Opinion
No. 14-07-00603-CV
Memorandum Opinion filed November 18, 2008.
On Appeal from the 270th District Court Harris County, Texas, Trial Court Cause No. 2005-43599.
MEMORANDUM OPINION
Appellants, K.H. and R.H., appeal from a jury verdict in favor of their adopted daughters, L. Doe and M. Doe. The Does sued appellants alleging that K.H. sexually assaulted them and that his wife, R.H., knew of but failed to report the assaults to the proper authorities. In their sole issue on appeal, appellants contend that the trial court erred in admitting evidence of K.H.'s conviction for aggravated sexual assault of M. Doe. We affirm.
BACKGROUND
In 2004, a Harris County jury convicted K.H. of felony aggravated sexual assault of his adopted daughter, M. Doe, a child. The jury assessed punishment at twenty-five years' imprisonment and a $10,000 fine. Following the criminal trial, both daughters brought a civil suit against appellants seeking compensatory and exemplary damages. Prior to trial, appellants sought to exclude evidence of the conviction through a motion in limine, which was denied. During trial, the Does' therapist, Dr. Robbie Burnett, testified that the criminal conviction bolstered her opinion that the Does' allegations were genuine. Appellants did not object to the reference to the conviction, and did not ask that the jury to be instructed to disregard the testimony. Instead, appellants later moved for a mistrial, arguing that the jury had been unduly influenced by the evidence of the conviction. The motion was denied.
Subsequently, K.H. testified that he had never sexually assaulted his daughters, and that the allegations made against him were false. In response to his testimony, the Does' counsel explained, outside of the presence of the jury, that he intended to impeach K.H. using the felony conviction. Appellants' counsel objected to the proposed introduction of the conviction to impeach K.H. because, he claimed, the danger of unfair prejudice outweighed the probative value of the evidence. The trial judge overruled the objection. In the jury's presence, K.H. then answered affirmatively when asked if a judgment for aggravated sexual assault of a child had been entered against him. The jury returned findings in favor of the Does, and the court entered judgment against appellants. They now appeal claiming the court should not have admitted evidence of the conviction because its prejudicial effect outweighs the probative value.
STANDARD OF REVIEW
We review a trial court's evidentiary rulings under an abuse-of-discretion standard. See Nat'l Liab. Fire Ins. Co. v. Allen, 15 S.W.3d 525, 528 (Tex. 2000) (citing Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983)). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). We may not substitute our judgment for that of the trial court. Id. In reviewing the trial court's decision to admit a prior conviction into evidence, we must accord the trial court "wide discretion." Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992) (citing United States v. Oaxaca, 569 F.2d 518, 526 (9th Cir. 1978)). As long as the trial court's evidentiary ruling was at least within the zone of reasonable disagreement, an appellate court may not disturb it. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007); State v. Vasquez, 230 S.W.3d 744, 747 (Tex.App.-Houston [14th Dist.] 2007, no pet.). A ruling permitting use of a prior conviction to impeach will be reversed only upon a showing of a clear abuse of discretion. Theus, 845 S.W.2d at 881.
PRESERVATION OF ERROR
We do not address appellants' substantive argument because we find that error was not properly preserved for our review. See Hasty, Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 501 (Tex.App.-Dallas 1995, writ denied). A party may not challenge the admission of evidence on appeal unless he pursued an adverse ruling at the trial court level by: (1) objecting to or moving to strike the complained-of evidence, (2) requesting the court to instruct the jury to disregard the evidence, and, finally, (3) moving for a mistrial. Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73, 77 (Tex.App.-Corpus Christi 1993, writ denied); Harlow v. Swift Co., 491 S.W.2d 472, 477 (Tex.App.-Eastland 1973, writ ref'd n.r.e.). A timely objection or motion to strike must be made at the time the evidence is offered, the objecting party must state the specific ground of objection, and the party must obtain a ruling on its objection. Tex. R. Evid. 103(a); see also Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm'n, 809 S.W.2d 268, 272 (Tex.App.-Austin 1991, writ denied); Guzman v. Soliz, 748 S.W.2d 108, 111 (Tex.App.-San Antonio 1988, writ denied); MBank Dallas N.A. v. Sunbelt Mfg., Inc., 710 S.W.2d 633, 638 (Tex.App.-Dallas 1986, writ ref'd n.r.e.); Duke v. Power Elec. Hardware Co., 674 S.W.2d 400, 405 (Tex.App.-Corpus Christi 1984, no writ). An objection must identify the offending part of the proffered evidence and the rule that the court will violate if it admits the evidence. See United Cab Co. v. Mason, 775 S.W.2d 783, 785 (Tex.App.-Houston [1st Dist.] 1989, writ denied).
Appellants filed a motion in limine seeking a preliminary determination that evidence of the conviction was inadmissible, which was denied by the trial court. However, a ruling on a motion in limine is not a ruling on admissibility and does not preserve error for appellate review. Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Therefore, the court's ruling on the motion in limine did not preserve error for our review. There was also an off-the-record discussion held by the trial judge and counsel for both parties immediately after Dr. Burnett mentioned K.H.'s conviction, but the record does not show an objection or request that the testimony be stricken or that the jury be instructed to disregard the testimony. Appellants' failure to object on the record and obtain an adverse ruling waived the error. See One Call Sys. v. Houston Lighting Power, 936 S.W.2d 673, 677 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Appellants did move for a mistrial following Dr. Burnett's testimony, but because there was no timely objection made on the record and no request for the jury to disregard, error was not preserved for appeal. See Penry v. State, 691 S.W.2d 636, 649-50 (Tex.Crim.App. 1985); Gilchrest v. State, 904 S.W.2d 935, 938 (Tex.App.-Amarillo 1995, no pet.).
When appellants subsequently objected to the use of the conviction to impeach K.H.'s testimony, it had already been admitted into evidence without objection. An objection to evidence is waived if the same evidence was previously admitted without objection, even though the evidence is in a different form. Celotex Corp. v. Tate, 797 S.W.2d 197, 201 (Tex.App.-Corpus Christi 1990, writ dism'd) (citing Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984)). Consequently, because appellants failed to pursue an adverse ruling after evidence of the conviction was initially admitted, they waived any complaint regarding the admission of the evidence and preserved nothing for appellate review. See Hur v. City of Mesquite, 893 S.W.2d 227, 232 (Tex.App.-Amarillo 1995, writ denied) (citing Cook v. Caterpillar, Inc., 849 S.W.2d 434, 442 (Tex.App.-Amarillo 1993, writ denied)).
CONCLUSION
After determining that the appellants failed to preserve the alleged error for appellate review, we overrule the sole point raised on appeal, and affirm the trial court's judgment.