CHAPTER 3.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Irrelevant 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 Irrelevant Evidence). The motion is based upon the ground that the evidence is irrelevant and immaterial to the issues in this action and therefore inadmissible.

2. Motion Summary

This motion is used to exclude irrelevant evidence, i.e., evidence that neither proves or disproves any of the facts in issue or that is unable to support any reasonable inference or presumption regarding the matters in dispute pursuant to the authority of Texas Rule of Evidence 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); Jones v. Red Arrow Heavy Hauling, Inc., 816 S.W.2d 134, 135 (Tex. App.—Beaumont 1991, writ denied). Irrelevant evidence may be excluded by in limine motion. Estate of Finney, 424 S.W.3d 608, 614 (Tex. App.—Dallas 2013, no pet.); Gravis v. Parke-Davis & Co., 502 S.W.2d 863, 871 (Tex. Civ. App.—Corpus Christi 1973, reh'g denied, writ ref'd n.r.e.). Other evidence that may be excluded under the authority of Rule 402 includes that which is speculative [In the Matter of V.M.D., 974 S.W.2d 332, 350 (Tex. App.—San Antonio 1998, no writ)], outside the pleadings [Benavides v. Cushman, Inc., 189 S.W.3d 875, 883 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Benson v. Weaver, 250 S.W.2d 770, 772 (Tex. Civ. App.—Austin 1952), aff'd, 150 Tex. 50, 254 S.W.2d 95 (1952)], or undisputed [Blackburn v. State, 820 S.W.2d 824, 826 (Tex. App.—Waco 1991, pet. ref'd)].

Relevance, probative value, and materiality are not the same. Texas Rule of Evidence 401 defines "relevant evidence" in terms of the degree to which it is probative or material. Relevancy, as defined by Rule 401, "is not an inherent characteristic of any item or evidence but exists as a relation between an item of evidence and a matter properly provable in the case." Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). For evidence to be "material," it must be shown to be addressed to the proof of a material proposition. A material proposition is any fact that is of consequence to the determination of the action. If the evidence is offered to help prove a proposition that is not a matter in issue, the evidence is immaterial. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016); Jones v. State, 531 S.W.3d 309, 323 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). "Materiality" means that the proposition for which the evidence is offered must be of consequence to the determination of the action, as set out by the pleadings and the relevant substantive law. If the evidence is offered to prove a proposition that is not a material issue in the case, the evidence is said to be "immaterial." The probative value of the evidence relates to the strength of the relationship and can be either high or low; that is, it refers to how strongly the evidence serves to make more or less probable the existence of a fact of consequence to the litigation. 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); Andrews v. State, 429 S.W.3d 849, 865 (Tex. App.—Texarkana, 2014, pet. ref'd). Evidence is probative when it is more than a surmise or a suspicion and tends to prove the proposition. Jessop v. State, 368 S.W.3d 653, 694 (Tex. App.—Austin 2012, no pet.); Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref'd).

If your motion in limine has been denied, remember that any error in the admission of the evidence is not preserved by the ruling denying your motion in limine. You must object when the evidence is offered at trial to preserve error. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2016); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Similarly, even if your motion in limine is granted, you will still need to make a proper objection at trial to preserve error with regard to questions that are claimed to violate the motion. See, e.g., Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986); Rhey v. Redic, 408 S.W.3d 440, 460 (Tex. App.—El Paso 2013, no pet.); Martinez v. State, 345 S.W.3d 703, 705 (Tex. App.—Amarillo 2010, no pet.); Boulle v. Boulle, 254 S.W.3d 701, 709 (Tex. App.—Dallas 2008, no pet.). Thus, if a point in a motion in limine is granted, it does not exclude the evidence. Rather, the ruling requires the party who wants to present the challenged evidence to approach the bench during trial and inform the court that it is about to get into the challenged evidence. The objecting party must then make the objection on the record and the judge will enter a binding, appealable ruling. Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.6 (Tex. 1989); Fitzgerald v. Water Rock Outdoors, LLC, 536 S.W.3d 112, 121 (Tex. App.—Amarillo 2017, pet. denied); In re BCH Development, LLC, 525 S.W.3d 920, 925 (Tex. App.—Dallas 2017, orig. proceeding); Davlin v. State, 531 S.W.3d 765, 768 (Tex. App.—Texarkana 2016, no pet.).

If the other side has had a motion in limine granted against evidence you want to introduce, remember that to preserve error you must make an offer of proof under Texas Rule of Evidence 103(a)(2). See, e.g., Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018); Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732, 738 (Tex. App.—Houston [14th Dist.] 2018, no pet.); BNSF Ry. Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth 2014), rev'd on other grounds, 485 S.W.3d 908 (Tex. 2015). The reason for this is to enable an appellate court to determine whether the exclusion of the evidence was erroneous and harmful. Jones v. Mattress Firm Holding Corp., 558 S.W.3d 732, 738 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Linney v. State, 401 S.W.3d 764, 772 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

In order to preserve error, you must:

(1) approach the bench and ask for a ruling;
(2) formally offer the evidence; and
(3) obtain a ruling on the offer.

Fitzgerald v. Water Rock Outdoors, LLC, 536 S.W.3d 112, 121 (Tex. App.—Amarillo 2017, pet. denied); Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet. denied).

3. Supporting Authorities

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." 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).

Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018) ("Irrelevant evidence is not admissible. . . ." Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action.").

Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (trial court must act as evidentiary gatekeeper to exclude irrelevant and unreliable expert evidence).

Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (expert testimony must be relevant to the issues and based upon a reliable foundation).

Blasdell v. State, 384 S.W.3d 824, 830 (Tex. Crim. App. 2012) ("[I]f a hypothetical question fails to echo any particular 'event' that occurred in that particular case, it would result in expert testimony that is not relevant for purposes of Rule 702 because it does not 'fit' the facts of the case and therefore cannot help the jury.").

Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) ("[S]ame-transaction contextual evidence is admissible only when the offense would make little or no sense without also bringing in that evidence, and it is admissible only to the extent that it is necessary to the jury's understanding of the offense.").

Tillman v. State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) ("[T]he relevance inquiry is whether the evidence 'will assist the trier of fact' and is sufficiently tied to the facts of the case. . . . To be relevant, the expert must make an effort to tie pertinent facts of the case to the scientific principles that are the subject of his or her testimony.").

TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) (to be admissible, expert testimony must be relevant and based on a reliable foundation).

TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) (expert testimony based on an unreliable foundation or flawed methodology is unreliable and does not satisfy relevancy requirement).

State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (to be relevant, the expert's opinion must be based on the facts; to be reliable, the expert's opinion must be based on sound reasoning and methodology).

Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim. App. 2009) (when determining whether evidence is relevant, courts examine the purpose for which the evidence is being introduced).

Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim. App. 2009) (for evidence to be relevant, there must be some direct or logical connection between the actual evidence and the proposition sought to be proved).

City of San Antonio v. Pollack, 284 S.W.3d 809, 817 (Tex. 2009) (opinion testimony that is conclusory or speculative is not relevant because it does not tend to make the existence of a material fact more probable or less probable).

Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003)...