In the Estate of Billy Ray Martin, Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00061-CV
IN THE ESTATE OF BILLY RAY MARTIN, JR., DECEASED
On Appeal from the 276th District Court
Marion County, Texas
Trial Court No. 2000151
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Billy Ray Martin, Jr., died on November 29, 2019. On behalf of Travis Andrew Martin,
Martin’s only child, Larry Keith Stone1 filed an application to determine heirship. The
application alleged that Martin was unmarried and died intestate, but Martin’s death certificate
said he was married to Summer Ray Barnwell a/k/a Summer Barnwell Martin at the time of his
death. Summer opposed Stone’s application and alleged that she was Martin’s common-law
wife. A Marion County jury determined that Martin was not married at the time of his death, and
as a result, the trial court entered a judgment declaring Travis as Martin’s sole heir.
On appeal, Summer argues (1) that the jury’s finding was not supported by factually
sufficient evidence, (2) that the trial court erred in admitting the testimony of a justice of the
peace, and (3) that the trial court erred by admitting testimony that Martin had a will and wanted
to leave his estate to Travis. We find that factually sufficient evidence supports the jury’s
finding that Martin was unmarried. We also overrule the only complaint that Summer preserved
to the testimony of the justice of the peace and conclude that her complaints about Martin’s will
and wishes were not preserved for our review.2 As a result, we affirm the trial court’s judgment.
I. Factually Sufficient Evidence Supports the Finding that Martin Was Unmarried
Summer argues that the evidence is factually insufficient to support the jury’s finding that
Martin was unmarried at the time of his death because she proved the existence of a common-
law marriage. “An informal or common-law marriage exists in Texas if the parties (1) agreed to
1
Stone is Travis’s maternal grandfather.
2
We also overrule Summer’s complaint about cumulative error.
2
be married, (2) lived together in Texas as husband and wife after the agreement, and
(3) represented to others that they were married.” Burden v. Burden, 420 S.W.3d 305, 308 (Tex.
App.—Texarkana 2013, no pet.) (citing TEX. FAM. CODE ANN. § 2.401(a)(2); Russell v. Russell,
865 S.W.2d 929, 932 (Tex. 1993); Crenshaw v. Kennedy Wire Rope & Sling Co., 327 S.W.3d
216, 222 (Tex. App.—San Antonio 2010, no pet.)). “An informal marriage does not exist until
the concurrence of all three elements.” Id. (citing Eris v. Phares, 39 S.W.3d 708, 714 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied)).
“The existence of an informal marriage is a fact question, and the party seeking to
establish existence of the marriage bears the burden of proving the three elements by a
preponderance of the evidence.” Id. (citing Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—
Houston [14th Dist.] 1993, no pet.)). “To establish that the parties agreed to be husband and
wife, it must be shown that they intended to create an immediate and permanent marriage
relationship, not merely a temporary cohabitation that may be ended by either party.” Id. (citing
Eris, 39 S.W.3d at 714).
A. Standard of Review
“When a party attacks the factual sufficiency of an adverse finding on an issue on which
she has the burden of proof, she must demonstrate on appeal that the adverse finding is against
the great weight and preponderance of the evidence.” Pettit v. Tabor, No. 06-19-00002-CV,
2020 WL 216025, at *8 (Tex. App.—Texarkana Jan. 15, 2020, pet. denied) (mem. op.) (quoting
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam)). “We ‘consider and
weigh all of the evidence,’ and we ‘can set aside a verdict only if the evidence is so weak or if
3
the finding is so against the great weight and preponderance of the evidence that it is clearly
wrong and unjust.’” Id. (quoting Dow Chem. Co., 46 S.W.3d at 242).
