CODE OF CRIMINAL PROCEDURE
CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS
Art. 38.01. TEXAS FORENSIC SCIENCE COMMISSION
Sec. 1. CREATION. The Texas Forensic Science Commission is
created.
Sec. 2. DEFINITION. In this article, "forensic analysis"
has the meaning assigned by Article 38.35(a).
Sec. 3. COMPOSITION. (a) The commission is composed of
the following nine members:
(1) four members appointed by the governor:
(A) two of whom must have expertise in the field
of forensic science;
(B) one of whom must be a prosecuting attorney
that the governor selects from a list of 10 names submitted by the
Texas District and County Attorneys Association; and
(C) one of whom must be a defense attorney that
the governor selects from a list of 10 names submitted by the Texas
Criminal Defense Lawyers Association;
(2) three members appointed by the lieutenant
governor:
(A) one of whom must be a faculty member or staff
member of The University of Texas who specializes in clinical
laboratory medicine selected from a list of 10 names submitted to
the lieutenant governor by the chancellor of The University of
Texas System;
(B) one of whom must be a faculty member or staff
member of Texas A&M University who specializes in clinical
laboratory medicine selected from a list of 10 names submitted to
the lieutenant governor by the chancellor of The Texas A&M
University System;
(C) one of whom must be a faculty member or staff
member of Texas Southern University who has expertise in
pharmaceutical laboratory research selected from a list of 10 names
submitted to the lieutenant governor by the chancellor of Texas
Southern University; and
(3) two members appointed by the attorney general:
(A) one of whom must be a director or division
head of the University of North Texas Health Science Center at Fort
Worth Missing Persons DNA Database; and
(B) one of whom must be a faculty or staff member
of the Sam Houston State University College of Criminal Justice and
have expertise in the field of forensic science or statistical
analyses selected from a list of 10 names submitted to the
lieutenant governor by the chancellor of Texas State University
System.
(b) Each member of the commission serves a two-year
term. The term of the members appointed under Subsections (a)(1)
and (2) expires on September 1 of each odd-numbered year. The term
of the members appointed under Subsection (a)(3) expires on
September 1 of each even-numbered year.
(c) The governor shall designate a member of the commission
to serve as the presiding officer.
Sec. 4. DUTIES. (a) The commission shall:
(1) develop and implement a reporting system through
which accredited laboratories, facilities, or entities report
professional negligence or misconduct;
(2) require all laboratories, facilities, or entities
that conduct forensic analyses to report professional negligence or
misconduct to the commission; and
(3) investigate, in a timely manner, any allegation of
professional negligence or misconduct that would substantially
affect the integrity of the results of a forensic analysis
conducted by an accredited laboratory, facility, or entity.
(b) An investigation under Subsection (a)(3):
(1) must include the preparation of a written report
that identifies and also describes the methods and procedures used
to identify:
(A) the alleged negligence or misconduct;
(B) whether negligence or misconduct occurred;
and
(C) any corrective action required of the
laboratory, facility, or entity; and
(2) may include one or more:
(A) retrospective reexaminations of other
forensic analyses conducted by the laboratory, facility, or entity
that may involve the same kind of negligence or misconduct; and
(B) follow-up evaluations of the laboratory,
facility, or entity to review:
(i) the implementation of any corrective
action required under Subdivision (1)(C); or
(ii) the conclusion of any retrospective
reexamination under Paragraph (A).
(c) The commission by contract may delegate the duties
described by Subsections (a)(1) and (3) to any person the
commission determines to be qualified to assume those duties.
(d) The commission may require that a laboratory, facility,
or entity investigated under this section pay any costs incurred to
ensure compliance with Subsection (b)(1).
(e) The commission shall make all investigation reports
completed under Subsection (b)(1) available to the public. A
report completed under Subsection (b)(1), in a subsequent civil or
criminal proceeding, is not prima facie evidence of the information
or findings contained in the report.
Sec. 5. REIMBURSEMENT. A member of the commission may not
receive compensation but is entitled to reimbursement for the
member's travel expenses as provided by Chapter 660, Government
Code, and the General Appropriations Act.
Sec. 6. ASSISTANCE. The Texas Legislative Council, the
Legislative Budget Board, and The University of Texas at Austin
shall assist the commission in performing the commission's duties.
Sec. 7. SUBMISSION. The commission shall submit any report
received under Section 4(a)(2) and any report prepared under
Section 4(b)(1) to the governor, the lieutenant governor, and the
speaker of the house of representatives not later than December 1 of
each even-numbered year.
Added by Acts 2005, 79th Leg., Ch. 1224, Sec. 1, eff. September 1,
2005.
Art. 38.03. PRESUMPTION OF INNOCENCE. All persons are
presumed to be innocent and no person may be convicted of an offense
unless each element of the offense is proved beyond a reasonable
doubt. The fact that he has been arrested, confined, or indicted
for, or otherwise charged with, the offense gives rise to no
inference of guilt at his trial.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1981, 67th Leg., p. 2247, ch. 539, Sec. 1, eff. June
12, 1981.
Art. 38.04. JURY ARE JUDGES OF FACTS. The jury, in all cases,
is the exclusive judge of the facts proved, and of the weight to be
given to the testimony, except where it is provided by law that
proof of any particular fact is to be taken as either conclusive or
presumptive proof of the existence of another fact, or where the law
directs that a certain degree of weight is to be attached to a
certain species of evidence.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.05. JUDGE SHALL NOT DISCUSS EVIDENCE. In ruling upon
the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but
shall simply decide whether or not it is admissible; nor shall he,
at any stage of the proceeding previous to the return of the
verdict, make any remark calculated to convey to the jury his
opinion of the case.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.07. TESTIMONY IN CORROBORATION OF VICTIM OF SEXUAL
OFFENSE. (a) A conviction under Chapter 21, Section 22.011, or
Section 22.021, Penal Code, is supportable on the uncorroborated
testimony of the victim of the sexual offense if the victim informed
any person, other than the defendant, of the alleged offense within
one year after the date on which the offense is alleged to have
occurred.
(b) The requirement that the victim inform another person of
an alleged offense does not apply if at the time of the alleged
offense the victim was a person:
(1) 17 years of age or younger;
(2) 65 years of age or older; or
(3) 18 years of age or older who by reason of age or physical
or mental disease, defect, or injury was substantially unable to
satisfy the person's need for food, shelter, medical care, or
protection from harm.
Added by Acts 1975, 64th Leg., p. 479, ch. 203, Sec. 6, eff. Sept. 1,
1975.
Amended by Acts 1983, 68th Leg., p. 2090, ch. 382, Sec. 1, eff.
Sept. 1, 1983; Acts 1983, 68th Leg., p. 5317, ch. 977, Sec. 7, eff.
Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 200, Sec. 1, eff. May 19,
1993; Acts 1993, 73rd Leg., ch. 900, Sec. 12.01, eff. Sept. 1,
1993. Amended by Acts 2001, 77th Leg., ch. 1018, Sec. 1, eff. Sept.
1, 2001.
Art. 38.071. TESTIMONY OF CHILD WHO IS VICTIM OF OFFENSE.
