Opinion

Fernandez v. State

  • 805 S.W.2d 451
  • 1991 Tex. Crim. App. LEXIS 37
  • 1991 WL 22989
Court
Court of Criminal Appeals of Texas
Filed
Feb 27, 1991
Status
Published
Author
Clinton
On the bench
White, Clinton, Baird, Overstreet, Maloney, Miller
Cited by
102 cases
Authority
More cited than 10.4%

explaining that the appellate court “does not have the power to step in and reevaluate the probity of an individual item of evidence in its review of the sufficiency of the evidence” in a case where the defendant’s wife recanted about having previously made incriminating, out-of-court, statements to officers when she testified in the defendant’s trial

How later courts described this case

  • explaining that the appellate court “does not have the power to step in and reevaluate the probity of an individual item of evidence in its review of the sufficiency of the evidence” in a case where the defendant’s wife recanted about having previously made incriminating, out-of-court, statements to officers when she testified in the defendant’s trial
  • holding that if an appellant fails to object to hearsay, they “must be prepared to accept the concept that hearsay could be considered by the trier of fact as probative evidence.”
  • holding that the appellant was responsible for objecting to the hearsay and because he did not, the trier of fact was authorized to consider it in reaching its verdict
  • holding that prior inconsistent statement of a witness which was admitted due to lack of objection by defense counsel was, by itself, sufficient evidence to convict

Written by the judges who cited it.

The opinion

CLINTON, Judge,

concurring.

Under the facts and circumstances of the cause the evidence is sufficient to support the findings of facts presumably made by the trier of fact and the judgment of the trial court.

My major disagreement with the majority is in its treatment of “direct” versus “circumstantial” evidence in note 2. Putting aside whatever the evidentiary value of hearsay statements attributed to Margie Fernandez, wife of appellant, had she testified to the same matters, her evidence would still be classified as “circumstantial” in that it is “proof of a minor fact, which by indirection, logically and rationally demonstrates the factum probandum.” Beason v. State, 43 Tex.Cr.R. 442 , 67 S.W. 96, at 98 (1902); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973), and cases cited at 769 (circumstantial evidence is direct proof of a minor fact which by logical inference demonstrates the ultimate fact to be proved); Ramos v. State, 478 S.W.2d 102, at 105 (Tex.Cr.App.1972); (Brown v. State, 126 Tex.Cr.R. 449 , 72 S.W.2d 269, at 271 (1934)).

Another disagreement is with its notion that “In the context of Rule 802, unobject-ed to hearsay has probative value as substantive evidence.” Maj. Opinion, n. 3, at 455. As the very authority the majority quotes on the next page makes clear, “Rule 802 does not accord probative value to hearsay evidence.”

With those observations I join the judgment of the Court.

MALONEY, J„ joins.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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