“[T]he fact-finder . . . determines the witnesses’ credibility and the weight of their
testimony.” Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)). As a result,
a jury “may believe all, part, or none of a witness’ testimony.” Id. (quoting Antolik v. Antolik,
No. 06-18-00096-CV, 2019 WL 2119646, at *3 (Tex. App.—Texarkana May 15, 2019, pet.
denied) (mem. op.)). “In our review, we must credit evidence favorable to the finding if a
reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-finder
could not.” Id. (quoting Antolik, 2019 WL 2119646, at *3).
B. The Evidence at Trial
Summer testified that she met Martin in 2010 and moved into his home with her
daughters in 2012. Summer said that she and Martin lived together continuously from June 2012
through March 2019, she considered herself to be Martin’s wife, and she regarded Martin as her
husband.
Summer testified that she and Martin had commemorated their marriage by a written
agreement and explained the circumstances that lead to the agreement. Summer said that Billy
Ray Martin, Sr. (Senior) became ill, that he required medical treatment, and that his doctor
“wanted some kind of written paper . . . for [her] to be able to take [Senior] where he needed to
go.” As a result, in 2015, Summer testified that she “signed papers like in front of a notary as
husband and wife because [Senior] came to live with [them].” According to Summer, the
document, which she did not have a copy of, was signed at her counsel’s office and “was just
4
basically stating the marriage.” Summer testified that, even though she and Martin did not
celebrate the marriage in a traditional sense and did not invite her family, they went to a
neighbor’s house and “cooked fish with [Senior].” Summer said she did not ask the neighbor to
testify because they “d[id] not get along any more.”
Summer said (1) that Martin gave her a ring in 2015, which symbolized the marriage,
(2) that she wore that ring, and (3) that, even though she did not give Martin a ring, he used
Senior’s ring. Summer said that her last name was “Martin,” “[o]n some documents,” but
admitted that she did not legally change her name and that neither her driver’s license nor her
social security card listed “Martin” as her last name. When Senior passed away, Summer said
she represented herself to be Senior’s daughter-in-law at the funeral home.
Summer testified that she separated from Martin in March 2019 because of his
methamphetamine and alcohol use. At that time, Summer and her daughters moved in with
Martin’s neighbor and former friend, Jimmy Goodwin, who tried to give her an engagement ring.
Summer admitted that she and Goodwin had sexual relations and that she still lived in a home on
his property. Even so, Summer claimed that she was living with Martin again on November 29,
2019, the day of Martin’s death.
Summer testified that she had invited people to celebrate Thanksgiving with her and
Martin on the day of his death, but Martin, who was an avid fisherman and had taken his boat out
that day, never made it to the Thanksgiving table. At 12:52 p.m., Martin’s body was found
floating in four feet of water. He was wearing a life jacket, shirt, socks, and boxers, but he was
5
not wearing pants, and his boat was never found. Summer testified that law enforcement officers
tried to get in touch with her because they believed she was his wife.
Summer did not have a funeral for Martin. Days after his death, his home and shed,
which was located fifty yards from the home, were consumed by fire. Summer testified that
photos of her and Martin burned up and that, when she found the fireproof safe containing their
2015 signed marriage agreement, “there was no budging it.”
Summer introduced the testimony of several witnesses in support of her claim, including
Martin’s mother, Jo Martin. Jo testified (1) that Martin and Summer “had [a] common law
marriage,” (2) that they both affirmed their marriage, and (3) that she considered Summer to be
her daughter-in-law. Savannah Carlile, who saw Martin and Summer every six to eight weeks,
testified that they lived together, called each other husband and wife, and appeared to be husband
and wife. Cassie Rawlins, who had known both Martin and Summer for a long time, testified
(1) that Martin called Summer his wife, (2) that Summer wore a wedding ring, and (3) that
Summer and Martin “definitely” held themselves out as husband and wife. Chastity Childers,
who had also known the couple for many years, testified, “[T]hey thought of each other as
husband and wife.” According to Childers, Martin referred to Summer as “[h]is old lady,” and
Summer’s children “called [Martin] dad.” Even so, Carlile testified that Summer moved in with
Goodwin before Martin’s death, and Rawlins said she knew Goodwin had asked Summer to
marry him.
