Charlotte Austin v. Michael Lee Weems--Appeal from 23rd District Court of Brazoria County
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Opinion issued February 24, 2011
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00127-CV
———————————
CHARLOTTE AUSTIN, Appellant
V.
MICHAEL LEE WEEMS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Case No. 3184-BH-97
OPINION
Charlotte Austin sued Michael Weems for the wrongful death of her
husband, Earvin Austin, arising from an auto-pedestrian accident. Mrs. Austin
appeals the trial court‘s judgment on the jury‘s finding of no negligence and
contends that the trial court erred in denying her motion to exclude the point-ofimpact opinion testimony of Deputy Henry K. Jordan and overruling her trial
objections to his testimony. In addition to his oral testimony, Deputy Jordan‘s
point-of-impact opinion was contained in five places in three exhibits offered at
trial. Mrs. Austin did not timely object to three instances in those exhibits where
Deputy Jordan expressed his opinion on point of impact. The denial of a motion to
exclude out of the presence of the jury may make it unnecessary to object to
documents containing the same opinion in front of the jury. But, to do so, the
motion must clearly address not only the opinion, but each of the different ways
the opinion will be presented to the jury through documents. Mrs. Austin‘s motion
to exclude only addressed the expert‘s opinion in his testimony and two of the five
instances his opinion was expressed in the exhibits. She was required to object to
each part of the exhibits that contained his opinion to preserve error on appeal.
Mrs. Austin also contends on appeal that the jury‘s finding was against the
great weight and preponderance of the evidence and the trial court erred in denying
her motion for new trial since Weems‘s counsel made an improper jury argument.
We overrule her contentions and affirm.
Background
On the morning of December 17, 1995, Earvin Austin left the Big Tree
Lounge a little before 2:00 a.m. He parked his pick-up truck across from the
2
Lounge on the south-bound shoulder of State Highway 36—a two-lane road with a
55 mile per hour speed limit—and was going to cross the highway by walking
east-bound on foot back into the Lounge‘s parking lot. Michael Weems, traveling
north, struck and killed Austin in the highway.
Charlotte Austin sued Weems for wrongful death. During the trial 13 years
after the accident, the jury heard conflicting testimony regarding whether Weems
swerved into the lane for opposing traffic, the south lane, or remained in his own
lane, the north lane. In other words, testimony differed as to whether Mr. Austin
had already walked more than halfway across the road or was on his side of the
road and was preparing to cross. More specifically, there was a swearing match on
whether Mr. Austin walked into the north-bound lane, where Weems had the right
of way, or was still on his own side of the road, near his truck parked on the south
side.
The location of the point of impact was the primary liability issue at trial. If
Weems were driving on the wrong side of the road and Mr. Austin were near his
truck, a jury would likely find some fault for the accident rested with Weems. On
the other hand, if Weems were on his own side of the road, and Mr. Austin were
walking on the wrong side of the road, a jury would likely find that some fault for
the accident rested with Mr. Austin.
3
Mrs. Austin called eye-witnesses Gervaise Summers, James Marshall,
Robert Smith, and Brigette Henry to testify at trial in support of her claim that
Weems hit Mr. Austin in the south-bound lane. Summers and Marshall testified
that they saw the point of impact in the south-bound lane. Henry, a passenger in
Mr. Austin‘s truck parked on the side of the road in the south lane, testified that the
truck shook when Weems‘s car passed. Smith testified at trial that he never saw
the impact but he did see Weems swerve into the south lane. In his deposition,
however, he testified that he saw the accident and Weems was in the north lane,
which corresponds with his statement to police that Mr. Austin walked in front of
the car and Weems could do nothing to stop the accident.
Summers‘s and
Marshall‘s trial testimony also contradicted their earlier deposition testimony. 1
Weems relied primarily on his own testimony and the testimony of Deputy
Henry K. Jordan with the Brazoria County Sheriff‘s Department. Weems testified
that he struck Mr. Austin in the north-bound lane, but that he never saw Mr. Austin
until after impact. When Officer Jordan arrived on the scene about ten minutes
after the accident, a firefighter was directing traffic and the lanes had been blocked.
Witnesses disputed how many cars, if any, had passed through the accident scene.
Deputy Jordan documented the placement of the debris in the north-bound lane,
1
All the eye-witness depositions were taken within five years of the accident.
4
took some measurements, and obtained witness statements at the scene and in the
following days.
