Harrison v. State, 07-26-00119-CR, August 17, 2026.
On appeal from 78th District Court, Wichita County, Texas
Synopsis
A running Rule 403/404 objection does not preserve error indefinitely when the trial court later requires the evidence to be re-offered and re-ruled on before publication to the jury. If, at that later point, counsel responds “No objection” to admission of substantially the same evidence, Texas Rule of Appellate Procedure 33.1(a) treats the complaint as waived notwithstanding the earlier running objection.
Relevance to Family Law
For Texas family law litigators, this is a preservation case with immediate practical consequences in SAPCRs, modification trials, divorces involving fault or waste allegations, and enforcement proceedings where text messages, social-media data, browser history, photographs, medical records, business records, or digital extracts are offered in stages. Family cases often involve preliminary objections to sensitive exhibits, followed by later offers for admission, publication, or use through another witness. Harrison is a reminder that if the court conditions later use on a renewed ruling, a later “no objection” can forfeit the earlier complaint—even where counsel previously secured a running objection. In other words, the evidentiary fight is not over simply because you won a running objection at the first bench conference.
Case Summary
Fact Summary
The defendant was tried on multiple child-sex offenses. During trial, the State sought to introduce digital evidence recovered from his electronic devices, including internet search history, photographs, and a video. The defense objected under Rules 404(b), 403, and 702, arguing the material was irrelevant, unfairly prejudicial, improper character evidence, and unsupported by adequate expert qualification.
The trial court overruled the Rule 403 and 404-related objections, did not overrule the Rule 702 complaint at that time, and granted a running objection, particularly as to Rule 403. But the evidentiary posture then changed. After an off-the-record discussion, the parties narrowed what would be shown to the jury that day. The State withdrew certain exhibits—search-history records and photographs—until a different predicate could be laid, and the trial court expressly indicated that any future offer of those exhibits before the jury would require a further bench conference and ruling. The video exhibit was handled separately and published without objection.
The next day, the State reoffered the withheld exhibits for publication to the jury. At that point, instead of reurging the prior objections or invoking the running objection, defense counsel stated: “No objection.” The exhibits were admitted and published to the jury. On appeal, the defendant argued that the trial court erred in admitting the search-history, photographic, and video evidence because it was highly inflammatory and had limited probative value.
Issues Decided
- Whether a defendant preserves a Rule 403 and Rule 404(b) complaint after receiving a running objection when the trial court later requires the evidence to be reoffered and reruled upon before publication to the jury.
- Whether a later “No objection” to admission of substantially the same exhibits waives any earlier evidentiary complaint under Texas Rule of Appellate Procedure 33.1(a).
- Whether, apart from preservation, the challenged digital pornography and search-history evidence would have been admissible under Rule 403 because of its probative nexus to the charged conduct.
Rules Applied
The court relied principally on Texas preservation doctrine and standard evidentiary review rules:
- Texas Rule of Appellate Procedure 33.1(a): To preserve a complaint for appellate review, the record must show a timely and sufficiently specific objection and an adverse ruling.
- Texas Rule of Evidence 403: Relevant evidence may be excluded only if its probative value is substantially outweighed by unfair prejudice or other listed dangers.
- Texas Rule of Evidence 404(b): Extraneous-act evidence is generally inadmissible to prove character conformity, but may be admissible for other noncharacter purposes.
- Garcia v. State, 6 S.W.3d 765, 767 (Tex. App.—Fort Worth 1999, pet. ref’d): When a party objects to evidence but later allows substantially the same evidence to come in without objection, any earlier complaint is waived.
- Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App. 2013): A later “no objection” ordinarily forfeits an earlier complaint unless the record plainly shows the party did not intend to abandon it and the trial court did not construe it as abandonment.
- Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018): Evidentiary rulings are reviewed for abuse of discretion.
- Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) and Perkins v. State, 664 S.W.3d 209, 217 (Tex. Crim. App. 2022): These cases frame the Rule 403 balancing analysis.
The court also referenced Fort Worth authority recognizing that pornography or search-history evidence may carry substantial probative value where it mirrors the accused’s relationship to the complainant and bears on intent.
Application
The court treated preservation as the dispositive issue. Although the defense initially made Rule 403 and 404 objections and obtained a running objection, that was not the end of the preservation analysis because the evidentiary circumstances materially changed. The State withdrew certain exhibits pending a different predicate, and the trial court expressly stated that any future offer before the jury would require a further bench conference and ruling. That condition mattered. Once the trial court effectively required a fresh presentation of the issue, the earlier running objection no longer insulated counsel from the need to object again when the evidence was reoffered.
When the State later offered the exhibits for publication to the jury, counsel did not remain silent, request to preserve the running objection, or state that prior objections carried forward. Counsel affirmatively said, “No objection.” The court treated that response as an unequivocal waiver under Garcia and Thomas. Because the same evidence the defense had earlier challenged was later admitted without objection—and indeed with an affirmative no-objection response—any prior Rule 403/404 complaint was forfeited.
The court then addressed the merits in the alternative. It explained that even if error had been preserved, the trial court would have acted within its discretion in admitting the digital evidence. The search terms and images reportedly tracked the familial dynamic alleged in the charged offenses. That correspondence created a nexus between the digital material and the issues at trial, giving the evidence probative force on matters beyond bare character conformity. In the court’s view, that probative value was not substantially outweighed by unfair prejudice under Rule 403.
Holding
The court held that the defendant failed to preserve his Rule 403 and Rule 404(b) complaints. The prior running objection did not survive a later procedural reset in which the trial court required the exhibits to be reoffered and subject to further ruling before publication to the jury. When defense counsel later responded “No objection” to the admission of substantially the same exhibits, that response waived any earlier complaint under Texas Rule of Appellate Procedure 33.1(a).
