Case Takeaways
- 👨🏼‍💼During the divorce trial, husband’s lawyer asked the wife whether husband was violent with her.
- 👩🏻‍🦳She said he hit her so many times that she lost track.
- 👨🏼‍💼Husband’s lawyer objected to that response, but the doctrine of invited error applied (the person that asks the question cannot complain about the answer later)Â
- 👨🏼‍💼Then, husband’s lawyer asked wife if she had an affair during the marriage.
- 👩🏻‍🦳She said she had, and so the lawyer asked her the name of the person she had the affair with, and the wife’s lawyer objected to relevance. The Court did not allow the name of the person with whom the affair occurred to be admitted into evidence because it was irrelevant.
- 👨🏼‍💼The husband’s lawyer appealed that the Court improperly allowed evidence of the serially beating, and improperly did not have wife state the name of the person with whom the affair was with.
- Wife won.
Click the brief that you wish to download in preparation of your case or for your research.
In a Divorce, Does Is Identity Of The Person You Had An Affair With Become Public?
Based on this case, you could win an objection to relevancy and prevent admitting the name of the person you had an affair with.
In a Divorce, Can You Admit Evidence That Your Husband Was Violent With You?
Based on this case, particularly if you are asked by the opposing party about whether you were the victim of violence by your spouse, it is admissible.
Standard of Review for Exclusion of TestimonyÂ
“Appellant complains on appeal that the court erred in overruling his objection to an answer to his own question. Appellant’s Brief 9-10. Evidentiary rulings are committed to the trial court’s sound discretion. U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007) (per curiam). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or acts without reference to any guiding rules or principles. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). Even if the trial court abused its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., it probably resulted in an improper judgment. See TEX. R. APP. P. 44.1; Waldrip, 380 S.W.3d at132.” Appellee’s Brief
Texas Rule of Evidece 404b
Per Appellee’s brief: “Texas Rule of Evidence 404(b) provides “evidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” (emphasis added). Id. In other words, evidence of a crime committed in the past cannot be used to show that a defendant committed a different crime. Id. This rule does not, however, prevent testimony of a past crime or bad act from being admitted when relevant for other purposes. Id.”
How To Make An Offer of Proof According to Appellee’s Brief
“An appellate court does not reach the question of the propriety of the trial court’s evidentiary ruling unless the complaint has been preserved for review. In re Estate of Miller, 243 S.W.3d 831, 837 (Tex.App.—Dallas 2008, no pet.). To challenge on appeal the trial court’s ruling excluding evidence, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception. Id. An offer of proof informs the trial court of the substance of the excluded evidence. See TEX. R. EVID. 103(a)(2); Miller, 243 S.W.3d at 837. It must be made as soon as possible after the ruling, but before the court’s charge is read to the jury. See TEX. R. EVID. 103(b); Miller, 243 S.W.3d at 837. To adequately preserve error, the offer of proof must be specific. See Watts v. Oliver, 396 S.W.3d 124, 129 (Tex.App.—Houston [14th Dist.] 2013, no pet.). If no offer of proof is made before the trial court, then the complaining party must introduce the excluded evidence into the record by a formal bill of exception. Miller, 243 S.W.3d at 837. Texas Rule of Appellate Procedure 33.2 sets forth the requirements for a formal bill of exception. TEX. R. APP. P. 33.2; Miller, 243 S.W.3d at 837. “
Bill of Exception Law in Texas
Currently Rule 33.2 of the Texas Rules of Appellate Procedure reads:
To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception.
Form. No particular form of words is required in a bill of exception. But the objection to the court’s ruling or action, and the ruling
complained of, must be stated with sufficient specificity to make the trial court aware of the complaint.
Evidence. When the appellate record contains the evidence needed to explain a bill of exception, the bill itself need not repeat the evidence, and a party may attach and incorporate a transcription of the evidence certified by the court reporter.Procedure.The complaining party must first present a formal bill of exception to the trial court.If the parties agree on the contents of the bill of exception, the judge must sign the bill and file it with the trial court clerk. If the parties do not agree on the contents of the bill, the trial judge must–after notice and hearing–do one of the following things: sign the bill of exception and file it with the trial court clerk if the judge finds that it is correctsuggest to the complaining party those corrections to the bill that the judge believes are necessary to make it accurately reflect the proceedings in the trial court, and if the party agrees to the corrections, have the corrections made, sign the bill, and file it with the trial court clerk; orif the complaining party will not agree to the corrections suggested by the judge, return the bill to the complaining party with the judge’s refusal written on it, and prepare, sign, and file with the trial court clerk such bill as will, in the judge’s opinion, accurately reflect the proceedings in the trial court.
