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Perez v. Lopez3/7/2002
of Discretion Standard of Review
"A [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex. App.--El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. See Downer, 701 S.W.2d at 242 (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)); Amador, 855 S.W.2d at 133. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Downer, 701 S.W.2d at 242 (citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965)). A mere error of judgment is not an abuse of discretion. See Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).
1. Evidentiary Error
In Issue No. Three, Appellant argues that the trial court erred in sustaining objections to questions to Appellee Albert Lopez regarding his knowledge of risks posed by providing an operational firearm to a minor. Appellees assert that Appellant has waived any error by failing to make an offer of proof showing how Albert Lopez would have answered the proffered questions and that this Court cannot determine whether the exclusion of the evidence rises to the level of harmful error. We agree.
To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. See Johnson v. Garza, 884 S.W.2d 831, 834 (Tex. App.--Austin 1994, writ denied). While the reviewing court may be able to discern from the record the nature of the evidence and the propriety of the trial court's ruling, without an offer of proof, we can never determine whether exclusion of the evidence was harmful. Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal. See Weng Enterprises, Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 221 (Tex. App.--Houston [1st Dist.] 1992, no writ); Tex. R. Evid. 103. Compliance with the evidentiary rules on an offer of proof preserves error for appellate review. See Tex. R. App. P. 33.1(a)(1)(B). The reason for the offer of proof is explained in Anderson v. Higdon, 695 S.W.2d 320 (Tex. App.--Waco 1985, writ ref'd n.r.e.):
When tendered evidence is excluded, whether testimony of one's own witness on direct examination or testimony of the opponent's witness on cross-examination, in order to later complain it is necessary for the complainant to make an offer of proof on a bill of exception to show what the witness' testimony would have been. Otherwise, there is nothing before the appellate court to show reversible error in the trial court's ruling. Id. at 325; see also, Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 511 (Tex. App.--El Paso 1999, no pet.).
While Counsel for Appellant stated what she would have asked Lopez, she never made an offer of proof showing how he would have answered the proffered questions. Without those answers, we cannot determine whether the excluded evidence can be the basis for reve
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