*1 challenge before trial court would to it. The of the Court be viewed as a “failure of government.” Appeals is reversed. This cause is re- Id. at 669. Court declared Klima Appeals manded to the Court of for further holding that applicable in Wilson was proceedings opinion. consistent with this regardless party appel of which initiated the However, process. late these cases limit standing.
ed to issue of bring suppress the motion to bears the burden establishing all the elements of her
Fourth Amendment claim. See Russell v.
State, 717 7 (Tex.Cr.App.1986). Part proof establishing pri that includes one’s
vacy premises interest in the searched. Kli PEREZ, Individually Julian and as Next ma, 111, citing 934 S.W.2d at v. Rakas Illi Friend Natural Guardian of nois, 421, 439 U.S. 99 S.Ct. 58 L.Ed.2d Perez, Appellants, Stella (1978). By raising of standing the issue first appeal, time on the State was not v. actually issue, raising a new but rather chal George MURFF, City Earl II and the lenging holding appel- “the trial court’s Falls, Appellees. of Wichita establishing lee met her burden that the government her expecta violated reasonable No. 06-97-00093-CV. privacy.” tion of Id. once a defen filing dant suppress motion to has estab Texas, Appeals lished basis for Fourth Amendment Texarkana. claim, prosecution the burden shifts to the Argued April 1998. validity establish the of the search under the applicable theory of law. Decided Ordinary procedural notions of default Opinion Overruling Rehearing apply equally to the defendant and June Gonzales, See State. State (Tex.App.-San pet. Antonio refd)(refusing request defendant’s to affirm suppressing evidence based on new court).
grounds not raised
Therefore we hold that cases in which the the party appealing, princi-
State is the basic
ple appellate jurisprudence points
argued at trial are deemed to be waived
applies equally to the State defense. Appellee instant once established
standing in premises to be searched and the search was conducted without a
warrant, he his satisfied burden establish-
ing his Fourth Amendment claim and the
burden shifted to the State to establish an
exception to requirement. the warrant theory argued present- the State and
ed facts was the search was a
proper inventory. ruling The trial court’s specifically legal limited to the facts and
arguments presented to it. Thus the trial
court cannot be to have held abused its dis- in ruling only theory
cretion on the of law *2 called the appellees objected. objections
and the sustained, made bills *3 exception. appellees of The then for moved verdict, granted. directed which was The judgment signed on March The motion for new trial was denied, they bring appeal. and now
FACTS parent’s
Felicia Perez drove her car to a Stella, sister, party; younger pas- her was a in senger Returning par- car. ty, stopped stop sign, pro- Felicia at a then through ceeded the intersection. car in The girls riding which the two was struck car, by police traveling a which was down the thoroughfare. main PROCEDURAL HISTORY OF THE CASE appellants 28, 1996, The filed suit on (the alleging George that Officer Murff driv- car) police City er of the and of Wichita negligently injury Falls acted and caused parties to Stella Perez. October pretrial signed agreed an vari- setting discovery, ous including deadlines for a dead- 1, 1997, January designating line of for wit- appellants nesses to be called at The trial. to designate by failed their witnesses Janu- Rafuse, O. Robert The Office of Steven ary pretrial A1. conference was for set Williams, Wichita, Douthitt, Frank J. Hen- The March trial was scheduled for rietta, appellant. for March 10. Messer, City William Andrew At- Office appellants designated The had not their Falls, torney, Wichita appellee. for by At witnesses conference. hearing, judge heard both CORNELIUS, C.J., Before and GRANT plaintiff-appellants’ defendant-appellees’ and ROSS, and JJ. in appellees’ motions The limine. motion all wit- limine asked the to exclude OPINION designated by nesses and exhibits ROSS, Justice. January judge took deadline. The trial following day, this under advisement. The appellants appeal granting judge granted the motion in limine appellees in favor directed verdict and excluding undesignated witnesses. appeal the motion denial their for new trial. 