DuBose v. State

774 S.W.2d 328, 1989 Tex. App. LEXIS 2070, 1989 WL 91236

• Court: Court of Appeals of Texas
• Decided: June 21, 1989
• Docket: No. 09-88-154 CR
• Status: Published

Opinions

OPINION

DIES, Chief Justice.

Appellant was charged with murder, and a jury convicted her of voluntary manslaughter and assessed punishment at twenty years’ confinement in the Texas Department of Corrections. Appeal has been perfected to this court.

Appellant’s first three points of error all contend the court erred in admitting hearsay testimony over Appellant’s objection. There is no question that some damaging hearsay testimony was admitted by the court, but the State contends it offered the testimony, not to prove its truth, but to show that the words were said. And the court so charged the jury.

1A R. RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 781, p. 2 (Texas Practice 3rd ed. 1980) follows:

“The principle embodied in the hearsay rule is simple, but is often obscured by loose language, with the result that it is frequently misconceived as a rule which purports to exclude any reports by a witness of statements made out of court. Our decisions are replete with a myriad of instances where contentions based upon that mistake have been overruled. The rule in truth is this: evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay. It is obvious that such statements may be offered, in evidence for a great number of other purposes than establishing the truth of the statement and whenever this is so the evidence is not hearsay and some other ground for its exclusion must be sought.” (original emphasis deleted, ours added)

However, a legitimate purpose for the otherwise inadmissible hearsay evidence must be established. The State argued forcibly at oral argument that all it needed to state to the court to exclude hearsay objection was that it was being offered only to show that the statement was made. If this be the law, the hearsay rule might just as well be abolished for such an argument is pure sophistry. These points are sustained.

Appellant has other points which we find are without merit and they are overruled.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and Remanded: