The Texas Rules of Evidence – A lawyer’s Cheat Sheet

The Texas Rules of Evidence – An Overview

The Texas Rules of Evidence essentially govern what can be and cannot be presented as evidence in a court in Texas. The earliest known versions of the rules date to 1846, when a committee of the Texas Legislature adopted the first set. Those rules were almost entirely based on the then-current Texas civil practice rules, which had been derived in turn from the code of civil procedure of California in 1851.
Shortly after that, a joint committee of judges and attorneys worked for a year to draft comprehensive rules on pleadings, practice, and procedure. That effort resulted in a compilation in 1866, which became effective January 1, 1867. The current version of the rules is a complete rewrite based on the Texas Code of Criminal Procedure , adopted in January 1966. The rules have been revised and amended periodically since then.
The rules provide answers to such questions as when hearsay is inadmissible, what types of witnesses may testify, and what forms of evidence are admissible (or not) for various purposes. The rules also govern offered testimony, physical evidence, depositions, discovery, expert witnesses, judicial notice, burdens of proof, and presumptions.
Procedural elements of the rules apply to almost every aspect of civil proceedings, including case filings and motions, and govern the admissibility of various types of evidence. The scope of the rules also presents general guidelines for each parent in a family law case.

The Relevancy Rule in Simple Terms

As previously discussed, the very first step in determining if evidence is admissible – under any jurisdiction’s rules of evidence – is to determine if the evidence has any relevance to the case at hand. In other words, a judge would first have to find that the evidence proffered by a party in a case applies to the matter in question and thus has some bearing on the decision to be made in the case.
A simplified version of the Texas rules for what constitutes relevance may be found in Texas Rules of Evidence rule 401:
"Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action."
The applications of this rule are set forth in the comments after the rule and the cases interpreting the rule, but if the evidence in question falls within the parameters of rule 401, the court should likely find the evidence relevant. If relevance is found, the judge must then consider whether the probative value of the evidence is substantially outweighed by its prejudicial effect, pursuant to rules 403 and 404 of the Texas statutes.

Hearsay and Its Exception

The Texas Rules of Evidence defines hearsay as "(1) a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted; and (2) a nonverbal conduct of a person, if it is intended by the person as an assertion." In simpler terms, hearsay is an out-of-court statement used to prove the truth of the matter asserted. Hearsay is generally not admissible in court because such statements are unreliable: hearsay evidence cannot be challenged on the witness stand, it is less trustworthy than in-court testimony, and it prevents the trier of fact from getting the best possible evidence. Fortunately, there are several exceptions to the hearsay rule that allow such out-of-court statements to be admitted into evidence, namely: Any evidence admitted under these exceptions carries with it the weight of reliability and, unless the evidence falls under one of these specified exceptions, it is inadmissible in court for the stated purpose of proving the truth of the matter asserted.

Privilege and Immunity

Privileges are an important part of the case discovery rules. If a privilege exists, the information is confidential and deemed privileged, i.e., cannot be disclosed. Both federal and Texas rules provide for privileges such as attorney-client, spousal, husband-wife, and doctor-patient. Some doctors also have special privileges that allow them to not be deposed when treating accidents. In this, for example, some states statute provides that a physician shall not be examined about a communication that was necessary to enable him or her to prescribe extern remedies or professional health care services for an illness or injury arising from the TX A statements made in confidence to an advanced practice nurse or physician assistant who is rendered competent to practice (and therefore licensed under state code).
Attorney Client Privilege. The most commonly used privilege is the attorney-client privilege. Information obtained by the attorney from the client and communications made by the client to assist the lawyer in a legal matter are confidential and not subject to discovery. Communications between lawyer and client are therefore not generally discoverable. Exception: there are exceptions to the privilege that are found in federal rules. The classic situation where the privilege does not protect against disclosure arises because the client is eager to use the lawyer’s services for a wrongful purpose or to conceal embezzlements or other crimes and the lawyer is either involved or was consulted in facilitating the wrongdoing. Confidentiality waiver occurs when the client expressly or impliedly waives the privilege (i.e., advice of counsel defense in civil suits).
Husband-Wife Privilege. Communications between husband and wife are confidential (under the Texas statutory privilege), however, not every communication between husband and wife is protected by the privilege and the privilege may be waived.
Other privileges recognized by the Federal and Texas rules include the following:

• Work Product
• Doctor-Patient
• Psychologist-Patient
• Paralegals
• Social Workers
• Naturalizations

The Use of Expert Witness Testimony

The Texas Supreme court has adopted the reliability standard established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., for the admission of expert testimony. Johnson v. City of Fort Worth, 774 S.W.2d 653, 657-58 (Tex. 1989). In Daubert, the U.S. Supreme Court held that reliable scientific evidence should be admitted if the principles and methodology underlying it are scientifically valid and properly applied to the facts at hand. While the opinions themselves need not be foolproof, they must be derived from sufficient data or facts that can be trusted. In addition, the expert must be properly qualified to give the opinion in his/her area of expertise.
An expert witness is generally required to qualify as having "[special] knowledge, skill, experience, training, or education". See Tex. R. Evid. 702. This does not mean, however, that the expert witness needs to have formal degrees or education in the field at issue. An expert witness may certainly be qualified as having expertise based on observations, apparent knowledge, skills and practical experience in the area at issue . Smith v. Abercrombie, 249 S.W.2d 90, 92 (Tex. Civ. App.-Dallas 1952, no writ). The use of the phrase "and" in advising that an expert witness should have any one of the following qualifications has further strengthened the rule that formal qualifications (education and degrees) are not mandatory. See Aguirre-Mena v. Wafer, 719 S.W.2d 452, 453 (Tex. App.-Corpus Christi 1986, writ ref’d n.r.e.). Of course, if an expert witness’s education and credentials do not relate to his/her opinion, then the opinion is inadmissible on the basis of being relevant to the facts. Gammill v. Jack Williams Tire, C0, 972 S.W.2d 713, 718 (Tex. 1998).
Another primary guidelines for the admission of expert testimony is that the expert’s opinion be given based on "reliable facts or data". Tex. R. Evid. 703. This means that the expert’s opinion cannot be based on mere speculation. Oakwood Mobilhomes, Inc. v. Arredondo, 774 S.W.2d 153, 157 (Tex. 1989). Again, this does not mean the opinion itself must be foolproof. Johnson at 658.

Authentication of a Document

Document authentication is a necessary prerequisite to the admission of almost any document into evidence. Texas Rule of Evidence 901 provides that the requirement of authenticating or identifying a piece of evidence—whether it be a document, a photograph, or a recording—is satisfied by evidence that a reasonable juror could find credible. In other words, the proponent of the evidence need not prove that the evidence is what it purports to be; it need only show that the evidence is what it appears to be. Id. The basis for authenticating or identifying evidence depends upon the nature of the evidence.
For example, documents such as checks are authenticated through evidence that they were written by the maker or that they were the subject of a course of dealing between the parties. Id.; see also Santana v. State, 99 S.W.3d 788, 792 (Tex. App.—El Paso 2003, pet. ref’d). Records kept in the ordinary course of a party’s business are authenticated via "a custodian or another qualified witness or by a certification under Rule 902," which simply requires that the document contain sufficient details that will enable an expert witness to authenticate the document. Tex. R. Evid. 902(10); see also State v. Tennessee Rep. LLC. Dist., Inc., No. 14-12-00328-CV, 2013 WL 4564400, at *2 (Tex. App.—Houston [14th Dist.] Aug. 29, 2013, no pet.) (mem. op.).
Authentication of documentary evidence may be a straightforward process if it is performed properly. The process of authenticating evidence is generally not as confusing as it may appear on television dramatization. Texas courts do not require stringent standards of proof; rather, they are in accord with the Texas Rules of Evidence and are much more flexible in their authentication requirements. See Currie v. State, 511 S.W.3d 628, 633 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Butler v. State, 507 S.W.3d 686, 700 (Tex. Crim. App. 2013)). Admitting evidence parties intend on offering at trial as a piece of documentary evidence, without first authenticating it, or laying the correct foundation, can be a dangerous practice. It is in a party’s best interests to ensure that the proffered evidence is authenticated and/or admissible so as to avoid any unnecessary exclusion of the evidence, which could have been easily avoided.

