John v. Thomas v. Audrey Cargill

NUMBER 13-99-691-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JOHN V. THOMAS

, Appellant,

v.

AUDREY CARGILL, Appellee.

__________________________________________________________________

On appeal from the 157th District Court of Harris County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez and Rodriguez

Opinion by Justice Chavez

This case arises from an auto collision in Brazoria County. Appellee Audrey Cargill rear-ended appellant John V. Thomas at a four way stop. Appellant sued appellee for negligence. At trial, the jury found for the appellee. Appellant now raises two issues on appeal. We affirm.

Appellant first argues that the trial court erred in refusing to admit the report of Pearland Police Officer D. B. Smith's investigation of the collision into evidence. This is a mischaracterization of what happened at trial. The trial court did allow appellant to admit the police officer's report into evidence if presented in a redacted form. The portions the court required to be edited involved conclusions of fault which the officer was not qualified to make and which were issues for the jury to determine.

At trial, the court asked, "Are we going to have an issue with the police report?" Appellee's attorney answered that "If it is properly redacted, we won't." After being informed of the admission of the report, and appellee's wish for it to be received in a redacted form, appellant's attorney answered that he "shouldn't have any issue" with its admission, and made no objection to the redaction. During the cross-examination of appellee, appellant's counsel claimed that the police report was in evidence. The court responded that the exhibit "was admitted subject to that redaction." No further reference appears to the admission or exclusion of the investigating police officer's report.

Appellant made no redactions to the police report. It is the party who controls the document to be redacted that has the burden to make the proper redactions to it. See Valero Transmission, L.P. v. Dowd, 960 S.W.2d 642, 649 (Tex. 1997). Here, as the party wishing to admit the evidence, appellant had the burden of making the required redactions. He failed to do so; thus the trial court did not err in excluding the report. We overrule appellant's first issue on appeal.

The second argument appellant presents is that the trial court erred in rendering judgment on the verdict because the jury's responses to the special issues are so against the great weight and preponderance of the evidence as to be clearly wrong. In order raise this factual insufficiency issue on appeal, appellant must first make this allegation in a motion for new trial. Tex. R. Civ. P. 324(b) (West 2000). In appellant's motion for a new trial he complains of juror misconduct and of a failure to admit Officer Smith's testimony and report. Appellant does not make the argument that the jury's responses to the special issues are so against the great weight and preponderance of the evidence as to be clearly wrong. Therefore, the issue is not properly preserved for appeal, and we overrule the issue.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 29^th day of June, 2000.