Benny Agosto, Jr., Partner
Robert Rodriguez, Law Clerk
Abraham, Watkins, Nichols, Agosto, Aziz & Stogner
800 Commerce Street
Houston , TX 77002


Benny Agosto, Jr. is a partner with the law firm of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner in Houston, Texas. Mr. Agosto is Board Certified in Personal Injury Trial Law. Mr. Agosto is President-Elect of the Mexican American Bar Association of Texas. Is currently on the Editorial Board for the Texas Bar Journal and the State Bar Litigation Section Report The Advocate. He is also a frequent lecturer and speaker in areas of Litigation throughout the state.

Robert Rodriguez is a third year law student at the Thurgood Marshall School of Law. Mr. Rodriguez is currently working as a law clerk with the law firm Abraham, Watkins, Nichols, Agosto, Aziz & Stogner.


Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 626 (Tex. App. – Dallas 2004, pet, filed) After offering an exhibit for admission, the appellants later withdrew that offer. Therefore, the trial court never ruled on its admissibility, and the appellants could not show that the trial court abused its discretion in refusing to admit that exhibit into evidence.


In re Estate of Robinson, 140 S.W.3d 782, 788-89 (Tex. App. – Corpus Christi 2004, no pet. h.) “Objections to testimony, including the qualifications of experts and the reliability of their theories and methodology, must be raised at the trial court level, and failure to do so waives any error on those grounds.”

In the first trial of this will-contest case, the trial court overruled the appellant’s motion to exclude the expert testimony of a physician on the ground that his testimony was unreliable. During the second trial, the appellees called the same physician to testify as an expert. He stated his qualifications without objection and also drew no objection when he presented a general medical discussion and recited a description of the testator’s physical condition as it appeared in her medical records. However before he offered his opinions regarding the testator’s mental and testamentary capacity, the appellant renewed the motion to exclude the expert’s testimony by urging again that it was unreliable. The court of appeals held that this objection, in the form of a motion to exclude, which the trial court overruled, “was timely, its basis was clear, and a ruling was made by the trial court.” Therefore, the appellant preserved this challenge for appellate review.

Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d, 411 (Tex. App. – Houston [14 th Dist.] 2004, no pet. h.) “To preserve error in the exclusion of evidence, a party must: (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which [the evidence] is offered and give the trial judge reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the judge rules the evidence inadmissible, make a record, through an offer of proof of the precise evidence the party desires admitted.”

Here, the appellant’s attorney offered two exhibits immediately before trial. The trial court deferred ruling on the admissibility of these exhibits, and the attorney did not renew his attempt to introduce the evidence until after he had rested and presented his offer of proof to the court. Because he not obtain a ruling from the trial court regarding the admissibility of these exhibits “when he first attempted to offer them and then failed to offer the exhibits again during the evidentiary portion of the trial,” he failed to preserve this issue for appellate review.

Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, (Tex. App. – Texarkana 2004, pet. denied) “To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion… If a party fails to do this, error is not preserved, and the complaint is waived… In addition, an adverse ruling must be obtained from the trial court, either expressly or implicitly.”

Although the appellant filed a motion before trial to exclude the appellee’s expert’s testimony and objected to this testimony at trial, the appellant did not obtain a ruling on its objections to the expert’s qualifications or methodology. The only objection that the appellant made was that the trial court should have excluded the expert’s testimony because the appellees had not timely supplemented its discovery responses. This objection, which the trial court overruled, did not preserve error for the contention on appeal that the expert was unqualified or had relied upon unsound methodology.

Warrantech Corp. v. Computer Adapters Services, Inc., 134 S.W. 3d 516 (Tex. App. – Fort Worth 2004, no pet.h.) The appellant’s “general statement of ‘objection’ when the testimony was offered, followed by an off-the-record bench conference, did not create a record sufficient to preserve the complaint for…review.”


Pennwell Corp. v. Ken Associates, Inc., 123 S.W.3d 756, 760-62, 763 (Tex. App. – Houston [14 th Dist.] 2003, pet. denied) “Under Rule of Evidence 203, a party intending to raise an issue concerning foreign law must give notice in the pleadings or ‘other reasonable written materials or sources the party intends to use as proof of foreign law… The trial court determines the laws of the foreign country, and that determination is reviewed as a question of law… Rule 203 is a ‘hybrid rule’ by which presentation of foreign law to the court resembles the presentment of evidence, although it is ultimately decided as a question of law… In determining the foreign law, the trial court can consider any material or source, whether or not admissible under the rules of evidence, including affidavits, testimony, briefs, and treatises.”

