TECHNIQUES FOR EXCLUDING EVIDENCE
Stephen G. Tipps
Baker Botts L.L.P.
One Shell Plaza
Houston, Texas 77002-4995
©Baker Botts L.L.P.
TABLE OF CONTENTS
I.
II.
III.
IV.
SCOPE OF ARTICLE. ........................................................................................................1
OVERVIEW: EXCLUDING EVIDENCE IS A TWO-STEP PROCESS. ........................1
A.
“Admissible” v. “Inadmissible”. ..............................................................................1
B.
“Inadmissible” Evidence as Support for Finding.....................................................1
1.
Hearsay. .......................................................................................................1
2.
Parol evidence and opinion evidence. ..........................................................2
3.
Objective. .....................................................................................................2
C.
Harmless Error Rule. ...............................................................................................2
MAKING THE EVIDENCE INADMISSIBLE. .................................................................2
A.
Limiting the Issues to Be Tried. ...............................................................................3
1.
Narrowing pleadings. ...................................................................................3
a.
Choosing legal theories. ...................................................................3
b.
Bad facts...........................................................................................3
c.
Waiver. .............................................................................................3
2.
Stipulating bad facts. ....................................................................................4
a.
Stipulations. .....................................................................................4
b.
Effect of proportionate responsibility. .............................................4
c.
Gross negligence and percentage allocations. .................................4
d.
Limiting proof. .................................................................................4
e.
Advantages. ......................................................................................4
3.
Requests for admissions. ..............................................................................5
a.
Rules. ...............................................................................................5
b.
Effect. ...............................................................................................5
c.
Use. ..................................................................................................5
B.
Motions for Sanctions—Evidence Excluded as a Penalty. ......................................5
1.
Trend toward sanctions. ...............................................................................5
2.
Striking pleadings. .......................................................................................5
3.
Excluding witnesses. ....................................................................................6
C.
Proper Development of the Pre-trial Record. ..........................................................6
1.
General. ........................................................................................................6
2.
Hearsay and speculation. .............................................................................7
3.
“Taking on voir dire.” ..................................................................................7
KEEPING THE EVIDENCE OUT. ....................................................................................7
A.
Motion in Limine. ....................................................................................................7
1.
General acceptance. .....................................................................................7
2.
Not a final ruling. .........................................................................................7
a.
If denied. ..........................................................................................8
b.
If granted. .........................................................................................8
3.
Uses. .............................................................................................................8
a.
Avoiding prejudice...........................................................................8
b.
Resolving substantive law questions. ..............................................8
c.
Controlling jury selection. ...............................................................8
d.
Pre-trial rulings. ...............................................................................9
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i
B.
C.
D.
E.
F.
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Motion to Exclude..................................................................................................10
1.
General. ......................................................................................................10
2.
Ruling preserves error. ...............................................................................10
3.
Uses. ...........................................................................................................10
a.
Excluding expert testimony. ..........................................................10
b.
Excluding witnesses and other evidence not timely disclosed. .....11
Objection. ...............................................................................................................11
1.
General. ......................................................................................................11
2.
Effect. .........................................................................................................11
a.
Preservation of error. .....................................................................11
b.
Limitations. ....................................................................................11
3.
Timing. .......................................................................................................11
4.
Types of objections. ...................................................................................12
a.
General objections. ........................................................................12
(1)
Definition. ..........................................................................12
(2)
Uselessness. .......................................................................12
(3)
Appeal, if overruled. ..........................................................12
(4)
Appeal, if sustained. ...........................................................13
b.
Specific objections. ........................................................................13
(1)
Definition. ..........................................................................13
(2)
Reasons. .............................................................................13
(3)
Appeal, if overruled. ..........................................................13
(4)
Appeal, if sustained. ...........................................................13
(5)
“Door opening” not waiver. ...............................................13
(6)
Defending not waiver. ........................................................14
c.
Repeated objections. ......................................................................14
(1)
General. ..............................................................................14
(2)
No waiver overruled. .........................................................14
(3)
Possible waiver once admitted. ..........................................15
d.
Running objections. .......................................................................15
Limiting Instruction. ..............................................................................................15
1.
General. ......................................................................................................15
a.
Limitation as to party. ....................................................................16
b.
Limitation as to purpose.................................................................16
2.
Texas rule. ..................................................................................................16
Motion to Strike with Instruction to Disregard. .....................................................17
1.
Use. ............................................................................................................17
a.
After inadmissible answer..............................................................17
b.
When admissible evidence becomes inadmissible. .......................17
c.
Need. ..............................................................................................17
Mistrial. ..................................................................................................................18
ii
TECHNIQUES FOR EXCLUDING EVIDENCE
I.
SCOPE OF ARTICLE.
This article discusses the various procedural devices for excluding inadmissible evidence
as well as the various ways to create the necessary bases or predicates for the exclusion of
evidence.
II.
OVERVIEW: EXCLUDING EVIDENCE IS A TWO-STEP PROCESS.
Exclusion of inadmissible evidence is a two-step process. First, the party resisting the
evidence must see to it that the proper basis or predicate for excluding the evidence
exists. In other words, it must make the evidence inadmissible. This step involves
application of the appropriate rule of evidence to a particular set of facts. Sometimes this
requires that action be taken either before or during trial; sometimes it does not. Second,
the party must use one or more of the accepted procedural devices to cause the trial judge
to rule that the evidence is inadmissible, thereby keeping the inadmissible evidence out.
Without the proper basis and the proper procedural device, the evidence will be admitted,
whether or not it is “admissible.” See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989)
(holding that a party may not simply rely on deemed admissions when inadmissible,
controverting evidence is introduced; rather, the party must object to the introduction of
evidence contrary to the admissions or waive his right to rely on them).
A.
“Admissible” v. “Inadmissible”. The evidence upon which the jury bases its
verdict is the evidence that is admitted by the court, whether or not it is “admissible.” If the
party against whom the evidence is offered fails to have created the necessary basis for evidence
exclusion or fails to use an appropriate procedural device to have the evidence excluded,
otherwise “inadmissible” evidence may become “admissible” by definition. While the court has
authority to exclude evidence on its own motion, see, e.g., Aquamarine Assocs. v. Burton
Shipyard, Inc., 645 S.W.2d 477 (Tex. App.—Beaumont 1982), aff’d, 659 S.W.2d 820, 822 (Tex.
1983) (affirming the district court’s decision, on its own motion, to strike hearsay evidence from
the record), that authority is rarely exercised. Generally, the burden is on the party resisting the
evidence to take the steps necessary to have it excluded, although the trial court has some
discretion to determine which party should separate the admissible from inadmissible evidence,
where not all the evidence is excludable. Hurtado v. Tex. Employers’ Ins. Ass’n., 563 S.W.2d
360, 362 (Tex. Civ. App.—San Antonio), rev’d on other grounds, 574 S.W.2d 536 (Tex. 1978);
but see State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 631 (Tex. App.—El Paso 2005,
pet. dism’d) (offering party bears burden of separating admissible evidence from inadmissible
evidence following appropriate, specific objection).
