Appealing A Conviction For Hearsay

Elections matter, and in Texas we elect appellate judges. We’ve been electing extremist conservative authoritarians for a few decades now.  The result is that even when the State cheats at trial or a trial judge makes a clear mistake, it’s nearly impossible to get a conviction overturned. Today we are going to look at hearsay. What if you are convicted at trial, and the State used hearsay to help them convict? (Spoiler alert, it’s not going to be good for the defendant on appeal).

What is hearsay in Texas?

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted and is inadmissible unless a statute or rule of exception applies. TEX. R. EVID. 801(d), 802.

A common hearsay objection is when a witness, Mr. Z, is testifying and answers that “Then Mr. X told me that”. The defense objects hearsay (and probably Confrontation, I try to always object to both). The reason? Mr. X isn’t on the stand, so Mr. Z can’t get tell the jury what Mr. X said. Mr. X needs to take the stand to do that.

How do appellate courts ignore hearsay violations?

Texas appellate courts love saying defendants “waived error”. Which means that even if your trial isn’t fair, it doesn’t matter because you wanted that to happen, or you didn’t object fast enough or precisely enough.

Make A Timely Objection

A party claiming the erroneous admission of hearsay must make a timely objection and secure a ruling or the issue is not preserved for appellate review. See TEX. R. APP. P. 33.1; Mack v. State, 872 S.W.2d 36, 38 (Tex. App.—Fort Worth 1994, no pet.) (holding any error in admission of hearsay testimony was not preserved because defendant failed to make a timely objection and secure a ruling on the objection).

So you have to object every time, and you have to ask for a ruling each time. And Texas appellate courts love pointing out that you waited too long or didn’t object under the right subsection of a statute.

Object All The Time To Everything

Another way appellate courts work for the State and against Defendants is by saying that even if the State cheats, and offers evidence in violation of the Rules of Evidence, that’s ok because the evidence that shouldn’t have come in is just like some other piece of evidence you didn’t object to.

“Erroneously admitting evidence ‘will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.” Coble, 330 S.W.3d at 282. This holds true even when the evidence is not the same but is very similar or substantially the same evidence. Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010) (very similar evidence admitted); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (substantially the same evidence admitted).

How is this possible? That doesn’t seem fair to Defendants?

It’s not, but we’ve been putting prosecutors on the Court of Criminal Appeals for so long we have case law like this.

The erroneous admission of hearsay evidence is nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error requires reversal only when the error affected a party’s substantial rights. See TEX. R. APP. P. 44.2(b). Error that has a substantial and injurious effect or influence in determining the jury’s verdict affects a substantial right. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).

What does that mean? That an appellate court can agree that you objected, that you were harmed, that the trial court made a mistake, and even though you are sentenced to decades in prison it doesn’t matter. The appellate court has an out to save any conviction by saying the erroneously introduced evidence “didn’t affect the juries verdict”.

Here’s the deal, appellate courts have no idea what a jury decides or why. The jury doesn’t tell the appellate court why they found a defendant guilty or what evidence they found important. The appellate courts are saying this information isn’t vital to appellate judges. But appellate judges make decisions in entirely different ways than jurors.

If you are appealing a conviction in Texas, it’s not a great strategy if hearsay is your only issue.


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