Objections to Bolstering Testimony Should Communicate Evidentiary Basis

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.


An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).


The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.


”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2.

Both Lankston and Rivas dealt with backdoor attempts by the prosecution to “bolster” allegations of sexual assault by child victims—a common trial tactic employed by prosecutors in Harris County, Texas. The Rivas court discussed at some length the evidentiary history and the role “bolstering” has played in the Texas criminal trial system. This “term of art,” and the law associated with it, existed before the state’s Rules of Evidence were adopted. It was uniformly recognized by the courts, but as the state’s rules of evidence evolved – first with the 1985 Rules of Evidence and then with the 1998 unified Rules of Evidence – the term began to decay as an “objection on its face.” Id., at LEXIS 14.


Still, the term maintains a judicial presence as “bolstering” objections are routinely recognized in many courts throughout Texas. The Rivas court pointed out that the “fundamental problem” with bolstering objections is their “inherent ambiguity.” The court recalled its previous definition of the term as “’any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing to make the evidence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’” Id., at LEXIS 15 [quoting Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App. 1993)].


Bolstering objections have deep roots in Rule 608(a), which allows opinion or reputation evidence as to the character of a party’s own witness for truthfulness, but only after the witness’ character has been attacked by the opposing party, and in Rule 613(c), which prevents the use of prior consistent statements of a witness for the sole purpose of enhancing the witness’ credibility. Because of these “multifarious origins, the Rivas court pointed out that:


” … courts have found concern with [bolstering] as an objection on its face. Many appellate courts have cited the Cohn concurrence as authority to abandon ‘bolstering’ as a valid objection to preserve error for review. ‘A party’s objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded.’ The Court of Appeals relied on this principle in the instant case when it held that ‘a general objection to “bolstering” is not sufficient to preserve error, because it does not sufficiently inform the trial court of the nature of the objection.’” Id., at LEXIS 16.


The increasing judicial trend against the legitimacy of bolstering objections lies with defense attorneys failing to make their objections both timely and specific. But this was not the case with the Rivas’ defense attorney. He filed three in limine motions to exclude bolstering testimony, made ten timely and specific objections before the court permitted the testimony, and requested (and received) a running objection throughout the entire testimony of the bolstering witness. Id., at LEXIS 4-10.


The bolstering witness was a Sexual Assault Nurse Examiner with a children’s advocacy center in San Antonio. She examined the seven-year-old child victim in 2003. Her examination consisted of three parts: 1) the child’s personal history; 2) a thorough physical examination; and 3) a medical examination of the child’s genitals and anus. While the physical examinations produced “normal” results, the personal history part of the examination revealed a litany of sexual assaults that the victim had not revealed in her own testimony at trial. Id., at LEXIS 3.


At the start of the trial, the trial judge granted defense counsel’s three in limine motions, instructing the prosecution not to mention or allude to a total of seven matters in the presence of the jury until a hearing could be conducted out of the jury’s presence. Two of the matters specifically cited by the trial judge were 1) any testimony that would constitute impermissible bolstering and 2) any expert testimony that made a diagnosis of sexual abuse based solely on the personal history of the child absent physical evidence of sexual abuse. Id., at LEXIS 4-5.


Defense counsel timely objected when the prosecution called the Nurse Examiner during its case-in-chief. Defense counsel sought to exclude the verbatim statements the child victim had conveyed to the Nurse Examiner and observations the Nurse Examiner had written in parentheses about what the child was doing while she talked about her personal history. This first objection launched the ten objections defense counsel made outside the presence of the jury as he strenuously tried to exclude the Nurse Examiner’s obvious bolstering testimony. Id., at LEXIS 5.


The prosecution argued that the personal history information conveyed by the child to the Nurse Examiner was actually “medical history” information admissible under a hearsay exception concerning medical diagnosis and treatment. Defense counsel countered that, absent any physical evidence of abuse, any statement or opinion about whether the child had been sexually abuse (or not) was impermissible bolstering of the child’s testimony. The trial judge tried to mediate the issue by stating the witness would not testify about whether she believed the child was telling the truth. Defense counsel refused to relent. He told the court that the witness would read to the jury all the “comments” the child had made to her and this would create an impression of a diagnosis or conclusion of sexual abuse. Defense counsel said it would be tantamount to allowing bolstering through the backdoor. Id., at LEXIS 6-7.


