EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, November 14, 2011

The Areas of My Expertise: Court Of Appeals Of Texas Finds Rule 702 Objection Didn't Preserve Rule 701 Issue

Texas Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Texas Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Finally, Texas Rule of Evidence 103(a)(1) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

So, let's say that a defendant objects that a police officer's opinion testimony is inadmissible because he was not an expert witness under Rule 702. And let's say that the court's response is that the police officer could offer lay opinion testimony under Rule 701. Has the defendant preserved the issue of the admissibility of the officer's testimony under Rule 701? According to the recent opinion of the Court of Appeals of Texas, Waco, in State v. Simmons, 2011 WL 5247891 (Tex.App.-Waco 2011), the answer is "no." I disagree.

In Simmons

The evidence showed that Appellant was intoxicated in his pickup truck when it collided with a four-door Kia driven by an off-duty police officer. When Fort Worth Police Officer Corey Swanson arrived on the scene, the Kia was disabled in the roadway, facing westbound. It had sustained damage to its left front corner. Appellant's pickup had been pulled off the roadway. It had front end damage. Appellant told Officer Swanson that his truck was over the double yellow line turning left when the Kia struck him at high speed. Officer Swanson testified that Appellant's story made no sense to him. Citing rule of evidence 701, the trial court overruled Appellant's objection and allowed the officer's testimony.

But while the trial court cited to Rule 701, the appellant did not. Instead, defense counsel claimed that Officer Swanson was not an expert in accident reconstruction under Rule 702 and thus could not offer opinion testimony regarding what happened before and during the accident. According to the Court of Appeals of Texas, Waco, this meant that the appellant had not preserved for appellate review the issue of whether Officer Swanson could offer lay opinion testimony under Rule 701. According to the court, "[t]o the extent that Appellant's point on appeal contests admissibility based on rule 701, because his trial objection was based on rule 702, his complaint is not preserved for our review."

Really? Wasn't it implicit in appellant's objection that Officer Swanson could not offer lay opinion testimony under Rule 701. In other words, the appellant's explicit objection was that Officer Swanson could not offer expert opinion testimony under  Rule 702 because he was not expert in accident reconstruction. Isn't it implicit in this objection that only an expert could render opinion testimony on the topic? In the words of Rule 103(a)(1), wasn't this implicit basis for the objection "apparent from the context," especially given the fact that the trial court cited Rule 701 in response to the appellant's objection?




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The court's ruling is quite in line with Texas caselaw. They are very persnickity about the specificity of the trial objection. I give some really outrageous examples of what one Tex. C/A judge told me was "playing 'Gotcha'" by finding trial objections 'unpreserved" for appeal. See, Moss, Rethinking Texas Evidence Rule 103, 56 Baylor L. R. 503 (2004).


Posted by: Fred Moss | Nov 15, 2011 2:37:48 PM

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