337 S.W.3d 415
Tex. App.2011Background
- Earvin Austin was struck and killed by Michael Weems while crossing State Highway 36 at night, on the southbound shoulder, near Weems' northbound lane.
- Charlotte Austin sued for wrongful death; trial occurred 13 years after the accident; testimony conflicted on whether Weems swerved or stayed in his lane.
- Eye-witnesses claimed the point of impact was in the southbound lane; Weems and Deputy Jordan contended it was in the northbound lane.
- Deputy Henry K. Jordan testified on the point of impact, and three components of his accident report (diagram, standard report, narrative) were admitted as exhibits.
- Austin moved pretrial to exclude Jordan’s point-of-impact opinions as unreliable; the motion was ruled admissible as lay testimony under Rule 701, but with later objections to portions of the reports.
- The jury found Weems not negligent; judgment was entered for Weems; Austin moved for new trial, including allegations of improper jury argument and factual sufficiency challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/preservation of Jordan's point-of-impact opinion | Jordan unqualified; opinions unreliable; motion to exclude covered the issue. | Jordan's opinion admissible as lay opinion under Rule 701; objections exhausted for specific portions. | Affirmed admission; some portions preserved, others not; overall rulings upheld. |
| Jury argument incurrence | Counsel’s argument implied witness bribery; incurable error. | Argument not incurable; could be cured by instruction. | Not incurable; no reversible error; did not merit new trial. |
| Factual sufficiency of the negligence verdict | Verdict against great weight of the evidence. | Evidence supports verdict; credibility issues for jury. | Evidence factually sufficient to support jury’s finding. |
Key Cases Cited
- Bay Area Healthcare Group Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (preservation of error and evidentiary objections)
- Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) (breadth and specificity of objections; running objections)
- Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194 (Tex. App.-Texarkana 2000) (pretrial rulings and admission of multiple reports)
- Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992) (objection specificity; source and subject matter required)
- Richardson v. Green, 677 S.W.2d 497 (Tex. 1984) (objection approach and preservation in trials)
- Slayden v. Palmo, 194 S.W.1104 (Tex. 1917) (early precedent on objections and evidence)
- Sosa v. Koshy, 961 S.W.2d 420 (Tex. App.-Houston [1st Dist.] 1997) (hearsay and evidence review in police testimony)