10, 1997, parties March appeared On all at appellants comply ready. appellants failed to trial and announced agreed pretrial order when their trial attor- asked trial court reconsider the motion ney designate excluding failed limine their witnesses. After matter, agreed-upon appellees evidentiary hearing deadline. The filed preventing calling motion limine wit- court reaffirmed exclusion trial, jury nesses. The then waived a granted trial, judge proceeded At appellants that motion. with a trial. The bench im Additionally, courts authorized witnesses. The ob- offered three witness, objection abusing the pose against parties each for jected to each 215; P. Bod discovery process. The trial allowed the was sustained. Tex.R. Civ. Hondo, complete exception appellants Corp. City bill now (Tex.1986). Here, each witness was exam- each witness where failed as to knowl- generally order; ined and testified their with a concerning edge discovery contemplated case. as abuse the rules then rested. The moved for di- requirements Rule 215. verdict, judge granted. which the rected pretrial order did relate signed on March The final matters, production e.g., the date *4 1997. of it is Regardless list. how trial witness viewed, im authority to trial court 24, 1997, appellants finally April On pose appellants. on the sanctions designated the witnesses whom intend- depends of sanctions Court’s review those day, to ed call trial. On the same upon the characterization of sanctions trial, appellants filed a motion for new assert- imposed. imposed by that the sanctions the trial court, undesignated exclusion of wit- Penalty” of “Death Sanc- B. Definition a nesses, penalty to death amounted tion of the Sanc- and Characterization harsh overly given which were the “crime” of Imposed tions missing a The trial deadline. appellants sanc contend hearing court held a on the motion court, imposed exclusion tions 23, 1997, requested then letter briefs from undesignated to amounts a signed denying counsel. The an order penalty penalty death sanction. A death 9, the motion new trial on June any adjudicates sanction is sanction that a appellants appeal. this brought then presentation of the precludes claim and ANALYSIS Chrysler Corp. Black merits the case. v. appellants’ points Six seven of error mon, 844, (Tex.1992); Bra 841 845 S.W.2d complain undesig- that the exclusion of the (Tex. Downey, den v. 811 S.W.2d 929 improper nated witnesses abuse 1991); Corp. v. TransAmerican Natural Gas discretion, the trial court failed to (Tex.1991). Powell, Al 811 918 S.W.2d properly appropriate consider other sanc- are of though penalty death most tions, failing that the trial court in erred thought striking ten the context grant to motion for new trial. pleadings rendering judgment, default A. Trial Court’s Power to Sanction any sanctions which are “case determinative” penalty may constitute death sanctions.1 disposition order “to assist in the In Tanner, Sys. Corp. v. GTE Communications ease,” permits of the Rule 166 trial courts to (Tex.1993). 725, 732 hold conferences and to enter orders establishing agreements of the as any con matters considered which any type of formal motion for sanc not file subsequent up trols the course of the case appellants’ response to the failure to tions P. 166. Rule Although trial. Tex.R. Civ. 166 request designate witnesses. provide power trial courts does not court to the trial obey pre failing sanction for the court’s orders, designated excluded and Supreme witnesses not be Texas Court has subsequent power implicit trial court’s exclusion that such determined Mackie, essentially constituted sanc Rule v. 796 those witnesses 166. Koslow’s S.W.2d (Tex.1990). designate. appellants’ 703 tions for failure (Tex.App.—Houston Nguyen, which have determined that sanctions Cases denied) equaled penalty (striking death sanctions include: Eason testi- writ [14th Dist.] Eason, (Tex.App.—Houston v. mony expert which was essential to witness writ) (preventing Dist.] no mother case). [14th plaintiffs presentation of merits of case); testifying custody from in child Smith The trial ruling operated court’s discovery to exclude counsel’s when it abuses is or all fact witnesses and should be aware of counsel’s conduct and may documents or exhibits which have been of discovery violation rules. On the offered at appellees argue trial. The hand, a party punished other should be preclude order did for counsel’s conduct in it is not from presenting prima facie case because implicated apart having entrusted to experts previously who had been designated legal representation. point its testify were still allowed to and the trial is, imposes court sanctions the trial appellants’ pleadings. did not strike the directly must relate to the abuse found. disagree. exclusion of Second, just sanctions must not be ex- precluded punishment cessive. The should fit the senting the merits of their case. The sanc- imposed crime. A sanction tions properly characterized as abuse no more severe than nec- penalty death sanction. essary satisfy legitimate purposes. its Propriety Imposed C. of the Sanction It follows that courts must consider the availability stringent of less sanctions and We must review court’s *5 whether fully such lesser sanctions would actions under abuse of discretion stan promote compliance. Imposing dard. an available sanction is left to the sound discretion of the trial court. An Corp., TransAmerican Natural Gas appellate court will set aside decision S.W.2d at 917. only showing on a of a clear abuse discre if We first determine must sanc tion. The for test abuse of discretion is imposed tions directly the trial court were whether the trial court acted without refer related to the abusive conduct. Such sanc any guiding principles, ence to rules and tions must be on the offender. The equivalently, whether under all the circum attempt trial court must to determine who particular stances trial case the court’s the offender is and appropriately. sanction arbitrary action was or unreasonable. Kos present In designate to the failure low’s, However, at when clearly ap witnesses was to the attributable sanctions, reviewing penalty death we are pellants’ attorney. trial There is no indica required also to review the trial court’s ac tion in record the actual had tions light standards set out in any knowledge of or role in the failure to TransAmerican. Kutch v. Mar College, Del timely designate Although witnesses. strik 511 (Tex.App. Corpus — directly seems witnesses to relate to writ). Christi no witnesses, designate the failure to such Supreme The Texas Court stated: severely parties, sanctions most affect the imposition [W]hether an of sanctions is attorney. not the just First, is measured two standards. law, relationship Supreme direct later must exist between case the Texas conduct offensive and the sanction im- has also found that sanctions failed
posed. just means prong that a sanction under the first the TransAmerican must against party be directed the abuse test seeking and when the the sanctions remedying prejudice prejudice toward caused could show no to the due conduct party. offending party. Corp., innocent It also means that of the Chrysler sanction upon visited the offend- S.W.2d at We have no doubt fail- er. attempt The trial court must at least ure to designate witnesses can work as a prejudice to great determine whether the offensive con- are a when there only, duct is in. possible attributable counsel or to number of but ease, party only, or to both. This we recog- designat- had themselves easy nize will not be an in many They deposed matter ed Felicia also Perez. Perez, hand, lawyer instances. the one can- Stella On Perez and Julian as well as sanctions; not client par- shield his Felicia When the did Perez. file ty responsibility designations, they only must some bear for its their witness listed interim, nothing Julian, Stella, Although during the Felicia Perez. April designating until way not known before could have trial designat- a motion new only day these three would be the same for ed, prejudice worked when there was no filed. testify. three called to
these
to the trial court
The excuse
Trans-
inquiry
initially
The second
under
designate
failing
timely
ex
American whether
the sanctions were
secretary
attorney’s
misfiled
that the
discovery
purposes of
sanctions
cessive. The
system. This
office “tickler”
reminder
(1)
parties’ compliance
are to:
secure
why, after
still fails to demonstrate
excuse
(2)
discovery;
other
with the rules of
deter
deadline, the
becoming
the missed
aware of
rules;
violating
litigants
immediately attempt
appellants did
(3)
the rules
punish parties that violate
appel-
Regardless, the
designate witnesses.
Corp., Bodnow
discovery.
approach counsel did not
lants’
sanctions
must determine if the
840. We
desig-
extending the deadline to
judge about
necessary
severe
applied were no more
than
ex-
nate witnesses or otherwise
purpose
to meet the
sanctions.
failing
so.
cuse
do
part
look
inquiry,
As
of this
we must
However,
facts,
fail to
given these
we
even
any lesser
if the trial court considered
to see
type
flagrant
or callous
bad faith
find
problem.
as a means to address the
wholly
of counsel as to
disregard
part
on the
show
The record fails to
that the
find
preclude a trial on
merits.
until the mo
considered
lesser sanctions
some
nothing in the record to indicate that
tion for new trial.
the trial court’s
compelled
lesser sanction would
stringent
less
failure
consider
appellants’ counsel
*6
if
imposed
not
the sanctions
does
invalidate
trial order.
imposed
“clearly justified
are
the sanctions
its
trial
abused
discretion
The
court
sanc
fully apparent
and it is
no lesser
stinking
appellants’ undesignated
”
all of the
GTE
compliance....
promote
would
tions
the
thereby effectively trying
Sys. Corp.,
at
Communications
856 S.W.2d
not on the merits.