Sec. 1. This article applies only to a hearing or proceeding
in which the court determines that a child younger than 13 years of
age would be unavailable to testify in the presence of the defendant
about an offense defined by any of the following sections of the
Penal Code:
(1) Section 19.02 (Murder);
(2) Section 19.03 (Capital Murder);
(3) Section 19.04 (Manslaughter);
(4) Section 20.04 (Aggravated Kidnapping);
(5) Section 21.11 (Indecency with a Child);
(6) Section 22.011 (Sexual Assault);
(7) Section 22.02 (Aggravated Assault);
(8) Section 22.021 (Aggravated Sexual Assault);
(9) Section 22.04(e) (Injury to a Child, Elderly
Individual, or Disabled Individual);
(10) Section 22.04(f) (Injury to a Child, Elderly
Individual, or Disabled Individual), if the conduct is committed
intentionally or knowingly;
(11) Section 25.02 (Prohibited Sexual Conduct);
(12) Section 29.03 (Aggravated Robbery);
(13) Section 43.25 (Sexual Performance by a Child); or
(14) Section 21.02 (Continuous Sexual Abuse of Young
Child or Children).
Sec. 2. (a) The recording of an oral statement of the child
made before the indictment is returned or the complaint has been
filed is admissible into evidence if the court makes a
determination that the factual issues of identity or actual
occurrence were fully and fairly inquired into in a detached manner
by a neutral individual experienced in child abuse cases that seeks
to find the truth of the matter.
(b) If a recording is made under Subsection (a) of this
section and after an indictment is returned or a complaint has been
filed, by motion of the attorney representing the state or the
attorney representing the defendant and on the approval of the
court, both attorneys may propound written interrogatories that
shall be presented by the same neutral individual who made the
initial inquiries, if possible, and recorded under the same or
similar circumstances of the original recording with the time and
date of the inquiry clearly indicated in the recording.
(c) A recording made under Subsection (a) of this section is
not admissible into evidence unless a recording made under
Subsection (b) is admitted at the same time if a recording under
Subsection (b) was requested prior to the time of the hearing or
proceeding.
Sec. 3. (a) On its own motion or on the motion of the attorney
representing the state or the attorney representing the defendant,
the court may order that the testimony of the child be taken in a
room other than the courtroom and be televised by closed circuit
equipment in the courtroom to be viewed by the court and the finder
of fact. To the extent practicable, only the judge, the court
reporter, the attorneys for the defendant and for the state,
persons necessary to operate the equipment, and any person whose
presence would contribute to the welfare and well-being of the
child may be present in the room with the child during his
testimony. Only the attorneys and the judge may question the child.
To the extent practicable, the persons necessary to operate the
equipment shall be confined to an adjacent room or behind a screen
or mirror that permits them to see and hear the child during his
testimony, but does not permit the child to see or hear them. The
court shall permit the defendant to observe and hear the testimony
of the child and to communicate contemporaneously with his attorney
during periods of recess or by audio contact, but the court shall
attempt to ensure that the child cannot hear or see the defendant.
The court shall permit the attorney for the defendant adequate
opportunity to confer with the defendant during cross-examination
of the child. On application of the attorney for the defendant, the
court may recess the proceeding before or during cross-examination
of the child for a reasonable time to allow the attorney for the
defendant to confer with defendant.
(b) The court may set any other conditions and limitations on
the taking of the testimony that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors.
Sec. 4. (a) After an indictment has been returned or a
complaint filed, on its own motion or on the motion of the attorney
representing the state or the attorney representing the defendant,
the court may order that the testimony of the child be taken outside
the courtroom and be recorded for showing in the courtroom before
the court and the finder of fact. To the extent practicable, only
those persons permitted to be present at the taking of testimony
under Section 3 of this article may be present during the taking of
the child's testimony, and the persons operating the equipment
shall be confined from the child's sight and hearing as provided by
Section 3. The court shall permit the defendant to observe and hear
the testimony of the child and to communicate contemporaneously
with his attorney during periods of recess or by audio contact but
shall attempt to ensure that the child cannot hear or see the
defendant.
(b) The court may set any other conditions and limitations on
the taking of the testimony that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors. The court shall also
ensure that:
(1) the recording is both visual and aural and is recorded on
film or videotape or by other electronic means;
(2) the recording equipment was capable of making an accurate
recording, the operator was competent, the quality of the recording
is sufficient to allow the court and the finder of fact to assess
the demeanor of the child and the interviewer, and the recording is
accurate and is not altered;
(3) each voice on the recording is identified;
(4) the defendant, the attorneys for each party, and the
expert witnesses for each party are afforded an opportunity to view
the recording before it is shown in the courtroom;
(5) before giving his testimony, the child was placed under
oath or was otherwise admonished in a manner appropriate to the
child's age and maturity to testify truthfully;
(6) the court finds from the recording or through an in camera
examination of the child that the child was competent to testify at
the time the recording was made; and
(7) only one continuous recording of the child was made or the
necessity for pauses in the recordings or for multiple recordings
is established at the hearing or proceeding.
(c) After a complaint has been filed or an indictment
returned charging the defendant, on the motion of the attorney
representing the state, the court may order that the deposition of
the child be taken outside of the courtroom in the same manner as a
deposition may be taken in a civil matter. A deposition taken under
this subsection is admissible into evidence.
Sec. 5. (a) On the motion of the attorney representing the
state or the attorney representing the defendant and on a finding by
the court that the following requirements have been substantially
satisfied, the recording of an oral statement of the child made
before a complaint has been filed or an indictment returned is
admissible into evidence if:
(1) no attorney or peace officer was present when the
statement was made;
(2) the recording is both visual and aural and is recorded on
film or videotape or by other electronic means;
(3) the recording equipment was capable of making an accurate
recording, the operator of the equipment was competent, the quality
of the recording is sufficient to allow the court and the finder of
fact to assess the demeanor of the child and the interviewer, and
the recording is accurate and has not been altered;
(4) the statement was not made in response to questioning
calculated to lead the child to make a particular statement;
(5) every voice on the recording is identified;
(6) the person conducting the interview of the child in the
recording is expert in the handling, treatment, and investigation
of child abuse cases, present at the hearing or proceeding, called
by the state, and subject to cross-examination;
(7) immediately after a complaint was filed or an indictment
returned, the attorney representing the state notified the court,
the defendant, and the attorney representing the defendant of the
existence of the recording;
(8) the defendant, the attorney for the defendant, and the
expert witnesses for the defendant were afforded an opportunity to
view the recording before it is offered into evidence and, if a
proceeding was requested as provided by Subsection (b) of this
section, in a proceeding conducted before a district court judge
but outside the presence of the jury were afforded an opportunity to
cross-examine the child as provided by Subsection (b) of this
section from any time immediately following the filing of the
complaint or the returning of an indictment charging the defendant
until the date the hearing or proceeding begins;
(9) the recording of the cross-examination, if there is one,
is admissible under Subsection (b) of this section;
(10) before giving his testimony, the child was placed under
oath or was otherwise admonished in a manner appropriate to the
child's age and maturity to testify truthfully;
(11) the court finds from the recording or through an in
camera examination of the child that the child was competent to
testify at the time that the recording was made; and
(12) only one continuous recording of the child was made or
the necessity for pauses in the recordings or for multiple
recordings has been established at the hearing or proceeding.
