Objections at every phase of trial

By Brian Foley
Assistant District Attorney in Harris County

Learning when and how to object can be difficult for new prosecutors. Until someone has been in trial, one can’t fully understand how mentally draining it can be. You’re worried about the jury, the judge, defense objections, and finding the evidence you have already marked. Meanwhile, an officer, who has never testified before and who came to court from the graveyard shift, is staring blankly at you. With all that to consider, who has time to come up with an objection when it’s the defense’s turn to question a witness?

            This article’s purpose is to identify the most common tactics and arm prosecutors with the proper legal ground for objecting to those tactics so that you can confidently stand and say, “I object!” when the situation warrants.

            As a brief preamble, I would note that the best advice I can give about objections is that just because we can do something doesn’t mean we should do something. Not objecting can be as powerful a strategy as objecting. We must listen to the defense’s question and listen to the witness’s answer. It seems obvious that we should be listening in court, but in the middle of the “fog of trial,”[1] it’s easy to totally miss very important questions and answers. The best way to listen carefully to the proceedings is to prepare as thoroughly as possible ahead of time, thus freeing up mental capacities for what is happening in the courtroom. If you are at counsel table wondering where the State’s next exhibit is, you won’t be paying attention to cross. Being intentional with every action in trial gives us the freedom to think about and anticipate objections during defense questioning.

Motions in limine

Our first opportunity to stop defense counsel from misleading the jury happens before jurors even come into the room. File a motion in limine to anticipate defense tactics specific to a given case. For example, ask that defense approach to seek a final ruling in front of the judge before mentioning that a victim or witness has a prior criminal history. You can also object to the defense offering a victim’s statements because they are not admissions of a party opponent.[2]

Objecting during voir dire

The most common objections for prosecutors to make in voir dire are:
            1) misstatement of law,
            2) improper commitment questions, and
            3) “Uh oh, he’s about to bust the panel.”

Misstatements of law. I don’t like having to object in voir dire, but if defense counsel misstates the law, then I have to stand up and object. It normally occurs regarding the burden of proof, when defense counsel tries to take it beyond a reasonable doubt. Defense attorneys will say it’s beyond all doubt or “beyond any single reasonable doubt.” The latter phrasing is a little more artful, but it still misstates the law. They might also try to change the burden by analogy: “You have to make the State go the whole 100 yards of the football field” or “If you have a doubt, then you have to acquit.” If they say any of these things, I generally object.

            In a DWI case, we may encounter a defense attorney telling jurors that the State has to prove his client’s normal mental or physical faculties to prove the case. This is also a misstatement of law.[3] In Hernandez v. State, defense counsel said in voir dire, “When we’re looking to see is the person normal or not, we look—we need to find out is it normal for that particular person?” The State objected, arguing that the standard of comparison for not having the normal use of faculties is a normal, non-intoxicated person. The trial court sustained the objection, and the appellate court upheld the trial court’s ruling that this improperly applied a subjective rather than an objective standard.

            In an assault case, we may hear the defense say that jurors have to think about self-defense by considering what the defendant would have done from his own standpoint. The actual standard is a reasonable belief that force was justified as viewed from the defendant’s standpoint. Any phrasing that fails to include the “reasonable belief” language may be a misstatement of law that allows the jury to consider a defendant’s unreasonable feelings or beliefs.[4]

Improper commitment questions. A commitment question asks prospective jurors to decide an issue in a particular way after being offered a set of facts. It is proper to ask a commitment question if it relates to an area of the law that the juror would be required to follow during the course of the trial.[5]

            A commitment question that leads to a challenge for cause is proper so long as it does not include more facts than necessary to determine if the juror would follow the law. For example, it is OK to ask, “Can you consider probation for a felony case?” However, it is improper to ask, “Can you consider probation for a felony case involving violence?” The difference here is that the second question includes more facts than necessary to determine if the juror can follow the law.

            A commitment question that seeks to commit the jurors to a particular set of facts is improper.[6] An improper commitment question asks jurors to follow a rule that the jury isn’t absolutely required to follow. For example, “Would you presume someone guilty if he refused a breath test on his refusal alone?” This question is improper because the jury can absolutely convict on refusal alone.

            In summary, if jurors don’t have to follow the law stated in the question, then the question is improper. If jurors can follow the law without accepting all of the facts offered, then the question is also improper. Prosecutors should object to both.

