CROSSOVER: Error Preservation Trap: If You Don’t Say “Impeachment Under Rule 613,” You Waive It—A Lesson for Family-Violence Trials

Hall v. State, 10-25-00094-CR, March 12, 2026.

On appeal from the 443rd District Court of Ellis County, Texas.

Synopsis

A complaint about the exclusion of impeachment by prior inconsistent statement is not preserved unless counsel makes the trial court aware—specifically—that the proponent is invoking Texas Rule of Evidence 613 (or otherwise clearly stating “impeachment” as the basis). In Hall, the appellant argued Rule 613 on appeal, but the record showed he never told the trial judge he was attempting Rule 613 impeachment and never lodged a preservation-grade objection when the court shut it down. Result: waiver under TRAP 33.1 and affirmance.

Relevance to Family Law

Family-law trials—especially family-violence protective orders, SAPCR modification hearings, and contested conservatorship trials—routinely turn on credibility contests where impeachment is the entire case. Hall is a reminder that “I’m just trying to ask about what she said before” is not preservation; if you do not clearly articulate that you are impeaching with a prior inconsistent statement under Rule 613 (and obtain a ruling), you may lose the appellate issue even if the trial court’s evidentiary call was wrong. In high-stakes custody or protective-order litigation, that waiver can be outcome-determinative because appellate courts will not reach “credibility impeachment excluded” arguments that were not crisply presented and ruled on.

Case Summary

Fact Summary

Kenneth Wayne Hall was convicted of aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon, with enhancements. On appeal, Hall raised a single issue in each case: he claimed the trial court abused its discretion by not allowing him to impeach a witness with a prior inconsistent statement under Texas Rule of Evidence 613.

The appellate court’s focus was not on whether the prior statement was truly inconsistent or whether the foundational requirements of Rule 613 were satisfied. Instead, the opinion turned on the record: Hall never told the trial court that the line of questioning was offered for impeachment under Rule 613, and he never complained that the court’s ruling improperly denied impeachment. In other words, the trial court was never made aware of the legal basis for the evidentiary request that Hall later advanced on appeal.

Issues Decided

• Whether a party preserves error complaining about the exclusion of impeachment evidence under Texas Rule of Evidence 613 when the party does not specifically inform the trial court that the evidence is offered for Rule 613 impeachment (and does not complain about the denial of impeachment).

Rules Applied

• Texas Rule of Appellate Procedure 33.1(a) (preservation): the record must show the complaining party stated the grounds for the ruling sought “with sufficient specificity” to make the trial court aware of the complaint and obtained an express or implicit ruling.
• Texas Rule of Evidence 613 (prior inconsistent statements): governs impeachment of a witness with a prior inconsistent statement and related foundational requirements.
• Preservation authorities cited by the court:
• Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (specificity required; trial court must be made aware).
• Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018) (at the earliest opportunity, do everything necessary to bring the complaint to the judge’s attention).
• Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (same preservation principle).

Application

The Tenth Court applied the familiar preservation framework: appellate courts review only the complaint that was actually presented to the trial court. Hall’s appellate briefing framed the trial court’s ruling as an abuse of discretion in denying Rule 613 impeachment; but the courtroom record, as characterized by the court, showed Hall never identified impeachment as the purpose of the evidence and never argued Rule 613 (or its functional equivalent) when the court curtailed the questioning.

Because TRAP 33.1 requires specificity sufficient to alert the judge to the complaint, the court held that Hall’s “Rule 613 impeachment was excluded” argument was not the same complaint he made in real time. That mismatch—between what counsel argued on appeal and what counsel articulated at trial—was fatal. The court therefore did not reach the merits of the impeachment exclusion and instead affirmed on waiver grounds.

Holding

Hall failed to preserve his complaint that the trial court improperly excluded impeachment under Texas Rule of Evidence 613 because he did not inform the trial court he was seeking Rule 613 impeachment and did not complain that the court’s ruling denied impeachment. Accordingly, under TRAP 33.1, the issue was waived and the judgments were affirmed.

Practical Application

For Texas family-law litigators, Hall is an error-preservation trap that shows up most often in family-violence-adjacent trials where emotions run high and witnesses are combative: counsel tries to confront a witness with a prior statement, the judge sustains an objection (often “hearsay,” “asked and answered,” “improper impeachment,” or “relevance”), and counsel moves on without building a preservation record. If the credibility point mattered—and it usually does—Hall teaches that you must label the theory (Rule 613 impeachment), lay the necessary predicate, and obtain a clear ruling.