(3) If the complaining party is dissatisfied with the bill of exception filed by the judge under (2)(C), the party may file with the trial court clerk the bill that was rejected by the judge. That party must also file the affidavits of at least three people who observed the matter to which the bill of exception is addressed. The affidavits must attest to the correctness of the bill as presented by the party. The matters contained in that bill of exception may be controverted and maintained by additional affidavits filed by any party within ten days after the filing of that bill. The truth of the bill of exception will be determined by the appellate court.
TEX. R. APP. P. 33.2(a)-(c).
The Doctrine of Invited Error
The doctrine of invited error provides that a party cannot complain of an error which he has invited. Berry v. Segall, 315 S.W.3d 141, 143 (Tex. App.—El Paso 2010, no pet.). If a party moves to admit evidence, that party cannot complain on appeal that the evidence was improperly admitted. Sanchez v. Balderrama, 546 S.W.3d 230, 235 (Tex. App.—El Paso 2017, no pet.); Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex. App.—Tyler 1981, writ ref’d n.r.e.).Â
Standard of Review For Admitting EvidenceÂ
Per Appellant’s Brief: “This Court reviews the overruling of an objection to exclude testimony on the basis of Texas Rule of Evidence 404 for an abuse of discretion. Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.); Butler v. Hopkins, 05-99-01132-CV, 2000 WL 1210981, at *3 (Tex. App.—Dallas Aug. 28, 2000, no pet.). A trial court abuses its discretion only if it admits evidence when doing so lies outside the zone of reasonable disagreement. Id.”
Most Important Facts of This Case Per Appellee’s Brief:
Appellant, a serially abusive husband,1 and Appellee married in 1993. [RR 7]. Appellant left in 2012. [RR 7]. Appellant attacked Appellee many times during their marriage and Appellee pressed charges against Appellant at least three times. [RR
1 It is important to recognize that Appellant was a serially abusive husband as this is a factor that goes to showing that Appellant did not meet the requirements to show error. TEX. R. APP. P. 44.1(a).
9 9-10]. Appellant admitted to beating Appellee with a belt and going to prison for this assault. [RR 37]. During the trial for divorce the following exchange occurred:
Q. Okay. And obviously it was your claim that he had struck you?
A. He always did.
Q. Well, I’m not interested in what he’s always said [sic], I’m just interested in what happened during that incident?
A. There was so many times, I don’t remember.
MR. NATION: Objection, Your Honor, nonresponsive.
THE COURT: Sustained.
Q. (BY MR. NATION) Okay. And by the way, what’s funny to you about this?
A. There’s so many–
Q. I didn’t–I asked you–
A. There’s so many times that I lost track of how many times he hit me.
MR. NATION: Objection, Your Honor, nonresponsive, and not admissible under Rule 404B.
THE COURT: Well, she answered your question. I guess that’s what she thinks is funny.
Q. (BY MR. NATION) All right.
MR. NATION: So my objection is overruled?
10
THE COURT: Yes.
MR. NATION: Thank you.
Entire Case:
JEROME PORTER, Appellant,
v.
MARTHA REYES PORTER, Appellee.
Court of Appeals of Texas, Fifth District, Dallas.
On Appeal from the 255th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF-19-07439.
Affirmed.
Before Justices Partida-Kipness, Reichek, and Goldstein.
Opinion by Justice Partida-Kipness.
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, Justice.
Jerome Porter (Husband) appeals the divorce decree from his marriage to Martha Reyes Porter (Wife). Husband brings two evidentiary issues on appeal. He seeks reversal of the decree and asks this Court to remand for a new trial. After reviewing the parties’ briefs and the record, we affirm the final divorce decree.
BACKGROUND
The parties married in 1993 and separated in 2012. Husband filed his petition for divorce on April 12, 2019. Wife filed her counter petition for divorce on May 30, 2019. Both parties asserted that “the marriage has become insupportable because of discord or conflict of personalities” between the parties “that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” Wife further pleaded that she should be awarded a disproportionate share of the marital estate for several reasons including Husband’s fault in the breakup of the marriage. Husband did not seek a disproportionate share of the marital estate and did not plead that Wife was at fault for the breakup of the marriage.
The parties tried the case to the court on February 11, 2020. At the conclusion of the bench trial, the trial court issued a memorandum ruling in which the court granted the divorce on the grounds of insupportability and made eight findings concerning a just and right division of the community property. The trial court signed the final divorce decree on March 27, 2020. The trial court made no findings of fault.
