Reversed and Remanded and Majority and Concurring Opinions filed October 31, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00508-CR
____________
JOHN ROBERT FISCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Cause No. 1239283
C O N C U R R I N G O P I N I O N
I agree with the majority=s conclusion that Martinez=s narrative statements on the DWI videotape do not constitute a present sense impression. I disagree, however, with the majority=s additional analysis that Rule 803(8)(B) makes his statements inadmissible irrespective of the present sense impression analysis.
Generally, each hearsay exception should be analyzed independently because Aevidence which is inadmissible under one hearsay exception may often be admissible under another exception.@ Cole v. State, 839 S.W.2d 798, 811 (Tex. Crim. App. 1992) (op. on reh=g). The Court of Criminal Appeals in Cole departed from this general rule in holding that hearsay inadmissible under Rule 803(8)(B) could not be admitted as a business record under Rule 803(6), relying on United States v. Oates, 560 F.2d 45, 77 (2d Cir. 1977). See Cole, 839 S.W.2d at 810B11. The Second Circuit in Oates held that Apolice and evaluative reports not satisfying [Federal Rule of Evidence] 803(8)(B) and (C) may not qualify for admission under [Federal Rule of Evidence] 803(6) or any of the other exceptions to the hearsay rule,@ 560 F.2d at 77 (emphasis added), thereby effectively elevating Rule 803(8)(B) above the other hearsay exceptions. The Cole court carefully limited its holding to Rule 803(6), noting that other courts had criticized Oates as being too broad and that the Second Circuit itself had characterized the portion of Oates regarding other hearsay exceptions as dictum. See Cole, 839 S.W.2d at 810; see also United States v. Yakobov, 712 F.2d 20, 26 & n.6 (2d Cir. 1983) (noting that Oates has been Astrongly criticized@ and concluding that language referring to hearsay exceptions other than Rule 803(8)(B) was dictum); United States v. Sokolow, 91 F.3d 396, 404 (3d Cir. 1996) (ACriticizing Oates as an unduly broad interpretation of Rule 803(8), many courts have declined to import the limitations of Rule 803(8)(B) and (C) into other hearsay exceptions.@ (footnote omitted)); United States v. Picciandra, 788 F.2d 39, 44 (1st Cir. 1986) (declining to apply Oates to other hearsay exceptions); United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1979) (studying congressional intent in concluding that the Oates rationale is too broad and should not apply to all hearsay exceptions). I agree that the factors rendering hearsay unreliable under Rule 803(8)(B) are relevant in assessing whether Martinez=s statements constitute a present sense impression. However, the majority implies that Rule 803(8)(B) excludes the admission of all law enforcement reports, regardless of whether they fall within some other recognized hearsay exception. It is with this conclusion that I disagree.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Majority and Concurring Opinions filed October 31, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman (Guzman, J., majority).
Publish C Tex. R. App. P. 47.2(b).