Common family-law flashpoints where this matters:

• Protective orders / Title 4 cases: complainant’s prior written statement to police, a forensic nurse report narrative, or prior testimony in a related divorce/TRO hearing.
• SAPCR bench trials: inconsistent allegations across (1) original pleadings, (2) sworn inventories, (3) affidavits under § 102.008 or emergency orders, (4) mediated settlement recitations, or (5) prior temporary orders hearings.
• Enforcement / contempt-adjacent hearings: prior admissions in discovery responses, text messages, OurFamilyWizard records, or prior testimony about exchanges and possession interference.
• Property characterization disputes: sworn inventory schedules, deposition testimony, loan applications, and financial statements used to impeach “I never said that asset was separate/community” testimony.

Strategically: if you cannot persuade the judge to admit the impeachment, you are still trying to win the appeal. That requires a record that makes unmistakable that (1) you were offering the evidence for impeachment under Rule 613, (2) you satisfied the predicate (or offered to do so), and (3) the court excluded it after being alerted to the correct legal basis.

Checklists

Checklists

Rule 613 Impeachment: Preservation Script (Bench Trial or Jury Trial)

• State the purpose: “Your Honor, this is offered to impeach with a prior inconsistent statement under Texas Rule of Evidence 613.”
• Identify the statement with precision (date, medium, speaker, recipient): “On [date], in [text/email/police statement/hearing], the witness stated…”
• Establish inconsistency: “That statement is inconsistent with today’s testimony that…”
• Confront the witness with the contents and circumstances as required (or request to do so): “May I approach and show the witness the statement and ask whether she made it?”
• If the court sustains an objection, ask for a ruling on impeachment specifically: “Respectfully, does the Court’s ruling exclude this impeachment under Rule 613?”
• If excluded, make an offer of proof (see checklist below) and obtain a clear ruling.

Offer of Proof (When the Judge Won’t Let You Impeach)

• Request permission to make an offer of proof outside the factfinder’s presence (or by narrative if permitted).
• Mark the impeachment exhibit for identification (e.g., “Respondent’s Ex. 12 for identification only”).
• Elicit (or proffer) the exact question you would ask and the expected answer.
• Proffer the exact language of the prior statement and the context showing it is the witness’s statement.
• Tie admissibility to Rule 613 and (if relevant) explain non-hearsay purpose: “Not for the truth, only credibility.”
• Obtain an express ruling excluding the evidence after the offer is completed.

Family-Violence Trial Prep: Prebuilding the Impeachment Record

• Map every key allegation to prior statements (petition, affidavit, police report narrative, medical records history, prior hearing transcript).
• Create an “inconsistency table” (today’s expected testimony vs. prior statement, with citations).
• Subpoena prior hearing transcripts and authenticate them (or obtain certified copies).
• Prepare foundational questions to establish authorship, timing, and circumstances of the prior statement.
• Anticipate “hearsay” objections and be ready to say: “impeachment under Rule 613; not for truth.”
• If the judge is interventionist, be prepared to slow down and “label the rule” on the record.

When Opposing Counsel Blocks Impeachment: Rapid Response

• Do not argue facts; argue the rule: “Rule 613 impeachment; prior inconsistent statement.”
• If the court seems focused on hearsay, clarify purpose immediately.
• Ask for a running ruling only if the court will give it; otherwise, preserve each key excluded impeachment point.
• If time-limited, prioritize impeachment on dispositive elements (family violence occurrence, injury, weapon, child exposure, protective-order violations).

Citation

Hall v. State, Nos. 10-25-00094-CR & 10-25-00095-CR (Tex. App.—Waco Mar. 12, 2026) (mem. op.) (not designated for publication).

Full Opinion

Read the full opinion

Family Law Crossover

Although Hall is a criminal memorandum opinion, its preservation lesson is directly exportable to family court—and can be weaponized. If you’re defending against a protective order or trying to expose fabrication in a SAPCR, your win condition may be impeaching the other side’s principal witness. But if you fail to say “Rule 613 impeachment” (or otherwise make the impeachment theory unmistakable), the opposing party can argue on appeal that the trial judge was never alerted to the legal basis for admission and that your complaint is waived under TRAP 33.1’s specificity requirement.

Conversely, if you represent the party benefitting from the exclusion (e.g., the applicant in a protective order or the conservator defending a modification), Hall is a clean appellate shield: comb the record for places where the other side tried to impeach but never articulated Rule 613, never clarified the non-hearsay purpose, never requested to lay the predicate, and never made an offer of proof. If those steps are missing, you have a credible preservation argument that can end the appeal without ever litigating whether the prior statement was truly inconsistent.

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