case on sanctions and
must
record and
729. This Court
review the
trial court
have found
determine if the
could
that,
impropriety
due to the
also find
fla
appellants’ counsel
such
exhibited
the
for new
imposed,
sanctions
motion
of the
grant
disregard
bad
or callous
faith
granted.
trial should have been
by
responsibilities imposed
him
trial
argue that a new
Appellants also
justi
were
court
such severe sanctions
they had
granted
have been
because
should
(cit
Chrysler Corp.,
fied.
ruling presents nothing on a motion in testimony limine nature of which would Distrib., Inc., review. v. Texas Wood Oil been submitted to the trial court is obvious (Tex.1988) (citing Hart- exception. All the bills three wit- McCardell, Accident and Indem. they knowledge Co. nesses testified that ford (Tex.1963)). point testify relevant facts and could facts to such is overruled. fully if It upon. unnecessary called develop exception. only a case bill of It is that, appellees if argue even apprise necessary trial court and find that the we were too appellate testimony court of the nature of the stringent and deem the sanctions as error have been would offered. court, we should not reverse the the trial court the sanc because appellees argue appel that the judgment. tions did not improper lead to an lants to show that City failed of Wichita According to Rule 44.1 of the Texas Rules of Falls received notice of the claim under Procedure, Appellate errors in the which, true, Act Tort Claims if result would probably if reversed the error appellees in a verdict. al directed did improper judg caused rendition of an lege the lack of notice in their answer to probably prevented appellant ment suit. this defense was not devel presenting the case to court of trial, oped at directed verdict Tex.R.App. 44.1(a)(1), (2). appeals. P. granted on the basis that the verdict, reviewing the granting of a directed présent prima not facie case due to the light this Court views the evidence exclusion of witnesses. most favorable to the whom against developed, fully Since this defense was not verdict was rendered con disregards all uphold solely on we decline to the trial court Qantel trary evidence and inferences. Bus. this basis. Co., Inc. Sys., v. Custom Controls Finally, argue appel- that the (Tex.1988). judge may The trial and, lants did own their claims since legal on both rule the factual and issues claims, justiciable have no interest in plaintiffs close of the case. Id. at 304. bring imper- them. Given entitled evidence, close ap At the claims, assignment missible verdict, pellees moved for a directed but did *7 a proper- contend that directed verdict could any basis state for the motion. Presum ly granted on this appellees be basis. The ably, granted the trial court the directed also this defense in their to asserted answer appellees verdict because the unable to developed this suit. was not put on their case without the wit excluded apparently trial serves no basis for nesses and the trial court no evidence found granted. directed verdict There- support to The claims. order fore, uphold judgment we will granting provided the directed verdict also trial this basis. court on for the judgment. no reason The of the trial re- court is appellees that ap contend versed, the cause remanded for a new pellants prove prima failed to a facie case in trial. exception, their bills of so devel the evidence oped would have still a directed resulted in Justice, GRANT, concurring. error, preserve excep To verdict. a bill must goal punitive tion show the nature of the evidence It is a to desirable avoid specifically enough reviewing being imposed against party so that admissibility. solely can court determine its Bo when the is the conduct of basis Binion, 597, party’s attorney. v. Butler & is agree hatch I also that it 1995), (Tex.App try 607 to avoid sanctions [14th Dist.] laudable to that . —Houston — 95-0934, aff'd, No. its being upon 1998 WL vent the from decided case S.W.2d —(Tex. 1998) Jan.22, Nevertheless, (citing necessary Pow merits. it is (Tex. Powell, procedural ell v. judge require- S.W.2d 854-55 to enforce the n.r.e.)). Civ.App. Tyler writ a fair ref 'd ments to achieve trial. — ON MOTION system geared to a OPINION courts have moved Our REHEARING place to each FOR to avoid trial ambush and entering in the trial on party position ad- rehearing to separately on We write has en equal When the trial court basis. appellees’ in the two matters raised dress requiring agreed tered First, appellees rehearing. motion for who furnish a of the witnesses to list opinion creates conflict assert that our testify, be to fairness would dictate will called and, that it appeals specifically, the courts of provided list. each such a side be the Fort Worth Court is conflict -with recently This Court reversed and remanded this case was Appeals, the court from which a case the trial court because the to Second, to resolve we write transferred. from wit court had