CHAPTER 2.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Prejudicial Evidence

1. Suggested Motion Text

(Name of Moving Party) hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony, or argument relating to (Describe Prejudicial Evidence). The motion is based upon the ground that the probative value of the evidence is substantially outweighed by the danger of undue prejudice to (Name of Moving Party).

2. Motion Summary

This motion is used to exclude prejudicial evidence. The motion is based upon the statutory balancing test of Texas Rule of Evidence 403, the key source for excluding evidence that will create a substantial danger of unfair prejudice, result in an undue delay of trial proceedings, confuse the issues, mislead the jury, or needlessly present cumulative evidence. See Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018); Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); Mitchell v. State, 377 S.W.3d 21, 28 (Tex. App.—Waco 2011, pet. dism'd, untimely filed). Note that Rule 403, as well as Rules 401 and 402, are essentially identical to Federal Rule of Evidence 403. Accordingly, Texas courts must give greater than usual deference to interpretations of the federal rules, either by federal courts or by commentary to the rules themselves. Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018); Bruton v. State, 428 S.W.3d 865, 873 (Tex. Crim. App. 2014); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Houston v. State, 208 S.W.3d 585, 590 (Tex. App.—Austin 2006, no pet.). Tex. R. Evid. 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Webb v. State, 575 S.W.3d 905 (Tex. App.—Waco 2019, pet. filed); Lopez v. State, 582 S.W.3d 377, 397 (Tex. App.—San Antonio 2018, pet. ref'd); Paz v. State, 548 S.W.3d 778, 795 (Tex. App.—Houston [1st Dist.] 2018, pet ref'd).

The trial court does not sua sponte engage in balancing the probative value against the prejudice, but rather does so only upon the sufficient objection by the party opposing the evidence. In re K.C.P., 142 S.W.3d 574, 584 (Tex. App.—Texarkana 2004, no pet.). Once this rule is invoked by such a proper objection, the trial court has no discretion as to whether to engage in the balancing process. In re K.C.P., 142 S.W.3d 574, 584 (Tex. App.—Texarkana 2004, no pet.). Unless the record shows that the trial court did not perform the balancing test, an appellate court will find no error when the trial court simply listens to the opposing party's objections to the admission of evidence and then overrules them. In re K.C.P., 142 S.W.3d 574, 584 (Tex. App.—Texarkana 2004, no pet.).

When arguing that evidence is unfairly prejudicial, keep in mind that Rule 403 applies only to relevant evidence. If the evidence you are concerned with is not admissible or is irrelevant, as defined by Rule 401, then you should exclude it under Rule 402. See Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990).

In general, even relevant evidence may be excluded if the probative value is substantially outweighed by the risk of undue prejudice. Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018); Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013); Perez v. DNT Global Star, L.L.C., 339 S.W.3d 692, 706 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

The trial court's exclusion of prejudicial evidence under Rule 403 is discretionary. See Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018); Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (under the abuse of discretion standard, the ruling of the trial court must be upheld on appeal if it is within the zone of reasonable disagreement); Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Burke v. State, 371 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd, untimely filed).

To overcome the presumption of admissibility for all relevant evidence and invoke the trial court's discretion under Rule 403, the probative value of the evidence must be substantially outweighed by the danger of unfair prejudice or from one of the other four factors listed in Rule 403. Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018). Even then, due to Rule 403's discretionary nature, it has been suggested that Rule 403 permits the court to admit unfairly prejudicial evidence by looking to other matters. See, e.g., Goodson v. Castellanos, 214 S.W.3d 741, 754 (Tex. App.—Austin 2007, pet. denied) (in a suit affecting the parent-child relationship, the guiding principle is the best interest of the child, and thus the exclusion of evidence under rule providing for exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice should be done sparingly).

When evidence is offered for limited purposes, but is prejudicial in other respects, limiting jury instructions cannot necessarily "unring the bell" or ask the jury "not to smell the skunk that's been tossed into the jury box." If evidence has a clear prejudicial effect on one issue, a limiting instruction to focus the jury's attention only on another issue may not be effective. Under such circumstances, a jury cannot be expected to parse out the ways in which the evidence can be considered and the ways it cannot. Huynh v. R. Warehousing & Port Servs., Inc., 973 S.W.2d 375, 378 (Tex. App.—Tyler 1998, no writ).

If faced with trying to exclude evidence that is highly prejudicial but is also highly probative (mandating admission), consider offering to stipulate to the facts. This may decrease the probative value of the evidence offered to prove such facts down to a level where the risk of unfair prejudice mandates exclusion. Tamez v. State, 11 S.W.3d 198, 199 (Tex. Crim. App. 2000) ("a defendant's stipulation to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions, yet substantially lessens the likelihood that the jury will improperly focus on the previous convictions or the defendant's 'bad character'"). See Robles v. State, 85 S.W.3d 211, 212 (Tex. Crim. App. 2002) ("evidence of the convictions' existence is not necessary if the accused stipulates to their existence because the statutory requirement has been satisfied. The admission of evidence of prior convictions is error, even though they are jurisdictional elements of the offense, because the danger of unfair prejudice from introduction of the evidence substantially outweighs its probative value.").

Note: The cases cited in this section support the general proposition that prejudicial evidence may be excluded under a Rule 403 balancing test. Because of the importance of this section, Rule 403 is cited throughout the remainder of this text, in addition to more specific case authorities supporting the point. While this format might appear repetitive when chapters are read sequentially, multiple references to Rule 403 are included as a reminder that it should be cited in addition to whatever other authorities may support the motion being brought. Note that a similar format has been followed for citations to Rule 402 (irrelevant evidence).

a. Rule 403 Factors to Consider

A criminal court considers six factors when determining whether to exclude evidence as unfairly prejudicial under Rule 403: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence weighed against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Gonzalez v. State, 544 S.W.3d 363, 371 (Tex. Crim. App. 2018); Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); Webb v. State, 575 S.W.3d 905 (Tex. App.—Waco 2019, pet. filed); Andrews v. State, 429 S.W.3d 849, 865 (Tex. App.—Texarkana 2014, pet. ref'd); Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref'd); Mitchell v. State, 377 S.W.3d 21, 28 (Tex. App.—Waco 2011, pet. dism'd, untimely filed). The balancing test set forth in the rules of evidence to determine the potentially prejudicial nature of relevant evidence carries a presumption that relevant evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003), cert. denied, 540 U.S. 1185, (2004); Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997); Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref'd).

Similarly, in civil cases, if the trial court determines that the proffered expert testimony is relevant and reliable, then it must determine whether to exclude the evidence because its probative value is outweighed by: the danger of unfair prejudice, confusion of the issues, or misleading the jury; by considerations of undue delay or by needless presentation of cumulative evidence. E.I. du Pont de...