Jeffrey Johnson, the father of Summer’s niece, testified that Summer moved in with
Goodwin and remained there even though she had lived with Martin for many years. Johnson
6
testified that Martin did not show his feelings toward Summer until she had moved out but
considered Summer to be his wife “[t]oward the end.” According to Johnson, neither Martin nor
Summer wore a wedding ring.
Summer testified that Martin’s closest friends were Autumn Daniel and Toby Reynolds.
Both testified that Martin was not married to Summer. Daniel testified that she had known
Martin since 1995 and that Martin and Summer had not agreed to be married. According to
Daniel, Summer lived in Martin’s home but Martin “stayed in his man cave”—the shed—most
of the time. Daniel said that Martin never claimed Summer as his wife and never wore a
wedding ring. Daniel did not recall Summer ever having a wedding ring, and she did not hear
about any celebration of an agreement to get married. Daniel testified that Summer was living
with her boyfriend, Goodwin, when Martin died and only started using “Martin” as her last name
after Martin’s death. Daniel believed that Martin had a will, that Martin did not intend for
Summer to inherit any of his estate, and that everything was to go to Travis “without a doubt.”
Daniel’s testimony was echoed by Reynolds, who knew Martin for twenty-two years,
lived a block away, saw Martin several times a week, and was his best friend. Reynolds said that
Martin and Summer dated but separated. According to Reynolds, while Summer cooked for
Martin and cared for the house, she and Martin were not married. Reynolds testified that Martin
(1) never said he made an agreement to marry Summer, (2) did not wear a wedding ring, (3) did
not call Summer his wife, and (4) did not intend to be married.3 Reynolds said that he would
have noticed if Summer wore a wedding ring and that she never used the last name “Martin”
3
The evidence showed that Reynolds was in jail from 2013 to 2015.
7
until after Martin died. According to Reynolds, Summer moved out nine months before Martin
died and moved in with Goodwin, who gave Summer an engagement ring. Reynolds testified
that Martin knew about the engagement ring and, two nights before his death, “was mad as a
hornet, wanting to kill her . . . [b]ecause she was getting married to . . . [Goodwin].” Reynolds
testified that Martin “wanted everything going to [Travis].”
Susan Crockett, who had known Martin since he was fourteen and visited him often, and
Martin’s stepbrother-in-law, Donald Jackson, also testified against the claim of common-law
marriage. Crockett said that, while Martin loved Summer’s children, she did not witness a
loving relationship between him and Summer and did not believe they were married. Crockett
and Jackson explained that Summer and her children stayed in Martin’s main house while Martin
stayed in his “man cave.” Jackson added that Summer was always in the house and never came
to the man cave where Martin entertained visitors. Jackson testified that Martin used to say that
Summer “was embedded like a tick, and he couldn’t get rid of her.” According to Crockett and
Jackson, who said they would have known if Martin intended to be married, Martin never
introduced Summer as his wife and did not wear a wedding ring.4 Jackson testified that
Summer’s last name was Barnwell but that she started going by “Martin” after Martin died.
Crockett testified that Martin was very proud of Travis and wanted him to have his entire
estate. Jackson said he had spoken with Martin about his estate many times, that Martin never
said he wanted anything to go to Summer, and that Martin wanted everything, including the
4
Jackson said he did not hear others refer to Summer as Martin’s wife.
8
house, to go to Travis. Jackson testified that their conversations led him to believe that Martin
had a will.
Travis, who was twenty-two at the time of trial, was in the Navy and had given Stone a
power of attorney to file an application for determination of heirship on his behalf. Travis and
Kyle Bowden, COO and Senior Vice President of First National Bank of East Texas, testified
that Martin had opened a bank account on July 15, 2019, which listed Travis as his sole
beneficiary. Stone testified that his daughter, Beth Stone, was Travis’s biological mother and
that, even though Beth and Martin lived together for many years, they were never married.
