Error Preservation in Texas Civil Cases, March 17, 2018

Dear All:

Table of Contents

This was sort of a light two weeks.  Perhaps chalk that up to Spring Break.

When you timely object to the evidence and get a ruling, you have preserved the objection you made:


  • Evidence: “Nugent and CAO, Inc. timely objected to the introduction of evidence of Nugent’s prior conviction. When the estate offered evidence of Nugent’s prior conviction at trial, appellants’ counsel immediately objected on the grounds that the conviction was “more than ten years old and cannot be used as evidence.”The trial court [*25] permitted the estate to admit evidence of Nugent’s 2004 conviction and to engage in limited questioning of witnesses on this issue. These actions adequately preserved the evidentiary issue for appeal. See Tex. R. App. P. 33.1;” Nugent v. Estate of Ellickson, No. 14-16-00839-CV, 2018 Tex. App. LEXIS 1735, at *24-25 (App.—Houston [14th Dist.] Mar. 8, 2018)
  • Dismissal for Want of Prosecution: “We first address A.J.’s Steel’s contention that mandamus relief should be denied because relators did not argue that the case should be dismissed due to “abandonment” to the trial court and that they raise this argument for the first time in this original proceeding. A.J.’s Steel thus argues that this argument for dismissal was not preserved. See generally Tex. R. App. P. 33.1; . . . .A.J.’s Steel contends that the trial court originally dismissed the case because its counsel failed to appear at the dismissal hearing and because the trial court [*16] accepted its argument that the absence was not intentional or the result of conscious indifference, therefore reinstating the case. We disagree with A.J.’s Steel’s view of the record. Relators repeatedly argued to the trial court that the case was “not disposed of within [the] time standards promulgated by the Supreme Court” and invoked the trial court’s inherent authority to dismiss the case. SeeTex. R. Civ. P. 165a(2); Villarreal, 994 S.W.2d at 630. Relators expressly made this argument on September 10, 2015 in their original motion to dismiss, on August 28, 2017 in their response to A.J.’s Steel’s motion to reconsider, and on October 11, 2017 in oral argument at the hearing on A.J.’s Steel’s motion to reconsider. In fact, the thrust of counsel for relators’ argument at the hearing was the failure to prosecute the case.Accordingly, our review of this matter is not limited to grounds for dismissal pertaining to A.J.’s Steel’s failure to appear at the dismissal hearing. SeeTex. R. Civ. P. 165a(1).” In re Trane U.S. Inc., No. 13-18-00008-CV, 2018 Tex. App. LEXIS 1682, at *15-16 (App.—Corpus Christi Mar. 6, 2018)

You have to comply with other pertinent rules:


  • Evidence: “In her second appellate issue, Debra asserts that the trial court erred in denying Debra’s request that the amicus attorney testify as a fact witness. An amicus attorney appointed to assist the court has various duties as provided for in Section 107.003 of the Texas Family Code. See Tex. Fam. Code Ann. § 107.003 (West Supp. 2017). However, section 107.007(a)(4) of the Texas Family Code provides that an amicus attorney is prohibited from testifying in court except as otherwise authorized by Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. Id. § 107.007(a)(4) (West 2014). We find nothing in the record before us indicating that the Rule 3.08 exception applies. At trial and on appeal, Debra did not argue that Rule 3.08 authorized the amicus attorney to testify in the present case, and Debra made no offer of proof at trial as to what she believed the amicus attorney would have testified to or how the trial court’s failure to call the amicus attorney to testify adversely affected her case. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013); Tex. R. App. P. 33.1.” Jackson v. Jackson, No. 09-16-00189-CV, 2018 Tex. App. LEXIS 1908, at *2 (App.—Beaumont Mar. 15, 2018)

Your complaint must be timely–and sometimes accompanied by a running objection or recurring objections:


  • Evidence: “Initially, we observe that J.H. failed to preserve error on the admission of this evidence. Although counsel objected when the Department first asked J.H. if he had been placed on deferred adjudication for aggravated sexual assault in 1999, counsel did not obtain a running objection or subsequently object when the Department later offered into evidence the documents pertaining to that offense, including a copy of the indictment, the 1999 judgment placing J.H. on deferred adjudication, and the 2001 judgment adjudicating guilt. Instead, counsel stated that he had “no objection” when the district court admitted the exhibit into evidence. Accordingly, the error, if any, in admitting this evidence was ultimately waived. n. 12 n. 12 See Tex. R. App. P. 33.1(a); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007); see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection.”).” B. & J. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00658-CV, 2018 Tex. App. LEXIS 1790, at *8 n.12 (App.—Austin Mar. 9, 2018)
  • Jury Charge: “. . . before the jury charge was submitted, Mara asserted neither a due process complaint nor any complaint that Omar’s best interest should be decided by a separate question. Instead, these arguments were made for the first time in a motion for new trial. However, “an objection to a jury charge in a motion for new trial is untimely.” In re N.A.L., No. 04-13-00159-CV, 2013 WL 4500633, at *4 (Tex. App.—San Antonio Aug. 21, 2013, no pet.) (mem. op.) (citing Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied)). Thus, “failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.” In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (citing Tex. R. App. P. 33.1; Tex. R. Civ. P. 274). Because Mara’s due process argument was not raised prior to the submission of the trial court’s charge, we cannot review it. See id. at 348-55 (reversing a court of appeals’ decision that the trial court’s broad form submission violated a parent’s due process right to have at least ten jurors agree on statutory grounds supporting termination because the matter was not raised at trial).” O.T., No. 06-17-00114-CV, 2018 Tex. App. LEXIS 1791, at *4-6 (App.—Texarkana Mar. 9, 2018)

There were eight cases which held parties did not preserve error because they did not raise their complaints at trial.  I won’t burden this report with those.

I hope this helps. Y’all take care.


Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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