Norman v. State

523 S.W.2d 669, 1975 Tex. Crim. App. LEXIS 994

• Court: Court of Criminal Appeals of Texas
• Decided: June 4, 1975
• Docket: 49973
• Status: Published

Opinions

OPINION

ODOM, Judge.

Appellant was convicted of bookmaking; punishment was assessed at eight months in jail and a fine of one thousand dollars.

In his only ground of error, appellant asserts the trial court erred in granting the State’s motion in limine limiting cross-examination of a State witness. In ruling upon the motion, the trial court explained its ruling as follows, indicating the proper purpose of a motion in limine:

“I will grant the motion until the Defendant approaches the bench and gives me a chance to rule on it outside the presence of the jury.

* * * * ⅜ *

“Counsel, I’m not telling you that if you will present this to me outside the hearing of the jury it won’t be admissible, that’s not what I’m saying. I am simply saying I want to hear it outside the presence of the jury before you go into it.”

The record reflects that the following constituted the only further consideration of the subject matter of the motion in lim-ine:

“[Defense counsel]: Your Honor, may we approach the bench ?

“THE COURT: You may.

“(The following proceedings were had at the bench out of the hearing of the jury-)

“[Defense counsel]: Your Honor, I want to go into him being fired from the Police Department in Sayre.

“THE COURT: Well, I think that’s in the Motion in Limine, and I will stand with the motion, counsel.

“[Defense counsel]: Note our exception.

“THE COURT: I will stand with the previous ruling.”

The purpose of a motion in lim-ine is to prevent particular matters from coming before the jury. It is, in practice, a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means. As such, it is wider in scope than the sustaining of an objection made after the objectionable matter has been expressed. However, it is also, by its nature, subject to reconsideration by the court throughout the course of the trial. This is because it may not be enforced to exclude properly admissible evidence.

From the mere granting of a motion in limine, it is not possible for the reviewing court to know what, if any, specific evidence or other matters have been excluded.¹ It is upon a reconsideration and the offer and exclusion of specific matter that the record is made to show what in fact was excluded from presentation to the jury, and it is upon such a record that the reviewing court must make its determination of whether reversible error is reflected in the record. Consequently, it is not the granting of a motion in limine which constitutes the basis for complaint on appeal, particularly since such disposition of the motion is subject to reconsideration upon tender of admissible evidence; it is, rather, the exclusion of the particular matter offered with the request for reconsideration which must be the basis for complaint on appeal.²

The record in the instant case does not reflect a tender and exclusion of particular evidence. There is no showing of what evidence, if any, was improperly excluded. Counsel merely requested to go into matters within the scope of the motion without showing what evidence he would have presented to the jury. Nothing is presented for review.

The judgment is affirmed.

1 . The ruling of a court on a motion in limine is not within the scope of the rule of Article 40.09(6) (d) (3), Vernon’s Ann.C.C.P., which provides that an objection “to offered evidence out of the presence of the jury” need not be “renewed in the presence of the jury.” Powers v. State, Tex.Cr.App., 456 S.W.2d 97, is not in conflict with the rule announced here. Involved there was the admissibility of specific evidence, which is precisely what is not the case here. This is one distinction between a motion in limine and a motion to suppress.

2 . In Brazzell v. State, Tex.Cr.App., 481 S.W. 2d 130, 131, this Court said:

“ . . . Generally, a motion in limine will not preserve error to the admission of inadmissible evidence. The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action. But for error to be preserved on appeal with regard to the admission of inadmissible evidence, objection thereto should be made at the time the evidence is offered.”