Barber v. Bison Building Materials (Tex.App.- Houston [14th Dist.] Nov. 4, 2008)(Boyce)
(PI, one-vehicle accident, truck driver, negligence, admission of evidence, impeachment, credibility of witness,
motion in limine, limiting instruction, preservation of error)
AFFIRMED: Opinion by Justice Bill Boyce
Before Justices Brock Yates, Seymore and Boyce
14-07-00566-CV Marcus Barber v. Bison Building Materials, Ltd.
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally
M E M O R A N D U M O P I N I O N
Appellant, Marcus Barber, appeals from a jury verdict in favor of appellee, Bison Building Materials,
Ltd. (“Bison"), in connection with appellant's negligence claim arising from a one-vehicle accident.
Barber contends that the trial court erred in admitting certain videotaped testimony by the investigating
officer. We affirm.
Background
Bison ships and delivers building materials to construction sites. Bison owns and leases several
tractor-trailer and flatbed trucks for use in its business and employs several drivers to operate these
trucks. Barber began working as a driver for Bison in June 2005 and was assigned to drive Truck 503.
On October 24, 2005, Barber drove Truck 503 for 247.9 miles before colliding with a guardrail on
Interstate 45 near Galveston. Barber notified his supervisor, Andrew Silvas, about the accident via two-
way radio. Silvas went to the accident scene to investigate. Texas City Police Officer Juan Garza also
was dispatched to the accident scene to investigate.
Barber had complained to his supervisor several days before the accident that the steering in Truck
503 had “play" in it and was causing him difficulty. Bison ordered a new steering gearbox, and one of
Bison's mechanics installed the new gearbox on Truck 503 by October 22, 2005. Bison's mechanic
found no problems with the old gearbox, but was instructed to replace it “just to be on the safe side."
Barber sued Bison for back injuries he attributed to the accident. Barber claimed that the steering on
Truck 503 failed and caused the collision with the guardrail, and that Bison negligently maintained
Truck 503.
At trial, Barber relied on his own testimony and the videotaped deposition of Dr. James Ghadially, his
medical expert. Barber testified during cross-examination that he knew Truck 503's gearbox had been
replaced days before the accident. Barber testified that the steering disengaged on Truck 503 shortly
before the accident, causing the truck to veer off the road and into the guardrail; according to Barber,
the steering re-engaged at or just before impact.
Barber offered no expert testimony to establish that the steering mechanism of Truck 503 was
defective, or that Bison's mechanics negligently installed the new gearbox on Truck 503 days before
the accident. Barber contended that a bolt - which was absent from the steering assembly when Truck
503 was inspected after the accident - was missing before October 24, 2005 and caused the steering
to malfunction. Dr. Ghadially testified about the injuries and damages Barber attributed to the
accident.
Bison presented testimony from Silvas, who testified that Barber never complained about steering
problems with Truck 503 from the time the gearbox was replaced until October 25, 2005, the day after
Barber's accident. Silvas testified that Barber never contacted him during the day of the accident to
complain about the steering on Truck 503, even though Barber could have reached him via two-way
radio at all times. Silvas testified that neither he nor Officer Garza saw any skid marks at the accident
scene. Silvas also testified that Barber made no mention at the accident scene to him or to Officer
Garza of any steering difficulties causing the collision.
Silvas testified that after Truck 503 had been towed to Bison's truck yard in La Marque, he inspected
the vehicle and drove it around the lot. Silvas testified that he then drove Truck 503 to Houston to have
it inspected. Silvas experienced no problems with the steering on Truck 503 during that drive. The
inspection revealed the absence of a bolt from the steering assembly; Silvas testified that the missing
bolt could not have caused a steering malfunction. Silvas also testified that Bison continued using
Truck 503 without further steering complaints or repairs until Truck 503 was replaced in March 2007 as
part of Bison's standard operating procedure.
Dozier Taylor, Bison's truck maintenance supervisor, corroborated Silvas's testimony about the
replacement of Truck 503's gearbox, although there was disagreement about whether the replacement
occurred on October 20 or October 22. Taylor testified that “play" in the steering of a truck indicates a
problem with the gearbox. Taylor testified that he ordered the gearbox on Truck 503 replaced following
Barber's complaints “just to be on the safe side," even though no problems were found with the old
gearbox.
Taylor testified that it was physically impossible for the steering in a truck to fail and then re-engage in
the manner Barber described, but he did not elaborate as to why it was impossible. Taylor testified
that the missing bolt from the steering assembly highlighted by Barber was designed to shear off
during a collision and did so in this case. Taylor further testified that even if the bolt had not been in
place before the collision, its absence would not have caused the steering to malfunction; according to
Taylor, the bolt's purpose was to prevent the steering wheel from coming up and hitting the driver in a
collision. Taylor opined that Barber's accident was not caused by a steering malfunction or defect.