Real and Demonstrative Evidence

The Texas Rules of Evidence draw a clear distinction between two categories of evidence: real evidence and demonstrative evidence.
These terms refer to two different classes or types of "material," which can be either tangible or intangible things that are capable of being made the subject of evidentiary presentations to a jury or other factfinder. They also refer to different ways in which they may be used, though it is common to see them lumped together as synonyms in plain language. For the Texas practitioner, however, these words have precise meanings, specific evidentiary rules, and distinct evidentiary implications, so they must be used with care.
Rule 1001(2) defines real evidence as "related to physical evidence, documents, exhibits and other objects."
Rule 1001(3) defines demonstrative evidence as "evidence that is first produced for observation, examination, and inspection by a witness before its introduction in evidence." It is any evidence that is not moved into the record (the "four corners" of the transcript) but is only displayed in front of the jury, generally for illustrative or explanatory purposes.
Real evidence is the tangible, or often accidental, physical object itself which the factfinder will ultimately consider when deliberating. Demonstrative evidence is the underlying explanation, interpretation, or re-creation of that underlying thing to prove or illustrate a witness’s testimony or to illustrate or summarize the evidence presented to that point for the judge or jury in an easier, more manageable form.
It is important to note that physical evidence is not necessarily "relevant" just by virtue of being a thing. Rule 404 prohibits the use of character evidence, including crimes, wrongs, or acts, to prove someone’s conduct on a particular occasion. The relevant character evidence exceptions are intent (Rule 404(b)(2)); including motive, opportunity, plan, knowledge, identity, absence of mistake or accident (usually affirmatively proving a defendant’s guilt); and the crime, wrong, or act "becomes an essential element of a case." (Note, also sticking in a list of exceptions is the uncommon institutional exemption, where character could be relevant if the defendant is an organization—Rule 404(b)(2)—not relevant here.) Evidence of character is primarily allowed and admissible to establish one’s state of mind (including motive and intent) prior to committing the offense alleged or to identify the perpetrator by "signature" or modus operandi. Character evidence to prove conduct to prove identity will only be admissible if it links the defendant to the charged offense. For example, if the murder victim was tortured before being killed ("murder with a signature"), evidence of the defendant’s past torturing of victims would be admissible at trial to prove identity, but would not be admissible to prove defendant’s conduct (that he was gutting this victim).
Real and demonstrative evidence may be "relevant" because they are proof of a fact, situation, condition, or circumstance which is of consequence to the determination of the action. That is, they bear directly on the issues (Rule 401), even if the evidence is inconclusive even after the jury has viewed the real or demonstrative evidence. (For example, a portion of a building, no matter how large or small, is relevant and admissible at trial to prove that portion of an entire building is in a state of disrepair and requires significant renovation and preservation. The jigsaw portion no matter how small does not leave a gap but is relevant and admissible). However, if the real or demonstrative evidence lacks probative value, i.e., simply does not make a fact at issue more or less likely than it would be without the evidence, then it is not relevant. An example where the evidence is not relevant is, if the Plaintiff comes to Court with a scale model of a portion of a toll road and the jury sees that evidence, the defense counsel is likely to object, and if the Plaintiff has failed to show that the model of the portion of the toll road is accurate then the objection should be sustained. If there is no relevancy, it will unfairly sway jurors, and should not be considered in their decision how to render their verdict.
Demonstrative evidence is much more subtle. Just because the real or demonstrative evidence is relevant and should be admissible, does not mean it is admissible. A party must properly lay the foundation (Rule 104) for the party introducing the evidence or testifying witness to be able to testify about the real or demonstrative evidence prior to asking for it to be admitted. For instance, it must be shown that the model fairly and accurately represents the condition illustrated, that the evidence, if it is an exemplar piece of an entire whole, is representative of the whole. And it must be shown that the demonstrative evidence–if it is a drawing, chart, graph, model, or photograph—is an accurate and fair depiction of the real evidence, the scene or situation. (A schematic diagram is a good example of admissible demonstrative evidence. However, the courts have broad discretion to determine if the illustration is helpful to the jury.) Further, an illustrative and accurate model may be admissible as demonstrative evidence but not be admissible as real evidence (as a physical object). In addition, the illustrative evidence is not part of the record so it may not be later read to the jury, but the jury may use it during its deliberations.
In order to put these evidentiary ideas in context, and not to drown in evidentiary minutiae, there are three key takeaways:

Common Objections and their Responses

Combating common objections is part and parcel of trial practice. Merely because a party has objected does not render an otherwise proper question or testimony inadmissible. Below is a list of common objections and suggestions about how to respond to them.
Relevance
The Texas Rules of Evidence allow for the admission of any evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The opposing party may object to the admissibility of certain evidence on the grounds of relevance if the evidence is not probative of any issue in the case. A response will depend on the type of evidence in question.
Attorney-Client Privilege
The attorney-client privilege allows communication between the attorney and the client to be privileged. Such communication will not be admissible if it falls under the scope of the privilege. Under Texas Rule of Evidence 503(b), the following are not protected by the privilege:
• Under (c), disclosure will not extend to "a communication relevant to a matter of common interest of parties who have similar interests," and it will not apply to communications "between clients of the same attorney if the communications are in furtherance of a joint undertaking or endeavor with the attorney and client or clients," but only as to private matters. For example, the attorney-client privilege would be applied in a medical malpractice action brought by a child against the physician. The child’s mother would have had to communicate with the doctor on the child’s behalf at the time of treatment, but under these circumstances, the case, while brought by the child, would be relevant to the mother’s interests as well, and both mother and child’s communication with the attorney on the same subject would be privileged.
• Communications including threats of future action , such as threatened litigation, are also not entitled to protection. Communications made in furtherance of a joint undertaking are not protected either.
• If the client prevails on an affirmative defense, such as incapacity, the client may waive the privilege by introducing evidence revealing the communication. Spangler v. Comm’r, 819 F.2d 418, 421 (5th Cir. 1987).
Texas Rule of Evidence 507 provides that "a communication is not protected [from disclosure by the privilege] if the right of excludability is waived by the client or someone authorized to do so."
Hearsay
Out-of-court statements offered to prove the truth of the matter asserted are inadmissible unless they fall within a hearsay exception. The following are common hearsay exceptions:
• Statements of a co-conspirator made in furtherance of same.
• Prior records of acts by the party charged.
• Records of vital statistics.
• Historical documents.
• Entries in ancient documents.
• Entries in records kept in the regular course of business.
• Data compilations.
• Dying declarations.
• Family and marriage records.
• Judgment of previous convictions.
• Local or general reputation.
• Reputation as to character.
• Reputation concerning boundaries or general history.
• Reputation as to Industrial, Professional, or Trade.
• Reputation as to Character of Land.
• Res Gestae.
• Statements Stated, Adopted, or Acquiesced in by the Witness.
• Vicarious admissions.
• Testimony regarding marriage and family history.
• Documents Affecting an Interest in Property.
• Transactions Entered Into by Attorney in Fact.
• Statements Regarding Pedigree.
• Totems.
• Prior Statement of Witnesses.
• Out-of-Court Statements of the Declarant’s State of Mind, Emotional Condition, or Physical Sensation Not Intended as an Assertion.