“Although appearing under the subtitle ‘Judicial Notice’ in the Texas Rules of Evidence, the procedure established under Rule 203 for presentment of foreign law is not considered a judicial notice procedure because that term refers only to adjudicative facts and not to matters of law… Thus, the specific procedures set forth in Rule 203 must be followed for the determination of foreign law… Moreover, a party requesting judicial notice must furnish the court with sufficient information to enable it to properly comply with the request; otherwise, the failure to provide adequate proof results in a presumption that the law of the foreign jurisdiction is identical to that of Texas.”

The appellant here filed a motion for judicial notice, “submitting to the court various excerpts, totaling over 100 pages of materials, from a treatise entitled Doing Business in Japan and a copy of an Illinois case which makes reference, indirectly, to attorney’s fees under Japanese law.” The appellant’s motion requested the court to “take judicial notice of Japanese law, noting that recovery of treble damages by sales representatives and an award of attorney’s fees in a contract action were prohibited under that country’s laws.” However, the motion did not mention “judgment interest or any distinctions between Japanese and Texas law regarding contract claims…”

Subject to its argument that Texas substantive and procedural law applied, the appellees also filed a motion for judicial notice of sources for Japanese law: and attached to its motion excerpts from Martindale-Hubbell International Law Digest , “indicating attorney’s fees are not recoverable under Japanese law except in tort actions,” as well as and excerpts from the Doing Business in Japan treatise.

“Neither party presented expert witness testimony or affidavits regarding the laws of Japan. Also, there [was] no indication in the record that the trial court provided the parties with notice it was intending to rely on a source other than those presented…” Because no such notice appeared in the record, the court of appeals concluded the trial court reached its decision “based on the information submitted by the parties.”

The court of appeals held that the appellant’s motion “adequately requested the trial court take notice of Japanese law regarding attorney’s fees, and the trial court had sufficient information before regarding that issue.” The appellant’s motion noted that “Japanese law did not allow for an award of attorney’s fees in a contract action.” Although the case the appellant furnished as evidence of its assertion was “insufficient to demonstrate Japanese law,” the appellee’s motion, which supplied the Martindale-Hubbell pages “evidencing attorney’s fees were recoverable only in tort actions” cured any deficiency in the appellant’s proof of this issue. Therefore, “at least with respect to attorney’s fees, the trial court had enough information before it to ascertain Japanese law regarding that issue.”

Although the court of appeals found that the trial court “was sufficiently apprised of attorney’s fees in a contract action under Japanese law,” the court of appeals could not conclude that the appellant “also apprised the trial court of any distinction in the laws of the two countries regarding judgment interest.” Because the appellant’s motion “failed to request the trial court take notice of Japan’s laws regarding judgment interest, and also failed to properly plead and prove judgment interest under Japanese law, the trial court was left to presume that Japan’s laws were the same as Texas’s laws on that issue.”


Warrantech Corp. v. Computer Adapters Services, Inc., 134 S.W.3d 516, 527-28 (Tex. App. – Fort Worth 2004, no pet.h.) “A client has the privilege to refuse to disclose and to prevent another person from disclosing confidential communications between herself and her lawyer made for the purpose of facilitating the rendition of professional legal services to the client… The attorney-client privilege does not apply, however, if the lawyer’s services were sought to enable anyone to commit what the client knew or reasonably should have known to be a crime or fraud… The crime/fraud exception applies only if (1) the party asserting it makes out a prima facie case of contemplated fraud and (2) there is a relationship between the document for which the privilege is challenged and the prima facie proof offered… The fraud must have been ongoing or about to be committed when the document was prepared…” [Emphasis in original].

The appellants here failed to show that the letter in question “contemplated committing a fraud upon the court: at the time the letter was written, which was “more than two months before suit was filed and several years before the case went to trial.” Nevertheless, the appellants argued that the attorney “had the duty to disclose the letter’s existence to prevent her from working a fraud upon the court with her false testimony that was contrary to the letter.” The appellants premised this argument upon section 3.03(a) did not apply here “because it only addresses an attorney’s duties; it does not address the admissibility of evidence.” Therefore, in the absence of “evidence of an ongoing or contemplated fraud at the time the letter was written,” the court of appeals determined that the trial court “did not abuse its discretion by concluding that the crime/fraud exception did not apply…”


In re Lowe’s Companies, Inc., 134 S.W.3d 876, 878-79 (Tex. App. – Houston [14 th Dist.] 2004, orig. proceeding) “With other exceptions not raised in this case, an attorney may instruct a witness not to answer a question during an oral deposition only if it is necessary to preserve a privilege, or otherwise comply with the Texas Rules of Civil Procedure… While relevance is thus not a valid ground for instructing a witness not to answer a deposition question, a trade secret is privileged and therefore can be such a ground… However, where a hearing is held on a claim of privilege, including trade secrets, the party asserting it must present sufficient evidence to support it.”