Over ten months before trial, Mrs. Austin filed a motion to exclude the
opinion testimony of Deputy Jordan arguing that he was not qualified to testify as
an expert regarding the point of impact, causation, or fault and that his opinion on
those subjects was unreliable. The motion was directed at his testimony, not at his
accident report, though the motion objects to Deputy Jordan‘s ―opinions‖ on point
of impact and the factual background referred to two statements in the report.2 The
trial court addressed the motion at the close of Mrs. Austin‘s evidence out of the
presence of the jury. There was no discussion during the hearing of the five
instances in his accident report in which Deputy Jordan opined on the point of
impact, but there were again some general objections to his point-of-impact
opinions.
During that hearing, Deputy Jordan testified that he had twenty years of law
enforcement experience and had investigated hundreds of accidents. He admitted,
however, that he had no training in accident reconstruction or physics and that the
accident at issue was the only auto-pedestrian fatality he had ever investigated. He
did not consider himself to be an expert in accident reconstruction and point of
2
Different parts of Deputy Jordan‘s accident report were admitted as three separate
exhibits at various times at trial. For ease and clarity, the parts will be referred to
as three separate reports or as the diagram, the standard report, and the narrative
report.
5
impact.
He testified—based on his ―training, knowledge, skill, experience,
common sense, and observations‖—that he believed the point of impact was in the
north lane where Weems had the right-of-way. He stated he did not need to
reconstruct the accident completely to determine the point of impact. His opinion
rather was based primarily on the location of the debris and the witnesses‘
statements. The trial court denied the motion to exclude expert testimony and
ruled that Deputy Jordan‘s testimony was rationally based on perception and ―the
jury was equally well positioned to draw inferences from the data presented.‖
Deputy Jordan proceeded to testify before the jury as to point of impact and
his opinion that Mr. Austin was at fault. Weems also offered into evidence three
components of Deputy Jordan‘s accident report—his diagram of the scene, a
standard report, and a narrative report of the accident. Weems first offered the
diagram of the scene, which indicated the placement of the cars, debris, and point
of impact. After the trial court admitted the diagram, Mrs. Austin objected to the
point-of-impact opinion shown on the drawing and argued Weems failed to show
the proper predicate for the opinion. The trial court overruled the objection as
untimely.
Weems later offered Deputy Jordan‘s standard report into evidence. His
standard report contained, in one section, his conclusion that Austin‘s failure to
6
yield the right of way was a contributing factor to the accident3 and, in another
section, two sentences that the point of impact occurred when Weems struck Mr.
Austin in the north-bound lane. Mrs. Austin generally objected to opinions in the
standard report and specifically identified the right-of-way statement. The court
sustained the objection to the failure to yield the right-of-way statement and, after
redactions, admitted the standard report.
Weems later offered the narrative portion of Deputy Jordan‘s police report
into evidence through the records custodian for the Brazoria County Sheriff‘s
Department. The narrative report stated,
Debris near the center and northeast of the center of the road indicated
that as possibly the point of impact. Evidence at the scene indicated
that victim may have been standing or walking approximately 2 ft.
east of the center line of the roadway. . . There was no evidence
visible to RO to indicate that vehicle #1 was out of the proper lane or
traveling at a high rate of speed.
Mrs. Austin objected to the narrative as including ―double hearsay.‖ 4 The trial
court then overruled the objection and admitted the narrative into evidence.
During final argument, Weems attacked the credibility of one of Mrs.
Austin‘s eyewitnesses, Robert Smith, for changing his testimony. Additionally,
3
At the bottom of the police report was a section for the investigating officer to
indicate factors and conditions that did contribute and may have contributed to the
accident. Below this is a standardized list of 72 factors that the officer may
choose.
4
Mrs. Austin mentioned the word ―opinion‖ in her objection, but limited her
objection to hearsay and never raised Texas Rule of Evidence 701 or 702.
7
according to Mrs. Austin, Weems‘s counsel made a gesture implying that money
had influenced Smith‘s testimony. Mrs. Austin made no objection to the argument,
nor did she advise the court of the gesture immediately after the argument. The
jury found that Weems was not negligent in causing the accident. The trial court
entered judgment on the verdict.
Mrs. Austin filed a motion for new trial raising factual sufficiency of the
evidence and improper jury argument. She amended her motion twice. In her
second amended motion filed three months after the verdict, Mrs. Austin asserted,
for the first time, that Weems‘s counsel made a hand gesture during his argument
indicating money and thereby implied that Smith had been bribed to change his
testimony. She attached an affidavit from her counsel to support the hand gesture
allegation.
Weems responded, without any sworn evidence attached, that his
counsel did not remember making the gesture, but even if he had, the implication
would have been that the witness wanted monetary compensation for Mr. Austin‘s
family, not an implied accusation of bribery. The trial court denied Mrs. Austin‘s
motion for new trial and she filed a timely appeal.
