When a trial court commits error in admitting evidence, it’s a lot like the proverbial tree falling in the woods. If no objection is lodged, it’s as if no one was in the woods to hear the sound.
Texas Rule of Appellate Procedure 33.1(a) requires that in order to preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. A corollary is that even if error is preserved by timely objection and ruling, prior or subsequent presentation of essentially the same evidence without objection will cure the error. Consequently, all good trial lawyers understand the need to object each time objectionable evidence is offered or risk forfeiture of complaint on appeal.
Compare these rules with yet another which has also been generally accepted in the law: When a party makes a proper objection to the introduction of certain testimony and is overruled, it may be assumed that the judge will make the same ruling as to other offers of similar evidence, and the attorney is not required to repeat the objection. Sauceda v Kerlin, 164 S.W.3d 892, 920 (Tex App.–Corpus Christi, 2005) (reversed on other grounds in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008).
How can these seemingly contradictory rules be reconciled? It may depend on whether the case is being tried to the court or to a jury. In some cases involving bench trials, appellate courts seem to dispense with the requirement for ongoing objections on a subject once the court has ruled. Crispi v. Emmott, 337 S.W.2d 314 (Tex. Civ. App. — Houston 1960); Bunnett/Smallwood & Co. v. Helton Oil, 577 S.W.2d 291 (Tex. Civ. App. — Amarillo 1979). However, in most cases, particularly those involving jury trials, the only way for error to remain preserved – short of continuous and repetitive objections – is to obtain a running objection.
The running objection is a procedural device which permits an attorney to lodge one objection which applies to all testimony relating to a particular line of questioning. Unfortunately, because the running objection is a creature of common law, there is no specific rule to guide attorneys in the proper procedure for invoking its use. Traditionally, however, attorneys will request a running objection after one or two objections on a similar subject matter have been lodged and overruled.
A running objection which has been properly requested will satisfy the TRAP 33.1(a) requirements for preservation of error on appeal. Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000). However, the protection afforded by a running objection is limited. Care should be taken in articulating the running objection, as it will be effective only as to questions which fall squarely within its stated scope. It should be specific and unambiguous, City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App. — Fort Worth 1988), and should also clearly identify the source and specific subject matter of the expected objectionable evidence. Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
Some courts have held that the scope of a running objection is limited to similar evidence elicited from the same witness. Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000). Others allow a broader application, extending it to all testimony pertaining to the same type of evidence, as long as the running objection has been “properly framed” to embrace testimony elicited from other witnesses. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194 (Tex. App. — Texarkana 2000).
The most recent Texas Supreme Court case which addresses the use and limitations of a running objection is the 2004 decision in Volkswagen, 159 S.W.3d 897. In that case, Volkswagen requested a running objection to the introduction of a television news report interview of an unidentified witness to the collision at issue. Before trial, Volkswagen lodged a hearsay objection to “showing that videotape and… to any reference to any alleged witness and… any reference to…what he may or may not have seen out there.” The trial court overruled the objection, but granted a running objection. Thereafter, the jury viewed a videotape of not only the witness interview, but also of the news reporter’s additional commentary regarding her conversation with the witness.
The Supreme Court held that Volkswagen’s initial objection to the evidence complied with TRAP 33.1(a) and its requested running objection clearly identified the source and specific subject matter of the expected objectionable evidence. By “plainly identi(fying) the source of the objectionable testimony, the subject matter of the witness’s testimony and the ways the testimony would be brought before the jury,” Volkswagen, through its running objection, “preserved the complaint not only to the unidentified witness’s testimony but also to the reporter’s testimony concerning what the witness said.” Id.at 907.
Three notes of caution:
- Even after a running objection has been granted, an attorney should remain vigilant as to the questions asked and answers given. If subsequent testimony is objectionable on grounds which weren’t included in the original running objection, then the new grounds for objection must be asserted in a timely manner or they will be waived.
- Make sure you receive a ruling on your request for a running objection, or you may waive that, too. Diversified Energy Products, Inc. v. Texas Development Co., 1999 WL 93265 (Tex.App.-Hous. (14 Dist.) Feb 25, 1999) (not designated for publication); City of Fort Worth, at 113.
- When in doubt, re-urge the objection and the request for a running objection. (It can’t hurt.
– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas