Texas Stamp


PD-0577-23 01/10/2024

1. “Whether the fact that a witness is a foreign national no longer in this country and without legal authority to enter this country is itself sufficient to show unavailability of the witness for purposes of the hearsay exceptions in Texas Rule of Evidence 804?”

2. “Whether statements by a prosecutor, as an officer of the court, may be considered reliable for purposes of a preliminary question concerning the admissibility of evidence?”

Elsik was stopped driving a U-Haul pickup that, as it turned out, had twelve people hiding in the bed under blankets. He was charged with multiple counts of smuggling persons, which is a third-degree felony unless, inter alia, the smuggled individual is a child younger than 18. Tex. Penal Code § 20.05(b)(1)(B). All the passengers identified themselves to a Border Patrol agent as Mexican citizens present illegally; two were seventeen. That agent testified at trial to their names, nationalities, and birthdates over a hearsay objection. In response, the prosecutor explained that they have no ability to serve a subpoena to deported people in Mexico. The trial court ruled that the passengers were unavailable and their identities and nationalities were within the agent’s personal knowledge. See Tex. R. Evid. 804(a)(5) (“A declarant is considered to be unavailable as a witness if the declarant . . . is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.”), (b)(3)(A) (“The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: . . . [a] statement about . . . the declarant’s own birth[.]”).

The court of appeals reversed. It held that a prosecutor’s unsworn statement is not competent evidence. It also held that the proponent must demonstrate that a good-faith effort was made to locate and present the witnesses. As that was the only evidence of minority, the court of appeals reversed for a new trial for those two passengers.

The State argues that foreign residency alone is sufficient to establish unavailability. It notes that Rule 804 does not require a “good-faith effort” but rather the absence of “other reasonable means,” and that the latter does not include something as complex as locating and attaching citizens of and in other countries who have no other basis for legal presence in Texas. As this question depends on whether the prosecutor’s statements can be considered, the State also argues that attorneys are officers of the court and so statements made within their personal knowledge should be considered if believed. The State adds that the rules of evidence do not apply to preliminary matters.

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