“Trade secrets include information used in a business that presents an opportunity to obtain an advantage over competitors who do not know, or use, it… Factors relevant to determining whether a trade secret exists include: (1) the extent to which the information is known outside the party’s business; (2) the extent to which it is known by employees and others within the business; (3) the extent of measures taken by the party to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended to develop the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others…”

Here, in defending its claim of a trade-secret privilege, the relator initially argued, “without evidence or supporting authority,”…the manner and method by which [the relator] gathers its information concerning incidents in stores is a valuable asset to [the relator] and one which is not utilized industry wide.” After the trial court granted the motion to produce, the relator filed a motion for reconsideration “which also failed to cite any such authority, but did provide an affidavit from a claims manager for [the relator].” That affidavit states only: “This database…and the methods by which [the relator] uses [it] are valuable proprietary interests of [the relator] and one which [the relator] considers to be trade secrets. It is [the relator’s] belief that such is not utilized industry-wide and thus it is an asset [the relator] does not desire to be available to the public and/or its competitors.”

Although the above-mentioned factors for determining the existence of a trade secret “are not necessarily exclusive,” the court of appeals found that the relator had “cited no authority that a party’s (or even expert’s) conclusory opinion that information is a trade secret or is not used industry-wide, or a party’s mere desire to avoid disclosing information to others, is sufficient to establish the privilege. Nor would there appear to be any rationale for adopting such a position as it would seemingly allow the privilege to extend to almost any internal company records. Without evidence establishing any of the conventional trade secret factors with regard to the database, [the relator] has failed to demonstrate that the trial court erred in overruling its trade secret objection to providing deposition testimony on the creation and use of the database.”


Costilla v. Crown Equipment Corp., 148 S.W.3d 736 (5 th Cir. 2004)

The court confirms that, when the Plaintiff alleged a design defect, he had the burden to establish that a safer design for the forklift existed. His theory was that a safer design would have included a door. Defendant introduced the OSHA and NIOSH evidence to counter this assertion. The evidence was relevant, the court concluded.

Whether a door to keep the operator inside the forklift compartment was a safer alternative design was a “fact of consequence” to the determination of the cause of action. The jury could consider whether Plaintiff’s proposed design would impose an equal or greater risk of harm under other circumstances.

The court does not find that the probative value of the two reports was outweighed by their prejudicial effect. The court rejected Plaintiff’s argument that S prankle v. Bower Ammonia & Chemical Co., 824 F.2d 409 (5 th Cir. 1987) , stands for the proposition that entering OSHA standards into evidence is an abuse of discretion. The court stresses that what is an abuse of discretion in one case – as it was in Sprankle – is not necessarily an abuse of discretion in another – as it was not in this case.

The court then upheld the trial court’s refusal to offer Plaintiff’s proposed jury instruction on manufacturing standards. The court found that because the issue in this case was that a design defect was the producing cause of Plaintiff’s injury, manufacturing standards were not necessary to enable the jury to render a proper verdict on a controlling question in the case. The court also finds Defendant’s expert testimony was relevant to issues to be decided by the jury, and that the expert talked in terms of “possibilities” did not taint his testimony. The expert testified regarding his procedures and methodology for both his audit of Defendant’s design process and his computer simulation. He offered more than his subjective opinion or unsupported speculation regarding Defendant’s design process and whether Plaintiff’s alternative design was safer.

In re Estate Robinson, 140 S.W.3d 782, 789-92 (Tex. App. – Corpus Christi 2004, no pet. h.) “Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the fact finder in understanding the evidence or determining a fact issue… A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation.”

When reliability of an expert’s testimony is challenged, the trial court must ‘evaluate the methods, analysis, and principles relied upon in reaching the opinion…[in order to] ensure that the opinion comports with applicable professional standards outside the courtroom’… The proponent of the expert testimony bears the burden of demonstrating that the expert’s opinion is reliable.”

