concurring.
I concur in the result reached by the court, but do not entirely agree with its reasoning. I think the rule announced in Peeples v. Fourth Court of Appeals, 701 S.W.2d 635 (Tex.1985) is applicable to the present case and should be followed as written.
In Peeples we stated:
... any party who seeks to exclude ... matters from the discovery process has the affirmative duty to specifically plead the particular privilege or immunity claimed and to request a hearing on his motion.... Failure to follow the above procedure constitutes a waiver....
Id. at 637. As the majority correctly noted, Peeples places the burden of requesting a hearing on the party seeking to exclude matters from discovery. Although some have criticized the rule set forth in Peeples, it has proved workable. See National Union Fire Ins. Co. v. Hoffman, 746 S.W.2d 305 (Tex.App.—Dallas 1988, orig. proceeding); see also Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S.Tex.L.Rev. 305, 348 (1986). This court should not modify Peeples in blind hopes that this modification will result in more economical discovery.
Nevertheless, I would agree with the court that admission of Miller’s testimony was not reversible error. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex.1989). The record shows that Miller’s testimony was entirely cumulative. The erroneous admission of cumulative testimony is ordinarily not harmful. Id. Therefore, I concur in the decision of this court to affirm the judgment of the court of appeals.
SPEARS and MAUZY, JJ., joined.