Texas evidence practice is organized under the Texas Rules of Evidence. Relevance starts at Tex. R. Evid. 401, 403; hearsay starts at Tex. R. Evid. 801, 802. That is what separates Texas evidence law from a generic national summary. Read Texas Rules of Evidence before the background sections below. Authenticity is a separate fight under Tex. R. Evid. 901, 902. Depositions at trial: Tex. R. Civ. P. 203.6 governs use of depositions in civil trials, including impeachment and substantive use when hearsay exceptions apply. Tex. Code Crim. Proc. art. 39.02 and Tex. R. Evid. 804(b)(1) govern criminal use of prior testimony when witnesses are unavailable; live criminal depositions are rare.
Character evidence
Character evidence in Texas is governed by Tex. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Texas character-evidence opinions
Willie Lee MAYES, Appellant, v. the STATE of Texas, Appellee
Willie Lee MAYES, Appellant, v. the STATE of Texas, Appellee, 1991 Tex. Crim. App. LEXIS 110 (1991)
…kground evidence is one of the “other purposes” under which character evidence may be admitted under Rule 404(b). 3 The cases which the State cites in its brief all involve the admission of extraneous bad acts: Taylor v. State, 420 S.W.2d 601 (1967) (in trial for murdering married couple in a truck, evidence that defendant killed husband in trial for wife’s murder held admissib…
On character evidence, Willie Lee MAYES, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "Rule 404(b). 3 The cases which the State cites in its brief all involve the admission of extraneous bad acts: Taylor v. State, 420 S.W." The surrounding opinion shows how the court applied that language to the record.
Brian Douglas MARTIN, Appellant v. the STATE of Texas
Brian Douglas MARTIN, Appellant v. the STATE of Texas, 2005 Tex. Crim. App. LEXIS 1618 (2005)
…udes evidence whose only logical relevance derives from its propensity nature, on the ground that it is relevant for a “permissible purpose”? Appellant asserts that, while criminal character is a fact, character conformity is an inference and that the court of appeals failed to make the distinction and therefore permitted the prosecution to use character conformity as an infere…
On character evidence, Brian Douglas MARTIN, Appellant v. the STATE of Texas speaks to the Texas dispute in this passage: "udes evidence whose only logical relevance derives from its propensity nature, on the ground that it is relevant for a “permissible purpose”? Appellant asserts that, while criminal character is a fact, character conformity is an inference and that the court of appeals failed to m" The surrounding opinion shows how the court applied that language to the record.
Taneesha Monique SIMS, Appellant, v. the STATE of Texas
Taneesha Monique SIMS, Appellant, v. the STATE of Texas, 2008 Tex. Crim. App. LEXIS 820 (2008)
…e, during the *293 punishment phase of trial, may introduce character evidence in the form of opinion testimony when that opinion is based on no more than a single encounter with law enforcement that constitutes an extraneous offense. For the reasons that follow, we hold that the evidence presented at the punishment phase of trial was proper and that the trial court committed n…
Texas opinions such as Taneesha Monique SIMS, Appellant, v. the STATE of Texas are cited where character evidence is disputed. The court stated: "e, during the *293 punishment phase of trial, may introduce character evidence in the form of opinion testimony when that opinion is based on no more than a single encounter with law enforcement that constitutes an extraneous offense. For the reasons that follow, we hold that the" That is the language to brief; the rest of the decision supplies the procedural posture.
Christopher Michael TATE, Appellant, v. the STATE of Texas
Christopher Michael TATE, Appellant, v. the STATE of Texas, 1998 Tex. Crim. App. LEXIS 168 (1998)
…. at 848. Under the rules, the Court of Appeals determined, character evidence of a victim in a homicide is admissible pursuant to Rule 404(a)(2),2 but the specific act of a threat made by the victim is generally inadmissible because, under most circumstances,3 character may only be established through reputation or opinion evidence. See Tex.R.Crim. Evid. 405(a). Since the unco…
Texas opinions such as Christopher Michael TATE, Appellant, v. the STATE of Texas are cited where character evidence is disputed. The court stated: "Rule 404(a)(2),2 but the specific act of a threat made by the victim is generally inadmissible because, under most circumstances,3 character may only be established through reputation or opinion evidence. See Tex.R.Crim. Evid. 405(a)." That is the language to brief; the rest of the decision supplies the procedural posture.
Omar ANDERSON, Appellant, v. the STATE of Texas, Appellee
Omar ANDERSON, Appellant, v. the STATE of Texas, Appellee, 1995 Tex. Crim. App. LEXIS 79 (1995)
…ent. In accordance with Rule 405, the permissible method of character evidence would have been reputation or opinion testimony. It is appellant’s contention that this particular testimony goes beyond the scope of proper reputation testimony because it is not limited to whether appellant’s reputation for being a peaceable and law abiding citizen was good or bad. It is further co…
Texas opinions such as Omar ANDERSON, Appellant, v. the STATE of Texas, Appellee are cited where character evidence is disputed. The court stated: "In accordance with Rule 405, the permissible method of character evidence would have been reputation or opinion testimony." That is the language to brief; the rest of the decision supplies the procedural posture.
Michael T. CASTALDO, Appellant, v. the STATE of Texas
Michael T. CASTALDO, Appellant, v. the STATE of Texas, 2002 Tex. Crim. App. LEXIS 138 (2002)
…is well to set out the rule: Rule of Evidence 404 says: (a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent character trait offered: (A) by an accused in a criminal case, or by the prose…
Texas opinions such as Michael T. CASTALDO, Appellant, v. the STATE of Texas are cited where character evidence is disputed. The court stated: "Rule of Evidence 404 says: (a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused." That is the language to brief; the rest of the decision supplies the procedural posture.
