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Reprinted with permission from the April 7, 2022 edition of Texas Lawyer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.
Trial is just around the corner, and you’re feeling confident. You have critical text messages that demonstrate your opponent’s theory of the case is not to be believed. You have a witness lined up to authenticate the messages and explain their meaning, namely your party opponent. But before the start of trial, the court grants your opponent’s motion in limine on relevancy grounds. The evidence is not coming in. The case you were excited to try has just become unwinnable. What do you do?
You can’t file an interlocutory appeal because limine rulings don’t qualify. See Tex. Civ. Prac. & Rem Code § 51.014 (statutorily-authorized interlocutory appeals). You can’t mandamus your judge because mandamus is only available when there is no adequate remedy by appeal. In this situation, you can re-offer the evidence at trial, and if the court rules it excluded, you have a remedy by appeal, that is, if you properly preserve error. See Reveal v. West, 764 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1988, no writ) (mandamus unavailable in limine context). And that brings us to the point of this article, mastering the offer of proof.
When the trial court makes an erroneous ruling excluding evidence, to preserve error on appeal, the record must demonstrate (i) you offered the evidence during trial; (ii) you secured a ruling; and (iii) the actual content and significance of the evidence. See Veale v. Teledyne Industries, Inc., 899 S.W.2d 239, 242 (Tex. App.—Houston [14th Dist.] 1995, writ denied). Even then, the court of appeals will only reverse if the evidentiary ruling was harmful, that is, it probably caused the rendition of an improper judgment based on the court of appeals’ review of the record as a whole. See Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018). But if the trial court excluded the evidence from the record, how do you ensure it becomes part of the record when the case goes up on appeal?
Texas Rules of Evidence 103(a)(2) states: “A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2) (emphasis added). Rule 103(a)(c) further states: “The court must allow a party to make an offer of proof outside the jury’s presence as soon as practicable—and before the court reads its charge to the jury.”). Tex. R. Evid. 103(a)(c). Importantly, “[t]he right to make an offer of proof is absolute.” Andrade v. State, 246 S.W.3d 217, 226 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994)).
In our hypothetical, because the limine ruling is not sufficient to preserve error for appeal, you must, during trial, first offer the evidence and obtain a ruling. See Southwest Country Enterprises v. Lucky Lady Oil Company, 991 S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet. denied). Since the court granted the motion in limine, at the appropriate time in your case, ask the judge for permission to approach. Inform the judge that you are mindful of the limine ruling but you request the court to reconsider. Assuming the court does not reconsider, formally offer the text messages into evidence, and when your opponent objects, specify the purpose of the messages and why they are relevant. If the judge excludes them, secure a ruling on the record, and tell the judge that you must exercise your right to make an offer of proof outside the jury’s presence to preserve error for appeal.
When the jury is excused, you must decide how to present your offer of proof. You, as the attorney, have the option of describing and summarizing the excluded evidence with enough specificity to enable the court of appeals to decide whether the court’s ruling was erroneous. See Wattas v. Oliver, 396 S.W.3d 124, 129 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“The offer of proof may be made by counsel, who should reasonably and specifically summarize the evidence offered and state its relevance, unless already apparent. If counsel makes such an offer, he must describe the actual content of the testimony and not merely comment on the reasons for it.”).
If you choose this manner, tell the judge what, specifically, the text messages say, what, specifically, the party opponent is expected to testify, including the basis of the witness’s personal knowledge, and explain in detail why the evidence is relevant. Additionally, make sure you introduce any documents or exhibits during the offer of proof along with the narrative on the record before the court reporter so that it will be included in the clerk’s record and the reporter’s record.
Alternatively, the offer of proof must be conducted in question and answer format upon “a party’s request”—which includes your opponent’s—or the court’s request. See Tex. R. Evid. 103(c). As one commentator observes: “A proponent may prefer the question-and-answer form to eliminate doubt as to the harm caused by the exclusion, and possibly to encourage the trial judge to reconsider the ruling. An opponent, on the other hand, may prefer the question-and-answer form in order to ‘call the bluff’ of a proponent whose informal summary may be optimistic.” 1 Tex. Prac., Texas Rules of Evidence § 103.5 (4th Ed.).
If you think the judge may reconsider the ruling after listening to the witness testify about the text messages, it may be wise to choose this option. And regardless, it is good advice to have your questions and exhibits prepared just in case the judge or your opponent request this option.
When you have concluded your offer of proof, ask the judge to reconsider the ruling and admit the excluded evidence. Secure the judge’s ruling on the record. Then, make a statement that the offer of proof and the text messages be included in the court reporter’s record, separately identified as the offer of proof. The court of appeals will now know what transpired at trial, what the excluded evidence would show, and have a sufficient basis to reverse and remand if the ruling was erroneous and harmful.
AmyJo "AJ" Foreman is an associate in the litigation section. Her practice focuses primarily on commercial litigation, labor & employment, and appellate matters.
AJ graduated from the University of Houston Law Center where she was ...
Steve Knight is a Shareholder in the Houston Litigation group and is Co-Chair of the Appellate Law section.
Throughout his career, Mr. Knight has successfully represented clients at every phase of the appellate process, from ...