In re Estate of Trawick

• Citation: 170 S.W.3d 871
• Decision Date: 18 August 2005
• Docket Number: No. 06-04-00083-CV.,06-04-00083-CV.
• Parties: In the ESTATE OF Viola Conner TRAWICK, Deceased.
• Court: Supreme Court of Texas

170 S.W.3d 871

In the ESTATE OF Viola Conner TRAWICK, Deceased.

No. 06-04-00083-CV.

Court of Appeals of Texas, Texarkana.

Submitted May 24, 2005.

Decided August 18, 2005.

COPYRIGHT MATERIAL OMITTED

Robert M. Minton, Minton & Brown, PLLC, Henderson, for appellant.

John R. Mercy, Mercy* Carter* Tidwell, LLP, Texarkana, Clay Wilder, Wilder & Wilder, PC, Henderson, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

This case is a will contest. Viola Conner Trawick, at age ninety-two, executed a self-proving will March 11, 1998, naming her sister's daughter, Reva Risinger, as independent executor and as sole beneficiary of her estate. Trawick died May 1, 2000. The will was admitted to probate May 26, 2000. On January 5, 2001, some of Trawick's grandchildren, Deborah de la Torie Shoemake, Ronnie de la Torie, Larry de la Torie, Joe Dan Hamilton, Teresa Coffin, Danny Hamilton, Bobby Hamilton, Tracy Hamilton, and Anita Hamilton (the contestants) filed a will contest, alleging Trawick lacked testamentary capacity, or alternatively, that Trawick signed the will as a result of Risinger's undue influence. The case was tried before a jury. After the evidence was closed, the trial court sustained Risinger's objection to submitting the issue of undue influence to the jury. The contestants do not complain of this action on appeal. The jury found that Trawick did have testamentary capacity March 11, 1998, and awarded Risinger her attorney's fees. The trial court rendered judgment on the jury's verdict.

The contestants appeal, alleging two points of error. Their first point concerns the testimony of Ted LeDet, a medical doctor, called by Risinger as an expert witness. The contestants allege the trial court erred in three ways concerning LeDet's testimony: 1) in refusing voir dire examination of the doctor to test his qualifications; 2) in allowing the doctor to testify as to the mental capacity of Trawick; and 3) in denying their motion to strike the doctor's testimony. In their second point of error, the contestants contend the evidence supporting the jury's finding of testamentary capacity is factually insufficient. We affirm the trial court's judgment because: 1) all the complaints the contestants make concerning LeDet's testimony were waived by their failure to make a timely objection; and 2) the evidence supporting the jury's finding of testamentary capacity is factually sufficient.

Expert Testimony

The trial court has broad discretion in determining whether to allow expert testimony. McKinney v. Nat'l Union Fire Ins. Co., 747 S.W.2d 907, 910 (Tex. App.-Fort Worth 1988), aff'd, 772 S.W.2d 72 (Tex.1989); see TEX.R. EVID. 702. The expert evaluates the facts, and his or her evaluation must meet three prerequisites: 1) a body of scientific, technical, or other specialized knowledge must exist that is pertinent to the facts in issue; 2) the witness must have sufficient experiential capacity in his or her field of expertise; this capacity encompasses knowledge, training, and education; and 3) the facts evaluated must be within the witness' field of specialized knowledge. Guentzel v. Toyota Motor Corp., 768 S.W.2d 890, 897 (Tex.App.-San Antonio 1989, writ denied). However, the weight given the testimony of an expert witness is to be determined by the trier of fact. First City Bank-Farmers Branch v. Guex, 659 S.W.2d 734, 739 (Tex.App.-Dallas 1983), aff'd, 677 S.W.2d 25 (Tex.1984).

Under Rule 702, scientific expert testimony must be reliable and relevant. Thus, in addition to showing that an expert witness is qualified, Rule 702 requires the proponent to show that the expert's testimony is relevant to the issues in the case and is based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554-55 (Tex.1995) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); see generally Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex.1998).

A party has two fundamental options to preserve a complaint concerning an expert's testimony: object to the testimony before trial or object when it is offered. Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002); Maritime Overseas Corp., 971 S.W.2d at 409. Here, the contestants did neither.