Hearsay: start with the definition
Most hearsay objections in Texas are won or lost on the definition, not on an exception. Under Tex. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Texas hearsay opinions
Craig Jonathan WILLOVER, Appellant, v. the STATE of Texas
Craig Jonathan WILLOVER, Appellant, v. the STATE of Texas, 2002 Tex. Crim. App. LEXIS 46 (2002)
…admission of the videotapes, arguing they were inadmissible hearsay. Appellant then attempted to offer the videotapes under Article 38.071 of the Texas Code of Criminal Procedure. Section 2(a) of that article provides that “[t]he recording of an oral statement of the child made before the indictment is returned or the complaint has been filed is admissible into evidence if the…
Craig Jonathan WILLOVER, Appellant, v. the STATE of Texas is worth reading on Texas hearsay because the court put the point in its own words: "Appellant then attempted to offer the videotapes under Article 38.071 of the Texas Code of Criminal Procedure." Use that passage as the starting point, then read the facts that precede it.
Ruben Salinas VILLALON, Appellant, v. the STATE of Texas, Appellee
…ine if they believed beyond a reasonable doubt that the non-hearsay evidence proved penetration. We find the Court of Appeals’ method of sufficiency review to be in error, and also find that the non-hearsay evidence in the instant case was sufficient for a rational trier of fact to have believed that the element of the penetration of the child victim’s sexual organ was establis…
Practitioners open Ruben Salinas VILLALON, Appellant, v. the STATE of Texas, Appellee when Texas hearsay turns on the distinction in this sentence: "ine if they believed beyond a reasonable doubt that the non-hearsay evidence proved penetration. We find the Court of Appeals’ method of sufficiency review to be in error, and also find that the non-hearsay evidence in the instant case was sufficient for a rational trier of fact" Do not lift it out of the facts the court was deciding.
Frank Martinez GARCIA, Appellant, v. the STATE of Texas
Frank Martinez GARCIA, Appellant, v. the STATE of Texas, 2004 Tex. Crim. App. LEXIS 68 (2004)
…ed, at the punishment phase, when it admitted inadmissible “hearsay within hearsay” evidence to the effect that he assaulted his wife on December 15, 1994. 1 At the punishment phase, the State offered business records from the Bexar County Battered Women’s Shelter through its custodian of records, Joyce Coleman, and the trial court admitted *926 those records under Rule of Evid…
Frank Martinez GARCIA, Appellant, v. the STATE of Texas is worth reading on Texas hearsay because the court put the point in its own words: "ed, at the punishment phase, when it admitted inadmissible “hearsay within hearsay” evidence to the effect that he assaulted his wife on December 15, 1994. 1 At the punishment phase, the State offered business records from the Bexar County Battered Women’s Shelter through its cus" Use that passage as the starting point, then read the facts that precede it.
Charles Ray LONG, Appellant, v. the STATE of Texas, Appellee
Charles Ray LONG, Appellant, v. the STATE of Texas, Appellee, 1990 Tex. Crim. App. LEXIS 188 (1990)
…petition for discretionary review to determine whether his hearsay objection was sufficient to preserve error for purposes of appellate review. See Tex.R.App.Proc. 200(c)(3) & (4). The record reflects that the four year old complainant had spent the night of November 3, 1986, with her father and his friend, the appellant. When her father brought her home the next morning, her…
Charles Ray LONG, Appellant, v. the STATE of Texas, Appellee is worth reading on Texas hearsay because the court put the point in its own words: "See Tex.R.App.Proc. 200(c)(3) & (4). The record reflects that the four year old complainant had spent the night of November 3, 1986, with her father and his friend, the appellant." Use that passage as the starting point, then read the facts that precede it.
John Lloyd CHAMBERS, Appellant, v. the STATE of Texas, Appellee
…he evidence, the court of appeals first disregarded Posey’s hearsay testimony about her conversation with the clerk who had been on duty when the couple checked into Room 111, citing Alvarado v. State, 632 S.W.2d 608 (Tex.Cr.App.1982), and Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980).3 The court then concluded that after Posey’s hearsay testimony was disregarded, the re°…
Texas opinions such as John Lloyd CHAMBERS, Appellant, v. the STATE of Texas, Appellee are cited where hearsay is disputed. The court stated: "Posey’s hearsay testimony about her conversation with the clerk who had been on duty when the couple checked into Room 111, citing Alvarado v. State, 632 S.W.2d 608 (Tex.Cr.App.1982), and Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980)." That is the language to brief; the rest of the decision supplies the procedural posture.
Maria MARTINEZ, Appellant, v. the STATE of Texas
Maria MARTINEZ, Appellant, v. the STATE of Texas, 2000 Tex. Crim. App. LEXIS 74 (2000)
…dd’s expert qualifications and whether Rudd’s testimony was hearsay. We find that Martinez did not preserve error and that Rudd’s testimony was not hearsay. FACTS Martinez was charged with cocaine delivery. On direct examination, Rudd testified that he had been a DPS laboratory supervisor for 25 years. He explained his duties, the laboratory’s testing procedures, and the securi…
Maria MARTINEZ, Appellant, v. the STATE of Texas is worth reading on Texas hearsay because the court put the point in its own words: "Rudd’s testimony was hearsay. We find that Martinez did not preserve error and that Rudd’s testimony was not hearsay. FACTS Martinez was charged with cocaine delivery. On direct examination, Rudd testified that he had been a DPS laboratory supervisor for 25 years." Use that passage as the starting point, then read the facts that precede it.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Texas treats them under Tex. R. Evid. 801(e)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Texas party-admission opinions
Dan Lee INGHAM, Appellant, v. the STATE of Texas, Appellee
Dan Lee INGHAM, Appellant, v. the STATE of Texas, Appellee, 1984 Tex. Crim. App. LEXIS 779 (1984)
…t the time of the offense.” Thus, Section 19.06 would allow admission of this evidence if it: 1. shows relevant facts and circumstances surrounding the killing; or 2. shows the previous relationship between the appellant and the deceased; or 3. shows the condition of the mind of the accused at the time of the offense. The Court of Appeals held that Section 19.06 was not applica…
On party admissions, Dan Lee INGHAM, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "Thus, Section 19.06 would allow admission of this evidence if it: 1. shows relevant facts and circumstances surrounding the killing; or 2. shows the previous relationship between the appellant and the deceased; or 3." The surrounding opinion shows how the court applied that language to the record.