(b) On the motion of the attorney representing the defendant,
a district court may order that the cross-examination of the child
be taken and be recorded before the judge of that court at any time
until a recording made in accordance with Subsection (a) of this
section has been introduced into evidence at the hearing or
proceeding. On a finding by the court that the following
requirements were satisfied, the recording of the
cross-examination of the child is admissible into evidence and
shall be viewed by the finder of fact only after the finder of fact
has viewed the recording authorized by Subsection (a) of this
section if:
(1) the recording is both visual and aural and is recorded on
film or videotape or by other electronic means;
(2) the recording equipment was capable of making an accurate
recording, the operator of the equipment was competent, the quality
of the recording is sufficient to allow the court and the finder of
fact to assess the demeanor of the child and the attorney
representing the defendant, and the recording is accurate and has
not been altered;
(3) every voice on the recording is identified;
(4) the defendant, the attorney representing the defendant,
the attorney representing the state, and the expert witnesses for
the defendant and the state were afforded an opportunity to view the
recording before the hearing or proceeding began;
(5) the child was placed under oath before the
cross-examination began or was otherwise admonished in a manner
appropriate to the child's age and maturity to testify truthfully;
and
(6) only one continuous recording of the child was made or the
necessity for pauses in the recordings or for multiple recordings
was established at the hearing or proceeding.
(c) During cross-examination under Subsection (b) of this
section, to the extent practicable, only a district court judge,
the attorney representing the defendant, the attorney representing
the state, persons necessary to operate the equipment, and any
other person whose presence would contribute to the welfare and
well-being of the child may be present in the room with the child
during his testimony. Only the attorneys and the judge may question
the child. To the extent practicable, the persons operating the
equipment shall be confined to an adjacent room or behind a screen
or mirror that permits them to see and hear the child during his
testimony but does not permit the child to see or hear them. The
court shall permit the defendant to observe and hear the testimony
of the child and to communicate contemporaneously with his attorney
during periods of recess or by audio contact, but shall attempt to
ensure that the child cannot hear or see the defendant.
(d) Under Subsection (b) of this section the district court
may set any other conditions and limitations on the taking of the
cross-examination of a child that it finds just and appropriate,
taking into consideration the interests of the child, the rights of
the defendant, and any other relevant factors.
Sec. 6. If the court orders the testimony of a child to be
taken under Section 3 or 4 of this article or if the court finds the
testimony of the child taken under Section 2 or 5 of this article is
admissible into evidence, the child may not be required to testify
in court at the proceeding for which the testimony was taken, unless
the court finds there is good cause.
Sec. 7. In making any determination of good cause under this
article, the court shall consider the rights of the defendant, the
interests of the child, the relationship of the defendant to the
child, the character and duration of the alleged offense, any court
finding related to the availability of the child to testify, the
age, maturity, and emotional stability of the child, the time
elapsed since the alleged offense, and any other relevant factors.
Sec. 8. (a) In making a determination of unavailability under
this article, the court shall consider relevant factors including
the relationship of the defendant to the child, the character and
duration of the alleged offense, the age, maturity, and emotional
stability of the child, and the time elapsed since the alleged
offense, and whether the child is more likely than not to be
unavailable to testify because:
(1) of emotional or physical causes, including the
confrontation with the defendant; or
(2) the child would suffer undue psychological or physical
harm through his involvement at the hearing or proceeding.
(b) A determination of unavailability under this article can
be made after an earlier determination of availability. A
determination of availability under this article can be made after
an earlier determination of unavailability.
Sec. 9. If the court finds the testimony taken under Section 2
or 5 of this article is admissible into evidence or if the court
orders the testimony to be taken under Section 3 or 4 of this
article and if the identity of the perpetrator is a contested issue,
the child additionally must make an in-person identification of the
defendant either at or before the hearing or proceeding.
Sec. 10. In ordering a child to testify under this article,
the court shall take all reasonable steps necessary and available
to minimize undue psychological trauma to the child and to minimize
the emotional and physical stress to the child caused by relevant
factors, including the confrontation with the defendant and the
ordinary participation of the witness in the courtroom.
Sec. 11. In a proceeding under Section 2, 3, or 4 or
Subsection (b) of Section 5 of this article, if the defendant is not
represented by counsel and the court finds that the defendant is not
able to obtain counsel for the purposes of the proceeding, the court
shall appoint counsel to represent the defendant at the proceeding.
Sec. 12. In this article, "cross-examination" has the same
meaning as in other legal proceedings in the state.
Sec. 13. The attorney representing the state shall determine
whether to use the procedure provided in Section 2 of this article
or the procedure provided in Section 5 of this article.
Added by Acts 1983, 68th Leg., p. 3828, ch. 599, Sec. 1, eff. Aug.
29, 1983. Sec. 3 amended by Acts 1987, 70th Leg., ch. 998, Sec. 1,
eff. Aug. 31, 1987. Amended by Acts 1987, 70th Leg., 2nd C.S., ch.
55, Sec. 1, eff. Oct. 20, 1987; Sec. 3(a) amended by Acts 1991, 72nd
Leg., ch. 266, Sec. 1, eff. Sept. 1, 1991; Sec. 1 amended by Acts
1995, 74th Leg., ch. 76, Sec. 14.24, eff. Sept. 1, 1995; Sec. 1
amended by Acts 2001, 77th Leg., ch. 338, Sec. 1, eff. Sept. 1,
2001; Sec. 2(c) amended by Acts 2001, 77th Leg., ch. 338, Sec. 2,
eff. Sept. 1, 2001; Sec. 3(a) amended by Acts 2001, 77th Leg., ch.
338, Sec. 3, eff. Sept. 1, 2001; Sec. 4(a), (b) amended by Acts
2001, 77th Leg., ch. 338, Sec. 4, eff. Sept. 1, 2001; Sec. 5(a), (b)
amended by Acts 2001, 77th Leg., ch. 338, Sec. 5, eff. Sept. 1,
2001; Sec. 8(a) amended by Acts 2001, 77th Leg., ch. 338, Sec. 6,
eff. Sept. 1, 2001; Sec. 9 amended by Acts 2001, 77th Leg., ch. 338,
Sec. 7, eff. Sept. 1, 2001; Sec. 10 amended by Acts 2001, 77th Leg.,
ch. 338, Sec. 8, eff. Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.16, eff.
September 1, 2007.
Art. 38.072. HEARSAY STATEMENT OF CHILD ABUSE VICTIM.
Sec. 1. This article applies to a proceeding in the
prosecution of an offense under any of the following provisions of
the Penal Code, if committed against a child 12 years of age or
younger:
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct); or
(3) Section 43.25 (Sexual Performance by a Child).
Sec. 2. (a) This article applies only to statements that
describe the alleged offense that:
(1) were made by the child against whom the offense was
allegedly committed; and
(2) were made to the first person, 18 years of age or older,
other than the defendant, to whom the child made a statement about
the offense.
(b) A statement that meets the requirements of Subsection (a)
of this article is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding
begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness
through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the
statement;
(2) the trial court finds, in a hearing conducted outside the
presence of the jury, that the statement is reliable based on the
time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the
proceeding in court or in any other manner provided by law.
