Charlotte Austin v. Michael Lee Weems

Opinion issued February 24, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00127-CV

———————————

Charlotte Austin , Appellant

V.

Michael Lee

Weems , Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Case No. 3184-BH-97

O P I N I O N

Charlotte

Austin sued Michael Weems for the wrongful death of her husband, Earvin Austin,

arising from an auto-pedestrian accident.

Mrs. Austin appeals the trial court’s judgment on the jury’s finding of

no negligence and contends that the trial court erred in denying her motion to

exclude the point-of- impact opinion testimony of Deputy Henry K. Jordan and

overruling her trial objections to his testimony. In addition to his oral testimony, Deputy

Jordan’s point-of-impact opinion was contained in five places in three exhibits

offered at trial. Mrs. Austin did not

timely object to three instances in those exhibits where Deputy Jordan

expressed his opinion on point of impact.

The denial of a motion to exclude out of the presence of the jury may

make it unnecessary to object to documents containing the same opinion in front

of the jury. But, to do so, the motion

must clearly address not only the opinion, but each of the different ways the

opinion will be presented to the jury through documents. Mrs. Austin’s motion to exclude only

addressed the expert’s opinion in his testimony and two of the five instances

his opinion was expressed in the exhibits.

She was required to object to each part of the exhibits that contained

his opinion to preserve error on appeal.

Mrs. Austin also contends on appeal

that the jury’s finding was against the great weight and preponderance of the

evidence and the trial court erred in denying her motion for new trial since

Weems’s counsel made an improper jury argument.

We overrule her contentions and affirm.

Background

On

the morning of December 17, 1995, Earvin Austin left the Big Tree Lounge a

little before 2:00 a.m. He parked his

pick-up truck across from the Lounge on the south-bound shoulder of State

Highway 36—a two-lane road with a 55 mile per hour speed limit—and was

going to cross the highway by walking

east-bound on foot back into the Lounge’s parking lot. Michael Weems, traveling north, struck and

killed Austin in the highway.

Charlotte

Austin sued Weems for wrongful death.

During the trial 13 years after the accident, the jury heard conflicting

testimony regarding whether Weems swerved into the lane for opposing traffic,

the south lane, or remained in his own lane, the north lane. In other words, testimony differed as to

whether Mr. Austin had already walked more than halfway across the road or was

on his side of the road and was preparing to cross. More specifically, there was a swearing match

on whether Mr. Austin walked into the north-bound lane, where Weems had the

right of way, or was still on his own side of the road, near his truck parked

on the south side.

The location of the point of impact

was the primary liability issue at trial.

If Weems were driving on the wrong side of the road and Mr. Austin were

near his truck, a jury would likely find some fault for the accident rested

with Weems. On the other hand, if Weems were

on his own side of the road, and Mr. Austin were walking on the wrong side of

the road, a jury would likely find that some fault for the accident rested with

Mr. Austin.

Mrs. Austin called eye-witnesses

Gervaise Summers, James Marshall, Robert Smith, and Brigette Henry to testify

at trial in support of her claim that Weems hit Mr. Austin in the south-bound

lane. Summers and Marshall testified

that they saw the point of impact in the south-bound

lane. Henry, a passenger in Mr. Austin’s

truck parked on the side of the road in the south lane, testified that the

truck shook when Weems’s car passed. Smith

testified at trial that he never saw the impact but he did see Weems swerve

into the south lane. In his deposition,

however, he testified that he saw the accident and Weems was in the north lane,

which corresponds with his statement to police that Mr. Austin walked in front

of the car and Weems could do nothing to stop the accident. Summers’s and Marshall’s trial testimony also

contradicted their earlier deposition testimony. [1]

Weems relied primarily on his own

testimony and the testimony of Deputy Henry K. Jordan with the Brazoria County

Sheriff’s Department. Weems testified

that he struck Mr. Austin in the north-bound lane, but that he never saw Mr.

Austin until after impact. When Officer

Jordan arrived on the scene about ten minutes after the accident, a firefighter

was directing traffic and the lanes had been blocked. Witnesses disputed how many cars, if any, had

passed through the accident scene.