Husband filed a motion for new trial. That motion was overruled by operation of law. Husband also filed a request for findings of fact and conclusions of law. The trial court did not issue findings or conclusions. This appeal followed.
ANALYSIS
Husband brings two issues on appeal, both of which complain of evidentiary rulings at trial. We will address each in turn.
I. Extraneous Offense Testimony
In his first issue, Husband argues that the trial court “erred” by overruling Husband’s objection to testimony given by Wife in response to a question asked by Husband’s counsel. At trial, Wife testified that Husband was physically abusive towards her during the marriage. She testified that Husband’s “last” assault on her occurred on February 11, 2012. Husband testified that he was convicted in 2000, 2002, and 2012 for family violence and served fourteen months of his sentence for the 2012 felony conviction. While being examined by Husband’s counsel, Wife testified as follows concerning one of three criminal complaints brought by Wife against Husband:
Q. Okay. And obviously it was your claim that he had struck you?
A. He always did.
Q. Well, I’m not interested in what he’s always said [sic], I’m just interested in what happened during that incident?
A. There was so many times, I don’t remember.
MR. NATION: Objection, Your Honor, nonresponsive.
THE COURT: Sustained.
Q. (BY MR. NATION) Okay. And by the way, what’s funny to you about this?
A. There’s so many —
Q. I didn’t — I asked you —
A. There’s so many times that I lost track of how many times he hit me.
MR. NATION: Objection, Your Honor, nonresponsive, and not admissible under Rule 404B.
THE COURT: Well, she answered your question. I guess that’s what she thinks is funny.
Q. (BY MR. NATION) All right.
MR. NATION: So my objection is overruled?
THE COURT: Yes.
MR. NATION: Thank you.
On appeal, Husband contends Wife’s statement that “[t]here’s so many times that I lost track of how many times he hit me” constituted inadmissible evidence of extraneous offenses barred by Rule 404(b). We disagree.
The decision whether to admit or exclude evidence is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “A trial court’s evidentiary ruling must be upheld if there is a legitimate basis for it.” May v. Buck, 375 S.W.3d 568, 573-74 (Tex. App.-Dallas 2012, no pet.) (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). “Even if the exclusion or admission of evidence is found to be an abuse of discretion, it does not warrant reversal unless the error probably caused the rendition of an improper judgment.” See id.
We conclude the trial court did not abuse its discretion by overruling Husband’s objection. Wife provided a responsive answer to a question asked by Husband’s counsel. Husband cannot now complain of the admission of an answer he deems unfavorable. See, e.g., Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 499 (Tex. App.-Corpus Christi-Edinburg 1999, no pet.) (party is not entitled to complain of responsive answers to questions that party asked the witness on cross-examination); Cherry v. State, 546 S.W.2d 922, 923 (Tex. Civ. App.-Dallas 1977, writ ref’d) (“A party is not permitted to ask questions, and then upon receiving responsive answers unfavorable to his cause, have the answers stricken from the record.”); Snavely v. Snavely, 445 S.W.2d 531, 532 (Tex. Civ. App.-Fort Worth 1969, no writ) (no error shown when testimony given in response to questions by appellant’s attorney). We overrule Husband’s first appellate issue.
II. Bill of Exceptions
In his second issue, Husband contends the trial court committed reversible error by improperly limiting the substance of a bill of exceptions. Specifically, Husband argues that the trial court committed reversible error by sustaining Wife’s objections to questions concerning the number of times Wife had sexual intercourse outside of the marriage and whether Husband became angry because he found out Wife “was talking to a doctor.” Relevant portions of that examination are below:
Q. Now, I’m going to ask you again, ma’am, have you been faithful to Jerome Porter during the marriage?
A. No.
Q. Okay. Have you had affairs with other men during the marriage?
A. One, yes.
Q. All right. And who was that and can you tell me the name of the person?
A. No.
Q. Why not?
A. Do I have to say his name?
MR. HOUSEL: Your Honor, we’d object with regards to the grounds of invasion of privacy. It is not relevant to the terms of this divorce.
MR. NATION: It is a bill of exception, Your Honor. If we appeal, the appellate court will decide whether it is relevant.
THE COURT: Okay. But the reason — why does he need to be named?
MR. NATION: Well, I am —
THE COURT: It is irrelevant what his name is.
MR. NATION: Well, I’ll move on, Your Honor.
. . . .
