You Snooze You Lose, or How to Preserve Error and Give Your Client a Fighting Chance on Appeal

I write a lot of appellate briefs. And like all appellate “nerds,” I find there is an unexplainable joy upon discovering a small facet of law that is both an interesting read and the death knell to the prosecution’s argument. That being said, only melancholy sadness follows when you realize that the trial counsel did not preserve error.

Case in point: During the closing arguments of a close case, involving a two-time convicted felon/gang member/defendant charged with engaging in organized criminal activity, where the judge had previously kept out all extraneous bad acts during the defendant’s testimony, the state made the following argument:

THE STATE: We’re out of here in less than three days. I had more evidence. I wanted to ask the defendant more questions. I had more evidence about whether the defendant was a Barrio Azteca gang member. If you recall, I asked the detective, “Did you personally investigate the defendant.” “Yes. In a different case.” “What did you arrest him for?” “Objection.” The judge would not let me offer that evidence. So when you go back there and say, “Hey, I would like more evidence,” okay, I had more evidence to offer.
DEFENSE ATTY: Objection.
THE COURT: Sustained.
DEFENSE ATTY: Thank you… Can I get an instruction to the jury to disregard that last train of thought?
THE COURT: The jury to disregard the last comment.
THE STATE: But when the witnesses are in agreement… [state continues argument]

And that was it! The next step—“I move for a mistrial”—was not taken. In a case where the defendant’s record of arrests was clearly off-limits (and in closing the state went into it anyway), trial counsel failed to preserve possibly the strongest error for appeal.

In order to preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or a motion that states the specific grounds for the desired ruling if it is not apparent from the context of the request, objection, or motion.1 In addition, the trial court must rule on the request, objection, or motion, either expressly or implicitly, or the complaining party must object to the trial court’s refusal to rule.2 If one fails to preserve the error, a reviewing court will not address the merits of an issue on appeal.3 An objection must be made as soon as the basis for the objection becomes apparent.4

Sounds simple, hunh? But in case after case, the ability to preserve the most important issues seems out of the reach of most trial lawyers’ abilities. In an unpublished opinion out of the 8th Court of Appeals,5 in Gary v. State,6 the appellant appealed the trial court’s judgment convicting him of driving while intoxicated–repetition and sentencing him to 25 years’ imprisonment. In a single issue, the appellant contended that the trial court erred by admitting the testimony of the State’s expert because she did not properly apply the technique used to project the quantity of alcohol he consumed to reach a particular blood alcohol content (“BAC”).7 The COA held that that the appellant failed to preserve error for appellate review.8 Although the appellant objected to the expert’s testimony, he never obtained a ruling on his objection. Instead, the appellant acquiesced to the prosecutor’s representation that he did not intend “to ask the expert to extrapolate back, but rather “to use the Widmark formula.”9 That the trial court may not have understood that the Widmark formula is used when conducting retrograde extrapolation was irrelevant.10

In McMaster v. State,11 the appellant appealed his conviction of possession of more than one but less than four grams of methamphetamine with intent to deliver, enhanced by a prior felony conviction and sentence of 40 years. In Issue One, the appellant contended that the State failed to produce to his attorney a cellular telephone log used during the prosecutor’s cross-examination.12 The appellant did not object at that moment, but instead raised the issue for the first time in his motion for new trial.13 Consequently, the COA held the objection was untimely.14 Quoting Justice Cochran in his concurring opinion in Ex parte Medellin,15 “in Texas, we have a contemporaneous objection rule which requires all litigants to make a timely request, claim, or objection or forfeit the right to raise that request, claim, or objection after trial.” Because any error was waived, the COA overruled Issue One.16

Keep in mind that any objection must occur the moment the error is committed. Objecting after evidence is already admitted is untimely. In Ratliff v. State, the COA held that appellant’s failure to object at the time the witness described the evidence and explained how he found it was untimely and did not preserve error.17 And in Tell v. State, the Fort Worth COA held that the defendant’s objection to a witness’ testimony after the witness had already answered questions about objected-to evidence was untimely and did not preserve error.18 Almost universal, objections to testimony after the witness had testified were untimely and did not preserve error.19

However, there are exceptions to the rule. In Birdsong v. State, the appellant’s trial counsel did not object to the appellant being called to the witness stand by the prosecutor, nor did he in any other way raise the issue to the district court.20 Although the appellant did not preserve his alleged error, Texas law provides that a limited class of errors may be presented for the first time on appeal.21