Added by Acts 1985, 69th Leg., ch. 590, Sec. 1, eff. Sept. 1, 1985.
Sec. 1 amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.25, eff.
Sept. 1, 1995.
Art. 38.073. TESTIMONY OF INMATE WITNESSES. In a proceeding
in the prosecution of a criminal offense in which an inmate in the
custody of the Texas Department of Criminal Justice is required to
testify as a witness, any deposition or testimony of the inmate
witness may be conducted by electronic means, in the same manner as
permitted in civil cases under Section 30.012, Civil Practice and
Remedies Code.
Added by Acts 2001, 77th Leg., ch. 788, Sec. 2, eff. June 14, 2001.
Art. 38.08. DEFENDANT MAY TESTIFY. Any defendant in a
criminal action shall be permitted to testify in his own behalf
therein, but the failure of any defendant to so testify shall not be
taken as a circumstance against him, nor shall the same be alluded
to or commented on by counsel in the cause.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.10. EXCEPTIONS TO THE SPOUSAL ADVERSE TESTIMONY
PRIVILEGE. The privilege of a person's spouse not to be called as a
witness for the state does not apply in any proceeding in which the
person is charged with:
(1) a crime committed against the person's spouse, a
minor child, or a member of the household of either spouse; or
(2) an offense under Section 25.01, Penal Code
(Bigamy).
Added by Acts 1995, 74th Leg., ch. 67, Sec. 2, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 268, Sec. 4.01, eff. September 1,
2005.
Art. 38.101. COMMUNICATIONS BY DRUG ABUSERS. A
communication to any person involved in the treatment or
examination of drug abusers by a person being treated voluntarily
or being examined for admission to voluntary treatment for drug
abuse is not admissible. However, information derived from the
treatment or examination of drug abusers may be used for
statistical and research purposes if the names of the patients are
not revealed.
Added by Acts 1971, 62nd Leg., p. 2984, ch. 983, Sec. 2, eff. June
15, 1971.
Art. 38.12. RELIGIOUS OPINION. No person is incompetent to
testify on account of his religious opinion or for the want of any
religious belief.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.14. TESTIMONY OF ACCOMPLICE. A conviction cannot be
had upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely
shows the commission of the offense.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.141. TESTIMONY OF UNDERCOVER PEACE OFFICER OR SPECIAL
INVESTIGATOR. (a) A defendant may not be convicted of an offense
under Chapter 481, Health and Safety Code, on the testimony of a
person who is not a licensed peace officer or a special investigator
but who is acting covertly on behalf of a law enforcement agency or
under the color of law enforcement unless the testimony is
corroborated by other evidence tending to connect the defendant
with the offense committed.
(b) Corroboration is not sufficient for the purposes of this
article if the corroboration only shows the commission of the
offense.
(c) In this article, "peace officer" means a person listed in
Article 2.12, and "special investigator" means a person listed in
Article 2.122.
Added by Acts 2001, 77th Leg., ch. 1102, Sec. 1, eff. Sept. 1, 2001.
Art. 38.15. TWO WITNESSES IN TREASON. No person can be
convicted of treason except upon the testimony of at least two
witnesses to the same overt act, or upon his own confession in open
court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.16. EVIDENCE IN TREASON. Evidence shall not be
admitted in a prosecution for treason as to an overt act not
expressly charged in the indictment; nor shall any person be
convicted under an indictment for treason unless one or more overt
acts are expressly charged therein.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.17. TWO WITNESSES REQUIRED. In all cases where, by
law, two witnesses, or one with corroborating circumstances, are
required to authorize a conviction, if the requirement be not
fulfilled, the court shall instruct the jury to render a verdict of
acquittal, and they are bound by the instruction.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.18. PERJURY AND AGGRAVATED PERJURY. (a) No person
may be convicted of perjury or aggravated perjury if proof that his
statement is false rests solely upon the testimony of one witness
other than the defendant.
(b) Paragraph (a) of this article does not apply to
prosecutions for perjury or aggravated perjury involving
inconsistent statements.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 973, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.
Art. 38.19. INTENT TO DEFRAUD IN FORGERY. In trials of
forgery, it need not be proved that the defendant committed the act
with intent to defraud any particular person. It shall be
sufficient to prove that the forgery was, in its nature, calculated
to injure or defraud any of the sovereignties, bodies corporate or
politic, officers or persons, named in the definition of forgery in
the Penal Code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.21. STATEMENT. A statement of an accused may be used
in evidence against him if it appears that the same was freely and
voluntarily made without compulsion or persuasion, under the rules
hereafter prescribed.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1977,
65th Leg., p. 935, ch. 348, Sec. 1, eff. Aug. 29, 1977.
Art. 38.22. WHEN STATEMENTS MAY BE USED.
Sec. 1. In this article, a written statement of an accused
means a statement signed by the accused or a statement made by the
accused in his own handwriting or, if the accused is unable to
write, a statement bearing his mark, when the mark has been
witnessed by a person other than a peace officer.
Sec. 2. No written statement made by an accused as a result of
custodial interrogation is admissible as evidence against him in
any criminal proceeding unless it is shown on the face of the
statement that:
(a) the accused, prior to making the statement, either
received from a magistrate the warning provided in Article 15.17 of
this code or received from the person to whom the statement is made
a warning that:
(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be used against
him at his trial;
(2) any statement he makes may be used as evidence against him
in court;
(3) he has the right to have a lawyer present to advise him
prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to
have a lawyer appointed to advise him prior to and during any
questioning; and
(5) he has the right to terminate the interview at any time;
and
(b) the accused, prior to and during the making of the
statement, knowingly, intelligently, and voluntarily waived the
rights set out in the warning prescribed by Subsection (a) of this
section.
Sec. 3. (a) No oral or sign language statement of an accused
made as a result of custodial interrogation shall be admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion
picture, video tape, or other visual recording, is made of the
statement;
(2) prior to the statement but during the recording the
accused is given the warning in Subsection (a) of Section 2 above
and the accused knowingly, intelligently, and voluntarily waives
any rights set out in the warning;
(3) the recording device was capable of making an accurate
recording, the operator was competent, and the recording is
accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the
proceeding, the attorney representing the defendant is provided
with a true, complete, and accurate copy of all recordings of the
defendant made under this article.
(b) Every electronic recording of any statement made by an
accused during a custodial interrogation must be preserved until
such time as the defendant's conviction for any offense relating
thereto is final, all direct appeals therefrom are exhausted, or
the prosecution of such offenses is barred by law.
(c) Subsection (a) of this section shall not apply to any
statement which contains assertions of facts or circumstances that
are found to be true and which conduce to establish the guilt of the
accused, such as the finding of secreted or stolen property or the
instrument with which he states the offense was committed.
(d) If the accused is a deaf person, the accused's statement
under Section 2 or Section 3(a) of this article is not admissible
against the accused unless the warning in Section 2 of this article
is interpreted to the deaf person by an interpreter who is qualified
and sworn as provided in Article 38.31 of this code.
(e) The courts of this state shall strictly construe
Subsection (a) of this section and may not interpret Subsection (a)
as making admissible a statement unless all requirements of the
subsection have been satisfied by the state, except that:
(1) only voices that are material are identified; and
(2) the accused was given the warning in Subsection (a) of
Section 2 above or its fully effective equivalent.
