*1 55 tionship powers legislature poli- between Article 9001 and the of the to formulate health, people cy. of the recreation welfare Texas”). event, any of the State In Appellee’s rehearing motion for is over-
where the constitutional issues involved are ruled. inextricably intertwined with the trial findings, proper court’s consideration of requires
those of the issues review entire Kansas, record. Fiske v. State 274 Cf. 380, 385-86, 655, 656-57,
U.S. 47 S.Ct. 71 (1926);
L.Ed.2d 1108
Northern
R.
Pacific
Dakota,
585, 593,
v. North
236
35
U.S.
429, 432,
(1915) (where
59
S.Ct.
L.Ed. 735
CRIDER,
Randy
Appellant,
constitutionality of state statute is attacked
v.
reviewing
obligated
is
court
to review facts
they
“intermingled”
when
are
with conclu-
Byron APPELT,
al., Appellees.
et
law).
sion of
See also State ex rel. Guste
No. 14376.
Corp.,
(La.1985)
v. K-Mart
detailed review of unconstitu- Law).
tionality Jersey of New Blue Our not, however,
review should include an
evaluation the credibility of witnesses
since the trier of fact sole judge is the
credibility of witnesses. County Harris v.
Hall, 172 S.W.2d
(1943); Dunlap, Cobb (Tex.App. Corpus Christi writ — n.r.e.).
ref’d sum, where a statute’s constitu
tionality challenged is pro under the due protection equal
cess and clauses of the constitutions,
state and federal the review
ing required court is to examine all the presented attempt to demon any
strate the absence rational relation
ship between statute’s means and ends. submission, original we reviewed all the
evidence, including by judi admitted notice,
cial but absent an evaluation of credibility, in determining ap-
witness
pellee to meet failed its burden. The stan developed
dards of to evaluate review
constitutionality legislation of .economic
narrowly powers circumscribe the
appellate judiciary. appellee’s We decline upon supplant
invitation to encroach *2 Austin, Terry, Terry, Terry L. &
Mason appellant. Berliner, Mullen, Berliner, Mac- Edward Austin, Redding, appellees. Innes & POWERS, EARL W. SMITH and Before CARROLL, JJ. SMITH,
EARL W.
Justice.
Randy Crider,
appellees,
Appellant,
Appelt,
in an
Byron and Jon
were involved
trial,
automobile collision. Before
negligent
Moreover,
admitted
failing
opening
that he was
in
during
state
ments,
look-out,
keep
proper
counsel for the
was allowed
passing
in a
state,
objection:
zone,
no-passing
passing
road-
way
clear,
was,
was not
and in driving
You will also hear that Mr. Crider
under
fact,
arrested for
while intoxicat-
intoxicating liquor.
influence of
*3
time;
point
you
ed at some
and
will
also
he
admitted that
caused the collision.
further,
gentlemen,
hear
ladies and
that
The
jury
case went to the
on
of
the issues
against
that case was dismissed
Mr. Cri-
the amount
damages,
of actual
whether
der,
that
prosecution
that
criminal
was
grossly
and,
so,
Crider
negligent,
was
if
has,
dismissed and that there
in fact—in
punitive
the amount
damages
of
Crider
fact,
punishment
been no criminal
or
[sic]
pay.
should
jury
The
found the combined
for Mr.
sanction
Crider.
damages
actual
for
Appelts
the
to be
Thus,
testimony
even before the
about
$9,500.
jury
The
then found
Crider
that
admitted,
complains
which Crider
was
the
grossly negligent
was
and that
should
he
jury
been
had
informed that Crider was
$50,000
pay
Appelts
each of the
in punitive
adjudicated
driving
never
while intoxi-
$100,000
(i.e.,
damages
punitive
total
dam-
Therefore, any
cated.
error of the trial
ages). We
judgment
will affirm the
of the
admitting
testimony
court in
the
was harm-
trial court.
Erwin,
Steinkamp
less.
v.
appeal,
points
Crider raises six
of
writ).
(Tex.Civ.App.1952,
1012
no
points
error. Crider’s
one and two com-
Finally, we note
evidence
that
plain of
allowing
the trial court’s
evi-
into
criminal
penalties
convictions and
is admis
dence testimony that Crider
never
punitive damages
mitigate,
sible in
to
cases
criminally prosecuted
in-
bar,
punitive
but not to
the
dam
award of
testimony,
asserts,
toxicated. This
Crider
ages.
Wells,
Tex.Civ.App.
Jackson v.
13
should have been excluded
Tex.R.
under
(Tex.Civ.App.1896,
tated the verdict.” The factors which
Crider’s third and fourth
determining
courts must consider in
wheth-
of error are overruled.
passion
er reason or
award of
ruled
the
points
fifth and
Crider’s
six
of error com-
punitive damages
(1)
are:
The nature of
plain of the trial court’s instruction as fol-
(2)
wrong;
the
the con-
character of
lows:
duct; (3)
degree
(4)
culpability;
intoxication,
are
You
instructed that
if
parties;
situation and sensibilities of the
any,
person’s
does
lessen or reduce a
the extent which the defendant’s
conduct,
responsibility for
if
which
he
public
justice.
conduct offends
sense of
sober,
were
would evince a conscious in-
Kraus,
Alamo National
Bank
rights,
to the
difference
welfare
safe-
(Tex.1981).