Deputy Jordan documented the placement of the debris in the north-bound

lane, took some measurements, and obtained witness statements at the scene and

in the following days.

Over

ten months before trial, Mrs. Austin filed a motion to exclude the opinion

testimony of Deputy Jordan arguing that he was not qualified to testify as an

expert regarding the point of impact, causation, or fault and that his opinion

on those subjects was unreliable. The

motion was directed at his testimony, not at his accident report, though the

motion objects to Deputy Jordan’s “opinions” on point of impact and the factual

background referred to two statements in the report. [2] The trial court addressed the motion at the

close of Mrs. Austin’s evidence out of the presence of the jury. There was no discussion during the hearing of

the five instances in his accident report in which Deputy Jordan opined on the

point of impact, but there were again some general objections to his point-of-impact

opinions.

During that hearing, Deputy Jordan

testified that he had twenty years of law enforcement experience and had

investigated hundreds of accidents. He

admitted, however, that he had no training in accident reconstruction or

physics and that the accident at issue was the only auto-pedestrian fatality he

had ever investigated. He did not

consider himself to be an expert in accident reconstruction and point of impact. He testified—based on his “training,

knowledge, skill, experience, common sense, and observations”—that he believed

the point of impact was in the north lane where Weems had the

right-of-way. He stated he did not need

to reconstruct the accident completely to determine the point of impact. His opinion rather was based primarily on the

location of the debris and the witnesses’ statements. The trial court denied the motion to exclude

expert testimony and ruled that Deputy Jordan’s testimony was rationally based

on perception and “the jury was equally well positioned to draw inferences from

the data presented.”

Deputy Jordan proceeded to testify

before the jury as to point of impact and his opinion that Mr. Austin was at

fault. Weems also offered into evidence

three components of Deputy Jordan’s accident report—his diagram of the scene, a

standard report, and a narrative report of the accident. Weems first offered the diagram of the scene,

which indicated the placement of the cars, debris, and point of impact. After the trial court admitted the diagram,

Mrs. Austin objected to the point-of-impact opinion shown on the drawing and

argued Weems failed to show the proper predicate for the opinion. The trial court overruled the objection as

untimely.

Weems later offered Deputy Jordan’s

standard report into evidence. His

standard report contained, in one section, his conclusion that Austin’s failure

to yield the right of way was a contributing factor to the accident [3]

and, in another section, two sentences that the point of impact occurred when

Weems struck Mr. Austin in the north-bound lane. Mrs. Austin generally objected to opinions in

the standard report and specifically identified the right-of-way

statement. The court sustained the objection

to the failure to yield the right-of-way statement and, after redactions,

admitted the standard report.

Weems later offered the narrative portion

of Deputy Jordan’s police report into evidence through the records custodian

for the Brazoria County Sheriff’s Department.

The narrative report stated,

Debris near the center and

northeast of the center of the road indicated that as possibly the point of

impact. Evidence at the scene indicated

that victim may have been standing or walking approximately 2 ft. east of the

center line of the roadway. . . There was no evidence visible to RO to indicate

that vehicle #1 was out of the proper lane or traveling at a high rate of

speed.

Mrs. Austin objected to the narrative as including

“double hearsay.” [4] The trial court then overruled the objection

and admitted the narrative into evidence.

During final argument, Weems

attacked the credibility of one of Mrs. Austin’s eyewitnesses, Robert Smith,

for changing his testimony.

Additionally, according to Mrs. Austin, Weems’s counsel made a gesture

implying that money had influenced Smith’s testimony. Mrs. Austin made no objection to the

argument, nor did she advise the court of the gesture immediately after the

argument. The jury found that Weems was

not negligent in causing the accident. The

trial court entered judgment on the verdict.

Mrs. Austin filed a motion for new

trial raising factual sufficiency of the evidence and improper jury

argument. She amended her motion

twice. In her second amended motion

filed three months after the verdict, Mrs. Austin asserted, for the first time,

that Weems’s counsel made a hand gesture during his argument indicating money

and thereby implied that Smith had been bribed to change his testimony. She attached an affidavit from her counsel to

support the hand gesture allegation. Weems

responded, without any sworn evidence attached, that his counsel did not

remember making the gesture, but even if he had, the implication would have

been that the witness wanted monetary compensation for Mr. Austin’s family, not

an implied accusation of bribery. The

trial court denied Mrs. Austin’s motion for new trial and she filed a timely

appeal.

