One key aspect of preserving error for appeal is to obtain a ruling from the trial court on your objection or request. See Tex. R. App. P. 33.1(a)(2)(A). Often, this aspect of preservation gets overlooked because the ruling is clear. But a recent case from the First Court of Appeals reveals a potential trap for the unwary.
In Tryco Enterprises, Inc. v. Robinson, the appellant complained that the trial court improperly admitted evidence over its hearsay objection. No. 01-10-00710-CV, 2012 WL 4021126 at *4 (Tex. App.—Houston [1st Dist.] Sept. 13, 2012). When the appellant objected to the evidence at trial, the trial court "conditionally admitted" the testimony, subject to the appellant filing additional briefing to show why the testimony was inadmissible hearsay. Id. at *3. The appellate court found that the appellant had failed to preserve error in the admission of the testimony for several reasons. Id. at *5. One of those reasons was that the appellant did not " obtain a definitive adverse ruling while the trial court was in a proper position to change its conditional ruling of admissibility."
In light of this ruling (and the requirement to obtain an adverse ruling on objections or requests), careful lawyers should be sure that any "conditional" rulings are made absolute in order to preserve error.
-- Rich Phillips, Thompson & Knight
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