S.W.2d
persons
by
it.
ty affected
considerations,
As to the first of these
instruction was
Crider asserts
this
argue
Crider seems
that because
weight
improper comment on the
*4
huge
did not suffer
actual dam-
evidence.
punitive
ages,
damages
the
awarded should
However,
the same instruction
However,
high.
been so
this is
not have
not to
was held
be a comment on the
only one of the
from
considerations
Alamo.
weight
Schiller,
in
evidence Rice v.
considerations,
As to the other
the evidence
(Tex.Civ.App.1951),
241 S.W.2d
officer,
(1)
police
That Crider
a
shows:
was
Rice,
part,
in
aff’d
Schiller v.
DWI,
people
who himself had arrested
(1952). Though
his of the conduct of (Supp.1985). Tex.R.Civ.P.Ann. 277 engaged in such His answer was acts. Therefore, points of error five Crider’s and “detestable” “awful.” judgment are overruled. The and six Driving is an automobile while one the trial court is affirmed. has, question, been con intoxicated act, reprehensible a and who demned as REHEARING ON MOTION FOR officer, police a himself has more than who rehearing, appellant motion persons driving while intoxi On arrested asserting cated, dangers oper takes this to task should know of the Court opinion at Court ating dangerous on road that “in its herein an automobile a held] [this zone, adequately preserve passing no-passing appellant did not high speed, a in a appeal complain of herein to operating a vehicle in such an extreme his record of the evidence factors alone the trial court’s admission state of inebriation. These large awarding concerning the lack of a criminal conviction justify reasonable minds intoxicated.” punitive damages appellant the actual even when (We regard argues that this should look to damages great. not so He Court were in limine the basis for his jury’s the of the actual his motion to find the fact that award noted, reasonable, strongly objection. indi As we Crider’s ob damages as have was was, during trial by pas to the cating jection the not ruled was honor, object at this determining damages.) going “Your we’re punitive in the sion time,” replied, to which the court “All son is to found in motion in limine or be the right. grounds previously existing the the as stat- elsewhere in record. Under law, then, only Appellant’s only reply objection ed?” Crider’s at trial “Yes.” was statement, general was the far too “Your Appellant’s argument is in fallacious two honor, going object at time.” we’re this First, respects. ruling the the trial Appellant argues that it is clear the from appellant’s court on motion in limine does trial he court’s remarks that and the trial preserve not appeal. error for In Hartford objection court understood the basis Indemnity Accident and Co. v. McCar —apparently, his motion limine—to dell, (Tex.1963), reply which is we that it not evident from although Court held that overruling objection the record to what the trial court a error, motion in limine bemay it is never referring. was, it trial Whatever error, reversible and held further: insufficient, court deemed it as we must overruled, If a judg- motion limine is contrary of a showing absence in the ment will be reversed unless the upon record. Crider relied Rule su- questions or evidence were in fact asked pra, before this Such Court. rule assumes they offered. were in asked or If fact relevancy, then states a basis for exclusion offered, objection made at that time notwithstanding its relevance. necessary preserve is right to We again hold that properly Crider did not complain on appeal ques- that such preserve, trial, any at asserted in the error tions asked or such evidence tendered trial ruling. court’s were so that the mere ask- *5 argues Crider also in his motion re- ing tendering or require should a re- hearing we holding erred in the admis- (1) questions versal. neither case— error, question, sion of the evidence if offered, asked or evidence not or that, charges was harmless. He in so hold- questions asked or evidence offered— ing, regarded opening we statement should the error of the trial court in (that plaintiff prove would that there had overruling the motion in limine be re- punishment been no criminal or sanction error, garded as or harmful reversible Crider) against as “evidence under oath.” [emphasis added]. out, We do simply pointed did not so. We also, See the decision of this Court State holding proper objection after that no Cave, (Tex.Civ.App.1968, S.W.2d 692 point, made to such the evidence on writ). no Crider, making any objection statement, opening allowed the Next, if even the law were as Crider adjudicated be informed that he was not suggests, that we should look at Crider’s criminally while intoxicated. motion in limine a properly stated reasoned, then, any We that this rendered ground objection, our answer is that we admitting proof error in thereof have done so and find that he fails state harmless, when considered with excluding reason for the evidence that he properly object Crider’s failure to we —and criminally prosecuted. was not perti- The might now add—with the fact that evidence paragraph nent merely of his motion re- gross negligence of Crider’s was over- quests that counsel for the make However, whelming. since we hold reference, comment, “no question or re- preserve properly Crider did not garding proceedings against the criminal error, any pos- claimed our statement that Crider_” Defendant, Randy Before this ruling sible error in the trial court is Court, original submission, as- dispositive point harmless is not the of this in question serted that case. have been excluded under Tex.R.Evid.Ann. points We other raised have reviewed the (Supp.1985) probative because the val- rehearing in Crider’s motion for and find ue substantially “did not them to be without merit. outweigh” its objec- effect. No any rehearing tion on basis other stated rea- The is overruled. motion