EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, February 2, 2012

Texas Justice: Court Of Appeals Of Texas, Houston, Notes Exception To Rule 608(b)

Texas Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

That said, Texas courts have carved out an exception to Rule 608(b) as is made clear by the recent opinion of the Court of Appeals of Texas, Houston, in McGough v. State, 2012 WL 273885 (Tex.App.-Houston [14 Dist.] 2012).

In McGough, James Alan McGough was convicted of aggravated assault of a household member and assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice. After he was convicted, McGough appealed, claiming that the trial court erred by permitting the prosecution to present evidence that he was on parole at the time of trial for a prior felony conviction in 1990.

The court of appeals disagreed, finding that

Rule of Evidence 608(b) prohibits the use of specific instances of conduct to attack the credibility of a witness, but the Court of Criminal Appeals has recognized an exception to this prohibition where a party seeks to prove a witness's bias or motive to testify falsely.

Specifically, the court of appeals found that in presenting this evidence,

the State sought to show that appellant was biased as a witness and had a motive to testify falsely to avoid being convicted of a violation of his parole. The trial court allowed the introduction of this evidence under Rule of Evidence 608(b), and we conclude that it did not err in overruling appellant's objection. We accordingly overrule appellant's second issue.



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There are actually two courts of appeals in Houston: First and Fourteenth, with overlapping appellate districts. Cases are assigned randomly, except for subsequent appeals in the same case. Sometimes they disagree, although probably not on this particular issue.

Posted by: WOLFGANG DEMINO | Feb 3, 2012 9:02:43 AM

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