Sec. 4. When any statement, the admissibility of which is
covered by this article, is sought to be used in connection with an
official proceeding, any person who swears falsely to facts and
circumstances which, if true, would render the statement admissible
under this article is presumed to have acted with intent to deceive
and with knowledge of the statement's meaning for the purpose of
prosecution for aggravated perjury under Section 37.03 of the Penal
Code. No person prosecuted under this subsection shall be eligible
for probation.
Sec. 5. Nothing in this article precludes the admission of a
statement made by the accused in open court at his trial, before a
grand jury, or at an examining trial in compliance with Articles
16.03 and 16.04 of this code, or of a statement that is the res
gestae of the arrest or of the offense, or of a statement that does
not stem from custodial interrogation, or of a voluntary statement,
whether or not the result of custodial interrogation, that has a
bearing upon the credibility of the accused as a witness, or of any
other statement that may be admissible under law.
Sec. 6. In all cases where a question is raised as to the
voluntariness of a statement of an accused, the court must make an
independent finding in the absence of the jury as to whether the
statement was made under voluntary conditions. If the statement
has been found to have been voluntarily made and held admissible as
a matter of law and fact by the court in a hearing in the absence of
the jury, the court must enter an order stating its conclusion as to
whether or not the statement was voluntarily made, along with the
specific finding of facts upon which the conclusion was based,
which order shall be filed among the papers of the cause. Such
order shall not be exhibited to the jury nor the finding thereof
made known to the jury in any manner. Upon the finding by the judge
as a matter of law and fact that the statement was voluntarily made,
evidence pertaining to such matter may be submitted to the jury and
it shall be instructed that unless the jury believes beyond a
reasonable doubt that the statement was voluntarily made, the jury
shall not consider such statement for any purpose nor any evidence
obtained as a result thereof. In any case where a motion to
suppress the statement has been filed and evidence has been
submitted to the court on this issue, the court within its
discretion may reconsider such evidence in his finding that the
statement was voluntarily made and the same evidence submitted to
the court at the hearing on the motion to suppress shall be made a
part of the record the same as if it were being presented at the time
of trial. However, the state or the defendant shall be entitled to
present any new evidence on the issue of the voluntariness of the
statement prior to the court's final ruling and order stating its
findings.
Sec. 7. When the issue is raised by the evidence, the trial
judge shall appropriately instruct the jury, generally, on the law
pertaining to such statement.
Sec. 8. Notwithstanding any other provision of this article,
a written, oral, or sign language statement of an accused made as a
result of a custodial interrogation is admissible against the
accused in a criminal proceeding in this state if:
(1) the statement was obtained in another state and was
obtained in compliance with the laws of that state or this state;
or
(2) the statement was obtained by a federal law enforcement
officer in this state or another state and was obtained in
compliance with the laws of the United States.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 1740, ch. 659, Sec. 23, eff. Aug. 28, 1967; Acts 1977,
65th Leg., p. 935, ch. 348, Sec. 2, eff. Aug. 29, 1977.
Sec. 3(a) amended by Acts 1979, 66th Leg., p. 398, ch. 186, Sec. 4,
eff. May 15, 1979; Sec. 3(d) added by Acts 1979, 66th Leg., p. 398,
ch. 186, Sec. 5, eff. May 15, 1979; Sec. 3 amended by Acts 1981,
67th Leg., p. 711, ch. 271, Sec. 1, eff. Sept. 1, 1981; Sec. 3(a)
amended by Acts 1989, 71st Leg., ch. 777, Sec. 1, eff. Sept. 1,
1989; Sec. 3(e) added by Acts 1989, 71st Leg., ch. 777, Sec. 2, eff.
Sept. 1, 1989; Sec. 8 added by Acts 2001, 77th Leg., ch. 990, Sec.
1, eff. Sept. 1, 2001.
Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence
obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of
the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any
criminal case.
In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it believes, or has
a reasonable doubt, that the evidence was obtained in violation of
the provisions of this Article, then and in such event, the jury
shall disregard any such evidence so obtained.
(b) It is an exception to the provisions of Subsection (a) of
this Article that the evidence was obtained by a law enforcement
officer acting in objective good faith reliance upon a warrant
issued by a neutral magistrate based on probable cause.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1987, 70th Leg., ch. 546, Sec. 1, eff. Sept. 1,
1987.
Art. 38.25. WRITTEN PART OF INSTRUMENT CONTROLS. When an
instrument is partly written and partly printed, the written shall
control the printed portion when the two are inconsistent.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.27. EVIDENCE OF HANDWRITING. It is competent to give
evidence of handwriting by comparison, made by experts or by the
jury. Proof by comparison only shall not be sufficient to establish
the handwriting of a witness who denies his signature under oath.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 38.30. INTERPRETER. (a) When a motion for appointment
of an interpreter is filed by any party or on motion of the court, in
any criminal proceeding, it is determined that a person charged or a
witness does not understand and speak the English language, an
interpreter must be sworn to interpret for the person charged or the
witness. Any person may be subpoenaed, attached or recognized in
any criminal action or proceeding, to appear before the proper
judge or court to act as interpreter therein, under the same rules
and penalties as are provided for witnesses. In the event that the
only available interpreter is not considered to possess adequate
interpreting skills for the particular situation or the interpreter
is not familiar with use of slang, the person charged or witness may
be permitted by the court to nominate another person to act as
intermediary between the person charged or witness and the
appointed interpreter during the proceedings.
(a-1) A qualified telephone interpreter may be sworn to
interpret for the person in the trial of a Class C misdemeanor or a
proceeding before a magistrate if an interpreter is not available
to appear in person before the court or if the only available
interpreter is not considered to possess adequate interpreting
skills for the particular situation or is unfamiliar with the use of
slang. In this subsection, "qualified telephone interpreter"
means a telephone service that employs:
(1) licensed court interpreters as defined by Section
57.001, Government Code; or
(2) federally certified court interpreters.
(b) Except as provided by Subsection (c) of this article,
interpreters appointed under the terms of this article will receive
from the general fund of the county for their services a sum not to
exceed $100 a day as follows: interpreters shall be paid not less
than $15 nor more than $100 a day at the discretion of the judge
presiding, and when travel of the interpreter is involved all the
actual expenses of travel, lodging, and meals incurred by the
interpreter pertaining to the case the interpreter is appointed to
serve shall be paid at the same rate applicable to state employees.
(c) A county commissioners court may set a payment schedule
and expend funds for the services of interpreters in excess of the
daily amount of not less than $15 or more than $100 established by
Subsection (b) of this article.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1979, 66th Leg., p. 453, ch. 209, Sec. 1, eff. Aug.
27, 1979; Acts 1991, 72nd Leg., ch. 700, Sec. 1, eff. June 16, 1991.
Amended by:
Acts 2005, 79th Leg., Ch. 956, Sec. 1, eff. September 1, 2005.