Officer Garza's videotaped testimony corroborated much of Silvas's testimony regarding the scene,
including the lack of skid marks and the absence of statements by Barber at the accident scene
attributing the accident to a steering malfunction. Officer Garza described the area in which the
accident occurred and answered questions about his police report, which already had been admitted
into evidence without objection.
Officer Garza testified that his report did not mention a steering malfunction because Barber did not tell
him about one. Officer Garza also testified that he asked Barber numerous times about what caused
the accident; Barber's only response was a reference to a pothole. Officer Garza testified that he
investigated the scene and found no pothole. Officer Garza opined that when people fail to respond to
his questions about the cause of an accident, they generally do so to avoid incriminating themselves.
Barber objected at trial to the admission of all of Officer Garza's testimony, as discussed below.
At the close of all of the evidence, the jury answered “no" to a question asking if any negligence by
Bison proximately caused Barber's accident.
Analysis
Bison offered excerpts of Officer Garza's videotaped deposition at trial as part of its defense. Barber
challenges the trial court's admission of this videotaped testimony over his objection that Officer Garza
gave an expert opinion on causation he was not qualified to offer.
To preserve a complaint for appellate review, the record must show that the complaint was made to the
trial court by a timely objection that stated the grounds for the ruling sought with sufficient specificity
unless those grounds are apparent, and that the trial court ruled or refused to rule on the objection. Tex.
R. App. P. 33.1(a). An objection must be clear enough to give the trial court an opportunity to correct
the asserted error. Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387
(Tex. 2008). A ruling on a motion in limine preserves nothing for appellate review. Owens-Corning
Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.- Houston [1st Dist.] 1996), aff'd, 972 S.W.
2d 35 (Tex. 1998). However, a motion in limine may be sufficient to apprise the trial court of the basis
of a subsequent general objection at trial. See Welch v. Tex. Employers' Ins. Ass'n, 636 S.W.2d 450,
453 (Tex. App.- Eastland 1982, writ ref'd n.r.e.); Brown's Estate v. Masco Corp., 576 S.W.2d 105, 107
(Tex. Civ. App.- Beaumont 1978, writ ref'd n.r.e.).
We review a trial court's evidentiary rulings for abuse of discretion. Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 906 (Tex. 2000). A trial court abuses its discretion when it rules without regard
for any guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998). We must uphold a trial court's evidentiary ruling if there is any legitimate basis for the
ruling. Id.
When evidence is admissible for one purpose but inadmissible for another purpose, the court shall
issue a limiting instruction upon request; if no such request is made, the admission of the evidence
may not be challenged on appeal. Tex. R. Evid. 105(a). The failure to request a limiting instruction
waives any opportunity to complain on appeal. See Auld, 34 S.W.3d at 906.
Barber argues on appeal that Officer Garza's causation testimony was inadmissible because he
lacked the necessary qualifications to testify about causation.[1] At trial, Barber initially asserted in a
motion in limine that Officer Garza was unqualified to offer an opinion on causation. The motion in
limine was granted. The trial judge carefully read the testimony offered by Bison and ordered Bison to
redact any testimony about causation in conformity with Barber's motion in limine before publication to
the jury. Bison complied with the trial court's order. Barber was not allowed to present any deposition
excerpts as cross-examination of Officer Garza because of Barber's failure to designate any such
excerpts before trial as required by the trial court's trial preparation order.
Of the videotaped testimony admitted at trial, the only portions that arguably could be considered an
opinion on causation by Officer Garza were three exchanges in which Officer Garza opined that Barber
did not respond to his questions about how the accident happened for fear that Barber might
incriminate himself:
COUNSEL: Can you give your opinion to the ladies and gentlemen of the jury as to why you believed
he wasn't responding to you?
GARZA: Okay. To give an opinion as to why?
COUNSEL: Right, he was not responding to your questions as to how the accident happened.
GARZA: Well, in my total 28 years of police work, generally people feel like they might say
something that will go back badly against them that will reflect badly against them, so they tend to clam
up.
COUNSEL: Was that your impression in speaking with Mr. Barber, that he wasn't saying anything to
you because he did not want to incriminate himself?
GARZA: Well, that was kind of my impression.
* * *
COUNSEL: Okay, and you felt that when you asked him about how the accident happened, he
refused to answer not because he didn't understand you; but because he didn't want to say something
that may incriminate himself?
GARZA: Well, I felt that was my impression.
COUNSEL: Okay.
GARZA: I've seen other people in other accidents; and they've been, they've been in good
impacts; and they answer. . . .
