the City of Brownsville v. Julio Cesar Ahumada

NUMBER 13-14-00265-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE CITY OF BROWNSVILLE, Appellant,
v.
JULIO CESAR AHUMADA, Appellee.
On appeal from the County Court at Law No. 2
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellee Julio Cesar Ahumada brought a personal injury action against appellant
the City of Brownsville (the City) for damages arising out of a traffic accident that occurred
on December 3, 2008, in which a Brownsville city bus struck Ahumada. The trial court
granted judgment on a jury verdict awarding Ahumada $218,982.44 in damages. The
City raises six issues on appeal which we address out of order.1 We affirm.
I. LIMITATION OF EXPERT TESTIMONY
By its fifth issue, which we address first, the City contends that the trial court
abused its discretion when it limited the trial testimony of its expert, Richard V. Barratta,
Ph.D., to issues addressed in his report.2 Specifically, Dr. Barratta was not permitted to
opine on the final resting place of Ahumada’s vehicle post-accident. It is the City’s
position that Dr. Barratta was not limited to opinions disclosed in his report when
addressing trial evidence. We disagree.
Dr. Barratta is a biomedical engineer and was hired to discuss the forces at play
during the traffic accident in question. Dr. Barratta provided an expert report, and
Ahumada’s counsel deposed him prior to trial. Dr. Barratta stated in his report and during
his deposition that he would not be performing an accident reconstruction.3 Ahumada
had retained Col. John J. Smith as an accident reconstruction expert. Both parties knew
or should have known prior to trial that Ahumada would provide evidence, through his
expert and his own eye-witness testimony, regarding the accident. The City did not
designate an accident reconstruction expert or supplement Dr. Barrata’s report to indicate
that he would be opining on the accident itself—as opposed to the forces at play during
1 The City’s first numbered issue addressed the appropriate standard of review and did not raise
an appellate issue.
2 We note that the City did not make an offer of proof pursuant to Texas Rule of Evidence 103
regarding what Dr. Barratta’s testimony would have been had he been permitted to testify. However,
because we can determine the content of the disputed testimony from the record we will address the City’s
issue. See Tex. R. App. P. 33.1(a)(1)(A); Sims v. Brackett, 885 S.W.2d 450, 453 (Tex. App.—Corpus
Christi 1994, writ denied).
3 Dr. Barratta’s report was not included in the appellate record. Without the opportunity to review
Dr. Barratta’s expert report we are limited in our review.
2
the accident.
However, during the City’s direct examination, the City repeatedly attempted to
elicit testimony from Dr. Barratta about vehicle movement during the accident and post-
accident vehicle positioning. The City apparently attempted to use Dr. Barratta to rebut
Ahumada’s testimony regarding post-accident vehicle positioning by having Dr. Barratta
review a picture drawn by Ahumada and opine that Ahumada’s result was not feasible.
Ahumada’s counsel repeatedly objected to Dr. Barratta’s testimony on that matter.4 The
basis of the objection was that Dr. Barratta had stated in his report that he would not be
performing an accident reconstruction and would not be offering opinions involving
accident reconstruction. The trial court sustained all objections to Dr. Barratta’s
testimony that pertained to Ahumada’s post-accident diagram. Ahumada also objected
that, to the extent Dr. Barratta had performed any calculations regarding the accident, he
was not able to produce supporting documentation because it was contained in a
corrupted computer file and was therefore not fully disclosed.
A. Standard of Review and Applicable Law
We review a trial court’s determination to exclude or limit expert testimony pursuant
to an abuse of discretion standard. E.I. du Pont de Nemours & Co., v. Robinson, 923
S.W.2d 549, 558 (Tex. 1995). The trial court abused its discretion if it acted without
reference to any guiding rules or principles. Id. We reverse based on the erroneous
admission or exclusion of evidence only if the appellant shows error that was calculated
4 The City contends that it was improper for Ahumada to object to Dr. Barratta’s testimony at trial:
it was apparently the City’s position that objections to expert trial testimony are improper and all expert
issues should be addressed during a Daubert/Robinson hearing. The City cited no authority for that
argument, and we found no legal support for the City’s contention.
3
to cause and probably did cause the rendition of an improper judgment. TEX. R. APP. P.
44.1(a); Formosa Plastics Corp., USA v. Kajima Int’l., Inc., 216 S.W.3d 436, 448 (Tex.
App.—Corpus Christi 2006, pet. denied).
