July 3, 2020

Texas Courts of Appeals

Bahena v. State

No. 14-18-00760-CR              6/23/20


May a witness authenticate recordings of jailhouse telephone calls under Texas Rule of Evidence 803(6) when the witness is not the custodian of records?


Yes. Even presuming that the witness (a deputy sheriff who worked in the jail) was not the custodian of records, that status would not mean that he was unqualified to give Rule 803(6) testimony. Under Rule 803(6), a party may satisfy the required conditions through the in-court testimony of either “the custodian or another qualified witness.” Here, the defendant complained that the company that installed the jailhouse phone call recording equipment was the correct custodian of records, but the Court concluded that this assertion did not prevent the deputy sheriff from testifying about the jailhouse calls as “another qualified witness” under Rule 803(6). Read Opinion.

Dissenting (Hassan, J.): 

“The trial court erred when it admitted recordings of out-of-court recordings of statements under the regularly conducted business activity exception to the prohibition against hearsay because they were not authenticated by a custodian of records or qualified witness.” Read Opinion.


Put this case on your watch list. Authentication of jail calls is a festering issue due to the lackadaisical approach taken by many jails. The chief motivation in procuring these services seems to be monetary—increasing revenues while minimizing costs. Proper administration of justice and protecting the public do not seem to affect the purchase and policy decisions. It could also be that the Rules of Evidence do not properly account for the ways in which reliable records are gathered by computerized systems that are owned by one entity but used by another entity.

State v. Colby

No. 03-19-00710-CR              6/25/20           


Does a police officer have reasonable suspicion to believe that the defendant committed a traffic violation when the officer observes a defendant make a “complete stop” in the middle of the intersection—a violation under Transportation Code §545.302(a)(3)—when Transportation Code §545.302(f) also permits drivers to stop in an intersection under certain circumstances?


No. The Court agreed with the defendant that because “the statute provides for circumstances in which it is not against the law to stop in an intersection, an officer should consider whether these circumstances apply when evaluating whether there is reasonable suspicion to believe” that the driver violated the statute. The Court concluded that the record supported the trial court’s finding that the defendant’s stopping inside the intersection was an attempt to yield to the officer’s patrol vehicle, which the officer should have realized was permitted under the Transportation Code.  Read Opinion.


This seems like one of those cases where the officer suspected the defendant might be driving while intoxicated in addition to violating the rules of the road. If officers will articulate why they suspected DWI, then trial prosecutors can argue those facts that in response to a motion to suppress. While the defendant here may not have violated the traffic code provision, his actions overall indicate someone who is responding inappropriately under the circumstances and thus might have lacked the normal use of his mental faculties.

Texas Attorney General

KP-0318                      6/29/20


May a judge of a court of record appoint an official court recorder (who uses electronic recording equipment for court proceedings) in lieu of an official court reporter (who makes a stenographic recording of court proceedings)?


No. Government Code §52.041 expressly requires each judge of a court of record to appoint an official court reporter. Accordingly, a court is unlikely to conclude that a judge of a court of record may appoint an official court recorder in lieu of an official court reporter. Read Opinion.


The box score for this opinion: Integrity of the Justice System 1, Spending-conscious Politicians 0. No recording machine ever raised its voice in court to say, “You’re talking over one another” or “I can’t hear you,” or “You already have a Defense Exhibit 27A.” A recording machine cannot tell you, “I’m broken, I’m not making a record.”


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