One exception may occur when a trial judge instructs the parties before trial to withhold their objections until after the evidence has been presented.22 Another exception is when deal­ing with “rights.”23 In Marin, the Court of Criminal Appeals recognized three categories of rights—“absolute rights” that are not optional and cannot be waived or forfeited by the defendant.24 Jurisdiction and due process are two other such issues.25 There are “waivable rights,” and those may only be surrendered by affirmative, plain, free, and intelligent waiver.26 In this instance, the court has an independent duty to implement these rights unless expressly waived.27 And finally, there are “forfeitable rights,” which must be requested by the defendant and include most procedural and evidentiary issues and many constitutional rights.28 Tex. R. Evid. 33.1’s requirement of preservation of error does not apply to rights falling within the first two categories.29

Going back to Appellant Birdsong, while his error was not preserved, the COA held that it could address his issue only if the Court first determined that the error falls within either the “absolute” or “waivable” class of rights.30 The COA held that a defendant’s right not to testify is the latter and thus can only be waived if the defendant’s waiver is knowing, intelligent, and voluntary.31 However, the right not to testify may be waived when the defendant voluntarily takes the stand.32 And the right may also be waived when the defendant pleads guilty or confesses to the crime for which he is charged, so long as he is expressly warned that the admission waives his right to silence.33

Now back to trial mistakes. Waiver of error doesn’t just have to happen in trial. Waiver can occur pre-trial when counsel unwittingly reveals to the state evidence that later becomes harmful when disclosed to a jury. Take for example the hapless lawyer in Carmona v. State.34 In Carmona, the COA held the attorney-client privilege was waived as to everything when appellant’s lawyer disclosed the defendant’s expert’s written report to the police and the district attorney’s office.35 The COA also held appellant’s trial objection as to Barton’s notes based on the attorney-client privilege failed to preserve for appeal his claim that Barton’s notes were protected by the work-product doctrine.36

Waiver of appeal doesn’t have to happen at trial. Appellate lawyers waive all the time when they try to cram too many errors into one issue. This is called the presentation of multifarious issues, and nine times out of ten you will waive your error if you commit this type of mistake on appeal. An issue, or point of error, is multifarious if it embraces more than one specific ground of error. By combining independent grounds together into a single issue, an appellant risks rejection of his arguments on the basis that nothing has been presented for review.37 The rationale is that it is not the appellate court’s job to comb through the record in an effort to verify an appellant’s claims.38 Nor is the appellate court obligated to construct and com­pose an appellant’s issues, facts, and arguments for him.39 However, despite what appears to be a hard and fast rule, an appellate court may have the authority to address multifarious issues, and often does, provided the contentions are adequately briefed.40

Another way to waive error is to make the wrong objection at trial. In another unpublished opinion, the 8th COA in Gossett v. State held that an appellant failed to preserve his complaint on appeal because his argument on appeal did not comport with his objection at trial.41

Waiver can happen during a probation revocation hearing if you have the defendant admitting true to just one violation and hope to fight, and appeal, the remainder. Again, in an unpublished opinion, the COA in Kendrick v. State found that the appellant’s sufficiency claims to several of the court findings regarding alleged violations had no merit, regardless of whether the appellant needed to object in order to properly preserve error, because the appellant pled true to one of the allegations as alleged in the state’s petition to revoke his community supervision.42 The COA decided that since it only takes one single violation of community supervision to support a revocation of community supervision, and the appellant pled true to one violation, this alone was sufficient to support the trial court’s finding of true regarding the other violations.43

Try not to waive error in the event you have to mandamus a judge. In the case styled In re Stofan, the relator alleged that the court failed to rule on his motion to quash the indictment and motion for speedy trial.44 The COA denied mandamus relief because the motions were not brought to the trial court’s attention.45 To obtain mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision.46 When a motion has been properly filed and brought to the court’s attention, and the act of giving consideration to and ruling upon the motion is a ministerial act, mandamus may issue to compel the court to rule.47 The COA held that the record before the court did not demonstrate that the relator filed the motions with the trial court clerk, or that they were brought to the trial court’s attention.48 Consequently, the relator failed to establish that he is entitled to mandamus relief.49

There once was a time when the appellate courts were truly the courts of last refuge. That time has come and gone. More and more appellate courts, as well as the Court of Criminal Appeals, utilize procedural rules to throw out appeals without ever addressing issues that consequently may have unfairly prejudiced a defendant’s right to a fair trial. Don’t be that attorney who helped slam the door on a client by failing to preserve what may be his only hope.


1. Tex.R.App. P. 33.1(a)(1); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, no pet.); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.).

2. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App.2011).

3. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.2010) (op. on reh’g); Clay, 361 S.W.3d at 765.

4. Tex.R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807; see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App.2012) (discussing policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.2002) (failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence even when the error concerns a constitutional right); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex.App.—Fort Worth 2012, pet. ref’d).

5. An interesting side note, the 8th Court of Appeals (COA) usually issues unpublished opinions involving attorney error. Thus, all the opinions out of the 8th COA in 2013 involving waiver are unpublished.

