Mаria BEAVERS, Individually and on Behalf of Minor Children Carey BEAVERS, Jr. and William Beavers, III and by and on Behalf of William Beavers and Mary Beavers, Surviving Parents, Appellants, v. NORTHROP WORLDWIDE AIRCRAFT SERVICES, INC., Appellee.
No. 07-90-0093-CV
Court of Appeals of Texas, Amarillo
Nov. 13, 1991
On Rehearing Jan. 9, 1992. Second Rehearing Overruled Feb. 10, 1992.
841 S.W.2d 669
Here, the record shows that such other factors did exist so as to justify the investigative detention. Officer Marino testified that he had seen appellant‘s vehicle earlier that evening in the same location. He patrolled that part of town on a regular basis and had personal knowledge of its reputation as a high-crime area. As he approached appellant‘s vehicle, Marino observed appellant ducking down in his seat and acting “nervous and jittery.” Nervous gestures can be a valid indicia of mens rea when coupled with reliable information or other suspicious circumstances. Smith v. State, 542 S.W.2d 420, 421 (Tex. Crim.App.1976); Kelley v. State, 807 S.W.2d at 814. Under a totality of the circumstances test, these facts were sufficient to justify the minimal intrusion that resulted when Officer Marino approached appellant and requested appellant to step outside of his car.
After appellant got out of his car, leaving the door open, Officer Marino testified that he made a brief scan with his flashlight and saw what he thought to be a gun sticking out from under the front seat. Under the doctrine of “plain view,” a warrantless seizure by police of private possessions is permitted when: (1) the police officer lawfully makes the initial intrusion; (2) the incriminating evidence is discovered inadvertently; and, (3) it is immediately apparent to the police that the items they observe may be evidence of a crime, contraband or otherwise subject to seizure. Hill v. State, 755 S.W.2d 197, 201 (Tex.App.-Houston [14th Dist.] 1988, pet. ref‘d) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Here, because Officer Marino was involved in a lawful investigatory detention of appellant, he discovered the gun as a matter of course while standing in a place where he had a lawful right to be, and the gun was obviously related to the crime for which appellant was charged, the gun could be seized without a warrant. The record states that Officer Marino handcuffed appellant after he saw what he thought to be a gun under the seat. At this point in time, Marino was justified in making the arrest. We find that Officer Marino had probable cause to seize the gun. The trial judge did not abuse his discretion in overruling appellant‘s motion to suppress. Accordingly, we overrule appellant‘s one point of error and affirm the judgment of the trial court.
Cowles & Thompson, R. Brent Cooper, Michael W. Huddleston, Teresa G. Bohne, Dallas, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
BOYD, Justice.
Appellants Maria Beavers, individually and on behalf of her minor children Carey Beavers, Jr. and William Beavers III, and surviving parents William Beavers and Mary Beavers, bring this appeal from a take-nothing judgment in favor of appellee Northrop Worldwide Aircraft Services, Inc. (Northrop). This suit arises from a helicopter crash in which Army Captain Carey Beavers was killed. Northrop had at one time been the civilian company responsible for the maintenance of the helicopter. Captain Beavers was the husband of Maria Beavers, the father of the two minor children, and the son of William and Mary Beavers. The basis of appellants’ suit was that Northrop had negligently maintained the helicopter which crashed, resulting in Captain Beavers’ death. We affirm the judgment of the trial court.
In pursuit of their appeal, appellants raise nine points of error. In points (1) through (3), they assert the trial court erred in failing to strike two jurors who were disqualified for cause. In the remainder of their points, they arguе the trial court (4) violated
Reiterated, in their first three points of error, appellants assert that the trial court erred in failing to strike two jurors who were disqualified for cause. However, appellants did not notify thе trial court about the objectionable jurors until after they had exercised their peremptory strikes. The seminal case in this area is Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex.1985). The teaching of that case is, in order to preserve error in such a situation, a party must advise the trial court of two things prior to exercising his peremptory jury challenges: first, that he will exhaust his peremptory challenges, and second, that after exercising his peremptory challenges, specific objectionable jurors would remain on the jury list. The court specifically cautioned that “[a] complaining party waives any error by not timely bringing such error to the attention of the trial court prior to making his peremptory challenges.” Id.
Hallett does not require a party to inform the court which jurors the party will peremptorily strike. It does require, however, that the trial court be told specifically which objectionable jurors will remain after those strikes are made and requires that notification be made prior to the actual exercise of those strikes.
In Carpenter v. Wyatt Construction Co., 501 S.W.2d 748, 751 (Tex. Civ. App.-Houston [14th Dist.] 1973, writ ref‘d n.r.e.), the court aptly stated the rationale for the rule as follows:
Appellants insist that to require them to make known the objectionable juror before the exercise of peremptory strikes is to give an unfair advantage to the other side “of being able to weigh possible error against the desirability of changing its peremptory challenges.” We can not accept this argument. Appellants have no vested interest in error. A party would only be required to make known the objectionable juror that he is being forced to accept by reason of the failure of the court to sustain his challenge for cause. If the other side elects to strike this objectionable juror he should have no standing to complain. If the rule were otherwise, it is likely that advocates would always point out one of the twelve on the jury as being “objectionable.”
Id. at 751. Since appellants failed to take the requisite steps to preserve error prior to their exercise of peremptory strikes, the first three points present nothing for our review and are overruled.
In their fourth point of error, appellants assert that the trial court erred in admitting untrustworthy portions of an Army report.
Initially, we note that Northrop alleges that appellants waived this error because they failed to get a ruling on an objection made by them at an evidentiary hearing prior to voir dire on a motion in limine, and that appellants failed to object at that time to the court‘s failure to rule. However, a proper objection made at the time evidence is offered is suffiсient to preserve an asserted error in the admission of the evidence, and a motion in limine is not a necessary predicate for complaint. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 367-68 (1962). Thus, the failure to obtain a ruling or object to the court‘s failure to rule on appellants’ motion in limine did not waive any error in the admission of the evidence, if a proper objection was made when it was tendered into evidence.
The testimony of an expert may be admissible while at the same time the facts or data underlying that testimony may be inadmissible.
Northrop also suggests that appellants waived any error by their offer of evidence from the report and by offering another copy of the report. However, appellants’ tender occurred only after their objection to Northrop‘s evidence was overruled. After their objection was overruled, appellants were not required to sit by and take their chances on appeal if incompetent evidence was admitted, but were entitled to explain, rebut, or demonstrate the untruthfulness of the evidence without waiving their objection. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex.1986). We find no waiver of appellants’ right to raise the question presented by this point of error.
As we noted above, appellants base their challenge on the basis that the portions in question lack the trustworthiness required under
In Downer v. Aquamаrine Operators, Inc., 701 S.W.2d 238 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), the court instructs us that:
The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court‘s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. (Citation omitted). Another way of stating the test is whether the act was arbitrary or unreasonable.
The thrust of appellants’ attack upon the admission of the report was directed at the portions containing the investigation and conclusions of R.L. Fritz, a civilian investigator who worked at the Corpus Christi Army Depot, whose qualifications they questioned. They also argued the report‘s lack of final conclusions and recommendations made it impossible to tеll if the investigating Accident Board concurred with Fritz‘s conclusions, thereby undermining the trustworthiness of the portions challenged.
We do not find that the trial court abused its discretion in admitting the Army report. Fritz‘s activities were only part of the report. Many other persons, none of whose qualifications were attacked, were involved in preparation of the report. It was timely undertaken after the helicopter crash and was not prepared with an eye toward litigation.
In the Moss case, the Court noted that, under the rule, the trial court must focus upon the trustworthiness, i.e., the methodology of the report and leave the jury to make credibility decisions and determine what weight to afford a report‘s finding. 933 F.2d 1300, 1306-08 (5th Cir.1991). Again, we think the holding in that regard by the Moss Court is persuasive and we hold it is applicable to our state rule. Parentheticаlly, appellants do not attack the methodology with which the report was prepared. In overruling appellants’ objection, the trial judge properly commented he was making his ruling on the basis of the report‘s reliability.
In Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), in considering
In light of the entire record, we find the trial judge did not abuse his discretion in admitting the Army report. Appellants’ fourth point of error is overruled.
In their fifth point of error, appellants contend that the trial court erroneously admitted evidence of subsequent re-
On the periphery of the question before us, this court, in Burnett v. Rutledge, 284 S.W.2d 944 (Tex. Civ. App.--Amarillo 1955, writ ref‘d n.r.e.), addressed a similar question of admissibility of evidence of subsequent remedial measures by a third party. In that case, this court held that the evidence was not admissible.
However, that case did not address the exact question before us now. In Burnett, the evidence was offered to show that the defendant was negligent. Id. In the present case, the evidence was offered to show that the defendant‘s conduct was not the cause of the accident.
With the exception of a provision specifically stating the rule does not preclude admission of subsequent remedial measures in cases dealing with product liability based upon strict liability,
It is well established in federal jurisprudence that
We also note the policy expressed by our Texas Supreme Court in Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (1943). In that case, in interpreting a Texas statute which was enacted almost identically to a federal statute, the Court declared:
The Texas statute having been literally taken from the Federal statute, the presumption is that the Texas Legislature knew of the construction given such statute at the time of its adoption, and intended to adopt such statute as construed by the Federal courts; and such statute is to be considered by the courts of this State in the light of such construction. Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (1943).
Similarly, and as we noted above,
Texas and New Orleans R.R. Co. v. Barnhouse, supra, was decided long prior to the adoption of our Rules of Civil Evidence and its holding was made without consideration of the policy implications of
Accordingly, we hold the exclusion under
In their sixth point of error, appellants urge that the trial court erred in admitting evidence of other incidents or accidents without a predicate showing of substantial similarity. The testimony in question was that of Northrop‘s witness, William John Derner. Over objection, Derner testified about three bearings which he said exhibited a pattern of failure similar tо that which had occurred in the crashed helicopter. His only identification of the bearings was that it had been represented to him that they were typical of bearings being removed from service because of fatigue problems.
For the testimony to be admissible, Northrop was required to lay a predicate that the bearing failures occurred under reasonably similar, but not necessarily identical, circumstances. E.g., Missouri R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978); E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63, 65 (Tex.App. --Texarkana 1990, writ denied).
Under examination, Derner admitted that he did not know the type of aircraft from which any of the bearings he examined came, the hours of service to which the bearings had been put prior to
In summary, we agree with appellants that no predicate of substantial similarity was laid and the trial court erred in admitting the evidence. However, that decision does not end our quest.
Error is not harmful unless it “was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.”
Appellants do contend that the erroneously admitted evidence led the jury to believe that the Army had incurred several bearing failures, while such failures were actually quite rare. However, there was other evidence presented at trial by both parties of other bearing failures in AH-1 helicopters. Indeed, appellants’ expert, Dr. Packman, testified that all bearings will eventually fail. Thus, this evidence was cumulative of other similar evidence.
It is established that an erroneous ruling upon the admissibility of cumulative evi-
In their seventh point of error, appellants argue that the trial court erred in not granting their motion for new trial because the jury‘s failure to find negligence and proximate cause on the part of Northrop is against the great weight and preponderance of the evidence. In determining an attack of this nature, an appellate court must consider and weigh all the evidence, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). In a situation involving a jury‘s failure to find a fact, we are also cautioned that reversal is warranted only after a detailing of evidence, under the criteria set out in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), which indicates that the great weight of the evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).
In their suit, appellants asserted that Northrop was negligent in (1) using an improper grease, (2) using an improper maintenance procedure, and (3) failing to supply adequate information to the Army of a previous swashplate (which contains the bearing) malfunction in the same helicopter that later crashed.
In disputing that it used an improper grease on the helicopter which crashed, Northrop developed evidence that another company had assumed maintenance over four months prior to the accident, in less than four months any improper grease ap-
Regarding the allegation of failure to supply sufficient information of an earlier swashplate failure, Northrop developed evidence that they had reported the earlier failure as a highest priority report (a life threatening situation) and that the Army had downgraded the occurrence. Though appellants asserted that Northrop was responsible for the Army‘s action, such assertion was based on assumptions and speculаtion of what later communications were between the Army and Northrop.
Additionally, Northrop presented evidence that a product defect, and not improper maintenance, caused the accident. Typical of this was evidence of a request by the Army to the manufacturer for a bigger, stronger bearing. Appellants also based much of their evidence on the opinions of a top Army official, Frank Barhorst, which were merely presented through the testimony of other witnesses. The absence of direct testimony could have easily been a significant factor for the jury in assessing the weight to be given regarding opinions represented to have been those of Barhorst.
Although the above evidence is merely some of the extensive evidence developed by both parties at trial, it is illustrative of evidence tending to refute allegations of Northrop‘s liability. In our review of all the evidence presented at trial, we cannot find that the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We must hold, therefore, that the trial court did not err in failing to grant a new trial on such grounds. Appellants’ seventh point of error is overruled.
In their eighth and ninth points of error, appellants contend that Northrop‘s jury argument was improper. Northrop correctly argues that appellants have waived their right to complain of any curable arguments by failing to obtain a ruling upon any objection to the argument, by failing to object to any failure by the trial court to rule upon an objection, and by failing to request an instruction or to move for a mistrial. See State Department of Highways and Public Transportation v. King, 795 S.W.2d 888, 896 (Tex.App.-Beaumont 1990), cert. denied, 808 S.W.2d 465; Reed v. State, 794 S.W.2d 806, 811 (Tex.App.-Houston [14th Dist.] 1990, pet. ref‘d). However, the thrust of appellants’ contention under these points is that the argument was incurable and violated the tenets explicated by the court in Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979), and their principal reliance is upon that authority. It is established that an incurable argument does not require the predicate of an objection. See
In the Standard Fire Insurance case, the court held that a complainant arguing improper jury argument must prove: (1) an error (2) that was not invited or provoked (3) that was preserved by thе proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. With the comment that there are only rare instances of incurable harm from incurable argument, the court went on to say that a complainant raising that question had the further burden:
to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned, and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument‘s probable effect on a material finding. (7) Importantly, a reversal must
come from аn evaluation of the whole case, which begins with the voir dire and ends with the closing argument.
Id. at 839-40. The court concluded its explication with the admonition that “the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.” Id. at 839-40. In its opinion, the court gave some examples of incurable arguments such as: (1) an appeal to racial prejudice; (2) use of epithets such as “liar,” “fraud,” “cheat,” and “imposter;” and (3) an unsupported charge of perjury.
During closing argument, Northrop‘s counsel intimated that appellants’ counsel had misrepresented facts to the jury in what counsel referred to as “the lawsuit world.” The following quote is an example:
In this world, it‘s a world sometimes of twisting, turning, exaggerating, repeating over and over, misstatement of facts, until the hope is that some people of twelve will accept those as true facts.
Attacks on the integrity of opposing counsel are improper. American Petrofina, Inc. v. PPG Industries, Inc., 679 S.W.2d 740, 755 (Tex.App.-Fort Worth 1984, writ dism‘d by agr.), and it is improper to argue that opposing counsel has made misrepresentations to the jury when there is no basis in the record for the accusation. E.g., Montgomery Ward & Co. v. Brewer, 416 S.W.2d 837, 845-48 (Tex.Civ.App.-Waco 1967, writ ref‘d n.r.e.); T.E.I.A. v. Butler, 287 S.W.2d 198, 200-02 (Tex. Civ. App.-Fort Worth 1956, writ ref‘d n.r.e.). Since there is no basis in the record to support the allegation that appellants’ counsel misrepresented facts to the jury, this argument was improper and it becomes our duty to determine if it was incurable.
An incurable jury argument occurs when its harmful or acutely prejudicial nature is suсh 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 and its effect cannot be cured by an instruction to disregard. Gannet Outdoor Co. of Texas v. Kubeczka, 710 S.W.2d 79, 86 (Tex.App.-Houston [14th Dist.] 1986, no writ).
While we do not approve of this type of argument, our examination of the record as a whole convinces us that the argument was not of such an extreme nature as to reflect the greater probability 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 the argument. Neither does that record show the probability that the improper argument causing harm is greater than the probability that the verdict was grounded on the proceedings and the evidence. Appellants’ eighth and ninth points are overruled.
In summary, all of appellants’ points are overruled and the judgment of the trial court affirmed.
ON MOTION FOR REHEARING
In their first point of error in their motion for rehearing, appellants contend that they complied with the requisites delineated in Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex.1985), and thus properly preserved error regarding the trial court‘s failure to strike two jurors for cause.
The record shows that subsequent to the completion of the voir dire examination of the jury panel, the panel was excused while the trial jury was selected. At that time, appellants objected to potential jurors Reese and Stafford, both of which objections were overruled. They also requested additional peremptory strikes for the purpose of striking those jurors. That request was denied. Appellee‘s counsel then requested an additional five-minute delay “to consider this list.”
Next, the recitation by the trial court addressed each of the parties’ counsel and received from each an affirmative reply. Apparently, this was for the purpose of the delivery by counsel of their strike lists. The record then shows the trial judge‘s
Reiterated, the Hallett Court instructs that it is incumbent upon an objecting party, prior to making its peremptory challenges, to advise the trial court (1) it would exhaust its peremptory challenges, and (2) that after exercising those peremptory challenges, spеcific objectionable jurors would be left on the jury list. En route to that explication, the Court had noted that a prior challenge for cause to a juror was not sufficient to preserve asserted error. Id. at 889-90.
Peremptory strikes are exercised by a party‘s actions and not by the actions of the trial court in determining which juror remains and seating the jury. See Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888 (Tex.1985). By delivering the list of peremptory challenges to the court, a party “exercises” its peremptory challenges.
The record indicates that appellants exercised their strikes prior to attempting to preserve error. The only request by the court for the lists occurred prior to appellants’ attempt at preserving error. The parties verbаlly responded in the affirmative. From the record, it appears that this occurred when the lists were delivered and the peremptory strikes were exercised. This is also indicated by the fact that during appellants’ attempt at preserving error, appellants repeatedly referred to their peremptory strikes in the past tense. Furthermore, after appellants’ attempt at preserving error, the record reveals no request by the court for the lists or anything else to indicate the lists were delivered after appellants’ attempt at preserving error.
Appellants also contend that the record does not reveal when appellants’ list of peremptory challenges were delivered to the court. Even if the record could not be construed to indicate when the list was delivered, no error has been preserved. After describing the requirements for preservation of error in this situation, including the time requirement that the court be notified prior to the exercise of a party‘s peremptory strikes, the Court in Hallett stated that “absent such notice” a party waives any error. Id. at 890. It is the burden of appellants to present a sufficient record to show error requiring reversal.
Additionally,
The two trial jurors about whom appellant complains are Mr. Stafford and Mr. Rossi. The record shows the verdict in this case was an eleven-to-one verdict. Rossi did not join in that verdict. Thus, even assuming, arguendo, that both Rossi and Stafford were not qualified, the verdict was returned by a sufficient number of qualified jurors and no reversible error is shown. See Palmer Well Serv. v. Mack Trucks, Inc., 776 S.W.2d 575, 577 (Tex. 1989).
Appellants’ first point of error is overruled. Appellants’ remaining points of error have been adequately addressed in our original opinion and we remain convinced