law-admissible-and-inadmissible-evidence | exclusion of evidence | failure to designate witness |
failure to disclose evidence in discovery process |
To constitute competent summary judgment evidence, the evidence must be admissible. See United Blood
Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (holding that “no difference obtains between the standards
for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular
trial.”). Before evidence is admissible, it must be relevant. Dallas Ry. & Terminal Co. v. Oehler, 156 Tex. 488,
490, 296 S.W.2d 757, 759 (1956); Serv. Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex. App.—Dallas
1993, no writ). Relevant evidence is evidence having the tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. TEX. R. EVID. 401; Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 72 (Tex. App.
—El Paso 2010, no pet.). The test for relevancy is satisfied only when there is some logical connection between
the fact offered and the fact to be proven. Rep. Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 406 (Tex. App.
—Houston [1st Dist.] 2011, no pet.).
ADMISSION AND EXCLUSION OF EVIDENCE
The admission or exclusion of evidence is a matter within the sound discretion of the trial court. City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Hathcock v. Hankook, 330 S.W.3d 733, 740 (Tex.
App.—Texarkana 2010, no pet.). A trial court abuses its discretion when it acts without regard for any guiding
rules or principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241–42 (Tex. 1985); Hathcock, 330 S.
W.3d at 740. Moreover, we must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Daniels v.
Yancey, 175 S.W.3d 889, 895 (Tex.App.-Texarkana 2005, no pet.) (citing City of Brownsville v. Alvarado, 897 S.
W.2d 750, 753 (Tex.1995)). Thus, we review the admission of the Thacker statements for abuse of discretion.
Id. A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Holtzman v.
Holtzman, 993 S.W.2d 729, 734 (Tex.App.-Texarkana 1999, pet. denied) (citing Downer v. Aquamarine
Operators, 701 S.W.2d 238 (Tex.1985)).
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." TEX.R. EVID. 801(d). Declarations of third persons may be
binding on a party as vicarious admissions when made by the party's agent or servant concerning a matter
within the scope of the agency or employment and made during the existence of the relationship. 35 TEX. JUR.
3d Evidence §§ 232, 234 (2008). A "statement by the party's agent or servant concerning a matter within the
scope of his or her agency or employment, made during the existence of the relationship" is considered to be
an admission by a party opponent and is not hearsay. TEX.R. EVID. 801(e)(2)(D).
Further, any statement by a party opponent is admissible against that party. Bay Area Healthcare Group, Ltd. v.
McShane, 239 S.W.3d 231, 235 (Tex. 2007).
PRESERVATION OF ERROR REQUIRED
To preserve error for appellate review, the Texas Rules of Appellate Procedure require parties to make timely
and specific objections at the earliest possible opportunity to preserve complaints that relate to a trial court's
admission of evidence during a trial. Tex. R. App. P. 33.1; Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118,
123-24 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (failing to timely object to testimony about the plaintiff's
litigious character waived right to complain on appeal of the trial court's admission of the testimony). The
complaining party waives error in the admission of evidence if it allows the evidence to be introduced during the
trial without objection. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W .3d 231, 235 (Tex. 2007) (per
curiam). If the complaint is that evidence has been improperly excluded, to adequately and effectively preserve
error, an offer of proof must show the nature of the evidence specifically enough so that the reviewing court can
determine its admissibility. In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.-Houston [14th Dist.] 2002, pet. denied).
We review the trial court's rulings concerning the admission or exclusion of evidence for an abuse of discretion.
In re J.P.B ., 189 S.W.3d 570, 575 (Tex. 2005). An abuse of discretion occurs only when the court's decision is
made without reference to any guiding rules and principles or is arbitrary or unreasonable. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We must uphold the trial court's evidentiary
ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
For the admission or exclusion of evidence to constitute reversible error, the complaining party must show that
the error probably resulted in an improper judgment. See Tex. R. App. P. 44.1; City of Brownsville v. Alvarado,
897 S.W.2d 750, 753 (Tex. 1995). Thus, a successful challenge to a trial court's evidentiary rulings requires the
complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted.
Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). In making this determination, we review the
entire record. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008).
HARMLESS ERROR RULE
"To reverse a judgment based upon error in the admission or exclusion of evidence, the appellant must show
that the trial court committed error and that the error was reasonably calculated to cause and probably did
cause rendition of an improper judgment." See In re R.A.L., 291 S.W.3d 438, 446 (Tex. App.-Texarkana 2009,
no pet.); TEX. R. APP. P. 44.1(a)(1). Error in the improper admission of evidence is usually deemed harmless if
the objecting party permits the same or similar evidence to be introduced without objection, or if the evidence is
cumulative of properly admitted evidence. See Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984).
"Clearly, erroneous admission is harmless if it is merely cumulative." Nissan Motor Co. v. Armstrong, 145 S.W.
3d 131, 144 (Tex. 2004).
TEXAS SUPREME COURT CASES
Kerlin v. Soto Arias, No. 06-0097 (Tex. Nov. 14, 2008)(challenge to deed, sufficiency of affidavit,
lack personal knowledge, hearsay, foreign language translation)
GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI CORP
v. GLORIA SOTO ARIAS, ET AL.; from Cameron County; 13th district (13-03-00364-CV, ___ SW3d ___, 01-05-
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Reliance Steel & Aluminum Co. v. Sevcik, No. 06-0422 (Tex. Sep. 26, 2008)(Brister)
(evidence of defendant's wealth in accident PI case not admissible, jury verdict reversed)
RELIANCE STEEL & ALUMINUM CO. AND SAMUEL ALVARADO v. MICHAEL SEVCIK AND CATHY LOTH; from
Waller County; 13th district (13-03-00407-CV, ___ SW3d ___, 03-09-06)
respondents' motion to strike petitioners' brief on the merits dismissed as moot
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Brister delivered the opinion of the Court.
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