Norman v. State, 49973
| Decision Date | 04 June 1975 |
| Docket Number | No. 49973,49973 |
| Citation | 523 S.W.2d 669 |
| Parties | Charles NORMAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Wayne Bagley, Amarillo, for appellant.
Tom Curtis, Dist. Atty., John J. Wheir, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
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.
The record reflects that the following constituted the only further consideration of the subject matter of the motion in limine:
'(The following proceedings were had at the bench out of the hearing of the jury.)
The purpose of a motion in limine 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.
I concur in the affirmance of this conviction, but would do so upon the basis that appellant failed to perfect his bill of exception and would not engage in an unnecessary discussion of the purpose of a motion in limine and other matters not germane here.
Appellant's punishment was assessed at eight (8) months in jail and at a fine of $1,000 by the jury following his conviction for bookmaking.
In his sole ground of error appellant complains of the court's action in sustaining the State's motion limiting the cross-examination of Glen Charles Hill, a witness for the prosecution.
The record reflects that Hill, while working as an undercover agent for the Amarillo Police Department, made the case against the appellant and was thus the State's material witness.
Prior to trial the State filed at least three motions in limine, requesting in the first that defense counsel be instructed not to mention, refer or allude to 'any alleged action of misconduct, if any, on the part of' Hill, 'which did not result in a conviction in a court of record for a crime involving moral turpitude' and further requested counsel be instructed not to refer to 'the sentence' in the State v. Bluejacket case. The other two motions in limine by the State asked that defense counsel be instructed not to elicit the 'results' of the Phillips case or the 'disposition' of the Bewley case.
The court entered a written order granting all three motions. It also orally granted the three motions before the commencement of trial, stating when counsel asked for a clarification as to the motions as to Bewley and Phillips, 'Well, am I correct that Bewley was dismissed and that Phillips was acquitted?' The prosecutor replied in the affirmative. In connection with the first motion mentioned, the court stated:
On cross-examination of Hill appellant established that, among other places, Hill had lived in Sayre, Oklahoma, where he had been employed by the police department for 'not quite a month.' At this point appellant's counsel approached the bench and stated, out of the hearing of the jury, 'Your Honor, I want to go into him being fired from the Police Department in Sayre.' The court indicated, 'I will stand with the Motion (in limine),' to which action the appellant excepted. At no time did the appellant by informal bill of exception, offer proof by a concise statement...
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