CODE OF CRIMINAL PROCEDURE CHAPTER 38.

EVIDENCE IN CRIMINAL ACTIONS

Art. 38.03. [705] [785] [765] 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. [706] [786] [766] 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. [707] [787] [767] [729] 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); or

(13) Section 43.25 (Sexual Performance by a Child).

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.

 

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. [710] [790] [770] 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 a crime committed against the person's spouse, a minor
child, or a member of the household of either spouse.

Added by Acts 1995, 74th Leg., ch. 67, Sec. 2, eff. Sept. 1, 1995.

 

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. [715] [796] [776] [736] 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. [718] [801] [781] 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. [720] [803] [783] 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. [721] [804] [784] 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. [722] [805] [785] 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. [723] [806] [786] 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. [724] [807] [787] 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. [726] [809] [789] 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. [727] [810] [790] 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. [727a] 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. [729] [812] [792] 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. [731] [814] [794] 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. [733] [816] [796] 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 him. 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 himself and the appointed
interpreter during the proceedings.

(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 he 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.

 

Art. 38.31. [733a] 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 Reverse Skills Certificate, Comprehensive Skills
Certificate, Master's Comprehensive Skills Certificate, or Legal
Skills Certificate issued by the National Registry of Interpreters
for the Deaf or a current Level III, IV, or V Certificate issued by
the Board for Evaluation of Interpreters.

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.

 

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) "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 does not include:

(A) latent print examination;

(B) a test of a specimen of breath under Chapter 724, Transportation
Code; or

(C) an examination or test excluded by rule under Section
411.0205(c), Government Code.

(2) "Physical evidence" means any tangible object, thing, or
substance relating to a criminal offense.

(b) A law enforcement agency may procure a forensic analysis of
physical evidence obtained in connection with the agency's
investigation of a criminal offense.

(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) Physical evidence subjected to a forensic analysis, and
testimony regarding the evidence, under this article is not
admissible in a criminal case if, at the time of the analysis or the
time the evidence is submitted to the court, the crime laboratory or
other entity conducting the analysis was not accredited by the
Department of Public Safety under Section 411.0205, Government
Code.

(e) Notwithstanding Subsection (d), physical evidence subjected to
a forensic analysis under this article is not inadmissible in a
criminal case based solely on the accreditation status of the crime
laboratory or other entity conducting the analysis if the
laboratory or entity:

(1) has preserved one or more separate samples of the physical
evidence for use by the defense attorney or use under order of the
convicting court; and

(2) has agreed to preserve those samples until all appeals in the
case are final. This subsection expires September 1, 2005.

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.

 

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 Criminal
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
Criminal 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.

 

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. Preservation of Evidence Containing Biological
Material

Text of article as added by Acts 2001, 77th Leg., ch. 2, Sec. 1

 

(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.

For text of article as added by Acts 2001, 77th Leg., ch. 1411, Sec. 2, see Art. 38.39, post

 

 

Art. 38.39. Evidence in an Aggregation Prosecution With Numerous
Victims

Text of article as added by Acts 2001, 77th Leg., ch. 1411, Sec. 2

 

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.

For text of article as amended by Acts 2001, 77th Leg., ch. 2, Sec. 1, see Art. 38.39, ante

 

 

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.

 

 

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