explaining that it is “this form of question and answer” that presents the jury with information from unsworn, out-of-court sources that “should be called ‘backdoor’ hearsay and should be subject to the same rules and limitations as the more common form.”
How later courts described this case
- explaining that it is “this form of question and answer” that presents the jury with information from unsworn, out-of-court sources that “should be called ‘backdoor’ hearsay and should be subject to the same rules and limitations as the more common form.”
- recognizing the admissibility an officer’s hearsay statements 24 necessary for the jury’s understanding of the events and that are not introduced for the truth of any implications
- noting that where, as here, "the officer's actions (e.g., an arrest or a search) are not put into question before the jury, testimony that the officer acted upon "information received" or words to that effect should be sufficient"
- concluding that trial court could have reasonably determined that State’s intent in questioning witness was not solely to convey out-of-court statement
Written by the judges who cited it.
Distinguished
Distinguished by Danny Lane Dillon v. State (2007)
Schaffer is distinguishable on
The opinion
CAMPBELL, Justice,
dissenting on State’s petition for discretionary review.
I feel that the majority opinion is incorrect for two reasons. First, Segovia never related an out-of-court statement, as defined in the Rules of Evidence. Thus, the Rules’ prohibition against introduction of hearsay does not apply to the alleged error in this case. Second, even if Segovia’s testimony was an out-of-court statement, it was introduced as the basis for Segovia’s *116 opinion, not for the truth of the matter asserted. While the majority is correct that the evidence should not have been admitted, the proper reason for excluding the evidence is that Segovia’s opinion was irrelevant, and the prejudicial effect of his statement concerning the conversation with Seals, outweighed its probative value. Appellant did not object on this ground at trial and cannot now raise it on appeal. The majority’s rush to reach the “right” result has caused it to substitute an unsupported theory concerning “backdoor hearsay” in place of a sound, but unpreserved, relevance objection.
Contrary to the majority’s contention that the “rule concerning the type of hearsay in this case is set out in McCormick on Evidence,’’ slip op. at 113, the governing rules concerning hearsay are set out in the Rules of Evidence. 1 Thus, we must begin our analysis of this question with the rules themselves. Civil Rule of Evidence 801 provides the following definitions relevant to hearsay:
(a) Statement. A “statement” is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by him as a substitute for verbal expression.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Matter asserted. “Matter asserted” includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.
(d) Hearsay. “Hearsay” is a statement, other than one made by the declarant while 'testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
In the instant case, the objected-to statement by the witness was his response, “no.” While “no” is a statement within the meaning of Tex.R.Civ.Evid. 801(a), an oral verbal expression, it is not a statement “other than one made by the declarant while testifying at the trial or hearing.” Thus, regardless of what was intended to be proven by the witness’s statement, that statement does not fit the definition of “hearsay” provided in the Rules of Civil Evidence.
A second flaw of the majority opinion lies in its incorrect analysis of the “non-hearsay purpose” of a statement. The State cites a number of cases for the proposition that Segovia’s testimony was not hearsay. Without explanation, the majority states that these eases are distinguishable. 2 Although these cases are not factually identical to the instant case, they do stand for the proposition that a witness may testify that his or her opinion or action was based on hearsay information. In addition, a witness may testify in such a way that would make the content of the hearsay statement clear to the jury by simple inference. Black v. State, 503 S.W.2d 554 (Tex.Cr.App.1974) (existence of out-of-court statement made known to explain why police officer arrested defendant); Johnson v. State, 379 S.W.2d 329 (Tex.Cr.App.1964) (existence of out-of-court statement made known to explain why police officer arrested defendant); Locke v. State, 334 S.W.2d 292 (Tex.Cr.App.1960) (existence of out-of-court statement made known to support *117 probable cause); Lufkin v. State, 164 S.W.2d 709 (Tex.Cr.App.1942) (existence of out-of-court statement made known to explain why police officers were waiting for defendant).
