law-evidence-admission-exclusion

TRIAL COURT'S DISCRETION ON MATTERS OF EVIDENCE ADMISSION &
EXCLUSION

"The admission and exclusion of evidence is committed to the trial court's sound discretion." Benavides v.
Cushman, Inc., 189 S.W.3d 875, 878-79 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion when it rules
without regard for any guiding rules or principles. See Alvarado, 897 S.W.2d at 754. We uphold the district
court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998).

Standard of Review for Exclusion of Evidence

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. In re J.P.B., 180
S.W.3d 570, 575 (Tex. 2005) (per curiam). A trial court abuses its discretion if it acts arbitrarily or
unreasonably or without reference to any guiding rules and principles. Bowie Mem'l Hosp. v. Wright, 79 S.
W.3d 48, 52 (Tex. 2002) (per curiam) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-
42 (Tex. 1985)). We may not reverse the trial court simply because we disagree with its decision; rather,
we must reverse only if the trial court acted in an arbitrary or unreasonable manner. Beaumont Bank, N.A.
v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (citing Downer, 701 S.W.2d at 242).

ADMISSION / EXCLUSION OF EVIDENCE

In his fourth issue, appellant claims the trial court erred in admitting autopsy photographs of A.F.  We
review a trial court's decision to admit photographs for an abuse of discretion.  Gallo v. State, 239 S.W.3d
757, 762 (Tex. Crim. App. 2007).  We will not overturn such a decision if it falls within the zone of
reasonable agreement.  Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003).

FAILURE TO PRODUCE EVIDENCE IN DISCOVERY - AUTOMATIC EXCLUSION RULE
Texas Rule of Civil Procedure 193.6(a) provides that a party who fails to make, amend, or supplement a
discovery response in a timely manner may not introduce in evidence the material or information that was
not timely disclosed, unless the court finds that there was good cause for the failure to make, amend, or
supplement the discovery response timely, or that the other parties will not be unfairly surprised or
prejudiced by the failure to make, amend or supplement. Tex. R. Civ. P. 193.6(a). The party seeking to
introduce the evidence carries the burden of establishing good cause, lack of unfair surprise, or lack of
unfair prejudice. Tex. R. Civ. P. 193.6(b). A finding of good cause, lack of unfair surprise, or lack of unfair
prejudice must be supported by the record. Id. The expert disclosure rules do not apply to fact witnesses.
Rather, the Texas Rules of Civil Procedure provide for requests for production to obtain documents within
the possession, custody, or control of parties. See Tex. R. Civ. P. 196.1-.6.
Marin v. IESI TX Corporation (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Opinion on rehearing by Alcala)
(
forgery, misapplication of fiduciary property, fraud, and conversion of checks, exemplary damages)
We conclude that the trial court did not err in the admission of the evidence, that the evidence is legally and factually
sufficient, and that the trial court properly awarded exemplary damages. We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala     
Before Justices Keyes, Alcala and Hanks  
01-08-00539-CV  Janell S. Marin v. IESI TX Corporation   
Appeal from 412th Judicial District Court of Brazoria County
Trial Court Judge: Hon. W. Edwin Denman

Standard of Review for admission of evidence
A trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion. Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). A trial judge abuses his discretion when he
makes a decision without reference to any guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219,
222 (Tex. 1999). Unless the trial judge’s erroneous evidentiary ruling probably caused the rendition of an
improper judgment, we will not reverse the ruling. Auld, 34 S.W.3d at 906.  
Defects in form of an affidavit must be objected to, and the opposing party must have the opportunity to
amend. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied). The failure to obtain
a ruling on an objection to a defect in form waives the objection. Id. Accordingly, it was incumbent upon
Pouncy-Pittman not only to object, but also to have secured a ruling on her objection to preserve those
complaints for appeal.  Pouncy-Pittman failed to obtain a ruling on any of her objections to Pappadeaux’s
summary judgment evidence. Thus, her complaints regarding the alleged hearsay in Dr. Moore’s affidavit
are overruled as not preserved. See Tex. R. App. P. 38.1. We overrule Pouncy-Pittman’s third point of
error.
Barber v. Bison Building Materials (Tex.App.- Houston [14th Dist.] Nov.  4, 2008)(Boyce)
(
one-vehicle truck accident PI negligence suit by driver against employer, admission of evidence, witness
credibility, impeachment)
AFFIRMED: Opinion by
Justice Boyce  
Before Justices Brock Yates, Seymore and Boyce
14-07-00566-CV  Marcus Barber v. Bison Building Materials, Ltd.
Appeal from 334th District Court of Harris County
Trial Court
Judge: Sharon McCally



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