LeDet's deposition had been taken by the parties, so the contestants were apparently aware of his qualifications—or lack thereof—and the opinions he would be expected to express at trial. Nonetheless, no pretrial motion was filed—and no pretrial hearing held—challenging LeDet's qualifications or opinions. The contestants waited until LeDet had begun his testimony at trial to raise any question concerning his qualifications. The context of that initial challenge was as follows:

[CONTESTANTS' COUNSEL]: Your Honor, at this time, we'd like to take Dr. Le Det on voir dire examination before we go any further.

[RISINGER'S COUNSEL]: What is the purpose, Your Honor?

THE COURT: And the reason?

[CONTESTANTS' COUNSEL]: The purpose is going into any qualifications for the subject matter of this proceeding we're in here today.

. . . . [CONTESTANTS' COUNSEL]: He's not been shown as a specialist in the field of psychiatry or trained in psychiatry or anything of that kind.

THE COURT: I think that's premature. And so, before—I'll give you an opportunity to go into those matters before his opinion as a dissident [sic]....

The contestants cite Rule of Evidence 705 as authority for their contention the trial court erred in denying their voir dire examination. That rule provides, in relevant part, as follows:

(b) .... Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. . . .

(c).... If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion ... the opinion is inadmissible.

TEX.R. EVID. 705(b), (c) (emphasis added).

The contestants' request to voir dire the witness for the purpose of "going into" his qualifications did not invoke these rules pertaining to inquiry into "the underlying facts or data" on which the expert's opinions are based. Even if it did, Rule 705(b) clearly makes such voir dire discretionary in a civil case. The use of the word "may" creates discretionary authority in the trial court. TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005).

Further, contrary to the contestants' contention, the trial court did not refuse their request to voir dire the witness; it merely ruled that such request was premature. The contestants never renewed their request and made no objections to the following testimony by LeDet on direct examination:

[RISINGER'S COUNSEL]: And based on your assessment of her in October of '97 and your assessment of her in October of '98, do you have an opinion that in March of '98 she would have had the mental ability to understand the making of a will?

[LeDET]: There is nothing from my recollection or in the notes that I have about Mrs. Trawick that would suggest that she could not understand and do—make a will or understand her finances.

. . . .

[RISINGER'S COUNSEL]: Back in the '97, '98 window that we talked about. Really any time leading up to February, 2000, in your opinion did she have sufficient mental capacity to make a will?

[LeDET]: Yes, sir. The '97, '98 time frame. Yes, sir.

[RISINGER'S COUNSEL]: And again, is that based on your years of training and medical experience that you told us about?

[LeDET]: Yes, sir.

. . . .

[RISINGER'S COUNSEL]: Doctor, have your opinions expressed today been based on reasonable medical probability?

[LeDET]: Yes, sir.

The contestants cross-examined LeDet concerning his opinions, but never asked any questions concerning his qualifications. It was only after LeDet had been excused as a witness and Risinger rested her case that the contestants then moved the trial court to strike LeDet's testimony. Such motion came too late. See Rodgers v. State, 162 S.W.3d 698, 707 (Tex.App.-Texarkana 2005, pet. filed).

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, unless such grounds are apparent from the context. See TEX.R.APP. P. 33.1(a); see also TEX.R. EVID. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991). The Texas Supreme Court directly addressed the waiver issue in this context in Maritime Overseas:

Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush. . . .

Reviewing courts may not exclude expert scientific evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted.

Maritime Overseas Corp., 971 S.W.2d at 409.

Here, the contestants' objection to LeDet's testimony was untimely; hence, it was waived. Their first point of error is overruled.

Sufficiency of the Evidence

Citing Rule 38.1(h) of the Texas Rules of Appellate Procedure, Risinger suggests the contestants have not properly briefed their contention that the evidence supporting the jury's finding of testamentary capacity is factually insufficient. We agree, but will address their contention in the interest of justice.

Standard of Review

Because the contestants filed their contest after the will at issue had been admitted to probate, the burden of proof was on them to establish Trawick lacked testamentary capacity. See In re Estate of Robinson, 140 S.W.3d 782, 793...