journal of the texas criminal defense lawyers association

THE NEW TEXASRULES OF EVIDENCEIN CRIMINAL CASESOR Nrn?By Walter FK SteeZe JI:DallasINTRODUCTIONOn the 23rd day of Nowember, 1982,the Texas Supreme Court adopted theTexas Rules of Evidence to be effectiveSeptember 1, 1983. The preamble to theRules by the Texas Supreme Courterplicitly states that they are "herebyadopted and promulgated to governcivil actions in the various courts ofthis State."l In addition, the legislativehistory of the Rules reflects a consciouseffort by the drafting committee tolimit their applicability to civil cases.%Despite these efforts to limit the applicabilityof the Texas Rules of Evidenceto civil cases, cogent, if not persuasive,arguments can he made that at least someof the Rules will apply in criminal cases.Those arguments are presented below,step by step.POWER OF SUPaEME COURTTO MAKE RULESFOR CRIMINAL CASESArticle 5, section 25 of the TexasA graduate of Southern Methodist UniversitySchool of Law, Walter W. Steele,Jr., is a professa at that institution andAssociate Dean for Clinical Education.He was admitted to the State of TernsBar in 1957 and is a member of theAmerican Bar Association-Ed.Constitution vests in the Supreme Court records must yield to a conflicpower to make rules applicable to all provision in the Code of CriminalPmcourts:due, thus the Supreme Court rule wcSec. 25. The Supreme Court have controlled had it not conilkshall have power to make and with a contrary state law-the Cestablish rules of procedure not of Crimimal Procedure.inconsistent with the laws of the The Court of Criminal AppealsreacState for the government of said the same result under similar factscourt and the other courts of this Johnson v. State, 93 S.W. 735 ( ~t. CrState to expedite the dispatch App.1906),of business therein.3Again, in Sessiom u. State, 197 SThat language is clear, precise and un- 718 (Ct. Crim. App. 1917)" the ccambiguou$: the Supreme Court has held that some recently enacted prmle-making power for all courts with sions of the Code of Criminal Procedonly one limitation; a mleof the Supreme changed the practice for appeal whCourt cannot conflict with the laws had previously been established byof the State.4 Nevertheless, one might Supreme Conrt under its Artide 5, :argue that the Supreme Court has no 25 authority. Furthermore, in Sessicrule-making power in criminal cases the Court of Criminal Appeals cited tsince the Supreme Court has no ju& earlier occasionswheretheSupreme Codiction in criminal cases,had enacted rules applicable toAt the outset that argument is tenuous Court of Criminal Appeals under Art.because it is an argument of implication 5 authority.juxtaposed against a clear expression to Thus it seems quite reasonablethe contrary in ~rticle 5 of the Texas conclude that the Texas Supfeme CotConstitution. Moreover, the Court of despite the fact that it has no jwisdict.Criminal Appeals, itself, has recognized in crimiuaI cases, does have power to m;the power of the Supreme Court to make rules applicable to criminal casb, prules in criminal cases. In McElroy v. vided those mbn do not cm&t wState, 172 S.W. 1144 (Ct. Grim. App. the laws of tke state. Of wnrse,1915), the Court of Criminal Appeals more significant question is whethernoted Article 5, sec. 25 of the Texas not the Supreme Court has escerciConstitution and held that a Supreme said nibmaking power in the TeCourt rule having to do with appellate Rules of Evidence, and it is tu tiAugust 19831VOICE for the Defense