Protecting the Record
The top 10 ways lawyers unwittingly waive error for appeal.
By Kristen Jernigan
As an appellate attorney, nothing is more frustrating than reviewing a reporter’s record and finding an error that might entitle your client to relief that has not been preserved for appeal. Appellate courts are exceptionally strict about preservation of error, and while most attorneys are familiar with Texas Rules of Appellate Procedure 33.1, which requires a timely objection, motion, or request to preserve error for appeal, there are a number of other requirements for preserving appeal that must be observed. Listed below are the top 10 ways lawyers routinely and unwittingly waive error by failing to abide by those requirements. They apply primarily to criminal cases but have general applicability to all areas of practice. Along with the rules, I have included some practice tips I have learned along the way.
1) The attorney fails to continue to object every time the
evidence he or she seeks to exclude is offered. A vast number
of attorneys think that if they have objected to the evidence in
question once, the objection is sufficient to preserve error for appeal,
especially when a motion to exclude the evidence has been filed.
However, caselaw is clear that a party must continue to object every
time the evidence he or she seeks to exclude is offered.1 In
fact, any error in the admission of evidence is cured when the same
evidence is admitted elsewhere without objection.2
Practice Tip: When in doubt, always object. And, if you are concerned about annoying the jury with continued objections, ask for a running objection. That will suffice.3
2) The attorney fails to make a specific objection citing the
rule of evidence, legal principle, or constitutional basis upon which
the challenge is made. A challenge on appeal must comport with
the objection made at trial.4 If the trial objection is
general, rather than specific, error is not preserved as to a specific
claim raised on appeal.5
Practice Tip: To be on the safe side, when you make an objection at trial, list every rule of evidence, legal principle, or constitutional basis for your challenge. For example, if you are objecting that a piece of evidence is illegally seized, object on the basis of Texas Code of Criminal Procedure Article 38.23; Article 1, Section 9 of the Texas Constitution, and the Fourth Amendment to the U.S. Constitution. That way, all of the bases are covered for the appeal.
3) The attorney fails to obtain a ruling on his or her
objection. It is well settled that as a prerequisite to
presenting a point of error for appellate review, the record must show
that the complaint in question was made to the trial court by a timely
request, objection, or motion, and the trial court ruled on the request,
objection, or motion.6 Therefore, you must always obtain a
Practice Tip: After an objection is made, oftentimes a trial court will say something to the effect of “move along” or “rephrase your question.” These are not rulings. You must press the court to give you an actual ruling to preserve error for appeal. If the court refuses to rule, you are required to object to the court’s refusal.7
4) The attorney fails to submit a written or oral proposed
jury instruction. Texas Code of Criminal Procedure Article
36.14 requires that a proposed jury instruction be submitted in writing
or dictated into the record to preserve a challenge on appeal that the
instruction was not included in the court’s charge. Likewise, in the
civil context, Texas Rule of Civil Procedure 278 imposes the same
Practice Tip: A trusted colleague taught me to prepare my own jury charge before each trial. This is extremely helpful in identifying any special issues that may come up in your case. Also, during the charge conference, you can submit your own proposed charge and preserve any requested instructions at the same time. However, if you choose not to prepare your own charge, be sure to dictate your requested instruction into the record at the charge conference.
5) The attorney fails to obtain a written order memorializing
the court’s ruling. While not always fatal if there is an oral
ruling, it is always best to obtain a written ruling on your request or
motion. For example, in the discovery setting, the 5th Court of Appeals
in Dallas held that because the record did not contain an order granting
the appellant’s request for disclosure of the state’s expert witness,
the trial court did not err in allowing a detective to
testify.8 Also, in the mandamus setting, whether in the civil
or criminal context, the courts of appeals will summarily deny your
mandamus petition if a signed, certified copy of the order you are
challenging is not included in the appendix of your opinion.9
Practice Tip: We’ve all been there. We file our motions and the trial court doesn’t want to sign them because they know we are going to appeal their ruling. You must continue to urge the trial court to sign your proposed order or deny your request in writing to ensure your challenge will be preserved on appeal. If the trial court absolutely will not put its ruling in writing, make sure that an oral ruling is on the record and that your request that the ruling be in writing was made.