Carlos TREVINO, Appellant, v. the STATE of Texas
Carlos TREVINO, Appellant, v. the STATE of Texas, 1999 Tex. Crim. App. LEXIS 45 (1999)
…*853sponds that appellant’s statements were not hearsay but admissions by a party-opponent. Tex.R. Evid. 801(e)(2). The State correctly argues that Rule 801(e)(2)(A) plainly and unequivocally states that a criminal deféndant’s own statements, when being offered against him, are not hearsay. See also Drone v. State, 906 S.W.2d 608, 611 (Tex.App.—Austin 1995, pet. ref'd); Cunning…
Carlos TREVINO, Appellant, v. the STATE of Texas is worth reading on Texas party admissions because the court put the point in its own words: "Tex.R. Evid. 801(e)(2). The State correctly argues that Rule 801(e)(2)(A) plainly and unequivocally states that a criminal deféndant’s own statements, when being offered against him, are not hearsay. See also Drone v. State, 906 S.W.2d 608, 611 (Tex.App.—Austin 1995, pet." Use that passage as the starting point, then read the facts that precede it.
BAY AREA HEALTHCARE GROUP, LTD., Individually and D/B/A the Corpus Christi Medical Center—Bay Area, Et Al
…cause the McShanes made the statements, they are considered admissions by a party-opponent and are not hearsay. Id. 801(e)(2) (“A statement is not hearsay if ... [t]he statement is offered against a party and is ... the party’s own statement....”). Rule 801(e)(2) is straightforward: subject to other Rules of Evidence that may limit admissibility, 3 any statement by a party-oppo…
BAY AREA HEALTHCARE GROUP, LTD., Individually and D/B/A the Corpus Christi Medical Center—Bay Area, Et Al is worth reading on Texas party admissions because the court put the point in its own words: "McShanes made the statements, they are considered admissions by a party-opponent and are not hearsay. Id. 801(e)(2) (“A statement is not hearsay if ... [t]he statement is offered against a party and is ... the party’s own statement....”)." Use that passage as the starting point, then read the facts that precede it.
David Walter HUGHES, Appellant, v. the STATE of Texas — Keller, J., dissenting
…say” rule because appellant’s statements are party-opponent admissions, which are defined as “not hearsay.” Rule 801(e)(2)(A). Nevertheless, the problem is analytically the same as a hearsay within hearsay problem. Regarding “hearsay within hearsay” the rules provide: *8Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement…
On party admissions, David Walter HUGHES, Appellant, v. the STATE of Texas — Keller, J., dissenting speaks to the Texas dispute in this passage: "Rule 801(e)(2)(A). Nevertheless, the problem is analytically the same as a hearsay within hearsay problem." The surrounding opinion shows how the court applied that language to the record.
Charles Melvin DANIELS, Appellant, v. the STATE of Texas, Appellee
…within the long-recognized exception to the hearsay rule of admissions of a party. 1A Ray, Texas Law of Evidence, Sec. 1162 (3rd ed. 1980). Statements admitting a crime by one not under arrest are admissible. Gibbs v. State, 468 S.W.2d 69 (Tex.Cr.App.1971); Lamberson v. State, 504 S.W.2d 894 (Tex.Cr.App.1974). The appellant also contends that these statements should have been e…
On party admissions, Charles Melvin DANIELS, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "A Ray, Texas Law of Evidence, Sec. 1162 (3rd ed. 1980). Statements admitting a crime by one not under arrest are admissible. Gibbs v. State, 468 S.W.2d 69 (Tex.Cr.App.1971); Lamberson v. State, 504 S.W.2d 894 (Tex.Cr.App.1974)." The surrounding opinion shows how the court applied that language to the record.
A concrete Texas scenario
Here is one way the Texas pieces fit together. Change any fact and the statute may point somewhere else.
A lawyer in Texas wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Tex. R. Evid. 401, 403.
- If the email is the opposing party's, test Tex. R. Evid. 801(e)(2) before the hearsay definition in Tex. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in Tex. R. Evid. 803(6) and the treatment purpose in Tex. R. Evid. 803(4).
- For the deathbed statement, meet Tex. R. Evid. 804(b)(2), then authenticate every exhibit under Tex. R. Evid. 901, 902.
Texas keeps hearsay, character, and authenticity on different rules inside the Texas Rules of Evidence. Winning one does not win the others.
Business records
The business-records exception under Tex. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Texas business-records opinions
Frank Martinez GARCIA, Appellant, v. the STATE of Texas
Frank Martinez GARCIA, Appellant, v. the STATE of Texas, 2004 Tex. Crim. App. LEXIS 68 (2004)
…mber 15, 1994. 1 At the punishment phase, the State offered business records from the Bexar County Battered Women’s Shelter through its custodian of records, Joyce Coleman, and the trial court admitted *926 those records under Rule of Evidence 803(6), the business records exception to the hearsay rule. Coleman testified that the records were kept in the regular course of busine…
Texas opinions such as Frank Martinez GARCIA, Appellant, v. the STATE of Texas are cited where business records is disputed. The court stated: "State offered business records from the Bexar County Battered Women’s Shelter through its custodian of records, Joyce Coleman, and the trial court admitted *926 those records under Rule of Evidence 803(6), the business records exception to the hearsay rule." That is the language to brief; the rest of the decision supplies the procedural posture.