B.
“Inadmissible” Evidence as Support for Finding. Generally, once evidence is
admitted, without proper objection, it becomes “admissible” and capable of supporting a fact
finding. The old rule that inadmissible evidence may not support a finding of fact even though
received without objection is today highly questionable.
1.
Hearsay. Texas Rule of Evidence 802 expressly changed earlier law that
inadmissible hearsay was wholly incompetent and incapable of supporting a verdict by providing
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that “[i]nadmissible hearsay admitted without objection shall not be denied probative value
merely because it is hearsay.” TEX. R. EVID. 802. The federal rule has always been that error
could not be predicated on evidence admitted without objection. FED. R. EVID. 103(a). The only
exception is “plain errors” which affect substantial rights. FED. R. EVID. 103(d).
2.
Parol evidence and opinion evidence. There remain limited categories
of evidence that cannot support a verdict even if admitted without objection. Such evidence
includes parol evidence and opinion evidence based on unsupported facts. See Wilkins v. Bain,
615 S.W.2d 314, 315 (Tex. Civ. App.—Dallas 1981, no writ) (concluding that parol evidence
that contradicts a written agreement cannot support a jury’s findings because it “lacks probative
force”); Ganske v. Spence, 129 S.W.3d 701, 706 (Tex. App.—Waco 2004, no pet.) (same); King
v. Fordice, 776 S.W.2d 608, 612 (Tex. App.—Dallas 1989, writ denied) (same); Alaniz v.
Rebello Food & Beverage, 165 S.W.3d 7, 16 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(“When an expert's opinion is based on assumed facts that vary materially from actual,
undisputed facts, the opinion has no probative value and is therefore, no evidence.”). This is
explained partially by the fact that the parol evidence rule is generally considered to be a rule of
substantive contract law rather than a rule of evidence. Baroid Equip., Inc. v. Odeco Drilling,
No. 01-99-00658-CV, 2005 WL 2615049, at *9 (Tex. App.—Houston [1st Dist.] Oct. 13, 2005,
no pet. h.); World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 680 (Tex. App.—Fort Worth
1998, pet. denied); 3 CORBIN ON CONTRACTS § 573 (West 1960).
3.
Objective. The object of these modern-day rules of evidence is to require
that the party resisting the evidence put his opponent on notice of his objection at the time the
evidence is offered rather than create a point of error with which to sandbag his opponent on
appeal.
C.
Harmless Error Rule. The decision to admit or exclude evidence is within the
trial court’s discretion and will be reviewed for an abuse of discretion. Nat’l Liab. & Fire Ins.
Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). A proper objection, of course, preserves error
and allows a party to complain on appeal regarding the admission of the inadmissible evidence.
All evidence points of error, however, will be subject to scrutiny under the harmless error rule,
under which the appellant must show that the trial court in fact committed error in admitting the
evidence and, in addition, that the error was reasonably calculated to cause, and probably did
cause, the rendition of an improper judgment. Bartosh v. Gulf Health Care Ctr.-Galveston, No.
14-04-00715-CV, 2005 WL 2548420, at *2 (Tex. App.—Houston [14th Dist.] Oct 11, 2005, no
pet. h.); American Prot. Ins. Co. v. Johnson, 171 S.W.3d 921, 923 (Tex. App.—Amarillo 2005,
no pet.); Al-Nayem Int’l Trading, Inc. v. Irving Indep. Sch. Dist., 159 S.W.3d 762, 763 (Tex.
App.—Dallas 2005, no pet.). As overcoming the harmless error rule with respect to evidence
points of error involves shouldering a heavy burden, it is crucial to persuade the trial judge to
exclude damaging inadmissible evidence at trial.
III.
MAKING THE EVIDENCE INADMISSIBLE.
Exclusion of evidence begins with the Texas or Federal Rules of Evidence, which
describe what evidence is admissible and what evidence is not. However, before a
procedural device can be used to exclude evidence, a party must demonstrate the basis for
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application of a particular exclusionary rule of evidence. This often involves creating an
appropriate basis or predicate. There are several ways this can be done.
A.
Limiting the Issues to Be Tried. Because evidence is admissible only if relevant
to a contested issue that is raised by the pleadings, TEX. R. EVID. 402; FED. R. EVID. 402, limiting
the issues to be tried can sometimes make evidence inadmissible. This can be done by limiting
or narrowing your own or your opponent’s pleadings or by eliminating the contest over an issue
by way of stipulations or admissions.
1.
Narrowing pleadings. A basis for excluding evidence can be created by
a plaintiff omitting certain theories of liability, or by a defendant filing state court special
exceptions, Federal Rule 12(b) motions, or motions for partial summary judgment. While not
always the case, reducing the number of legal theories an opponent is advancing, or the number
you are advancing, will also often reduce the number of facts that are relevant to the case that
remains to be tried.
a.
Choosing legal theories. If a plaintiff can recover on a number of
different theories, it may choose to limit the theories it pleads to those that do not allow the
defendant to put the plaintiff’s conduct in issue.
(1)
Example. In an ERISA case brought by pension fund
trustees against an investment manager, the trustees may
have complaints that the manager breached both its
fiduciary duty to diversify the funds’ investments and its
duty to manage its investments prudently. If the trustees
also participated in the decision on diversification, they
may choose not to plead that claim, but to complain only of
mismanagement.
b.
Bad facts. This approach is particularly helpful if one’s position is
strong on the law, but weak on the facts on one part of the case. By filing a special exception or
partial summary judgment to resolve a part of the case with unfavorable evidence, one can
prevent unfavorable, but now irrelevant evidence, from tainting the remainder of the case.
(1)
Example. A commercial case in which there is evidence of
a grossly deceitful misrepresentation but no evidence that
the plaintiff in fact relied on the misrepresentation. By
getting the fraud claim resolved as a matter of law before
trial, it may be possible to keep the damaging evidence
from the jury, unless the plaintiff can show it is relevant to
some other issue.
c.
Waiver. Even if a party is successful in limiting the issues to be
tried, special vigilance is required at trial to exclude evidence on the basis of relevance. The
objection on relevance grounds must be asserted promptly whenever the opponent tries to
present evidence that is outside the live pleadings. Otherwise, it can easily be waived. TEX. R.
EVID. 103(a); see also TEX. R. CIV. P. 90; Miles v. Ford Motor Co., 922 S.W.2d 572, 591 (Tex.
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App.—Texarkana 1996), aff’d in part and rev’d in part on other grounds, Ford Motor Co. v.
Miles, 967 S.W.2d 377 (Tex. 1998); Atlantic Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414,
421 (Tex. App.—Houston [14th Dist.] 1991, writ denied); Northwest Otolaryngology Assocs. v.
Mobilease, Inc., 786 S.W.2d 399, 405-06 (Tex. App.—Texarkana 1990, writ denied). The issues
can also be deemed to have been tried by implied consent. See TEX. R. CIV. P. 67; Austin Area
Teachers Fed. Credit Union v. First City Bank - NW Hills, N.A., 825 S.W.2d 795, 800-01 (Tex.