6) The attorney fails to request findings of fact and
conclusions of law on a dispositive motion. In the criminal
context, the losing party on a dispositive motion, such as a motion to
suppress evidence or statements, is required to request findings of fact
and conclusions of law so that the appellate court can properly review
the trial court’s analysis in making its ruling.10 While the
remedy for the failure to request findings and conclusions is a remand
to the trial court and not a complete denial of the claim, it is always
better to request findings of fact and conclusions of law when the facts
and circumstances are clear in everyone’s minds.11
Practice Tip: Even if I am the losing party, I always file my own proposed findings of fact and conclusions of law as a way of giving the court another chance to rule in my favor and to signpost how I plan to challenge the court’s ruling on appeal in hopes the court will reverse its ruling.
7) The attorney fails to request an extra peremptory strike
and identify an objectionable juror during jury selection.
After hours of voir dire and challenges for cause, it is such a shame to
see that most attorneys do not preserve error with this final step.
Specifically, in order to preserve error for review, a lawyer must show
that: (1) he or she asserted a clear and specific challenge for cause;
(2) he or she used a peremptory challenge on the complained-of venire
member; (3) his or her peremptory challenges were exhausted; (4) his or
her request for additional strikes was denied; and (5) an objectionable
juror sat on the jury.12
Practice Tip: Jury selection is often hectic and confusing. When possible, have another attorney sit with you during jury selection to keep track of your challenges for cause, peremptories, etc., and keep the above list handy so you can check off the requirements as you go. Also, be sure to identify the objectionable juror who sat on the jury by name or juror number and state why they were objectionable.
8) The attorney fails to ask for a continuance. When
previously undisclosed evidence, witnesses, or experts are disclosed
just before or during trial in violation of a discovery order, the
defendant is required to ask for a continuance to preserve error for
review on appeal.13 Even when Brady violations come
to light in the middle of trial, the defense is required to ask for a
continuance and the failure to do so waives any
Practice Tip: If previously undisclosed evidence or a witness comes to light just before or during trial, object to its admission and ask for a continuance to investigate the evidence or witness’ proposed testimony (especially if it’s an expert witness). It is also helpful to put on the record how your client has been prejudiced by the late disclosure of the evidence or witness since that is an integral part of the analysis on appeal.
9) The attorney fails to make an offer of proof. In
order to preserve a claim on appeal that evidence was improperly
excluded, you must make an offer of proof of what the evidence or
testimony would have been.15 This is because the appellate
court cannot review whether the evidence should not have been excluded
if it does not know what, specifically, it was.
Practice Tip: If the evidence excluded is testimony, you can either question the witness or proffer what the testimony would have been. You can do this with just the court reporter. The judge does not have to be present. If the evidence is a document, a video, etc., you can mark the evidence as a record exhibit and tender it to the court reporter to make sure it gets up to the Court of Appeals.
10) The attorney fails to challenge the indictment prior to
the day of trial. While this topic is solely for criminal
practitioners, it is an important one. Texas Code of Criminal Procedure
Article 1.14 sets out that a defendant must object to any defect in an
indictment before the day trial commences or the defect is waived.
Filing a motion to quash on the day of trial is too
Practice Tip: The foregoing rule has been extended in some unpublished cases to also implicate Texas Code of Criminal Procedure 28.01, which requires that all pre-trial motions be filed seven days prior to any scheduled pre-trial hearing and 10 days prior to trial. Do yourself a favor and file any motion to quash at your earliest convenience so you do not waive a serious issue that could result in an ineffective assistance of counsel claim. Also, the motion must be “presented” to the court, not just filed.17
By keeping the foregoing rules, cases, and tips in mind, you will have done your best to preserve appellate issues for your client and will make the appellate attorney that comes behind you very happy.TBJ
is a solo practice appellate and trial attorney who is certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization. She is also a former prosecutor and former staff attorney at the Texas Court of Criminal Appeals.