Robert CANSECO, Appellant, v. the STATE of Texas, Appellee
Robert CANSECO, Appellant, v. the STATE of Texas, Appellee, 199 S.W.3d 437 (2006)
…rt ruled that the contents of the file were admissible as a business record under Texas Rule of Evidence 803(6). See Tex.R. Evid. 803(6). Canseco asserts that the trial court abused its discretion in allowing Attebury to testify from the probation file because he did not have personal knowledge of the contents of the file, and the preparation of the file indicated a lack of tru…
On business records, Robert CANSECO, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "Texas Rule of Evidence 803(6). See Tex.R. Evid. 803(6)." The surrounding opinion shows how the court applied that language to the record.
Daniel Adam BELL, Appellant, v. the STATE of Texas, Appellee
Daniel Adam BELL, Appellant, v. the STATE of Texas, Appellee, 176 S.W.3d 90 (2004)
…als, contending that (1) the trial court erred in admitting business records offered to prove the value of the stolen property, and (2) if his trial counsel’s objection to the admission of this evidence failed to preserve error, then he lacked effective assistance of counsel. We conclude that the trial court did not abuse its discretion in admitting the records and, therefore,…
On business records, Daniel Adam BELL, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "als, contending that (1) the trial court erred in admitting business records offered to prove the value of the stolen property, and (2) if his trial counsel’s objection to the admission of this evidence failed to preserve error, then he lacked effective assistance of counsel. We" The surrounding opinion shows how the court applied that language to the record.
Helen R. CURRAN, Appellant, v. Thomas C. UNIS, Temporary Administrator of the Estate of Charles G. Rick, Deceased
…urns of Rick Furniture Company because these documents were business records under rule 803(6) of the Texas Rules of Evidence. Rule 803(6) provides that the following are not excluded by the hearsay rule: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses made at or near the time by, or from information transmitte…
On business records, Helen R. CURRAN, Appellant, v. Thomas C. UNIS, Temporary Administrator of the Estate of Charles G. Rick, Deceased speaks to the Texas dispute in this passage: "Rick Furniture Company because these documents were business records under rule 803(6) of the Texas Rules of Evidence." The surrounding opinion shows how the court applied that language to the record.
William Parma GASSETT, Appellant, v. the STATE of Texas, Appellee
…came within the statutory exception to the hearsay rule for business records is a question of first impression in this Court. In fact, our research has revealed no case in which any Texas court has construed Art. 3737e, Sec. 3, V.T.C.A., the law applicable to this case. Nor is there a comparable provision in the federal “business records as evidence” act. 28 U.S.C., Sec. 1732.…
On business records, William Parma GASSETT, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "Court. In fact, our research has revealed no case in which any Texas court has construed Art. 3737e, Sec. 3, V.T.C.A., the law applicable to this case. Nor is there a comparable provision in the federal “business records as evidence” act. 28 U.S.C., Sec. 1732." The surrounding opinion shows how the court applied that language to the record.
Antoine Delano CAW, Appellant, v. the STATE of Texas, Appellee
Antoine Delano CAW, Appellant, v. the STATE of Texas, Appellee, 1993 Tex. App. LEXIS 488 (1993)
…admitted under the aegis of Tex.R.Crim.Evid. 803(6) 2 (“the business records exception”) as this would be inconsistent with the clearly intended effect of the more specific rule. Cole, 839 S.W.2d at 806. The chemist’s reports before us in this case are clearly the sort of evidence Cole is intended to address. The only question before us, therefore, is whether the chemist-toxico…
On business records, Antoine Delano CAW, Appellant, v. the STATE of Texas, Appellee speaks to the Texas dispute in this passage: "Tex.R.Crim.Evid. 803(6) 2 (“the business records exception”) as this would be inconsistent with the clearly intended effect of the more specific rule. Cole, 839 S.W.2d at 806. The chemist’s reports before us in this case are clearly the sort of evidence Cole is intended to address." The surrounding opinion shows how the court applied that language to the record.
Citibank (South Dakota), N.A. v. Michael A. Tate
Citibank (South Dakota), N.A. v. Michael A. Tate (2010)
…d that Hedges’s testimony satisfied the requirements of the business records exception to the hearsay rule. The trial court observed that Hedges never testified that she was the custodian of the records of Citibank, that the only way she could be a custodian of the records would be pursuant to a contract, and that any such contract was inadmissible because it was not produced d…
On business records, Citibank (South Dakota), N.A. v. Michael A. Tate speaks to the Texas dispute in this passage: "Hedges’s testimony satisfied the requirements of the business records exception to the hearsay rule." The surrounding opinion shows how the court applied that language to the record.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Texas trial practice.
Excited utterance — Tex. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Tex. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Tex. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Tex. R. Evid. 804(a), Texas opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Tex. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Tex. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Texas dying-declaration opinions
Carl Craven v. the State
Carl Craven v. the State, 49 Tex. Crim. 78 (1905)
…years confinement in the penitentiary. During the trial the dying declaration of Keith was admitted as evidence. Several objections were urged. The court heard the testimony of Mrs. George Peede, Dock Phillips, Dock Hudson and Chip Keasonover, wherein the State was attempting to lay the predicate for the introduction of the dying declarations. On exception being taken, the test…
Texas opinions such as Carl Craven v. the State are cited where dying declaration is disputed. The court stated: "During the trial the dying declaration of Keith was admitted as evidence. Several objections were urged. The court heard the testimony of Mrs." That is the language to brief; the rest of the decision supplies the procedural posture.
