law-harmful-error-analysis-of-evidentiary-rulings admission exclusion of evidence challenged on appeal
HARMLESS / HARMFUL ERROR RULE ON APPEAL
An error in admitting evidence requires reversal if it probably caused the rendition of an improper
judgment. TEX. R. APP. P. 61.1; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). In
determining whether the error was harmful we evaluate the entire case from voir dire to closing argument,
considering the evidence, strengths and weaknesses of the case, and the verdict. Reliance Steel &
Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008). We also consider whether counsel emphasized
the erroneous evidence and whether the admission of the evidence was calculated or inadvertent. Id. at
874; Nissan Motor Co., 145 S.W.3d at 144 (“[W]hether erroneous admission is harmful is more a matter of
judgment than precise measurement.”). SCI v. Guerra, No. 09-0941 (Tex. Jun 17, 2011)(Johnson)
For the exclusion of evidence to constitute reversible error, the complaining party must show that (1)
the trial court committed error and (2) the error probably caused the rendition of an improper judgment.
McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396
(Tex. 1989). We have recognized the impossibility of prescribing a specific test to determine whether a
particular error is harmful, and entrust that determination to the sound discretion of the reviewing court.
McCraw, 828 S.W.2d at 757–58; Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980). In
making this determination, the court must review the entire record. Gee, 765 S.W.2d at 396; Lorusso, 603 S.
W.2d at 821. “[I]t is not necessary for the complaining party to prove that ‘but for’ the exclusion of evidence, a
different judgment would necessarily have resulted.” McCraw, 828 S.W.2d at 758. The complaining party
must only show “that the exclusion of evidence probably resulted in the rendition of an improper judgment.”
Id. The role that excluded evidence plays in the context of the trial is also important. Thus, the exclusion or
admission is likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that
the error likely made no difference in the judgment. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d
867, 873 (Tex. 2008). But if erroneously admitted or excluded evidence was crucial to a key issue, the error
is likely harmful. Id. State of Texas v. Central Expressway Sign Associates, No. 08-0061 (Tex. Nov. 20, 2009)
(Subst. Op. by O'Neill) (condemnation, proper method for determining market value, admissibility of expert
testimony, methods to appraise market value of condemned property)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County;
5th district (05 06 00003 CV, 238 SW3d 800, 08 31 07)
motion for rehearing denied
The Court's opinion of June 26, 2009 is withdrawn and the opinion of this date is issued.
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
(Justice Guzman not sitting)
A successful challenge to evidentiary rulings usually requires the complaining party to show that the
judgment turns on the particular evidence excluded or admitted. Brownsville v. Alvarado, 897 S.W.2d 750,
753-54 (Tex. 1995). In determining if the excluded evidence probably resulted in the rendition of an improper
judgment, a court must review the entire record. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); Gee v.
Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). A court ordinarily will not reverse a judgment for
erroneous rulings on admissibility of evidence when the evidence in question is cumulative and not
controlling on a material issue dispositive to the case. Gee, 765 S.W.2d at 396. To obtain a reversal of a
judgment based on error in the exclusion of evidence, an appellant must show that the trial court's ruling was
in error and that the error was calculated to cause and probably did cause the rendition of an improper
judgment. Tex. R. App. P. 44.1; Alvarado, 897 S.W.2d at 753; McCraw, 828 S.W.2d at 757.
Given his full presentation of his expert's testimony, his cross-examination of Elizabeth's expert and his
waiver of his right to cross-examine Elizabeth, we are not persuaded that the exclusion of the evidence
Edward included in his bill of exception resulted in an improper judgment. We resolve Edward's second issue
as to rebuttal evidence against him.
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-01719-CV, 259
SW3d 343, 07-01-08) 2 petitions, pet. denied Nov. 2008)(prejudgment interest, admissibility of expert
testimony, harm analysis of evidentiary ruling by trial court, divorce fault grounds, prenup, stipulation