Johnson v. State (1998)

Texas Court of Criminal Appeals · 1998 · Evidence

967 S.W.2d 410 (Tex. Crim. App. 1998)

Updated August 22, 2026

Evidencehearsayrecorded recollectionpast recollection recordedRule 803(5)predicateharmless errorsufficiency of the evidence

Facts

The State's key evidence included a written statement by surviving victim Reginald Taylor describing the robbery, kidnapping, and shooting of Frank Johnson and identifying appellant as one of the participants. At trial, Taylor was uncooperative, repeatedly said he did not remember what happened or what he told police, and only acknowledged that the signature on the statement was his and that the events would have been fresher at the time of the statement. Over defense objection, the trial court allowed the State to read the entire statement to the jury under Rule 803(5). Other evidence included testimony placing appellant at the garage and with the victim, physical evidence connected to the shooting, and a jail inmate's testimony that appellant said he would not even lay down the gun if he had to do it again.

Issue

Whether Taylor's written statement was admissible as a recorded recollection under Texas Rule of Criminal Evidence 803(5) when Taylor claimed no present memory and did not testify that he had firsthand knowledge or that the statement was accurate. Also, whether the evidence as a whole was sufficient to support the conviction.

Rule

Under Rule 803(5), a recorded recollection is admissible only if the proponent establishes: (1) the witness once had firsthand knowledge of the event; (2) the memorandum or record was made or adopted at or near the time of the event while the matter was fresh in the witness's memory; (3) the witness now has insufficient recollection to testify fully and accurately; and (4) the witness acknowledges at trial that the memorandum was accurate, such as by guaranteeing the correctness of the transcription or factual assertions. A statement cannot verify itself through boilerplate language in the document. For non-constitutional error, reversal is required unless the appellate court has fair assurance that the error did not influence the jury or had but a slight effect.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a murder trial in Houston, the prosecution calls Dana Ruiz and asks to read her signed statement to detectives under the recorded-recollection exception. Dana testifies that she no longer remembers the night in question, recognizes her signature, and says the events were probably fresher when she spoke to police, but she never says she personally saw or heard the shooting.

Should the trial court allow the statement to be read into evidence under the recorded-recollection exception?

Explanation. Recorded recollection requires, among other things, proof that the witness once had firsthand knowledge of the event. Under the majority opinion, the proponent cannot rely on the contents of the statement itself to establish that element; the witness must give trial testimony showing personal knowledge. A signature, plus an inability to remember and a concession that memory was fresher earlier, is not enough.