“Uh oh, he’s about to bust the panel.” I’m referring to that moment at the counsel table when you realize the defense attorney might get all these jurors to say that they would require the defendant to take the stand and provide video of his innocence before they find him not guilty. You’ll know it when it is starting to happen. You’ll think to yourself, “I feel like this is about to turn south but I don’t know what the objection is.”

            And no, we can’t actually object and say, “Judge, defense counsel is about to bust the panel if we keep going down this road.” But we do need to think of something because this moment is hard to come back from, and the more the defense attorney talks, the worse it’s going to get. I recommend objecting and asking to approach before listing the specific objection. Generally, the State can object to improper commitment questions based on too many facts and then suggest a proper version of the question. Alternatively, you may choose not to approach the bench and object under Rule 403 that this question is “confusing the issues [or] misleading the jury.” A good objection here can save a panel.

Objecting during opening statement

In law school mock trial, it is taboo to object during opening statement or closing argument. In the real world, though, it happens in almost every trial. But I am slower on the trigger here than in other phases of the trial.

            The most common objections for prosecutors in opening statement are:
            1) misstatement of the law and
            2) counsel is arguing.

            Because the defense attorney gets to say things like, “I expect the evidence to show …,” he can get away with injecting facts that may not be proven later. There isn’t much to be done about that except to point out in closing argument that none of those alleged facts were ever proved in trial. Defense attorneys may misstate the law to increase the prosecution’s burden or incorrectly state that certain evidence is required, such as a blood sample or blood search warrant. If the defense is misstating the law at any point, it is a proper and likely necessary objection.

Objecting during cross

A defense attorney on cross examination typically gets a lot of leeway from a judge. Counsel’s standard response to an objection is, “Judge, this is cross.” But even during cross, defense attorneys are not exempt from following the rules. It is difficult, though, because the defense is allowed to ask leading questions, and sometimes the attorney will say the objectionable information as he is asking the question. You may not have enough time to object before the jury hears it.[7]

            For help objecting during cross, I will focus on three types of witnesses: peace officers, crime victims, and experts.

Peace officers. When a police officer is cross examined, the most likely objections are:
            1) relevance,
            2) hearsay,
            3) outside of the expertise, and
            4) question calls for a legal conclusion.[8]

            Relevance is a very low standard. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”[9] However, the defense will sometimes try to elicit evidence from cases, instances of officer misconduct, drug use by third parties, or other information that is not really relevant or would be overly prejudicial under Rule 403. In a DWI case, it may not really make a fact of consequence more or less probable if the officer drinks alcohol socially or if he would have two drinks and drive home. What an officer did days or weeks prior to the night in question is probably not relevant.

            Regarding hearsay, defense attorneys who are cross-examining an officer will often try to rely on outside information in medical journals, heat tolerances for blood vials, or some other document or book that they find reliable but is generally not admissible. If the defense attorney’s question is related to some other document or statement, then it very well may call for a hearsay objection. This includes the defendant’s own statements. Questions that start with, “Didn’t my client tell you …” are almost always objectionable. It may not matter if you have already offered a videotape of the objectionable hearsay statement, but it can manifest itself in other ways. For example, a defense attorney may ask a witness, “Did you know that my client told his wife he loved her, not that he wanted to burn her house down?” Throwing the words “did you know” in front of a blatant hearsay statement doesn’t make it automatically admissible. When the defense starts offering evidence of other events or statements, I object with relevance and hearsay and a little indignation.

            Remember, though, that sometimes we want hearsay information in the record. If you don’t object to it, then it comes in for its truth. The rules specifically state as much in TRE 802: “Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.” So the Rules of Evidence specifically permit prosecutors to allow hearsay in through defense questioning or our own questioning if we do not object.

            We should be asking questions that establish an officer as an expert in police investigation and any areas relevant to her role in the investigation. Most street officers will be experts in collection and tagging of evidence and maybe in intoxication and standardized field sobriety tests, including the horizontal gaze nystagmus. However, defense counsel may try to ask them questions that fall outside their expertise. An officer may not realize it at first and dig a hole by answering questions about the heat tolerances of blood vials and their effect on alcohol concentration. The defense will do so because a blood analyst will know how to combat the argument of heat tolerances while an officer or nurse may not. The same holds true for lay witnesses or officers in other types of cases. They may get asked questions about DNA or fingerprints, and they don’t know the answers but may be afraid to say so. It will be the prosecutor’s job to object that the State’s own witness does not have the requisite expertise and try to force the defense to ask the correct expert from the lab about these questions.

