Texas Rules of Evidence Cheat Sheet: Objections and Hearsay

A Texas Rules of Evidence cheat sheet is most useful when it is organized the way objections actually come up in court: a ground to object, the rule number behind it, the common exceptions that will be thrown back at you, and the step you must take to keep the issue alive on appeal. What follows is that reference, built around the objections that drive most Texas trials.

Relevance and Rule 403 Prejudice

Relevance is the first objection and the lowest bar. Under Rule 401, evidence is relevant if it makes any fact of consequence more or less probable than it would be without the evidence.¹ Rule 402 sets the default: relevant evidence comes in, irrelevant evidence stays out. A pure relevance objection rarely wins on its own because the standard asks only for a nudge, not proof.

The objection that does the real work is Rule 403. The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.² The word “substantially” tilts the rule toward admission. Graphic photos, inflammatory language, repetitive witnesses, and documents that invite the jury to decide on emotion are the typical Rule 403 targets. State the specific danger when you object; a bare “403” without identifying the harm is weak.

Character, Prior Acts, and Habit

Rule 404 bars using a person’s character to prove they acted in conformity with that character on a specific occasion.² You cannot prove someone lied on Tuesday by showing they are generally dishonest. In criminal cases, a defendant may open the door with evidence of a pertinent trait, and the prosecution can then rebut. In a homicide case, the prosecution can offer evidence of the victim’s peaceful character to counter a first-aggressor claim.

Rule 404(b) is the flashpoint. Prior crimes, wrongs, or other acts are inadmissible to prove character, but admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. In criminal cases, the prosecution must give reasonable pretrial notice of 404(b) evidence it plans to use in its case-in-chief.² When prior-act evidence is offered, make the proponent state the non-character purpose on the record and request a limiting instruction; both help on appeal.

Rule 406 is the counterpoint. Habit evidence and routine organizational practice are admissible to prove conduct on a particular occasion, and no corroboration or eyewitness is required.¹ The admissibility fight turns on whether the behavior is a near-automatic response to a specific repeated situation (habit) or a general tendency (character). If it drifts toward disposition, object under 404.

Policy-Based Exclusions

Three rules exclude relevant evidence for policy reasons, and each has a predictable exception the other side will invoke.

Rule 407 excludes subsequent remedial measures offered to prove negligence or culpable conduct. The exception: the repair can come in to prove ownership or control if genuinely disputed.¹
Rule 408 excludes compromise offers and statements made in settlement negotiations when offered to prove liability or amount. The exception: the same statements may be admitted for another purpose, such as proving a witness’s bias.
Rule 411 excludes evidence of liability insurance offered to show negligence or wrongful conduct.

When you object, pin down the purpose for which the evidence is being offered. These rules exclude only the prohibited use.

Hearsay and the Exceptions You Will Hear in Reply

Hearsay is an out-of-court statement offered to prove the truth of what it asserts, defined in Rule 801(d).¹ If the statement is offered for some other purpose (notice, state of mind, effect on the listener), it is not hearsay at all, and the objection fails. Train yourself to ask “offered to prove what?” before you stand.

Some statements that look like hearsay are classified as “not hearsay” by definition. The big one is Rule 801(e)(2): an opposing party’s statement. Anything the other side said, adopted, or that was said by their authorized agent within the scope of the relationship can be used against them without any hearsay analysis.¹

Rule 803: Exceptions That Apply Regardless of Availability

Three Rule 803 exceptions carry most of the courtroom traffic:

Present sense impression (803(1)): a description made while the speaker was perceiving the event or immediately after.
Excited utterance (803(2)): a statement made while still under the stress of a startling event.
Business records (803(6)): records made and kept in the regular course of a regularly conducted business activity, authenticated by a custodian, a qualified witness, or a Rule 902(10) certification.¹

Other 803 exceptions include recorded recollection (a memo made when memory was fresh), statements made for medical diagnosis or treatment, and public records.

Rule 804: Exceptions That Require Unavailability

Rule 804 applies only when the speaker is unavailable: shielded by privilege, refusing to testify despite a court order, unable to remember, deceased or seriously ill, or unreachable through reasonable efforts. None of those grounds counts if the party offering the statement caused the unavailability on purpose.¹ Make the proponent prove unavailability on the record before any 804 exception is applied.

Once unavailability is shown, the exceptions include former testimony where the opposing party had a prior opportunity and similar motive to develop it, dying declarations about the cause or circumstances of impending death, and statements of personal or family history. In civil cases, former testimony from a deposition in a different proceeding qualifies if the party against whom it is offered, or a predecessor in interest, had the opportunity and motive to develop it.¹

The Residual Exception

Rule 807 is the safety valve. A hearsay statement that fits no specific exception may still come in if it has sufficient guarantees of trustworthiness and is more probative on the point than any other evidence the proponent could reasonably obtain. The proponent must give pretrial notice of the substance and the speaker’s name. Courts use this sparingly. If the proponent is reaching for 807, press them to identify why the specific exceptions do not fit.

