 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Marathon Corp. v. Pitzner8/2/2001
after Pitzner's accident.
1. Standard of Review
The admission and exclusion of evidence is committed to the trial court's sound discretion. Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses it discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. Brownsville, 897 S.W.2d at 753; McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); King v. Skelly, 452 S.W.2d 691, 696 (Tex. 1970). A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Able, 35 S.W.2d at 617; Brownsville, 897 S.W.2d at 753-54; GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex. App.-Houston [1st Dist.] 1991, writ denied). In determining whether the case turns on the evidence in question, and whether the exclusion or admission of the evidence probably resulted in the rendition of an improper judgment, a court must review the entire record. Able, 35 S.W.3d at 617; Brownsville, 897 S.W.2d at 754; Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989); Gee, 765 S.W.2d at 396.
2. Exclusion of Cross-examination Concerning the OSHA Citation
Appellee filed a motion in limine asking that no evidence be adduced regarding the OSHA citation and penalty assessed against Hull after Pitzner's accident for failing to provide Pitzner with a safety belt. At the hearing on appellee's motion in limine, the trial judge stated that he would grant the motion for purposes of voir dire, but that he would reconsider the issue when the evidence was presented. Later, when Marathon reurged its motion, the trial court stated, "I'm going to disallow the evidence on the citation itself, but you can discuss the OSHA regulations and what they require, but not the citation." At that time, Marathon's counsel stated repeatedly that he needed to make a bill of exception, but the trial court told him to do it later, and that he could "do that without going into the citation."
Appellee asserts that Marathon has waived this issue by failing to make an offer of proof. However, the rules of evidence provide that:
rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. [an objection is properly made,] and
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a).
The offer of proof should be made as soon as practicable, but before the charge is read to the jury. Tex. R. Evid. 103(a). To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception. Tex. R. App. P. 33.2. However, neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal. Tex. R. App. P. 33.1(c).
Generally, the failure to make an offer of proof containing a summary of the excluded witness's intended testimony waives any complaint about the exclusion of evidence on appeal. See Ludlow v. De
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|