# Davis v. State

> Court of Criminal Appeals of Texas · January 7, 1998 · 961 S.W.2d 156

URL: https://www.frixlaw.com/law-library/cases/9678899

## Case

- **Full name:** Brian Edward DAVIS, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 7, 1998
- **Citations:** 961 S.W.2d 156; 1998 Tex. Crim. App. LEXIS 5; 1998 WL 2807
- **Precedential status:** Published
- **Opinion:** Concurrence by Womack
- **Judges:** Keller, Mecormick, Mansfield, Price, Holland, Womack, Baird, Overstreet, Meyers
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678899

## How later opinions describe it (automated extraction)

- applying similar language from the previous version of the rule

## Opinion text

WOMACK, Judge,
concurring.
I join the Court’s opinion. I write only to add a comment about the disagreement between the Court and Judge Baird over the meaning of Bryan v. State, 887 S.W.2d 637 (Tex.Cr.App.1992). Bryan is not worth their time.
Bryan had testified at his first trial, but refused to testify at his retrial. The State offered part of his testimony from the first trial. In deciding whether Bryan was unavailable under the hearsay rule, the Bryan Court made an effort that was contorted and unnecessary. Bryan’s former testimony was not hearsay to begin with, because it was the admission of a party-opponent. Texas Rule of Criminal Evidence 801(e)(2)(A). Treatise writers have tactfully referred to this fallacy in Bryan : “An alternative ground for reaching the same result, which was also relied upon by the Court of Appeals in Bryan , is Rule 801(e)(2)(A).” S.Goode et al., 2 Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal 180 (2d ed.1993).
Rather than argue over the Bryan Court’s attempt to apply the unavailability test to nonhearsay, I would recognize that the Bryan opinion belongs in the law’s curiosity shop.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678899. Public record. Not legal advice.