App.—Austin 1992, writ denied) (discussing the doctrine of trial by consent).
2.
Stipulating bad facts.
a.
Stipulations. A defendant may always create the basis for a
relevance objection by admitting the truth of any of the allegations made against him—e.g.,
negligence, causation, or both—in either his original or amended answer. Similarly, the plaintiff
can admit the truth of any affirmative defense, including contributory negligence. Arguably, the
effect is to make evidence relevant only to the claims that have been admitted irrelevant and
inadmissible. See Dallas Bank & Trust Co. v. Commonwealth Dev. Corp., 686 S.W.2d 226, 233
(Tex. App.—Dallas 1984, writ ref’d n.r.e.) (concluding that the appellant’s pleadings constituted
judicial admissions “requiring no proof of admitted facts and disallowing the introduction of
contradictory evidence”); Davis v. Quality Pest Control, 641 S.W.2d 324, 329 (Tex. App.—
Houston [14th Dist.] 1982, writ ref’d n.r.e.) (observing that “[a]n admission in a trial pleading is
regarded as a judicial admission requiring no proof of the admitted fact and authorizing the
introduction of no evidence which contradicts it”).
b.
Effect of proportionate responsibility. The usefulness of
admissions of fault to limit the introduction of bad evidence, however, is highly questionable in
cases governed by the proportionate responsibility concept of Chapter 33 of the Texas Civil
Practice and Remedies Code. Since the jury must compare the conduct of all parties in
answering the percentage allocation question, all evidence of conduct would appear to be
relevant, even if the alternate issue of fault is admitted.
c.
Gross negligence and percentage allocations. Similarly, in a
personal injury case in which gross negligence as well as ordinary negligence is alleged, an
admission of ordinary negligence will not likely provide a basis for excluding evidence of
defendant misconduct, as that conduct would be equally relevant to the gross negligence claim.
Likewise, in comparative fault cases, admitting fault may not make any evidence irrelevant
because evidence showing fault is also relevant to determining the percentage of causation.
d.
Limiting proof. However, even in comparative responsibility
cases, it may sometimes be useful to admit the existence of a bad fact and to use the admission as
the basis for an argument that one’s opponent’s proof on that point should at least be limited.
For example, if your client was clearly drunk, it is probably best to stipulate to that fact and then
object to your opponent’s efforts to prove the bad fact through every witness.
e.
Advantages. An admission of fault should be considered only
when the issue is clear and the likelihood of prevailing on it is slight. The advantage of such a
step, of course, is that a basis is created for excluding from the jury unfavorable evidence with
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respect to which one is not likely to prevail in any event. An additional advantage is that a party
may gain credibility with the jury by admitting some fault.
3.
Requests for admissions.
a.
Rules. Under Texas Rule of Civil Procedure 198 and Federal Rule
of Civil Procedure 36, a party may request that his opponent admit the truth of any matter. If a
response is not timely served, the matter is deemed admitted. TEX. R. CIV. P. 198.2(c); see
Cont’l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 190 (Tex. App.—Dallas 2000, pet.
denied); Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 805 (Tex. App.—Houston [1st Dist.]
1999, pet. denied); City of San Antonio v. Bynum, 937 S.W.2d 596, 599 (Tex. App.—San
Antonio 1996, no writ).
b.
Effect. Unless the court permits withdrawal or amendment of the
admission, matters admitted are considered conclusively established, and an opponent’s contrary
evidence is inadmissible as it is no longer relevant to a matter which is in the trial. TEX. R. CIV.
P. 198.3; Marshall, 767 S.W.2d at 700; Cont’l Carbon, 27 S.W.3d at 190; Beutel v. Dallas Co.
Flood Control Dist., No. 1, 916 S.W.2d 685, 694 (Tex. App.—Waco 1996, writ denied). But an
objection must be made if evidence is put on contrary to the deemed admission, or the right to
rely on the deemed admission is waived. Marshall v. Vice, 767 S.W.2d 699, 700 (Tex. 1989);
Acevedo v. Comm’n For Lawyer Discipline, 131 S.W.3d 99, 104-05 (Tex. App.—San Antonio
2004, pet. denied).
c.
Use. Admissions may be used against the party making the
admission and may be used by all parties to the action, including parties joined after the
admissions were made.
B.
Motions for Sanctions—Evidence Excluded as a Penalty.
1.
Trend toward sanctions. In recent years, both state and federal courts,
acting under Texas Rule of Civil Procedure 215 and Federal Rule of Civil Procedure 37, have
been far more inclined to exclude evidence as a sanction for discovery abuse. Indeed, the Texas
Supreme Court has expressly encouraged the use of sanctions. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). But
sanctions for discovery abuse should be no more severe than necessary to promote compliance
with the rules. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004); TransAmerican Natural
Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). While not a strategy that ethically
should be pursued as a means of excluding evidence, when discovery abuse occurs, exclusion of
evidence may be considered in suggesting an appropriate remedy to the court.
2.
Striking pleadings. The most drastic sanctions include striking a party’s
pleadings or not allowing a party to present proof on any matter at issue. TEX. R. CIV. P.
215.2(b)(3)-(5); see, e.g., TransAmerican, 811 S.W.2d at 917 (setting out the test for sanctions
which render a default judgment against the offender); Lassiter v. Shavor, 824 S.W.2d 667, 669
(Tex. App.—Dallas 1992, no writ) (holding that a sufficiently egregious violation of an order in
limine may warrant striking the offending party’s pleadings as a sanction); Carr v. Harris
County, 745 S.W.2d 531, 532-33 (Tex. App.—Houston [1st Dist.] 1988, no writ) (affirming the
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district court’s decision to dismiss the plaintiff’s cause of action); Downer, 701 S.W.2d at 242-43
(affirming the district court’s decision to strike the defendant’s answer as a sanction). From an
evidentiary standpoint, the result of striking pleadings is to make all of a party’s evidence
irrelevant; the result of not allowing proof on an issue is a direct exclusion of evidence by the
court as a penalty for misconduct. One should note, however, that the Texas Supreme Court has
indicated that case determinative sanctions should be infrequently applied. TransAmerican, 811
S.W.2d at 919 (cautioning that extreme sanctions resulting in default judgment “ought to be the
exception, not the rule”); Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996) (per curiam) (reversing
the dismissal of plaintiff’s case as a sanction and holding that “the court may not use death
penalty sanctions to deny a litigant a decision on the merits of the case unless the court finds that
the sanctioned party’s conduct ‘justifies a presumption that its claims or defenses lack merit.’”);
Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849-50 (Tex. 1992) (holding that the death
penalty sanction was not appropriate for a single incident of discovery abuse and that such
sanction should only be used when the sanctioned party’s conduct justifies the presumption that
its claims or defenses lack merit).
3.
Excluding witnesses. Less sweeping, but sometimes no less devastating,
is the sanction of not allowing a party to call certain persons as witnesses. Under Texas Rules of
Civil Procedure 195.2 and 193.5, a party has an affirmative duty to supplement responses to
discovery to identify expert witnesses as soon as practicable and in no event less than 30 days
before the beginning of trial. The Texas Supreme Court has interpreted these rules to require
trial courts to exclude expert witnesses not properly designated, absent good cause. Alvarado v.
Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992) (“The rule [of exclusion] is mandatory, and
its sole sanction—exclusion of evidence—is automatic, unless there is good cause to excuse its
imposition.”); Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex. 1987); E.F.
Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex. 1987); but see Gee v. Liberty Mut. Fire
Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (emphasizing that the trial court retains the discretion
to determine whether a good cause exception exists). The Court has also extended the
requirement to fact witnesses who should have been identified in response to “persons with
knowledge of relevant facts” or other appropriate interrogatory. Henry S. Miller Co. v. Bynum,
836 S.W.2d 160, 162 (Tex. 1992); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986)
(per curiam). In addition, Texas Rule of Civil Procedure 193.6(a) states that, when a party fails
to respond or supplement his response to a discovery request, the trial court may exclude any
evidence that he was under a duty to provide, absent a showing of good cause or no unfair
surprise or prejudice to other parties. Federal Rule of Civil Procedure 26(e)(1) requires that
responses to questions about fact witnesses or experts be supplemented “at appropriate
intervals.” The federal district courts have the authority to impose sanctions on a disobedient
party by refusing to allow that party to introduce designated matters into evidence. FED. R. CIV.
P. 37(b)(2)(B); Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996).
C.
Proper Development of the Pre-trial Record.
1.
General. Without careful development of the record, many bases for
excluding evidence are not apparent. For example, if left undeveloped at a deposition, witness
testimony that “Smith stole the money from the cash register” may come in as admissible.
However, the result would be different if at the deposition the examiner asked:
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Q: “How do you know that?”
A: “Jones told me that he did.”
The testimony has now become inadmissible as objectionable hearsay.
2.
Hearsay and speculation. The need to develop the record properly in the
pre-trial phase of a case is especially important with respect to all objections based on hearsay or
general lack of personal knowledge. Good deposition examination can often result in a witness’s
admitting that his view, rather than representing a well-founded lay opinion, is essentially
speculation. Once that basis is created in the record, an objection based upon the witness’s lack
of personal knowledge becomes viable.
3.
“Taking on voir dire.” If the record is not properly developed before
trial, it can sometimes be developed during trial by taking the witness on voir dire to establish his
competence. While most frequently used to attempt to disqualify an opponent’s expert, this
technique is also useful to establish the basis for hearsay or speculation objections.
IV.
KEEPING THE EVIDENCE OUT.
Once a proper basis for excluding evidence under an evidentiary rule has been identified, it is
necessary to use one or more of the available procedural devices to secure from the court a ruling
that the proffered evidence is inadmissible. There are several such devices.
A.
Motion in Limine.
1.
General acceptance. While not provided for specifically in either the
Texas or Federal Rules of Procedure, a motion in limine is a widely accepted technique to
prevent poisoning a jury with highly prejudicial evidence. See generally J. Patrick Hazel, The
Motion in Limine: A Texas Proposal, 21 HOUS. L. REV. 919 (1984). Meaning “on or at the
threshold” or “preliminarily,” BLACK’S LAW DICTIONARY, 791 (7th ed. 1999), the motion in
limine must be filed and heard before the voir dire examination and must be in writing. See City
of Houston v. Watson, 376 S.W.2d 23, 33 (Tex. Civ. App.—Houston 1964, writ ref’d n.r.e.);
TEX. R. CIV. P. 21.
2.
Not a final ruling. Technically, rulings on motions in limine do not
constitute exclusions of evidence, but merely require that the party seeking to offer the evidence
approach the bench and demonstrate the existence of a basis for the admissibility of the evidence
before going into the matter in front of the jury. See Trevino v. Tex. Dept. of Protective &
Regulatory Servs., 893 S.W.2d 243, 249-50 (Tex. App.—Austin 1995, no writ) (observing that a
ruling on a motion in limine, which merely requires advance notice from the court before
submitting evidence to a jury, is never reversible error); Castaneda v. Tex. Dept. of Protective &
Regulatory Servs., 148 S.W.3d 509, 520 (Tex. App.—El Paso 2004, pet. denied) (same);
Methodist Hosps. v. Corporate Communicators, Inc., 806 S.W.2d 879, 883 (Tex. App.—Dallas
1991, writ denied) (noting that a motion in limine is not an appealable adverse ruling). Since a
ruling on a motion in limine is not a final ruling on the evidence, the movant must remain
vigilant, whether the motion is granted or denied. See Wal-Mart Stores, Inc. v. Davis, 979
S.W.2d 30, 40 (Tex. App.—Austin 1998, pet. denied) (finding that the party seeking to exclude
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the evidence filed motions in limine and pre-trial motions, but failed to object to the evidence
when it was offered and thus waived any complaint); Fort Worth Hotel Ltd. P’ship v. Enserch
Corp., 977 S.W.2d 746, 757 (Tex. App.—Fort Worth 1998, no pet.) (observing that a trial
court’s ruling on a motion in limine is merely a tentative ruling that prohibits a party from asking
a certain question or offering certain evidence in front of the jury without first approaching the
bench for a ruling); Davis v. Stallones, 750 S.W.2d 235, 237 (Tex. App.—Houston [1st Dist]
1987, no writ) (concluding that, even if a motion in limine is granted, the motion “is not the
predicate for complaint on appeal; the predicate is a proper, timely objection made when the
evidence is offered”).
a.
If denied. If the motion is denied, the party resisting the evidence
must nevertheless object at the time the evidence is offered. Otherwise, the point is waived.
Acord v. Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984); Sims v. State, 816 S.W.2d 502,
504 (Tex. App.—Houston [1st Dist.] 1991, writ denied). It is never reversible error for a court
merely to deny a motion in limine. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 866 (Tex.
1988); Crawford v. Deets, 828 S.W.2d 795, 797 (Tex. App.—Fort Worth 1992, writ denied).
b.
If granted. If a motion in limine is granted and the party seeking
to offer the evidence nevertheless introduces the matter in violation of the order, the party
resisting the evidence must object. Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986).
However, under such circumstances, the party resisting the evidence can probably expect a stern
admonition by the court of the party violating the order. See Burdick v. York Oil Co., 364
S.W.2d 766, 770 (Tex. Civ. App.—San Antonio 1963, writ ref’d n.r.e.) (opining that the
violation of a motion in limine, either directly or indirectly, “violates professional standards and
counsel’s duty to the court”).
3.
Uses. Motions in limine can be used for a number of purposes.
a.
Avoiding prejudice. The most common purpose is to exclude
evidence which is so prejudicial that its mere mention would taint the jury even if an objection
were made and sustained or a limiting instruction given. See Hartford Accident & Indem. Co. v.
McCardell, 369 S.W.2d 331, 335 (Tex. 1963); Dove v. Dir., State Employees Workers’ Comp.
Div., 857 S.W.2d 577, 580 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (stating that
“[v]iolations of an order on a motion in limine are incurable if instructions to the jury would not
eliminate the danger of prejudice”); Bell v. Hair, 832 S.W.2d 55, 56 (Tex. App.—Houston [14th
Dist.] 1992, writ denied). Prime examples are the availability of liability insurance, the existence
of a contingent fee contract, and a party’s criminal record.
b.
