Seymour v. Gillespie
| Decision Date | 12 September 1980 |
| Docket Number | No. B-8806,B-8806 |
| Citation | 608 S.W.2d 897 |
| Parties | Jim SEYMOUR and James Vowell, Petitioners, v. R. L. GILLESPIE, Respondent. |
| Court | Texas Supreme Court |
Danny M. Womack and John McClish, Austin, for petitioners.
George Chandler, Lufkin, for respondent.
Jim Seymour and James Vowell brought this suit against R. L. Gillespie claiming damages for personal injuries arising from assault and battery. The trial court rendered a take nothing judgment for Gillespie and the Court of Civil Appeals affirmed. 584 S.W.2d 528. We reverse the judgment of the Court of Civil Appeals and remand the cause to the trial court.
The only question in this case is whether the trial court committed reversible error in excluding a tape recording of the conversation and sounds that occurred during the alleged assault and battery. In 1970, Seymour and Vowell were making a film to be entitled "The Big Thicket" for the Texas Historical Society. As a part of this project they went to a small sawmill owned by Gillespie, near Honey Island in East Texas. While there, an affray took place, resulting in this lawsuit. Seymour and Vowell contend that the defendant committed an assault and battery against them. Gillespie alleges an entirely different version of the facts.
The trial judge, in a jury trial, would not admit the tape in evidence. The reasons given were that the tape was self-serving, that the persons being recorded did not identify themselves during the recording, one of the parties did not know he was being recorded, and because "Some of it is very garbled and it is ununderstandable to the court." The Court of Civil Appeals, relying on Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App. Corpus Christi 1969, writ ref'd n.r.e.), held that under the circumstances it was unable to say the trial court abused its discretion in refusing to admit the tape recording.
Tape recordings which are a fair representation of a transaction, conversation or occurrence are admissible. A fair representation may be shown by these elements: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity of the correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. See Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App. Corpus Christi 1969, writ ref'd n.r.e.). Some of these elements may be inferred and need not be shown in detail. For example, if a person who hears and records a conversation or hears a conversation and a recording of the conversation, testifies the recording is a fair representation of the conversation, it can be inferred the recording device was capable of taking testimony and the operator was competent. The voluntary nature of the conversation may be inferred from the facts and circumstances of each case. See Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977).
A general objection to an insufficient predicate will not suffice. Specific objections must be made. In the Matter of Bates, 555 S.W.2d 420 (Tex.1977).
This Court, in...
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Thoma, In re
...specifically made 6 and that there is no evidence that the operator of the tape recorder was competent to operate such a device. In Seymour v. Gillespie, the Texas Supreme Court adopted the seven-prong approach to the admissibility of audio recordings. In order for a tape recording to be ad......
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Campbell v. Salazar
...of the speakers; and (7) that the testimony elicited was voluntarily made without any kind of inducement. Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex.1980); Thoma, In re, 873 S.W.2d 477, 486-87 (Tex.Rev.Trib.1994); Interest of T.L.H., 630 S.W.2d 441, 447 (Tex.Civ.App.--Corpus Christi 198......
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Town of Flower Mound v. Teague
...lacked foundation. These objections did not preserve error because they were not specific. Tex.R. Evid. 103(a)(1); Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex.1980); In re Bates, 555 S.W.2d 420, 432 (Tex.1977). The Town also complains, without elaboration, that "the jury's damages are ex......
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Howe v. Howe
...2011). Husband made no objection at trial based on authentication, and consequently, that argument is waived. See Seymour v. Gillespie , 608 S.W.2d 897, 898 (Tex. 1980) (authentication is one of the evidence predicate objections which must be specifically raised); Morales v. Rice , 388 S.W.......
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CHAPTER 4.I. Motion Authorities
...1987); Reichhold Chems. v. Puremco Mfg., 854 S.W.2d 240 (Tex. App.—Waco 1999, writ denied). d. Tape Recordings Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1980) (sound recording may be authenticated by one or more witnesses' testimony that: recording device was capable of taking testimony; o......
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Table of Cases
...v. McRae, 52 Wash.2d 103, 323 P.2d 236 (1958), §48.201 Sexton v. Sexton, 129 Iowa 487, 105 N.W. 314 (1905), §9.507 Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1980), §45.200 Sgambelluri v. Recinos, 747 N.Y.S.2d 330, 192 Misc.2d 777 (2002), §36.302 Shadix v. Brown, 216 Ala. 516, 113 So. 581 (......
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Table of Cases
...v. McRae, 52 Wash.2d 103, 323 P.2d 236 (1958), §48.201 Sexton v. Sexton, 129 Iowa 487, 105 N.W. 314 (1905), §9.507 Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1980), §45.200 Sgambelluri v. Recinos, 747 N.Y.S.2d 330, 192 Misc.2d 777 (2002), §36.302 B-55 Table of Cases Shadix v. Brown, 216 Ala......
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Table of Cases
...v. McRae, 52 Wash.2d 103, 323 P.2d 236 (1958), §48.201 Sexton v. Sexton, 129 Iowa 487, 105 N.W. 314 (1905), §9.507 Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1980), §45.200 Sgambelluri v. Recinos, 747 N.Y.S.2d 330, 192 Misc.2d 777 (2002), §36.302 Shadix v. Brown, 216 Ala. 516, 113 So. 581 (......