top of page
  • Writer's pictureBrian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 103

Updated: May 31, 2023

Conroe Criminal Defense Attorney Brian Foley Discusses Texas Rule of Evidence 103.

Rule 103 of the Texas Rules of Evidence describes how to make objections. You may have heard a lawyer on TV shout, “Objection! This is prejudicial to my case!” Such an objection might be close enough to a real objection but probably not. In order to properly object you have to claim that there is some error in the way the law is being applied or in how a question or answer from the opposing party has been formed.

The first requirement outlined in Rule 103 is that the party can only claim error that affects the substantial rights of the party. In practice this doesn’t mean a whole lot. Lawyers are going to object to anything that they think hurts their case. Sometimes they will object just so that the objection can be heard. These are called speaking objections and are generally improper. They are almost uniformly overruled by the trial judge.

A leading objection, or an objection that the question asked by the attorney who is sponsoring the witness suggests the answer to the question being asked, is certainly not something that you would generally think “affects the substantial rights of the party” but it will be heard and sustained on a routine basis.

Other requirements of Rule 103 are that if the ruling by the Judge admits the evidence the lawyer who opposes the evidence’s introduction must:

  • Timely object or move to strike; and

  • State the specific ground, unless it was apparent from the context.

If the ruling of the Judge prevents the lawyer from getting into some subject that they think is proper then to preserve this error for review from a higher court the lawyer must make an “offer of proof.” This means that you have to tell the Judge what it was that you wanted to get into so that the higher court can review the decision or the Trial Judge can reverse their decision.

Some other miscellaneous topics covered by Rule 103 are:

  • If you object while the jury is still in the jury room then you don’t have to object again when they get back.

  • The court must allow you to make an offer of proof if you were trying to get into some matter but the Judge said no. This has to happen before the court reads the jury charge (a document that contains the law instructing the jury how to make their decision). If requested by a party or by the court the “offer of proof” must be made in question-and-answer form. This means that the lawyer who wanted to talk about the matter that the Judge said no to must question a witness about it outside the presence of the jury.

  • The Judge is admonished by Rule 103 (d) that they must conduct the trial so inadmissible evidence is not suggested to the jury by any means. This means don’t let the lawyers just shout out the objectionable evidence when the jury comes back in the room.

Finally there is a special rule in criminal cases that says the court may take notice of a fundamental error that affects some important right of the defendant even if the lawyer for the defendant screwed up how to make the objection. In general courts bend over backwards to try to preserve the rights of a criminal defendant both during a trial and on appeal. Errors of a procedural nature are normally forgiven in some way. Here the language of the rule allows for serious problems to be corrected without objection from the defense lawyer.

In general an objection is proper if it takes the following form: Your Honor, I object to that question/answer because it is hearsay/not relevant/a leading question/ etc. ” Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991).

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court must allow a party to make an offer of proof outside the jury’s presence as soon as practicable—and before the court reads its charge to the jury. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. At a party’s request, the court must direct that an offer of proof be made in question-and- answer form. Or the court may do so on its own.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Fundamental Error in Criminal Cases. In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved.

15 views0 comments


bottom of page