CHAPTER 4.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Evidence Lacking Foundation

1. Suggested Motion Text

(Name of Moving Party) hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony, or argument relating to (Describe Evidence Lacking Foundation). The motion is based upon the ground that the evidence lacks a necessary foundation for admission and therefore should be excluded pursuant to Texas Rule of Evidence 104.

2. Motion Summary

This motion is used to exclude evidence that lacks a required foundation for admission. The motion is based upon Texas Rule of Evidence 104(a), which gives the court the discretion to exclude evidence lacking a necessary preliminary fact. Counsel should be prepared to demonstrate, where possible, the lack of actual foundational facts and the prejudice that will occur if the evidence is presented to the jury. See Texas Rule of Evidence 403. This balancing is an important element to the motion, since the court has the power to admit evidence conditionally under Texas Rule of Evidence 104(b).

The sections that follow provide a number of representative cases where general foundational deficiencies were identified. Not all possible evidence types are included in this text. For a discussion of preliminary facts relating to a variety of different types of evidence, see Notes of Decisions, Texas Rule of Evidence 104.

3. Supporting Authorities, Generally

Texas Rule of Evidence 103 provides in relevant part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may, or at the request of a party shall, direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (Emphasis added).

Texas Rule of Evidence 104(c) states:

In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.

a. Determination of Admissibility Outside Presence of Jury

Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) (defendant in criminal case may challenge the admissibility of evidence in either of two ways: (1) defendant may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury, or (2) defendant may file a pretrial motion to suppress evidence and have it heard and ruled upon before trial).

Nelson v. State, 765 S.W.2d 401 (Tex. Crim. App. 1989) (court may conduct preliminary hearing outside presence of jury during trial's guilt/innocence phase).

Walter v. State, 581 S.W.3d 957, 982 (Tex. App.—Eastland 2019, pet. ref'd) ("It is within the jury's purview to 'determine whether an item of evidence is indeed what its proponent claims; the trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.'").

In re Estate of Miller, 243 S.W.3d 831 (Tex. App.—Dallas 2008, no pet.) (to challenge exclusion of evidence by the trial court on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception).

b. Preliminary Facts—Inadmissibility of Evidence

Texas Rule of Evidence 104(a) states:

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 1028 (2007) (preliminary questions of admissibility are determined by the court).

Walter v. State, 581 S.W.3d 957, 982 (Tex. App.—Eastland 2019, pet. ref'd) ("To properly authenticate a piece of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.").

Gentry v. State, 259 S.W.3d 272 (Tex. App.—Waco 2008, pet. ref'd) (first step in a trial court's determination of whether evidence should be admitted before the jury is finding the evidence relevant).

Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.—Dallas 2005, no pet.) (when authenticity of evidence is challenged, a trial court must determine preliminary questions of admissibility; this determination will not be overturned absent an abuse of discretion).

St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808 (Tex. App.—Dallas 1992, no writ.) (qualification of expert witness is matter for preliminary determination by trial court).

c. Photographs

Fowler v. State, 544 S.W.3d 844, 849 (Tex. Crim. App. 2018) ("video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue").

Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732, 737 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ("When a photograph is relevant to an issue in a case, it is admissible if it is authenticated by a witness as an accurate portrayal. . . . The verifying witness must be familiar with the objects involved in the photograph and be able to state the photograph correctly represents them.").

Watson v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref'd) ("the predicate for introduction of a photograph and a silent videotape not accompanied by sound requires proof of (1) its accuracy as a correct representation of the subject at a given time, and (2) its material relevance to a dispute issue").

Watson v. State, 421 S.W.3d 186 (Tex. App.—San Antonio 2013, pet. ref'd) (the predicate for introduction of a photograph and a silent videotape not accompanied by sound need not be laid by the photographer, the individual being photographed, or even a person present in the photograph in question; any witness observing the scene depicted in the photograph may lay the predicate so long as the witness can provide testimony based on personal knowledge, sufficient to support a finding that the matter in question is what its proponent claims).

Delacerda v. State, 425 S.W.3d 367 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (before being admitted into evidence, a photograph must ordinarily be shown to be a correct representation of the subject at a given time; and the only identification or authentication required is that the offered evidence properly represents the person, object, or scene in question).

Rankin v. Union Pac. R. Co., 319 S.W.3d 58 (Tex. App.—San Antonio 2010, no pet.) (photographs of heavy brush, vegetation, and trees alongside railroad tracks near railroad crossing, taken on date on which train struck motorist's vehicle, standing alone, were not probative evidence of an extra-hazardous condition that would give rise to duty on part of railroad to provide extraordinary warning devices at crossing, or to instruct its crew to travel through crossing at a reduced speed; trees, vegetation, trailers, and buildings appeared in photographs, but only at unknown distances from crossing and tracks, no train appeared in photographs, and photographs did not establish that motorist would have been unable to get out of the way of a train traveling at 59 miles per hour before being hit).

Kelly v. State, 22 S.W.3d 642 (Tex. App.—Waco 2000, pet. ref'd) (photographs authenticated by testimony of any witness with personal knowledge that particular item accurately represents scene or event it purports to portray). See also Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312 (Tex. 1987); Reichhold Chems. v. Puremco Mfg., 854 S.W.2d 240 (Tex. App.—Waco 1999, writ denied).

d. Tape Recordings

Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1980) (sound recording may be authenticated by one or more witnesses' testimony that: recording device was capable of taking testimony; operator of device was competent; recording is true and accurate portrayal; no changes, additions, or deletions; recording has been preserved and accuracy maintained; speakers are who claim to be; and testimony was voluntary).

Miller v. State, 208 S.W.3d 554 (Tex. App.—Austin 2006, pet. ref'd) (voice mail recording was not properly authenticated in capital murder prosecution; exhibit was admitted in evidence at close of State's evidence, after victim's...