Tex. Code of Crim. Proc. Article 38.40
Evidence of Pregnancy

(a)

In a prosecution for the death of or injury to an individual who is an unborn child, the prosecution shall provide medical or other evidence that the mother of the individual was pregnant at the time of the alleged offense.

(b)

For the purpose of this section, “individual” has the meaning assigned by Section 1.07 (Definitions), Penal Code.

Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.06, eff. Sept. 1, 2003.

Art. 38.41. CERTIFICATE OF ANALYSIS.

Sec. 1. A certificate of analysis that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court.

Sec. 2. This article does not limit the right of a party to summon a witness or to introduce admissible evidence relevant to the results of the analysis.

Sec. 3. A certificate of analysis under this article must contain the following information certified under oath:

(1)

the names of the analyst and the laboratory employing the analyst;

(2)

a statement that the laboratory employing the analyst is accredited by a nationally recognized board or association that accredits crime laboratories;

(3)

a description of the analyst’s educational background, training, and experience;

(4)

a statement that the analyst’s duties of employment included the analysis of physical evidence for one or more law enforcement agencies;

(5)

a description of the tests or procedures conducted by the analyst;

(6)

a statement that the tests or procedures used were reliable and approved by the laboratory employing the analyst; and

(7)

the results of the analysis.

Sec. 4. Not later than the 20th day before the trial begins in a proceeding in which a certificate of analysis under this article is to be introduced, the certificate must be filed with the clerk of the court and a copy must be provided by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the opposing party. The certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the offering party.

Sec. 5. A certificate of analysis is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article:

BEFORE ME, the undersigned authority, personally appeared ______________________________, who being duly sworn, stated as follows:

My name is __________. I am of sound mind, over the age of 18 years, capable of making this affidavit, and personally acquainted with the facts stated in this affidavit.

I am employed by the __________, which was authorized to conduct the analysis referenced in this affidavit. Part of my duties for this laboratory involved the analysis of physical evidence for one or more law enforcement agencies. This laboratory is accredited by __________.

My educational background is as follows: (description of educational background)

My training and experience that qualify me to perform the tests or procedures referred to in this affidavit and determine the results of those tests or procedures are as follows: (description of training and experience)

I received the physical evidence listed on laboratory report no. __________ (attached) on the ___ day of __________, 20___. On the date indicated in the laboratory report, I conducted the following tests or procedures on the physical evidence: (description of tests and procedures)

The tests and procedures used were reliable and approved by the laboratory. The results are as indicated on the lab report.

SWORN TO AND SUBSCRIBED before me on the ___ day of __________, 20___.

Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 78 (S.B. 354), Sec. 4, eff. May 18, 2013.

Art. 38.42. CHAIN OF CUSTODY AFFIDAVIT.

Sec. 1. A chain of custody affidavit that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the chain of custody of physical evidence without the necessity of any person in the chain of custody personally appearing in court.

Sec. 2. This article does not limit the right of a party to summon a witness or to introduce admissible evidence relevant to the chain of custody.

Sec. 3. A chain of custody affidavit under this article must contain the following information stated under oath:

(1)

the affiant’s name and address;

(2)

a description of the item of evidence and its container, if any, obtained by the affiant;

(3)

the name of the affiant’s employer on the date the affiant obtained custody of the physical evidence;

(4)

the date and method of receipt and the name of the person from whom or location from which the item of physical evidence was received;

(5)

the date and method of transfer and the name of the person to whom or location to which the item of physical evidence was transferred; and

(6)

a statement that the item of evidence was transferred in essentially the same condition as received except for any minor change resulting from field or laboratory testing procedures.

Sec. 4. Not later than the 20th day before the trial begins in a proceeding in which a chain of custody affidavit under this article is to be introduced, the affidavit must be filed with the clerk of the court and a copy must be provided by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the opposing party. The affidavit is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the affidavit with the clerk of the court and provides a copy of the objection by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the offering party.

Sec. 5. A chain of custody affidavit is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article:

BEFORE ME, the undersigned authority, personally appeared ______________________________, who being by me duly sworn, stated as follows:

My name is __________. I am of sound mind, over the age of 18 years, capable of making this affidavit, and personally acquainted with the facts stated in this affidavit.

My address is __________.

On the ___ day of __________, 20___, I was employed by ___________.

On that date, I came into possession of the physical evidence described as follows: (description of evidence)

I received the physical evidence from __________ (name of person or description of location) on the ___ day of __________, 20___, by ___________ (method of receipt).

This physical evidence was in a container described and marked as follows: (description of container)

I transferred the physical evidence to __________ (name of person or description of location) on the ___ day of __________, 20___, by ___________ (method of delivery).

During the time that the physical evidence was in my custody, I did not make any changes or alterations to the condition of the physical evidence except for those resulting from field or laboratory testing procedures, and the physical evidence or a representative sample of the physical evidence was transferred in essentially the same condition as received.

SWORN TO AND SUBSCRIBED before me on the ___ day of __________, 20___.

Notary Public, State of Texas

Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 78 (S.B. 354), Sec. 5, eff. May 18, 2013.

Source: Article 38.40 — Evidence of Pregnancy, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.38.htm#38.40 (accessed Jun. 5, 2024).

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Tex. Code of Crim. Proc. Article 38.40 Evidence of Pregnancy

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Tex. Code of Crim. Proc. Article 38.40
Evidence of Pregnancy