The trial judge overruled the objection, and after overruling a series of additional objections, permitted the Nurse Examiner to testify and allowed her report to be introduced into evidence. Id., at LEXIS 8-9.


Rivas was convicted on five counts of aggravated sexual assault of a child and one count of indecency with a child. He was sentenced to twenty-five years on the sexual assault counts and twelve years on the indecency count. See: Rivas v. State, 2007 Tex. App. LEXIS 4395 (Tex.App.-San Antonio, June 6, 2007).


Rivas appealed his conviction to the Court of Appeals for the Fourth District. The appeals court held that Rivas had not identified “which Rule of Evidence, if any, was violated by the admission of the nurse’s report” and, therefore, he had failed to properly preserve the issue for appellate review. Rivas, supra, 2007 Tex. App. LEXIS 4395, at 8-9.


The Court of Criminal Appeals disagreed and reversed the court of appeals, finding that:


” … the appellant’s objections were not just general objections to ‘bolstering.’ We set out his objections at some length above. Several grounds other than ‘bolstering’ were specified.


”One was that the medical exception to the hearsay rule did not apply in the absence of physical evidence of abuse. This was specified in the appellant’s first and third objections.


”Another was that the evidence was inadmissible because the child had not been impeached. This was specified in the second, fourth, seventh, and ninth objections.


”Yet another was connected to an appellate opinion (or opinions) on which the appellant relied, which (he said) stood for the proposition that the child’s statements would be used as a basis for the nurse’s ‘back door’ diagnosis or opinion that sexual abuse had occurred. This ground was made when he presented the opinions to the court and when he made his fifth, sixth, and tenth objections.


”The Court of Appeals’ statement that, because he ‘did not identify which Rule of Evidence, if any, was violated by the admission of the nurse’s report … he failed to preserve his objection for appeal,’ is one with which we do not agree. As we said in Lankston, supra, ‘Straightforward communication in plain English will always suffice.’ Reference to a Rule may save an objection that might otherwise be obscure, but an objection is not defective merely because it does not identify a Rule of Evidence.


”The issues were discussed by both attorneys, and rulings were made by the judge several times. The appellant fulfilled the requirements of Rule of Appellate Procedure 33.1 thus preserving this error for review.” Id., at LEXIS 17-18.


The “bolstering” issue Lankston involved a far more common practice in Texas criminal trials. The defendant in that case was also convicted of aggravated sexual assault of a child and indecency with a child. He was given a 99-year term for the sexual assault conviction and a 20-year term for the indecency conviction. Lankston, supra, 827 S.W.2d at 908. He objected during the trial that the trial judge had erroneously permitted hearsay evidence. As in the Fourth District Court of Appeals had ruled in the Rivas case, the Tenth District Court of Appeals, sitting in Waco, ruled in an unpublished decision that the defendant’s objection had been too general to preserve the issue for appeal. Id., 827 S.W.2d at 909.


The issue in the Lankston case was the prosecution’s use of child victim’s outcry statements made to an adult. The prosecution relied upon Article 38.072 of the Texas Code of Criminal Procedure to get the adult’s testimony before the jury. In a pretrial notice, the prosecution provided defense counsel with a summary of the outcry witness’ testimony:

“. . . the witness will testify that the child told the witness that the offense was committed in approximately June, 1987, and the witness will testify that the child told the witness that the crime was committed under these circumstances: at about 8:30 or 9:00 p.m., the victim was in her bedroom when said Defendant [Appellant] came into the bedroom sat on the bed and exposed his penis. Defendant [Appellant] had the victim pull on his penis and then put his penis in the mouth of the victim.” Id.


