. of Defendant)
COUNTY, TEXAS
llG
Tille 55 '
EVIDENCE
Art. 3737e
Noto I
' AFFIDAVIT
Before me, the undersigned authority. personally appeared _____
who, being by me duly sworn, .deposed DS follows:
· My name is
I am over 21 years of agc, compete nt to
mnke this affidavit. and personally acquainted with th e fa cts herein siat·
cd: .',
.
" : I am the '
of the Radiology 'Department' of the _ _ _ __
Hospital. Attached hereto are __ pages of X ~ rays. Thes e X-rays w ere
made hi the
H ospi tal in accordance with goo d rad io] o,R'Y
techniques, they were made as a regular part . of the bu siness of the
--:-_ _ _-:-:- Hospital, they were made by a competent pe rson, a technician or radiologist, under my supervision and control. Photographed on
each ~-ray is the name, nu mh r r and dale for each X-ray.
0' .
Affiant
SWORN TO AND SUBSCRIBED before me on the __ day of _ _
19 _ _'
"
~
Nota ry Public in and for
County,
Texas
,
Sec. 8 added by Acts 1969, 61st Leg., p. 1076, ch. 353, § 1, em erg. eff. May
?:T, 1969. ,
Section 6 or the Act or 1951 rePe nted all
Indo::.:. to Notes
Accident and poli ce report.. 16
Admi.5Siblll ty 01 records 14
· Title ot Act: .
Bill , of lading 23
An Act providing tor and r egulating thf!
admIulon a.a evidence of record, kept In
Computer printout. 19. 5
Con ,truc:tlo n "lnd application
the regular course ot bu.lne.. : and de claring an emergenq'.
ACU . 1951. 62nd
Contrac:t. 7 '
Lel'.• p. fitS. ch. 321.
..
Death c:ertlflca te. 12 '
Deat h or absence 01 person m aki ng memo.
Law Review Commentarle. "
r andd 6
Admiulbt1lly ot bual nes. record.. . 23
Discovery 24
Baylor L.Rev. 160 (1971).
.
Entrletl
made in r egular course 01 busine. '
· Admlaslbillty or entries ot diagnosis III
10
h osplt.a.l recordL . U Tex.u L.Rev. 1621
Exclusion 01 record. 5 .
(196&).
Foundation f or admission · 15
AdmissibilitY or medical and ' h ospU.al
H ospital record" 4
record. and proof or medlcQI cosu. Judl:e
Ide.ntlty and authentication 3
Phil Peden, 1 Trial Lawyer' Forum &:
Invoices 17
(1968).
.
'
.
'.
Annual surveyor Texu' law : Hearsay. ' . Ledger cards "
Legitimacy of children 22
Roy R. Ray. 21 Southweatern ' L ..l. 176
Market report" 10
(1961).
M ed ic.1 r ecord • • nd reports 18
Bus iness reconJa. Roy R. Ray. 22 SouthOpini o n, 20
western L . 3. IG7 (19G8) • .
Personal knowledge ot contents 13
Business records. Roy R. Rny, 24 ' Sou tb.
Review 2
.
.'
western L .J. 154 (1970) .
Stipulations
9
:.:
Business record.; 1969' survey. ' Roy R. '
Summary 01 record. 21
Ray. 23 Southwestern x....:
152 (1969).•
Work .heets 8
Duslnesa recorde; lIurficlent e 'v ldence ·.or
• completed rUlle. Lulhe'r H. Soule,l!, In, 31 , X . rays 4 .5
,:"ex_ Bar J . 739 (l968) .
'
' .. .
.
Computer prlntoula:·. Admll!slblllty under
LI~rary relerences
the busineea r ecorde ··exceptlon. 12 South
Texu L ..1. 291 it97l). : ~ .
.
Evidence ~3fi'" 355(1). .
.
.
conl'!.lcUnJ' law. And p&.rta Or law• .
J:'
Computer . "PrlDt-Outa;/ ' and the bu~_.
neas recordS" ACt. ~4 n:Aylor LoRev• . 161
(1812). " . " ' . ~ ~ - ';,' , .:.
E;w;pert wilncss: Hearaay - vs.
14 Baylor LoRev. 108 (HI12).
opinion.
Opinloa entry problems In medical rec-
onts.
11 Baylor LoRe• • 122 (19£1).
, fl.'
" Tt•. 5tatt._"7
1974 P.P.
' .....
"1".
~. J.S. Evidence . U ~ 8 2 et seQ,: ~9~.
ConstruCtion and application
", '
Whero pla.lntlff's nppllc o.lion ror ve tero-n' s
compen sntion or p e n s io .. WILS proliuc(,d (rmu
Oles or re&"lonnl office ot Vetera n s' Admi nIstratio n by r cpr ellcntatlvc ot C hief Atto rn ey's Omce nnd r cprC flcntntl"c t estified that
be had supervision, control and aCCCH8 to
records of tha.t -omco and tha. t lluthenUca1,
07 ..
APPENDIX E
ARTICr.E 38.29
I n di ctment , i nformation or comnlaj.nt
not a anl i s s ib l e t o impeach witness
Th e fact tha t a d e f e n dan t
in a criminal case , or a wItness
in a criminal case, i s or ha s b een , c har p;ed by indictment ,
information or compl ai nt, wi th t he commission of an offense
ag ainst the crimina l laws o f this
~ t ate ,
of the United Sta te s ,
or any oth e r st a te shal l n o t be admi ssible in evidence on t he
trial of any criminal ca se f or t he pur p o se of impeaching any
p e rson as a witne ss unl ess on tria l under such indictment ,
informa tion or comp l aint a final convic t ion has resulted , or
a suspended s e n te nc e has bee n given and has not been set aside ,
or such p e r s on h a s be en p l aced o n p r obation an d the period of
probation h a s not exp i red .
In trials o f defendants under
Article 36 . 09, -it may be sh own that t he witness is presently
charged with the s ame o ffense as the defendant at ]']hose trial
he appears as a witnes s .
APPENDIX F
ARTICLE 3 715a
Cle rg yman- ne n itent p rivil e!;e
No orda ined mini s t er , p r ies t, rabbi or dul y a ccrAdited
Chri s ti a n Sci enc e p r a ct iti o ner of an es t abli shed c hu-.'ch or
r e lig iou s organ iz ati on shall be required to
t e~ t i f y
i n any
action, suit, or proc eedi n g , c onc e rning a ny i nfor mation which
ma y h ave be en -confi de nti a ll Y
c on~un i c a ted
to h i m in his pro -
fes s ion a l capac ity u nde r s u ch c ircums tanc es t hat t o di sc l os e
the inform at ion wo ul d v iol a t e a sac r ed o r mora l t r ust , Cln e r:
the g ivin p; of suc h t estimo n y i s ob j ected to b y t he c ommun icant ;
provided, howeve r, t ha t t he p r e s i ding j u dp;o i n a n y tr i a l may
compel such disclo s ure if i n hi s opinion t he same is n e c essary
to a proper administra tion of jus tice.
APPENDIX G
ARTICLE
38 .11
Husband or wife as wi tness
Neither husband nor wif e sh a ll, in any case, t e stify
to communication ma de by one to the ot her whi le ma rr ied .
a~
Neithe r
husband nor wife shall, in any c ase , after th e ma rr iap;e r ela tion ce ases , be made wi tnesses as to any communic a t i o n made
while the marriage relat i on existed except in a c a s e "Ih e r e one
or the other is on tri a l for a n off e n s e and a de cl a r a tion or
communication ma de by the wife to the husband or by the hu sband
to the wife g oes to extenuate or justify the offense .
Th e
husband and wife may, i 'n a ll crimin a l a c tions , b e wi tnes s es
I
for each other, but excep t
as here i naft er pro v ided , th e y shall
in no case testify again st each other in a criminal pro s ecut i on .
However, a wife or husband may volunt arily t e stify against e a ch
other in any case for an offense involving any g rade of as sault
or violence committed by
on~
ap;ainst the othe r or ag ainst a n y
child of either und e r 16 years of ap;e, or in a ny c ase wh er e
either is ch a r p;e d with ince s t of a c hild of e it he r , o r in any
c ase where ei ther is ch ar p;ed with bi p; amy , or in any c ase whe r e
either is charg ed with in te rfe renc e with ch i ld custody, Or in
an y case where either is Ch a r ged with n o nsuppor t of his or her
spouse or minor c hi l d.