Roel Garza MUNOZ, Appellant, v. the STATE of Texas, Appellee
Roel Garza MUNOZ, Appellant, v. the STATE of Texas, Appellee, 1975 Tex. Crim. App. LEXIS 1029 (1975)
…ed. Appellant complains of the admission into evidence of a dying declaration and of a purported refusal of the jury foreman to ask that the testimony concerning the dying declaration be read. Officer Alejandro Longoria testified that he arrived at the emergency room of the McAllen hospital shortly after Ricardo Gonzalez was admitted. Officer Longoria asked Gonzalez, “What had…
Roel Garza MUNOZ, Appellant, v. the STATE of Texas, Appellee is worth reading on Texas dying declaration because the court put the point in its own words: "Appellant complains of the admission into evidence of a dying declaration and of a purported refusal of the jury foreman to ask that the testimony concerning the dying declaration be read." Use that passage as the starting point, then read the facts that precede it.
W. M. Banks v. the State
W. M. Banks v. the State, 131 Tex. Crim. 196 (1936)
…mber two brought forward complaint of the introduction of a dying declaration which was objected to upon various grounds set out in the bill. Later counsel for appellant by written motion requested the court to withdraw said dying declaration from the jury, the request being based upon the same grounds urged against its introduction in the first instance. Complaint at the refus…
Texas opinions such as W. M. Banks v. the State are cited where dying declaration is disputed. The court stated: "Later counsel for appellant by written motion requested the court to withdraw said dying declaration from the jury, the request being based upon the same grounds urged against its introduction in the first instance." That is the language to brief; the rest of the decision supplies the procedural posture.
Alex Hill v. the State
Alex Hill v. the State, 88 Tex. Crim. 179 (1920)
…s former rulings affirming the judgment, first, because the dying declarations should not have been admitted, and, second, the evidence is not sufficient to show a specific intent to kill. It was noticed in the opinion affirming that the case had not been briefed by appellant. The motion for rehearing, however, fully presents appellant’s side of the case. *182 The dying declara…
Practitioners open Alex Hill v. the State when Texas dying declaration turns on the distinction in this sentence: "It was noticed in the opinion affirming that the case had not been briefed by appellant. The motion for rehearing, however, fully presents appellant’s side of the case." Do not lift it out of the facts the court was deciding.
Ed Herd v. the State
Ed Herd v. the State, 43 Tex. Crim. 575 (1902)
…ions that appellant offered a written statement showing the dying declarations of deceased. Thereupon appellant stated to the court that the written dying declaration did not contain all that was said by deceased at the time said statement was reduced to writing and signed by deceased; that appellant could and would have proved by Dr. Jones the following as a part of the statem…
Ed Herd v. the State is worth reading on Texas dying declaration because the court put the point in its own words: "Thereupon appellant stated to the court that the written dying declaration did not contain all that was said by deceased at the time said statement was reduced to writing and signed by deceased; that appellant could and would have proved by Dr." Use that passage as the starting point, then read the facts that precede it.
Luther Kennamer v. the State
Luther Kennamer v. the State, 93 Tex. Crim. 430 (1922)
…tence appears in appellant’s motion urging that the alleged dying declaration introduced on behalf of the State, was not admissible, and we have been led to care *435 fully examine the testimony bearing upon the admissibility of same in the light of the objections urged thereto. As to the predicate on the facts, — death of deceased occurred September 17, 1917, and resulted from…
Practitioners open Luther Kennamer v. the State when Texas dying declaration turns on the distinction in this sentence: "State, was not admissible, and we have been led to care *435 fully examine the testimony bearing upon the admissibility of same in the light of the objections urged thereto." Do not lift it out of the facts the court was deciding.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Tex. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Texas medical-statement opinions
Michael Shawn BEHELER, Appellant, v. the STATE of Texas, State
Michael Shawn BEHELER, Appellant, v. the STATE of Texas, State, 1999 Tex. App. LEXIS 6993 (1999)
…ay exceptions. See Tex.R. Evid. 802. 1. Statements Made for Medical Diagnosis and Treatment Rule 803(4) of the rules of evidence provides an exception to the hearsay rule for “[sjtatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or ext…
On medical diagnosis hearsay, Michael Shawn BEHELER, Appellant, v. the STATE of Texas, State speaks to the Texas dispute in this passage: "ay exceptions. See Tex.R. Evid. 802. 1. Statements Made for Medical Diagnosis and Treatment Rule 803(4) of the rules of evidence provides an exception to the hearsay rule for “[sjtatements made for purposes of medical diagnosis or treatment and describing medical history, or past" The surrounding opinion shows how the court applied that language to the record.
Glenn Gordon GREGORY, Appellant, v. the STATE of Texas, Appellee
Glenn Gordon GREGORY, Appellant, v. the STATE of Texas, Appellee, 56 S.W.3d 164 (2001)
…ues that a nurse, unlike a physician, cannot legally make a medical diagnosis or prescribe treatment. This is not at issue. The question is whether a nurse can be qualified to testify as an expert witness. This determination is based on the expert's "knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the…
Practitioners open Glenn Gordon GREGORY, Appellant, v. the STATE of Texas, Appellee when Texas medical diagnosis hearsay turns on the distinction in this sentence: "This is not at issue. The question is whether a nurse can be qualified to testify as an expert witness." Do not lift it out of the facts the court was deciding.
Alton Walker JONES, Appellant, v. the STATE of Texas, Appellee
Alton Walker JONES, Appellant, v. the STATE of Texas, Appellee, 2002 Tex. App. LEXIS 8545 (2002)
…he hearsay exception for statements made for the purpose of medical diagnosis or treatment. Tex.R. Evid. 803(4). Appellant objected to Creasy’s testimony on the ground that rule 803(4) is limited to “information that is gathered and used for the purpose of diagnosis.... Course of treatment and statements made during course of treatment is not part of the hearsay exception.” He…
Practitioners open Alton Walker JONES, Appellant, v. the STATE of Texas, Appellee when Texas medical diagnosis hearsay turns on the distinction in this sentence: "Tex.R. Evid. 803(4). Appellant objected to Creasy’s testimony on the ground that rule 803(4) is limited to “information that is gathered and used for the purpose of diagnosis...." Do not lift it out of the facts the court was deciding.
Rashik Ali TAYLOR, Appellant, v. the STATE of Texas, Appellee — Jennings, J., concurring
…imony was harmless, I concur in the judgment of this Court. Medical Diagnosis or Treatment The majority agrees with the State that the complainant’s hearsay statements were admissible through the testimony of Volet under the exception to the hearsay rule for statements “made for purposes of medical diagnosis or treatment.” See Tex.R. Evid. 803(4). Texas Rule of Evidence 803(4),…
Texas opinions such as Rashik Ali TAYLOR, Appellant, v. the STATE of Texas, Appellee — Jennings, J., concurring are cited where medical diagnosis hearsay is disputed. The court stated: "Court. Medical Diagnosis or Treatment The majority agrees with the State that the complainant’s hearsay statements were admissible through the testimony of Volet under the exception to the hearsay rule for statements “made for purposes of medical diagnosis or treatment.” See Tex.R." That is the language to brief; the rest of the decision supplies the procedural posture.
Raul MUNOZ, Appellant, v. the STATE of Texas, Appellee
Raul MUNOZ, Appellant, v. the STATE of Texas, Appellee, 2009 Tex. App. LEXIS 1047 (2009)
…le of Evidence 803(4) as statements made for the purpose of medical diagnosis and treatment. The trial court overruled appellant’s objection and permitted Ostaszewski to testify about her therapy sessions with Jane. Ostaszew-ski’s records from her therapy sessions with Jane were also admitted. Admission of Therapists’ Testimony Under Texas Rule of Evidence 803(4) In two related…
Practitioners open Raul MUNOZ, Appellant, v. the STATE of Texas, Appellee when Texas medical diagnosis hearsay turns on the distinction in this sentence: "Evidence 803(4) as statements made for the purpose of medical diagnosis and treatment. The trial court overruled appellant’s objection and permitted Ostaszewski to testify about her therapy sessions with Jane." Do not lift it out of the facts the court was deciding.
Jaime GUZMAN, Appellant v. the STATE of Texas, Appellee
Jaime GUZMAN, Appellant v. the STATE of Texas, Appellee, 2008 Tex. App. LEXIS 1066 (2008)
…er Texas Rule of Evidence 803(4) as made for the purpose of medical diagnosis or treatment. Specifically, Guzman complains of the following testimony: [Q]: And did you take a history from [the victim] about what had happened to her? [A]: Yes, I did. [Q]: And what was the purpose in asking what had happened to her? [A]: In order to obtain a proper diagnosis and appropriate treat…
Jaime GUZMAN, Appellant v. the STATE of Texas, Appellee is worth reading on Texas medical diagnosis hearsay because the court put the point in its own words: "Texas Rule of Evidence 803(4) as made for the purpose of medical diagnosis or treatment. Specifically, Guzman complains of the following testimony: [Q]: And did you take a history from [the victim] about what had happened to her?" Use that passage as the starting point, then read the facts that precede it.
Use of depositions at trial
Tex. R. Civ. P. 203.6 governs use of depositions in civil trials, including impeachment and substantive use when hearsay exceptions apply. Tex. Code Crim. Proc. art. 39.02 and Tex. R. Evid. 804(b)(1) govern criminal use of prior testimony when witnesses are unavailable; live criminal depositions are rare.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Texas deposition / former-testimony opinions
The STATE of Texas, Appellant, v. Clortis Foston ROBERTS, Appellee
…motion requesting the exclusion of the complainant’s civil deposition testimony. The trial judge granted the motion and the State appealed, contending the deposition testimony was admissible as “former testimony” under Tex. R.Crim.Evid. 804(b)(1). 1 The Court of Appeals affirmed. State v. Roberts, 909 S.W.2d 110 (Tex.App.—Houston [14th] 1995). We granted the State’s petition f…
Practitioners open The STATE of Texas, Appellant, v. Clortis Foston ROBERTS, Appellee when Texas deposition / former testimony turns on the distinction in this sentence: "The trial judge granted the motion and the State appealed, contending the deposition testimony was admissible as “former testimony” under Tex. R.Crim.Evid. 804(b)(1). 1 The Court of Appeals affirmed. State v. Roberts, 909 S.W.2d 110 (Tex.App.—Houston [14th] 1995)." Do not lift it out of the facts the court was deciding.
Christopher COFFIN, Appellant, v. the STATE of Texas, Appellee — Baird, J., dissenting
…imony by direct, cross, or redirect examination. The use of depositions is controlled by Chapter 39 of the Texas Code of Criminal Procedure. . In D.W.I., the Fourteenth Court of Appeals applied an abuse of discretion standard of review. This is the standard of review we have adopted for most pre-trial proceedings. See, Freeman v. State, 723 S.W.2d 727, 733 (Tex.Cr.App.1986). Ho…
On deposition / former testimony, Christopher COFFIN, Appellant, v. the STATE of Texas, Appellee — Baird, J., dissenting speaks to the Texas dispute in this passage: "The use of depositions is controlled by Chapter 39 of the Texas Code of Criminal Procedure. . In D.W.I., the Fourteenth Court of Appeals applied an abuse of discretion standard of review. This is the standard of review we have adopted for most pre-trial proceedings. See, Freeman v." The surrounding opinion shows how the court applied that language to the record.