* * *
COUNSEL: In your 23 years with Texas City Police Department and 28 years overall, did you - have
you seemed to come to the conclusion that times when people cause an accident, they don't want to
answer your questions?
BARBER: Objection, Your Honor.
COURT: That is overruled.
GARZA: Well, that's - yes, ma'am. That's many times.
We do not address the first two exchanges because Barber's counsel did not object to them. See Tex.
R. App. P. 33.1(a). Barber's counsel objected only to the third exchange during trial, and he did so
without stating grounds for the objection. Construing the record and briefs generously, we consider the
objection in light of Barber's motion in limine as an objection that Officer Garza was attempting to
provide an inadmissible opinion on causation. See Welch, 636 S.W.2d at 453; Brown's Estate, 576 S.
W.2d at 107. The trial court's admission of the third exchange provides no basis for reversal for three
reasons.
First, this testimony was relevant to the case and admissible for impeachment purposes.[2] Barber's
case relied heavily upon his credibility with the jury and his ability to challenge the credibility of Bison's
witnesses, including Officer Garza. Officer Garza's explanation of why a person would refuse to answer
questions about the cause of an accident provides evidence of potential bias and self-interest on the
part of Barber, and is admissible impeachment evidence for this purpose. See Tex. R. Evid. 613(b);
Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727, 732-33 (Tex. App.- Beaumont 1991, writ denied).
By testifying that he had told Officer Garza a steering malfunction had caused the accident, Barber also
opened the door for Bison to introduce as impeachment evidence testimony from Officer Garza
refuting this claim. See Tex. R. Evid. 607; Auld, 34 S.W.3d at 906; Haynes, 808 S.W.2d at 732-33.
Additionally, Barber previously had attacked Officer Garza's credibility by testifying that Officer Garza
lied, entitling Bison to introduce testimony rebutting Barber's claim and rehabilitating Officer Garza's
credibility. See Tex. R. Evid. 613(b); Auld, 34 S.W.3d at 906; Haynes, 808 S.W.2d at 732-33.
Because the disputed testimony was admissible for these purposes, the trial court did not err in
overruling Barber's objection to the admission of this evidence. See Auld, 34 S.W.3d at 905-06
(documents contradicting witnesses' testimony were admissible for impeachment purposes
notwithstanding challenges to relevance and substantial prejudice); Malone, 972 S.W.2d at 39 n.1, 43-
44 (trial court's evidentiary decision justified on several grounds including potential to confuse the
issues in the case, which was not argued at trial); see also Halim, 203 S.W.3d at 488.
Second, because this evidence was admissible on the alternative grounds identified above, the onus
was on Barber to ask for a limiting instruction if he wanted to restrict the jury from considering the
evidence with regard to causation. See Tex. R. Evid. 105(a). Barber did not request a limiting
instruction and thus waived his opportunity to challenge this evidence on appeal. See Auld, 34 S.W.3d
at 906.
Third, the last exchange is cumulative of the two previous exchanges quoted above to which Barber
failed to object. Additionally, this exchange arguably was cumulative of evidence mentioned elsewhere
in Officer Garza's deposition, and was offered by Officer Garza to explain why his police report -
admitted without objection - made no mention of a steering malfunction. When an objection to
evidence is properly made, admission of essentially the same evidence elsewhere without objection
waives any complaint regarding the admission of the evidence. Tex. Dep't of Pub. Safety v. Cortinas,
996 S.W.2d 885, 892 (Tex. App.- Houston [14th Dist.] 1998, no pet.). Because Barber did not object
to the admission of substantially similar evidence, he waived any opportunity to complain about the
admission of the disputed testimony on appeal.
We overrule Barber's issue regarding admission of Officer Garza's videotaped deposition testimony.
Conclusion
The trial court's judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed November 4, 2008.
Panel consists of Justices Yates, Seymore, and Boyce.
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1 At trial, Barber objected to the admission of Officer Garza's testimony on two additional
grounds: (1) lack of personal knowledge; and (2) lack of qualifications to provide expert testimony on
accident reconstruction. The trial court overruled these objections. Based upon a generous reading of
Barber's brief, it appears that Barber does not challenge either ruling on appeal. Instead, Barber
focuses his appellate argument solely on Garza's asserted lack of qualifications to opine on causation.
Thus, we do not address any asserted lack of personal knowledge or lack of qualifications regarding
accident reconstruction on Officer Garza's part. See Tex. R. App. P. 33.1(a).
2 Bison made no impeachment argument at trial to support its claim that the evidence should be
admitted. However, we will affirm a trial court's evidentiary ruling if it is correct on any theory supported
by the pleadings and the evidence. Malone, 972 S.W.2d at 43; Halim v. Ramchandani, 203 S.W.3d
482, 488 (Tex. App.- Houston [14th Dist.] 2006, no pet.).