Saturday, September 11, 2010
I'm Not There: Texas Court Excludes Former Testimony Based On Absence Of Evidence Of Witness Unavailability
In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
And, as with its federal counterpart (and all Rule 804(b) hearsay exceptions), Texas Rule of Evidence 804(b)(1) is only triggered if the witness is "unavailable" to testify as defined in Texas Rule of Evidence 804(a). And it was this latter requirement which presented a problem for the defendant in Williams v. State, 2010 WL 3503939 (Tex.App.-Waco 2010).
In Williams, Joe Sidney Williams was convicted of evading arrest or detention in a motor vehicle, enhanced by a prior conviction for evading arrest in a motor vehicle and a prior burglary conviction to a second degree felony for purposes of punishment. At trial, Williams sought to present the transcript of testimony from a witness at his trial leading to his prior conviction. According to Williams, the transcript was admissible under the former testimony exception contained in Texas Rule of Evidence 804(b)(1).
In rejecting this argument the Court of Appeals of Texas, Waco, did not state the nature of the witness' former testimony because it didn't have to. Instead, the court simply noted that
It is the burden of the proponent of testimony to establish that a witness is “unavailable” as defined by Rule 804(a). For example, for purposes of Rule 804(a)(5), the proponent of testimony must demonstrate that a good-faith effort was made prior to trial to locate and present the witness....
Here, the record is silent as to whether the witness is in fact unavailable, for what reason she was unavailable, or what Williams had done to attempt to secure her presence at trial. Because Williams did not establish that the witness was unavailable, the trial court did not abuse its discretion in sustaining the State's objection to the testimony.