Goss v. State

¶1dissenting.

¶2Once again a plurality of the Court resorts to an illusory “nexus” requirement to hold that evidence of good character and proof of a troubled youth have no bearing on a jury’s assessment of the “deathworthiness” of an accused. See Lackey v. State, 816 S.W.2d 392 (Tex.Cr.App.1991) (Clinton, J., dissenting); Ex Parte Bower, 823 S.W.2d 284 (Tex.Cr.App., Nos. 70,995-70,-998, delivered December 4, 1991) (Clinton, J., dissenting). Moreover, once again the plurality fails squarely to confront the question of voluntary intoxication as a mitigating factor significant beyond the scope of the special issues. Lackey v. State, supra; Ex Parte Rogers, 819 S.W.2d 533 (Tex.Cr.App.1991) (Clinton, J., dissenting). For reasons expressed in the foregoing opinions, I dissent here as well.

¶3*170I must also dissent to the plurality’s disposition of appellant’s sixth point of error. The plurality holds under Tex.R.App.Pro., Rule 52(a), that appellant failed to preserve error for appeal. I cannot agree. Appellant clearly “presented to the trial court a timely request ... stating the specific grounds for the ruling he desired the court to make....” That the trial judge initially granted the request does not alter the fact that, with full knowledge of the nature and substance of that request, he ultimately denied it. Thus, appellant obtained an adverse ruling. Application of the rule in this context cannot be any simpler.

¶4In arguing appellant should have objected when the trial court changed its ruling, the plurality draws an oblique analogy to motion in limine practice. The analogy is flawed. We have indeed held that a motion in limine does not preserve error for appeal. By that we mean that a motion in limine does not constitute an objection to the admissibility of evidence at trial. A motion in limine is no more than a request that the trial court conduct an in camera hearing before deciding upon a question of admissibility of evidence, so that the opposing party does not risk having the jury hear inadmissible evidence before he has a chance to challenge it. Romo v. State, 577 S.W.2d 251, at 252 (Tex.Cr.App.1979); J.P. Hazel, The Motion In Limine: A Texas Proposal, 21 Houston L.Rev. 919, at 920 (1984). The motion in limine does not in itself, however, seek the exclusion of evidence. Therefore, notwithstanding any earlier motion in limine, it is incumbent on the opposing party to object to admission of evidence during trial in order to preserve error for appeal. Id.But appellant does not complain of the admission of the testimony of the State’s expert. Rather, he complains he was denied what Rule 705(b) mandates he be given “upon request,” that is, “a voir dire examination directed to the underlying facts or data upon which the [expert] opinion is based.” Transposed for motion in limine, appellant’s argument would be that the trial court erred in failing to grant his motion in limine in the first instance; that is, erred in not requiring an in camera conference outside the jury’s presence at which to determine admissibility of contested evidence. There is a difference, however, between a requested motion in limine and a Rule 705(b) request. Motion in limine is not a creature of rule or statute. Whether to grant it is purely discretionary with the trial court. By contrast, as I read Rule 705(b) (and indeed, as the plurality reads it too, Majority Opinion at 168), voir dire under Rule 705(b), once requested, is not discretionary at all.

¶5It may well be that even if it could be said to be error to deny a motion in limine, that error would prove harmless where the evidence that is the subject of the requested limine motion ultimately proves to be admissible. E.g., Lopez v. State, 535 S.W.2d 643, at 650 (Tex.Cr.App.1976).* We cannot even say that here, however, because to this day we do not know whether appellant might validly have challenged admissibility of the State’s expert’s testimony, since he was never allowed to obtain the very discovery that the plurality itself agrees Rule 705(b) guarantees him.

¶6Nothing more can possibly be expected to preserve error than what Rule 705(b) and Rule 52(a) together contemplate, viz: a “request,” and an adverse ruling thereon. The record here shows both. Cases pertaining to motion in limine practice are inapposite.

¶7We should not denigrate our now-codified contemporaneous objection rule by misapplying it in such a manner. Because the Court refuses to reach the merits of appellant’s sixth point of error, I dissent.

¶9dissenting.

¶10I respectfully dissent to the disposition of appellant’s sixth point of error for the following reasons. Prior to trial, appellant *171filed 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).

¶11As 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.

¶12In 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.

¶13Finally, 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.1Spence 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

¶14Accordingly, 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 *172reasons, I join the dissenting opinion authored by Judge Clinton and likewise dissent.