Opinion Testimony

Mrs. Austin

argues the trial court erred in allowing Deputy Jordan’s opinion testimony on

point of impact because he was not qualified to give expert testimony under

Texas Rule of Evidence 702. [5] Weems responds that Mrs. Austin failed to

preserve this issue for appeal because she did not object to documentary

evidence containing Deputy Jordan’s opinion.

In the alternative, Weems argues trial court properly admitted Deputy

Jordan’s opinion because he qualified as a lay opinion witness under Rule

701. See

Tex. R. Evid. 701.

I. Preservation

of Error

To preserve error for appellate

review the complaining party must

timely and specifically object to the evidence and obtain a ruling. See Tex. R. App. P . 33.1(a); see also

Tex. R. Evid . 103(a)(1). “Error is waived if the complaining party

allows the evidence to be introduced without objection.” Bay Area Healthcare Grp. Ltd. v. McShane , 239 S.W.3d 231, 235 (Tex.

2007). Additionally, any error in the admission of evidence is waived if the

objecting party subsequently permits the same or similar evidence to be introduced without

objection. Volkswagen of Am., Inc.

v. Ramirez , 159 S.W.3d 897, 907 (Tex. 2004). T hus, a party fails to preserve error if it does not object to

the same or similar evidence that is offered by the opposing party. See

Marin v. IESI TX Corp. , 317 S.W.3d

314, 324 (Tex. App.—Houston [1st Dist.] 2010, pet. filed).

II. Mrs. Austin’s Motion to Exclude

Mrs. Austin filed a pretrial motion

to exclude Deputy Jordan’s opinion on point of impact by challenging both his

qualifications and the reliability of his opinion on point of impact. Mrs. Austin, therefore, did not need to raise

her objection to his testimony in front of the jury. See Tex. R. Evid. 103(a)(1); see also Maritime Overseas Corp. v. Ellis ,

971 S.W.2d 402 , 409–10 (Tex. 1998) (holding that objection “before trial or

when the evidence is offered” is necessary to preserve reliability challenge to

expert testimony). After a hearing out

of the presence of the jury, the trial court denied the motion and explained

that the testimony was admissible as lay witness testimony under Rule 701.

A motion

to exclude, in effect, accomplishes the same thing as a running objection: it

eliminates the need to repeat the objection each time evidence is admitted on a

topic. See Volkswagen of Am. , 159 S.W.3d at 907 . A running objection reaches different types of evidence only

if the objecting party specifically identifies the part of the evidence that is

inadmissible and each source of that evidence.

Volkswagen of Am. , 159 S.W.3d at 907 (stating that to preserve error

by running objection, objecting party must identify both “the source of the

objectionable evidence” and its “specific subject matter” and that error was

preserved because objection identified “the ways” that evidence would be

presented to the jury) .

Rule 103(a)(1) permits a ruling denying a motion to exclude testimony

outside the presence of the jury to preserve error without the necessity of

repeating the same objections, but only for “such evidence” that is the subject

of the motion.

A. Breadth

of the Motion to Exclude

We look to the motion to determine

its subject matter and the “source” or the “ways” that the objectionable

evidence would be presented to the jury.

See Volkswagen

of Am. , 159 S.W.3d at 907 . T he motion did not identify for the trial court each specific

instance of Deputy Jordan’s opinion included in the police report through the diagram,

the standard report, and the narrative report.

The following five iterations of Deputy Jordan’s opinion were admitted

through various portions of his police report: (1) “POI” indicated on the

diagram; (2) the standard report’s statement that, “ Victim either walked onto or was standing in the North bound lane ;”

(3) the standard report’s statement that, “POI APPROX. 2(ft) East of center

line;” (4) the narrative report’s

statement that, “Debris near the center and northeast of the center of the road

indicated that as possibly the point of impact;” and (5) the narrative report’s

statement that, “ Evidence at the scene

indicated that victim may have been standing or walking approximately 2 ft.

east of the center line of the roadway. ” (emphasis added). Mrs. Austin only raised the italicized

portions in her motion to exclude. [6] The motion does not address the “POI”

notation in the diagram or the additional point-of-impact opinion statements in

the standard and narrative reports. We

conclude, therefore, that the motion preserved error for Deputy Jordan’s trial

testimony and the admission of the two identified statements in the reports,

but did not preserve error for the three statements that were not identified.