Resolving substantive law questions. Motions in limine also are
useful as a way to raise with the court substantive law questions which have not been briefed
previously. An example is a claim that the presence of a merger clause in a contract makes any
evidence of pre-execution promises or understandings irrelevant and therefore inadmissible.
When used in this way, the motion in limine effectively takes the place of a motion for partial
summary judgment.
c.
Controlling jury selection. Motions in limine can be useful in
reining in an opponent during the voir dire examination or opening statements. If one is aware of
HOU02:911957.6
8
a particular technique used by an opponent during voir dire of the jury which is considered
objectionable, it is helpful to secure an advance ruling from the trial court concerning that
technique rather than being required to object and make the argument during the voir dire
examination itself. See generally S.W. Elec. Power Co. v. Martin, 844 S.W.2d 229, 237 (Tex.
App.—Texarkana 1992, writ denied); Meuth v. Hartgrove, 811 S.W.2d 626, 628 (Tex. App.—
Austin 1990, writ denied). Alternatively, having raised the matter with the court makes an
objection during the voir dire more likely to be sustained.
d.
Pre-trial rulings. It is good practice to ask the court to exclude as
well any evidence regarding the fact that the motion in limine, or any other pre-trial motion, was
filed or the court’s rulings on any pretrial motions. Any pretrial claims of privilege should be
excluded under Texas Rule of Evidence 513(a) and (b).
PRACTICE POINTER NO. 1:
A motion in limine may alert an opponent to the existence of evidence of which he
was not otherwise aware. If the motion is denied, that evidence may be admitted against the
movant.
PRACTICE POINTER NO. 2:
Even if the motion in limine is not granted, filing it may give the movant an
opportunity he would not otherwise have to begin conditioning the court on an issue and to
secure a preliminary understanding of the court’s probable ruling on the matter.
PRACTICE POINTER NO. 3:
Since a ruling on a motion in limine is not a final ruling on the exclusion or
admission of evidence, there is always a risk that a motion will be granted but the evidence
nevertheless admitted later after the court becomes convinced that the appropriate basis for
admission exists or that the evidence otherwise is admissible. Under these circumstances, the
evidence will be presented without the movant’s having had the opportunity to condition the jury
on the evidence during voir dire. This serious risk makes it imperative that the movant fully
evaluate the strength of his evidence objection before including it in his motion in limine.
PRACTICE POINTER NO. 4:
If the case is to be tried by a judge other than the judge who is responsible for
pretrial matters, consideration may be given to filing the motion in limine with the pretrial judge,
who presumably is more familiar with the nuances of the case. This varies from traditional
practice, and also means that the motion in limine cannot be used to “educate” the trial judge.
It may have some benefit, however, if the issues are sufficiently complicated that the pretrial
judge, with his or her thorough understanding of the case, will be more likely to grant the
requested relief.
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9
B.
Motion to Exclude.
1.
General. A party may obtain a pretrial ruling on the admissibility of
evidence by filing and asking the court to rule on a motion to exclude. See TEX. R. CIV. P.
166(p); Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 583 (Tex. App.—Austin 2002, no pet.);
Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 204 (Tex. App.—Texarkana 2000, pet.
denied); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—
Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998).
2.
Ruling preserves error. Unlike rulings on motions in limine, rulings on
motions to exclude evidence are final rulings and preserve error for appeal. Malone, 916 S.W.2d
at 557; TEX. R. APP. P. 33.1a(2); Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 896-97 (Tex.
App.—Texarkana 2004, pet. denied) (holding error waived when party failed to secure ruling on
the record). Arguments for exclusion not made in a pretrial motion to the trial court are waived.
Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 143 (Tex. 2004) (held that motion to exclude
complaining of expert’s qualifications did not preserve argument that expert’s opinion was
unreliable).
PRACTICE POINTER NO. 5:
The court may revisit its pretrial rulings on admissibility at any time before or
during trial. In some cases, the offering party may be able to overcome a pretrial ruling
excluding evidence on grounds of relevance by presenting other evidence at trial. For example,
evidence deemed irrelevant before trial may become critical rebuttal evidence. Thus, it is
important for the party seeking the evidence’s exclusion to remain vigilant and prepared to deal
with the evidence at trial if the court reverses its prior ruling.
3.
Uses. While a motion to exclude may be used as a means of securing a
pretrial ruling on the admissibility of any evidence, it has become an indispensable means of
challenging expert testimony. Also, the motion is used often to exclude undisclosed witnesses or
evidence in lieu of a motion for sanctions.
a.
Excluding expert testimony. A party must challenge an expert’s
opinion testimony either before trial or when it is first offered. See Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 412 (Tex. 1998). The most effective means of doing so is filing a written
motion to exclude the expert’s testimony. See, e.g., U.S. v. Katz, 178 F.3d 368, 370 (5th Cir.
1999); Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 709 (Tex. 1997); E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The trial court acts as the
“gatekeeper,” and may exclude an expert’s opinion because the expert is unqualified to offer it,
or because the opinion itself is irrelevant or unreliable. Tex. R. Evid. 702, 703, 705; See
Robinson, 923 S.W.2d at 555-556; FED. R. EVID. 702; Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). To preserve error, the court’s order should unequivocally state that the
expert’s testimony will or will not be admitted at trial. See TEX. R. EVID. 103(a)(2); Huckaby, 20
S.W.3d at 205-06; FED. R. EVID. 103(a); Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th
Cir. 2002) (noting that the 2000 amendment to Rule 103(a) changed the circuit’s previous law
requiring an objection at trial to preserve error). The appellate court will review decisions to
admit or exclude expert testimony for abuse of discretion. Exxon Pipeline Co. v. Zwahr, 88
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10
S.W.3d 623, 629 (Tex. 2002); Brook v. Brook, 865 S.W.2d 166, 173 (Tex. App.—Corpus Christi
1993), aff'd, 881 S.W.2d 297 (Tex. 1994); Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180
(5th Cir. 1995).
b.
Excluding witnesses and other evidence not timely disclosed.
To exclude the testimony of a witness or other evidence not timely identified in response to a
discovery request, a party may file a pretrial motion to exclude. Clark v. Trailways, Inc., 774
S.W.2d 644, 647 (Tex. 1989) (objection to undisclosed witness should be made either by means
of a pretrial motion to exclude or when the witness is first offered at trial). In response, the trial
court must exclude the evidence or witness unless it determines that there was good cause for the
failure to disclose or that the opposing party will not be unfairly surprised or prejudiced. TEX. R.
CIV. P. 193.6(a). An appellate court will review the trial court’s decision to allow undisclosed
testimony or evidence for abuse of discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839,
840 (Tex. 1986); Miller v. Kennedy & Minshew, Prof’l Corp., 142 S.W.3d 325, 348 (Tex.
App.—Fort Worth 2003, pet. denied); Barrett, 95 F.3d at 380.
C.
Objection.
1.