6. 08-12-00046-CR, 2013 WL 5302582 (Tex. App.—El Paso Sept. 18, 2013, no. pet. h.)(unpublished).

7. Id.

8. Id.

9. Id.

10. Id.

11. 08-11-00223-CR, 2013 WL 4506403 (Tex. App.—El Paso Aug. 21, 2013, no. pet. h.)(unpublished).

12. Id.

13. Id.

14. Id.

15. 280 S.W.3d 854, 860 (Tex. Crim. App.2008).

16. McMaster v. State, 08-11-00223-CR, 2013 WL 4506403 (Tex. App.—El Paso, Aug. 21, 2013, no. pet. h.)(unpublished).

17. 320 S.W.3d 857, 861–62 (Tex.App.—Fort Worth 2010, pet. ref’d).

18. 908 S.W.2d 535, 544 (Tex. App.—Fort Worth 1995, no pet.).

19. Thomas v. State, 884 S.W.2d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d).

20. 82 S.W.3d 538, 542–43 (Tex. App.—Austin 2002, no pet.).

21. Id.

22. See Garza v. State, 126 S.W.3d 79, 84–85 (Tex. Crim. App.2004) (explaining that the holding “is not meant to apply in situations outside the special circumstances of this case”).

23. Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App.1993).

24. Id.

25. Id. at 279–80.

26. Id.

27. Id.

28. Id.

29. Marin, 851 S.W.2d at 279–80 (citing predecessor to Rule 33.1).

30. Birdsong, 82 S.W.3d 538, 542–43.

31. Id.

32. Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App.1969).

33. Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 1979). Until recently, a guilty plea could waive the right to silence for both guilt and punishment purposes. See Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App.1998) (Carroll II), overruled by Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App.2001) (Carroll V). However, in 1999 the U.S. Supreme Court held that waiving the right to silence by entering a guilty plea does not waive the right at the punishment phase of trial. Mitchell v. United States, 526 U.S. 314, 325, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); see also Carroll V, 42 S.W.3d at 132.

34. 941 S.W.2d 949, 952 (Tex. Crim. App. 1997).

35. Id. at 234.

36. Carmona, 880 S.W.2d at 235.

37. Matthews v. State, 08-11-00157-CR, 2013 WL 4517280 (Tex. App.—El Paso Aug. 23, 2013, no. pet. h.).

38. Id.

39. Id.

40. Id.

41. 08-11-00229-CR, 2013 WL 3943089 (Tex. App.—El Paso July 31, 2013, no. pet. h.). Appellant Gossett objected to the admission of a photo at trial on the basis of relevance under Texas Rule of Evidence 401. However, despite appellant’s single objection at trial, appellant’s argument on appeal was divided into two separate complaints, based on separate rules of evidence—Rule 401 and Rule 403. On the one hand, Gossett contended that the trial court erred in overruling his relevance objection to the photograph because the photograph simply was not relevant. On the other hand, Gossett also argued that the trial court abused its discretion because, “[t]he minimal probity, if any, from the photograph was substantially outweighed by the prejudice.” The COA held that Gossett failed to preserve the portion of his argument relating to Rule 403 because he objected at trial only to the relevance of the photo.

42. 08-12-00048-CR, 2013 WL 4624438 (Tex. App.—El Paso Aug. 28, 2013, no. pet. h.).

43. Id.

44. 08-13-00265-CR, 2013 WL 4859318 (Tex. App.—El Paso Sept. 11, 2013, no. pet. h.).

45. Id.

46. Id.

47. Id.

48. Id.

49. Id.

Louis E. Lopez Jr.
Louis E. Lopez Jr.
Louis Lopez Jr. received his BA in Economics from the University of Texas and his JD from St. Mary’s Law School. A member of the TCDLA Board, he is board certified in Criminal Law and Criminal Appellate Law. Before turning to private practice, Louis served as El Paso County Assistant District Attorney and El Paso County Deputy Public Defender. He also belongs to the New Mexico Criminal Defense Lawyers Association (Chairperson 2007, Board of Directors 2005–7) and the National Association of Criminal Defense Lawyers. Among his numerous honors, Louis was named El Paso Criminal Defense Lawyer of the Year in 2001.

Louis Lopez Jr. received his BA in Economics from the University of Texas and his JD from St. Mary’s Law School. A member of the TCDLA Board, he is board certified in Criminal Law and Criminal Appellate Law. Before turning to private practice, Louis served as El Paso County Assistant District Attorney and El Paso County Deputy Public Defender. He also belongs to the New Mexico Criminal Defense Lawyers Association (Chairperson 2007, Board of Directors 2005–7) and the National Association of Criminal Defense Lawyers. Among his numerous honors, Louis was named El Paso Criminal Defense Lawyer of the Year in 2001.

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