Opinion Testimony
Mrs. Austin argues the trial court erred in allowing Deputy Jordan‘s opinion
testimony on point of impact because he was not qualified to give expert testimony
8
under Texas Rule of Evidence 702.5 Weems responds that Mrs. Austin failed to
preserve this issue for appeal because she did not object to documentary evidence
containing Deputy Jordan‘s opinion. In the alternative, Weems argues trial court
properly admitted Deputy Jordan‘s opinion because he qualified as a lay opinion
witness under Rule 701. See TEX. R. EVID. 701.
I.
Preservation of Error
To preserve error for appellate review the complaining party must timely and
specifically object to the evidence and obtain a ruling.
See TEX. R. APP. P.
33.1(a); see also TEX. R. EVID. 103(a)(1). ―Error is waived if the complaining
party allows the evidence to be introduced without objection.‖
Bay Area
Healthcare Grp. Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007). Additionally,
any error in the admission of evidence is waived if the objecting party
subsequently permits the same or similar evidence to be introduced without
objection. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
Thus, a party fails to preserve error if it does not object to the same or similar
evidence that is offered by the opposing party. See Marin v. IESI TX Corp., 317
S.W.3d 314, 324 (Tex. App.—Houston [1st Dist.] 2010, pet. filed).
5
Mrs. Austin does not challenge the trial court‘s ruling that Jordan could testify
regarding the fault of the parties. When Weems asked Deputy Jordan if he had
formed an opinion as to fault based on his skill, knowledge, training, experience,
and investigation, he testified, ―The pedestrian was at fault for walking in or
standing in the roadway.‖ In her brief to this court, Mrs. Austin does not address
Deputy Jordan‘s opinion on fault.
9
II.
Mrs. Austin’s Motion to Exclude
Mrs. Austin filed a pretrial motion to exclude Deputy Jordan‘s opinion on
point of impact by challenging both his qualifications and the reliability of his
opinion on point of impact. Mrs. Austin, therefore, did not need to raise her
objection to his testimony in front of the jury. See TEX. R. EVID. 103(a)(1); see
also Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409–10 (Tex. 1998)
(holding that objection ―before trial or when the evidence is offered‖ is necessary
to preserve reliability challenge to expert testimony). After a hearing out of the
presence of the jury, the trial court denied the motion and explained that the
testimony was admissible as lay witness testimony under Rule 701.
A motion to exclude, in effect, accomplishes the same thing as a running
objection: it eliminates the need to repeat the objection each time evidence is
admitted on a topic. See Volkswagen of Am., 159 S.W.3d at 907. A running
objection reaches different types of evidence only if the objecting party specifically
identifies the part of the evidence that is inadmissible and each source of that
evidence. Volkswagen of Am., 159 S.W.3d at 907 (stating that to preserve error by
running objection, objecting party must identify both ―the source of the
objectionable evidence‖ and its ―specific subject matter‖ and that error was
preserved because objection identified ―the ways‖ that evidence would be
presented to the jury). Rule 103(a)(1) permits a ruling denying a motion to exclude
10
testimony outside the presence of the jury to preserve error without the necessity of
repeating the same objections, but only for ―such evidence‖ that is the subject of
the motion.
A.
Breadth of the Motion to Exclude
We look to the motion to determine its subject matter and the ―source‖ or the
―ways‖ that the objectionable evidence would be presented to the jury.
See
Volkswagen of Am., 159 S.W.3d at 907. The motion did not identify for the trial
court each specific instance of Deputy Jordan‘s opinion included in the police
report through the diagram, the standard report, and the narrative report. The
following five iterations of Deputy Jordan‘s opinion were admitted through various
portions of his police report: (1) ―POI‖ indicated on the diagram; (2) the standard
report‘s statement that, ―Victim either walked onto or was standing in the North
bound lane;‖ (3) the standard report‘s statement that, ―POI APPROX. 2(ft) East of
center line;‖ (4) the narrative report‘s statement that, ―Debris near the center and
northeast of the center of the road indicated that as possibly the point of impact;‖
and (5) the narrative report‘s statement that, ―Evidence at the scene indicated that
victim may have been standing or walking approximately 2 ft. east of the center
line of the roadway.‖ (emphasis added). Mrs. Austin only raised the italicized
11
portions in her motion to exclude.6
The motion does not address the ―POI‖
notation in the diagram or the additional point-of-impact opinion statements in the
standard and narrative reports.
We conclude, therefore, that the motion preserved
error for Deputy Jordan‘s trial testimony and the admission of the two identified
statements in the reports, but did not preserve error for the three statements that
were not identified.
We are mindful that one of our sister courts of appeal has held that the trial
court‘s denial of a pretrial motion to exclude was sufficient to preserve error
without an additional trial objection for the admission of not only numerous
accident reports written by different officers but also a police officer‘s testimony
discussing the same accidents. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194,
204 (Tex. App.—Texarkana 2000, pet. denied). The breadth of the motion in
Huckaby differs from the breadth of this motion. The court there reasoned that the
motion ―was not so narrowly drawn‖ as to apply only to documentary evidence and
not to testimony by a police officer that discussed each of the same accidents. Id.
The court quoted a number of instances in the motion where the movant requested
exclusion of evidence of the prior and subsequent accidents.
The motion in
Huckaby was also titled ―Plaintiffs‘ Objections, and Motion, to Exclude Evidence.‖
6
Mrs. Austin stated the italicized portions in the factual summary of her motion to
exclude, though at no time in her argument section. Reading the motion broadly,
we believe she preserved error as to the two statements indicated in her motion.
12
In contrast, Mrs. Austin‘s motion by its title is directed at testimony. While the
motion globally makes reference to Deputy Jordan‘s opinions, the opinions that are
the focus of the motion are the opinions as expressed in Deputy Jordan‘s
testimony, and the prayer sought the exclusion of only his testimony on point of
impact.
More importantly, her motion does not specifically identify each
objectionable portion of Deputy Jordan‘s accident report.
B.
Waiver in Light of the Motion to Exclude
We next examine the effect of a motion to exclude that covers testimony but
does not cover each expression of the same opinion in exhibits offered at trial.
Mrs. Austin‘s counsel conceded to the trial court that parts of the accident report
were admissible. It was Mrs. Austin‘s burden, therefore, to identify the specific
portions of each report that constituted opinion testimony on the point of impact.
See Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992);7 Lawrence v.
Geico Gen. Ins. Co., No. 01-07-00873-CV, 2009 WL 1886177, at *5 (Tex. App.—
Houston [1st Dist.] July 2, 2009, no pet.); Gen. Motors Corp. v. Harper, 61 S.W.3d
118, 126 (Tex. App.—Eastland 2001, pet. denied); see also 1 Steven Goode et al.,
7
The court in Jones explained that the trial court has no obligation to ―sort through
challenged evidence in order to segregate the admissible from the excludable . . .
If evidence is offered and challenged which contains [both admissible and
inadmissible parts] the trial court may safely admit it all or exclude it all, and the
losing party, no matter who he is, will be made to suffer on appeal the
consequences of his insufficiently specific objection.‖ Jones v. State, 843 S.W.2d
487, 492 (Tex. Crim. App. 1992).
13
Texas Practice Series: Guide to the Texas Rules of Evidence §103.2 (3d ed. 2002)
(stating if an objection is made to the entirety of the document which does ―not
point out precisely which parts were inadmissible,‖ it is ―properly overruled if any
part of the offer was admissible.‖).8 This she failed to do.
This rule has been applied by this court to require a party to identify any
specific objectionable portions of a police report. Lawrence, 2009 WL 1886177, at
*5-6. In Lawrence, the plaintiff objected to the inclusion of expert opinions in a
police report and specifically identified the portion of the report that identified two
contributing factors to the accident. Much like the trial court here, the Lawrence
court sustained that objection to that part of the report. On appeal, the plaintiff
challenged the admissibility of a diagram of the scene and to the opinions
expressed in the report regarding whether a vehicle was legally parked, the
direction of travel, and the position of the vehicles at the time of the collision. We
noted the general rule that an ―objection to evidence as a whole, which does not
point out specifically the portion objected to, is properly overruled if any part of
that evidence is admissible.‖ Id. at *5. Applying that rule, we then held that the
8
This rule has been repeatedly utilized to find any error was waived concerning
summary judgment evidence. See, e.g., Columbia Rio Grande Reg’l Hosp. v.
Stover, 17 S.W.3d 387, 396 (Tex. App.—Corpus Christi 2000, no pet.) (stating
that objections to four exhibits on basis of hearsay did not specifically identify
objectionable hearsay statements and did not preserve error); Moulton v. Vaughn,
982 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (noting
that objection directed to affidavit as whole, which does not point out which part is
objectionable, preserves nothing for review).
14
trial court properly overruled the objection because the report contained admissible
non-opinion evidence and the plaintiff did not specifically identify the opinions
that were challenged on appeal. Id. at *6. The same is true here: the plaintiff
failed to identify each of the objectionable portions of the police report.
When the remaining portions of Deputy Jordan‘s accident report were
admitted into evidence without a specific objection, Mrs. Austin allowed the same
or similar opinion as Deputy Jordan‘s oral testimony to be admitted to the jury,
making the objected-to evidence cumulative of the unobjected-to evidence. Any
error as to the earlier objected-to evidence, therefore, was not preserved. See
Marin, 317 S.W.3d at 324; see also Allstar Nat. Ins. Agency v. Johnson, No. 0109-00322-CV, 2010 WL 2991058, at *3–4 (Tex. App.—Houston [1st Dist.] July
29, 2010, no pet.) (holding error not preserved where objecting party did not renew
hearsay objection to document when witness testified to contents of document).
Unlike the Huckaby court, we do not find the potential for contradictory
rulings by the trial court a persuasive reason for rejecting the general rule that a
party must consistently object to the same evidence. 20 S.W.3d at 204 (―it would
be contradictory to exclude written accident reports and then allow a witness to
testify on the information in those reports‖).
The fact that it would be
contradictory for a trial court to admit evidence in one form at one point in the trial
and exclude the same or similar evidence in another form at another point has not
15
stopped courts from adopting the well-established rule requiring a party to object
to the same evidence offered later during the trial. Richardson v. Green, 677
S.W.2d 497, 501 (Tex. 1984); Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103,
1104 (Tex. 1917). For example, it would be contradictory for a court to sustain a
hearsay objection to testimony by a witness concerning a conversation after earlier
admitting testimony on the same conversation by a different witness over objection
(assuming no new arguments are raised). But courts still require the objection to
be repeated in order to preserve error.
This case demonstrates that the potential for contradictory rulings is not a
reason for extending an objection to statements that are never called to the trial
court‘s attention. A trial court may sustain objections to specific portions of an
exhibit even when that court has ruled already on the admissibility of other
evidence on the same topic. For example, a trial court may refuse to admit an
exhibit that contains opinions similar to opinions already admitted under other
rules of evidence, including that the exhibit may be cumulative of the testimony or
admitting the opinion in written form gives it greater weight. Or the trial court
may change its mind about the admissibility of the evidence after seeing how
counsel has already used the testimony before the jury and will further use the
exhibit. See Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989) (stating
that requirement of timely objections is ―designed to allow trial courts to correct
16
any errors made during the course of the proceedings‖ and by failing to object at
trial to testimony from undisclosed witness counsel ―effectively den[ied the] trial
court the opportunity to review and correct [its] prior‖ ruling denying motion to
exclude witness for lack of disclosure). In this case, the trial court sustained an
objection to Deputy Jordan‘s written finding that Austin failed to yield the right-ofway even though he permitted testimony on that issue. Weems‘s counsel tried to
convince the trial court that the opinion contained in Jordan‘s standard report
should be permitted because the testimony was permitted, but the trial court
refused. The rule requiring an objection both to the expert‘s testimony and to
specific portions of documents containing the expert‘s opinion aids the trial court
and may result in a court excluding evidence contained in a document.
The rule requiring a party to identify the specific portions of documents that
contain objectionable evidence is based on the practical reality that trial courts do
not need to read the entirety of an offered exhibit. Testimony regarding law
enforcement investigations is an example. If the trial court erroneously allows a
police officer to testify regarding hearsay statements by an eyewitness that do not
fall within a hearsay objection, the objection is waived if the same statement
appears elsewhere in the record and no objection is made to the other evidence.
See Sosa v. Koshy, 961 S.W.2d 420, 425–26 (Tex. App.—Houston [1st Dist.]
1997, writ denied) (holding that party waived error as to police officer‘s testimony
17
regarding hearsay statements by third parties because jury heard testimony that
included the statements before the party asked for a running objection).
C.
“No Objection” and Cumulative Evidence
Additionally, Mrs. Austin in effect withdrew her objections to those portions
of the standard report that contained two statements by Deputy Jordan on the point
of impact. An objecting party who preserves error by obtaining a ruling outside
the presence of the jury waives any benefit to their objection by affirmatively
stating ―no objection‖ when the evidence is reoffered before the jury. Gardner v.
State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009); see Harrison v. State, No. 0109-00611-CR, 2010 WL 5187428, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23,
2010, no pet. h.) (concluding that objection raised to length of pretrial voir dire was
waived when counsel later replied that he had no objection to seating of jury). The
standard report specifically states, ―Victim either walked onto or was standing in
the North bound lane. [Weems] struck pedestrian. POI APPROX. 2(ft) East of
center line.‖
Mrs. Austin objected that the report constituted hearsay and
contained unspecified opinions without a proper predicate. The trial court asked to
see the report, recessed the jury, and instructed her to ―show me where the
opinions are.
Come up, counsel.‖
Counsel identified the contributing factor
portion of the accident report in which Deputy Jordan stated that Mr. Austin failed
to yield the right-of-way. He then stated, ―That‘s it.‖ The trial court asked,
18
―That‘s the only one you have?‖ to which counsel replied, ―Yes, sir.‖ The court
ordered the report be redacted to remove the reference to the contributing factor
listed, and stated that he would admit the standard report into evidence after the
redaction. The redactions were completed as the witness testified, and Weems
reoffered the standard report. Mrs. Austin‘s counsel renewed his objection to the
contributing factor but agreed that the redaction had removed that opinion. The
standard report was then admitted. In other words, the trial court sustained the
only objection made by Mrs. Austin to the standard report. The portion that was
not redacted stated that, ―Victim either walked onto or was standing in the North
bound lane. [Weems] struck pedestrian. POI APPROX. 2(ft) East of center line.‖
When Mrs. Austin affirmatively stated that she had no other objection to the
report, she waived her objection to the point-of-impact opinion in the standard
report. By doing so, she failed to preserve any error on the admission of Deputy
Jordan‘s testimony because it then became cumulative of other evidence in the
case. See Marin, 317 S.W.3d at 324 (holding that party fails to preserve error if it
does not object to same or similar evidence that is offered by opposing party).
It is true that the trial court was aware of the nature of Mrs. Austin‘s
objection and that Mrs. Austin believed all Deputy Jordan‘s opinions on the point
of impact were inadmissible expert opinions.
TEX. R. APP. P. 33.1(a)(1)(A)
(requiring an objection to be stated ―with sufficient specificity to make the trial
19
court aware of the complaint‖). Even if the trial court had prolonged the recess to
read the motion to exclude filed ten months earlier, the trial court did not know that
Deputy Jordan‘s opinion was contained in three sentences in two exhibits because
no objection was ever raised to those sentences. And, for one of the two exhibits,
the standard report, the trial court believed that there were no remaining objections
after the only objection that was made was sustained and the reports was redacted
to remove the only specifically identified material. In conclusion, the objection
was not specific enough to apprise the court that it was directed at the standard
report, the identification of the point of impact in the diagram, or the second point
of impact statements contained in the narrative report. In other words, the trial
court was aware of the nature of the objection but not the specific source of the
objectionable evidence (i.e. each of the five statements in the three reports). See
Volkswagen, 159 S.W.3d at 907 (stating that running objection must clearly
identify ―the source and specific subject matter of the expected objectionable
evidence.‖).
We do not have the authority to change the general rule that requires a party
to object to same or similar evidence offered later during the trial or the specific
rule that requires a specific objection to the portions of documents containing
admissible and inadmissible statements. We do not believe expert evidence should
20
be an exception to these general rules.9
We overruled Mrs. Austin‘s first issue.
Factual Sufficiency
Mrs. Austin argues that the jury‘s finding that Mr. Austin was negligent, and
not Weems, was against the great weight and preponderance of the evidence.
I.
Standard of Review
When a party challenges the factual sufficiency of a finding on an issue upon
which that party had the burden of proof, that party must demonstrate that the
adverse finding is against the great weight and preponderance of the evidence.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider
and weigh all of the evidence and set aside a verdict only if the evidence is so weak
or if the finding is so against the great weight and preponderance of the evidence
that it is clearly wrong and unjust. Id. The jury is the sole judge of the witnesses‘
credibility and the weight to be given their testimony. Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
II.
Factually Sufficient Evidence
Mrs. Austin contends that all eye-witnesses to the accident testified that
Weems hit Mr. Austin in the south-bound lane where Mr. Austin waited to cross
the road. She asserts that only Weems and Deputy Jordan testified that the point of
9
If Mrs. Austin had preserved error, we agree with the concurring opinion that any
error would be harmless.
21
impact occurred in the north-bound lane. Summers and Marshall both testified at
trial that they saw the point of impact in the south-bound lane and Henry testified
that Weems passed so close to where she sat in Mr. Austin‘s truck in the south
lane, that the truck shook as he passed. Several witnesses also testified that
Weems stated to the police that he had between one and three beers that night.
The jury, however, heard conflicting testimony about the location of
Weems‘s car at the point of impact and the circumstances surrounding the
accident. For example, Weems attacked the credibility of each of Mrs. Austin‘s
eye-witnesses. Summers and Marshall‘s prior statements in their affidavits and
depositions contradicted their trial testimony. Summers, who was 14 years old at
the time of the accident, testified at trial that Weems made statements immediately
after the accident that she had not mentioned at her deposition or other pretrial
statements. She also testified at trial that she saw the impact, but at her deposition
stated she first saw Mr. Austin in the air after he had been hit. At trial she also
described what Mr. Austin wore the night of the accident, but at her deposition she
did not remember his clothing. Marshall at trial testified that the area was well lit,
but at his deposition he described the area as dark. Henry admitted that she never
gave a statement to the police. Weems also impeached Smith who testified at trial
that he never saw the accident and that Weems swerved into the south lane. In his
22
deposition and his statement to police, he stated that he not only saw the impact,
but the impact occurred in the north lane.
In support of the jury‘s verdict, Weems and Deputy Jordan testified that
point of impact occurred in the north-bound lane and that he drove below the 55
mile per hour speed limit. The diagram, standard report, and the narrative all
indicated that the impact occurred in the north-bound lane including a statement by
a firefighter at the scene indicating that the location of the debris, ―[M]ay be the
point of impact.‖ Weems stated that he did not see Mr. Austin at the moment of
impact, but several witnesses at the accident testified that the night was dark and
that Mr. Austin wore dark clothing. Weems also denied that he consumed any
alcohol that night and nothing in Deputy Jordan‘s report corroborates the testimony
of Mrs. Austin‘s witnesses that Weems told the police that he had been drinking.
In fact, the narrative states, ―RO did not detect any odor of alcohol on the driver‘s
breath or any indication by his actions that he may have been drinking. RO
observed no evidence of alcohol inside his vehicle.‖
The jury is the sole judge of the witnesses‘ credibility and the weight to be
given their testimony. See id. The jury here was free to disbelieve the trial
testimony of the eye-witnesses, especially given the change in their testimony and
the 13 years between the accident and trial. Further, the evidence of the darkness,
speed limit, Mr. Austin‘s dark clothing, and the testimony of witnesses placing the
23
point of impact in Weems‘s lane of traffic all support the jury‘s finding. We do not
find that the testimony in support of the jury‘s finding to be so weak as to make the
verdict clearly wrong or manifestly unjust. See Dow Chem., 46 S.W.3d at 242.
We overrule Mrs. Austin‘s second issue.
Jury Argument
Mrs. Austin argues Weems‘s counsel made an incurable jury argument by
implying, through words and a hand gesture, that one of the fact witnesses, Smith,
had been bribed to change his testimony. Weems‘s counsel made the following
statements in his closing argument:
Now, how do you go from being an eyewitness to the accident, telling
the deputy what you saw, then giving a deposition two years later and
telling lawyers what you saw, to suddenly realizing, the week before
trial that you really didn‘t see the accident? How does that happen?
Does it make any sense to you? Does your common sense give you a
clue as to how that happened? You know good and well how that
happens. You know good and well how something like that comes
about . . . So, how do you go from that, seeing all of that, hearing all
of that? How does that happen; and then on the eve of trial, suddenly
you realize I didn‘t see the accident? I didn‘t see the accident. You
know how that happens. You know why that happens.
Mrs. Austin asserted for the first time in her second amended motion for new trial
that Weems‘s counsel also made a hand gesture rubbing his thumb against his
fingers indicating money when he said, ―You know good and well how that
happens. You know good and well how something like that comes about.‖ She
attached her counsel‘s affidavit to support her allegation. Weems responded to the
24
motion for new trial asserting that his counsel did not remember making the
gesture, and even if he had, the implication would have been that the witness
sought monetary compensation for Mr. Austin‘s family out of sympathy. Weems
did not, however, attach an affidavit or other sworn statement as evidence.
I.
Incurable Argument
Mrs. Austin failed to object at trial to the statements or gestures and
therefore waived her complaint unless she can show the harm to be incurable. See
Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). Incurable
jury argument is rare because, in most cases, retraction of the argument or
instruction from the court can cure any probable harm. Phillips v. Bramlett, 288
S.W.3d 876, 883 (Tex. 2009). In those rare cases, a complaint as to an incurable
argument may be made even without a timely objection. See TEX. R. CIV. P.