The court further held that, even if preserved, the challenged evidence was within the zone of reasonable disagreement for admissibility. Because the search-history and image evidence bore a direct relationship to the nature of the alleged offenses and the relationship between the defendant and the complainant, the trial court would not have abused its discretion in admitting it over a Rule 403 challenge.
Practical Application
For family law trial lawyers, Harrison is less about criminal facts than about trial mechanics. Family cases routinely involve staggered offers of contested evidence: screenshots first marked for identification, text messages discussed outside the jury’s presence, custody evaluations admitted for limited purposes, summaries of business records introduced after predicate repair, or social-media archives reoffered through a different witness. In bench trials, the same dynamic arises when the court provisionally receives evidence subject to connection, authentication, or later argument. The preservation principle is the same: if the court defers, conditions, or revisits admissibility, counsel must track the exact procedural moment when the exhibit is actually admitted for the factfinder’s consideration.
In a custody case, for example, one party may object to extraneous online content as unfairly prejudicial or improper character evidence. If the court postpones publication until predicate is laid through the digital-forensics witness, the objecting lawyer must renew the objection when the evidence is reoffered. In a divorce case, one spouse may challenge account extracts, dating-app data, or travel records as irrelevant or prejudicial. If those materials later come back in through a custodian or through summary testimony, “No objection” at the second offer will likely destroy the record.
Strategically, Harrison also underscores the importance of precision in trial language. Many lawyers use “no objection” reflexively when they mean only “same objection,” “subject to prior objection,” or “no additional objection beyond the running objection already granted.” Those are not equivalent. If preservation matters, the record must reflect that counsel is maintaining the prior complaint, not abandoning it.
A few practical lessons emerge:
- Treat a running objection as limited by the trial court’s wording and by later procedural developments.
- If the court says the exhibit must be reoffered, assume the objection must be renewed.
- Never use “No objection” if you intend to preserve appellate complaint.
- If a stipulation, limiting agreement, or off-record bench conference alters the exhibit’s use, restate the objection on the record when the exhibit returns.
- Distinguish between admission into the record, admission before the factfinder, and publication; each can matter.
Checklists
Preserving Evidentiary Complaints in Family Trials
- Make a timely, specific objection tied to the rule you are invoking.
- Obtain an express ruling from the court.
- If seeking a running objection, define its scope clearly on the record.
- Clarify whether the running objection covers later admission, publication, and use through additional witnesses.
- If the court defers ruling, conditions admission, or requires a later bench conference, calendar that moment mentally and renew the objection when the exhibit returns.
- If the exhibit is reoffered after additional predicate, restate the prior objection expressly.
- Do not assume an earlier objection carries forward after a modified offer or different purpose for admission.
- Avoid “No objection” if you intend to preserve any complaint.
Language to Use Instead of “No Objection”
- “Subject to our previously stated Rule 403 objection, no additional objection.”
- “We reurge our prior Rule 404(b) and 403 objections.”
- “Same objection as previously urged, and we ask that the running objection continue.”
- “We maintain our objection for admission and publication.”
- “No new objection beyond those already preserved and ruled on.”
Handling Digital Evidence in Custody and Divorce Cases
- Object separately to relevance, Rule 403 prejudice, Rule 404 concerns, authentication, hearsay, and expert qualification where applicable.
- Clarify whether the exhibit is being offered for all purposes or a limited purpose.
- Distinguish between raw extraction data, summaries, screenshots, and demonstratives.
- Confirm whether the court is admitting the exhibit itself or merely allowing predicate testimony.
- Renew objections if the same data is later offered through a different witness or for publication.
- Request a limiting instruction when appropriate.
- Ensure the appellate record identifies the specific exhibit number and the specific ground asserted.
When the Court Grants a Running Objection
- Ask the court to define exactly what evidence the running objection covers.
- Ask whether the running objection applies to later republication or reoffer.
- Ask whether renewed objection is required if the State or opposing party lays a new predicate.
- If the court says a future offer requires another bench conference, treat that as a preservation trigger.
- Reassert the objection when the exhibit is later tendered, even if you believe the running objection should suffice.
- Confirm on the record that you are not waiving prior objections.
Protecting the Record in Bench Trials
- Even though the judge is the factfinder, continue to make specific objections.
- Clarify whether evidence is admitted subject to connection or only provisionally received.
- If the court carries the ruling, ask for a later definitive ruling.
- Renew objections when the evidence is formally admitted at the close of proof or through a later witness.
- Avoid stipulations or shorthand responses that can be read as waiver unless that is your intent.
Family Law Crossover
The crossover point is straightforward: Harrison is a preservation-and-waiver decision about staged admission of evidence. The rule is that a prior Rule 403 or 404 objection—even a running objection—does not necessarily preserve error through later admission if the trial court has required the evidence to be reoffered or subjected to a further ruling. Once that occurs, counsel must object again when the exhibit is tendered. A later “No objection” to substantially the same evidence is treated as waiver under Rule 33.1(a).
That procedural mechanism can arise constantly in family law. In a conservatorship trial, a party may object to social-media posts, therapist records, school records, or a digital extraction, and the court may postpone admission until a sponsoring witness appears. In a divorce trial, a party may object to bank summaries, alleged affair evidence, or metadata-based exhibits, only to have the court revisit the issue after foundation is repaired. In either setting, if the exhibit is later offered and counsel says “No objection,” the earlier complaint is likely gone on appeal. The lesson is procedural discipline: preservation follows the final act of admission, not merely the first skirmish over admissibility.
Citation
Harrison v. State, No. 07-26-00119-CR, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Aug. 17, 2026, no pet.) (mem. op.).
Full Opinion
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