The Texas Rules of Civil Procedure include discovery requirements that apply
when a party intends to call an expert to testify at trial. See TEX. R. CIV. P. 194.2(f). “A
party is required to provide all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert's testimony, as well as the expert's current resume and
bibliography.” Llanes v. Davila, 133 S.W.3d 635, 638 (Tex. App.—Corpus Christi 2003,
pet. denied) (citing TEX. R. CIV. P. 194.2(f)(4)); see also VingCard A.S. v. Merrimac Hosp.
Sys., Inc., 59 S.W.3d 847, 856 (Tex. App.—Fort Worth 2001, pet. denied). Rule 194.2(f)
also requires a party to disclose the subject matter on which the expert will testify and the
general substance of the expert’s mental impressions and opinions and a brief summary
of their basis. TEX. R. CIV. P. 194.2(f)(2)–(3); see also TEX. R. CIV. P. 195.5–.6. In
addition to the disclosure rules discussed above, these expert disclosures are subject to
the supplementation requirement found in rule 193. Llanes, 133 S.W.3d at 638–39;
VingCard A.S., 59 S.W.3d at 856; see TEX. R. CIV. P. 193.5–.6.
A trial court can exclude an expert from testifying where there was an inadequate
disclosure regarding the expert designation. See VingCard A.S., 59 S.W.3d at 856
(recognizing that it was not an abuse of discretion to exclude an expert on the basis that
he failed to comply with the disclosure requirements of Texas Rule of Civil Procedure
194.2(f)(6)). An expert is not permitted to testify to undisclosed opinions at trial without
4
a showing that there was good cause for the failure to timely make, amend, or supplement
the disclosures or that the failure to supplement will not unfairly surprise or prejudice the
other party. See Llanes, 133 S.W.3d at 638 (citing TEX. R. CIV. P. 193.6); VingCard A.S.,
59 S.W.3d at 856; see also TEX. R. CIV. P. 193.5.
B. Discussion
The rules regarding expert witness designations required the City to fully disclose
the subject matter of Dr. Barratta’s testimony, his specific opinions, and the basis for his
opinions. See TEX. R. CIV. P. 194.2, 195.5. The City appears to be arguing that Dr.
Barratta’s testimony was appropriate to rebut the accident testimony proffered by
Ahumada. However, the fact that Ahumada testified about the vehicles’ final resting
place does not transform Dr. Barratta into an accident reconstruction expert, despite his
designation to the contrary. See Llanes, 133 S.W.3d at 638; see also Moore v. Mem’l
Hermann Hosp. Sys., 140 S.W.3d 870, 875 (Tex. App.—Houston [14th Dist.] 2004, no
pet.) (stating that the disclosure requirements of the Texas Rules of Civil Procedure apply
to rebuttal experts whose use could be reasonably anticipated). In this case the City
knew that Ahumada intended to call an accident reconstruction expert to testify at trial.
Further, to the extent the City is now complaining that it was unable to rebut the
demonstrative exhibit prepared during trial by Ahumada, we note that it could have
reasonably anticipated that Ahumada would testify about the accident in question based
on his personal knowledge and had the opportunity to cross-examine Ahumada on the
same.5 See Moore, 140, S.W.3d at 875.
5
We note that this issue did not directly address a failure to supplement however we find the
supplementation requirements instructive. Permitting Dr. Barratta to testify beyond the opinions provided
5
The trial court’s ruling limiting Dr. Barratta’s testimony to the opinions disclosed in
his report was within the dictates of the Texas Rules of Civil Procedure and was not an
abuse of discretion. See TEX. R. CIV. P. 193.5, 194.2, 195.2(a); Llanes, 133 S.W.3d at
638–39; VingCard A.S., 59 S.W.3d at 856. We overrule the City’s fifth issue.
II. CHARGE ERROR
We construe the City’s sixth issue as a challenge to the trial court’s charge for
placing damage “issues with no evidentiary support” before the jury.
A. Standard of Review and Applicable Law
The standard of review for error in a jury charge is abuse of discretion. In re
V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Formosa, 216 S.W.3d at 481. We accord the
trial court broad discretion so long as the charge is legally correct. Hyundai Motor Co. v.
Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999); Formosa, 216 S.W.3d at 481. The City
does not challenge the amount of the damage award, but instead contends that there is
no evidence to support the submission of the elements of damages to the jury.6
Texas Rule of Civil Procedure 278 requires the submission of jury questions that
are supported by the written pleadings and the evidence. See Union Pac. R.R. Co. v.
