holding that a motion to exclude expert witness based on lack of qualifications had same effect as a running objection: ″it eliminates the need to repeat the objection each time evidence is admitted on a topic″
How later courts described this case
- holding that a motion to exclude expert witness based on lack of qualifications had same effect as a running objection: ″it eliminates the need to repeat the objection each time evidence is admitted on a topic″
- holding trial court properly overruled objection to police report that contained admissible evidence because party did not specifically identify objectionable portions
- holding that by affirmatively stating "no objection” when previously objected to evidence was offered, appellant waived complaint
- holding that the jury was free to believe the witnesses’ trial testimony or the witnesses’ contradictory deposition testimony
Written by the judges who cited it.
The opinion
TERRY JENNINGS, Justice,
concurring.
I join the majority opinion except in its discussion of the first issue of appellant, Charlotte Austin. I would hold that Austin has preserved for our review this issue, in which she contends that “the trial court erred when it allowed Deputy Jordan to give his opinion about the location of the point of impact where the accident occurred.”
In order to preserve a complaint for appellate review, a party must, by a timely request, objection, or motion, make her complaint, stating the grounds for the ruling sought, to the trial court with “sufficient specificity to make the trial court aware of the complaint.” Tex.R.App. P. 33.1(a)(1)(A). However, it is not necessary to make such an exacting statement of the grounds for the ruling sought if “the specific grounds were apparent from the context.” Id.
It is true, as emphasized by the majority, that Austin, in her “Motion to Exclude Expert Testimony From Deputy Henry K. Jordan,” did not specifically ask the trial court to exclude any statements made by Jordan other than his “testimony.” However, in her motion, Austin argued that Jordan “is not qualified to render an expert opinion regarding an accident” and his “opinions are not reliable.” Moreover, at the hearing on her motion, Austin’s counsel made it clear to the trial court that she was seeking to exclude any “opinion” of Jordan on the issue of “point of impact.” As noted by her counsel at the hearing, “[W]e challenge ... that this witness is not competent to form an opinion, and particularly the only opinion that we’re talking about is point of impact.”
I agree with the majority that to preserve error regarding the erroneous admission into evidence of an expert’s opinions, a party must make it clear to the trial court that she is objecting to all evidence of the expert’s opinions. Here, however, it appears that Austin mei’ely conflated the word “testimony” with the word “evidence,” which is not uncommon. Given the gist of Austin’s arguments, made in her motion and at the hearing, the trial court was in a position to be well aware that she was requesting the exclusion of any evidence of Jordan’s point-of-impact opinion, not just his opinion “testimony,” and to make an informed ruling on her request. Given the context, I would hold that Austin has preserved her first issue for our review.
Nevertheless, even assuming that the trial court erred in admitting into evidence Deputy Jordan’s opinion on the issue of “point of impact,” Austin has not established that Jordan’s opinion evidence probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1). A review of the entire record reveals that other witnesses testified about the point of impact in accord with Jordan and, importantly, counsel for Weems did not emphasize Jordan’s opinion to the jury. See Nissan Motor Go. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.2004). Accordingly, I concur in the judgment of this Court.