Here is a case that stands for the proposition that the statments of counsel on the record may be taken as true if they go unrebutted. Is this the first limitation placed on the extent to which Texas courts will accept unchallenged statements of counsel concering trial events?

COURT OF APPEALS
SECOND DISTRICT OF TEXAS, FORT WORTH

NO. 2-03-141-CR

(excerpt)
Motion For Mistrial

In his second point, Appellant contends the trial court abused its discretion by denying Appellant=s request for a mistrial because a juror allegedly Aslept continuously throughout the trial. During the guilt phase of trial, the following exchange took place outside the presence of the jury between the trial court and Appellant's trial counsel:

[Appellant's counsel]: Okay. Judge, we'd like to move for mistrial because there's a jury [sic] that has slept continuously -- a juror that has slept continuously throughout the trial.

THE COURT: All right. Is that all you have to offer on it?

[Appellant's counsel]: On my motion for mistrial with the sleeping juror. It's the lady that was seated in the third seat.

THE COURT: I don't know who you're talking about. They all sit in different places every time.

[Appellant=s counsel]: The young girl with the red blond hair.

THE COURT: All right. Overruled. All right. What else now?

[Appellant's counsel]: That's it for the record.

The error thus being preserved, we must next determine whether the trial court's refusal to grant a mistrial was error.
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In its opinion remanding this case for our further review, the court of criminal appeals opined:

The parties thus acknowledge that we have on several occasions held that a trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred.

The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non‑oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non‑contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for


compare:

Lemasurier v. State
91 S.W.3d 897
Tex.App.-Fort Worth,2002.

EXPERT WITNESS
In his fourth point, Appellant argues that the trial court erred when it allowed Araceli Desmarais, the sexual assault nurse examiner who examined N.S., to testify over his objection even though she was not included on the State's witness list.
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Here, the record contains no evidence that the State acted in bad faith in failing to include Desmarais on its witness list. In fact, the prosecutor informed the court that he was merely negligent in leaving the name off the list. Appellant did not challenge this assertion. Moreover, the record contains an indication that Appellant should have reasonably anticipated that Desmarais would testify even though her name was not included on the witness list. Appellant asked for a continuance on the morning that Desmarais was presented as a witness because his research regarding the report she produced after meeting with N.S. was unfinished. In an exchange regarding Appellant's objection to Desmarais being allowed to testify, the prosecutor noted that Desmarais's report had been a part of the file since the case was filed and that Appellant's counsel had previously acknowledged that he had been aware of the report since the first time he examined the State's file. Appellant did not contradict these statements.
Thus, Appellant has failed to establish either that the State acted in bad faith in not including Desmarais on its witness list or that he could not reasonably have anticipated that Desmarais would testify. As such, Appellant has not established that the trial court abused its discretion in allowing Desmarais to testify over his objection. We overrule Appellant's fourth point

[This message was edited by BLeonard on 04-01-06 at .]