August 17, 2018

Texas Courts of Appeals

McMinn v. State

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.


Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!