By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
Stand-up comedian (and actor, writer, and film producer) Stephen Wright is best known for his deadpan delivery of one-liners. One of his best is, “Anywhere is walking distance if you have the time.” It’s hilarious, and it also contains an interesting sort of thought experiment.
With time, preparation, and grit, it’s possible for a healthy individual to walk to nearly any destination, at any distance. British adventurer and total badass Alice Morrison walked 1,000 miles crossing the Sahara Desert in 2020, and 700 to 800 people will walk to the summit of Mount Everest every year. Nobody would consider either of those “walking distance” in the ordinary use of the term, though, so whatever is considered walking distance depends on a fluid, fact-dependent concept of reasonable effort applied on a case-by-case basis.
Defining fact-dependent reasonable efforts is where this month’s column comes in. This “As the Judges Saw It” offering involves a recent opinion of the Court of Criminal Appeals, Elsik v. State,[1] which deals with hearsay declarant unavailability when a witness has been deported, and what the Court considers reasonable efforts to obtain the declarant’s presence or testimony at trial.
Background
Steven Elsik was charged with 13 counts of human smuggling (under the 2015–2021 version of the statute then in effect) after he was pulled over for driving an overweight vehicle, speeding, and evading, and he was found with 12 individuals stacked in the bed of a rental pickup truck under blankets, with one more in the passenger seat. An agent with the U.S. Border Patrol spoke with the individuals at the sheriff’s office and took them into federal custody after all 13 identified themselves as Mexican citizens; two were under 18, making the offenses a second-degree felony, enhanced to first-degree punishment by a prior felony conviction. From the agent’s testimony at trial, it appears that all 13 individuals were deported prior to trial.
When the agent began to testify as to the 13 passengers’ statements giving their names, nationalities, and dates of birth, Elsik objected to hearsay, arguing that no exception existed and that the State had failed to prove the declarants’ unavailability. The prosecutor stated that the statements were admissible under Rule 804(b)(3), the “Statement of Personal or Family History” exception, which includes statements about “the declarant’s own birth; adoption; legitimacy; ancestry; marriage; divorce; relationship by blood, adoption, or marriage; or similar facts of personal or family history. …”
Regarding unavailability, the prosecutor argued that they were so beyond the reach of the court that it was futile to try:
Well, if I asked the Sheriff, gave him a subpoena to go into Mexico and serve the subpoenas there, I think he would look at me in askance and askew and tell me he doesn’t have jurisdiction to serve subpoenas over there in Mexico and I’m not going to waste his time.
Once they were deported, we’re not the federal government. We do not have the ability to hold onto them. They were outside our jurisdiction and outside our reach. And we were unable to get them and find them to even issue a subpoena.
The trial court overruled the objection. Elsik was found guilty and sentenced to two 99-year sentences, 11 20-year sentences, and five years for evading arrest.
Elsik appealed the human smuggling counts, alleging legal insufficiency, violation of the Confrontation Clause, and hearsay. The San Antonio Court of Appeals found the evidence was legally sufficient and that there was no Confrontation Clause violation, but the hearsay argument found some traction.[2] Under Texas Rule of Evidence 804(a)(5), witness unavailability is shown when the person “is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.” The State had argued at trial that the witnesses had been deported to Mexico, were unable to be found much less subpoenaed, and that it was futile to even attempt doing so. The court of appeals held that the prosecutor’s statement was not a substitute for competent evidence, and because the State failed to present any evidence that it had not been able, by process or other reasonable means, to procure the declarants’ attendance or testimony, the trial court abused its discretion in finding the declarants unavailable.
Having found the evidence inadmissible hearsay, the court of appeals addressed harm. Under the non-constitutional harm standard of Texas Rule of Appellate Procedure 44.2(b), the reviewing court disregards error that does not affect a defendant’s substantial rights, meaning that they “[will] not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but slight effect.”[3] The court of appeals found that the effect was slight in all but the two offenses involving juveniles. The court reversed the two second-degree felonies and affirmed all others. The State petitioned the Court of Criminal Appeals.
As the Court of Criminal Appeals Judges Saw It
The Court of Criminal Appeals reversed and remanded on all 13 smuggling counts. The State had asked the Court to essentially adopt two bright line rules: one, that a prosecutor’s statements as an officer of the court were inherently reliable for determining admissibility, and two, that a deported individual was per se unavailable for purposes of hearsay objections under Texas Rules of Evidence 804. The majority opinion of Judge Slaughter, joined by all judges except Presiding Judge Keller (who dissented without written opinion), declined both arguments.
The State had argued that under State v. McGuire,[4] the trial court can rely on the unsworn statement of a prosecutor in deciding admissibility, but the Court observed that in McGuire, the prosecutors were speaking from their own personal knowledge (regarding the length of time needed and difficulty getting a warrant at nighttime in their home county). Here, even though speaking truthfully as an officer of the court, the prosecutor offered no personal knowledge or factual support showing that the witnesses were truly unavailable. Judge Slaughter stated that the prosecutor’s conclusory statement showed that the State simply assumed that the witnesses were unavailable after deportation and took no steps to attempt to secure their presence or testimony.
The State also cited the U.S. Supreme Court’s opinion in Mancusi v. Stubbs,[5] which suggests that unavailability is shown when a state cannot compel a foreign witness to attend trial. Judge Slaughter observed that the text of Rule 804 requires the proponent to show an inability to procure not only attendance at trial, but to also show an inability to procure the witness’s testimony. The federal version (Rule 804(a)(5)) on which our state rule is modeled requires an attempt be made to depose the witness; Tex. Code Crim. Proc. Art. 39.09 expressly permits depositions of nonresident witnesses taken “before any diplomatic or consular officer,” and Tex. R. Evid. 804(b)(1)(B)(iii) expressly permits the introduction of depositions of nonresident witnesses taken “before any diplomatic or consular officer.”