We are mindful that one of our sister

courts of appeal has held that the trial court’s denial of a pretrial motion to

exclude was sufficient to preserve error without an additional trial objection

for the admission of not only numerous accident reports written by different

officers but also a police officer’s testimony discussing the same

accidents. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 204 (Tex.

App.—Texarkana 2000, pet. denied). The

breadth of the motion in Huckaby differs

from the breadth of this motion. The

court there reasoned that the motion “was not so narrowly drawn” as to apply

only to documentary evidence and not to testimony by a police officer that

discussed each of the same accidents. Id .

The court quoted a number of instances in the motion where the movant

requested exclusion of evidence of the prior and subsequent accidents. The motion in Huckaby was also titled “Plaintiffs’ Objections, and Motion, to

Exclude Evidence.” In contrast, Mrs.

Austin’s motion by its title is directed at testimony. While the motion globally makes reference to

Deputy Jordan’s opinions, the opinions that are the focus of the motion are the

opinions as expressed in Deputy Jordan’s testimony, and the prayer sought the

exclusion of only his testimony on point of impact. More importantly, her motion does not

specifically identify each objectionable portion of Deputy Jordan’s accident

report.

B. Waiver in Light

of the Motion to Exclude

We next examine the effect of a motion to exclude that covers

testimony but does not cover each expression of the same opinion in exhibits

offered at trial. Mrs. Austin’s counsel

conceded to the trial court that parts of the accident report were

admissible. It was Mrs. Austin’s burden,

therefore, to identify the specific portions of each report that constituted

opinion testimony on the point of impact.

See Jones v. State , 843 S.W.2d

487, 492 (Tex. Crim. App. 1992); [7] Lawrence v. Geico Gen. Ins. Co. , No.

01-07-00873-CV, 2009 WL 1886177 , at *5 (Tex. App.—Houston [1st Dist.] July 2,

2009, no pet.); Gen. Motors Corp. v. Harper ,

61 S.W.3d 118, 126 (Tex. App.—Eastland 2001, pet. denied); see also 1

Steven Goode et al., Texas Practice

Series: Guide to the Texas Rules of Evidence §103.2 (3d ed. 2002) (stating

if an objection is made to the entirety of the document which does “not point

out precisely which parts were inadmissible,” it is “properly overruled if any

part of the offer was admissible.”). [8] This she failed to do.

This rule has been applied by this court to require a party to

identify any specific objectionable portions of a police report. Lawrence ,

2009 WL 1886177 , at *5-6. In Lawrence ,

the plaintiff objected to the inclusion of expert opinions in a police report

and specifically identified the portion of the report that identified two

contributing factors to the accident.

Much like the trial court here, the Lawrence

court sustained that objection to that part of the report. On appeal, the plaintiff challenged the

admissibility of a diagram of the scene and to the opinions expressed in the

report regarding whether a vehicle was legally parked, the direction of travel,

and the position of the vehicles at the time of the collision. We noted the general rule that an “objection

to evidence as a whole, which does not point out specifically the portion

objected to, is properly overruled if any part of that evidence is

admissible.” Id. at *5. Applying that

rule, we then held that the trial court properly overruled the objection

because the report contained admissible non-opinion evidence and the plaintiff

did not specifically identify the opinions that were challenged on appeal. Id.

at *6. The same is true here: the

plaintiff failed to identify each of the objectionable portions of the police

report.

When the remaining portions of Deputy

Jordan’s accident report were admitted into evidence without a specific

objection, Mrs. Austin allowed the same or similar opinion as Deputy Jordan’s

oral testimony to be admitted to the jury, making the objected-to evidence

cumulative of the unobjected-to evidence.

