One of the basic rules of error preservation is that the complaint must first be made to the trial court. But the Texas Supreme Court recently issued a per curiam opinion addressing one of the exceptions to that rule. For bench trials, a no-evidence complaint can be raised for the first time on appeal. See Tex. R. App. P. 33.1(d).
In Office of Atty. Gen. v. Burton, the court of appeals had affirmed the trial court's judgment because it found that the Attorney General had waived his no-evidence complaint by not presenting the complaint to the trial court. 369 S.W.3d 173, 174 (Tex. 2012). In a per curiam opinion, the Supreme Court noted that the general rule is that a no-evidence complaint must be presented in the trial court. Id. at 175. But because the case was tried to the court, rather than a jury, the Supreme Court reversed based on Rule 33.1(d). Id.
The exception in Rule 33.1(d) makes sense in light of the overall theory of error preservation. In a jury trial, the judge should be given the first opportunity to review the legal sufficiency of the evidence to support the jury's verdict. But in a bench trial, the judge has already reviewed the evidence as the fact-finder. A no-evidence complaint in the trial court after a bench trial would likely be both redundant and ineffective. Therefore, it does not offend either judicial efficiency or general error preservation rules to allow no-evidence points to be raised for the first time on appeal after a bench trial.
-- Rich Phillips, Thompson & Knight
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