CHAPTER 1.I. Motion in Limine Use and Procedure

• Jurisdiction: United States

I. Motion in Limine Use and Procedure

A. Description and Purpose of Motion

1. Generally

The purpose of a motion in limine is to prevent the other party from asking prejudicial questions and introducing objectionable evidence in front of the jury without first asking the court's permission. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2016); In re Hightower, 580 S.W.3d 248, 254 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding); In re BCH Development, LLC, 525 S.W.3d 920, 925 (Tex. App.—Dallas 2017, orig. proceeding); Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 54 (Tex. App.—San Antonio 2006, no pet.); Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, no pet.). It has been described as a "means of raising objections to a general area of inquiry prior to the matter reaching the ears of the jury through testimony, jury argument, or other means." Taylor v. State, 555 S.W.3d 765, 780 (Tex. App.—Amarillo 2018, pet. filed); see Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975). The primary advantage of a motion in limine is to avoid the futile attempt of trying to undo the harm done when jurors have been exposed to damaging evidence, even where that evidence is later stricken by the court. By raising evidentiary issues prior to the beginning of trial, motions in limine allow for more careful consideration of evidentiary issues than would take place during the heat of battle during trial. In so doing, the motion in limine may minimize sidebar conferences and disruptions during trial and enhance the efficiency of trials and promotion of settlements by resolving potentially critical issues at the outset.

Note: A proceeding challenging standing in probate is sometimes referred to as an in limine proceeding, because it is a threshold or preliminary proceeding before the trial. In re Estate of Chapman, 315 S.W.3d 162 (Tex. App.—Beaumont 2010, no pet.); Edwards v. Haynes, 690 S.W.2d 50 (Tex. App.—Houston [14th Dist.]), rev'd on other grounds, 698 S.W.2d 97 (1985).

2. Authority for Motion

While not expressly authorized by statute, motions in limine are commonly used trial tools that are entertained and granted within the trial court's inherent powers. Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref'd); Kendrix v. S. Pac. Transp. Co., 907 S.W.2d 111, 113 (Tex. App.—Beaumont 1995, writ denied).

Texas case law makes a distinction between a true "motion in limine," which is preliminary in nature and broad in scope, and a pretrial ruling on the admissibility of evidence. See Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003); In re Hightower, 580 S.W.3d 248, 254 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding); Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). All pretrial motions seeking to exclude evidence are not motions in limine. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). If the relief requested in the motion is the exclusion of evidence, it is not a motion in limine, but a motion to exclude evidence. In re Hightower, 580 S.W.3d 248, 254 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding); Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577, 583 (Tex. App.—Austin 2002, no pet.); Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied).

a. Texas Rule of Evidence 402

Texas Rule of Evidence 402 states that "evidence which is not relevant is inadmissible." Relevant evidence is defined by Texas Rule of Evidence 401 as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401; See Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 34 (Tex. 2014); Rhey v. Redic, 408 S.W.3d 440, 460 (Tex. App.—El Paso 2013, no pet.) (to be relevant, there must be some logical connection either directly or by inference between the fact offered and the fact to be proved).

b. Texas Rule of Evidence 403

Texas Rule of Evidence 403 states that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." See Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 34 (Tex. 2014); Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012).

c. Texas Rule of Evidence 103

Texas Rule of Evidence 103 provides in relevant part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.

(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may, or at the request of a party shall, direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (Emphasis added.)

d. Texas Rule of Evidence 104

Texas Rule of Evidence 104(a) provides,

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Texas Rule of Evidence 104(c) further states:

In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.

e. Texas Rule of Civil Procedure 166

Texas Rule of Civil Procedure 166 provides, in relevant part:

In an appropriate action, to assist in the disposition of the case without undue expense or burden to the parties, the court may in its discretion direct the attorneys for the parties and the parties or their duly authorized agents to appear before it for a conference to consider:
. . .
(g) The identification of legal matters to be ruled on or decided by the court;
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(l) The marking and exchanging of all exhibits that any party may use at trial and stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party's exhibits, stating the basis for each objection;
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(p) Such other matters as may aid in the disposition of the action.
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The court shall make an order that recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when issued shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

3. Typical Use of Motion

A typical in limine order excludes the category of challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters in the presence of the jury before the trial court has ruled on admissibility. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013) (orig. proceeding); Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003); In re Hightower, 580 S.W.3d 248, 254 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding); In re V.A.G., 528 S.W.3d 172, 175 (Tex. App.—El Paso 2017, orig. proceeding). When a trial court issues an order granting a motion in limine, the opposing party has a duty to comply with that order...