            Officers will also get crossed on whether the defendant was in custody, if certain facts amount to probable cause or reasonable suspicion, or that if one fact is true then the case can’t be proven beyond a reasonable doubt. So while it is true that “an opinion is not objectionable just because it embraces an ultimate issue,” it is still inappropriate to ask for a pure legal conclusion from any witness.[10] If the defense is asking an officer if he put the defendant in handcuffs, that’s fine. If he asks, “You put him in handcuffs, and at that point you didn’t have probable cause?” then he is asking for a legal conclusion and the officer’s subjective belief is not relevant to the question. Only the objective facts known to the officer at the time are relevant.[11]

Crime victims. When a victim is on the stand, the defense attorney may try to offer inadmissible character evidence, badger the witness, and ask cumulative questions that have already been answered. A prosecutor’s best shield is a good motion in limine. The motion should include objections to the victim’s prior bad acts and prior convictions if they are not admissible under Rule 609.[12] If the victim does have a felony or theft conviction in the last 10 years, then you should go over it on direct examination and thereby mitigate the sting of its impact when the defense brings it up.[13]

            Defense attorneys may try to blurt out the damaging information in an attempt to force an objection in front of the jury and both highlight the information and make it look like you want it hidden. I try to avoid this by asking to approach outside the presence of the jury before the victim takes the stand; there, I ask for clarification on the previously ruled motion in limine. I may approach again after I pass the witness if defense counsel has been pushing the envelope.

            There is no rule of evidence against “badgering the witness” or “asked and answered.” However, I’d say that in 90 percent of courtrooms, a good “badgering” or “asked and answered” objection will be sustained. The real legal authority invoked is under Rules 611 and 403. TRE 611 gives the court the responsibility of “exercis[ing] reasonable control over the mode and order of examining witnesses and presenting evidence so as to: 1) make those procedures effective for determining the truth; 2) avoid wasting time; and 3) protect witnesses from harassment or undue embarrassment.” TRE 403 doesn’t merely state that relevant evidence may be excluded for “unfair prejudice.” The rule also allows for the exclusion of relevant evidence on the grounds that it is “confusing the issues, misleading the jury, [causing] undue delay, or needlessly presenting cumulative evidence.” “Asked and answered” falls under the undue delay or needlessly presenting cumulative evidence part.

State’s experts. When the defense attorney is cross examining a State’s expert, the prosecutor’s strategy will depend largely on how much you trust the witness. Has she testified countless times and seen every trick in the book? Many blood analysts will fall into this category. Or has he testified only once before and bombed? Unfortunately, some blood analysts will fall into this category.

            If an expert is really polished, she can probably handle the defense attorney and unreasonable questions on her own. When asked for an opinion outside her expertise or that improperly assumes a fact not in evidence, a good expert will say, “That is outside of the appropriate field of scientific study involved in my analysis” or “I did not have any reason to believe X fact was true at the time of my analysis.”

            Every now and then, a good defense attorney will get a rookie expert talking about all the possibilities in the world that are outside of his expertise or based on fact scenarios so crazy that nobody would consider them reasonable. This new expert may be intellectually stimulated by the profundities of these possibilities, and he may start nodding along and engaging with the defense counsel when he says that by the State’s logic, it is possible his client would have had to drink 57 beers to reach a certain BAC. “It’s possible …” replies the expert. In cases like this, I will object and try to make defense clarify that he is asking a hypothetical question, and I’ll object to the question being based on facts that are not in evidence.[14] It is true that we may ask an expert witness hypothetical questions, but I feel like it is better for the jury to know that defense is about to engage in an experiment rather than just laying out the probative facts of science in the case.[15] These things happen quickly, and prosecutors have an opportunity to frame the way the jury receives the evidence, not only during direct examination but also in our reaction to defense questioning.

Objecting during defense direct

The most frequently used objections when defense is on direct examination of a defense witness are:
            1) leading,
            2) relevance, and
            3) hearsay.

Leading. Learning how to ask non-leading questions and present evidence through direct examination of a witness is difficult. It is an art that takes practice. Sometimes, a defense attorney’s direct examination can look a lot like friendly cross examinations, where he leads like crazy.

            Most leading is totally harmless and just makes a prosecutor look silly if he objects. But if the defendant is on the stand and his attorney is asking him stuff like, “And when she came at you, did you raise your left hand to defend yourself?” then you are losing valuable testimony from the defendant. I would object to leading when defense counsel is providing the mental state or description of facts for the defendant. Make the defendant provide the information himself. If his attorney continues to do it, then you’ll at least have signaled to the jury that the defendant is being coached. This is also a topic you can visit on cross.

