“While There Is A Soul In Prison, I Am Not Free.


This is a motion that I have filed several times in State Court defenses.  It should be helpful in any case in which the prosecution may ask the police officer questions like, “What did you learn from your investigation?”  This question often elicits otherwise inadmissible hearsay when the officer describes what he was told by the people he interviewed.  We believe Texas Rule of Evidence 104 motions should be regularly used to test potential evidence at trial and I will develop this further in later posts.  But I have shared this Motion with other defense lawyers and have had reports back that it was helpful.


 NO. 2021-DCR-_____


_________________                     § CAMERON COUNTY, TEXAS




COMES NOW Mr. ________ by and through his attorney of record, Ed Stapleton and Sara Stapleton and submits this Motion to Exclude Evidence under Rules of Evidence 104, 802, 803(6), 602, 701, 702, 703, 402, 403, and the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004)  and would ask the Court to exclude as follows:

  1. Any witness who is not testifying from his own knowledge but offering to summarize the testimony of others should be excluded. TEX. R. EVID. 1006; United States v. Nicholson, 961 F.3d 328, 335 (5th Cir. 2020).
  2. _________, Detective from Brownsville Police Department from his reports should be prohibited from summary witness testimony. The 5thCircuit has “repeatedly warned of its dangers,” referring to a summary witness.  United States v. Nguyen, 504 F.3d 561 (5th Cir.2007). “While such witnesses may be appropriate for summarizing voluminous records, as contemplated by Rule 1006, rebuttal testimony by an advocate summarizing and organizing the case for the jury constitutes a very different phenomenon, not justified by the Federal Rules of Evidence or our precedent.” United States v. Fullwood, 342 F.3d 409, 414 (5th Cir.2003). In particular, “summary witnesses are not to be used as a substitute for, or a supplement to, closing argument.”

Why should this apply to the interpretation of the Texas Rules of Evidence?  In part because the restrictions on “summary witnesses” arises from an interpretation of Federal Rule of Evidence 1006—Texas’ Rule is word for word the same.

This should, then, guide us. Generally, the Texas Rules of Criminal Evidence were patterned after the Federal Rules of Evidence. Cases interpreting federal rules should be construed for guidance regarding the Texas Evidence Rules, unless the Texas rule clearly departs from its federal counterpart. Bodin v. State, 807 S.W.2d 313, 317 (1991).  When the Texas Rule duplicates the Federal Rule, greater than usual deference should be given to the federal court’s interpretations.  Montgomery v. State, 810 S.W.2d 372, 376 n.2 (Tex. Crim. App. 1990) (orig. op.)

Federal Rule of Evidence and the Texas Rules of Evidence 1006 both provide:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Tex. R. Evid. 1006 “does not specifically address summary witnesses or summarization of trial testimony.” United States v. Fullwood, 342 F.3d 409, 413 (5th Cir.2003). This omission is “significant,” for “plainly, the rule does not contemplate summarization of live testimony presented in court.” Id. (internal quotation marks and alterations omitted). Nevertheless, for complex cases, this court has allowed “summary witnesses in a limited capacity.” Id.  Nguyen at 572.

The problem the court found for Nguyen is that summary testimony exceeding the bounds of Tex. R. Evid. 1006 also may infringe on other rules of evidence.  For example, the summary witness against Nguyen also violated Fed. R. Evid. 704(b).  We urge allowing these officers to testimony in this manner constitutes the summary testimony that violates Tex. R. Evid. 602, 402, 403, 802 and the Confrontation Clause.

Mr. _________ requests a hearing outside the presence of the jury and a ruling excluding each of these items under Rule 104, 802, 803(6), 602, 701, 702, 402, and 403 the Confrontation Clause and 1009.

Respectfully submitted,

/s/ Ed Stapleton


Ed Stapleton                                  

Texas State Bar No. 19058400

Sara Stapleton

Texas State Bar No. 24073403

613 E. St. Charles

Brownsville, Texas 78520

Telephone (956) 504-0882

Facsimile (956) 504-0814




I hereby certify that a true and correct copy of the above and foregoing document has been hand delivered or faxed to the District Attorneys’ Office, on this the 23rd day of August 2022.


                                                                        /s/ Ed Stapleton


Ed Stapleton