April 24, 2015

Texas Court of Criminal Appeals

Butler v. State

No. PD-0456-14      4/20/15


Is testimony from a domestic violence victim that her former boyfriend (the defendant) sent threatening texts sufficient to authenticate the texts when the victim’s credibility was otherwise questionable because she had also given a statement implicating someone else in the charged aggravated kidnapping?


Yes. Rule 901 does not preclude a witness whose credibility has been questioned in some way from sponsoring evidence as a “witness with knowledge.” Citing its earlier decision in Tienda v. State, 358 S.W.3d 633 ( Tex. Crim. App. 2012), the court concluded that as long as the jury could rationally believe the sponsoring witness about that evidence, and the witness’s testimony would establish that the evidence is what its proponent claims, a judge may admit it. Read opinion


This is not an earth-shattering decision, in that it was mainly necessary to correct the initial holding of the court of appeals in this case, but it is important and helpful nonetheless. The decision makes clear that issues of admissibility and credibility are separate. Some alleged weakness in the latter does not necessarily mean that the proffered evidence is not admissible.  This is especially true when the admissibility issue is authentication. This evidence was also quite valuable, showing the defendant’s attempt to intimidate the victim just a week prior to the trial.


Ehrke v. State

PD-0071-14     4/22/15


Is a defendant charged with a drug offense entitled to an independent expert analysis of the controlled substance? 


Yes and no. While the trial court is required to permit a defendant to have an independent expert analyze the drug, the court is not required to appoint an expert for an indigent defendant without a preliminary showing of a significant issue of fact. Read opinion


This should be required reading if a defendant makes a request for independent analysis and/or a request for the appointment of an independent chemist in a narcotics prosecution. The defendant’s burden with regard to the latter is much harder, but the defendant’s burden with regard to the former is very light. If a defendant is willing to pay for the independent analysis himself, this decision makes clear that the trial judge should permit it, unless the defendant has made the request untimely or unless the substance has already been used up in the original analysis. Prosecutors may not get involved in questions concerning the appointment of an expert, because those issues are often handled ex parte, but this decision places a significant burden upon a defendant wishing the appointment of a chemist in a narcotics prosecution.

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