How to make them correctly and make them count
At first glance, the subject of objections seems relatively uncomplicated: The defense attorney does something wrong or quirky and the prosecutor objects to set things straight. Or the State does something that defense counsel disapproves of, he objects in protest, and we defend or amend our actions accordingly. While responding to a defense attorney’s objections can be tedious—especially in the middle of a smooth-flowing examination of a witness—making our own objections seems easy and maybe even fun. After all, objections and their aftermath often form the most dramatic parts of courtroom scenes in the movies for a reason: They are exciting!
As simple as objections may appear to be, if not done correctly they can become very troublesome, possibly resulting in the reversal of a hard-fought conviction. Here’s a primer on how to properly make objections.
The purpose of objections
Appellate courts require proper objections for two general reasons: first, to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it, and second, to afford opposing counsel an opportunity to remove the objection or supply other evidence. Stated more broadly, objections promote the prevention and correction of errors.1
Aside from keeping the case on track, a proper objection is also essential to preserving error for appeal.2 While defendants initiate most direct appeals and writs, the State has the right to appeal in select circumstances.3 Because the points of error presented in a State’s appeal must correlate to the objections the State raised at trial or in a suppression hearing,4 prosecutors must know when to object and how to do so properly.
There are also circumstances where the State’s failure to make a needed objection may have dire consequences. A prime example of this is during the charge conference. The general rule is that a defendant is not entitled to defensive instructions in the jury charge if he fails to properly request them5 (by providing his proposed instruction to the court in writing, or by dictating it into the record).6 However, the defendant is absolutely entitled to certain jury instructions when the issues are raised by the evidence, even if neither the State nor the defense requests that the instructions be included (e.g., voluntariness of the defendant’s statements,7 corroboration of a jail-house informant’s testimony,8 corroboration of accomplice-witness testimony,9 etc.). If the trial court fails to include an applicable, necessary instruction in the jury charge on its own, appellate courts will declare the omission to be error and will then review the mistake for “egregious harm” if the defense did not request the instruction.10 Though reviewing courts may not always find that a defendant suffered egregious harm in such a situation, if a court does so in your case, it will be reversed and remanded for a new trial11—requiring the State to repeat all of the work and time already devoted.
So what is a proper objection? To appropriately object and preserve the contention for appellate review, the record must show that: “1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and 2) the trial court ruled adversely (or refused to rule, despite [further] objection).”12 For an objection to be considered timely, it should be made, if possible, before the contested evidence is actually admitted.13 If that is not possible, the objection must be made as soon as the objectionable nature of the evidence becomes apparent to the complaining party.14
Though there are no particular “magic words” to make a proper objection,15 a valid objection must be specific enough to notify the trial court of the nature of the complaint and must be “sufficiently clear to provide the trial judge and opposing counsel an opportunity to address, and, if necessary, correct the purported error.”16 “References to a rule, statute, or specific case help to clarify an objection that might otherwise be obscure, but an objection is not defective merely because it does not cite a rule, statute, or specific case.”17 However, a “general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel.”18
Then, even after a timely and specific objection is made initially, the work is not over. The complaining party must renew his objection each time the challenged evidence is offered or addressed or obtain a running objection from the trial court on that basis; failure to do so will result in waiver of the issue on appeal.19 Typically, a timely request for a running objection will preserve error “as long as it does not encompass too broad a subject matter during too broad a time or over different witnesses.”20 Though a running objection covering one particular subject matter—but extended over several witnesses—preserved error in at least one case,21 the safest course of action is to re-urge or renew objections to contested evidence with each subsequent witness that introduces it.22 While a renewed objection to challenged evidence must be made each time that evidence is offered, if the judge hears and overrules an objection to evidence out of the presence of the jury, that objection does not have to be repeated or re-ruled-upon in front of the jury—when the evidence is actually presented—to preserve error on the issue.23
Courts of appeals generally adopt a flexible stance when determining whether a particular objection is proper and sufficiently specific; however, courts have invalidated a number of particular objections over the years, including:
• “invading the province of the jury”24 or “asking the witness to testify regarding an ultimate issue”25;
• “lack of foundation” or “improper predicate has been laid”27;
• “recognizing one witness as a qualified expert would essentially make all employees in the same organization qualified experts on the same matters”29;
• “that exhibit is not accurate”;30 and
• “improper argument.”31
If the trial court sustains an objection and excludes certain evidence, to demonstrate that the court’s failure to admit the evidence was error and preserve the complaint for appellate review, the objecting party must either perfect an offer of proof or a bill of exceptions, or establish that the substance of the excluded evidence was apparent from the context within which the evidence was presented.32 An offer of proof may be in the form of a question-and-answer dialogue between the proponent of the evidence and the witness, or it may be an informal bill of exceptions that contains a concise statement or summary of what the proponent believes the evidence would have shown.33
However, as with objections, an offer of proof or bill of exceptions that is so generalized or vague that it fails to inform the trial court and any reviewing court of what the excluded evidence would have consisted of is inadequate to preserve error.34
An offer of proof may be deficient because the defense attorney “failed to provide the trial judge with a concise statement regarding the content of the testimony he proposed to elicit from the witness” regarding that issue.35 Accordingly, although an offer of proof or bill of exceptions need not recite verbatim the proposed (but excluded) testimony, it must at least reasonably summarize what such evidence would establish.36
Prosecutors should also be careful not to mistake raising an issue through a pretrial motion in limine for a proper, error-preserving objection. True motions in limine are administrative instruments whose “fundamental purpose … is to obtain an order requiring an initial offer of objectionable evidence outside the jury’s presence”37—not to obtain an immediate and final ruling on the admissibility of the evidence.38 However, even if a trial court does make a ruling on a matter raised in a motion in limine, that decision is merely preliminary because the court generally cannot effectively evaluate the contested evidence in context before it is actually introduced.39 Further, because a trial judge is free to reconsider his initial ruling on a motion in limine throughout the course of the trial, a “motion in limine … normally preserves nothing for appellate review,” regardless of whether it was granted or denied.40 To preserve error regarding the subject of a motion in limine, the complaining party must object (and re-object as necessary) when the issue is raised or when the evidence is offered in trial.41 Thus, while motions in limine can be an important tool to help address troublesome matters outside the jury’s presence (e.g., requiring the judge to evaluate whether the defense attorney may impeach a State’s witness with a questionably admissible prior conviction before the damaging information reaches the jury’s ears), they must not be relied upon as an appropriate substitute for timely and specific trial objections.
In practice, as prosecutors prepare for trial we will probably be able to anticipate many objections that a defense attorney might raise to oppose State’s evidence. For example, in prosecuting a defendant for aggravated robbery where the State will want to prove identity by admitting evidence of previous aggravated robberies the defendant has committed with a substantially similar modus operandi, prosecutors should anticipate and prepare for the defense attorney’s probable objection to any such evidence on the basis of Texas Rules of Evidence 404(b) and 403.42 Additionally, in preparations, try to identify areas of the case where the State might have to object as the facts unfold. For instance, in an assault case, the prosecutor should expect and prepare to ward off the defense attorney’s likely attack on the complainant’s credibility or character, which could arrive in various forms, such as impeachment with evidence of the witness’s prior inconsistent statement,43 bias or interest,44 criminal conviction,45 or untruthful character.46
Knowing the applicable rules of evidence and procedure associated with all of the issues identified ahead of trial is certainly a prosecutor’s best weapon in the war of making and responding to objections. By anticipating any potential problems with a case at an early stage, we have time to think through and formulate the timely and specific objections or responses that might be made in trial. Because trying to perform more than a cursory Lexis or Westlaw search in the middle of trial or a contested hearing can be very difficult and vexing, early detection of trouble spots will also enable prosecutors ample time to research the issues to find any cases that support the State’s position and will ease the trial judge’s concerns about error and reversal.
While objections are often not as simple as they may seem, they can still be a fun and rewarding part of the trial experience for everyone involved (yes, even for appellate prosecutors) when done properly. In summary, making timely and specific objections will make courts very glad. Best of luck and happy trials!
1 Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)).