“In Robinson, the supreme court identified six nonexclusive factors to aid courts in determining whether scientific testimony is reliable… However, these factors affecting reliability are not applicable to all expert testimony… For such instances, the Supreme Court adopted an ‘analytical-gap’ analysis… The trial court must determine whether there may be ‘simply too great an analytical gap between the data and the opinion proffered’ for the opinion to be reliable.”

In this will-contest case, the testifying physician’s opinion, based upon his review of the medical records, was that the testator lacked mental and testamentary capacity on the day of signing the contested will and other documents. The appellants did not argue that this foundational data underlying the physician’s opinion was unreliable, but rather that a gap existed between the evidence and the expert’s conclusion; that is “that nothing more was offered to justify his methodology other than his ‘say so.'”

According to the expert witness, the testator’s medical-record entries “showed there was a progression of a pathological disease process that was causing [the testator] to lose brain cells.” The physician testified as to “how the brain functions and the effect of strokes, high blood pressure, and atherosclerotic heart disease on the brain” and that “the stroke was a result of hardening of the arteries, a disease process that had been going on for years.” Therefore, he concluded that the testator “had poor memory long before she had the stroke, again, due to hardening of the arteries.”

Based upon his understanding of testamentary capacity and on the testator’s “past and on-going physical and mental conditions,” in the expert’s opinion, the testator “did not have testamentary capacity when she signed the will…” After describing his understanding of the mental capacity required to sign a contract or a deed, the physician further testified that the testator “did not have sufficient mental capacity to execute the trust and partnership agreements on that same date.”

Although the expert’s analysis of the medical records here involved the application of scientific principles, it was “not pure science.” Therefore, this methodology was “not easily tested by objective criteria, such as identifiable scientific formulas.” Because he based his opinion largely upon “the application of his knowledge, training, and experience to the underlying data,” the court of appeals concluded that the analytic-gap analysis, could have concluded [the expert]’s medical experience and knowledge, coupled with his testimony about the methodology he employed in reviewing the medical records, demonstrate[d] that the opinions he drew from the underlying medical records are reliable.” Therefore, the court of appeals held that the trial court did not abuse its discretion by admitting this testimony.

Pilgrim’s Pride Corp v. Smoak, 134 S.W.3d 880, 891-93 (Tex. App. – Texarkana 2004, pet. denied) “As a general rule, police officers, based on their position as police officers alone, are not qualified to render opinions regarding accidents… However, police officers are qualified to testify regarding accident reconstruction if they are trained in the science and possess the high degree of knowledge sufficient to qualify as an expert.”

The officer here was found not to be an accident reconstruction expert with “the experience and knowledge to observe the scene and add some scientific, technical, or specialized knowledge to the evidence which would assist the trier of fact to understand the evidence and testimony in the case.” Therefore, the court of appeals concluded that he was not qualified to offer his opinion on whose negligence caused the accident, and his conclusion on who caused the accident did not assist the jury.”

The court of appeals found that the expert witness’ opinion on causation “was not based on any scientific, technical, or other specialized knowledge not generally possessed by a layperson.” It further found that his opinion regarding the cause of the accident “was not based solely on his direct observations of the accident scene, but also on his interviews of witnesses after the fact.” The court of appeals determined that the officer’s opinion that the driver had caused the accident ” by being inattentive and by unsafely changing lanes: did not involve any “specialized accident reconstruction expertise,” but instead was premised upon his “interviews at the scene and… his observation that the skid marks began in [the appellees]’s merge lane.”

Under these circumstances, the court of appeals concluded that “[t]he jury had the direct testimony of the witnesses to the accident, as well as photographs and diagrams of the scene, and was in as good a position as the officer to form an opinion as to the cause of the occurrence.” Therefore, “[I]n this case, the determination of whose negligence caused the accident did not require the testimony of an expert” because expert testimony is necessary only when “the alleged negligence is of such a nature as not to be within the experience of the layperson.”

Taylor v. American Fabritech, Inc., 132 S.W.3d 613, 618-20 (Tex. App. – Houston [14 th Dist.] 2004, pet. filed). In Robinson, the Texas Supreme Court held that “expert opinion of a scientific nature required an initial inquiry as to whether the testimony was based on a reliable scientific foundation” and the Court listed certain factors it deemed useful in this inquiry. In Gammill, however, the Court explained that “although trial courts must assess the reliability of all expert testimony, the Robinson factors will not always be relevant to the inquiry, particularly when the proffered testimony is based not on scientific research or theories but on the expert’s experience and knowledge in his or her field.”

