Xavier Benavides v. Cushman, Inc., and Watson Distributing Company

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued January 26,

2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00982-CV

XAVIER BENAVIDES, Appellant

V.

CUSHMAN, INC., Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2002-29056

O P I N I O N

In

his appeal of this product liability case, Xavier Benavides asks that we

reverse a judgment on a jury verdict in favor of appellee, Cushman, Inc. Benavides, a golf course groundskeeper, sued

Cushman for injuries he sustained when a sand trap rake—a three-wheeled vehicle

manufactured by Cushman—overturned while he was driving it. On appeal, Benavides contends the trial court

erred in (1) excluding evidence of prior similar incidents, (2) excluding

expert testimony regarding failure to warn, (3) admitting cumulative expert

testimony, and (4) admitting an incident report written by Benavides’s

supervisor at the golf course. We

conclude that none of the trial court’s evidentiary rulings warrant reversal

and therefore affirm.

I. FACTS

Benavides

worked at the Battle Ground Golf Course in Deer Park, Texas. In June 2000, Benavides’s supervisor

instructed him to groom the course’s sand traps with Cushman’s Groom Master

sand trap rake. As Benavides exited a

sand trap on the eleventh hole, he noticed a furrow in the sand. Although Benavides was heading downhill, he

attempted to reverse course so as to re-enter the trap and smooth the furrow. As he began to turn, the left wheel of the

Groom Master kicked upward. Benavides

attempted to jump from the machine before it overturned but was unsuccessful. After the impact, he scooted out from

underneath the Groom Master and walked to the twelfth hole to seek medical

assistance. Benavides subsequently

underwent two surgeries for injuries to his neck and lower back.

II. PROCEDURAL HISTORY

Benavides

brought claims against Cushman for design defect, manufacturing defect, and

negligence. The case initially proceeded

to trial in November 2003. Due to

Cushman’s violation of a motion in limine, however, the trial court granted

Benavides’s motion for a new trial. The

jury in the second trial found that the Groom Master did not have a design

defect, that Cushman was not negligent, and that Benavides was one hundred

percent responsible for the accident. [1] This appeal followed.

III. ANALYSIS

A. Standard of Review

The

admission and exclusion of evidence is committed to the trial court’s sound

discretion. City of Brownsville v.

Alvarado , 897 S.W.2d 750, 753 (Tex. 1995).

To obtain reversal of a judgment based on error in the admission or

exclusion of evidence, an appellant must show that the trial court’s ruling was

erroneous and that the error was calculated to cause, and probably did cause,

“rendition of an improper judgment.” Tex. R. App. P. 44.1(a)(1); Owens-Corning

Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). In making this determination, we review the

entire record. Alvarado , 897

S.W.2d at 754 . Reversible error does not

usually occur in connection with evidentiary rulings unless the appellant can

demonstrate that the whole case turns on the particular evidence admitted or

excluded. Id. at 753–54; GT

& MC, Inc. v. Tex. City Ref., Inc. , 822 S.W.2d 252, 257 (Tex.

App.—Houston [1st Dist.] 1991, writ denied).

B. Prior Similar Incidents

In

his first issue, Benavides contends the trial court abused its discretion in

excluding evidence of earlier similar incidents. Specifically, Benavides proffered his expert

witness, Dr. Robert Wright, to testify about five rollover accidents involving

the Truckster, a different three-wheeled turf vehicle, also manufactured by

Cushman. In the first trial, the court

granted Cushman’s motion in limine prohibiting Benavides from introducing

evidence regarding the Truckster rollover accidents. At the second trial, Benavides asked the trial

court to revisit its ruling on the motion in limine, but it declined to do so. Benavides made an offer of proof through Dr.

Wright, who testified that the prior Truckster incidents were similar because

Cushman designed both vehicles for golf courses and the Truckster has a similarly

high center of gravity when loaded. The

trial court rejected Benavides’s offer of proof and refused to allow Dr. Wright

to testify about previous Truckster rollover accidents during Benavides’s

case-in-chief.

During

Cushman’s case-in-chief, however, Benavides introduced this evidence. While cross-examining Cushman’s expert

witness, Ralph Barnett, he covered the other incidents extensively. For example:

Q. [Benavides’s

counsel]: Okay. Let me hand you what we’ve marked for

identification as Plaintiff’s Exhibit 241.

A. [Barnett]: Yes.

Q. This is a

lawsuit by a gentleman named Jimmy T. Dickerson, correct?

A. Yes.

Q. And in

this incident on May 11, 1993, the Plaintiff Dickerson and Hutton were

operating a Cushman three-wheeled turf Truckster, correct?

A. Yes.

Q. And they

were operating it on a slope at an army post, correct?

A. Yes.

Q. And they

were traveling about two miles per hour --

A. Yes.

Q. -- along

the right of way of --

A. Yes.

Q. -- Road,

correct?

. . . .

Q. And then

the subject vehicle hit a small indentation about the size of a pie plate and

approximately one to two inches deep and it caused the truck to overturn,

correct?

A. That’s

what it says under Statement of Facts.

Q. Yes. And then the allegations that were made were

that the three-wheel Truckster was unstable and unfit for its intended use,

correct?

A. Yes.

Q. And they

also claim that it lacked rollover protection systems, correct?

A. Correct.

Q. And the

rollover protection systems included the lack of a seat belt, correct?

A. Yes,

because if it’s a system, it will be also a lack of seat belt [sic].

Q. And that

was May 11th, 1993, correct?

A. Yes.

Benavides’s counsel read petitions or

incident reports discussing each of the other Truckster incidents to the jury

and asked Barnett to comment. After this

evidence, the trial court admitted as an exhibit a list of the dates of the

Truckster rollover accidents and the names of the individuals involved. The exhibit also notes that, in two of the

incidents, the involved driver died.

In

his brief, Benavides acknowledges that the trial court admitted evidence concerning

the prior similar incidents but asserts that he “was denied the ability to

effectively prosecute his case by introducing the incidents through his own

expert.” After the trial court allowed

the evidence, however, Benavides did not seek to recall Dr. Wright to discuss

the Truckster rollover accidents. Instead,

Benavides rested at the conclusion of Cushman’s case-in-chief.

Given

that the jury heard extensive evidence concerning the other incidents, we hold

that Benavides could not be harmed by error, if any, in the trial court’s

ruling earlier in the trial excluding Dr. Wright’s testimony. See Bryant v. Transcon. Gas Pipe Line

Corp. , 821 S.W.2d 187 , 188–89 (Tex. App.—Houston [14th Dist.] 1991, writ

denied) (holding that any error in excluding certain admissions was harmless

where “[t]he bulk of the excluded evidence was before the jury through

[another] exhibit” and other statements admitted into evidence “relate[d] the

same information” as was contained in excluded admissions); Monsanto Co. v.

A.A. Pruitt , 571 S.W.2d 561 , 562–63 (Tex. Civ. App.—Houston [14th Dist.]

1978, no writ) (holding that trial court’s ruling on motion in limine excluding

portions of contract relating to insurance was harmless where entire contract

was later admitted into evidence); see also Stergiou v. Gen. Metal

Fabricating Corp. , 123 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied) (where two timelines were essentially identical, holding that any

error in excluding appellant’s timeline was harmless because appellant did not

show how excluded timeline substantially differed from properly admitted one); Wilson

v. John Frantz Co. , 723 S.W.2d 189, 194 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.) (“If there was any error in excluding the evidence

proffered by the appellee, the error was harmless because other evidence that

was admitted revealed the [same] facts . . . .”). Moreover, Benavides did not seek to recall

Dr. Wright after the trial court’s reversal of its previous ruling, and thus

cannot support his contention that the trial court denied him the ability to

prosecute his case. [2]

C. Failure to Warn

In

his second issue, Benavides contends the trial court abused its discretion in

refusing to allow testimony by Dr. Wright pertaining to Cushman’s failure to

warn of the Groom Master’s propensity to roll over, if turned on an incline. Benavides made an offer of proof in which Dr.

Wright testified that Cushman should have placed a warning on the Groom Master

that turning it while on an incline could cause the vehicle to roll over. The trial court excluded Dr. Wright’s

testimony on the ground that Benavides had pleaded a “design defect”—and not a “failure

to warn.” Benavides asserts that the

trial court’s “ruling was erroneous because ‘failure to warn’ is only a subpart

of a strict liability claim and is not a cause of action in and of itself.” Moreover, Benavides observes, he testified

without objection that he had never received a warning about the Groom Master’s

potential instability if turned while on a slope.

Marketing Defect Cause of Action

In

Texas, section 402A of the Restatement (Second) of Torts governs strict

liability claims. Am. Tobacco Co. v.

Grinnell , 951 S.W.2d 420, 426 (Tex. 1997).

Under section 402A(1), a “defective” product is one that is

“unreasonably dangerous to the user or consumer.” Restatement

(Second) of Torts § 402A(1) (1965); Grinnell , 951 S.W.2d at 426 ; Sims

v. Washex Mach. Corp. , 932 S.W.2d 559, 561 (Tex. App.—Houston [1st Dist.]

1995, no writ). A plaintiff may prove that

a product is “defective” if it is (1) unreasonably dangerous as manufactured,

(2) unreasonably dangerous as designed, or (3) unreasonably dangerous as

marketed because adequate warnings or instructions were not provided. Grinnell , 951 S.W.2d at 426 ; Sims ,

932 S.W.2d at 561–62.

A

manufacturing defect exists if a product does not conform to the design

standards and blueprints of the manufacturer, and the flaw makes the product

more dangerous and therefore unfit for its intended or reasonably foreseeable

uses. Sims , 932 S.W.2d at 562 . A product with a design defect complies with

all design specifications, but the design configuration is unreasonably

dangerous because the risk of harm associated with its intended and reasonably

foreseeable use outweighs its utility. Id. In contrast, a marketing defect occurs if a

defendant knows or should know of a potential risk of harm presented by a

product but markets it without adequately warning of the danger or providing

instructions for safe use. Id.

A

marketing defect claim and a design defect claim “are clearly distinct and

separable. A marketing defect is found

‘if the lack of adequate warnings or instructions renders an otherwise adequate

product unreasonably dangerous.’ A

design defect focuses on a defect in the product itself, and whether safer

designs for the product were available.”

Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 480 (Tex. App.—Houston

[1st Dist.] 2000, pet. denied) (quoting Caterpillar, Inc. v. Shears , 911

S.W.2d 379, 382 (Tex. 1995)); see also Lemond v. Lone Star Gas Co. , 897

S.W.2d 378, 386 (Tex. App.—Fort Worth 1994), aff’d in part and rev’d in part

on other grounds , 897 S.W.2d 755 (Tex. 1995) (“In marketing defect cases,

the defective or unreasonably dangerous condition of the marketed product

arises not from the product itself, but because the seller fails to warn the

user of an improper use of the product.”).

Thus, we reject Benavides’s assertion that “failure to warn”—or a

marketing defect claim—is “not a cause of action in and of itself.”

Evidence of Failure to Warn

“[I]t

is not . . . proper to admit evidence unless it is addressed to or bears upon

some issue raised by the pleadings.” Erisman

v. Thompson , 167 S.W.2d 731, 733 (Tex. 1943). To determine whether a pleading includes a

particular claim, we examine the pleading from the perspective of the person

against whom the pleading is made. Wilson

v. Bloys , 169 S.W.3d 364, 369 (Tex. App.—Austin 2005, pet. denied) (citing Erisman ,

167 S.W.2d at 733 ). This is because “[t]he

purpose of a pleading is to provide the defendant with fair notice of the cause

of action and character of evidence that will be raised at trial.” Id. ; see also Crain v. San Jacinto

Sav. Ass’n , 781 S.W.2d 638, 639 (Tex. App.—Houston [14th Dist.] 1989, writ

dism’d) (observing that purpose of pleadings “is to put the opposing party on

notice of the character of evidence that he will be called upon to meet,” and

to “place parameters on the forthcoming contest”). In determining whether the plaintiff has

pleaded a particular cause of action, “we must be able to determine from the

pleadings alone the elements of the cause of action.” Wilson , 169 S.W.3d at 369 (citing Fairdale

Ltd. v. Sellers , 651 S.W.2d 725, 725 (Tex. 1982)).

Here,

Benavides did not plead either a marketing defect or a failure to warn; nor

does his petition set forth any of the elements of a marketing defect cause of

action. Rather, it states claims for

design defect, manufacturing defect, and negligence, and it also seeks punitive

damages. [3] Absent a pleading, the parties can

nonetheless try a claim by consent, or by trial amendment, but Benavides did

not request a trial amendment pertaining to a marketing defect cause of action. In addition, the jury charge did not contain

a marketing defect issue—rather, the trial court submitted to the jury issues involving

design defect, negligence, and damages only.

Benavides neither objected to this charge nor requested that the trial

court submit a marketing defect question to the jury. Marketing defect thus was not one of

Benavides’s theories of recovery in this case—neither by pleading, nor by trial

amendment, nor by consent. See JCW

Elecs., Inc. v. Garza , 176 S.W.3d 618, 625 (Tex. App.—Corpus Christi 2005,

no pet. h.) (“[W]here no element of a ground of recovery is submitted or

requested, and the entire theory is omitted from the charge, that ground of

recovery is waived.”); Tex. R. Civ. P.

279. Accordingly, we hold that the trial

court did not abuse its discretion in excluding Dr. Wright’s testimony, which

was directed at proving the elements of a marketing defect cause of action. [4]

D. Cumulative Expert Testimony

In

his third issue, Benavides contends the trial court erred in allowing

cumulative expert testimony by Barnett that had already been given by James

Berkeley, Cushman’s corporate representative.

Benavides called Berkeley as an adverse witness during his

case-in-chief. Berkeley testified that,

in his opinion, the Groom Master was not defective. During its case-in-chief, Cushman called its

outside expert, Barnett, to offer opinions about the safety of the Groom

Master. Benavides objected to Barnett’s

testimony:

Q. [Cushman’s

counsel]: And have you come to a

conclusion or do you have an opinion about the Groom Master and whether it is a

stable vehicle or not?

A. [Barnett]: I do have an opinion.

[Benavides’s counsel]: Your

Honor, before he gets to the opinion, may we approach real quick?

THE COURT: Yes.

(Bench conference not on the record.)

[Benavides’s counsel]: Your

Honor, we just want to make an objection, just for the record, that we object

to Mr. Barnett’s testimony to the extent that it is cumulative and duplicative

of the testimony that also [has] been given by Mr. Berkeley with regards to the

design of rollover protection systems and the need or the lack of need for the

rollover protection systems. Just for

the record, Your Honor.

THE COURT: The

objection’s overruled.

Benavides asserts that the trial

court should have excluded Barnett’s testimony under Texas Rule of Evidence 403

because his opinion on the issue of rollover protection systems “may be

understandable from a liability expert but for the fact that Mr. Berkeley had

already given an expert opinion on the same issue.”

Rule

403 states that relevant evidence “may be excluded if its probative value is

substantially outweighed by . . . needless presentation of cumulative

evidence.” Tex. R. Evid. 403. We

acknowledge that portions of Barnett’s testimony are similar to Berkeley’s

testimony—for instance, both witnesses testified that the efficacy of rollover

protection systems depends on the use of seat belts because the protection

system itself becomes a hazard if the operator is not wearing a seat belt. Barnett’s testimony, however, expounded on

Berkeley’s observations in several respects.

Barnett pointed out that “[t]he problem [with rollover protection

systems] is that none of us in technology have been smart enough to figure out

how to make people wear seat belts.” He

then elaborated on the reasons people offer for refusing to wear seat belts. He further explained that the problem is

particularly pronounced for vehicles like the Groom Master, because the

operator is continually dismounting the machine so he can manually rake the sections

of the sand trap the Groom Master missed. [5] In contrast, Berkeley merely acknowledged

that the effectiveness of rollover protection systems depends on seat belt use.

Moreover,

under Rule 403, “[t]he test is not merely whether the evidence to be adduced

from the two witnesses is similar, but also whether the excluded testimony

would have added substantial weight to the offering parties’ case.” Sims v. Brackett , 885 S.W.2d 450, 454

(Tex. App.—Corpus Christi 1994, writ denied).

Berkeley testified as Cushman’s corporate representative, called

adversely by Benavides; Barnett, on the other hand, was a professor of

engineering at the Illinois Institute of Technology and was not a regular

employee of Cushman. As such, Barnett’s

testimony concerning rollover protection systems added to Cushman’s case. We therefore hold that the trial court did

not abuse its discretion in permitting Barnett to testify. See id. at 453–54 (where

appellant offered testimony of two expert witnesses, one of whom was board

certified in general surgery only and was appellant’s friend, and the other of

whom was board certified in internal medicine and did not know appellant, holding

that trial court abused its discretion in excluding second expert’s testimony

as cumulative under Rule 403 because “[t]he difference in the two expert’s

[sic] credentials and [the second expert]’s lack of a personal relationship

with [appellant] in all likelihood would have enhanced [the second expert]’s

credibility compared to [the first expert]’s”).

E. Incident Report

In

his fourth issue, Benavides contends the trial court abused its discretion in

admitting, under the business records exception to the hearsay rule, an

incident report written by Benavides’s supervisor, Marshall Lee, on the day of

the accident. Benavides asserts that the

incident report contains expert opinions and should not have been admitted because

Cushman did not designate Lee as an expert witness. In the report, Lee describes the accident and

notes that “[t]he golf course has a lot of steep hills around the greens where

the traps exist. You have to make turns

on equipment on level ground.”

Failure to Request Limiting

Instruction

After

the trial court admitted the incident report, Benavides did not request that

the portions of the report containing the opinions to which he objected be

redacted; nor did he request a limiting instruction. Pursuant to Rule 105(a),

[w]hen evidence which is admissible as to one party or

for one purpose but not admissible as to another party or for another purpose

is admitted, the court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly, but, in the absence of such request

the court’s action in admitting such evidence without limitation shall not be a

ground for complaint on appeal.

Tex. R.

Evid. 105(a).

Here,

Benavides objected to three portions of the incident report that allegedly set

forth Lee’s expert opinions regarding what Benavides did unsafely, why he did

it that way, and what unsafe condition existed.

Benavides did not object to the report in its entirety, and he did not

assert that the report was inadmissible as a business record—rather, he argued

that “whether or not this is a business record is immaterial” because the

report contains Lee’s expert opinions and Lee was not designated as an expert

witness. [6]

Even

if Benavides is correct that certain portions of the report were inadmissible,

Benavides waived any complaint to general admission of the report by failing to

request that the offending portions be redacted and by failing to request a

limiting instruction. See Birchfield

v. Texarkana Mem’l Hosp. , 747 S.W.2d 361, 365 (Tex. 1987) (noting that party

waives any complaint to general admission of evidence if it fails to request

limiting instruction); Horizon/CMS Healthcare Corp. v. Auld , 985 S.W.2d

216 , 225–26 (Tex. App.—Fort Worth 1999), aff’d in part and rev’d in part on

other grounds , 34 S.W.3d 887 (Tex. 2000) (holding that appellant waived any

complaint to general admission of investigation reports by failing to request

limiting instruction); cf. Pack v. Crossroads, Inc. , 53 S.W.3d 492, 501

(Tex. App.—Fort Worth 2001, pet. denied) (holding that trial court did not

abuse its discretion in ruling that allegations of abuse and neglect contained

in hospital records were speculative and therefore subject to redaction).

Failure to Object

Benavides

also waived any error in the admission of the incident report by failing to

object to the admission of Lee’s videotaped deposition, which was played for

the jury. During his deposition, Lee authenticated

the incident report and discussed the contents of the report in the following

exchange:

Q: [Cushman’s

counsel]: What did you indicate [on

the report]?

A: [Lee]: I indicated it was -- he did this in

an unsafe manner. “Turned machine over

on a steep hill” is what he -- he said he turned it over. “Operator chose to do it this way” -- because

it has several steps in here that we had to go by on these reports. And it says: “Why was this done this

way?” “Operator chose to do it that

way.”

Benavides did not seek or receive a

ruling from the trial court about the report when Cushman offered Lee’s videotaped

deposition into evidence; nor did he object at trial to the preceding portion

of Lee’s testimony describing the contents of the incident report. “[A]ny error in admitting evidence is cured

where the same evidence comes in elsewhere without objection.” Schwartz v. Forest Pharms., Inc. , 127

S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, Benavides failed to preserve error by

failing to object to Lee’s discussion of the contents of the incident report

during his videotaped testimony at trial.

Accordingly, we hold that the trial court did not abuse its discretion

in admitting the incident report.

IV.

CONCLUSION

We

conclude that (1) Benavides could not be harmed by error, if any, in the trial

court’s ruling excluding evidence of prior similar incidents because the jury

heard extensive evidence about them later in the trial; (2) the trial court did

not abuse its discretion in excluding Dr. Wright’s testimony concerning failure

to warn because marketing defect was not one of Benavides’s theories of

recovery; (3) the trial court did not abuse its discretion in allowing Barnett

to testify about rollover protection systems because his testimony was not

cumulative, and it added to Cushman’s case; and (4) Benavides waived any error

in the admission of a workplace incident report by failing to request that it

be limited or redacted and by failing to object to the admission of Lee’s

videotaped deposition, during which Lee described the contents of the report. We therefore affirm the judgment of the trial

court.

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

[1] Benavides did not request, and the trial court did not

submit, a manufacturing defect question.

[2] Given our holding that Benavides introduced the

testimony proffered by Dr. Wright later during the trial, we do not evaluate

whether Dr. Wright’s testimony establishes that the prior incidents at issue

were “substantially similar” to the accident in this case so as to require the

trial court to admit them. See Nissan

Motor Co. v. Armstrong , 145 S.W.3d 131 , 138–39 (Tex. 2004).

[3] With respect to Benavides’s strict liability claims

against Cushman, the petition in its entirety alleges as follows:

The

GROOM MASTER Sand Rake was defective in design and manufacture and presented an

unreasonable risk of injury resulting from such defects, which include, but are

not limited to the following:

a.

The Groom Master

had a dangerously high center of gravity when compared with its narrow track

width and short wheel base;

b.

The Groom

Master’s instability caused it to roll over;

c.

Exiting a sand

trap is a foreseeable event that should not cause loss of stability;

d.

The Groom

Master’s 3 wheel design is defective and unreasonably dangerous;

e.

The Groom Master

did not have roll over protection or seatbelts, this also made it defective and

unreasonably dangerous;

f.

The Groom Master

does not have a kill switch to turn the machine off in the event of a rollover.

In addition, during pretrial argument on various motions in limine,

counsel for Benavides told the trial court, “[H]ere’s what our case is

about. Our case is about a defective

design.”

[4] Dr. Wright would have testified that, because Cushman

knew the Groom Master was “not stable in turning maneuvers,” the machine “ha[d]

to have some sort of warning on it to apprise the operator that even [with]

turns as slow as five miles an hour on slopes as little as ten, fifteen

degrees, the machine w[ould] go into a lateral upset and a lateral upset

c[ould] be extremely dangerous.” Dr.

Wright also would have testified that his inspection of the Groom Master

revealed that the machine did not carry a warning label and “that the failure

to warn by the manufacturer was a proximate cause of th[e] accident.” These are elements of a marketing defect

cause of action. See Sims v.

Washex Mach. Corp. , 932 S.W.2d 559, 562 (Tex. App.—Houston [1st Dist.]

1995, no writ) (to prevail on a marketing defect claim, the claimant must

prove, inter alia , that “a risk of harm . . . may arise from the intended

or reasonably anticipated use of the product,” that “the product supplier

actually knew . . . the risk of harm,” that “the absence of a warning . . .

render[ed] the product unreasonably dangerous,” and that “the failure to warn

[was] a causative nexus in the product user’s injury”).

[5] Barnett likened the Groom Master to parking meter

vehicles and mail trucks—in each scenario, the operator drives twenty feet,

jumps off the vehicle to check a parking meter or deliver mail, gets back in

the vehicle, drives another twenty feet, and repeats the process. Barnett testified that under such

circumstances, the operator is highly unlikely to wear a seat belt.

[6] On appeal, Benavides contends the incident report was

inadmissible as a business record because the report was not attached to an

affidavit and no notice was given seeking to have the report admitted as a

business record. Texas Rule of Evidence

902(10)(a) provides that “[a]ny record . . . which would be admissible under

Rule 803(6) [the business records exception to the hearsay rule] . . . shall be

admissible . . . upon the affidavit of the person who would otherwise provide

the prerequisites of Rule 803(6) . . . , provided further, that such record . .

. along with such affidavit are filed with the clerk of the court . . . at

least fourteen days prior to the day upon which trial of said cause commences .

. . .” Tex.

R. Evid. 902(10)(a). Here,

however, no business record affidavit was necessary because Lee laid the proper

foundation for admission of the incident report as a business record during his

testimony. See Tex. R. Evid. 803(6) (allowing

foundation of business records to be established by testimony of qualified

witness).