# 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/9759256

## 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 Baird
- **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/9759256

## 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

BAIRD, Judge,
concurring.
We are called upon to address the sufficiency of the evidence in this case because of trial counsel’s failure to object to the declarant’s out of court statements implicating appellant. Had counsel objected, the trial judge could have either excluded the testimony or admitted the statements under a recognized exception to the general prohibition of hearsay evidence. However, once admitted without objection, hearsay evidence is to be treated “the same as all other evidence in the sufficiency context, i.e., it is capable of sustaining a verdict.” Chambers v. State, 711 S.W.2d 240, 247 (Tex.Cr.App.1986). 1 This holding was codified in Tex.R.Crim.Evid. 802, which provides:
Hearsay is not admissible except as provided by statute or these rules. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
Chambers, 711 S.W.2d 240 , and Tex.R.Crim.Evid. 802 recognize that hearsay evidence does not intrinsically lack probative value. The distinguished treatise McCormick on Evidence expresses this concept as follows:
The truth, of course, is that hearsay evidence, ranging as it does from mere thirdhand rumors to sworn affidavits of credible observers, has as wide a scale of reliability, from the highest to the lowest, as we find in testimonial or circumstantial evidence generally, depending as they do upon the frailties of perception, memory, narration, and veracity of men and women.
McCormick on Evidence § 245 p. 728 (E. Cleary 3d ed. 1984). Indeed, the many exceptions to the prohibition of hearsay, recognized at common law and now embodied in Article VIII, Tex.R.Crim.Evid., argue in favor of the probative value of hearsay evidence.
*458 Rule 802 does not address the potential limitations of evidence admitted without objection, such as the evidence’s relevancy or specific probative value. Rather, it does not preclude the potential probity of hearsay evidence admitted without objection “merely because it is hearsay.” (Emphasis added.) Tex.R.Crim.Evid. 802. Recognizing that hearsay admitted without objection is not denied probative value, the question becomes whether that probative value is negated by a declarant’s in court contradiction of the out of court statement. The potential limitations of the probative value of evidence admitted without objection have been recognized:
If evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof so far as it has probative value. The incompetent evidence, unobjected to, may be relied upon in argument, and alone or in part may support a verdict or a finding. This principle is almost universally accepted ... The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay ... Relevancy and probative worth, however, stand on a different footing. If the evidence has no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth. (Emphasis added.)
McCormick on Evidence, § 54, p. 140 (E. Cleary 3d ed. 1984).
The Court of Appeals’ conclusion that an in court contradiction negates all probative value of the out of court statement, Fernandez v. State, 755 S.W.2d 220, 222 (Tex.App.—Houston [1st Dist.] 1988), undermines the proposition that unobjected to hearsay cannot be denied probative value. Whether an in court contradiction of an out of court statement has probative value depends upon the nature of the contradiction. In the case at bar, while the declarant’s out of court statement was unequivocally recanted, her trial testimony was of questionable veracity. 2 Other cases represent the varying degrees of probative value of in court contradictions of out of court statements. In Chambers v. State, 805 S.W.2d 459 (Tex.Cr.App. this day decided), the de-clarant, a child sexual assault victim, testifying on behalf of the defendant, her stepfather, equivocated while contradicting her videotaped statements, admitted without objection, that the defendant had sexually abused her. 3 Likewise, in Forrest v. State, 805 S.W.2d 462 (Tex.Cr.App. this day decided), the declarant vacillated when she attempted to recant her out of court statements which had been admitted without objection.
Because the in court contradiction may be weak or strong, absolute or equivocal, the in court testimony may or may not negate the probative value of the declar-ant’s unobjected to out of court statement. This decision must be left to the trier of fact, who is in the superior position to judge the credibility of the evidence.
As stated at the outset, we address this issue because of trial counsel’s failure to object to the hearsay evidence. The trial judge was never afforded the opportunity to exclude the testimony or to admit it under a recognized exception to the general prohibition of hearsay evidence. Once admitted, the hearsay evidence is given whatever probative value the trier of fact deems appropriate. Chambers, 711 S.W.2d 240 ; Tex.R.Crim.Evid. 802. Therefore, counsel may not complain on appeal that the evidence is insufficient to sustain the verdict merely because the verdict was based, in whole or in part, on unobjected to hearsay evidence.
*459 With these comments, I concur in the result reached by the majority.
MILLER, J., joins this opinion.
. Prior to Chambers, 711 S.W.2d 240 , this Court recognized the probative value of inadmissible hearsay in extradition proceedings, Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); in probation revocation proceedings, Frazier v. State, 600 S.W.2d 271 (Tex.Cr.App.1980); and in suppression hearings, Lalande v. State, 676 S.W.2d 115 (Tex.Cr.App.1984). Abandoning the piecemeal approach to the probity of hearsay, this Court in Chambers, 711 S.W.2d at 247 , rejected as "ridiculous” the proposition that the burden of persuasion in a given proceeding controls the probative value of a piece of evidence.
. After claiming in court that she made the out of court statements only due to anger toward her husband, she surmised that her boarder, a man she knew only as "Louis”, must have been responsible for the vehicle. She could not recall, however, exactly when “Louis” had lived with her or where he might be located.
. After contradicting her videotaped testimony, the victim testified that she did not know whether her stepfather had sexually abused her. Moreover, the trial record reflects other evidence of the offense; specifically, medical testimony, outcry testimony and other acts testimony.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759256. Public record. Not legal advice.