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  • Writer's pictureBrian Foley

Conroe Criminal Defense Attorney - Texas Rules of Evidence Series RULE 805

Conroe Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

Texas Rule of Evidence 805 is called the hearsay within hearsay rule and like most of the hearsay rules can be somewhat confusing. The rule states, "Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule."

Although the records may be admissible, the contents of such records are still subject to hearsay objections. McCrary v. State, 604 S.W.2d 113, 115 (Tex.Cr.App.1987). The statements are hearsay which do not fall within any hearsay exception. This constitutes hearsay within hearsay and is inadmissible. Trussell v. State, 585 S.W.2d 736, 738 (Tex.Cr. App.1979)

This rule is best understood through examples.

Example 1:

If a person is on trial for Assault Family Violence and the prosecutor attempts to offer the statement of the victim to an emergency medical technician that "John Smith punched me in the face and my right cheek hurts from it." Lets say that the emergency medical technician doesn't testify but the prosecutor has the EMS records. In order to admit the statement "John smith punched me in the face and my right cheek hurts from it" the prosecutor will have to find exceptions to the rule against hearsay covering both levels.

  1. The business records exception may allow the prosecutor to admit the EMS records into evidence if he has properly complied with the notice and affidavit from business records custodians about the validity of the records. This would allow the prosecutor to offer the records themselves but if this is the only thing that the prosecutor does then a defense attorney can object to hearsay for the victim's statement contained within the now admitted business records which were hearsay to begin with.

  2. If the prosecutor offers to the court and lays the predicate that the statement was meant for medical diagnosis and treatment, then existing physical condition, and maybe an excited utterance, then the second level of hearsay will meet an exception and the statement will be admitted.

But what about the confrontation clause? Well if the statement was made to EMS personnel and was made for the purpose of medical diagnosis or treatment then the confrontation clause jurisprudence will classify it as non-testimonial and not require the rigors of cross examination at trial. Green v. State, NO. 09-15-00220-CR, 16 (Tex. App. Jan. 25, 2017) Loya v. State, No. 08-12-00315-CR, 2014 WL 4536546, at **4-6 (Tex. App.—El Paso Sept. 12, 2014, no pet.) (not designated for publication) (concluding that statements made to the emergency medical technician by a complainant involved in an assault were for the primary purpose of medical evaluation, diagnosis, and treatment and not testimonial).

Example 2:

Imagine calling a witness to trial to state that while she had not personally observed the traffic accident someone came up to her frantically screaming that they had just been hit by a car and the person driving the car had shouted I'm John Smith and I don't give a shit who you are you'd better not get in my way."

Here we have the statement of John Smith as told by a third party to a witness at the scene who did not observe the wreck. In a civil trial against John Smith can this witness testify?

  1. The witness was frantically screaming that they were just hit by a car. This will probably count as an excited utterance or a statement of then existing physical condition. I'd stick with the argument for excited utterance here. That gets us to the second part of the statement the event that happened being hit by the car and being shouted at by John Smith.

  2. If the Statement is of John Smith and John Smith is the defendant on trial then the statement is considered an admission by a party opponent and isn't hearsay to begin with. So technically I'd say that there isn't an 805 hearsay within hearsay issue at all. If John Smith isn't the party opponent then you could argue that the statement was one of then existing mental state under 803(3).

If its a civil trial then we don't have to worry about the confrontation clause and our analysis ends.

Rule 805. Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.


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