Here, the appellant’s experts did not offer scientific testimony. “Analyzing whether safety measures could have prevented an accident, calculating the costs of medical care, lost earnings, and living assistance, and explaining the severity of a person’s injuries are not scientific inquires under the Robinson/Gammill framework.” In forming their opinions, the experts “relied not on specific scientific research or studies but on their own experience, education, and review of the literature in whether the testimony was based on a reliable foundation and whether it was relevant to issues in the case, but the court was not required to analyze all of the specific factors noted in Robinson…In cases involving nonscientific expert testimony, Gammill instructs [courts] to consider whether there is an ‘analytical gap’ between the experts’ opinions and the bases on which they were founded.”

The appellant’s expert’s affidavit “contained a lengthy explanation of the subjects he expected to testify regarding and the bases for his opinions. Generally, he expected to testify regarding [the appellant]’s fall from a height, the availability of fall prevention equipment and techniques, and the conditions at the construction site. He based his testimony on his own experience and his knowledge in the fields of construction safety and accident investigation. He stated that he had a master’s degree in civil engineering and postgraduate certificates in occupational safety and health and public safety, and he has been qualified by the Workmen’s Compensation Commission of Texas as a ‘professional safety source in construction.’ He has also taught courses on construction safety and specifically has taught on fall protection. He stated that his analysis was based on established principles of safety engineering and management and that his investigative technique was widely accepted in the field, namely ‘to establish the who, what, when, why, where, and how, to analyze the events based upon the best available testimony…then to evaluate the building plans and documents…’ he listed various regulations, articles, programs, product data sheets, and case documents he relied upon in deriving his conclusions.” Based upon this evidence, the court of appeals found that there did not appear to be any significant “analytical gap” between the expert’s proffered testimony and its stated basis.

Wiggs v. All Saints Health System, 124 S.W.3d 407, 409-14 (Tex. App. – Fort Worth 2003, pet. denied) “An expert may testify on scientific, technical, or other specialized subjects if the testimony would assist the fact finder in understanding the evidence or determining a fact issue… A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation.”

In this medical malpractice case, the trial court granted the defendant’s motion to exclude the plaintiff’s expert’s medical causation testimony on the ground that it was scientifically unreliable. As a result, the trial court granted a final take-nothing judgment in favor of the defendants on the basis that the plaintiffs had no evidence of causation.

In Robinson , the Texas Supreme Court set forth six factors, now know as the Daubert/Robinson , to aid courts in determining whether scientific testimony is reliable: (1) the extent to which the theory has been tested; (2) the extent to which technique relies on the expert’s subjective interpretation; (3) whether the theory has been subject to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses that have been made of the theory or technique…”

“Following Robinson , [in Gammill ] the Texas Supreme Court addressed the issue of scientific and nonscientific evidence and determined that while all expert testimony must be reliable before it may be admitted, the factors affecting reliability as outlined in Robinson are not applicable to all expert testimony… Instead, where experts rely on experience and training rater than a particular methodology to reach their conclusions, Gammill directs [courts] to determine whether there may be ‘simply too great an analytical gap between the data and the opinion to be reliable.”

The plaintiffs argued on appeal that the trial court “incorrectly applied the Daubert/Robinson factors to this case because their expert opinions were based on the experts’ knowledge, skill, experience, training, and education.” They contended that the trial court “should have applied the ‘analytical-gap’ test, and that by allegedly excluding the testimony as scientifically unreliable under the Daubert/Robinson factors, the trial court abused its discretion by acting without reference to the applicable guiding rules and principles.” The court of appeals disagreed.

Analyzing the evidence under the Daubert/Robinson factors, the court of appeals concluded that the evidence showed that “the theory relied on by the experts has not been sufficiently tested, is controversial within the relevant scientific community, requires subjective interpretation, and has not been subjected to sufficient peer review. Moreover, the evidence shows that the experts failed to sufficiently rule out other causes.

In applying Gammill’s “analytical gap,” which the plaintiffs advocated, courts “must analyze the underlying data forming the basis for the expert’s opinion…’If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion’ drawn from that data is likewise unreliable.'” Here, the trial court “properly recognized that the experts’ experience and training and the medical literature that served as the basis for their opinions were unreliable, which also rendered their opinions unreliable.”