Art. 38.31. INTERPRETERS FOR DEAF PERSONS. (a) If the court
is notified by a party that the defendant is deaf and will be
present at an arraignment, hearing, examining trial, or trial, or
that a witness is deaf and will be called at a hearing, examining
trial, or trial, the court shall appoint a qualified interpreter to
interpret the proceedings in any language that the deaf person can
understand, including but not limited to sign language. On the
court's motion or the motion of a party, the court may order
testimony of a deaf witness and the interpretation of that
testimony by the interpreter visually, electronically recorded for
use in verification of the transcription of the reporter's notes.
The clerk of the court shall include that recording in the appellate
record if requested by a party under Article 40.09 of this Code.
(b) Following the filing of an indictment, information, or
complaint against a deaf defendant, the court on the motion of the
defendant shall appoint a qualified interpreter to interpret in a
language that the defendant can understand, including but not
limited to sign language, communications concerning the case
between the defendant and defense counsel. The interpreter may not
disclose a communication between the defendant and defense counsel
or a fact that came to the attention of the interpreter while
interpreting those communications if defense counsel may not
disclose that communication or fact.
(c) In all cases where the mental condition of a person is
being considered and where such person may be committed to a mental
institution, and where such person is deaf, all of the court
proceedings pertaining to him shall be interpreted by a qualified
interpreter appointed by the court.
(d) A proceeding for which an interpreter is required to be
appointed under this Article may not commence until the appointed
interpreter is in a position not exceeding ten feet from and in full
view of the deaf person.
(e) The interpreter appointed under the terms of this Article
shall be required to take an oath that he will make a true
interpretation to the person accused or being examined, which
person is deaf, of all the proceedings of his case in a language
that he understands; and that he will repeat said deaf person's
answer to questions to counsel, court, or jury, in the English
language, in his best skill and judgment.
(f) Interpreters appointed under this Article are entitled to
a reasonable fee determined by the court after considering the
recommendations of the Texas Commission for the Deaf and Hard of
Hearing. When travel of the interpreter is involved all the actual
expenses of travel, lodging, and meals incurred by the interpreter
pertaining to the case he is appointed to serve shall be paid at the
same rate applicable to state employees.
(g) In this Code:
(1) "Deaf person" means a person who has a hearing
impairment, regardless of whether the person also has a speech
impairment, that inhibits the person's comprehension of the
proceedings or communication with others.
(2) "Qualified interpreter" means an interpreter for
the deaf who holds a current legal certificate issued by the
National Registry of Interpreters for the Deaf or a current court
interpreter certificate issued by the Board for Evaluation of
Interpreters at the Department of Assistive or Rehabilitative
Services.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 195, ch. 105, Sec. 2, eff. Aug. 28, 1967.
Amended by Acts 1979, 66th Leg., p. 396, ch. 186, Sec. 1, eff. May
15, 1979; Acts 1987, 70th Leg., ch. 434, Sec. 1, eff. June 17, 1987;
Subsec. (f) amended by Acts 1995, 74th Leg., ch. 835, Sec. 14, eff.
Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 614, Sec. 11, eff. September 1,
2006.
Art. 38.32. PRESUMPTION OF DEATH. (a) Upon introduction and
admission into evidence of a valid certificate of death wherein the
time of death of the decedent has been entered by a licensed
physician, a presumption exists that death occurred at the time
stated in the certificate of death.
(b) A presumption existing pursuant to Section (a) of this
Article is sufficient to support a finding as to time of death but
may be rebutted through a showing by a preponderance of the evidence
that death occurred at some other time.
Added by Acts 1969, 61st Leg., p. 1034, ch. 337, Sec. 1, eff. May 27,
1969.
Art. 38.33. PRESERVATION AND USE OF EVIDENCE OF CERTAIN
MISDEMEANOR CONVICTIONS.
Sec. 1. The court shall order that a defendant who is
convicted of a felony or a misdemeanor offense that is punishable by
confinement in jail have a thumbprint of the defendant's right
thumb rolled legibly on the judgment or the docket sheet in the
case. The court shall order a defendant who is placed on probation
under Section 5 of Article 42.12, Code of Criminal Procedure, for an
offense described by this section to have a thumbprint of the
defendant's right thumb rolled legibly on the order placing the
defendant on probation. If the defendant does not have a right
thumb, the defendant must have a thumbprint of the defendant's left
thumb rolled legibly on the judgment, order, or docket sheet. The
defendant must have a fingerprint of the defendant's index finger
rolled legibly on the judgment, order, or docket sheet if the
defendant does not have a right thumb or a left thumb. The
judgment, order, or docket sheet must contain a statement that
describes from which thumb or finger the print was taken, unless a
rolled 10-finger print set was taken. A clerk or bailiff of the
court or other person qualified to take fingerprints shall take the
thumbprint or fingerprint, either by use of the ink-rolled print
method or by use of a live-scanning device that prints the
thumbprint or fingerprint image on the judgment, order, or docket
sheet.
Sec. 2. This article does not prohibit a court from including
in the records of the case additional information to identify the
defendant.
Added by Acts 1979, 66th Leg., p. 1851, ch. 751, Sec. 1, eff. Sept.
1, 1979. Sec. 1 amended by Acts 1983, 68th Leg., p. 1586, ch. 303,
Sec. 7, eff. Jan. 1, 1984. Amended by Acts 1987, 70th Leg., ch. 721,
Sec. 1, eff. Sept. 1, 1987. Sec. 1 amended by Acts 1989, 71st Leg.,
ch. 603, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., 2nd C.S.,
ch. 10, Sec. 7.01, eff. Dec. 1, 1991.
Art. 38.34. PHOTOGRAPHIC EVIDENCE IN THEFT CASES. (a) As
used herein, the term "property" means tangible personal property
offered for sale or lease by a person engaged in the business of
selling goods or services to buyers.
(b) A photograph of property which a person is alleged to have
unlawfully appropriated with the intent to deprive the owner of
such property is admissible into evidence under rules of law
governing the admissibility of photographs and such photograph is
as admissible in evidence as the property itself.
(c) The provisions of Article 18.16 of this code concerning
the bringing of stolen property before a magistrate for examination
are complied with if a photograph of the stolen property is brought
before the magistrate.
(d) The defendant's rights of discovery and inspection of
tangible physical evidence are satisfied if a photograph of the
tangible property is made available to the defendant by the state
upon order of any court having jurisdiction over the cause.
Added by Acts 1985, 69th Leg., ch. 144, Sec. 1, eff. Sept. 1, 1985.
Art. 38.35. FORENSIC ANALYSIS OF
EVIDENCE; ADMISSIBILITY. (a) In this article:
(1) "Crime laboratory" includes a public or private
laboratory or other entity that conducts a forensic analysis
subject to this article.
(2) "Criminal action" includes an investigation,
complaint, arrest, bail, bond, trial, appeal, punishment, or other
matter related to conduct proscribed by a criminal offense.
(3) "Director" means the public safety director of the
Department of Public Safety.
(4) "Forensic analysis" means a medical, chemical,
toxicologic, ballistic, or other expert examination or test
performed on physical evidence, including DNA evidence, for the
purpose of determining the connection of the evidence to a criminal
action. The term includes an examination or test requested by a
law enforcement agency, prosecutor, criminal suspect or defendant,
or court. The term does not include:
(A) latent print examination;
(B) a test of a specimen of breath under Chapter
724, Transportation Code;
(C) digital evidence;
(D) an examination or test excluded by rule under
Section 411.0205(c), Government Code;
(E) a presumptive test performed for the purpose
of determining compliance with a term or condition of community
supervision or parole and conducted by or under contract with a
community supervision and corrections department, the parole
division of the Texas Department of Criminal Justice, or the Board
of Pardons and Paroles; or
(F) an expert examination or test conducted
principally for the purpose of scientific research, medical
practice, civil or administrative litigation, or other purpose
unrelated to determining the connection of physical evidence to a
criminal action.