Q. Okay. Did you have sexual intercourse with this person at that time?
A. I did.
Q. All right. And how long did this relationship last?
A. About six months.
Q. Okay. And did you have sexual intercourse on few or many occasions?
MR. HOUSEL: Your Honor, I’ll object to the relevance of the number of times.
THE COURT: Sustained.
MR. NATION: All right.
Q. (BY MR. NATION) Did it happen more than once?
A. Yes.
. . . .
Q. At some point during your marriage, were you talking to a doctor and Mr. Porter found out and was angry; do you remember that?
A. No.
MR. HOUSEL: Your Honor, I’m going to object and vague with regard to talking to a doctor.
THE COURT: Sustained.
MR. NATION: I pass the witness for purposes of this bill of exception.
On appeal, Husband argues that the trial court committed reversible error by restricting his examination of Wife and preventing him “from showing the witness’ testimony and arguing its relevance.” We disagree.
“It is reversible error to refuse a party the right to perfect his bill of exceptions.” Ledisco Fin. Servs., Inc. v. Viracola, 533 S.W.2d 951, 959 (Tex. Civ. App.-Texarkana 1976, no writ) (citing Dorn v. Cartwright, 392 S.W.2d 181 (Tex. Civ. App.-Dallas 1965, writ ref’d n.r.e.)); TEX. R. APP. P. 44.1. During trial, the trial court sustained Wife’s objections to Husband asking if she was unfaithful to Husband during the marriage. Husband’s counsel reserved the right to make a bill of exceptions regarding the question of Wife’s infidelity. At the close of evidence, the trial court permitted Husband to make a bill of exceptions on the question of infidelity. During that examination, Wife admitted to having a six-month affair during which she had sexual intercourse with her lover more than once. No additional testimony was needed to show what was excluded during trial (i.e., whether Wife had been unfaithful during the marriage). The trial court, therefore, did not refuse Husband the right to perfect his bill of exceptions. Further, any specifics concerning the identity of Wife’s lover and the number of interactions between them was immaterial to the outcome of the case because Husband did not seek a finding of fault against Wife and the trial court made no findings as to fault. We conclude the trial court did not commit reversible error by sustaining Wife’s objections to questions posed during the presentation of the bill of exceptions. See Dorn, 392 S.W.2d at 186 (trial court did not err by refusing to allow appellant to obtain the answers of appellee in order to make out her bill of exceptions because such answers were immaterial to the outcome of the lawsuit).
Moreover, Husband has not shown or established that the trial court committed reversible error by excluding the identity of Wife’s lover and the number of interactions between them. “The party complaining about the exclusion of evidence must show by either a bill of exception or an offer of proof the substance of the evidence excluded.” Hogg v. Lynch, Chappell & Alsup, P.C., 553 S.W.3d 55, 67 (Tex. App.-El Paso 2018, no pet.) (quoting Katy Int’l, Inc. v. Jinchun Jiang, 451 S.W.3d 74, 96 (Tex. App.-Houston [14th Dist.] 2014, pet. denied)); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 484 (Tex. App.-Dallas 1995, writ denied) (same); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 429 (Tex. App.-Houston [1st Dist.] 1990, no writ) (same). Then, to obtain reversal of the judgment on the ground of improperly excluded evidence, the appellant has the burden to show that the rejection of the testimony he attempted to offer (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. TEX. R. APP. P. 44.1; Agric. Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, 694 (Tex. App.-Dallas 1988, writ denied) (after a party makes a proper bill of exceptions, the appellate court can review the evidence to determine if its exclusion constitutes reversible error) (citing former TEX. R. APP. P. 81(b)).
Under this record, we conclude the trial court’s rulings did not cause the rendition of an improper judgment or prevent Husband from properly presenting his case on appeal. The bill of exceptions includes Wife’s acknowledgment that she was unfaithful to Husband during the marriage. This Court can, therefore, look to that evidence and address Husband’s complaints concerning its exclusion. Moreover, Husband has not shown that the rejection of the testimony he attempted to offer probably caused the rendition of an improper judgment. The trial court made no findings as to fault and did not divide the marital estate disproportionately. The numerical extent of Wife’s infidelity and the identity of her lover or lovers was, therefore, immaterial to the division of the marital estate. Under this record, we conclude the trial court did not commit reversible error by excluding such testimony.
CONCLUSION
We conclude the evidentiary rulings of which Husband complains did not constitute an abuse of discretion and did not result in reversible error.
Accordingly, we overrule Husband’s appellate issues and affirm the final divorce decree.
JUDGMENT
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee MARTHA REYES PORTER recover her costs of this appeal from appellant JEROME PORTER.