Relevance. The defendant and defense witnesses may attempt to offer mountains of evidence of the victim’s bad character or the defendant’s various achievements that are irrelevant. A motion in limine is the best remedy for attacks on the victim’s bad character.

            The defendant’s achievements are a little different matter. Rule 404(a) provides that, “In a criminal case, a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.” So the relevant limitation is that character evidence includes only a pertinent character trait. During the guilt-innocence phase, defense counsel shouldn’t be getting into how the defendant works at a soup kitchen for the homeless if the pertinent character trait is his sobriety. The proper objection is relevance and character evidence of a non-pertinent character trait.

            On the other hand, if you have cross examination material on a relevant bad character trait, you should be allowed to offer that evidence. A trial strategy to employ here is to ask to approach the bench and object something like this: “Judge, I object to this improper character evidence. I mean, if he is going to get into this topic, then the State should be allowed under Rule 404 to rebut it. So I object, but if he wants to go down this road, it is going to open the door to other bad acts.” Even if you don’t win this objection and the defense gets to go into the topic, it may make them pull back or move on more quickly, and the judge will be primed to listen to appeals for bad character evidence’s admission in rebuttal.

Hearsay. Hearsay law and how it is practically applied are very different. You might think the definition of hearsay is “an out-of-court statement offered to prove the truth of the matter asserted.” That is what you were taught, but it is technically wrong. The rule actually provides, “Hearsay means a statement that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement.”[16] It’s obvious from a cursory plain language reading that a defendant’s own statement to police on the day of the robbery is a statement that he “[did] not make while testifying at the current trial.” I will say that most judges seem to know this if you are objecting to the defense admitting a DVD of his own self-serving interview in an aggravated robbery case, but our objections will more likely fall on deaf ears when the defendant tries to tell the jury everything he said to his neighbor the week prior to his domestic violence case. A defendant’s statement is excluded from the definition of hearsay by TRE 801(e)(2) only when “the statement is offered against an opposing party.” So the State gets to tell the jury what the defendant said, but the defendant doesn’t. He may argue that it isn’t offered for the truth of the matter asserted but for the effect on the listener, or he may argue a more explicit exception such as excited utterance, but you’ll never know if he can meet the exception if you don’t object to its admission.[17]

Objecting during closing argument

By closing argument, objections should be reserved for egregious violations or areas where we think the jury might simply get confused about an important point. A few places where defense attorneys may push the limits in closing argument are:
            1) arguing facts not in evidence, or its cousin
            2) misstatement of evidence,
            3) improper argument and jury nullification, and finally
            4) “placing the jury in the shoes of the defendant.”

            Because closing argument allows lawyers to make inferences from the evidence, almost anything the defense says about what happened that day is fair game.

Facts not in evidence. Defense counsel might try to slip in the victim’s bad acts that prosecutors had successfully kept out of the trial up to this point under a motion in limine. If he does, then all you have in your tool belt is a deflating “facts not in evidence” objection. Of course, if you object to a victim’s bad act as a “fact” not in evidence, you likely have lost the battle already. How about this instead? “Objection, Judge. Defense counsel is violating your order on the motion in limine.”

            You have another tool, too: You get to respond to defense arguments in your own final close. We can argue that “defense violated the court’s order and attempted to talk to you about unsubstantiated allegations. That’s what happens when the evidence against a defendant is so strong—you try to put someone else on trial. So let’s go over that evidence against him again.”

Misstatement of evidence. Say the defense attorney claims it took 12 seconds for police to arrive at the crime scene, but the video shows it took three minutes—you could object to a misstatement of evidence. But if you do, the judge will likely respond, “The jury will remember the evidence, and statements of the attorneys are not evidence.” Objecting to this type of misstatement doesn’t get you anywhere.

            If the misstatement is easily proved wrong, just wait until your final close. If it’s a minor but confusing point, a simple objection could be enough to show jurors you disagree with that part of the defense’s closing argument. I’ve had jurors shoot me a look when defense was arguing something that was clearly wrong, almost urging me out of my chair to object. On one occasion, defense counsel said that his client was wearing “high heel stilts” in the DWI video and that she couldn’t balance. A female juror who was wearing wedges—these are women’s shoes with a flat bottom and a raised heel—must have noticed that the defendant was actually wearing wedges in the video, and this juror shot me a look to get my attention, looked at her own wedge-heel shoes, and then looked back at me. I stood up and objected to the misstatement of evidence and got the standard response from the judge—but that the juror nodded her head in approval. I’d have to say that was probably the most effective objection I’ve ever made.