The last witness was Wyone Manes, an Upshur County justice of the peace, who
explained how Summer’s name appeared on Martin’s death certificate. Manes testified that
“[t]he first part of [a] death certificate is done by the funeral home,” which includes personal
information such as whether the person is married. The same funeral home that held services for
Senior’s funeral checked a box on the death certificate indicating that Martin was married.
When Manes received the death certificate containing the funeral home’s representation of
Martin’s marital status, she filled out the information showing the circumstances of Martin’s
death and signed the certificate, even though it did not list the name of any spouse.
The day after she signed the certificate, a woman named Crystal Tombs visited Manes’s
office, claimed to be Martin’s girlfriend, and presented Manes with Martin’s notarized power of
attorney showing that she lived with Martin. Although the power of attorney was no longer
valid, it raised Manes’s suspicions about Martin’s marital status. Manes called the funeral home
to demand proof of marriage. Although the funeral home, Summer’s counsel, and Jo responded
9
that Summer was Martin’s common-law wife, Manes was unsatisfied because she did not receive
other proof of the common-law marriage. As a result, Manes testified that she did not believe
Martin was married. Manes also testified that, because the funeral home certified Martin’s
personal information, only they could change Martin’s marital status, but had refused to do so.
Manes added that she would have altered the certificate to state that Martin was unmarried if she
had had the ability to do so.
After weighing all the testimony, the jury found that Martin and Summer were not
married.
C. Analysis
Here, Summer bore the burden to prove, by a preponderance of the evidence, that (1) she
and Martin agreed to be married, (2) she and Martin lived together in Texas as husband and wife
after the agreement, and (3) she and Martin represented to others that they were married. In this
case, the evidence relating to all three elements of common-law marriage was controverted.
While Summer introduced evidence that she and Martin agreed to be married, Martin’s
best friends, Reynolds and Daniel, contradicted that testimony. Although Summer claimed that
she had signed an agreement of marriage at her counsel’s office, no such agreement was
produced, even though Summer had the safe securing the alleged agreement and knew she had
the burden to prove her common-law-marriage claim. Also, the jury heard that Summer and
Martin did not invite anyone to their marriage agreement celebration, and no one could
corroborate Summer’s testimony that a celebration occurred because Senior had passed and
Summer was not speaking to the neighbor. “As the sole judge of the credibility of the witnesses,
10
the [jury] could reasonably disregard [Summer’s] controverted testimony regarding her claim
that [she and Martin] mutually agreed to be married.” Fusselman v. Fusselman, No. 09-11-
00435-CV, 2013 WL 5428137, at *3 (Tex. App.—Beaumont Sept. 26, 2013, no pet.) (mem. op.).
As for the second element, ample evidence showed that Summer and Martin lived
together, but “[t]he cohabitation must be professedly as husband and wife . . . so that, by their
conduct towards each other, they may be known as husband and wife.” Small v. McMaster, 352
S.W.3d 280, 284 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Grigsby v. Reib,
153 S.W. 1124, 1130 (Tex. 1913)). While Summer introduced evidence that the cohabitation
was as husband and wife, other witnesses disagreed. The contradicting evidence established that,
while Summer cooked for Martin and cleaned the home, Martin “stayed in his man cave,” where
he entertained guests outside of Summer’s presence. Reynolds and Crockett testified that Martin
never intended to be married. Crockett, Daniel, and Jackson said Martin never claimed Summer
as his wife. Crockett told the jury she never saw a loving relationship between Martin and
Summer, and Jackson said he never saw Martin and Summer interact as a couple. Because
testimony showed that Summer moved into Goodwin’s home, the jury could infer that Summer
and Martin had a “cohabitation that [could] be ended by either party.” Burden, 420 S.W.3d at
308. As the fact-finder, the jury was free to conclude that Summer and Martin did not live
together as husband and wife.
