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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 406

Updated: Jun 20, 2023

Conroe Criminal Defense Attorney - Texas Rule of Evidence Rule 406.

Rule 406 is the Sister Act 2 (Back in the Habit) rule because this is the rule that allows evidence of routine practice or habit. It allows for the admission of acts other than those that occurred during the time and place of the offense or civil case to prove that the same course of conduct occurred on the date in question in the law suit.

So if the issue were running a stop sign and the defendant had stopped at the stop sign the past two days in a row that probably wouldn't be sufficient to show that is the routine practice or habit of the individual. However, if a neighbor walks their dog at the same time every morning and sees that the defendant stops and gets out of his car every day at 8:45 to smell the honeysuckle growing next to the stop sign and he has seen him do this every day for the past year, then that is definitely something that is going to make it in front of the jury for evidence of routine practice or habit.

Evidence that a husband's routine or practice was to walk away from arguments with his wife has been considered admissible evidence under Rule 406. "In order for the excluded testimony of Richard and Christine to be admissible as evidence of habit, Richard was required to demonstrate 'a regular practice of meeting a particular kind of situation with a specific kind of conduct.' Anderson v. State, 15 S.W.3d 177, 183 (Tex.App.-Texarkana 2000, no pet.); Bishop v. State, 837 S.W.2d 431, 435 (Tex.App.-Beaumont 1992), aff'd, 869 S.W.2d 342 (Tex.Crim.App. 1993) (quoting Jones v. Southern Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992)). We conclude that Richard met this burden. The evidence established that during their twelve year relationship, Christine would aggressively react during their arguments, while Richard regularly retreated and called his mother and Christine's parents. We must now determine whether the exclusion of the evidence is of constitutional magnitude." Dietz v. State, 123 S.W.3d 528, 532 (Tex. App. 2003) In Dietz it was held to be reversible error to prevent the defendant from offering this evidence as a defense. Id.

In Reyes v. State, the Court of Criminal Appeals held that four prior convictions for public intoxication spanning a three and one-half year period were of insufficient regularity to rise to the level of habit evidence.” Bishop v. State, 837 S.W.2d 431, 435 (Tex. App. 1992). Additionally generalized questions like if someone was capable of engaging in conduct did not meet the requirements of Rule 406. Id.

Rule 406. Habit; Routine Practice Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

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