Octavio Rivera v. 786 Transportation, LLC and Carlos Cuchilla ( 2015 )

Opinion issued June 30, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00430-CV
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OCTAVIO RIVERA, Appellant
V.
786 TRANSPORTATION, LLC AND CARLOS CUCHILLA, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2011-16425
MEMORANDUM OPINION
Appellant, Octavio Rivera, challenges the trial court’s take-nothing
judgment, entered against him after a jury trial, in his suit for negligence against
appellees, 786 Transportation, LLC (“Transport”) and Carlos Cuchilla. In two
issues, Rivera contends that the trial court erred in admitting into evidence a
statement contained in a police officer’s report and the opinion testimony of the
police officer.
We affirm.
Background
In his petition, Rivera alleged that on March 17, 2010, while he was
traveling in his car southbound near the 12,700 block of North Interstate 45,
Cuchilla, who was driving an eighteen-wheel truck, “failed to maintain [a] single
lane” and struck Rivera’s car, causing him severe personal injuries. Cuchilla,
operating his truck in a negligent manner, also failed to maintain reasonable speed
and control, and he failed to “apply the brakes to his vehicle in a timely manner to
avoid the collision.” Rivera further alleged that Cuchilla, at the time of the
collision, was acting “in the course and scope of his employment” with Transport
and it was vicariously liable for Cuchilla’s actions under the doctrine of respondeat
superior. He also asserted that Transport was directly liable for negligence in its
hiring, training, and supervision of Cuchilla. In their answer, Cuchilla and
Transport generally denied Rivera’s allegations, asserting that he had failed to
control his speed, maintain a proper lookout, and timely take evasive action.
At trial, Rivera testified that on March 17, 2010, he was driving his car
southbound on Interstate 45 on his way to work. He explained that he was
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traveling in the “second lane,” which allows drivers the option of continuing south
on Interstate 45 or exiting onto Beltway 8, when he “felt . . . the trailer” of the “18-
wheeler” in the lane next to him “hit” the driver’s side of his car. Rivera asserted
that he had not attempted to change lanes; rather, the truck had come into his lane.
His car “went off to the right,” hit a concrete retaining wall, and then came to a
stop in the freeway “between the second and third lane[s].” Emergency Medical
Service personnel took Rivera by ambulance to a hospital, where he was evaluated
and released. He suffered pain in his back, shoulder, elbow, leg, and head. And
Rivera underwent physical therapy from April to June 2010 and back surgery in
2011. He also noted that he has been driving without a driver’s license for over
fifteen years.
Cuchilla testified that at approximately 1:00 p.m. on March 17, 2010, while
working for Transport, he was driving a Freightliner truck and pulling a partially-
loaded, “fifty-three-foot reefer,” which he explained is a refrigerated trailer,
southbound on Interstate 45 toward Beltway 8 West. He noted that he had taken
the same route “three times a week” for over two years, and, as he approached the
exit for the Beltway, he was traveling in the “second lane because the first lane
merged with the freeway.” He asserted that he had “no reason” to change lanes.
Initially, he saw Rivera’s car ahead of him. Then, as he “tr[ied] to get to [the]
ramp,” he “heard the impact.” Cuchilla did not see Rivera change lanes because
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Rivera’s “little” car was in his “blind spot.” However, he heard Rivera’s car hit his
truck and saw it “hit the wall” at the Kuykendahl exit before stopping “in the
middle of the freeway.” Cuchilla admitted that, later that day, he falsified his
driver log book regarding his location at the time of the collision because he
“thought he [had] killed” Rivera.
Houston Police Department Officer V. Rogers testified that he went to the
scene after the collision and talked with Rivera and Cuchilla. He took notes at the
scene and filled out his report later that day. Rogers noted that he is not a certified
accident reconstructionist, and he did not document any point of impact or skid
marks. He explained that although he had noted in his report that “both vehicles
were attempting to change lanes,” he had “surmise[d]” that from the conversation
he had with Rivera and Cuchilla at the scene. And it was “just a possible reason”
that the collision “could have occurred.” He acknowledged that he, in his report,
did not indicate that Rivera had admitted to changing lanes.
