## Facts

- Jerry Lynn Bisby worked for A.W. Farmer’s construction business from about March/April 1993 until early August 1993.
- The business followed a policy that workers who started a job had to finish it to be paid, absent two weeks’ notice or termination.
- Bisby walked off a job in early August; A.W. refused to pay him under the policy.
- After the dispute, A.W. received telephone calls and answering-machine messages that A.W.’s son later attributed to Bisby and Bisby’s wife, Nancy Scruggs.
- On October 13, 1993, Bisby asked his brother-in-law, Robert Scruggs, to ride with him, stating he was going to see someone about getting money.
- They drove to an apartment complex where Bisby expected to find A.W.; Bisby waited in the parking lot until a truck arrived and Bisby said, “There he is.”
- Bisby exited the car, retrieved a pistol-grip shotgun from the back seat, approached A.W., and shot and killed him.
- A jury convicted Bisby of murder and assessed punishment at 99 years’ imprisonment.

## Issues

1. Whether the trial court erred by allowing a witness to testify after refusing the traditional oath on religious grounds and instead giving a modified affirmation under penalty of perjury.
2. Whether the trial court improperly admitted hearsay statements by the victim concerning the dispute and related circumstances to show motive and context.
3. Whether the trial court erred in admitting an answering-machine tape allegedly containing statements by Bisby and his wife due to hearsay and authentication objections.
4. Whether the trial court erred at punishment by excluding portions of Bisby’s testimony offered as mitigating evidence.

## Decision

- The appellate court affirmed the murder conviction and 99-year sentence.
- The court held the witness’s modified affirmation satisfied the requirement that testimony be given under an oath or affirmation to tell the truth.
- The court upheld admission of the victim’s out-of-court statements as either non-hearsay context/effect-on-listener evidence or within recognized exceptions, including state-of-mind.
- The court upheld admission of the answering-machine tape because voice identification and surrounding circumstances supported authentication, and relevant portions qualified as party-opponent admissions and related context.
- The court found no reversible error in restricting punishment-phase testimony, concluding the trial court acted within its discretion and any assumed error was harmless.

## Legal Principles

- A witness need not recite a fixed oath formula; an affirmation that is calculated to impress the duty of truthfulness and acknowledges perjury consequences satisfies the oath/affirmation requirement.
- Trial courts have broad discretion in evidentiary rulings; appellate reversal requires an abuse of discretion and a showing of harm to substantial rights.
- Out-of-court statements may be admissible when offered for context or effect on the listener rather than for their truth, or when they fall within a hearsay exception such as then-existing state of mind.
- Audio recordings may be authenticated through testimony of a witness familiar with the speakers’ voices plus circumstantial evidence tying the recording to the events.
- A defendant’s punishment evidence is subject to ordinary relevance and exclusion principles; the right to present mitigating evidence does not override applicable evidentiary limits.

## Conclusion

The court affirmed Bisby’s conviction and sentence, holding that a modified affirmation met oath requirements, motive-related statements and a properly authenticated answering-machine tape were admissible under Texas evidence law, and the trial court’s punishment-phase limits on Bisby’s testimony were within its discretion and not shown to warrant reversal.


Bisby v. State, 907 S.W.2d 949 (Tex. App.—Fort Worth 1995)