General. The primary method for excluding evidence is objecting to it at
trial. Generally, the failure to object properly waives any error in the admission or failure to
exclude the evidence. See TEX. R. EVID. 103; Marshall v. Vice, 767 S.W.2d at 699, 700 (Tex.
1989); Rhea v. Williams, 802 S.W.2d 118, 120 (Tex. App.—Fort Worth 1991, writ ref’d n.r.e.)
(stating that a point of error “may only be raised on appeal if proper and specific objections were
made at trial”); Mayfield v. Employers Reinsurance Corp., 539 S.W.2d 398, 400 (Tex. Civ.
App.—Tyler 1976, writ ref’d n.r.e.) (concluding that the appellant’s overly general and
unspecific objection was insufficient to preserve error on appeal).
2.
Effect. An objection on grounds of relevance generally will force the
party offering the evidence to specify the factual theory which makes it admissible. 1 ROY R.
RAY, TEXAS PRACTICE: LAW OF EVIDENCE, § 21 (3d ed. 1980).
a.
Preservation of error. If a party’s statement regarding his theory
of relevancy is not sufficient to make the evidence admissible, he cannot complain of its
exclusion on appeal, even if it later is shown that the evidence was relevant on some other
theory. Worldwide Anesthesia Assocs., Inc. v. Bryan Anesthesia, Inc., 765 S.W.2d 445, 449
(Tex. App.—Houston [14th Dist.] 1988, no writ); Doerfler v. Espensen Co., 659 S.W.2d 929,
930-31 (Tex. App.—Corpus Christi 1983, no writ). In a multiple-party case, each party must
make its own evidentiary objections. Wolfe v. East Tex. Seed Co., 583 S.W.2d 481, 482 (Tex.
Civ. App.—Houston [1st Dist.] 1979, writ dism’d.). Further, a ruling on each objection must be
obtained to preserve error for appeal.
b.
Limitations. Evidence offered for an admissible purpose may not
be excluded merely because it is inadmissible for some other purpose. However, a limiting
instruction may be appropriate. See discussion infra parts IV(c).
3.
Timing. An objection should be made as soon as the ground for an
objection becomes apparent, which is usually after the question and before the answer. See
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Miles, 922 S.W.2d at 591 (holding that, where the jury had already heard the testimony when it
was objected to, the objection was waived because the objection must be made at the time
evidence is offered), aff’d in part and rev’d in part on other grounds, 967 S.W.2d 377 (Tex.
1998); New Hampshire Fire Ins. Co. v. Plainsman Elevators, Inc., 371 S.W.2d 68, 72 (Tex. Civ.
App.—Amarillo 1963, writ ref’d n.r.e.) (objection to evidence unavailing when similar evidence
admitted previously without objection). However, sometimes the objection only becomes
apparent with the answer. This is particularly true with hearsay and speculation objections. In
such cases, a motion to strike with an instruction to disregard the evidence is probably necessary.
Farm Servs., Inc. v. Gonzales, 756 S.W.2d 747, 750 (Tex. App.—Corpus Christi 1988, writ
denied). Likewise, a motion to strike with a limiting instruction should be requested if the
ground for objection only becomes apparent later in the trial. Owens-Corning Fiberglass Corp.
v. Keeton, 922 S.W.2d 658, 661-62 (Tex. App.—Austin 1996, writ denied); Biard Oil Co. v. St.
Louis S.W. Ry. Co., 522 S.W.2d 588, 590-91 (Tex. Civ. App.—Tyler 1975, no writ).
4.
Types of objections.
a.
General objections.
(1)
Definition. A general objection merely challenges the
admissibility of evidence without assigning a specific reason. For example, “I object! The
testimony is incompetent, irrelevant, and immaterial.”
(2)
Uselessness. Non-specific general objections are not likely
to be sustained by the judge and do not suffice to preserve any error. TEX. R. EVID. 103(a)(1);
TEX. R. APP. P. 33.1(a)(1)(A); Moon v. Spring Creek Apartments, 11 S.W.3d 427, 432 (Tex.
App.—Texarkana 2000, no pet.); Sciarrilla v. Osborne, 946 S.W.2d 919, 924 (Tex. App.—
Beaumont 1997, pet. denied); Boarder to Boarder Trucking, Inc. v. Mondi, Inc., 831 S.W.2d
495, 497 (Tex. App.—Corpus Christi 1992, no writ).
(3)
Appeal, if overruled. The objecting party may not
complain on appeal on the basis of a valid ground which he did not urge at the time of objection.
Matter of T.R.S., 931 S.W.2d 756, 758 (Tex. App.—Waco 1996, no writ.); PIC Realty Corp. v.
Southfield Farms, Inc., 832 S.W.2d 610, 614-15 (Tex. App.—Corpus Christi 1992, no writ);
Garza v. Garza, 718 S.W.2d 825, 826-27 (Tex. App.—Corpus Christi 1986, no writ); Pfeffer v.
Southern Tex. Laborers’ Pension Trust Fund, 679 S.W.2d 691, 693 (Tex. App.—Houston [1st
Dist.] 1984, writ ref’d n.r.e.). There are two exceptions to this general rule, both of which are
narrow:
(a)
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Exception. If the specific ground for exclusion was
apparent to the judge and opposing counsel from the
context. TEX. R. EVID. 103(a)(1); Adams v. Great
American Lloyd’s Ins. Co., 891 S.W.2d 769, 771-72
(Tex. App.—Austin 1995, no writ); Dyer v. Shafer,
Gilliland, Davis, McCollum & Ashley, Inc., 779
S.W.2d 474, 477 (Tex. App.—El Paso 1989, writ
denied); Ramirez v. Johnson, 601 S.W.2d 149, 151
12
(Tex. Civ. App.—San Antonio 1980, writ ref’d
n.r.e.).
(b)
Exception. If the evidence is not admissible for
any purpose. Mueller v. Central Power & Light
Co., 403 S.W.2d 901, 904 (Tex. Civ. App.—Corpus
Christi 1966, no writ); Bridges v. City of
Richardson, 354 S.W.2d 366, 368 (Tex. 1962).
(4)
Appeal, if sustained. In the unlikely event that the general
objection is sustained at trial, it will be upheld on appeal if there is any valid ground for the
exclusion of the evidence. The appellate court assumes that the trial judge knew the correct
reason and based his ruling on that ground. General Accident Fire & Life Assur. Corp. v. Camp,
348 S.W.2d 782, 784 (Tex. App.—Houston [1st Dist.] 1961, no writ); see 1 ROY R. RAY, TEXAS
PRACTICE: LAW OF EVIDENCE, § 25 (3d ed. 1980).
b.
Specific objections.
(1)
Definition. A specific objection states the portion of the
question or answer which is objectionable and the rule of evidence which will be violated by its
admission. Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm’n, 809 S.W.2d 268, 272 (Tex.
App.—Austin 1991, writ denied).