Privilege Objections

Privilege keeps otherwise relevant information out because the relationship behind it is worth protecting. The holder is usually the client, the patient, or the communicator, not the professional.¹

Rule 503 protects confidential communications made to facilitate professional legal services, covering client-to-lawyer, lawyer-to-staff, and co-counsel communications.¹ It does not shield communications made to further a crime or fraud and does not apply in lawyer-client disputes.

Rule 504 contains two separate spousal privileges that are easy to confuse. The confidential communication privilege protects private statements between spouses during the marriage and survives divorce. The privilege not to testify applies in criminal cases: the accused’s spouse cannot be compelled to testify for the state, though the spouse may volunteer. Neither privilege applies when one spouse is charged with a crime against the other spouse, a household member, or a minor child, and the communication privilege falls away when the statement was made to plan or carry out a crime or fraud.¹

Rule 505 protects confidential communications made to a member of the clergy acting as a spiritual adviser.¹

Rule 511 applies across the board: voluntary disclosure of a significant part of a privileged communication waives the privilege.¹ When the other side invokes privilege, probe whether any portion was shared outside the protected relationship. When your own witness holds the privilege, keep them on a tight leash in casual settings.

Witness Objections

Lay Witnesses

Rule 602 requires personal knowledge. If a lay witness is testifying beyond what they perceived, object. Rule 701 permits lay opinion only when it is rationally based on the witness’s perception and helpful to the jury.¹ A bystander can estimate a car’s speed from observation; the same bystander cannot opine on brake failure without expert qualification.

Expert Witnesses

Rule 702 allows expert testimony when specialized knowledge will help the jury. Texas courts apply the gatekeeping framework from E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), which adopted the core of Daubert. The trial judge must find the expert qualified, the testimony relevant, and the methodology reliable. The Robinson factors include whether the theory can be tested, the degree of subjective interpretation, peer review and publication, error rate, general acceptance in the scientific community, and non-judicial uses of the technique. Credentials alone are not enough. A reliability challenge should be raised pretrial by motion where possible, with a hearing on the record.

Impeachment

Rule 607 lets any party attack any witness’s credibility, including the party who called the witness.¹

Rule 613 governs impeachment with a prior inconsistent statement, and the Texas foundation differs from federal practice. Before you can introduce extrinsic evidence of the statement, you must tell the witness its contents, when and where it was made, and the person to whom it was made, and give the witness a chance to explain or deny. If the witness unequivocally admits making the statement, no extrinsic evidence is needed. Skip the foundation and you lose the impeachment.

Rule 609 governs impeachment by prior conviction. A conviction is admissible to attack credibility if it was a felony or involved moral turpitude and its probative value outweighs the prejudicial effect to a party. If more than ten years have passed since conviction or release (whichever is later), the test flips to require that probative value substantially outweigh prejudice, backed by specific facts and circumstances. Convictions on appeal are not admissible, and juvenile adjudications are generally off-limits except in Title 3 Family Code proceedings.

Authentication and Best Evidence

Rule 901 requires the proponent to produce evidence sufficient to support a finding that the item is what they claim it is.¹ A witness with knowledge is the standard method. The rule also allows comparison by an expert, distinctive characteristics, voice identification, and evidence about telephone conversations. When an exhibit is offered without a predicate witness, object for lack of authentication.

Rule 902 lists items that authenticate themselves without a sponsoring witness: certified public records, official publications, newspapers, acknowledged documents, and certified business records with a Rule 902(10) affidavit.¹ Check the certification itself; a defective 902(10) affidavit can be challenged.

Rule 1002, the best evidence rule, requires the original when the content of a writing, recording, or photograph is at issue. Rule 1004 allows other evidence of content if the originals were lost or destroyed without bad faith, if no judicial process can produce them, if the original is outside Texas, or if the opposing party controlled the original and failed to produce it after notice.¹

Judicial Notice

Rule 201 lets the court accept a fact without proof when it is not subject to reasonable dispute, either because it is generally known in the jurisdiction or because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The court may take notice on its own and must do so when a party requests it and supplies the necessary information. Either party may be heard on the propriety of taking judicial notice. In civil cases, the jury must accept the noticed fact as conclusive; in criminal cases, the jury may accept or reject it.²

Preserving the Objection

None of the above helps on appeal if the record does not show you did it right. Rule 103 controls preservation.¹

When the court admits evidence you want excluded, make a timely objection or motion to strike on the record and state the specific ground unless it is apparent from the context. “Objection, hearsay” preserves hearsay. “Objection” preserves nothing.

When the court excludes evidence you want in, make an offer of proof so the appellate record shows what the jury did not hear. In a jury trial, the court must allow the offer outside the jury’s presence, and it must be made before the charge is read.¹

Rule 103(b) spares you a repeat performance: once the court hears your objection outside the jury and rules the evidence admissible, you do not have to re-object when it is actually presented. Rule 103(e) permits an appellate court to notice fundamental error affecting a substantial right in a criminal case even without objection, but no trial lawyer should plan around it. Object specifically, offer proof, and get your record.

1
Texas Judicial Branch. Texas Rules of Evidence
2
Texas Judicial Branch. Texas Rules of Evidence