Sandra LARSON, Appellant, v. FAMILY VIOLENCE AND SEXUAL ASSAULT PREVENTION CENTER OF SOUTH TEXAS, Et Al., Appellees
…nt summary judgment evidence. Appellant next objects to the deposition of news reporter Ronald George (George) because it conflicts with appellee Harting’s affidavit. We find, however, that there is no conflict between the two documents. Appellant points this Court to George’s deposition testimony which states he was under the impression that appellant made the Shelter’s Board…
Practitioners open Sandra LARSON, Appellant, v. FAMILY VIOLENCE AND SEXUAL ASSAULT PREVENTION CENTER OF SOUTH TEXAS, Et Al., Appellees when Texas deposition / former testimony turns on the distinction in this sentence: "Appellant next objects to the deposition of news reporter Ronald George (George) because it conflicts with appellee Harting’s affidavit. We find, however, that there is no conflict between the two documents." Do not lift it out of the facts the court was deciding.
CELOTEX CORPORATION, Appellant, v. Shirley TATE, Individually, as Executrix of the Estate of James Fisk Tate, Et
…ly, Celotex complains of the trial court's admission of the depositions of James Tate and Charles Lenhardt. With regard to Tate's deposition, Celotex contends that because the testimony was taken in another action in which Celotex was not a party, it was inadmissible. The controlling rule of evidence regarding the admission of former testimony states: The following are not excl…
On deposition / former testimony, CELOTEX CORPORATION, Appellant, v. Shirley TATE, Individually, as Executrix of the Estate of James Fisk Tate, Et speaks to the Texas dispute in this passage: "Celotex complains of the trial court's admission of the depositions of James Tate and Charles Lenhardt. With regard to Tate's deposition, Celotex contends that because the testimony was taken in another action in which Celotex was not a party, it was inadmissible." The surrounding opinion shows how the court applied that language to the record.
Joe D. BRYAN, Appellant, v. the STATE of Texas, Appellee
Joe D. BRYAN, Appellant, v. the STATE of Texas, Appellee, 1992 Tex. Crim. App. LEXIS 143 (1992)
…imony by direct, cross, or redirect examination. The use of depositions is controlled by Chapter 39 of the Texas Code of Criminal Procedure. This Court recently held a witness is rendered “unavailable”, under Tex.R.Crim. Evid. 804(a)(1), when he invokes his Fifth Amendment privilege not to testify. Jones v. State, (Tex.Crim.App. No. 69,894 delivered April 29, 1992), 1992 WL 132…
Practitioners open Joe D. BRYAN, Appellant, v. the STATE of Texas, Appellee when Texas deposition / former testimony turns on the distinction in this sentence: "The use of depositions is controlled by Chapter 39 of the Texas Code of Criminal Procedure. This Court recently held a witness is rendered “unavailable”, under Tex.R.Crim. Evid. 804(a)(1), when he invokes his Fifth Amendment privilege not to testify. Jones v. State, (Tex.Crim.App." Do not lift it out of the facts the court was deciding.
Bill Hartley v. Esquire Deposition
Bill Hartley v. Esquire Deposition (2018)
…HOUSTON ORDER Appellate case name: Bill Hartley v. Esquire Deposition Appellate case number: 01-17-00508-CV Trial court case number: 2016-73922 Trial court: 61st District Court of Harris County This appeal is from a judgment signed on April 17, 2017. The notice of appeal was filed on July 7, 2017. Although a notice of appeal generally must be filed within 30 days after the jud…
Practitioners open Bill Hartley v. Esquire Deposition when Texas deposition / former testimony turns on the distinction in this sentence: "HOUSTON ORDER Appellate case name: Bill Hartley v. Esquire Deposition Appellate case number: 01-17-00508-CV Trial court case number: 2016-73922 Trial court: 61st District Court of Harris County This appeal is from a judgment signed on April 17, 2017." Do not lift it out of the facts the court was deciding.
Jack M. Kirby v. Federal Deposit Insurance Corporation
Jack M. Kirby v. Federal Deposit Insurance Corporation (1995)
…riginal. Kirby responded with his own affidavit, as well as deposition testimony of an FDIC affiant. The trial court granted the motion, awarding the FDIC more than $15 million in principal, interest, and attorney's fees assessed jointly and severally against Kirby and Millenium. DISCUSSION Kirby raises seven points of error against the judgment. He complains that the FDIC's su…
On deposition / former testimony, Jack M. Kirby v. Federal Deposit Insurance Corporation speaks to the Texas dispute in this passage: "Kirby responded with his own affidavit, as well as deposition testimony of an FDIC affiant. The trial court granted the motion, awarding the FDIC more than $15 million in principal, interest, and attorney's fees assessed jointly and severally against Kirby and Millenium." The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Tex. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Texas oil-and-gas, medical-malpractice, and criminal trials require authenticated land records, EHR exports, and squad-car video under Tex. R. Evid. 901 before business-record exceptions apply. Texas judges apply strict gatekeeping for breath-test and forensic-science evidence.
Why authenticity gets its own section in every Texas trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Texas trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Texas authenticity opinions
Robert Nicholas ANGLETON, Appellant, v. the STATE of Texas
Robert Nicholas ANGLETON, Appellant, v. the STATE of Texas, 1998 Tex. Crim. App. LEXIS 70 (1998)
…pe offered into evidence by the State had not been properly authenticated. Angle-ton, 955 S.W.2d at 659. In its petitions for discretionary review, the State contends that the Court of Appeals erred with regard to the authentication issue.1 We agree.2 On April 16, 1997, the police found Doris Angleton, appellant’s wife, dead in her home from a gunshot wound. There were no signs…
Texas opinions such as Robert Nicholas ANGLETON, Appellant, v. the STATE of Texas are cited where authentication is disputed. The court stated: "State had not been properly authenticated. Angle-ton, 955 S.W.2d at 659. In its petitions for discretionary review, the State contends that the Court of Appeals erred with regard to the authentication issue.1 We agree." That is the language to brief; the rest of the decision supplies the procedural posture.