Any error as to the earlier objected-to evidence, therefore, was not

preserved. See Marin , 317 S.W.3d at

324 ; see also Allstar Nat. Ins. Agency v.

Johnson , No. 01-09-00322-CV, 2010 WL 2991058 , at *3–4 (Tex. App.—Houston

[1st Dist.] July 29, 2010, no pet.) (holding error not preserved where

objecting party did not renew hearsay objection to document when witness

testified to contents of document).

Unlike

the Huckaby court, we do not find the potential for

contradictory rulings by the trial court a persuasive reason for rejecting the

general rule that a party must consistently object to the same evidence. 20 S.W.3d at 204 (“it would be contradictory

to exclude written accident reports and then allow a witness to testify on the

information in those reports”). The fact

that it would be contradictory for a trial court to admit evidence in one form

at one point in the trial and exclude the same or similar evidence in another

form at another point has not stopped courts from adopting the well-established

rule requiring a party to object to the same evidence offered later during the

trial. Richardson v. Green , 677 S.W.2d 497, 501 (Tex. 1984); Slayden v. Palmo , 108 Tex. 413 , 194 S.W.

1103, 1104 (Tex. 1917). For example, it

would be contradictory for a court to sustain a hearsay objection to testimony

by a witness concerning a conversation after earlier admitting testimony on the

same conversation by a different witness over objection (assuming no new

arguments are raised). But courts still

require the objection to be repeated in order to preserve error.

This case demonstrates that the potential for contradictory

rulings is not a reason for extending an objection to statements that are never

called to the trial court’s attention. A

trial court may sustain objections to specific portions of an exhibit even when

that court has ruled already on the admissibility of other evidence on the same

topic. For example, a trial court may refuse

to admit an exhibit that contains opinions similar to opinions already admitted

under other rules of evidence, including that the exhibit may be cumulative of

the testimony or admitting the opinion in written form gives it greater

weight. Or the trial court may change its

mind about the admissibility of the evidence after seeing how counsel has

already used the testimony before the jury and will further use the

exhibit. See Clark v.

Trailways, Inc. , 774 S.W.2d 644, 647 (Tex.

1989) (stating that requirement of timely objections is “designed to allow

trial courts to correct any errors made during the course of the proceedings”

and by failing to object at trial to testimony from undisclosed witness counsel

“ effectively

den[ied the] trial court the opportunity to review and correct [its] prior”

ruling denying motion to exclude witness for lack of disclosure ).

In this case, the trial court sustained an objection to

Deputy Jordan’s written finding that Austin failed to yield the right-of-way

even though he permitted testimony on that issue. Weems’s counsel tried to convince the trial court

that the opinion contained in Jordan’s standard report should be permitted

because the testimony was permitted, but the trial court refused. The rule requiring an objection both to the

expert’s testimony and to specific portions of documents containing the

expert’s opinion aids the trial court and may result in a court excluding

evidence contained in a document.

The rule

requiring a party to identify the specific portions of documents that contain

objectionable evidence is based on the practical reality that trial courts do

not need to read the entirety of an offered exhibit. Testimony regarding law enforcement

investigations is an example. If the

trial court erroneously allows a police officer to testify regarding hearsay

statements by an eyewitness that do not fall within a hearsay objection, the

objection is waived if the same statement appears elsewhere in the record and

no objection is made to the other evidence.

See Sosa v. Koshy , 961 S.W.2d

420 , 425–26 (Tex. App.—Houston [1st Dist.] 1997, writ denied) (holding that

party waived error as to police officer’s testimony regarding hearsay

statements by third parties because jury heard testimony that included the

statements before the party asked for a running objection).

C. “No Objection” and Cumulative Evidence

Additionally, Mrs. Austin in effect withdrew her objections

to those portions of the standard report that contained two statements by

Deputy Jordan on the point of impact. A n objecting party who preserves error by

obtaining a ruling outside the presence of the jury waives any benefit to their

objection by affirmatively stating “no objection” when the evidence is

reoffered before the jury. Gardner v. State , 306 S.W.3d 274, 293

(Tex. Crim. App. 2009); see Harrison v.

State , No. 01-09-00611-CR, 2010 WL 5187428, at *2 (Tex. App.—Houston [1st Dist.]