Lawrence v. City of Wichita Falls, 122 S.W.3d 322, 328 (Tex. App. – Fort Worth 2003, pet. denied) “Expert testimony is only admissible if it will assist the trier of fact in understanding the evidence or in determining fact issues…[A]n expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.’…Therefore, an expert’s opinion on an ultimate issue is admissible only if a predicate is laid to show that the expert knows the proper legal definition in the question…However, if the jury is equally competent to form an opinion regarding an ultimate fact issue, an expert’s testimony as to those issues may be excluded.”

Here because “no predicate was laid proving that [the expert witness] knew the proper definition of sole proximate cause, the jury was equally competent to form its own opinion regarding sole proximate cause.” Therefore, the trial court did not abuse its discretion by sustaining the Appellee’s objection, which was proper.

Rayon v. Energy Specialties, Inc. , 121 S.W.3d 7, 19-21 (Tex. App. – Fort Worth 2002, no pet.) The burden of establishing an expert’s qualifications is on the party offering expert testimony…Besides demonstrating that the expert witness is qualified to testify, the proponent must show that the expert’s testimony is both relevant to the issues and based on a reliable foundation…An expert’s affidavit that is based on assumed facts that vary from the actual undisputed facts has no probative force.” Because the expert’s theory here “was based upon two assumptions that were later conclusively disproved,” his opinions were not “based on a reliable foundation,” and his affidavit and report did not meet “the standards for the admissibility of expert testimony.” Furthermore, because he based his opinions upon “assumed facts that vary from the actual undisputed facts,” his affidavit and report had “no probative force.”


Key v. State, Tyler Court of Appeals, 2005 Tex. App. LEXIS 1573, 2-28-05

The court examines the question in light of Crawford v. Washington, 541 U.S. 36 (2004), in which the nation’s high court specified that “testimonial” hearsay is inadmissible under the Confrontation Clause, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Though the Crawford court did not define “testimony,” it gave three examples of testimonial statements: (1) ex parte in-court testimony, (2) extra-judicial statements contained in formalized testimonial materials, and (3) statements made under circumstances that would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. The court adds that statements taken during police interrogations are also testimonial. The court then endeavors to determine if a witness’ statements to an officer were testimonial. The relevant categories are whether the witness believed her statement would be available for later use at trial or whether her interaction with the officer was a police interrogation.

The court notes that most courts around the country applying Crawford have held that a police-victim interaction at the scene of a crime is not an interrogation. The court agrees, noting that the unstructured interaction between the officer and the witness bears no resemblance to a formal or informal police interrogation. The court then holds that the witness’ statements were akin to excited utterances, and she could not have reasonably anticipated that she said would used in court. “Such a declaration from one who has recently endured physical abuse, and with no time for reflection or deliberation, is likely to be truthful. It is consistent with the definition of an excited utterance to conclude that it is not a statement that has been made in contemplation of its use in a future trial.”

The court thus concludes that the witness’ statements were non-testimonial, and otherwise fell within the exceptions to hearsay. Consequently, Key’s right to confrontation was not violated. The court adds that the analysis is no different under the state constitutional right of confrontation.


Corrales v. Department of Family and Protective Services, 155 S.W. 3d 478, 485-87 (Tex. App. – El Paso 2004, no pet. h.) “Rule 803 provides exceptions to the exclusionary nature of Rule 802…Subsection (8) states the exception for public records: Records, reports, statements, or data compilations in any form, of public offices or agencies setting forth: (A) the activities of the office or agency; (B) matters observed pursuant to duty imposed by law as to which matters there was duty to report, excluding in criminal cases matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.”

The court of appeals found that the police reports at issue were admissible as a public record because they “set forth the activities of the police department, involved matters observed pursuant to a duty imposed by law as to which there was a duty to report, and contained factual findings resulting from an investigation made pursuant to authority granted by law…”

Although the records here also contained witness statements that did not qualify as public records, nevertheless, the court of appeals found that “the rule provides that the reports are admissible unless the sources of information indicate a lack of trustworthiness… In other words, there is a presumption of admissibility and the burden is placed on the party opposing the admission of a report to show its untrustworthiness… Appellants objected on the basis that the reports included testimony from witnesses not at trial, but did not specifically indicate which statements were untrustworthy.” Therefore the court of appeals concluded that the appellants “failed to meet their burden to show untrustworthiness.

Available upon request are three papers Mr. Agosto has authored/co-authored which will highlight some of the changes:

  1. “Can the injured Migrant Worker’s Alien Status be introduced at Trial?”
  2. “Your Case and the Mexico Connection”
  3. “Admissibility of Computer-Generated Animation”