324(b)(5); Living Ctrs. of Tex., 256 S.W.3d at 680. ―The party claiming incurable
harm must persuade the court that, based on the record as a whole, the offensive
argument was so extreme that a ‗juror of ordinary intelligence could have been
persuaded by that argument to agree to a verdict contrary to that to which he would
have agreed but for such argument.‘‖
Phillips, 288 S.W.3d at 883 (quoting
Goforth v. Alvey, 271 S.W.2d 404, 404 (1954)). Incurable argument must strike at
the very core of the judicial process. Phillips, 288 S.W.3d at 883. Appeals to
racial prejudice and unsupported, extreme, and personal attacks on opposing
25
parties, counsel, and witnesses can compromise the basic premise that a trial
provides impartial, equal justice. Living Ctrs. of Tex., 256 S.W.3d at 681.
Nothing in the record corroborates Mrs. Austin‘s claim that counsel made a
hand gesture beyond her attorney‘s affidavit—an affidavit attached for the first
time to the third iteration of Mrs. Austin‘s motion for new trial. The trial judge did
not make any statement on the record indicating that he saw the gesture. The
failure to object to any hand gesture at the time of the argument, or at least
immediately after the argument while the jury deliberated, created a problem with
the lack of a record of the gesture. If counsel had objected at that time the court
could have made a fact finding regarding whether the alleged gesture was made, a
ruling much easier at the time than three months later with the second amended
motion for new trial. The lack of an objection obviated the court‘s ability to make
such a fact finding. The court‘s failure to grant a new trial suggest that it either
believed the gesture was not made or that it could have been cured.
The statements themselves are not so extreme that a ―juror of ordinary
intelligence could have been persuaded by that argument to agree to a verdict
contrary to that to which he would have agreed but for such argument.‖ See
Phillips, 288 S.W.3d at 883. Smith‘s credibility had been vigorously attacked
during cross-examination. That attack included questions pointing out that Smith‘s
testimony remained the same for 13 years until he met with Mrs. Austin‘s counsel
26
immediately before trial. The argument also did not directly accuse the witness of
accepting a bribe.
It is the lack of direct attack that makes Mrs. Austin‘s reliance on Howsley &
Jacobs v. Kendall, 376 S.W.2d 562, 565–66 (Tex. 1964), in which counsel stated
that ―[s]omebody was testifying through the lips of [the witness],‖ misplaced. The
implication from the argument here, assuming the gesture was made, was not
nearly so direct an attack. The indication that money was a motive for Smith‘s
testimony could have been interpreted as indicating that someone had bribed the
witness but could also possibly indicate that the witness was attempting to help the
Austin family financially.
Improper attacks on the credibility of a witness or a party may be cured by
instruction or withdrawal. See Dunn v. Bank-Tec S., 134 S.W.3d 315, 323–24
(Tex. App.—Amarillo 2003, no pet.). Smith admitted that his testimony had
changed and counsel was entitled to bring that fact to the jury‘s attention during
argument. Smith also provided an explanation for his shift by saying he was
confused in his statement to police and his deposition as to the north-south
direction of the road. Even without counsel‘s argument the jury did not have to
accept Smith‘s explanation of the differences in his testimony. The jury could
have simply believed his statement made to Deputy Jordan within minutes of the
accident and his deposition given within five years of the accident were more
27
credible than his trial testimony 13 years later. See Jones v. Republic Waste Servs.
of Tex., Ltd., 236 S.W.3d 390, 403 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (stating witness presented arguably legitimate explanation for change in
testimony, ―Thus, the jury could have, with the proper instruction, found
[counsel‘s] arguments to be deliberately false and in bad faith.‖).
The trial court could have instructed the jury that there was no evidence of
bribery, forced counsel to clarify that he meant that the witness was attempting to
help the family financially, or simply reminded the jury that attorney argument is
not evidence and that the jury should decide the case based on the evidence. All of
these instructions, and perhaps others, were available at the time, and would have
cured any error. See Zurita v. Lombana, 322 S.W.3d 463, 482–83 (Tex. App.—
Houston [14th Dist.] 2010, no pet. h.) (holding counsel‘s argument not incurable
because parties are entitled to argue facts to jury and counsel did not use
inflammatory epithets such as ―liar,‖ ―fraud,‖ ―faker,‖ ―cheat,‖ or ―imposter.‖).
Assuming the gesture was made, the argument was improper, but it was not
incurably so under these circumstances.
Mrs. Austin, therefore, must have
objected in order to preserve her complaint for appeal.
We overrule Mrs. Austin‘s third issue.
28
Conclusion
We hold the evidence was factually sufficient to support the jury‘s verdict.
Mrs. Austin failed to preserve error as to the admission Deputy Jordan‘s testimony
and any improper jury argument by Weems‘s counsel. We affirm the judgment of
the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Justice Jennings, concurring.
29
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