Last, “[t]he element of representing to others that they were married, or ‘holding out,’
requires more than occasional references to each other as husband and wife.” Meshell v. Lippi,
No. 02-15-00212-CV, 2016 WL 2840877, at *2 (Tex. App.—Fort Worth May 12, 2016, no pet.)
11
(mem. op.) (citing Smith v. Deneve, 285 S.W.3d 904, 909–10 (Tex. App.—Dallas 2009, no
pet.)); see Est. of Walker, No. 2-08-371-CV, 2009 WL 1996301, at *3 (Tex. App.—Fort Worth
July 9, 2009, no pet.) (mem. op.) (citing Danna v. Danna, No. 05-05-00472-CV, 2006 WL
785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.) (“[I]solated references to
each other as husband and wife alone do not establish a holding out[.]” (alterations in original));
Flores v. Flores, 847 S.W.2d 648, 653 (Tex. App.—Waco 1993, writ denied). Instead,
“[w]hether the evidence is sufficient to establish that a couple held themselves out as husband
and wife turns on whether the couple had a reputation in the community for being married.”
Small, 352 S.W.3d at 285 (citing Eris, 39 S.W.3d at 715; Danna, 2006 WL 785621, at *1 (a
“couple’s reputation in the community as being married is a significant factor in determining the
holding[-]out element”) (alteration in original)). In other words, “[p]roving a reputation for
being married requires evidence that the couple ‘consistently conducted themselves as husband
and wife in the public eye or that the community viewed them as married.’” Id. (quoting Danna,
2006 WL 785621, at *2).
Summer, Carlile, Rawlins, and Childers testified that Martin and Summer referred to
each other as husband and wife, and Jo testified both that the couple affirmed their marriage and
that she considered Summer to be her daughter-in-law. Summer and Rawlins also testified that
Summer wore a wedding ring. Even so, Martin’s closest friends said that Martin was not
married and did not introduce or refer to Summer as his wife. When Summer moved in with
Goodwin, Goodwin asked Summer to marry him, suggesting that he also believed Summer was
unmarried even though he was Martin’s neighbor. Summer admitted that she had never legally
12
changed her name, and several witnesses testified that she only started using the last name
“Martin” after Martin died. From this conflicting evidence, the jury was free to conclude that the
last element of common-law marriage was unmet.
In this case, the jury resolved the conflicting evidence by finding that Martin and
Summer were not married. After reviewing all of the evidence, we cannot say that the jury’s
finding is so against the great weight and preponderance of the evidence that it is clearly wrong
and unjust. As a result, we find the evidence factually sufficient to support the jury’s finding,
and we overrule Summer’s first issue.
II. The Trial Court Did Not Abuse Its Discretion by Admitting Manes’s Testimony
Over Summer’s Sole Preserved Objection
In her second point of error, Summer argues that the trial court erred by admitting
Manes’s testimony because it “attempt[ed] to ‘impeach’ the statements on a certified death
certificate.” We disagree. We also find that Summer failed to preserve her remaining arguments
to Manes’s testimony, which claimed that, because the testimony constituted “opinions . . . based
on her previous participation in this case,” it was prohibited by the Code of Judicial Conduct. As
a result, we overrule Summer’s second point of error on appeal.
A. Summer Failed to Preserve an Admissibility Issue Before Trial
“As a prerequisite to presenting a complaint for appellate review, the record must show
that” it “was made to the trial court by a timely request, objection, or motion that . . . stated the
grounds for the ruling . . . with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context” and that either the trial
court “ruled on the request, objection, or motion, either expressly or implicitly,” or “refused to
13
rule on the request, objection, or motion, and the complaining party objected to the refusal.”
TEX. R. APP. P. 33.1(a).
