EVIDENCE LAW

SPRING 2008

Davis v. State, W.L. 3227593; LEXIS 8749 (Tex. App.—Houston [1st Dist.] 2007)

Admissibility of Prior Convictions to Attack Credibility of Accused/Witness: The defendant was convicted of aggravated assault of his estranged wife. On appeal, he complained that the trial court erred in denying his Theus motion, which if granted would have allowed him to testify free of impeachment by prior convictions. Following the defendant’s testimony, the court admitted evidence that the defendant had been convicted twice for theft and three times for robbery. The court of appeals affirmed the trial court’s decision to admit the convictions. Prior felony and moral turpitude convictions may be admissible to prove poor character for truthfulness of a witness where the probative value of the conviction substantially outweighs its prejudicial effect. In Theus v. State, 845 S.W.2d 874, 880-881 (Tex.Crim.App.1992), the Court of Criminal Appeals set out a non-exclusive list of factors for weighing the probative value of a prior conviction against its prejudicial effect. These factors include: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between the past crime and the charged offense, (4) the importance of the witness's testimony, and (5) the importance of the witness's credibility. The court determined that all factors favored admissibility of the convictions. The court placed particular emphasis on the fact that the probative value of the conviction weighed heavily because the defendant’s testimony was all that was offered in his case-in-chief and the temporal proximity of the prior crimes also strongly favored admission because the defendant’s criminal history “demonstrated a pattern of running afoul of the law.”

Dixon v. State, 244 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2007)

Admissibility of Expert Testimony re: “Dynamics of Family Violence”: The jury convicted the defendant of aggravated assault of his girlfriend. At trial, evidence was offered that the victim and the defendant began dating and living together after the alleged aggravated assault. At trial, the prosecution offered the expert testimony of a police officer regarding the dynamics of family violence. The officer testified, in pertinent part, as follows:

The common thing is that a lot of the abusers or the people that are being abused gets [sic] themselves into a position where they feel like they have no other recourse but to stay with the person they're with, whether it's money matters, whether it's the children, or if it's all threats. They will leave for a short term, then they start getting the threats to them from the abuser saying if you don't come back to me, then I'm going to do such and such. And it usually has something to do with harm; whether it's going to be to them or whether it's going to be to children or a related threat, I'm going to get you if I see you on the street, things like that. So, they feel that it's safer to go back to the abuser and live with them and keep them happy than it is to try and live on their own and look over their shoulder over and over and over again.

On appeal, the defendant challenged the trial court’s decision to admit the officer’s testimony on the ground that it was impermissible bolstering of the victim’s testimony and that the officer was not qualified to give expert testimony. The court held that the officer was qualified as a result of experience responding to scenes of family violence and training on the subject from the Houston Police Department. The court also held that the behavior of victims of family violence was a permissible subject of expert testimony.

Confrontation Clause and Hearsay Statements: The trial court admitted two statements by an earlier victim of the defendant over the defendant’s confrontation clause objection. The trial court admitted the earlier victim’s 911 call in which she said that her boyfriend “just beat [her] up.” The court considered these statements non-testimonial, despite the fact that the alleged abuse had already occurred, because the declarant was distressed and frantic. The same earlier victim’s statements to a sheriff’s deputy were testimonial, however, because the answers came in response to police questions designed to investigate the incident of abuse. Although the trial court erred in admitting the earlier victim’s statements to the deputy, the error was harmless beyond a reasonable doubt because this evidence did not “move the jury from a state of non-persuasion to one of persuasion on a particular issue.”

Jones v. State, 241 S.W.3d 666 (Tex. App.—Texarkana 2007)

Prior Acts of Assault Admissible under 404(b): The defendant was convicted of the assault of his wife after his attorney claimed in his opening statement that he acted in self-defense. The court of appeals held that the trial court did not err in admitting evidence that the defendant had assaulted his wife on two prior occasions in order to rebut the claim of self-defense.

Fischer v. State, W.L. 141850; LEXIS 5 (Tex. Crim. App. 2008)

Officer’s Narrative Not Present Sense Impression Under TRE 803(1): The defendant pleaded no contest to a DWI after the trial court overruled his motion to suppress the audio recording of the officer’s investigative narrative of the stop. During the officer’s detention and the DWI investigation of the defendant, the officer would record his observations and conclusions in his body mike after asking questions of the defendant and performing sobriety tests. The trial court admitted the narrative as present sense impressions under TRE 803(1). The Court of Criminal Appeals reversed the trial court. The Court said:

On-the-scene observations and narrations of a police officer conducting a roadside investigation into a suspected DWI offense are fraught with the thought of a future prosecution: the police officer is gathering evidence to use in deciding whether to arrest and charge someone with a crime. Calculation and criminal litigation shimmer in the air; the officer is gathering evidence, he is not making an off-hand, non-reflective observation about the world as it passes by. Similarly, factual observations, narrations, opinions, and conclusions made by a citizen or bystander that might be intended by the declarant to be made with an eye toward future litigation or evidentiary use are inadmissible under the rule.

The court went on to conclude that the statements were not present sense impressions because “most of the statements made by Trooper Martinez on the videotape constituted a calculated narrative in an adversarial, investigative setting. These particular statements may be entirely reliable ones, but the setting is one that human experience and the law recognize is brimming with the potential for exaggeration or misstatement.”