I feel like a total idiot for not being able to find this, but I'm hoping someone will be able to help. I'm in the middle of responding to an appellant's sufficiency point on a DWI (same appointed atty on appeal as for trial, btw). One of her major points is that she "proved" that our officer gave the HGN wrong, so the HGN shouldn't count.

How she proved this is by crossing the officer with several "Are you aware that the NHTSA manual requires..." questions, to each of which he replied "No, ma'am, I'm not aware of that". She never tried to admit the relevant NHTSA stuff, and considering how incredibly annoying she is, I feel the need to make the point that guess what, her babbling isn't evidence. BUT, where does that come from? I figured it was an evidentiary rule, but I can't find it there or in any of the caselaw I've tried. Any ideas? Thanks, guys.

Elizabeth Foley
Assistant Crim. D.A.
Galveston County

Seems to you need to rely on the standard of review. For legal sufficiency, doesn't the court review the evidence in the light most favorable to the verdict? Disregard inconsistent evidence? I'd imagine the the jury was justified in the disregarding the annoying cross and the officer's response, or treating the officer's response as irrelvant.

You are indeed correct, Robert. Sorry, I should have specified that I meant factual--she didn't even raise legal.

Elizabeth Foley
Assistant Crim. D.A.
Galveston County

There are lots of cases which say that questions are not evidence. Denton v. State,
896 S.W.2d 580, 584 (Tex.App.-Fort Worth 1995), rev'd on other grounds 920 S.W.2d 311 (Tex. Crim. App. 1996); Sendejo v. State, 841 S.W.2d 856, 859 (Tex.App.--Corpus Christi 1992, no pet.); Young v. State, 774 S.W.2d 66, 68 (Tex.App.--Beaumont 1989, no pet.); Wells v. State, 730 S.W.2d 782, 786 (Tex.App.--Dallas 1987), pet. ref'd, 810 S.W.2d 179 (Tex.Crim.App.1990).

Since Testimony is defined as:

Evidence given by a competent witness under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is particular kind of evidence that comes to tribunal through live witnesses speaking under oath or affirmation in presence of tribunal, judicial or quasi-judicial.

Black's Law Dictionary 1990

Then the questions propounded to the witness do not constitute evidence or testimony unless the WITNESS confirms the truth of the question asked.

Therefore, unless the documents at issue were entered into Evidence at trial, the witnesses response indicating a non-confirmation of what was asked does not create a presumption that the question is a factually correct statement.

So What Facts???
What evidence????

David, with the law being so clear, isn't it sad we can't get an instruction from the court- so a jury could know that it should disregard the content of defense counsel's questions? Seems like part of the law applicable to almost every case to me.

Thanks, David, that's just what I was looking for (though I couldn't quite come up with it myself despite ten various Westlaw searches). I got way too hung up on the "role of the attorney" and the impeachment end of things. I've got an eight-month old baby at home--I'm pleading lack of sleep. Funny how (at least with electronic searches) the weird, obscure stuff tends to be easier to find than seemingly simple things like this.

Elizabeth Foley
Assistant Crim. D.A.
Galveston County