2 Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); see Tex. R. App. P. 33.1.
3 See Tex. Code Crim. Proc. art. 44.01(a)–(c).
4 In a defendant’s appeal following a trial court’s ruling to deny the defendant’s motion to suppress evidence, the trial court’s decision will be upheld if it is supported by any applicable theory of law, even if that theory was not advanced by the State in the motion to suppress. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); see also Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002) (stating that Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are “judge-protecting rules” which emphasize “party responsibility”—meaning that “the party complaining on appeal (whether it be the State or the defendant) about a trial court’s admission, exclusion, or suppression of evidence ‘must, at the earliest opportunity, have done everything necessary to bring the judge’s attention to the evidence rule [or statute] in question and its precise and proper application to the evidence in question.’” (quoting Stephen Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, §103.2 at 14 (2d ed. 1993)) (parenthetical in original)).
5 See Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim. App. 2008); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (“The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. But it does not inevitably follow that he has a similar sua sponte duty to instruct the jury on all potential defensive issues, lesser-included offenses, or evidentiary issues. These are issues that frequently depend upon trial strategy and tactics”); Posey v. State, 966 S.W.2d 57 (Tex. Crim. App.1998) (trial court has no affirmative duty to instruct the jury on unrequested defensive issues).
6 Tex. Code Crim. Proc. art. 36.14.
7 See Tex. Code Crim. Proc. art. 38.22, §6; Oursbourn, 259 S.W.3d at 180.
8 See Tex. Code Crim. Proc. art. 38.075; Brooks v. State, 357 S.W.3d 777, 781 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
9 See Tex. Code Crim. Proc. art. 38.14; Freeman v. State, 352 S.W.3d 77, 81-82 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
10 Oursbourn, 259 S.W.3d at 182.
11 See, e.g. Freeman, 352 S.W.3d at 82-87.
12 Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (parenthetical in original); see Tex. R. App. P. 33.1.
13 Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); McMillon v. State, 940 S.W.2d 767, 769 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).
14 Id.; see Casey v. State, 349 S.W.3d 825, 834 (Tex. App.—El Paso 2011, pet. ref’d) (the defendant’s objection that a female employee of the district attorney’s office was seated next to the 12-year-old victim of sexual abuse during the victim’s testimony was untimely because the objection was made several minutes into the victim’s testimony).
15 Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); see Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009).
16 Ford, 305 S.W.3d at 533 (citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)).
17 Id.; see Rivas, 275 S.W.3d at 887.
18 Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original). When the legal basis for the objection is not obvious from the context, “then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
19 Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see, e.g., Lane v. State, 151 S.W.3d 188, 192–93 (Tex. Crim. App. 2004).
20 Smith v. State, 316 S.W.3d 688, 698 (Tex. App.—Fort Worth 2010, pet. ref’d); see Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim. App. 1985) (rejecting the defendant’s contention that his running objection preserved error when six witnesses testified between when the running objection was originally made and when the challenged evidence was reintroduced), overruled on other grounds by Hernandez v. State, 757 S.W.2d 744, 751-52 n. 15 (Tex. Crim. App. 1988); White v. State, 784 S.W.2d 453, 461 (Tex. App.—Tyler 1989, pet. ref’d) (holding that a defendant’s running objection preserved error with regard to the witness then testifying, but did not extend over the testimony of several subsequent witnesses).
21 See Ford v. State, 919 S.W.2d 107, 113-14 (Tex. Crim. App. 1996) (running objection to “any and all impact evidence”).
22 See Sattiewhite v. State, 786 S.W.2d 271, 283 n. 4 (Tex. Crim. App. 1989); Goodman, 701 S.W.2d at 863.
23 Ethington, 819 S.W.2d at 858.
24 Contreras v. State, No. 12-10-00045-CR, 2011 WL 3273966 at *4 (Tex. App.—Tyler July 29, 2011, pet. ref’d) (mem. op., not designated for publication) (citing Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App.1992)); see Peters v. State, 31 S.W.3d 704, 712 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Tex. R. Evid. 704 and Ortiz, 834 S.W.2d at 348).
