[Current supplement included with purchase of book.]
Click here to return to the Texas Rules of Evidence Manual, Eleventh Edition.
Highlights of the 2024 Cumulative Supplement include:
• Texas Rule of Evidence 104(b) addresses the question of conditional relevancy. In a case of first impression, the court in Johnson v. State, 665 S.W.3d 902 (Tex. App.—Houston [14th Dist.] 2023, no pet.), held that a challenge to the admissibility of evidence of a prior conviction under Article 37.07 § 3(a)(1), Code of Criminal Procedure, was a question of conditional relevancy under Rule 104(b), rather than sufficiency of the evidence to prove the conviction.
• In UT System v. Franklin Ctr. for Government and Public Integrity, 675 S.W.3d 273 (Tex. 2023), the Supreme Court addressed is some detail the issue of who is a “lawyer’s representative,” as defined in the attorney-client privilege in Texas Rule of Evidence 503. Noting that although the term “employed by” is not addressed in the Rule itself, the Court applied the common definitions given to the term “employ” and concluded that under the facts, an independent firm employed by the university’s general counsel to review the university’s admissions policies was a lawyer’s representative. The focus of the privilege, the Court stated, is on the purpose and confidentiality of the communications, rather than the formal title or classification of the lawyer's representative as an employee, agent, independent contractor, consultant, or any other designation.
• Texas Rule of Evidence 701 addresses the admissibility of lay opinion testimony. In Mosley v. State, 666 S.W.3d 670 (Tex. Crim. App. 2023), the Court concluded that error was not preserved where defense counsel’s objection was ambiguous because it failed to inform trial court that the defendant was complaining that neither component for lay opinion testimony under Rule 701 had been met. And in Mittelsted v. Meriwether. 661 S.W.3d 867 (Tex. App.⸺Houston [14th Dist.] 2023, pet. den.), the court addressed the admissibility of lay opinion testimony in a will contest case in which the trial court found that the testator lacked testamentary and contractual capacity. While some of the testimony from the testator’s brother-in-law’s testimony regarded the testator’s addiction and alcoholism was admissible under Rule 701 as lay opinion testimony, other information regarding the testator called for expert testimony. Noting that parties may not present expert opinions in “lay witness clothing,” the court concluded that admitting this testimony was not prejudicial.
• The Texas courts have recognized a wide variety of topics for expert opinion testimony. In a case of first impression, the Court of Criminal Appeals in Allison v. State, 666 S.W.3d 750 (Tex. Crim. App. 2023), held that in the field of slang linguistics, the admissibility of expert testimony is evaluated under the standard used for deciding whether evidence of a soft science is admissible. The Court also held that a linguistics expert could rely on non-testimonial hearsay statements to conclude that the term “pull a Carlos” meant to kill someone.
