961 SW2D 156 - Davis v. State

How this case has been cited

Cited by 6 later decisions (1 by the Supreme Court) — most recently June 2017

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

WOMACK, Judge,

¶1concurring.

¶2I join the Court’s opinion. I write only to add a comment about the disagreement between the Court and Judge Baird over the meaning of Bryan v. State, 887 S.W.2d 637 (Tex.Cr.App.1992). Bryanis not worth their time.

¶3Bryan had testified at his first trial, but refused to testify at his retrial. The State offered part of his testimony from the first trial. In deciding whether Bryan was unavailable under the hearsay rule, the BryanCourt made an effort that was contorted and unnecessary. Bryan’s former testimony was not hearsay to begin with, because it was the admission of a party-opponent. Texas Rule of Criminal Evidence 801(e)(2)(A). Treatise writers have tactfully referred to this fallacy in Bryan: “An alternative ground for reaching the same result, which was also relied upon by the Court of Appeals in Bryan, is Rule 801(e)(2)(A).” S.Goode et al., 2 Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal 180 (2d ed.1993).

¶4Rather than argue over the BryanCourt’s attempt to apply the unavailability test to nonhearsay, I would recognize that the Bryanopinion belongs in the law’s curiosity shop.