Tex. Code of Crim. Proc. Article 38.49
Forfeiture by Wrongdoing

(a)

A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness:

(1)

may not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and

(2)

forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing.

(b)

Evidence and statements related to a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of a witness or prospective witness are admissible and may be used by the offering party to make a showing of forfeiture by wrongdoing under this article, subject to Subsection (c).

(c)

In determining the admissibility of the evidence or statements described by Subsection (b), the court shall determine, out of the presence of the jury, whether forfeiture by wrongdoing occurred by a preponderance of the evidence. If practicable, the court shall make the determination under this subsection before trial using the procedures under Article 28.01 of this code and Rule 104, Texas Rules of Evidence.

(d)

The party offering the evidence or statements described by Subsection (b) is not required to show that:

(1)

the actor’s sole intent was to wrongfully cause the witness’s or prospective witness’s unavailability;

(2)

the actions of the actor constituted a criminal offense; or

(3)

any statements offered are reliable.

(e)

A conviction for an offense under Section 36.05 (Tampering with Witness) or 36.06 (Obstruction or Retaliation)(a), Penal Code, creates a presumption of forfeiture by wrongdoing under this article.

(f)

Rule 403, Texas Rules of Evidence, applies to this article. This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
Added by Acts 2013, 83rd Leg., R.S., Ch. 165 (S.B. 1360), Sec. 3, eff. September 1, 2013.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 848 (S.B. 923), Sec. 1, eff. September 1, 2015.

Source: Article 38.49 — Forfeiture by Wrongdoing, https://statutes.­capitol.­texas.­gov/Docs/CR/htm/CR.­38.­htm#38.­49 (accessed Jun. 5, 2024).

38.01
Texas Forensic Science Commission 38.02
Effect Under Public Information Law of Release of Certain Information 38.03
Presumption of Innocence 38.04
Jury Are Judges of Facts 38.05
Judge Shall Not Discuss Evidence 38.07
Testimony in Corroboration of Victim of Sexual Offense 38.08
Defendant May Testify 38.10
Exceptions to the Spousal Adverse Testimony Privilege 38.11
Journalist’s Qualified Testimonial Privilege in Criminal Proceedings 38.12
Religious Opinion 38.14
Testimony of Accomplice 38.15
Two Witnesses in Treason 38.16
Evidence in Treason 38.17
Two Witnesses Required 38.18
Perjury and Aggravated Perjury 38.19
Intent to Defraud: Certain Offenses 38.21
Statement 38.23
Evidence Not to Be Used 38.24
Statements Obtained by Investigative Hypnosis 38.25
Written Part of Instrument Controls 38.27
Evidence of Handwriting 38.30
Interpreter 38.31
Interpreters for Deaf Persons 38.32
Presumption of Death 38.34
Photographic Evidence in Theft Cases 38.35
Forensic Analysis of Evidence 38.36
Evidence in Prosecutions for Murder 38.38
Evidence Relating to Retaining Attorney 38.39
Evidence in an Aggregation Prosecution with Numerous Victims 38.40
Evidence of Pregnancy 38.43
Evidence Containing Biological Material 38.44
Admissibility of Electronically Preserved Document 38.45
Evidence Depicting or Describing Abuse of or Sexual Conduct by Child or Minor 38.46
Evidence in Prosecutions for Stalking 38.47
Evidence in Aggregation Prosecution for Fraud or Theft Committed with Respect to Numerous Medicaid or Medicare Recipients 38.48
Evidence in Prosecution for Tampering with Witness or Prospective Witness Involving Family Violence 38.49
Forfeiture by Wrongdoing 38.50
Retention and Preservation of Toxicological Evidence of Certain Intoxication Offenses 38.072
Hearsay Statement of Certain Abuse Victims 38.073
Testimony of Inmate Witnesses 38.075
Corroboration of Certain Testimony Required 38.076
Testimony of Forensic Analyst by Video Teleconference 38.101
Communications by Drug Abusers 38.141
Testimony of Undercover Peace Officer or Special Investigator 38.435
Prohibited Use of Evidence from Forensic Medical Examination Performed on Victim of Sexual Assault 38.451
Evidence Depicting Invasive Visual Recording of Child 38.471
Evidence in Prosecution for Exploitation of Child, Elderly Individual, or Disabled Individual
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Accessed:
Jun. 5, 2024

Art. 38.49’s source at texas​.gov