(2)
Reasons. Appellate courts require specific objections in
the trial court for two reasons: (1) specificity enables the trial judge to understand the precise
issue and to make an intelligent ruling; and, (2) it allows the offering party the opportunity to
correct the defect. TEX. R. EVID. 103(a)(1); Kindle v. Wood Co. Elec. Co-op, Inc., 151 S.W.3d
206, 210 (Tex. App.—Tyler 2004, pet. denied); In re N.C.M., 66 S.W.3d 417, 420 (Tex. App.—
Tyler 2001, no pet.); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 434 (Tex.
App.—San Antonio 1993, writ denied).
(3)
Appeal, if overruled. If the specific objection was
overruled properly at trial, that ruling will be upheld even though there were other valid grounds
for exclusion of the evidence on which the party resisting the evidence could have based an
objection. Dobb v. Perry, 145 S.W.2d 1103, 1105 (Tex. Civ. App.—Eastland 1940, no writ).
(4)
Appeal, if sustained. If the specific objection was
sustained improperly at trial, the appellate court will uphold a trial court’s decision to sustain the
untenable specific objection if there is any other reason for doing so, even if the reason was not
urged below. State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989); MCCORMICK
ON EVIDENCE § 52, at 229 (5th ed. 1999).
(5)
“Door opening” not waiver. If a party introduces
inadmissible testimony without objection, he does not waive his right to object to inadmissible
rebuttal evidence on that point. State v. Meyer, 391 S.W.2d 471, 482 (Tex. Civ. App.—Corpus
Christi 1965), aff’d, 403 S.W.2d 366 (Tex. 1966). However, if the situation is obvious, a jury
may believe that the second objection is unfair and that counsel is taking advantage of the
situation to hide damaging evidence. Moreover, many trial judges are inclined to find a waiver
HOU02:911957.6
13
in response to a “door opening” argument, especially if the issue is one on which the lawyers
have been specifically cautioned.
(6)
Defending not waiver. If inadmissible evidence is
erroneously admitted over proper objection, a party may cross-examine the witness about the
same matter without waiver. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex. 1986) (op. on
reh’g); Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 674 (Tex. App.—
Amarillo 1991, writ denied). The objecting party is not left to take his chances on appeal, but
may introduce other and different evidence to rebut or explain the inadmissible evidence without
waiver. Id.; State v. Chavers, 454 S.W.2d 395, 398 (Tex. 1970).
PRACTICE POINTER NO. 6:
While almost every trial judge will admonish counsel against argumentative or
“speaking” objections, it is good practice to phrase an objection in such a way that the jury can
understand why it is made, at least the first time or two you make it. For example, rather than
merely objecting that the question is “leading,” say, “Your Honor, I object. Counsel is leading
the witness and suggesting the answer by the way he asks the question.” Or, “Your Honor, I
object as hearsay. The question asks the witness to repeat what some one else said, and that
person is not available for cross-examination.”
PRACTICE POINTER NO. 7:
One of the most underused objections is that testimony is repetitious. Judges, and
probably juries, almost invariably get the point before the lawyer seeking to make the point is
willing to quit presenting evidence on the point. A well-timed objection that testimony is
repetitious may well be granted in a no-nonsense court with the result that your opponent may be
deprived of the opportunity to prove some of his “good stuff” before the jury.
c.
Repeated objections.
(1)
General. Generally speaking, a party must renew an
objection to evidence which was previously excluded each time his opponent seeks to offer the
evidence. However, if your opponent persists in attempting to offer evidence which the court
has excluded, and you continue to object, an admonishment of your opponent by the court
becomes likely.
(2)
No waiver overruled. If the first objection is overruled,
and properly preserved in the record, it is well-settled that subsequent objections are not
necessary. See 1 ROY R. RAY, TEXAS PRACTICE: LAW OF EVIDENCE § 27 (3d ed. 1980) (a party
is entitled to assume a similar ruling and need not make further objections); Barstow v. State, 742
S.W.2d 495, 503 (Tex. App.—Austin 1987, writ denied) (“Having obtained the trial court’s
express ruling on [the defendant’s] hearsay objection, it was not necessary that [the defendant]
repeat the same objection before the jury.”). However, some courts have held that, if the party
resisting the evidence fails to object to similar evidence offered through other witnesses, then the
objection is waived. See Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 69 (Tex. App.—
Waco 1995, writ denied); Chevron U.S.A. Inc. v. Lara, 786 S.W.2d 48, 51-52 (Tex. App.—El
Paso 1990, writ denied); Payne v. Vinson, 761 S.W.2d 474, 478 (Tex. App.—Austin 1988, no
HOU02:911957.6
14
writ); see also City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth
1988, writ denied) (suggesting distinction that depends upon whether evidence elicited from
same witness). The safe approach is to make the objection each time, or to ask the judge for a
“running objection.” See discussion infra part IV(B)(4)(d).
(3)
Possible waiver once admitted. If evidence is originally
introduced and admitted without objection, there is a split of authority as to whether a party has
waived his right to raise an objection to additional evidence of the same facts. Compare Port
Term. R.R. Ass’n v. Richardson, 808 S.W.2d 501, 510 (Tex. App.—Houston [14th Dist.] 1991,
writ denied) (objection waived); Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585,
587 (Tex. App.—Eastland 1990, writ denied) (per curiam) (same); John Deere Co. v. May, 773
S.W.2d 369, 376 (Tex. App.—Waco 1989, writ denied) (same); Badger v. Symon, 661 S.W.2d
163, 164 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.) (same) with Gilmer v. Graham,
52 S.W.2d 263, 265 (Tex. Comm’n App. 1932, holding approved), disapproved on other
grounds, Newlin v. Smith, 150 S.W.2d 233 (Tex. 1941) (objection not waived). As a practical
matter, any such ruling will probably be harmless error since the evidence will be cumulative. In
addition, counsel runs the risk of highlighting the prior testimony for the fact finder.
d.
Running objections. While occasionally appropriate, once the
court has ruled clearly that an objection to a given line of questioning will be overruled, “running
objections” should be used only cautiously. See Commerce, Crowdus & Canton Ltd. v. DKS
Constr., Inc., 776 S.W.2d 615, 620 (Tex. App.—Dallas 1989, no writ) (approving of the
effectiveness of a running objection “where trial is to the court and an objection is clearly made
to the judge”). Whenever the questioner shifts at all to a different line of questioning or asks
questions which are objectionable for some new and different reason, a new or renewed
objection is necessary to preserve error. Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-91
(Tex. App.—Waco 2000, pet. denied). Many evidence points have been waived as a result of
too much reliance on running objections. See, e.g., General Motors Corp. v. Grizzle, 642
S.W.2d 837, 846 (Tex. App.—Waco 1982, writ dism’d). On the other hand, the Texas Supreme
Court recently has recognized that running objections, if sufficiently specific, can preserve error.
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (error in admitting
unidentified eyewitness’s hearsay testimony preserved by running objection even though no
objection to television reporter’s recount of eyewitness interview).
D.
Limiting Instruction.
1.
General. If evidence is admissible as to one party but not as to another, or
for one purpose but not for another, both state and federal rules allow the parties seeking to limit
the evidence to request an instruction from the court as to the limitation on the way the evidence
can be used by the jury. TEX. R. EVID. 105; FED. R. EVID. 105. Evidence admitted for a limited
purpose without a request for a limiting instruction may be used by the jury for any purpose.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Aluminum Co. of Am.
v. Alm, 785 S.W.2d 137, 139 (Tex. 1990); Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d
361, 366 (Tex. 1987).
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15
a.
b.
Limitation as to party.
(1)
Example. An admission by a party is admissible against
the party as it is not hearsay, TEX. R. EVID. 801(e)(2), FED.
R. EVID. 801(d)(2), but a limiting instruction would be
appropriate concerning its hearsay character as to other
parties. See Luvual v. Henke & Pillot, 366 S.W.2d 831,
839 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.)
(upholding district court’s exclusion of a statement
admissible as to one party, but not as to others, where the
offer of evidence was general).
(2)
Example. An interrogatory answer is admissible against
the answering party but not against other parties. TEX. R.
CIV. P. 197.3; Buck v. Blum, 130 S.W.3d 285, 290 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). A limiting
instruction as to its use against the non-answering parties is
appropriate.
Limitation as to purpose.
(1)
Example. Evidence of subsequent remedial measures is
admissible to prove feasibility but not to prove negligence.
TEX. R. EVID. 407(a); Brookshire Bros., Inc. v. Lewis, 911
S.W.2d 791, 795-96 (Tex. App.—Tyler 1995, writ denied);
Russell v. Dunn Equip., Inc., 712 S.W.2d 542, 546-47 (Tex.
App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); FED. R.
EVID. 407.
(2)
Example. Out-of-court statements are admissible to prove
notice but not to prove the truth of the statement. See TEX.
R. EVID. 801(d); FED. R. EVID. 801(c); McCraw v. Maris,
828 S.W.2d 756, 757 (Tex. 1992) (“Out of court statements
are not hearsay if offered for a purpose other than to prove
the truth of the matter asserted.”). In both instances, a
limitation as to the purposes to which the evidence may be
put is appropriate.
2.
Texas rule. Unlike Federal Rule of Evidence 105, Texas Rule of
Evidence 105(a) provides that if a party opposes the evidence but fails to request a limiting
instruction, any objection based on the inadmissible use is waived. Conversely, if a general offer
is made and an objection to it sustained, the proponent of the evidence may not base a complaint
on appeal on the admissible purpose unless a limited offer is made. TEX. R. EVID. 105(b); see
Aluminum Co. of Am., 785 S.W.2d at 139. No such provision exists under Federal Rule 105.
HOU02:911957.6
16
PRACTICE POINTER NO. 8:
While most juries will have some difficulty understanding a limiting instruction,
the party resisting the evidence is usually better off with the limiting instruction than without.
Among other things, the limiting instruction provides a solid basis for arguing what the evidence
proves and what it does not during closing argument.
E.
Motion to Strike with Instruction to Disregard.
1.
Use. If it becomes apparent that evidence is inadmissible only after the
evidence has been placed before the jury, the appropriate procedural device is a motion to strike
the evidence with an instruction from the court that the jury should disregard the evidence for all
purposes. TEX. R. EVID. 103(a)(1); FED. R. EVID. 103(a)(1).
a.
After inadmissible answer. The most common example is when
the inadmissible nature of the evidence becomes apparent only when the witness answers the
question. The answer may be nonresponsive, it may contain hearsay, etc. A motion with a
request for instruction is also appropriate when a witness answers before an objection to the
question can be made or answers even though the court has sustained a proper objection. If no
motion is made, the evidence is before the jury for whatever it is worth because a failure to
request a motion to strike and instruction to disregard constitutes waiver of the objection.
Heidelberg v. State, 36 S.W.3d 668, 674 (Tex. App.—Houston [14th Dist.] 2001, no pet.);
Prudential Ins. Co. of Am. v. Uribe, 595 S.W.2d 554, 564-65 (Tex. Civ. App.—San Antonio
1979, writ ref’d n.r.e.); City of Denton v. Mathes, 528 S.W.2d 625, 634 (Tex. Civ. App.—Fort
Worth 1975, writ ref’d n.r.e.).
b.
When admissible evidence becomes inadmissible.
Less
common, and usually more serious, is when later evidence, or the lack thereof, demonstrates that
previously admitted evidence is in fact inadmissible. This often occurs when a party offering
evidence initially represents to the court that he will make the proper predicate or “connect the
evidence up” at a later time and then fails to do so. See, e.g., Owens-Corning Fiberglas Corp. v.
Keeton, 922 S.W.2d 658, 661 (Tex. App.—Austin 1996, writ denied) (observing that burden is
on opposing party to renew objection by moving to strike the evidence when evidence is
admitted contingent on a condition that is not fulfilled by the close of the opponent’s case).
Later developments in the trial can also occasionally give rise to relevance objections that were
not apparent earlier. While a motion to strike with a jury instruction should be considered in
these instances, the prejudicial effect of the improperly admitted evidence, together with the time
the jury has been allowed to consider it without any instruction, may require a motion for
mistrial. See, e.g., DeLeon v. Louder, 743 S.W.2d 357, 362 (Tex. App.—Amarillo 1987, writ
denied) (finding that the erroneous admission of an improper legal opinion constituted harmful
error).
c.
Need. If no motion is made, the evidence is before the jury for
whatever it is worth, even though an objection was made and sustained.
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PRACTICE POINTER NO. 9:
A motion to strike and instruction to disregard may draw attention to unfavorable
facts that the jury may have overlooked in the ordinary course of the trial. Such a motion is most
effective when there is a strong likelihood that the jury will attach importance to the
objectionable evidence and return an unfavorable verdict.
F.
Mistrial. The ultimate device for excluding evidence is to move for a mistrial
and thereby seek not only to exclude evidence but to have the jury discharged and a new panel
brought in. Obviously, the prejudicial effect of the wrongly admitted inadmissible evidence
must be substantial if this device is to be used. See TEX. R. APP. P. 44.1; see also, e.g., Lewis v.
United Parcel Serv., Inc., 175 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied) (affirming the district court’s decision overruling the appellant’s motion for mistrial
because he failed to show that such error was reasonably calculated to cause and did cause the
rendition of an improper judgment). If extremely damaging evidence is placed before the jury,
however, the party prejudiced thereby must consider a mistrial motion if his client is to be
represented properly. See, e.g., Hur v. City of Mesquite, 893 S.W.2d 227, 231 (Tex. App.—
Amarillo 1995, writ denied) (stating that the party prejudiced by improper evidence must make a
motion for mistrial even when the court sustains the objection and instructs the jury to disregard
the evidence); DeLeon v. Louder, 743 S.W.2d 357, 362 (Tex. App.—Amarillo 1987, writ denied)
(holding that the prejudicial effect of an improper legal conclusion in an officer’s testimony
warranted a mistrial); but see Condra Funeral Home v. Rollin, 314 S.W.2d 277, 279-80 (Tex.
1958) (concluding that it was not necessary for plaintiff to move for a mistrial after the trial court
sustained the objection and instructed the jury to disregard the evidence).
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