Jones v. Colley

¶1concurring.

¶2I agree that the trial court’s judgment should be affirmed. I write separately to state my opinion that Jeannie Jones has shown no instance of trial court error.5 Therefore, I concur in the decision affirming the trial court’s judgment.

¶3To the extent that the opinion of this Court suggests that the trial court erred in failing to admit an edited version of Kesz-ler’s videotaped deposition, I disagree. The first request to admit the edited videotape was made to the court before the presentation of any evidence, in chambers and outside the presence of the court reporter. Because no offer was made in open court and no ruling was made in court, Jones fails to show any trial court error in initially excluding the videotape.6 When, at the end of the plaintiff’s case, the edited video deposition was offered — after the written deposition had been introduced and read to the jury — it could have been excluded be*868cause of a danger of confusion of the issues, unfair prejudice, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex.R.Civ.Evid. 403.

¶4Additionally, I believe the language in the majority opinion concerning Tex.R.Civ. P. 207(l)(a), which provides that all or part of a deposition may be used in evidence, is ill advised and overly broad. The majority opinion might be interpreted as holding that a party has an absolute right to present evidence in any order desired so long as a distinctly false impression is not created. Such a holding is not necessary and is also violative of the spirit of Tex. R.Civ. P. 265, which allows the trial court leeway in directing the order of proceedings.

¶5The majority opinion also makes the statement that, under Tex.R.Civ.Evid. 106, the defendants had “no right to prevent the use of the edited videotape. Their remedy was to introduce the unedited deposition or their own edited version in response to Jones’ offer.”7 (Majority op. p. 866). The majority opinion confuses the “rights” of civil defendants with the duty of a trial court to insure that a case is properly presented to the jury so that a just, fair and equitable adjudication of the case under the law may be had. See Tex.R.Civ. P. 1. No question is presented concerning the defendants’ “rights” under Tex.R.Civ.Evid. 106.

¶6Under the present circumstances, we do the trial court a disservice to hint that it erred, but conclude that its actions were harmless.