The jury found that Rivera and Cuchilla were each fifty-percent at fault for
causing the collision and Rivera take nothing by his claims. The trial court then
entered its judgment in accordance with the jury’s verdict.
Standard of Review
The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
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(Tex. 2007). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or without reference to guiding rules or principles. Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We will uphold a trial
court’s evidentiary ruling if any legitimate ground supports the ruling, even if the
ground was not raised in the trial court. Hooper v. Chittaluru, 222 S.W.3d 103,
107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). And we will not reverse
an erroneous evidentiary ruling unless the error probably caused the rendition of an
improper judgment or prevented a proper presentation of the appeal. See TEX. R.
APP. P. 44.1(a); see also TEX. R. EVID. 103(a); Owens–Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Officer’s Report
In his first issue, Rivera argues that the trial court erred in admitting into
evidence at trial “certain parts of [Officer Rogers’s] report,” namely, his statement
that “[b]oth vehicles were attempting to change lanes,” because it constituted
hearsay and an inadmissible expert opinion. Appellees assert that Rivera did not
preserve this issue for review.
To preserve error when a trial court admits evidence, a party must make a
timely and specific objection or a motion to strike and obtain a ruling. See TEX. R.
APP. P. 33.1(a); TEX. R. EVID. 103(a). When a trial court hears an objection to
offered evidence outside the presence of the jury and rules that such evidence be
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admitted, the objection is deemed to apply to the evidence when later admitted
before the jury without the necessity of repeating the objection. TEX. R. EVID.
103(b). A trial court’s ruling on a motion in limine, however, preserves nothing
for review, and a party, to preserve error, must object at trial when the evidence is
offered. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex.
2013); Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91 (Tex. App.—
Houston [14th Dist.] 2004, no pet.).
Here, the record shows that before trial, Rivera submitted an exhibit list
containing Officer Rogers’s report, marked as exhibit number 31. The trial court,
at a pre-trial hearing, considered appellees’ motion in limine regarding the
admission of the report as follows:
[Appellees]: Well, here’s—we might as well talk about the police
report while we’re here on this point because it goes
to my objection to their police report that they’ve
offered. Now, what—I want the entire police report
into evidence, not just bits and pieces of it. [Rivera
has] redacted a substantial amount and critical
portions of the police report, and that’s why we need
to address that.
[Trial Court]: Yeah.
[Appellees]: The officer has—the pieces that [Rivera] wanted to
redact or has redacted have to do with the officer’s
views and contributing factors based upon his having
been there, investigated the accident and talked to
both of the individuals. I don’t think that you can just
arbitrarily cut that out of the police report. There’s
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support under the holding of McRae versus Echols
that if there’s not any evidence in the case showing
that there’s anything unreliable in the report, then the
entire report comes in.
[Trial Court]: Well, in this case, does the officer reach conclusions
in his reports sort of—you know, is he a
reconstructionist? Is that what he’s trying to do in his
comments in his report, or is he just reporting his own
observations? That’s really the critical issue, I think.
[Appellees]: Well, first of all, the officer has not been deposed.
No. 2, you’ll see in the report where he spoke to both
drivers. [Rivera] testified in his deposition that he
spoke to the officer, couldn’t remember talking to him
but ultimately said he did talk to him. Well, then, in
the report, it comes down to—the officer says that
both drivers were making a lane change. And that’s
what this case is about. It’s a disputed lane change.
Counsel wants to redact that portion of the narrative
where the officer is basically assigning responsibility
for both drivers.
[Trial Court]: Okay.
[Rivera]: The reason we redacted it is that it’s hearsay not
subject to any exception. You know, if the officer has
not been proved up as an accident reconstructionist,
then his opinions on who may have caused the
accident or who moved into whose lane are unreliable
and—
[Trial Court]: And then what about the statement . . . made by a
second driver or something like that.
....
[Rivera]: That’s basically it.
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[Trial Court]: So you want that part in, but you want the officer’s
opinion out? I mean, it’s either all hearsay or it’s not.
[Rivera]: Well, no. The second statement on the back page is
an admission by a party opponent, and that’s sort of—
[Trial Court]: Is that clear in the report?
[Rivera]: We believe it’s clear in the context of the report,
absolutely—
[Trial Court]: Okay.
[Rivera]: —in the context of the report versus—
[Trial Court]: That’s the problem.
....
[Rivera]: Your Honor, the fact that this officer is not considered
an accident reconstructionist makes his opinion—you
cannot have his opinion on the police report if he’s
not an accident reconstructionist. He hasn’t been
proved up as an accident reconstructionist. And all
the laws in the [S]tate of Texas say[] that for his
ultimate opinion on the police report to go forward to
the jury, he has to be an accident reconstructionist;
and he’s not.
[Appellees]: That’s absolutely not the law. The holding in the
McRae/Echols case . . . says that if the contents and
the opinions found within . . . the police report are
deemed to be reliable and trustworthy, the entire
contents of the report comes in; and I don’t think that
[Rivera] can have it one way and not the other. I think
the entire report comes in.
[Trial Court]: Okay. May I see the entire report? And I’m not going
to rule on that right now, so—Is this going to be the
exhibit you propose to offer?
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[Rivera]: No. That is the unredacted copy. I can—
[Appellees]: Here’s the redacted copy.
[Trial Court]: Okay. That will be helpful, too. So for now, I’m
going to say before anyone offers this exhibit marked
as Plaintiff’s 31, do it in the usual manner if you’re
going to show it to a witness and then approach the
bench before it’s discussed. . . .
Later, during voir dire, prior to empaneling the jury, the following
discussion took place:
[Rivera]: Your Honor, the pending evidentiary issues—
[Trial Court]: Right. On the police report, it’s either all in or it’s all
out.
[Rivera]: I was able to find some case law that says that the
courts of appeals are very split on this issue.
[Trial Court]: And my ruling is: It’s either all in or it’s all out.
Finally, during trial, the trial court admitted the report into evidence as
follows:
[Rivera]: Your Honor, I’d like to offer Exhibit 31 into evidence.
It’s already agreed on.
[Appellees]: No objection, Your Honor, to 31.
[Trial Court]: Thirty-one is admitted.
(Plaintiff’s Exhibit No. 31 admitted)
[Trial Court]: For clarification, this is the exhibit with no
redactions?
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[Rivera]: Other than the agreed-upon redactions, yes, Your
Honor.
[Trial Court]: Is it? Okay.
[Appellees]: That’s correct. We had some housekeeping matters
on the original with certain redactions, but this is
consistent with your ruling and our agreement.
[Trial Court]: Thank you. Go ahead.
Rivera asserts that the trial court’s ruling that took place during voir dire
preserved the issue for review. The record reveals, however, that the trial court, at
the time of its ruling, was revisiting the prior discussion regarding appellees’
motion in limine. And its ruling on appellees’ motion in limine did not preserve
error for our review. See Toyota, 407 S.W.3d at 760; Ulogo v. Villanueva, 177
S.W.3d 496, 500 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“A trial court’s
ruling on a motion in limine is not a final ruling on the evidence and preserves no
error for appellate review.”).
Moreover, the record shows that Rivera himself offered the report containing
the complained-of statements into evidence, and he affirmatively stated to the trial
court, “It’s already agreed on.” And, when the trial court sought clarification
regarding what report was being offered into evidence, and appellees explained
that Officer Rogers’s report was being offered in the form that the parties had
agreed upon, Rivera did not object. “A party may not lead a trial court into error
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and then complain about it on appeal.” Kelly v. Cunningham, 848 S.W.2d 370,
371 (Tex. App.—Houston [1st Dist.] 1993, no writ). And Rivera affirmatively
represented that he had agreed to the report as offered. See Austin v. Weems, 337
S.W.3d 415, 425 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (concluding
plaintiff, by affirmatively stating no objection to admission of deputy’s report,
waived objection to deputy’s point-of-impact opinion in report). Accordingly, we
hold that Rivera waived his first issue for our review.