The only valid way of distinguishing the above-cited-cases from the majority’s analysis is that in those cases the “backdoor hearsay” was introduced because it was relevant to explain a legitimate issue, for example, the basis for an arrest, the existence of probable cause, the reason for an officer’s presence at the scene of an offense, etc. Here, the “backdoor hearsay” was introduced to establish a wholly irrelevant issue: whether Segovia wished the State to continue to prosecute the appellant. 3 This factor, plus the complete irrelevance of Segovia’s desire to continue the trial, has caused the majority to stray from the resolution of this case which would be, otherwise, obvious. If Segovia had testified that, “based on my conversation with Officer Seals, I' decided to search appellant’s vehicle,” the majority would have easily, and correctly, reached the conclusion that the testimony was not introduced for the truth of the matter asserted and, therefore, no hearsay problem was present.
Because Segovia’s testimony did not convey an “out of court statement,” as defined by the Rules of Evidence, and because, even if the testimony conveyed an “out of court statement,” the statement was not introduced for the truth of the matter asserted, I dissent. 4
W.C. DAVIS, J., joins.
. As noted in the majority opinion’s first footnote, this case was tried under the Civil Rules of Evidence.
. Unfortunately, the chief case cited by appellant and relied upon by the majority is distinguishable. Vines v. State, 479 S.W.2d 322, 324 (Tex.Cr.App.1972). In Vines , the defendant was charged with driving while intoxicated. A police officer testified that it was local procedure for the jail supervisor to interview persons who had been detained and, based on that interview, to determine whether the individual should be held in jail. The defendant argued that this statement must lead to the inference that she was intoxicated. We agreed, in dicta, with the defendant’s contention. In Vines , however, we decided the issue in favor of the defendant on the basis that the actions of the jailor were introduced to show what the jailor believed at that time. Here, the appellant objects to action, Segovia’s statement that he does not want charges dropped, which occurred in court and which could have been explored in cross-examination. Appellant’s ability to examine Segovia on the basis of his opinion or desire distinguishes this case from Vines , in which the defendant could not have examined the jailor as to the basis of his opinion.
. Appellant would appear to have had a valid objection on the basis of relevance, Tex.RXiv. Evid. 401, and unfair prejudice, Tex.R.Civ.Evid. 403. Because appellant did not object on either of these grounds, he is barred from raising them on appeal. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977).
. As noted by the State’s Prosecuting Attorney in his brief, the federal courts have taken a similar approach in this area. In United States v. Walker, 636 F.2d 194 (8th Cir.1980), a law enforcement officer testified that he received a telephone call from a confidential informant. When he began to relate the content of the call, defense counsel objected on hearsay grounds and the trial court sustained the objection. The prosecutor then asked the agent what action he took based on the information he received. Again, the defense objected on the basis of hearsay. On appeal, the Eighth Circuit wrote:
'Hearsay is testimony in court of an out-of-court statement offered to show the truth of the matters asserted in the statement.’ Giblin v. United States, 523 F.2d 42, 45 (8th Cir. 1975), cert. denied, 424 U.S. 971 , 96 S.Ct. 1470 , 47 L.Ed.2d 739 (1976). Agent Shurn did not testify as to any statement made by the confidential informant. He merely testified as to his own behavior based on information he received from the informant. This type of testimony is not hearsay and is properly admissible.
Walker, 636 F.2d at 195 .
Likewise, the Ninth Circuit reached a similar conclusion in United States v. Campbell, 466 F.2d 529, 531 (9th Cir.), cert. denied, 409 U.S. 1062 , 93 S.Ct. 571 , 34 L.Ed.2d 516 (1972):
Neither was it error for the lower court to overrule appellant’s hearsay objection to a government agent’s testimony regarding what he did after talking to an informant. This was not hearsay, as the witness did not testify as to what the informant told him, nor was the evidence offered to prove the truth of what the informant said. Davis v. United States, 411 F.2d 1126, 1127-28 .
Campbell, 466 F.2d at 531 ,