Williams, 85 S.W.3d 162, 166 (Tex. 2002). “A trial court may refuse to submit a question
to the jury if (1) there is no evidence; (2) there are no pleadings; or (3) the issue is
uncontroverted.” Paschal v. Great W. Drilling, Ltd., 215 S.W.3d 437, 443 (Tex. App.—
in his report and deposition would deprive Ahumada the opportunity to prepare a response: the City did
not make any argument that allowing Dr. Barratta to testify would not unfairly surprise or prejudice
Ahumada. See TEX. R. CIV. P. 194.2(f), 195.2(a); Llanes v. Davila, 133 S.W.3d 635, 638 (Tex. App.—
Corpus Christi 2003, pet. denied).
6 The City does not challenge the factual sufficiency of the jury’s damage findings.
6
Eastland 2006, pet. denied) (citing Island Recreational Dev. Corp. v. Republic of Tex.
Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986)). However, the Texas Supreme Court has
held that “rule 278 provides a substantive, non-discretionary directive to trial courts
requiring them to submit requested questions to the jury if the pleadings and evidence
support them.” Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992); see Certain
Underwriters at Lloyd’s Subscribing to Pol. No. WDO-10000 v. KKM Inc., 215 S.W.3d
486, 496–97 (Tex. App.—Corpus Christi 2006, pet. denied).
An objection to the submission of a question in the court's charge on evidentiary
grounds is a challenge to the legal sufficiency of the evidence. Paschal, 215 S.W.3d. at
443 (citing Elbaor, 845 S.W.2d at 243). “A trial court may refuse to submit an issue only
if no evidence exists to warrant its submission.” Elbaor, 845 S.W.2d at 243.
Submission is proper if more than a scintilla of evidence exists to support the question.
Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001).7
We must determine then whether the evidence was legally sufficient to support the
inclusion of the damage questions in the charge. See Paschal, 215 S.W.3d at 443. The
evidence was legally sufficient if more than a scintilla of evidence existed to support
Ahumada’s damage submissions. See Lee Lewis Const., Inc., 70 S.W.3d at 782.
7 While the City claims “no-evidence” grounds as a basis for charge error, it may also be attempting
to assert factual insufficiency grounds as a basis. However, a party cannot base an objection to the
submission of an issue in the court's charge on factual sufficiency grounds because a party is entitled to
the submission of a question if there is some evidence to support the submission. Paschal v. Great W.
Drilling, Ltd., 215 S.W.3d 437, 443 (Tex. App.—Eastland 2006, pet. denied) (citing Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)). “The factual insufficiency of the evidence to support an affirmative
answer to an opponent's issue furnishes no basis for refusal to submit the issue.” Kindred, 650 S.W.2d at
63. We therefore find the City’s argument groundless to the extent that the City bases its challenge to the
submission of questions in the court's charge on factual-insufficiency grounds. A factual sufficiency
challenge could have been made to the jury’s verdict.
7
“More than a scintilla of evidence exists if the evidence furnishes some reasonable basis
for differing conclusions by reasonable minds about a vital fact's existence.” Id.
B. Discussion
The City succinctly presented the issue as follows: “The Court abused its
discretion in allowing issues with no evidentiary support to go to the jury.” Specifically,
the City contends that there was no evidence of the following damages: (1) future pain
and mental anguish; (2) physical impairment in the past and future; (3) disfigurement in
the past and future; and (4) medical expenses in the future.
1. Physical Pain and Mental Anguish in the Future
The City contends that there was no evidence to support the submission of a
damage question for past and future physical pain and mental anguish in the charge.
“To recover damages for mental anguish, a plaintiff must introduce direct evidence of the
nature, duration, and severity of his mental anguish . . . or evidence of a high degree of
mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment,
or anger.” Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 166 (Tex. App.—Eastland
2009, pet. denied) We have also recognized that physical pain and mental anguish
damages can be inferred from the injury itself. See Pentes Design, Inc. v. Perez, 840
S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied).
Multiple physicians testified at trial about Ahumada’s injuries, subsequent
treatment plans, and lingering pain associated with both the injuries and the treatments.
Both Ahumada and his significant other testified regarding the continuing and persistent
nature of Ahumada’s pain. Ahumada testified about the continuing effects of his pain on
8
his daily life and discussed activities that he once enjoyed that he is no longer able to
perform. We conclude that there was more than a scintilla of evidence by which a jury
could find that there was a reasonable probability that Ahumada would suffer from
physical pain and mental anguish in the future. See Teel, 299 S.W.3d at 166; Pentes
Design, Inc., 840 S.W.2d at 80.
2. Physical Impairment in the Past and Future
The City contends that there was not legally sufficient evidence to submit a
damage question on past and future physical impairment in the jury charge. Damages
for physical impairment encompass the loss of enjoyment of life, the effect of which must
be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or
diminished earning capacity. Teel, 299 S.W.3d at 166 (recognizing that damages for
physical impairment must exist independently from other damage categories). Physical
impairment can be demonstrated by limitations in the physical range of motion, pain while
performing activities, weakness or loss of strength, limitations of activities, difficulty
driving, and trouble sleeping. See, e.g., Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908,
922 (Tex. App.—Beaumont 1999, pet. denied) (upholding physical impairment damages
when the physical range of motion was limited); Teel, 299 S.W.3d at 166 (upholding
physical impairment when the plaintiff could not write without pain); Barnhart v. Morales,
No. 14-12-00167-CV, __S.W.3d__, 2015 WL 1020869, at *7–8 (Tex. App.—Houston
[14th Dist.] Mar. 5, 2015, no. pet. h.) (noting that the plaintiff did not have her regular
strength and could not perform the same activities with her children); Browning v. Paiz,
586 S.W.2d 670, 675 (Tex. App.—Corpus Christi 1979, writ ref’d n.r.e.) (noting that the
9
plaintiff could no longer mow the yard); Tex. Farm Prods. Co. v. Stock, 657 S.W.2d 494,
504 (Tex. App.—Tyler 1983, writ ref’d n.r.e.) (noting that the plaintiff had difficulty when
driving on longer trips).
The record contains evidence of physical impairment in this case. Ahumada
testified that he had periods where he could not move his arm or had only a limited range
of motion in his shoulder, he avoided using his arm, he felt pain when he lifted his arm,
there were times he could not turn his head or bend down, he could not mow his yard, he
had difficulty driving, and he had difficulty sleeping. Further, Ahumada testified that he
was still in pain at the time of trial and that the pain was continuing and interfered with his
performance of everyday tasks. We conclude that there was more than a scintilla of
evidence to warrant a question in the charge on damages for past and future physical
impairment. See Brookshire Bros., Inc., 997 S.W.2d at 922; Teel, 299 S.W.3d at 166;
Browning, 586 S.W.2d at 675; Stock, 657 S.W.2d at 504; see also Barnhart, 2015 WL
1020869, at *3.
3. Disfigurement in the Past and Future
The City contends that there was no evidence to support the submission of
disfigurement questions to the jury. “The term ‘disfigurement’ includes an impairment or
injury to the beauty, symmetry, or appearance of a person or thing, rendering it unsightly,
misshapen, imperfect, or deformed in some manner.” Teel, 299 S.W.3d at 166. During
trial both Ahumada and his significant other testified that Ahumada’s left shoulder was
visibly smaller than his right shoulder. There was also evidence that Ahumada had scars
from his surgeries and his injections. We find that there was more than a scintilla of
10
evidence of past and future disfigurement to warrant a submission of the disfigurement
damage questions in the jury charge.8 See id.
4. Future Medical Expenses
Finally, the City contends that there was no evidence to support the submission of
a damage question on future medical expenses to the jury. Ahumada was required to
produce more than a scintilla of evidence that, in all reasonable probability, he would
require future medical care and that the costs associated with the future care are
reasonable. See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied); see also Haddard v. Rios, No. 13-07-
00648-CV, 2012 WL 1142779, at *5 (Tex. App.—Corpus Christi Apr. 5, 2012, pet. denied)
(mem. op.). Juries are permitted to award damages for future medical care based on
the nature of the injury, the medical care received before trial, and the injured party’s
condition when the trial occurred. Reliance Steel & Aluminum Co. v. Sevcik, 268 S.W.3d
65, 70 (Tex. App.—Corpus Christi 2006) rev’d on other grounds, 267 S.W.3d 867 (Tex.
2008).
The record contains sufficient evidence to support the submission of the damage
question to the jury: namely, there was testimony from Ahumada and his treating
physicians regarding the nature of his injury, his medical care, his continuing pain, his
then current limitations, and his continued need for pain medication. See id. We
overrule the City’s sixth issue.
III. WAIVER AND PRESERVATION
8 The jury did not award Ahumada any damages for either past or future disfigurement.
11
Ahumada contends generally that the City waived all appellate issues by failing to
properly cite to the record and provide relevant authority in its briefing to this Court. In
the alternative, Ahumada contends that if we find the City’s briefing adequate, the City
failed to preserve error before the trial court.9
A. Waiver
Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to contain
“a clear and concise argument for the contentions made, with the appropriate citations to
authorities and to the record.” TEX. R. APP. P. 38.1(i). To adequately brief an argument,
an appellant must cite to the record when making assertions of fact and must cite to legal
authority when making assertions of law. See id.; Ratsavong v. Menevilay, 176 S.W.3d
661, 666 (Tex. App.—El Paso 2005, pet. denied). An appellant that fails to cite to the
record or authority waives its arguments. Ratsavong, 176 S.W.3d at 666; see also
Sengal v. Hardeman, No. 13-11-00659-CV, 2012 WL 5377901, at *1 (Tex. App.—Corpus
Christi Nov. 1, 2012, no pet.) (mem. op.).
The record in this case is voluminous. The clerk’s record is contained in seven
volumes, and the reporter’s record consists of twelve volumes. The record totals over
4,000 pages. We are not required to review the entire record to determine whether the
trial court abused its discretion. See Slagle v. Prickett, 345 S.W.3d 693, 702 (Tex.
App.—El Paso 2011, no pet.) (noting that appellate courts are “not required to sift through
the record in search of facts supporting a party’s position”); Ski River Dev., Inc. v. McCalla,
167 S.W.3d 121, 141 (Tex. App.—Waco 2005, pet. denied); see also Scripps Tex.
9 We determine that the City’s fifth and sixth issues were sufficiently briefed and addressed the
merits of its arguments above.
12
Newspaper, LP v. Carter, No. 13-09-00655-CV, 2012 WL 5948955, at *3 (Tex. App.—
Corpus Christi Nov. 21, 2012, pet. denied) (mem. op.).
In its reply brief, responding to Ahumada’s waiver argument, the City states that “it
gave this Court sufficient citations to the record, and authority to support its main
argument that this trial was an abuse of discretion.” Unfortunately there is no appellate
mechanism by which we can find that a “trial” itself was an abuse of discretion. This
overly broad and generalized contention is illustrative of the City’s briefing: the City’s
issues presented, and subsequent briefing, failed to direct this Court to specific trial court
errors.
More specifically, the City generally asserts in its second issue that the trial court
erred in not allowing it to discuss Ahumada’s employment. The City, however, failed to
direct this Court to even one instance in which the trial court ruled against the City and
prevented it from admitting evidence of Ahumada’s employment.10 Instead, the record
citations in the City’s brief indicate that the City was able to call Ahumada’s co-worker
and employer to testify. The City elicited testimony from those witnesses that Ahumada
did not miss any work as a result of the traffic accident in question, and the witnesses
further described the physical nature of Ahumada’s employment.
In addition, the brief lacked citations to legal authority to support the City’s position.
This Court is left without recourse when there is no reference to a specific trial court ruling.
10 The only record citation provided to this Court by the City where the trial court sustained
Ahumada’s objection and limited the City’s ability to discuss Ahumada’s employment occurred in closing
arguments. The trial court ruled that the City could not argue to the jury that Ahumada did not put on any
evidence that he was unable to work. The City did not cite to any legal authority supporting its contention
that the trial court abused its discretion by limiting its closing argument.
13
See Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—
Dallas 2012, no pet.); see also Sengal, 2012 WL 5377901, at *1. The City did not cite to
the record or controlling legal authority in making its argument that the trial court erred by
not allowing it to address Ahumada’s employment. The City has not adequately briefed
its second issue on appeal. See TEX. R. APP. P. 38.1(i); Keyes Helium Co., 393 S.W.3d
at 862; Slagle, 345 S.W.3d at 702; Ratsavong, 176 S.W.3d at 666; see also Scripps, 2012
WL 5948955, at *3; Sengal; 2012 WL 5377901, at *1.
The City, by its third issue, contends that the trial court abused its discretion by
treating a motion in limine as a motion to exclude. However, at no point did the City
actually direct this Court to an instance in which the motion in limine was in fact treated
as a motion to exclude. See Keyes Helium Co., 393 S.W.3d at 861. The City devoted
the main body of its argument to issues in which the trial court ruled in its favor—i.e.,
allowing Ahumada’s previous employer and co-worker to testify and denying Ahumada’s
motion for mistrial.
The City cited to two instances in which the trial court sustained Ahumada’s
objections and only one instance in which the motion in limine was raised as a basis for
the objection.11 The City did not cite to any case law or provide any legal justification to
11 Ahumada objected to his former co-worker’s, Jose Castillo’s, testimony that Ahumada had stated
that he did not want to have surgery but “they had told him that he had to go to . . . help his case or
something” and further objected to the City’s question asking Castillo whether Ahumada appeared nervous
about his treatment. The trial court sustained both objections. Though Ahumada’s first objection was
based, in part, on a violation of the motion in limine, there is no evidence in the record the trial court
sustained the objection because it was treating the motion in limine as a motion to exclude. Further, even
if the trial court erred in sustaining the objection, there could be no harm: Castillo had fully answered the
question before Ahumada’s counsel objected, and the trial court did not instruct the jury to disregard his
testimony. See Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010) (noting that when a witness
answers a question and the trial court later sustains an objection to the question but does not instruct the
jury to disregard the answer, the answer remains before the jury to be freely considered); see also TEX. R.
APP. P. 44.1(a)(1).
14
support its position that the trial court abused its discretion by sustaining Ahumada’s
objections. The City’s argument did not comply with the Texas Rules of Appellate
Procedure as it did not provide legal authority to support its assertion of law. See TEX.
R. APP. P. 38.1(i); Keyes Helium Co., 393 S.W.3d at 861; Ratsavong, 176 S.W.3d at 666.
Because the City failed to adequately brief its alleged error and did not include
sufficient citations to either the record or legal authority, we determine the City waived its
second and third issues. See TEX. R. APP. P. 38.1(i); Ratsavong, 176 S.W.3d at 666;
see also Sengal, 2012 WL 5377901, at *1.
B. Preservation of Error
We construe the City’s fourth and seventh issues to contend that the trial court’s
evidentiary rulings excluding its impeachment evidence were an abuse of discretion.12 A
party must comply with Texas Rule of Evidence 103 to preserve error when complaining
of excluded evidence. See TEX. R. EVID. 103. Rule 103(a)(2) provides that error cannot
be predicated on the exclusion of evidence unless the substance of the evidence was
made known to the trial court during trial pursuant to an offer of proof or was apparent
from the context within which questions were asked. Id. at 103(a)(2); Ludlow v. DeBerry,
959 S.W.2d 265, 269–70 (Tex. App.—Houston [14th Dist.] 1997, no writ). The rules
require that the offer be made to the trial court “as soon as practicable, but before the
court’s charge is read to the jury.” TEX. R. EVID. 103(b). This requirement provides the
12 The City complained of excluded impeachment evidence in both its fourth and seventh issues.
We consolidate the issues and address the exclusion of impeachment evidence together. The excluded
evidence consisted of Ahumada’s Mexican birth certificate, a police report and an EMS report pertaining to
an alleged prior injury, Facebook pictures of Ahumada, and testimonial evidence from Ahumada’s alleged
wife that she was legally married to someone else.
15
trial court the opportunity to correct any error. Ludlow, 959 S.W.2d at 269–70.
The City made an offer of proof to the trial court; however, the offer was not timely.
See TEX. R. EVID. 103(b); Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 334–35 (Tex.
App.—Dallas 2008, no pet.) (recognizing that when an offer of proof is not made before
the charge is read to the jury, then a formal bill of exception is necessary to preserve
error); see also TEX. R. APP. P. 33.1(a)(1)(B) (stating that, to preserve error, the record
must show that the parties complied with the Texas Rules of Evidence). The City admits
that it did not make the offer of proof until after the charge was read to the jury. Though
the City recognized that it failed to comply with rule 103, it stated that the timing of the
offer was immaterial “because there was no reason to believe that the [c]ourt would
change her mind at this juncture.” Again, the City did not cite this Court to any legal
authority supporting that contention. See Keyes Helium Co., 393 S.W.3d at 862.
Because the City did not comply with the Texas Rules of Evidence, it did not preserve
error for appeal and presents nothing to review by its fourth and seventh issue. See TEX.
R. EVID. 103(b); TEX. R. APP. P. 33.1(a)(1)(B); Bobbora, 255 S.W.3d at 334–35.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
2nd day of July, 2015.
16