The prosecution did not mention any other incidents of criminal conduct by Lankston. But when the prosecution put its outcry witness on the witness stand at trial, it opened its questioning about the extraneous offense with the open-ended question: “Was she [the child] able to tell you about some bad things that had happened to her at home?” Defense counsel immediately objected, telling the court the prosecution had limited itself on the extraneous offense issue with its notice and requested a running objection to any testimony outside the parameters of that notice. The trial judge responded by instructing all the attorneys to remain within the confines of § 38.072. The Court of Criminal Appeals noted:


”It is certain from this brief exchange that the judge at least thought he knew what defense counsel was talking about. Moreover, we regard it as more than a little likely, especially since no one has yet suggested a different interpretation, that Appellant’s attorney meant by his statement to advise the trial judge of his intention to make hearsay objections only to testimony about conduct other than that described in the summary, hoping all the while to avoid the necessity for any such objection by encouraging the prosecutor to ask more specific questions.” Id., 827 S.W.2d at 910.


While the prosecution seemed temporarily restrained by the trial judge’s instruction, the prosecuting attorney quickly expanded her scope of questioning. She asked a specific question that prompted the outcry witness to testify that the child had described sexual “activity that spanned over a period of about three years.” Id. The prosecutor then asked the witness what the child had told her about the June 1987 incident. The witness replied:


“She told me that around June of 1987, they were living in Keene at the same home on Santa Fe Street with her mother, stepfather and younger sister. She said her mother was working and would go to work about 7:00 o’clock in the morning, and that her stepfather went to work later on in the afternoon — in the morning around 9:00 o’clock. She said usually she would go into his room and bring him a cup of coffee.” Id.


Defense counsel immediately objected to this testimony as hearsay – and the Court of Criminal Appeals pointed out that “clearly at this point the witness was testifying about an incident other than that described in the State’s written summary of her proposed testimony.” Id.


The Lankston court went on to hold that defense counsel identifying the challenged testimony as “hearsay” should be regarded by all courts as a “sufficiently specific objection … Indeed, it is difficult to know how much more specific such an objection could be under most conditions. Certainly, the present case is complicated by the statutory exception imposed by article 38.072 of our Code of Criminal Procedure. And, for this reason, the Court of Appeals was right to point out that, because all of the testimony sought to be elicited from the witness in question was necessarily hearsay, and because its admissibility under article 38.072 had already been established, Appellant was obliged at least to claim that a specific part of it was objectionable in spite of the exception.


“Nevertheless, it is clear from context that both judge and prosecutor understood Appellant’s objection to be a complaint about testimony not falling within the statutory hearsay exception for ‘outcry’ witnesses, because the following exchange occurred immediately afterwards:


“[Prosecuting Attorney]: ‘Judge, I can show you what we filed as our intent to use 38.07[2].’

”[Trial Judge]: ‘It’s on file here. Let me read it here. All right. I’ll overrule the objection. Go ahead.’

”The witness then implicated Appellant in an act of sexual misconduct other than that of which Appellant had been given notice.


”We cannot believe under the circumstances of this case that the prosecuting attorney and trial judge would have thought to consult the State’s witness summary before ruling on a hearsay objection unless both in fact realized that the objection sought to exclude testimony not covered by that summary. It is, therefore, evident from the lower court’s opinion that context played no part in its analysis. The Court of Appeals did not purport to find, nor does it seem at all likely to us that it found, the sense of his objection to have been unclear in this case. Rather, the lower court appears to have held that Appellant was required expressly to say something like, ‘I object to this as being hearsay which is not excepted by article 38.07 because it has to do with uncharged conduct.’ We do not disagree, of course, that an objection of the kind here raised by Appellant should communicate at least this much information to the trial judge. But, taken in context, it is clear to us that all participants at trial in fact understood Appellant’s objection to do just that, and could not reasonably have understood it to mean anything else. Accordingly, we hold that Appellant’s objection was sufficient fairly to apprise the trial judge of his complaint.” Id., 827 S.W.2d at 910-11.


Read together, Lankston and Rivas make it clear that general, none-specific objections to bolstering testimony may have run their course under Texas’ Rules of Evidence. While neither decision requires that a defense attorney cite a specific rule as a basis for a bolstering objection, the Court of Criminal Appeals made it abundantly clear that the attorney should communicate in straightforward language to the trial court the evidentiary basis for his/her objection concerning this issue in order to properly preserve it for appellate review.


By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair