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  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULES 401 & 402

Updated: Jan 21

Texas Rule of Evidence 401 and 402 - Conroe Criminal Defense Attorney Brian Foley - Board Certified in Criminal Law.

Finally we have arrived in our series to a rule of evidence which actually gets argued about frequently.

We cover rules 401 and 402 together because rule 401 is the definition of "relevant evidence" and Rule 402 states that relevant evidence is admissible unless specifically prohibited by the Constitution, statute, the other rules of evidence, or any other legal reason of which you can think. Translated to english, relevant evidence is admissible unless its not. A little more clearly, it states, "Irrelevant evidence is not admissible."

These are fairly simple rules but have been the source of much argument through many cases. "Objection relevance" is really an objection under rule 401 and 402.

Evidence that relates to a witnesses credibility or bias is always relevant. Background information of a witness may also be relevant for example the background or training of a police officer. Valencia v. State, 891 S.W.2d 652 (Tex. App. -- Houston [1st Dist.] 1993). Other types of evidence which have been ruled relevant:

  1. consciousness of guilt evidence

  2. attempts to conceal or destroy evidence

  3. flight from the scene of the crime

  4. witness tampering

  5. Failure to identify.

One thing to note is that there is no requirement that the evidence be affirmatively contested by the other side. That means that one party may offer relevant evidence under this rule even if it is not disputed. There are some exceptions to this when the defendant stipulates to prior convictions for example in a DWI third offense. Even thought the evidence is relevant and not objectionable under 401 the court may still exclude the evidence. The Court of Criminal Appeals in Martin v. State, put it this way:

We briefly summarize the current status of the law when a defendant offers to stipulate to the two jurisdictional prior DWI convictions in a felony DWI trial: 1) The State must plead two jurisdictional prior DWI convictions in a felony DWI indictment; it is the indictment that confers jurisdiction in the district court; 2) The State may (but is not required to) read the entire indictment, including the two jurisdictional allegations (but only those two), in arraigning the defendant in the presence of the jury;

3) Both the State and the defense may voir dire the jury concerning the range of punishment for both a felony and misdemeanor DWI; 4) Nothing in the law requires that the jury be informed of the particulars of the prior convictions in reading the indictment, voir dire, opening or closing arguments or in the jury charge itself; 5) A defendant's stipulation to the two prior DWIs, being in the nature of a judicial admission, has the legal effect of removing the jurisdictional element from contention; a defendant may not offer evidence or argument in opposition to his stipulation; 6) During the trial, the jury may be informed of the stipulation and any written stipulation may be offered into evidence before the jury, but the evidence is sufficient to support a defendant's conviction even if the stipulation is not given or read to the jury; 7) In a bench trial, the guilt and punishment stages are not bifurcated, so the State is not required to offer the stipulation during the initial portion of the hearing, even if the proceeding is improperly bifurcated.

To that list, we now add:

8) The jury charge must include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial; 9) The jury charge must include some reference to the defendant's stipulation and its legal effect of establishing the jurisdictional element. 10) Any error in failing to include, in the jury charge, some reference to the jurisdictional element and the stipulation is analyzed under Almanza (harmless error standard).

Martin v. State, 200 S.W.3d 635, 640–41 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has ruled that evidence of a defendant's drug use when not related in time or place to the crime for which they are charged is irrelevant. Bush v. State, 628 S.W.2d 441 (Tex. Crim. App. 1982).

Punishment Phase

In Criminal Cases relevance comes up frequently in the punishment stage of trial. In Mendiola v. State, the Court of Criminal Appeals discussed how the relevancy rules are not particularly helpful because there are no fact questions that need to be answered, instead it is a policy determination on what is "helpful to the jury in determining the appropriate sentence in a particular case." Mendiola, 21 S.W.3d 285 (Tex. Crim. App. 2000.)

Courts have ruled that it was error to admit victim-impact evidence by a murder victim's mother in the punishment stage of a case where the defendant was only charged with possession with intent to deliver cocaine. Haley v. State, 173 S.W. 3d 510 (Tex. Crim. App. 2005).

One defendant's positive test results for AIDS was admissible in a sexual assault trial punishment hearing when it was deemed relevant. Hunter v. State, 799 S.W. 2d 356, 360 (Tex. App. -- Houston [14th Dist.] 1990, no pet.).

Conditional Relevancy

Sometimes evidence isn't relevant on its own but when taken together with another point made later in the trial it may become relevant. If you are seeking to do this you should tell the court about the other necessary evidence that you will offer later or with another witness. The court may require you to prove the other fact first though and it is not reversible error for the court to exclude evidence until the conditional fact has already been admitted. Houghton v. Port Terminal R.R., 999 S.W.2d 39, 51 (Tex. App. -- Houston [14th Dist.] 1999, no pet.).

Common Law

Prior to the introduction of the rules of evidence the common law of Texas could be found in case law decided by the courts. Relevancy was defined by the Court of Criminal Appeals in Waldrop v. State as "any circumstance which tends to make the proposition at issue more or less probable." 133 S.W.2d 969 (1939). The standard has been worded many different ways since that time but continues this same tradition today.

Appellate Review

A trial judge has broad discretion to rule on the relevancy or admissibility of evidence under rules 401 and 402. Because of this courts have found that reasonable minds may disagree about the inferences that one may draw from particular pieces of evidence and ruled that appellate courts should not overturn the trial court's ruling if it is within the "zone of reasonable disagreement" and an abuse of discretion standard will apply. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990).

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

  • the United States or Texas Constitution;

  • a statute;

  • these rules; or

  • other rules prescribed under statutory authority.

Irrelevant evidence is not admissible.

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