25 See Tex. R. Evid. 704; Ruiz-Angeles v. State, 351 S.W.3d 489, 499 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
26 “Bolstering” consists of “any evidence the sole purpose of which is to convince the fact-finder that a particular witness or source of evidence is worthy of credit, without substantially contributing ‘to make the existence of [a] fact that is of consequence to the determination of the action more or less probable that it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 821 (Tex. Crim. App. 1993) (citing Tex. R. Evid. 401). Various courts of appeals have held that a general objection to bolstering is not valid because it does not sufficiently inform the trial court of the nature of the objection. See In re J.G., 195 S.W.3d 161, 183 (Tex. App.—San Antonio 2006, no pet.); Montoya v. State, 43 S.W.3d 568, 573 (Tex. App.—Waco 2001, no pet.).
27 See Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985); Harris v. State, 565 S.W.2d 66, 68-70 (Tex. Crim. App. 1978). To properly object on this basis, “Counsel must inform the court just how the predicate is deficient.” Bird, 692 S.W.2d at 70; Young v. State, 183 S.W.3d 699, 704-05 (Tex. App.—Tyler 2005, pet. ref’d); Hernandez v. State, 53 S.W.3d 742, 745 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).
28 Schwarzer v. State, No. 02-02-00192-CR, 2008 WL 2404231 (Tex. App.—Fort Worth June 12, 2008, no pet.) (not designated for publication) (internal citation to Tex. R. Evid. 403 omitted).
29 See Brucia v. State, Nos. 05-11-00866-CR, 05-11-01312-CR, 2012 WL 2926203 at *5-6 (Tex. App.—Dallas July 19, 2012, no pet. h.).
30 See Cochran v. State, No. 05-98-01232-CR, 1999 WL 675438 at *1 (Tex. App.—Dallas Sept. 1, 1999, no pet.) (mem. op., not designated for publication). Though the court in Cochran did not explain why such an objection was invalid, it is likely that the argument was too vague or general to alert the trial court and the State as to the defendant’s basis for complaint, which could have been that the State had not properly authenticated the videotape, that the State had missed some portion of the predicate to admit the evidence, etc.
31 Miles v. State, 312 S.W.3d 909, 911 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. 1983).
32 Tex. R. Evid. 103; see Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999).
33 See Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993) (“An informal bill will suffice as an offer of proof when it includes a concise statement of counsel’s belief of what the testimony would show”); Bundy v. State, 280 S.W.3d 425, 428-29 (Tex. App.—Fort Worth 2009, pet. ref’d) (“Error may be preserved by an offer of proof in question and answer form or in the form of a concise statement by counsel” which “must include a summary of the proposed testimony”).
34 See Love, 861 S.W.2d at 901; Bundy, 280 S.W.3d at 429.
35 Love, 861 S.W.2d at 901.
36 See Love, 861 S.W.2d at 901; Duke v. State, 365 S.W.3d 722, 725-26 (Tex. App.—Texarkana 2012, no pet. h.) (“If an offer of proof is made in the form of a concise statement, the concise statement must include a reasonably specific summary of the proposed testimony”)
37 Delane v. State, No. 01-10-00698-CR, 2012 WL 340234 at *12 (Tex. App.—Houston [1st Dist.] Feb. 2, 2012, pet. ref’d); see Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975) (“The purpose of a motion in limine is to prevent particular matters from coming before the jury”).
38 Rawlings v. State, 874 S.W.2d 740, 743 (Tex. App.—Fort Worth 1994, no pet.)
39 Norman, 523 S.W.2d at 671; Rawlings, 874 S.W.2d at 743.
40 Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex. Crim. App. 2007).
41 See Fuller, 253 S.W.3d at 232.
42 See Crockett v. State, No. 01-10-00467-CR, 2011 WL 4925980 (Tex. App.—Houston [1st Dist.] Oct. 13, 2011, pet. ref’d) (mem. op., not designated for publication); see also Tex. R. Evid. 404(b).
43 See Tex. R. Evid. 613(a).
44 See Tex. R. Evid. 613(b).
45 See Tex. R. Evid. 609.
46 See Tex. R. Evid. 608.