Dec. 23, 2010, no pet. h.) (concluding that objection raised to length of

pretrial voir dire was waived when counsel later replied that he had no

objection to seating of jury). T he

standard report specifically states, “Victim either walked onto or was standing

in the North bound lane. [Weems] struck

pedestrian. POI APPROX. 2(ft) East of

center line.” Mrs. Austin objected that the report constituted hearsay and contained

unspecified opinions without a proper predicate. The trial court asked to see the report,

recessed the jury, and instructed her to “show me where the opinions are. Come up, counsel.” Counsel identified the contributing factor

portion of the accident report in which Deputy Jordan stated that Mr. Austin

failed to yield the right-of-way. He

then stated, “That’s it.” The trial

court asked, “That’s the only one you have?” to which counsel replied, “Yes,

sir.” The court ordered the report be redacted

to remove the reference to the contributing factor listed, and stated that he

would admit the standard report into evidence after the redaction. The redactions were completed as the witness

testified, and Weems reoffered the standard report. Mrs. Austin’s counsel renewed his objection

to the contributing factor but agreed that the redaction had removed that

opinion. The standard report was then

admitted. In other words, the trial

court sustained the only objection made by Mrs. Austin to the standard

report. The portion that was not

redacted stated that , “Victim either walked onto or was standing in the

North bound lane. [Weems] struck

pedestrian. POI APPROX. 2(ft) East of

center line.”

When Mrs. Austin affirmatively

stated that she had no other objection to the report, she waived her objection

to the point-of-impact opinion in the standard report. By doing so, she failed to preserve any error

on the admission of Deputy Jordan’s testimony because it then became cumulative

of other evidence in the case. See Marin , 317 S.W.3d at 324 (holding

that party fails to preserve error if it does not object to same or similar

evidence that is offered by opposing party).

It is true that the trial court was aware of the nature of

Mrs. Austin’s objection and that Mrs. Austin believed all Deputy Jordan’s

opinions on the point of impact were inadmissible expert opinions. Tex.

R. App. P. 33.1(a)(1)(A) (requiring an objection to be stated “with

sufficient specificity to make the trial court aware of the complaint”). Even if the trial court had prolonged the

recess to read the motion to exclude filed ten months earlier, the trial court

did not know that Deputy Jordan’s opinion was contained in three sentences in

two exhibits because no objection was ever raised to those sentences. And, for one of the two exhibits, the standard

report, the trial court believed that there were no remaining objections after

the only objection that was made was sustained and the reports was redacted to

remove the only specifically identified material. In conclusion, the objection was not specific

enough to apprise the court that it was directed at the standard report, the

identification of the point of impact in the diagram, or the second point of

impact statements contained in the narrative report. In other words, the trial court was aware of

the nature of the objection but not the specific source of the objectionable

evidence (i.e. each of the five statements in the three reports). See

Volkswagen , 159 S.W.3d at 907 (stating that running objection must clearly

identify “the source and specific subject

matter of the expected objectionable evidence.”).

We do not have the authority to change the general rule that

requires a party to object to same or similar evidence offered later during the

trial or the specific rule that requires a specific objection to the portions

of documents containing admissible and inadmissible statements. We do not believe expert evidence should be

an exception to these general rules. [9]

We overruled Mrs. Austin’s first

issue.

Factual Sufficiency

Mrs. Austin argues that the

jury’s finding that Mr. Austin was negligent, and not Weems, was against the

great weight and preponderance of the evidence.

I. Standard

of Review

When a party challenges

the factual sufficiency of a finding on an issue upon which that party had the

burden of proof, that party must demonstrate that the adverse finding is

against the great weight and preponderance of the evidence. Dow

Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence

and set aside a verdict only if the evidence is so weak or if the finding is so

against the great weight and preponderance of the evidence that it is clearly

wrong and unjust. Id. The jury is the sole

judge of the witnesses’ credibility and the weight to be given their

testimony. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex.

2003).

II. Factually Sufficient Evidence

Mrs. Austin contends

that all eye-witnesses to the accident testified that Weems hit Mr. Austin in

the south-bound lane where Mr. Austin waited to cross the road. She asserts that only Weems and Deputy Jordan

testified that the point of impact occurred in the north-bound lane. Summers and Marshall both testified at trial

that they saw the point of impact in the south-bound lane and Henry testified

that Weems passed so close to where she sat in Mr. Austin’s truck in the south

lane, that the truck shook as he passed.

Several witnesses also testified that Weems stated to the police that he

had between one and three beers that night.

The jury, however,

heard conflicting testimony about the location of Weems’s car at the point of

impact and the circumstances surrounding the accident. For example, Weems attacked the credibility

of each of Mrs. Austin’s eye-witnesses. Summers

and Marshall’s prior statements in their affidavits and depositions

contradicted their trial testimony.

Summers, who was 14 years old at the time of the accident, testified at

trial that Weems made statements immediately after the accident that she had

not mentioned at her deposition or other pretrial statements. She also testified at trial that she saw the

impact, but at her deposition stated she first saw Mr. Austin in the air after

he had been hit. At trial she also

described what Mr. Austin wore the night of the accident, but at her deposition

she did not remember his clothing.

Marshall at trial testified that the area was well lit, but at his

deposition he described the area as dark.

Henry admitted that she never gave a statement to the police. Weems also impeached Smith who testified at

trial that he never saw the accident and that Weems swerved into the south

lane. In his deposition and his

statement to police, he stated that he not only saw the impact, but the impact

occurred in the north lane.

In support of the

jury’s verdict, Weems and Deputy Jordan testified that point of impact occurred

in the north-bound lane and that he drove below the 55 mile per hour speed

limit. The diagram, standard report, and

the narrative all indicated that the impact occurred in the north-bound lane

including a statement by a firefighter at the scene indicating that the

location of the debris, “[M]ay be the point of impact.” Weems stated that he did not see Mr. Austin

at the moment of impact, but several witnesses at the accident testified that

the night was dark and that Mr. Austin wore dark clothing. Weems also denied that he consumed any

alcohol that night and nothing in Deputy Jordan’s report corroborates the

testimony of Mrs. Austin’s witnesses that Weems told the police that he had been

drinking. In fact, the narrative states,

“RO did not detect any odor of alcohol on the driver’s breath or any indication

by his actions that he may have been drinking.

RO observed no evidence of alcohol inside his vehicle.”

The jury is the sole

judge of the witnesses’ credibility and the weight to be given their

testimony. See id. The jury here was

free to disbelieve the trial testimony of the eye-witnesses, especially given

the change in their testimony and the 13 years between the accident and

trial. Further, the evidence of the darkness,

speed limit, Mr. Austin’s dark clothing, and the testimony of witnesses placing

the point of impact in Weems’s lane of traffic all support the jury’s

finding. We do not find that the

testimony in support of the jury’s finding to be so weak as to make the verdict

clearly wrong or manifestly unjust. See Dow Chem. , 46 S.W.3d at 242 .

We overrule Mrs.

Austin’s second issue.

Jury Argument

Mrs. Austin argues Weems’s counsel

made an incurable jury argument by implying, through words and a hand gesture,

that one of the fact witnesses, Smith, had been bribed to change his

testimony. Weems’s counsel made the

following statements in his closing argument:

Now, how do you go from

being an eyewitness to the accident, telling the deputy what you saw, then

giving a deposition two years later and telling lawyers what you saw, to

suddenly realizing, the week before trial that you really didn’t see the

accident? How does that happen? Does it make any sense to you? Does your common sense give you a clue as to

how that happened? You know good and

well how that happens. You know good and

well how something like that comes about . . . So, how do you go from that,

seeing all of that, hearing all of that?

How does that happen; and then on the eve of trial, suddenly you realize

I didn’t see the accident? I didn’t see

the accident. You know how that

happens. You know why that happens.

Mrs. Austin asserted for the first time in her

second amended motion for new trial that Weems’s counsel also made a hand

gesture rubbing his thumb against his fingers indicating money when he said,

“You know good and well how that happens.

You know good and well how something like that comes about.” She attached her counsel’s affidavit to

support her allegation. Weems responded

to the motion for new trial asserting that his counsel did not remember making

the gesture, and even if he had, the implication would have been that the

witness sought monetary compensation for Mr. Austin’s family out of sympathy.