(5) "Physical evidence" means any tangible object,
thing, or substance relating to a criminal action.
(b) A law enforcement agency, prosecutor, or court may
request a forensic analysis by a crime laboratory of physical
evidence if the evidence was obtained in connection with the
requesting entity's investigation or disposition of a criminal
action and the requesting entity:
(1) controls the evidence;
(2) submits the evidence to the laboratory; or
(3) consents to the analysis.
(c) A law enforcement agency, other governmental agency, or
private entity performing a forensic analysis of physical evidence
may require the requesting law enforcement agency to pay a fee for
such analysis.
(d)(1) Except as provided by Subsection (e), a forensic
analysis of physical evidence under this article and expert
testimony relating to the evidence are not admissible in a criminal
action if, at the time of the analysis, the crime laboratory
conducting the analysis was not accredited by the director under
Section 411.0205, Government Code.
(2) If before the date of the analysis the director
issues a certificate of accreditation under Section 411.0205,
Government Code, to a crime laboratory conducting the analysis, the
certificate is prima facie evidence that the laboratory was
accredited by the director at the time of the analysis.
(e) A forensic analysis of physical evidence under this
article and expert testimony relating to the evidence are not
inadmissible in a criminal action based solely on the accreditation
status of the crime laboratory conducting the analysis if the
laboratory:
(A) except for making proper application, was
eligible for accreditation by the director at the time of the
examination or test; and
(B) obtains accreditation from the director
before the time of testimony about the examination or test.
(f) This article does not apply to the portion of an autopsy
conducted by a medical examiner or other forensic pathologist who
is a licensed physician.
Added by Acts 1991, 72nd Leg., ch. 298, Sec. 1, eff. Sept. 1, 1991;
Art. heading amended by Acts 2003, 78th Leg., ch. 698, Sec. 1, eff.
June 20, 2003; Subsec. (a)(1) amended by Acts 2003, 78th Leg., ch.
698, Sec. 2, eff. June 20, 2003; Subsecs. (d), (e) added by Acts
2003, 78th Leg., ch. 698, Sec. 3, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1224, Sec. 2, eff. September 1,
2005.
Art. 38.36. EVIDENCE IN PROSECUTIONS FOR MURDER. (a) In all
prosecutions for murder, the state or the defendant shall be
permitted to offer testimony as to all relevant facts and
circumstances surrounding the killing and the previous
relationship existing between the accused and the deceased,
together with all relevant facts and circumstances going to show
the condition of the mind of the accused at the time of the offense.
(b) In a prosecution for murder, if a defendant raises as a
defense a justification provided by Section 9.31, 9.32, or 9.33,
Penal Code, the defendant, in order to establish the defendant's
reasonable belief that use of force or deadly force was immediately
necessary, shall be permitted to offer:
(1) relevant evidence that the defendant had been the victim
of acts of family violence committed by the deceased, as family
violence is defined by Section 71.004, Family Code; and
(2) relevant expert testimony regarding the condition of the
mind of the defendant at the time of the offense, including those
relevant facts and circumstances relating to family violence that
are the basis of the expert's opinion.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 7.03, eff. Sept. 1,
1994. Subsec. (b) amended by Acts 2003, 78th Leg., ch. 1276, Sec.
7.002(g), eff. Sept. 1, 2003.
Art. 38.37. EVIDENCE OF EXTRANEOUS OFFENSES OR ACTS.
Sec. 1. This article applies to a proceeding in the
prosecution of a defendant for an offense under the following
provisions of the Penal Code, if committed against a child under 17
years of age:
(1) Chapter 21 (Sexual Offenses);
(2) Chapter 22 (Assaultive Offenses);
(3) Section 25.02 (Prohibited Sexual Conduct);
(4) Section 43.25 (Sexual Performance by a Child); or
(5) an attempt or conspiracy to commit an offense listed in
this section.
Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of
Evidence, evidence of other crimes, wrongs, or acts committed by
the defendant against the child who is the victim of the alleged
offense shall be admitted for its bearing on relevant matters,
including:
(1) the state of mind of the defendant and the child;
and
(2) the previous and subsequent relationship between
the defendant and the child.
Sec. 3. On timely request by the defendant, the state shall
give the defendant notice of the state's intent to introduce in the
case in chief evidence described by Section 2 in the same manner as
the state is required to give notice under Rule 404(b), Texas Rules
of Evidence.
Sec. 4. This article does not limit the admissibility of
evidence of extraneous crimes, wrongs, or acts under any other
applicable law.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 48(a), eff. Sept. 1,
1995.
Amended by:
Acts 2005, 79th Leg., Ch. 728, Sec. 4.004, eff. September 1,
2005.
Art. 38.38. EVIDENCE RELATING TO RETAINING ATTORNEY.
Evidence that a person has contacted or retained an attorney is not
admissible on the issue of whether the person committed a criminal
offense. In a criminal case, neither the judge nor the attorney
representing the state may comment on the fact that the defendant
has contacted or retained an attorney in the case.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 49, eff. Sept. 1, 1995.
Art. 38.39. EVIDENCE IN AN AGGREGATION PROSECUTION WITH
NUMEROUS VICTIMS. In trials involving an allegation of a
continuing scheme of fraud or theft alleged to have been committed
against a large class of victims in an aggregate amount or value, it
need not be proved by direct evidence that each alleged victim did
not consent or did not effectively consent to the transaction in
question. It shall be sufficient if the lack of consent or
effective consent to a particular transaction or transactions is
proven by either direct or circumstantial evidence.
Added by Acts 2001, 77th Leg., ch. 1411, Sec. 2, eff. Sept. 1, 2001.
Art. 38.40. EVIDENCE OF PREGNANCY. (a) In a prosecution for
the death of or injury to an individual who is an unborn child, the
prosecution shall provide medical or other evidence that the mother
of the individual was pregnant at the time of the alleged offense.
(b) For the purpose of this section, "individual" has the
meaning assigned by Section 1.07, Penal Code.
Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.06, eff. Sept. 1,
2003.
Art. 38.41. CERTIFICATE OF ANALYSIS.
Sec. 1. A certificate of analysis that complies with this
article is admissible in evidence on behalf of the state or the
defendant to establish the results of a laboratory analysis of
physical evidence conducted by or for a law enforcement agency
without the necessity of the analyst personally appearing in court.
Sec. 2. This article does not limit the right of a party to
summon a witness or to introduce admissible evidence relevant to
the results of the analysis.
Sec. 3. A certificate of analysis under this article must
contain the following information certified under oath:
(1) the names of the analyst and the laboratory employing the
analyst;
(2) a statement that the laboratory employing the analyst is
accredited by a nationally recognized board or association that
accredits crime laboratories;
(3) a description of the analyst's educational background,
training, and experience;
(4) a statement that the analyst's duties of employment
included the analysis of physical evidence for one or more law
enforcement agencies;
(5) a description of the tests or procedures conducted by the
analyst;
(6) a statement that the tests or procedures used were
reliable and approved by the laboratory employing the analyst; and
(7) the results of the analysis.
