EVIDENCE LAW

                                                                                                          WINTER 2009-2010

 

 

 

Boleware v. U.S. Bank National Association, 293 S.W.3d 315 (Tex. App.—Dallas 2009)

 

Waiver of Objection:  Boleware and Hyter appealed from the trial court’s judgment in a forcible detainer action awarding possession of property to U.S. Bank National Association, which was the trustee for the structured asset investment loan trust.  Boleware and Hyter contended on appeal that the evidence was legally insufficient to support the trial court’s judgment.  Specifically, Boleware and Hyter contend that the evidence admitted at trial was insufficient because it constituted inadmissible hearsay.  Held:  Affirmed.  When the trial court asked whether there were any objections to the admission of the three exhibits, Hyter's attorney replied: ‘No objection, Your Honor.’”  The court of appeals held:  “Because no objection was raised to the admission of the exhibits, Boleware and Hyter have waived the right to complain about the evidence on appeal.”  

 

 

Reed v. State, WL 3050825, LEXIS 7472 (Tex. App.—Houston [1st Dist.] 2009)

 

Confrontation Clause and Hearsay:  The appellant appealed from a judgment convicting him of murder and argued that the trial court’s decision to admit the transcript of an absent witness’s prior testimony was error because the testimony was inadmissible hearsay and its admission violated the appellant’s rights under the Confrontation Clause of the Sixth Amendment.  The transcript admitted at trial was of the absent witness’s testimony provided at the appellant’s prior murder trial, which had ended in a mistrial.  Held:  The transcript satisfied the “former testimony” exception to the hearsay rule, which provided that a statement of an unavailable declarant was not inadmissible if it was “testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”  See Tex. R. Evid 804(b)(1).  The court also held that the trial court’s decision to admit the evidence did not violate the appellant’s rights under the Confrontation Clause.  The appellant conceded that he had a prior opportunity to examine the hearsay declarant, but he argued that that the prosecution had not established that the declarant was unavailable for trial and that, therefore, neither the former testimony exception nor the “necessity prong” of the Confrontation Clause were satisfied.  The Court determined that the prosecution had established the unavailability of the witness.  In a criminal case, unavailability was established under both Rule 804 and the Confrontation Clause where the prosecution demonstrated that it “has made a good-faith effort to obtain the witness's presence at trial.”  The Court determined that this standard had been met, even though no writ of attachment had been issued for the witness, where repeated unsuccessful efforts by an investigator were made to locate the witness and the investigator had “exhausted” his contacts.  The Court said, “a writ of attachment would have been futile because the writ would not have brought the witness to trial.”

 

 

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)

 

Confrontation Clause:  The petitioner was convicted in Massachusetts of distributing and trafficking in cocaine.  The Massachusetts trial court admitted into evidence affidavits reporting the results of forensic analysis which showed that the plastic bags the officers seized from the petitioner contained cocaine.  A Massachusetts statute provided that the notarized forensic reports were admissible, in lieu of the live testimony of the analysts, as “prima facie evidence of the composition, quality, and the net weight of the narcotic . . . analyzed.”  The petitioner objected to the admission of the notarized report because it would violate his rights under the Confrontation Clause and argued that the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), required the analyst to testify live at trial.  Held:  The Supreme Court held that analysts were “witnesses” and that the notarized forensic reports were “testimonial statements” for purposes of the Confrontation Clause and that, therefore, the petitioner had a right to confront the analyst at trial.  Note:  Article 38.41 of the Texas Code of Criminal Procedure provided that Certificates of Analysis may be used under certain circumstances and after meeting certain requirements in lieu of live testimony, but objection by the defendant to the use of the certificate required live testimony by the analyst at trial.  Unlike the statute in Melendez-Diaz, Texas courts have held that the statute satisfied the requirements of the Confrontation Clause, even though the statements in the certificate were “testimonial” because the defendant, by objection, can require live testimony.  See, e.g., Deener v. State, 214 S.W.3d 522 (Tex.App.-Dallas 2006, pet. ref'd).