CHAPTER 7.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Overview of Character Evidence

Before making a motion to exclude character evidence, users should familiarize themselves with the rules of admissibility of such evidence, which can be confusing. For helpful commentary, see Texas Rules of Evidence, Rules 404 to 406, 412, and 609 to 610.

The following sections provide a brief overview of the statutory basis for admitting or excluding character evidence.

1. Admissible Character Evidence

Generally, character evidence is admissible if relevant and not specifically restricted by statute. Texas Rule of Evidence 608(a) states:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Texas Rule of Evidence 405 further states:

(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.
Note: Evidence of custom or habit is admissible pursuant to Texas Rule of Evidence 406, even where a person's character is inadmissible.
If the case involves a sexual offense, the reader should also be aware that Texas Rule of Evidence 412 applies to limit the admissibility of certain evidence regarding the victim's prior sexual conduct.

2. Character Evidence Subject to Exclusion

Texas Rule of Evidence 608 restricts certain character evidence when used to attack or support witness credibility. Texas Rule of Evidence 404 restricts the extent to which character evidence may be used as circumstantial evidence to prove conduct. Note that Texas Rule of Evidence 609(a) expressly allows evidence of prior felony convictions involving moral turpitude for impeachment purposes, subject to the time limit contained in Rule 609(b), although this evidence may be excluded when found to be prejudicial.

3. Evidence Rule Limitations in Criminal Cases

Texas Rule of Evidence 405(a) states in pertinent part:

In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense.

B. Motion to Exclude Character Evidence Used for Impeachment

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 the character or trait of (Name of Witness) for (Describe the Character or Trait Evidence at Issue, e.g., the Witness's Habits Regarding Consumption of Alcohol) where such evidence will be used for impeachment purposes. The motion is based upon the grounds that the evidence is irrelevant to the issues in this case, is expressly prohibited for impeachment purposes by Texas Rule of Evidence 608 and will create a substantial danger of undue prejudice to (Name of Moving Party).

2. Motion Summary

This motion is used to exclude character evidence of specific instances of a person's conduct, where used for impeachment purposes. The motion is based upon the express authority of Texas Rules of Evidence 608, 402, and 403, and cases such as Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 917 (1997). This chapter includes citations for the exclusion of character evidence in commonly disputed areas, such as alcohol and drug use, arrests and misdemeanors, felony convictions, sexual behavior, religious belief, etc.

3. Supporting Authorities

Texas Rule of Evidence 403 states that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." See Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 34 (Tex. 2014); Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012).

a. Exclusion of Improper Impeachment Evidence

Texas Rule of Evidence 608(a) states:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Texas Rule of Evidence 608(b) states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

Texas Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.

Pierson v. State, 426 S.W.3d 763, 772 (Tex. Crim. App. 2014), cert. denied, 574 U.S. 885 (2014) (the general rule is that impeachment on a collateral matter is impermissible).

Pierson v. State, 426 S.W.3d 763, 772 (Tex. Crim. App. 2014), cert. denied, 574 U.S. 885 (2014) (the proponent of evidence has the burden to show that the question is anything more than a prelude to impeachment on a collateral matter and an impermissible attempt to attack the complaining witness's general credibility with evidence of specific instances of conduct).

Ex parte Martinez, 330 S.W.3d 891, 902 (Tex. Crim. App. 2011) (gang-related evidence tends to be irrelevant and prejudicial if not accompanied by testimony that puts the evidence into context).

TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (statements concerning a party's immigration status were inadmissible because it was a collateral matter and thus not relevant to proving a material issue in the case).

TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (specific instances of conduct may not be used for purposes of impeachment).

Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009) (witness's general character for truthfulness or credibility may not be attacked by cross examining the witness, or offering extrinsic evidence, concerning specific prior instances of untruthfulness).

Michael v. State, 235 S.W.3d 723, 726 (Tex. Crim. App. 2007) (if an inconsistent statement is not used to show that a witness is of dishonest character, then testimony explaining that witness's character for truthfulness should not be allowed).

Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (trial court properly excluded evidence of offenses not resulting in convictions where evidence offered to impeach witness).

Reighley v. State, 585 S.W.3d 98, 105 (Tex. App.—Amarillo 2019, pet. ref'd) ("Because a defendant should be tried only for the crime he is charged with committing and not for having criminal propensities, extraneous offense evidence is generally inadmissible.").

Reighley v. State, 585 S.W.3d 98, 105 (Tex. App.—Amarillo 2019, pet. ref'd) ("Rule 404(b) prohibits the use of evidence of a crime, wrong, or other act to prove a person's bad character and that, on a particular occasion, the person acted in accordance with that character.").

Lumsden v. State, 564 S.W.3d 858 (Tex. App.—Fort Worth 2018, pet. ref'd), cert. denied, 139 S.Ct. 2018 (2019) ("Generally, prior offenses are inadmissible for impeachment purposes unless the offense resulted in a final conviction for either a felony or a crime involving moral turpitude and the conviction is not too remote in time.").

Canada v. State, 547 S.W.3d 4, 21 (Tex. App.—Austin 2017, no pet.) ("Although Rule 608 allows for 'a witness's credibility' to 'be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character,' 'a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness.'").

Alford v. State, 495 S.W.3d 63, 68 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) ("Rule 608(b) provides that a witness's credibility may not be attacked with specific instances of past conduct, with exceptions not at issue here. . . . This means that a cross-examiner may not elicit testimony that a witness has lied in the past for the sole purpose of showing that the witness is generally dishonest and...