Jerry REED, Appellant, v. the STATE of Texas, Appellee
Jerry REED, Appellant, v. the STATE of Texas, Appellee, 1991 Tex. Crim. App. LEXIS 101 (1991)
…ntence in the pen packet, in order to be admissible as self-authenticated documents), must reflect that the original copy received by TDCJID was certified by the district clerk of the convicting court. See Dingier, supra, at 306. Dingier was predicated upon TEX.REV.CIV.STAT. ANN. art. 3731a[4], now repealed, and not *584 on the current Texas Rules of Criminal Evidence 901 and 9…
Texas opinions such as Jerry REED, Appellant, v. the STATE of Texas, Appellee are cited where authentication is disputed. The court stated: "TDCJID was certified by the district clerk of the convicting court. See Dingier, supra, at 306. Dingier was predicated upon TEX.REV.CIV.STAT. ANN. art." That is the language to brief; the rest of the decision supplies the procedural posture.
Jamel McLelland FOWLER v. The STATE of Texas
Jamel McLelland FOWLER v. The STATE of Texas, 544 S.W.3d 844 (2018)
…he trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.2 We disagree and hold that the trial court did not abuse its discretion by admitting the video. BACKGROUND In 2014, Fowler was charged with three separate offenses which were consolidated and tried together. This appeal involves only the conviction arising out of the theft…
On authentication, Jamel McLelland FOWLER v. The STATE of Texas speaks to the Texas dispute in this passage: "We disagree and hold that the trial court did not abuse its discretion by admitting the video. BACKGROUND In 2014, Fowler was charged with three separate offenses which were consolidated and tried together." The surrounding opinion shows how the court applied that language to the record.
Kevin Lee ZIMMERMAN, Appellant, v. the STATE of Texas, Appellee
…nse, the State argues that each of the letters was properly authenticated and that appellant has failed to preserve any issue for review regarding the authentication of some of the exhibits. Exhibits 75 and 75A are identical, with exhibit 75 being an excerpt from exhibit 75A. At trial, appellant objected to exhibit 75 on the grounds that it constituted hearsay, that no proper p…
Practitioners open Kevin Lee ZIMMERMAN, Appellant, v. the STATE of Texas, Appellee when Texas authentication turns on the distinction in this sentence: "State argues that each of the letters was properly authenticated and that appellant has failed to preserve any issue for review regarding the authentication of some of the exhibits. Exhibits 75 and 75A are identical, with exhibit 75 being an excerpt from exhibit 75A." Do not lift it out of the facts the court was deciding.
In the ESTATE OF Rosa Elvia GUERRERO, Deceased
In the ESTATE OF Rosa Elvia GUERRERO, Deceased, 2015 Tex. App. LEXIS 4124 (2015)
…nd the trial court properly refused to give weight to the unauthenticated documents containing hearsay attached to Champion’s amended motion to compel arbitration; (3) nonsig-natories are not bound because the arbitration documents do not mention heirs or others with claims based on wrongful death; and (4) the merger clauses in the contracts that do not contain arbitration agre…
Texas opinions such as In the ESTATE OF Rosa Elvia GUERRERO, Deceased are cited where authentication is disputed. The court stated: "nd the trial court properly refused to give weight to the unauthenticated documents containing hearsay attached to Champion’s amended motion to compel arbitration; (3) nonsig-natories are not bound because the arbitration documents do not mention heirs or others with claims based" That is the language to brief; the rest of the decision supplies the procedural posture.
Angela Christine THORNTON, Appellant, v. the STATE of Texas, State
Angela Christine THORNTON, Appellant, v. the STATE of Texas, State, 1999 Tex. App. LEXIS 4098 (1999)
…edicated on a contention that the evidence was inadequately authenticated. She argues the transcript only reflects the televised portion of her interview, and not the entire interview; therefore, she contends it was improperly authenticated. Again, appellate review of a trial court’s ruling on the admissibility of evidence is under an abuse of discretion standard. See Angleton,…
Texas opinions such as Angela Christine THORNTON, Appellant, v. the STATE of Texas, State are cited where authentication is disputed. The court stated: "She argues the transcript only reflects the televised portion of her interview, and not the entire interview; therefore, she contends it was improperly authenticated." That is the language to brief; the rest of the decision supplies the procedural posture.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Tex. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Texas appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
General standards of admissibility
Texas starts every evidence dispute with relevance and unfair prejudice. Under Tex. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Texas labels party-opponent statements under Tex. R. Evid. 801(e)(2), not 801(d)(2). Tex. R. Evid. are court rules only; do not cite Texas Statutes for rule text.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Frequently asked questions
What is the primary evidence source in Texas?
Texas applies the Texas Rules of Evidence. Texas applies court-adopted rules that track the FRE; Tex. R. Evid. 401–902 govern state civil and criminal trials but are not codified in the Texas statutes.
How do Texas courts decide relevance and unfair prejudice?
Under Tex. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Texas?
Party-opponent statements under Tex. R. Evid. 801(e)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Tex. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Texas?
Tex. R. Civ. P. 203.6 governs use of depositions in civil trials, including impeachment and substantive use when hearsay exceptions apply. Tex. Code Crim. Proc. art. 39.02 and Tex. R. Evid. 804(b)(1) govern criminal use of prior testimony when witnesses are unavailable; live criminal depositions are rare.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Texas authenticity practice starts with Tex. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Tex. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Tex. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.