Johnson v. State
1998 Tex. Crim. App. LEXIS 49, 1998 WL 172815, 967 S.W.2d 410 (1998)
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Rule of Law:
To admit a witness's prior written statement under the recorded recollection exception to the hearsay rule, the proponent must establish that the witness vouches for the accuracy of the memorandum while testifying at trial.
Facts:
- On October 26, 1995, Frank Johnson, Jr., accompanied by Reginald Taylor and Demetrius DeLane, went to a garage owned by "Big Arnold" to deliver marijuana.
- At the garage, a man in an Emmitt Smith jersey armed with a Tech-9 forced Taylor into an office where Frank Johnson was being held by Arnold E. Johnson (appellant, also known as "Little Arnold").
- Taylor and Frank Johnson were forced to strip and then get into a white car.
- Arnold E. Johnson drove the car, while the man with the Tech-9 sat in the back seat behind Frank Johnson.
- While driving, Arnold E. Johnson told the captives he was taking them to where he "dumped the Last Nigger I killed."
- The man with the Tech-9 shot Frank Johnson in the neck and then the head, killing him.
- Reginald Taylor escaped by jumping out of the moving car and running to get help.
- While incarcerated, Arnold E. Johnson told a fellow inmate, Tony Strong, that "if he had to do it again he wouldn’t even lay down the gun."
Procedural Posture:
- Arnold E. Johnson was prosecuted for the capital murder of Frank Johnson, Jr. in a Bexar County trial court.
- A jury found Johnson guilty of capital murder.
- Following the punishment phase of the trial, the trial court sentenced Johnson to death.
- Johnson's appeal to the Texas Court of Criminal Appeals, the state's highest court for criminal matters, was automatic due to the death sentence.
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Issue:
Does the admission of a witness's prior written statement as a recorded recollection under Texas Rule of Criminal Evidence 803(5) constitute reversible error when the witness, on the stand, fails to vouch for the statement's accuracy?
Opinions:
Majority - Mansfield, J.
Yes. The admission of the witness's prior statement was reversible error because it did not meet the requirements for the recorded recollection exception to the hearsay rule. The court outlined a four-part predicate for admitting evidence under Rule 803(5): 1) the witness had firsthand knowledge of the event; 2) the written statement was made at or near the time of the event when the memory was fresh; 3) the witness now has insufficient recollection to testify fully; and 4) the witness must vouch for the accuracy of the written memorandum. The State failed to satisfy the fourth element, as the witness, Reginald Taylor, never guaranteed at trial that his memory was correctly transcribed or that the factual assertions in the statement were true. A witness must acknowledge the statement's accuracy at trial; a signature or boilerplate attestation in the document itself is insufficient. Because Taylor's statement was highly prejudicial, containing references to an extraneous murder and graphic commands, its erroneous admission was not harmless and requires a new trial.
Analysis:
This decision reinforces the strict foundational requirements for the recorded recollection hearsay exception, emphasizing that a witness's in-court attestation of the statement's accuracy is an indispensable element. The ruling prevents a prior statement from 'verifying itself,' particularly when drafted by law enforcement, thereby protecting a defendant's confrontation rights. It serves as a clear guideline for prosecutors, establishing that they cannot use this exception to admit testimony from an uncooperative witness unless that witness explicitly affirms the prior statement's truthfulness on the stand. This holding ensures that the reliability of such evidence is tested under oath at trial, not presumed from a signature on a document.
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