Sec. 4. Not later than the 20th day before the trial begins in
a proceeding in which a certificate of analysis under this article
is to be introduced, the certificate must be filed with the clerk of
the court and a copy must be provided by fax, hand delivery, or
certified mail, return receipt requested, to the opposing party.
The certificate is not admissible under Section 1 if, not later than
the 10th day before the trial begins, the opposing party files a
written objection to the use of the certificate with the clerk of
the court and provides a copy of the objection by fax, hand
delivery, or certified mail, return receipt requested, to the
offering party.
Sec. 5. A certificate of analysis is sufficient for purposes
of this article if it uses the following form or if it otherwise
substantially complies with this article:
CERTIFICATE OF ANALYSIS
BEFORE ME, the undersigned authority, personally appeared
______________________________, who being duly sworn, stated as
follows:
My name is __________. I am of sound mind, over the age of 18
years, capable of making this affidavit, and personally acquainted
with the facts stated in this affidavit.
I am employed by the __________, which was authorized to
conduct the analysis referenced in this affidavit. Part of my
duties for this laboratory involved the analysis of physical
evidence for one or more law enforcement agencies. This laboratory
is accredited by __________.
My educational background is as follows: (description of
educational background)
My training and experience that qualify me to perform the
tests or procedures referred to in this affidavit and determine the
results of those tests or procedures are as follows: (description
of training and experience)
I received the physical evidence listed on laboratory report
no. __________ (attached) on the ___ day of __________, 20___. On
the date indicated in the laboratory report, I conducted the
following tests or procedures on the physical evidence:
(description of tests and procedures)
The tests and procedures used were reliable and approved by
the laboratory. The results are as indicated on the lab report.
__________
Affiant
SWORN TO AND SUBSCRIBED before me on the ___ day of
__________, 20___.
__________
Notary Public, State of Texas
Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. Sept. 1, 2003.
Art. 38.42. CHAIN OF CUSTODY AFFIDAVIT.
Sec. 1. A chain of custody affidavit that complies with this
article is admissible in evidence on behalf of the state or the
defendant to establish the chain of custody of physical evidence
without the necessity of any person in the chain of custody
personally appearing in court.
Sec. 2. This article does not limit the right of a party to
summon a witness or to introduce admissible evidence relevant to
the chain of custody.
Sec. 3. A chain of custody affidavit under this article must
contain the following information stated under oath:
(1) the affiant's name and address;
(2) a description of the item of evidence and its container,
if any, obtained by the affiant;
(3) the name of the affiant's employer on the date the affiant
obtained custody of the physical evidence;
(4) the date and method of receipt and the name of the person
from whom or location from which the item of physical evidence was
received;
(5) the date and method of transfer and the name of the person
to whom or location to which the item of physical evidence was
transferred; and
(6) a statement that the item of evidence was transferred in
essentially the same condition as received except for any minor
change resulting from field or laboratory testing procedures.
Sec. 4. Not later than the 20th day before the trial begins in
a proceeding in which a chain of custody affidavit under this
article is to be introduced, the affidavit must be filed with the
clerk of the court and a copy must be provided by fax, hand
delivery, or certified mail, return receipt requested, to the
opposing party. The affidavit is not admissible under Section 1 if,
not later than the 10th day before the trial begins, the opposing
party files a written objection to the use of the affidavit with the
clerk of the court and provides a copy of the objection by fax, hand
delivery, or certified mail, return receipt requested, to the
offering party.
Sec. 5. A chain of custody affidavit is sufficient for
purposes of this article if it uses the following form or if it
otherwise substantially complies with this article:
CHAIN OF CUSTODY AFFIDAVIT
BEFORE ME, the undersigned authority, personally appeared
______________________________, who being by me duly sworn, stated
as follows:
My name is __________. I am of sound mind, over the age of 18
years, capable of making this affidavit, and personally acquainted
with the facts stated in this affidavit.
My address is __________.
On the ___ day of __________, 20___, I was employed by
___________.
On that date, I came into possession of the physical evidence
described as follows: (description of evidence)
I received the physical evidence from __________ (name of
person or description of location) on the ___ day of __________,
20___, by ___________ (method of receipt).
This physical evidence was in a container described and
marked as follows: (description of container)
I transferred the physical evidence to __________ (name of
person or description of location) on the ___ day of __________,
20___, by ___________ (method of delivery).
During the time that the physical evidence was in my custody,
I did not make any changes or alterations to the condition of the
physical evidence except for those resulting from field or
laboratory testing procedures, and the physical evidence or a
representative sample of the physical evidence was transferred in
essentially the same condition as received.
__________
Affiant
SWORN TO AND SUBSCRIBED before me on the ___ day of
__________, 20___.
__________
Notary Public, State of Texas
Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. Sept. 1, 2003.
Art. 38.43. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL
MATERIAL. (a) In a criminal case in which a defendant is convicted,
the attorney representing the state, a clerk, or any other officer
in possession of evidence described by Subsection (b) shall ensure
the preservation of the evidence.
(b) This article applies to evidence that:
(1) was in the possession of the state during the prosecution
of the case; and
(2) at the time of conviction was known to contain biological
material that if subjected to scientific testing would more likely
than not:
(A) establish the identity of the person committing the
offense; or
(B) exclude a person from the group of persons who could have
committed the offense.
(c) Except as provided by Subsection (d), material required
to be preserved under this article must be preserved:
(1) until the inmate is executed, dies, or is released on
parole, if the defendant was convicted of a capital felony; or
(2) until the defendant dies, completes the defendant's
sentence, or is released on parole or mandatory supervision, if the
defendant is sentenced to a term of confinement or imprisonment.
(d) The attorney representing the state, clerk, or other
officer in possession of evidence described by Subsection (b) may
destroy the evidence, but only if the attorney, clerk, or officer by
mail notifies the defendant, the last attorney of record for the
defendant, and the convicting court of the decision to destroy the
evidence and a written objection is not received by the attorney,
clerk, or officer from the defendant, attorney of record, or court
before the 91st day after the later of the following dates:
(1) the date on which the attorney representing the state,
clerk, or other officer receives proof that the defendant received
notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of
evidence is mailed to the last attorney of record for the defendant.
(e) To the extent of any conflict, this article controls over
Article 2.21.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 1, eff. April 5, 2001.
Renumbered from Code of Criminal Procedure, Art/Sec 38.39 by Acts
2005, 79th Leg., Ch. 728, Sec. 23.001(8), eff. September 1, 2005.
Art. 38.44. ADMISSIBILITY OF ELECTRONICALLY PRESERVED
DOCUMENT. An electronically preserved document has the same legal
significance and admissibility as if the document had been
maintained in hard-copy form. If a party opposes admission of the
document on the grounds that the document has been materially
altered, the proponent of the document must disprove the allegation
by a preponderance of the evidence.
Added by Acts 2005, 79th Leg., Ch. 312, Sec. 5, eff. June 17, 2005.