Unlimited: Court Of Appeals Of Texas Opinion Reveals That Most Hearsay Admitted Under An Exception Is Not Subject To A Limiting Instruction

Texas Rule of Evidence 105(a) provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

As the recent opinion of the Court of Appeals of Texas, Houston, in Green v. State, 2009 WL 4575146 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, statements offered under an exception to the rule against hearsay are usually admissible for all purposes, meaning that they are not subject to limiting instructions.

In Green, Curtis Green, Jr. was convicted of murder after he allegedly stabbed Patrick Gims. Someone who allegedly saw the stabbing then called 911 and said, ostensibly with regard to the victim: (1) "That man ain't never did nothing to nobody. He may be drunk all the time but that man ain't never did nothing to nobody[;]" (2) "[t]hat man never did nothing to nobody, dog[;]" and (3) "[h]e never did nobody no harm." The trial court admitted these statements under the present sense impression exception to the rule against hearsay.

Now, obviously, these statements contained character evidence, but the trial court found that Green opened the door for their admission by injecting the issue of character into trial, and the Court of Appeals agreed. Green also "requested an oral limiting instruction telling the jury 'that they can only consider [the 9-1-1 tape] as the present-sense impression of the witness and you can't consider this as testimony for you to rely upon in convicting the defendant.'"  

The trial court refused to give such an instruction, and the Court of Appeals affirmed that decision on appeal. The Court of Appeals correctly found that

Statements admitted as present sense impressions or excited utterances are admissible for all purposes and are not subject to a limiting instruction. See Green v. State, No. 07-06-0367-CR, 2007 WL 923081, at *2 (Tex.App.-Amarillo March 28, 2007, no pet.) (mem. op., not designated for publication) (“Being an excited utterance, [the statement] was admissible free of any limiting instruction despite its supposed hearsay nature.”); Cockrell v. State, No. 04-05-00767-CR, 2006 WL 2955325, at *3 (Tex.App.-San Antonio Oct. 18, 2006, pet. ref'd) (mem. op., not designated for publication) (“A statement admissible as an excited utterance is admissible as an exception to the hearsay rule. Accordingly, if the trial court admitted the statements as excited utterances, the statements were admissible for all purposes and were not subject to a limiting instruction.”); Alli v. State, No. 01-04-00448-CR, 2005 WL 428231, at *3 (Tex.App.-Houston [1st Dist.] Feb. 24, 2005, no pet.) (mem. op., not designated for publication) (“The record shows that Magdalene's statements to the peace officers were admissible as excited utterances. A limiting instruction would thus have been improper because her statements were admitted for all purposes at trial and could be properly used by the jury as primary evidence of appellant's guilt.”). Therefore, the trial court did not err in denying appellant's request for a limiting instruction.

In other words, when a statement meets a hearsay exception, it is admissible to prove the truth of the matter asserted, not anything less. Thus, there typically is no basis for requesting a limiting instruction when hearsay is admitted under an exception to the rule against hearsay.

-CM