not excluded evidence opinion also af- whether our confusion about newly con nesses that was discovered and which were fects documents trary depositions. v. Titus their Lucas of the trial court’s under terms (Tex. Hosp., County Mem’l order. n.w.h.). re App. Texarkana, We — that, complain since first we determined manded the ease because from the Fort is a case transferred this mandatory supplementation court, this Court should have followed Worth situation, supple in such a and a failure of By of the Fort Worth court. holdings placed opposing in a mentation so, argue, failing this do position being unprepared to address opposite reached an conclusion presented by this new matters evidence. by the Fort have been reached which would that we are not court. We believe Worth question that arises appellate court’s single isolate intermediate appropriate case what would have been conclu- guide use as a our precedent to impose sanctions for Rather, required to ascertain we are sions. not have been to one would detrimental of Texas and case, is of the state type avoid what law or the other. this given of a sanctions, apply that law to facts death-penalty-type or a is a transferred case whether that case against the at- could have own district. case our torney only affecting the trial of the without this, requested, case. in addition to if But re court in San Antonio Our sister might required the trial court to continue cently very issue. American addressed give opportuni- the case to the other side the Bus. Machs. Nat’l Ins. Co. v. International ty been prepare for witnesses who had not (Tex.App.—San ton Corp., 933 An designated. potential Even wit- when denied). Nation io In American writ as- deposed, nesses been it cannot be al, brought issue up the same the dissent opposing prepared side sumed that has agree here. raise *8 which testimony those who of states: majority’s response, which with designated. have not been of theory of our law is that the State this case have a direct any sub given one law on Texas has but conduct, but relationship to the offensive proclaimed ject, that the law is as and stringent warn- without sanctions and less appeals finally, in civil the courts of ings, satisfy prong set would not the second cases, by Supreme Texas Court. Trans- Supreme case of out Court acknowledges there theory This Powell, Corp. v. American Natural Gas opinion among the may be of differences (Tex.1991). what that law is. appeals courts as to is remedy for conflicts or errors such imposes on a difficult burden case Supreme Court. appeal to the Texas that are judges who have trial schedules 22.001(a)(2)(6) § Ann. Tex. Code Gov’t comply by a of counsel to thwarted failure (Vernon 1988). order, in the but agreed with law make sense when may only ap- rules justice be the Conflicts interest of sovereigns, whether applied separate propriate approach. states, sovereign offered, or nations because in were no nated documents there was really ruling regard those instances there be con- can adverse court with documents, sovereign in the flicts law from one state to those and no error is Where, however, or nation the other. served for our review. only is one sovereign, there court of Appellees’ motion for over- rehearing is appeals’ duty apply is to decide and ruled. sovereign, of that
law not to ascertain the district, given law as stated in a whether
its own the district from which ease
has been transferred. The State Texas state, sovereign
consists one
fourteen. acknowledge prob- there can lems caused the fact that Texas such In the Interest of John Edmund large state, and diverse we V, MORAGAS, a Child. districts, appeals fourteen courts of cases No. one 06-97-00097-CV. transferred from those districts to other where districts Appeals Texas, justices’ views of what the of Texas is law Texarkana. may justices differ from the court believe, the case arose. We Argued April 1998. however, that the difficul- answer to those Decided Supreme in an appeal ties lies to the Texas Court, cases, in civil or to the Texas Court cases, Appeals,
of Criminal in criminal part than in
rather an effort on to be our
parochial application our law to
the facts us. Co., Nat’l
American Ins. analysis.
We endorse the San Antonio court’s
Therefore, if a conflict exists our between
decision stare decisis of Fort court, Supreme it
Worth is for the Texas
Court to resolve.
As for the second issue rehear
ing, whether documents
properly due to excluded from the trial failure to
order, express opinion. no This issue we below, preserved may not review and we appeal. appellants presented only
it on attempt
fact at trial and did not *9 undesignated documents. The
appellants presented fact drew ob
jections one, from the each as to objection. sustained each excep then bills objected
tion for each fact witness
appellees. properly preserved the issue
as to the fact were im whether
properly excluded for our review. Tex. R.App. P. 33.1. undesig- since no