Before trial, Summer moved to limit Manes’s testimony on the ground that she should
not “be allowed to come in and impeach” the death certificate. After the trial court said, “I’m
going to deny that motion in limine,” Summer requested “a limine instruction on that, under the
circumstances.” Summer clarified that she believed Manes was “not supposed to be able to
testify, as a judge,” and requested a limiting instruction, to which the trial court responded, “You
bring it up or object.”
“A motion in limine . . . does not preserve error on evidentiary rulings at trial because it
does not seek a ruling on admissibility . . . .” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917,
920 n.3 (Tex. 2015) (per curiam). Instead, “the purpose of such a motion ‘is to prevent the
asking of prejudicial questions and the making of prejudicial statements in the presence of the
jury’ without seeking the trial court’s permission.” Id. (quoting Hartford Accident & Indem. Co.
v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963), abrogated on other grounds by Bay Area
Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (per curiam)); see In re J.A.P.,
No. 06-08-00092-CV, 2009 WL 839953, at *1 (Tex. App.—Texarkana Apr. 1, 2009, no pet.)
(mem. op.). Even liberally construing Summer’s motion as an objection to the admissibility of
Manes’s testimony, we find error unpreserved because “[a] party is ‘required to obtain an
adverse ruling on their objection to preserve error for review,’” and the trial court neither ruled
on the issue nor refused to rule. See Est. of Pettit, No. 06-22-00043-CV, 2023 WL 2319409, at
*2 (Tex. App.—Texarkana Mar. 2, 2023, no pet. h.) (mem. op.) (quoting Pilgrim’s Pride Corp.
14
v. Smoak, 134 S.W.3d 880, 896–97 (Tex. App.—Texarkana 2004, pet. denied)). Instead,
Summer received a reminder to raise any complaints about Manes’s testimony at trial.
B. The Trial Court Did Not Err by Overruling the Impeachment Argument,
Which Was the Only Argument Preserved for Review
Before Manes’s testimony, Summer’s counsel said, “Your Honor, I do have some law
about amending a death certificate,” to which the court replied, “Okay, that’s fine. I want to hear
what she’s got to say, and I’ll look at your law.” Outside the jury’s presence, Manes testified
that the funeral home filled out Martin’s marital status and would not change it and that she had
no authority to change it herself. The trial court then had a brief hearing, in which the following
occurred:
THE COURT: . . . . [Y]ou had a case or something that the Judge over
here can’t testify about questions she had about the death certificate.
[SUMMER’S COUNSEL]: No, I don’t have a case that says she can’t
testify to questions. Here’s my approach, Your Honor. My approach is that this
is the death certificate, that it sets forth the facts that she found as of January 24th,
2020, when the State Registrar certificates [sic] this. And that there is a procedure
for amendment if it should have been amended, if there should be any changes on
it. And that that procedure has not been initiated by anyone.
THE COURT: Okay. So? . . . . What does that have to do with the
testimony that --
[SUMMER’S COUNSEL]: Well, she’s impeaching this death certificate
is what she’s doing.
THE COURT: You can bring that out on cross examination.
....
THE COURT: I’m going to admit her testimony.
....
15
THE COURT: Now, however, [Summer’s counsel] is going to be
objecting, I assume --
[SUMMER’S COUNSEL]: Yes.
THE COURT: -- while the Jury is in. And so, Judge, whenever you get an
objection, don’t answer until I’ve had a chance to rule on it, because a question
may be asked that I haven’t heard asked yet.
At that point, the trial court was presented with and overruled an objection that Manes
should not be allowed to impeach a death certificate. “We review the trial court’s decision to
admit or exclude evidence for an abuse of discretion.” Fleming v. Wilson, 610 S.W.3d 18, 21
(Tex. 2020) (per curiam). “A trial court abuses its discretion when it acts ‘without reference to
any guiding rules or principles; or in other words, [when it acts] arbitrarily or unreasonably.’”
In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (alteration in original) (quoting Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
Here, we find no abuse of discretion in the trial court’s ruling. Counsel’s impeachment
argument did not refer to any rule of admissibility. Instead, counsel referred to a statute allowing
amendment “to modify the medical certification information on the [death] certificate.” TEX.
HEALTH & SAFETY CODE ANN. § 193.012. Yet, a death certificate contains both personal and
medical information. TEX. HEALTH & SAFETY CODE ANN. § 193.004. Because Section 192.012
only provides for amendments to medical information, nothing suggests it would preclude
Manes’s testimony about the personal information contained in the death certificate. Moreover,
since “[a] copy of a . . . death . . . record registered [under the Health and Safety Code] . . . that is
certified by the state registrar is prima facie evidence of the facts stated in the record,” not
16
conclusive evidence, it was subject to rebuttal. TEX. HEALTH & SAFETY CODE ANN. § 191.052;
see Marker v. Prudential Ins. Co. of Am., 273 F.2d 258, 264 (5th Cir. 1959) (“[F]indings in the
original and the amended [death] certificate of suicide and accident were findings of fact,
admissible as prima facie evidence only, and subject, under the controlling rules of evidence, to
full explanation and contradiction.”).5 For these reasons, and because Summer’s counsel cited
no rule of admissibility that would preclude Manes’s testimony, we find that the trial court did
not act without reference to any guiding rules or principles in overruling counsel’s objection.
C. Summer Failed to Preserve any Other Complaint About Manes’s Testimony
“[A] party must object at trial when the testimony is offered in order to preserve error for
appellate review.” Zinda v. McCann St., Ltd., 178 S.W.3d 883, 894 (Tex. App.—Texarkana
2005, pet. denied). Manes testified, without objection, that “[t]he first part of the death
certificate [was] done by the funeral home,” which includes whether the person [was] married.
When Manes said that she did not agree with the representation that Martin was married, the
following occurred:
[SUMMER’S COUNSEL]: Your Honor, excuse me. I need to interpose
my objection at this point.
THE COURT: Please proceed.
[SUMMER’S COUNSEL]: Thank you. May I have a running objection
from this point forward, Your Honor? And the basis is that --
THE COURT: On what particular item do you want a running objection
on?
5
See also Gaines v. Acme Indus. Life Ins. Soc., 155 So. 276, 277 (La. Ct. App. 1934) (allowing testimony of
signatory doctor to impeach cause of death in death certificate).
17
[SUMMER’S COUNSEL]: Well, I guess --
THE COURT: Identify what you want to --
[SUMMER’S COUNSEL]: Any testimony that relates to items 1 through
27, any indications that are on there.6
THE COURT: Overruled.
[SUMMER’S COUNSEL]: So may I have a running objection on that
basis?
THE COURT: Yes.
An objection must state the “grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). For this
reason, “[a] running objection is required to be specific and unambiguous.” Huckaby v. A.G.
Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet denied). While
Summer generally objected, she failed to state the basis for the objection.
To the extent that the trial court understood the objection to raise the same impeachment
issue discussed just before Manes’s testimony, we have already found that it did not abuse its
discretion by overruling it. To the extent Summer intended to raise a different objection, we find
it unpreserved for lack of specificity.
In her brief, Summer argues that Manes’s “opinions . . . based on her previous
participation in this case” were prohibited by the Code of Judicial Conduct. However, “a party’s
complaint on appeal must comport with the objection made at trial,” and the record shows that
6
In large part, items 1 through 27 referred to the personal information on Martin’s death certificate.
18
no such objection occurred during Manes’s testimony. Great N. Energy, Inc. v. Circle Ridge
Prod., Inc., 528 S.W.3d 644, 673 (Tex. App.—Texarkana 2017, pet. denied) (quoting Lee v.
Holoubek, No. 06-15-00041-CV, 2016 WL 2609294, at *5 (Tex. App.—Texarkana May 6, 2016,
no pet.) (mem. op.)). While Summer’s remaining complaints were raised in a motion for a new
trial, they were untimely since Manes’s testimony had already been admitted in front of the jury.
