# Fernandez v. State

> Court of Criminal Appeals of Texas · February 27, 1991 · 805 S.W.2d 451

URL: https://www.frixlaw.com/law-library/cases/9759255

## Case

- **Full name:** Emilio Patrick FERNANDEZ, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 27, 1991
- **Citations:** 805 S.W.2d 451; 1991 Tex. Crim. App. LEXIS 37; 1991 WL 22989
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** White, Clinton, Baird, Overstreet, Maloney, Miller
- **Cited by:** 102 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/9759255

## How later opinions describe it (automated extraction)

- 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-…
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759255. Public record. Not legal advice.