Opinion
No. 05-05-01549-CV
Opinion issued October 5, 2006.
On Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-11587-D.
Affirmed.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
In this negligence case, David Morris claims the trial judge erred in excluding medical expense affidavits. Because we conclude the record does not support appellant's contention, we overrule his issue and affirm the trial court's judgment.
Texas Rule of Evidence 103 provides that error may not be predicated on a ruling that excludes evidence unless (i) a substantial right of the party is affected, and (ii) "the substance of the evidence was made known to the court by offer, or was apparent from the context in which questions were asked." Tex. R. Evid. 103(a)(2). Although appellant claims the trial judge erred in excluding medical expense affidavits because the "medical records were in proper form and had been filed with the clerk for the proper amount of time," our review of the reporter's record reveals appellant did not offer the records at trial, nor did he ask any questions relating to the records. Therefore, the record does not reflect that the "substance of the evidence was made known" to the trial judge at trial. It follows that the trial judge could not have erred in not admitting them.
In reaching this conclusion, we note that appellant's reliance on this Court's opinion in Turner v. Peril, 50 S.W.3d 742 (Tex.App.-Dallas 2001, pet. denied) is misplaced. In Turner, we held that, although Turner did not make a formal bill of exception, he nevertheless preserved error and the requirements of rule 103 were met because Turner (i) filed the affidavits in question with the trial court in compliance with section 18.001 of the Texas Civil Practices and Remedies Code, (ii) offered the affidavits at trial, and (iii) obtained a definitive ruling on his offer. Turner, 50 S.W.3d at 744-45. We noted the limited nature of our holding:
Our holding applies only when (1) the affidavits and counteraffidavits are properly filed under section 18.001, (2) the reporter's record demonstrates the trial court ruled on the affidavits and counteraffidavits and was aware of their substance, and (3) the affidavits and counteraffidavits appear in the clerk's record, if not in the reporter's record. Although we have ruled the affidavits and counteraffidavits are properly before the court, the better practice would have been to offer the affidavits and counteraffidavits admitted as a bill of exception. We emphasize the limited nature of our holding.
Turner, 50 S.W.3d at 745 (emphasis added).
In this case, the reporter's record does not demonstrate (i) appellant offered the affidavits at trial, (ii) the trial judge was aware of their substance, or (iii) appellant obtained a definitive ruling from the trial judge on his offer. Therefore, we conclude the facts and holding of Turner do not apply to this case. We overrule appellant's sole issue on appeal.
We affirm the trial court's judgment.