Don’t Do This


Preservation of evidentiary error in a Texas criminal trial in a nutshell:

If a trial court hears objections to proffered evidence outside the jury’s presence and rules that the evidence is admissible, the objections are deemed to apply to the evidence when it is admitted before the jury without the necessity of repeating the objections. Tex. R. Evid. 103(a)(1); Geuder v. State , 115 S.W.3d 11, 13–14 (Tex. Crim. App. 2003); Ethington v. State , 819 S.W.2d 854, 859 (Tex. Crim. App. 1991). If the party did not preserve error through an objection outside the jury’s presence, the party must continue to object each time the objectionable evidence is offered or make a running objection and get a ruling. Martinez v. State , 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington , 819 S.W.2d at 859); Fuentes v. State , 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied , 528 U.S. 1026 (1999). Moreover, a trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule applies whether the other evidence was introduced by the defendant or the State. Id .

Immediately thereafter, a smorgasbord of waiver:

We hold that Appellant failed to preserve error concerning the November 2007 incident. At a hearing outside the jury’s presence, the trial court sustained Appellant’s objection to evidence of the November 2007 incident. Nevertheless, the State later questioned Appellant about the November 2007 incident, and Appellant did not object. Because the trial court had sustained his initial objection to the November 2007 incident instead of overruling it, Appellant was required to object again when the State questioned him about it in front of the jury. Cf. Tex. R. Evid. 103(a)(1) (providing that objection outside jury’s presence preserves error if the trial court “rules that such evidence be admitted”). Because Appellant did not object when questioned in front of the jury about the November 2007 incident, he failed to preserve his complaint for appellate review. We overrule this portion of Appellant’s first point.

Appellant also failed to preserve his complaint about the December 5, 2008 incident at Mary’s apartment. Appellant objected at a hearing outside the jury’s presence to any evidence of this incident, and the trial court overruled the objection. However, Appellant himself admitted evidence of this incident by playing the portion of his videotaped interview in which he and Detective Chapman discussed the incident; the State had elected not to play that portion of the videotaped interview for the jury. See Leday, 983 S.W.2d at 718. We therefore overrule this portion of Appellant’s first point.

We also hold that the portion of Appellant’s first point complaining of the evidence of his and Mary’s stormy relationship is inadequately briefed. Although Appellant cites to the portion of the record containing his objection outside the jury’s presence to evidence of his and Mary’s relationship, he does not cite to any portion of the record where any such evidence was actually admitted, and we find none other than the November 2007 and December 5, 2008 incidents (discussed above) for which Appellant failed to preserve error. See Tex. R. App. P. 38.1(i) (requiring briefs to contain appropriate citations to the record); Akin v. State , No. 02-08-00062-CR, 2009 WL 806902, at *1–2 (Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op., not designated for publication) (overruling appellate points for failure to include citations to authority and to the appellate record). We overrule this portion of Appellant’s first point.

Ouch.

(There’s nothing unusual about this, of course: trial lawyers fail to preserve error all the time. Properly preserved error may be the exception, rather than the rule.)


One response to “Don’t Do This”

  1. Unfortunately that sums up almost every appeal I’ve ever encountered—but of course don’t even THINK of raising IAC on direct appeal lest you be chastised or some habeas court ruling res judicata to the IAC issue–I’ve come to the conclusion that appellate courts spend way more time writing about how the error was not preserved than just addressing the merits of the law–it used to drive me insane but now I just shrug my shoulders and come to expect it. Gatekeepers to the law indeed

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