Rule 705(b) allows the opposing party the opportunity to explore the basis of the expert's opinions without fear of eliciting damaging hearsay or other inadmissible evidence in the presence of the jury
How later courts described this case
- Rule 705(b) allows the opposing party the opportunity to explore the basis of the expert's opinions without fear of eliciting damaging hearsay or other inadmissible evidence in the presence of the jury
- noting that voir dire under Rule 705(b) is not discretionary in criminal cases
- evidence that appellant was beaten with a shoe, belt, and a wooden slat, and that he did not know his mother until late in his development was not Penry-type evidence
- “It is well settled that, regardless of a favorable ruling on a motion in limine, a defendant must make a contemporaneous objection to sustain the error for appellate review.”
Written by the judges who cited it.
The opinion
BAIRD, Judge,
dissenting.
I respectfully dissent to the disposition of appellant’s sixth point of error for the following reasons. Prior to trial, appellant *171 filed a written motion to conduct a voir dire examination of the State’s expert witness, Jeffrey Sigel. The trial judge granted appellant’s motion. However, when the State called Sigel as a witness, the trial judge reversed his earlier ruling and denied appellant the opportunity to question Sigel. Appellant contends the trial judge erred in refusing to permit the voir dire examination. I agree. However, the plurality concludes that the point of error is not preserved for appellate review because appellant failed to object to the trial judge’s reversal of his earlier ruling. Such a conclusion allows the plurality to avoid conducting a harm analysis. See Tex.R.App. P. 81(b)(2).
As a general rule a party must pursue an objection until he obtains an adverse ruling. Failure to obtain an adverse ruling will generally prevent review on appeal. Denison v. State, 651 S.W.2d 754, 761 (Tex.Cr.App.1983); Burks v. State, 432 S.W.2d 925, 926 (Tex.Cr.App.1968); Cazares v. State, 488 S.W.2d 110, 112 (Tex.Cr.App.1973); Jones v. State, 482 S.W.2d 634, 636 (Tex.Cr.App.1972); and Shipp v. State, 482 S.W.2d 870, 871 (Tex.Cr.App.1972). There is no requirement that one repeat the objection once an adverse ruling is obtained. See, Waller v. State, 581 S.W.2d 483, 485 (Tex.Cr.App.1979) (Opinion on motion for rehearing); Harryman v. State, 522 S.W.2d 512, 516 (Tex.Cr.App.1975); Roberts v. State, 545 S.W.2d 157, 158 (Tex.Cr.App.1977); and Tex.R.App. P. 52(b). Likewise, there is no requirement that a defendant lodge an objection to the reversal of an earlier ruling. Peake v. State, 792 S.W.2d 456, 459 (Tex.Cr.App.1990). This is so because the reversal of the earlier favorable ruling is per se an adverse ruling.
In the instant case, appellant clearly received an adverse ruling from the trial judge. The record is clear that all parties understood that a request to voir dire the witness was made and that the trial judge overruled the request. Under these circumstances there should be no requirement for appellant to object to the trial judge’s reversal of his earlier ruling. Justice is thwarted, not served, when we invent procedural hurdles to avoid addressing valid complaints on appeal.
Finally, I do not agree with the analogy between a motion in limine and the instant case. A motion in limine is nothing more than a broad general objection which operates as a request to limit the presentation of evidence in a manner which will avoid prejudicing a jury prior to the court’s ruling on the evidence. Norman v. State, 523 S.W.2d 669 (Tex.Cr.App.1975). In my opinion, appellant’s specific written motion to voir dire the State’s expert witness is much more than a motion in limine. Rather, I find the instant case analogous to a trial judge’s refusal to allow a defendant to make a bill of exception. The right to make a bill of exception is absolute. 1 Spence v. State, 758 S.W.2d 597, 599 (Tex.Cr.App.1988); Tatum v. State, 798 S.W.2d 569, 571 (Tex.Cr.App.1990); and, Salazar v. State, 795 S.W.2d 187, 193 (Tex.Cr.App. 1990). Likewise, a request to conduct voir dire examination of an expert is absolute. Tex.R.Crim.Evid. 705(b) (“... a party against whom the opinion is offered shall, upon request, be permitted to conduct a voir dire examination_”). 2
Accordingly, I would abate this appeal and remand this case to the trial court to allow appellant the opportunity to conduct a voir dire examination of Sigel pursuant to Tex.R.Crim.Evid. 705(b). Spence v. State, 758 S.W.2d at 600 . Such action would provide this Court with a record sufficient to determine if this type of error is subject to a meaningful harmless error analysis pursuant to Tex.R.App.P. 81(b)(2). 3 For these *172 reasons, I join the dissenting opinion authored by Judge Clinton and likewise dissent.
MALONEY, J., joins this opinion.
. However, in Port v. State, 798 S.W.2d 839, 848 (Tex.App. — Austin 1990, pet. refd), the Court of Appeals held that there is no entitlement to make a record where the trial court lacked jurisdiction to hear the matter.
. Unless otherwise indicated, all emphasis herein is supplied by author.
.Abating this appeal and remanding this case to the trial court would be consistent with other opinions by this Court where, in similar situations, we provided the parties with an opportunity to develop a complete record for appellate review. See, Keeton v. State, 724 S.W.2d 58, 66 (Tex.Cr.App.1987); DeBlanc v. State, 732 S.W.2d 640, 642 (Tex.Cr.App.1987); Janecka v. State, *172 739 S.W.2d 813, 842 (Tex.Cr.App.1987) (Opinion on motion for rehearing); Chambers v. State, 742 S.W.2d 695, 696 (Tex.Cr.App.1988); Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Cr.App.1987); and Oliver v. State, 808 S.W.2d 492, 496 (Tex.Cr.App.1991).