Texas Courts of Appeals
No. 14-17-00407-CR 8/14/18
Is a photograph of a Play-Doh figurine made spontaneously by the victim during an interview at a child assessment center hearsay?
No. Hearsay requires a “statement” defined as “a person’s oral or written expression, or nonverbal conduct that a person intended as a substitute for verbal expression.” A photograph is not a statement unless it depicts nonverbal conduct as a substitute for verbal expression, such as a drawing made in response to a direct question. Here, the victim made the figurine spontaneously, not in response to a question; thus, the nonverbal conduct was a not a substitute for verbal expression and hearsay does not apply. Read opinion.
This particular issue may never come up in most prosecutions, but it provides a good breakdown of the law in this area. The case is unusual because—for some reason—the defendant did not complain about the admission of the child victim’s statement, “Look what I made,” or the victim’s description of what the figurine allegedly depicted—the defendant’s sexual organ.
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