See In re G.B., No. 06-20-00031-CV, 2020 WL 4589761, at *3 (Tex. App.—Texarkana Aug. 11,
2020, no pet.) (mem. op.) (“An objection made after the testimony has been elicited is untimely
and does not preserve the complaint for appellate review.”); Knoderer v. State Farm Lloyds, 515
S.W.3d 21, 44–45 (Tex. App.—Texarkana 2017, pets. denied) (an objection to exclude
testimony after it is concluded is untimely); Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp.,
28 S.W.3d 64, 69 (Tex. App.—Texarkana 2000, no pet.) (“We have found no instance where a
claim of error is preserved when a party waits until the witness completes her testimony . . . and
then asks the court on the next day to strike the testimony.”). We overrule Summer’s remaining
complaints to Manes’s testimony because she failed to preserve them.
III. Summer Failed to Preserve Her Remaining Complaints
Summer argues that Reynolds’s testimony that Martin wished to leave everything to
Travis was improper and that the trial court erred by admitting Jackson’s and Daniel’s testimony
that Martin had a will that distributed his assets to Travis. We conclude that none of those
complaints are properly preserved.
Reynolds testified, without objection, that “[Martin] wanted everything going to
[Travis].” Also, without objection, Jackson testified that Martin “had mentioned a [w]ill,” said
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he wanted “anything he had . . . to go to his son,” and never said he wanted anything to go to
Summer. Although he had not seen the will, Jackson testified, without objection, that he
believed Martin had one.
“Preservation of error is a systemic requirement on appeal.” Knoderer, 515 S.W.3d at
44. “If an issue has not been preserved for appeal, we should not address it on the merits.” Id.Because Summer failed to make a contemporaneous objection to Reynolds’s and Jackson’s
testimony, she has not preserved her complaints to their testimony.7
Daniel also testified, without objection, that Martin had a will. When asked, “Do you
know what that [w]ill left,” Summer’s counsel lodged hearsay and speculation objections. The
trial court held a brief hearing outside the jury’s presence, in which counsel questioned Daniel
about how she knew of Martin’s will. The trial court made no ruling on the objections. Instead,
Summer’s counsel ended the hearing by saying, “Your Honor, I probably want to make a very
explicit objection to any further testimony on this,” to which the trial court responded, “When
the question is asked, go ahead and make your objection.”
Summer’s counsel objected to the initial question directed to Daniel and secured an
adverse ruling. Even so, generally, a party “must object to the evidence every time it is offered,
or the objection is not preserved.” Est. of Emmons, No. 06-17-00007-CV, 2017 WL 3908624, at
*3 (Tex. App.—Texarkana Sept. 7, 2017, no pet.) (mem. op.). An exception to the rule occurs
when a party secures a running objection. Id.; see In re A.D.K., No. 06-19-00019-CV, 2019 WL
2607599, at *7 (Tex. App.—Texarkana June 26, 2019, pet. denied) (mem. op.) (citing
7
Summer argues that she raised these complaints in her motion for a new trial, but we find them untimely. See In re
G.B., 2020 WL 4589761, at *3; Knoderer, 515 S.W.3d at 44–45; Aluminum Chems. (Bolivia), Inc., 28 S.W.3d at 69.
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Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004)). Here, Summer sought,
but failed to secure, a running objection to the remainder of Daniel’s testimony. As a result,
when Summer’s own counsel elicited Daniel’s testimony that she heard Martin speak about a
will, the testimony was admitted without objection. Also, Summer’s counsel failed to object to
Daniel’s direct testimony that Martin wanted to leave everything to Travis “without a doubt.” As
a result, Summer failed to preserve her complaints about Daniel’s testimony.
We conclude that Summer did not preserve her remaining substantive complaints on
appeal and overrule them.
IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: April 5, 2023
Date Decided: May 2, 2023
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