Improper argument and jury nullification. The other objection that comes up in closing argument is improper argument, and it generally means that the defense is asking for jury nullification. An argument by defense counsel that asks the jurors not to participate in jury deliberations is improper.[18] Some defense attorneys will approach the line of what’s proper but not cross it; they might ask jurors to “make up their own mind and don’t let someone tell you you’re wrong” or say to them, “You’re not one jury; you’re 12 individual juries, and you have to reach your own personal verdict.” I’m of the opinion that objecting and letting them know it’s an improper argument is fine, but it may not be necessary. As is always the case, prosecutors have to be intentional and think about how the entire trial has gone up to this point. If you’ve done a good job so far, then the defense’s closing argument might not matter much.

Placing the jury in the defendant’s shoes. Any time the defense tries to ask jurors, “What would you have done if you were the defendant?,” it is called a “Golden Rule” argument, and it is generally improper. There is a long-standing legal tradition that neither party in any lawsuit or prosecution may engage in this type of argument,[19] which can also appear in the form of “How would you feel if you were the defendant?” and “If they can do this to him, they can do it to you.”

When not to object

You have to know when to hold ’em and know when to fold ’em. So how do you know? That’s the real trick.

            Based on your preparation for a case, you will know a few issues that will likely come up. Object on those issues until the judge sustains your objections or until your continuing to object starts to look like you don’t respect the court. The jury normally believes that the judge is the smartest person in the room and whichever lawyer appears to be in more agreement with the judge is probably right. If you think having an objection on a victim’s prior drug problem sustained was critical and you lose that battle, it’s time to start evaluating what else you want to let in and what objections you’re going to let slide.

            I suggest that we object only if we know the judge will sustain the objection or we don’t care if it’s sustained. This is similar to the cross-examination rule where you don’t ask a question you don’t already know the answer to—unless you don’t care what the answer is. If defense counsel’s question is “almost speculation,” don’t object just because you can. If the point of your objection is to let the jury know that the defense’s statement isn’t true, regardless of whether your objection is sustained, then go ahead and object.

            If the defense attorney is digging himself a hole with a witness and that witness doesn’t need protecting, you may not want to object just because he didn’t lay the proper predicate for the 911 audio. If you want the jury to hear the 911 audio, then let it come in. Also don’t object if your case is going really well. Objecting to technicalities is important only when you think the truth would be obscured by admitting the evidence.

            Lastly, don’t object because you’re mad at defense counsel. Some prosecutors can come off as angry and wound-up. If defense attorneys know that you get riled up and angry when they violate minor rules, they just might do it just to get the reaction. Remember that there are a hundred ways to win a case, and objections are just tools to help control the presentation of evidence. We object so that our theory of the case and our presentation of the truth fills the courtroom and shapes how the jury experiences the trial. Maybe we do so by excluding certain inadmissible evidence, or maybe it is by letting the jury know that the State disagrees with the particular evidence offered. If your trial strategy depends on the jury believing you are merely presenting the uncontested facts, then there is no room for being upset over petty procedural issues. On the other hand, if your strategy depends on the jury seeing you as someone who will fight for every inch on behalf of the victim and the people in the community, then maybe they would expect you to object often.

            We should be intentional with every decision, word, and movement we make in a trial. We are building the world view of the jurors from the moment they walk into the courtroom for voir dire to the moment they leave after the verdict.

Conclusion

I hope this article gives you an idea of when, how, and why to object. If you have any additional questions or suggestions, please feel free to email me at [email protected] i

Endnotes

[1]  The “fog of trial” is similar to the “fog of war” coined by Carl von Clausewitz in his 1832 book, On War, where he writes, “War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty. A sensitive and discriminating judgment is called for; a skilled intelligence to scent out the truth.”

[2]  Logan v. State, 71 S.W.2d 865, 869 (Tex. App.—Fort Worth 2002, pet. ref’d) (holding that in a criminal case a statement by a victim or complainant is not admissible under Rule 801(e)(2) as an admission by a party opponent).

[3]  The trial court correctly overruled Hernandez’s objection to the State’s use of the objective standard and sustained the State’s objection to Hernandez’s use of the subjective standard. Hernandez v. State, 107 S.W.3d 41, 52 (Tex. App.—San Antonio 2003, pet ref’d).

