X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:A jury convicted appellant of aggravated assault with a deadly weapon and sentenced him to life imprisonment. This court granted review of appellant’s second ground of error; “Are uncontroverted un-objected to statements of counsel about occurrences in the courtroom evidence of those occurrences which can be considered on appeal?” HOLDING:The court vacates the judgment of the court of appeals and remands the cause to that court for further proceedings consistent with this opinion. The state acknowledges that “Appellant correctly points out that a long line of cases hold that assertions of counsel should be taken as true.” Appellant’s brief likewise cites several opinions of this court and from courts of appeals. Among other cases, both parties cite Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App. 1997). A counsel’s statement about an occurrence in the courtroom, which was made for the purposes of the record, recorded by the court reporter, undisputed by the opposing counsel, and unquestioned and unqualified by the judge in whose presence the statement was made, establishes the occurrence for purposes of the appellate record. The parties thus acknowledge that this court has 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 nonoral 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 noncontemporaneous 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 appellate review. OPINION:Johnson, J.; en banc.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.