Merrill v. Sprint Waste Services LP, 527 S.W.3d 663

Merrill, on a motorcycle, attempted to pass an eighteen-wheeler on the right as it made a right turn; he struck the curb, was run over, and was seriously injured. Merrill admitted speeding; Sprint admitted the truck’s turn was wider than necessary; Gonzalez denied it.
Officer Veal investigated, concluded Merrill passed unsafely on the right, and listed Merrill’s unsafe pass as the sole contributing factor in the crash report.
The sole eyewitness, Lisa Victory, described seeing the truck straddle lanes and believed both drivers were at fault (she said “pretty much” 50/50); her opinion on equal fault was excluded at trial.
Merrill’s counsel referenced Merrill’s prior traffic/criminal history and Veal’s conclusions in opening and then introduced similar evidence at trial; the jury heard multiple expert witnesses for both sides on causation and fault.
The jury found Merrill 75% negligent and Gonzalez 25% negligent; trial court rendered a take‑nothing judgment under Texas proportionate-responsibility rules.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Admission of Officer Veal’s causation testimony and field diagram	Veal’s testimony/diagram were unreliable and should be excluded	Defendants: admissible; Merrill opened the door by introducing related evidence	Waived on appeal because Merrill referenced/introduced the same evidence first
2) Exclusion of eyewitness Victory’s opinion that fault was 50/50	Exclusion was an abuse of discretion and probably caused an improper judgment because she was the sole eyewitness	Defendants: opinion not helpful, partly obstructed view, invaded jury’s province	Exclusion was an abuse of discretion but harmless error — did not probably cause an improper judgment
3) Admission of Merrill’s prior bad acts/criminal history	Prior bad acts were unfairly prejudicial and should be excluded	Defendants: admissible; Merrill opened the door	Waived on appeal because Merrill introduced/reference the history first

Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917 (Tex. 2015) (motion in limine does not preserve evidentiary error for appeal)
Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467 (Tex. 1998) (a party cannot complain on appeal about evidence it introduced)
Harris Cnty. Flood Control Dist. v. Taub, 502 S.W.3d 320 (Tex. App.—Houston [14th Dist.] 2016) (discusses waiver by introducing contested evidence)
Halim v. Ramchandani, 203 S.W.3d 482 (Tex. App.—Houston [14th Dist.] 2006) (same — waiver despite pretrial ruling if party introduces evidence)
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) (erroneous evidentiary rulings reversible only if they probably caused rendition of an improper judgment)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (jurors are sole judges of credibility and weight of evidence)
Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) (lay‑opinion admissibility requires perception-based and rational basis)
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (lay experience and common sense can support causal opinions)