[4]  “The appellant is entitled to a charge stating that he need have only a reasonable belief that he is under unjustifiable attack viewed from his standpoint at the time he acted.” Kolliner v. State, 516 S.W.2d 671, 674 (Tex. Crim. App. 1974) (holding that defendants are entitled to have the jury consider the reasonableness from the defendant’s standpoint). Of course, it still has to have been objectively reasonable or there would be no point to self-defense instructions.

[5]  Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001).

[6]  Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997).

[7]  Sometimes a judge will want to hear the entire question before entertaining an objection. If you don’t want the jury to hear the question at all, then ask to approach before stating the objection and have defense counsel proffer the rest of the question at the bench and outside the jury’s hearing. This is helpful when the question to a victim is, “Isn’t it true you’re a convicted murderer?” We should approach on that one and make sure the felony conviction is within the last 10 years and relevant under TRE 609.

[8]  A witness may not testify to his opinion on a pure question of law. Baxter v. State, 66 S.W.3d 494, 504 (Tex.App.—Austin 2001, pet ref’d) (citing Lyondell Petrochemical Co. v. Fluor Daniel, Inc., 888 S.W.2d 547, 554 (Tex.App.—Houston [1st Dist.] 1994, writ denied)); Anderson v. State, 193 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2006, pet ref’d).

[9]  TRE 401.

[10]  TRE 704 and Baxter v. State, 66 S.W.3d 494, 504 (Tex.App.—Austin 2001, pet ref’d).

[11]  “Moreover, the subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).

[12]   There are some nuances to Rule 609, but generally any witness may be impeached with prior convictions for theft or a felony in the last 10 years. Again, there is more to it than that, but the quick answer is object any time defense counsel isn’t going after one of these.

[13]  An example of a non-traditional moral turpitude crime is assault by a man on a woman. “We hold, therefore, that a conviction for misdemeanor assault, as defined by Penal Code § 22.01, by a man against a woman is a crime involving moral turpitude and therefore is admissible as impeaching evidence under rule 609 of the Texas Rules of Criminal Evidence.” Hardeman v. State, 868 S.W.2d 404, 407 (Tex. App.—Austin 1993), pet. dism’d, 891 S.W.2d 960 (Tex. Crim. App. 1995).

[14]  It is improper to cross-examine a witness with a question that assumes a fact not in evidence. Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991); see Duncan v. State, 95 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

[15]  “An expert can offer an opinion based solely on hypothetical questions posed at trial.” Tillman v. State, 354 S.W.3d 425, 439 (Tex. Crim. App. 2011).

[16]  TRE 801(d).

[17]  Statements may be “admissible as evidence of their effect on the listener, rather than of the truth of the matter asserted.” Young v. State, 10 S.W.3d 705, 712 (Tex. App. 1999). See also Statements “would not constitute hearsay if offered for their effect on the listener rather than for the truth of the matter asserted.” In re Bexar Cty. Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 189 (Tex. 2007). Excited utterance is specifically listed under TRE 803(3) exceptions to the rule against hearsay—regardless of whether the declarant is available as a witness.

[18]  “Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict or conviction can be set aside by the court as being against law.” Mouton v. State, 923 S.W.2d 219, 221–22 (Tex. App.—Houston [14th Dist.] 1996, no pet.).

[19]  One example of this comes from Beckett v. State, an unpublished opinion, but take it for what it’s worth. Defense argued, “If [Beckett] believed what he did was wrong, then why was he so ready to tell the officer? Because you have to look at that at that time. Look at the photographs. If you had done that and you had known that you had done that, would you have been sitting in the room? …” The trial court sustained the State’s objection that the argument “[put] the jury in the shoes of the defendant.” Courts have held as improper argument that asks the jury to stand in the shoes of a party. See e.g. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 481–82 (Tex.1943); World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145–46 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). This is so because the jurors are being asked to consider the case from an improper viewpoint, Fambrough, 169 S.W.2d at 482, that is, from the perspective of an interested party as opposed to a neutral fact-finder. See Brandley v. State, 691 S.W.2d 699, 712 (Tex.Crim.App.1985) (asking jurors to imagine how they would feel if they had lost a daughter improper argument because it was essentially a plea for abandonment of objectivity). “We conclude the trial court did not abuse its discretion in sustaining the State’s objection to the jury argument asking the jury whether they would have been sitting in the interview room if they had inflicted the injuries shown on the autopsy photographs of Christopher.” Beckett v. State, No. 05-10-00331-CR, 2012 WL 955358, at *6 (Tex. App. —Dallas Mar. 22, 2012, pet. ref’d, untimely filed).