Select Page

Texas Pretrial Procedure
South Texas College of Law Houston
Davis, Byron

I. STANDARDS OF APPELLATE REVIEW
a. Introduction
i. Unless the court’s mistake was “calculated to cause and probably did cause” an improper judgment; that is, unless it changed the outcome of the case, the error will be said to be harmless and there will be no reversal.
1. Fundamental/incurable error has almost completely disappeared
ii. Harmless Error
1. Ø guarantee of perfect trial – merely fair trial.
2. Most error is harmless error.
iii. Requirements for reversal: [IMPORTANT] 1. Counsel clearly pointed out what the court was doing wrong;
2. Counsel gave the court the proper “grounds” for the complaint (rule or precept being violated);
3. Counsel told the court how to avoid or correct the error (unless clear from the protest); AND
4. Court clearly rejected the protest (overruled the objection).
b. Abuse of Discretion
i. Discretion means that on a given set of facts, one judge might rule one way and another judge another way, either ruling would be affirmed on appeal as within the court’s discretion.
ii. TEST: Trial court could have reached only one decision.
1. Some deference to judge on questions of fact.
a. Judge was there, heard the evidence.
2. NO deference on questions of law.
iii. Clear Abuse of Discretion
1. Clear failure by the court to correctly analyze or apply the law to the facts at hand; AND
2. Prejudicial result.
c. Evidentiary Support of Fact-Finding
i. Considerations
1. Burden of Production
a. Assignment by law to one party the burden to provide proof for a party’s claim or defense.
b. If no one produces evidence to move the case off dead center, the party with the burden of production loses.
2. Elements of a Cause of Action
a. Substantive legal requirements associated with a specific claim or defense that must be proven to successfully make the claim or defense.
3. Concept of Legal Sufficiency
a. Legal benchmark of factual support and/or substantive law required to successfully make claim or defense.
i. Historical facts – did something happen sufficient to support a claim?
ii. Mixed question – did factual occurrence meet definition of element of claim?
iii. Pre question of law – is there a legal duty?
4. Legal Sufficiency Procedures
a. Pre-trial and trial procedures.
ii. Texas Scheme – Zones of Evidence

ZONES OF EVIDENCE

Zone
1

Zone
2

Zone
3

Zone
4

Zone
5

No
Evidence

SOME
Evidence

SOME
Evidence

SOME
Evidence

Conclusive Evidence

“Factually
Insufficient Evidence to support an affirmative answer”

“Sufficient to Support a Verdict”

“Against the great weight and Preponderance of Evidence”

LEGAL SUFFICIENCY
POINT
“As a matter
of law”

FACTUAL SUFFICIENCY POINT
“Against the weight of the evidence”

ANY JURY FINDING WILL BE UPHELD
NO REVERSAL

FACTUAL SUFFICIENCY POINT
“Against the great weight of the evidence”

LEGAL SUFFICIENCY
POINT
“As a matter
of law”

“a scintilla
(or less)
of evidence”

r Zones 2-3-4.
iii. Court only decides “no evidence” and “conclusive evidence” cases.
b. Courts of Appeals
i. JD on all zones.
ii. Exclusive JD over Zones 2-3-4.
iii. “No-Evidence”
1. A no evidence point will be sustained when:
a. (a) there is a complete absence of evidence of a vital fact,
b. (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact;
c. (c) the evidence offered to prove a vital fact is no more than a mere scintilla, OR
1. “scintilla” – a mere surmise or suspicion of a fact
d. (d) the evidence conclusively establishes the opposite of the vital fact.
2. Procedural Objection
a. At Trial
i. Summary Judgment (Pre-Trial)
ii. Complaint at Jury Charge stage – no question of fact as a matter of law.
iii. Judgment as a Matter of Law (Pre-Verdict)
iv. J.N.O.V. (Post-Verdict)
b. On appeal
i. Sustained point of error of factual sufficiency = NEW TRIAL
3. Failure of Evidentiary Proof
a. If there is no way to know for sure, then there is no clear evidence – which cannot then support an affirmative verdict.
b. A negligence verdict cannot be supported in the absence of evidence of causation of plaintiff’s injuries. TEXAS & NEW ORLEANS R.R. CO. v. COMPTON, Tex. 1940.
i. Defendant railroad appealed a reversal in favor of plaintiff widow for the recovery of damages due to the death of her husband in a collision between a car in which the husband was riding and a train.
The court held that any negligence of the railroad company was not the proximate cause of the death because if the driver did not see the moving cars ahead of him he could not have seen a sign.