EvidenceProf Blog

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

Sunday, February 28, 2021

Texas Court of Appeals Finds Defense Counsel Didn't Preserve Expert Evidence Issue for Appellate Review

Federal Rule of Evidence 705 states that

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Conversely, Texas Rule of Evidence 705 is more complex. It has four subsections, including subsection (b), which states that

Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

So, did defense counsel's objection in Taylor v. State, 2021 WL 747569 (Tex.App. 2021), preserve a Rule 705(b) issue for appellate review?

In Taylor, Stephen Michael  Taylor was charged with continuous sexual abuse of a child, aggravated sexual assault of a child, and two counts of indecency with a child.  At trial, when the prosecutor was questioning Texas Ranger Jason Shea about his interview with Taylor, the following exchange occurred:

[PROSECUTOR] Q: Okay. Was there anything else that caught your attention in the interview?
A: Yes.
Q: What was that?
A: A statement that he made was --
[DEFENSE COUNSEL]: Your Honor, we object to hearsay. Can I ask Ranger Shea a couple questions on voir dire?
THE COURT: Not in relation to a hearsay objection because that would be overruled.
[DEFENSE COUNSEL]: Our objection is the answer is double hearsay.
THE COURT: Overruled.

After he was convicted, Taylor appealed, claiming that the trial court violated Rule 705(b) and that his attorney preserved the issue for appellate review with the above objection. The court disagreed, concluding that

In his objection, trial counsel objected to hearsay and asked the trial court if he could “ask Ranger Shea a couple questions on voir dire.” He did not specifically state to the trial court that he wanted to determine Ranger Shea's expert qualifications. If that was trial counsel's intention, what is “apparent from the context” of the exchange in question is that the trial court did not understand counsel's intended purpose in making the request. Immediately before the initial “hearsay” objection and voir dire request, the witness's partial answer, on its face, was regarding “a statement that [Appellant] made” during his interview with Ranger Shea. When given the opportunity to clarify, counsel's speaking objection appears to be that Ranger Shea's anticipated answer to the pending question was going to constitute double hearsay and that, on that basis, counsel wanted to voir dire the witness.



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I get that you have to go for broke on a criminal appeal, but this one really seemed like a longshot.

For one, I'm not sure how the Ranger would be considered an expert in this context. He was just testifying about an interview he conducted. That seems like quite run-of-the-mill, non-expert testimony.

Also, I don't see how the specific question called for expert testimony either. It was just asking the Ranger to recount a statement by the defendant. Maybe it's arguable the Ranger was going to opine on the statement in a way that would implicate some of the Ranger's expertise (such as it was). But that would still be a stretch in my view.

Even then, all defense counsel objected to was double hearsay. But I don't see how the defendant's statement would qualify. That's a quintessential party opponent admission. It's not clear, but I suppose there might have been embedded hearsay in the defendant's statement. That's about it though, which is still a far cry from anything to implicate Rule 705(b).

Posted by: hardreaders | Mar 2, 2021 6:30:03 AM

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