We overrule Rivera’s first issue.
Opinion Testimony
In his second issue, Rivera argues that the trial court erred in admitting
Officer Rogers’s opinion that both drivers had changed lanes because he was not
qualified to render an opinion regarding causation.
To establish causation in a negligence suit, a plaintiff must prove that the
defendant’s conduct caused an event and the event caused the plaintiff to suffer
compensable injuries. Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d
591, 603 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Causation cannot be
established by mere conjecture, guess, or speculation. McClure v. Allied Stores of
Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). However, proximate cause may be
established by direct or circumstantial evidence and the reasonable inferences that
may be drawn from that evidence. Id. at 903–04.
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Generally, police officers, based on their position as police officers alone,
are not qualified to render opinions regarding causation in collision cases. Lopez v.
S. Pac. Transp. Co., 847 S.W.2d 330, 334 (Tex. App.—El Paso 1993, no writ).
Police officers are qualified to testify regarding collision reconstruction if they are
trained in the science and possess the high degree of knowledge sufficient to
qualify as an expert. Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 891 (Tex.
App.—Texarkana 2004, pet. denied); see TEX. R. EVID. 702. Lay evidence may
establish causation, however, “in those cases in which general experience and
common sense will enable a layman to determine, with reasonable probability, the
causal relationship between the event and the condition.” Jelinek v. Casas, 328
S.W.3d 526, 533 (Tex. 2010); see Smoak, 134 S.W.3d at 893–94 (holding officer’s
lay opinion collision caused by defendant’s unsafe lane change legally sufficient to
support jury’s finding defendant seventy-five percent at fault for collision). Lay
testimony is admissible if it is “(a) rationally based on the witness’s perception and
(b) helpful to clearly understanding the witness’s testimony or to determining a
fact in issue.” TEX. R. EVID. 701.
Rivera specifically argues that because Officer Rogers testified that he was
not a “qualified accident reconstructionist,” he was not qualified to offer testimony
that both drivers had changed lanes. The record reveals, however, that Rivera
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called Officer Rogers to testify and, during his direct examination of Rogers,
elicited the testimony of which he now complains, as follows:
[Rivera]: Okay. Can you explain, I mean, if you know, if there was
a reason why you would have put that both cars were—
both vehicles were changing lanes into one another?
[Rogers]: Well, that’s just a possible reason what happened [sic],
because in the accident report, if we [don’t] have an
outside witness who saw what happened then—in the
accident form, it always requests what may have caused
the accident; and that’s just only an officer’s or an
investigator’s opinion. It doesn’t say—this is from
what—the statements I got from both the parties, so I can
just kind of surmise on what may have happened.
[Rivera]: Okay. So you’re saying that this drawing and your
comments over here on the left would have been derived
from whatever conversation you may have had with Mr.
Rivera and Mr. Cuchilla at the scene?
[Rogers]: That’s correct.
[Rivera]: Okay. . . .
Further, we note that Officer Rogers testified during cross-examination,
without objection by Rivera, that “both vehicles [had attempted] to make a lane
change.” Rogers did acknowledge on re-direct that he, in his report, did not
indicate that Rivera had admitted to having attempted to change lanes. However,
Rogers again testified on re-cross, without objection by Rivera, that “both vehicles
were attempting to change lanes.”
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A party may not complain on appeal that evidence was improperly admitted
when that party elicited the evidence. See Kenneth H. Hughes Interests, Inc. v.
Westrup, 879 S.W.2d 229, 239 (Tex. App.—Houston [1st Dist.] 1994, writ
denied); see Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.
1987) (noting witness “was invited to err by defendant’s counsel telling him to ‘go
right ahead’ and explain an apparent inconsistency in his testimony”); Evans v.
Covington, 795 S.W.2d 806, 809 (Tex. App.—Texarkana 1990, no writ) (“[A]
party may not complain of error which he has invited.”). Accordingly, we hold
that Rivera has waived his second issue for our review.
We overrule Rivera’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
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