Goss v. State

CLINTON, Judge,

dissenting.

Once again a plurality of the Court resorts to an illusory “nexus” requirement to hold that evidence of good character and proof of a troubled youth have no bearing on a jury’s assessment of the “deathworthiness” of an accused. See Lackey v. State, 816 S.W.2d 392 (Tex.Cr.App.1991) (Clinton, J., dissenting); Ex Parte Bower, 823 S.W.2d 284 (Tex.Cr.App., Nos. 70,995-70,-998, delivered December 4, 1991) (Clinton, J., dissenting). Moreover, once again the plurality fails squarely to confront the question of voluntary intoxication as a mitigating factor significant beyond the scope of the special issues. Lackey v. State, supra; Ex Parte Rogers, 819 S.W.2d 533 (Tex.Cr.App.1991) (Clinton, J., dissenting). For reasons expressed in the foregoing opinions, I dissent here as well.

*170 I must also dissent to the plurality’s disposition of appellant’s sixth point of error. The plurality holds under Tex.R.App.Pro., Rule 52(a), that appellant failed to preserve error for appeal. I cannot agree. Appellant clearly “presented to the trial court a timely request ... stating the specific grounds for the ruling he desired the court to make....” That the trial judge initially granted the request does not alter the fact that, with full knowledge of the nature and substance of that request, he ultimately denied it. Thus, appellant obtained an adverse ruling. Application of the rule in this context cannot be any simpler.

In arguing appellant should have objected when the trial court changed its ruling, the plurality draws an oblique analogy to motion in limine practice. The analogy is flawed. We have indeed held that a motion in limine does not preserve error for appeal. By that we mean that a motion in limine does not constitute an objection to the admissibility of evidence at trial. A motion in limine is no more than a request that the trial court conduct an in camera hearing before deciding upon a question of admissibility of evidence, so that the opposing party does not risk having the jury hear inadmissible evidence before he has a chance to challenge it. Romo v. State, 577 S.W.2d 251, at 252 (Tex.Cr.App.1979); J.P. Hazel, The Motion In Limine: A Texas Proposal, 21 Houston L.Rev. 919, at 920 (1984). The motion in limine does not in itself, however, seek the exclusion of evidence. Therefore, notwithstanding any earlier motion in limine, it is incumbent on the opposing party to object to admission of evidence during trial in order to preserve error for appeal. Id. But appellant does not complain of the admission of the testimony of the State’s expert. Rather, he complains he was denied what Rule 705(b) mandates he be given “upon request,” that is, “a voir dire examination directed to the underlying facts or data upon which the [expert] opinion is based.” Transposed for motion in limine, appellant’s argument would be that the trial court erred in failing to grant his motion in limine in the first instance; that is, erred in not requiring an in camera conference outside the jury’s presence at which to determine admissibility of contested evidence. There is a difference, however, between a requested motion in limine and a Rule 705(b) request. Motion in limine is not a creature of rule or statute. Whether to grant it is purely discretionary with the trial court. By contrast, as I read Rule 705(b) (and indeed, as the plurality reads it too, Majority Opinion at 168), voir dire under Rule 705(b), once requested, is not discretionary at all.

It may well be that even if it could be said to be error to deny a motion in limine, that error would prove harmless where the evidence that is the subject of the requested limine motion ultimately proves to be admissible. E.g., Lopez v. State, 535 S.W.2d 643, at 650 (Tex.Cr.App.1976). * We cannot even say that here, however, because to this day we do not know whether appellant might validly have challenged admissibility of the State’s expert’s testimony, since he was never allowed to obtain the very discovery that the plurality itself agrees Rule 705(b) guarantees him.

Nothing more can possibly be expected to preserve error than what Rule 705(b) and Rule 52(a) together contemplate, viz: a “request,” and an adverse ruling thereon. The record here shows both. Cases pertaining to motion in limine practice are inapposite.

We should not denigrate our now-codified contemporaneous objection rule by misapplying it in such a manner. Because the Court refuses to reach the merits of appellant’s sixth point of error, I dissent.

That a motion in limine has been granted and violated "may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action.” Brazzell v. State, 481 S.W.2d 130, at 131 (Tex.Cr.App.1972). See also Gonzales v. State, 685 S.W.2d 47, at 51 (Tex.Cr.App.1985).