Judge Slaughter further noted that parties had been able to so depose witnesses for over 130 years, citing the 1885 case of Adams v. State[6] in which the defendant could by statute depose and admit the testimony of four witnesses residing in Mexico.
The State argued that the process of obtaining a visa for deported witnesses was so impracticable as to be unfeasible, but there was no record built on that point in the trial court. The Court did disagree with the lower court’s language that a “good faith” effort must be made, saying instead that “other reasonable means” is necessarily fact-dependent and determined on a case-by-case basis. Because the State showed no attempt on the record to secure the witnesses’ presence or depose them either before or after deportation, the burden to show their unavailability was not met.
The takeaway
Elsik is not just an issue for prosecutors trying human smuggling cases; immigration consequences can hinder any prosecution. There are avenues to pursue the presence of a witness who is or could be subject to deportation proceedings, such as U-visas and T-visas under the Victims of Trafficking and Violence Act, Violence Against Women Act (VAWA) petitions, requests for Deferred Action (DA) or an Administrative Stay of Removal (ASR) for witnesses in immigration custody, and writs of habeas corpus. If your office deals with these frequently, it’s likely your victim assistance coordinators have knowledge and experience here. Sometimes it will simply not be possible to secure a witness’s presence through these measures, though, in which case you’ll have to look to other means.
First, bear in mind that it may be possible to get the necessary evidence in through non-hearsay. In the recent case of Gutierrez v. State,[7] the Thirteenth Court of Appeals distinguished Elsik in finding that the evidence presented at a human smuggling trial under Tex. Penal Code §20.05 was not hearsay. In that case, the arresting officer was asked on the stand, “[W]hat was the identification [the back seat passengers] provided?” and replied (over hearsay and Confrontation Clause objections) that they identified themselves using cards issued by the federal government of Mexico, identifying them as citizens. The court of appeals held that this was not a “statement” under Rule 801, because the officer “did not elicit an oral or written verbal expression, nor testify regarding nonverbal conduct that a person intended as a substitute for verbal expression.”[8] The court of appeals further found that even if the information could be characterized as “a statement,” it was not hearsay because it was not being used to prove the truth of the matter asserted; the officer explained that she had asked the passengers for identification because they were not wearing seatbelts and for officer safety.[9] The appellant in Gutierrez is petitioning the Court of Criminal Appeals, so while we should be careful of that particular holding, it’s a useful reminder that not everything that looks like hearsay actually is.
Second, remember that not all hearsay exceptions depend on a showing of unavailability; hearsay exceptions under Tex. R. Evid. 803 apply regardless of whether the declarant is available as a witness (it’s right there in the title and everything!). In Elsik the State argued in the alternative that the deported declarants’ statements were admissible as statements against interest under Tex. R. Evid. 803(24), because the information potentially exposed them to criminal liability for illegal entry into the United States. The Court did not accept that argument because the remarks to the Border Patrol agents “reflected nothing more than basic identifying data,” but if you have a valid exception under Rule 803, remember that Elsik is not a bar—immigration status won’t keep out your excited utterance.
Finally, be aware that Elsik does not stand for the proposition that one can never claim the unavailability of a deported declarant. Rather, the Court is telling us that unavailability for hearsay purposes cannot be assumed. In that respect, the opinion in Elsik works as something of a roadmap for either securing the trial attendance or deposition testimony of the witness through reasonable means, or by showing that it was not possible to do so. If the witness is truly unavailable for trial or deposition despite the best efforts of your team or office, be prepared with the testimony of an investigator with documentation as exhibits, coupled with the statements by the prosecutor that all available efforts listed in Elsik were taken but proved fruitless. In other words: show your work, and if you have to walk, walk hard.[10]
[1] 714 S.W.3d 27 (Tex. Crim. App. 2024).
[2] Elsik v. State, 678 S.W.3d 360 (Tex. App.—San Antonio 2023), aff’d in part, rev’d in part, 714 S.W.3d 27 (Tex. Crim. App. 2024).
[3] Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
[4] 689 S.W.3d 596 (Tex. Crim. App. 2024).
[5] 408 U.S. 204 (1972).
[6] 19 Tex. Ct. App. 250, 260-62 (1885).
[7] No. 13-24-00208-CR, 2025 WL 2393597, 2025 Tex. App. LEXIS 6312 (Tex. App.—Corpus Christi Aug. 19, 2025, no pet. h.) (mem. op.).
[8] Id. at *39.
[9] Id. at *39–40. Gutierrez also observed, “The Court of Criminal Appeals has concluded that if a statement is introduced to explain how a defendant became a suspect or how the investigation focused on a defendant, then the statement is not hearsay because it is not offered for the truth of the matter asserted.” Nickerson v. State, 312 S.W.3d 250, 262 (Tex. App.—Houston [14th Dist.] 2010 pet. ref’d) (first citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); and then citing Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001) (holding testimony was not hearsay because it was not offered for the truth of the matter asserted, but rather to explain how the police officer began to suspect the appellant, seek an arrest warrant, and finally arrest him)).
[10] See Walk Hard: the Dewey Cox Story (Kasdan et al., Columbia Pictures, 2007).