Weems did not, however, attach an affidavit or other sworn statement as

evidence.

I. Incurable

Argument

Mrs. Austin failed to object at trial to the statements or

gestures and therefore waived her complaint unless she can show the harm to be

incurable. See Living Ctrs. of Tex., Inc.

v. Penalver , 256 S.W.3d

678, 680 (Tex. 2008). Incurable

jury argument is rare because, in most cases, retraction of the argument or

instruction from the court can cure any probable harm. Phillips

v. Bramlett , 288 S.W.3d 876, 883 (Tex. 2009). In those rare cases, a complaint as to an

incurable argument may be made even without a timely objection. See Tex.

R. Civ. P . 324(b)(5); Living Ctrs. of Tex. , 256 S.W.3d at 680 . “The

party claiming incurable harm must persuade the court that, based on the record

as a whole, the offensive argument was so extreme that a ‘juror of ordinary

intelligence could have been persuaded by that argument to agree to a verdict

contrary to that to which he would have agreed but for such argument.’” Phillips ,

288 S.W.3d at 883 (quoting Goforth v.

Alvey , 271 S.W.2d 404, 404 (1954)). Incurable

argument must strike at the very core of the judicial process. Phillips ,

288 S.W.3d at 883 . Appeals to racial

prejudice and unsupported, extreme, and personal attacks on opposing parties,

counsel, and witnesses can compromise the basic premise that a trial provides

impartial, equal justice. Living Ctrs. of Tex. , 256 S.W.3d at

681 .

Nothing in the record corroborates

Mrs. Austin’s claim that counsel made a hand gesture beyond her attorney’s

affidavit—an affidavit attached for the first time to the third iteration of

Mrs. Austin’s motion for new trial. The

trial judge did not make any statement on the record indicating that he saw the

gesture. The failure to object to any

hand gesture at the time of the argument, or at least immediately after the

argument while the jury deliberated, created a problem with the lack of a

record of the gesture. If counsel had

objected at that time the court could have made a fact finding regarding

whether the alleged gesture was made, a ruling much easier at the time than

three months later with the second amended motion for new trial. The lack of an objection obviated the court’s

ability to make such a fact finding. The

court’s failure to grant a new trial suggest that it either believed the

gesture was not made or that it could have been cured.

The statements themselves are not

so extreme that a “juror

of ordinary intelligence could have been persuaded by that argument to agree to

a verdict contrary to that to which he would have agreed but for such argument.” See Phillips ,

288 S.W.3d at 883 . Smith’s credibility had been vigorously

attacked during cross-examination. That

attack included questions pointing out that Smith’s testimony remained the same

for 13 years until he met with Mrs. Austin’s counsel immediately before

trial. The argument also did not

directly accuse the witness of accepting a bribe.

It is the lack of direct attack

that makes Mrs. Austin’s reliance on Howsley & Jacobs v. Kendall , 376

S.W.2d 562 , 565–66 (Tex. 1964), in which counsel stated that “[s]omebody was

testifying through the lips of [the witness],” misplaced. The implication from the argument here,

assuming the gesture was made, was not nearly so direct an attack. The indication that money was a motive for

Smith’s testimony could have been interpreted as indicating that someone had

bribed the witness but could also possibly indicate that the witness was

attempting to help the Austin family financially.

Improper attacks on the

credibility of a witness or a party may be cured by instruction or

withdrawal. See Dunn v. Bank-Tec S. ,

134 S.W.3d 315 , 323–24 (Tex. App.—Amarillo 2003, no pet.). Smith admitted that his testimony had changed

and counsel was entitled to bring that fact to the jury’s attention during

argument. Smith also provided an

explanation for his shift by saying he was confused in his statement to police

and his deposition as to the north-south direction of the road. Even without counsel’s argument the jury did

not have to accept Smith’s explanation of the differences in his testimony. The jury could have simply believed his

statement made to Deputy Jordan within minutes of the accident and his

deposition given within five years of the accident were more credible than his

trial testimony 13 years later. See

Jones v. Republic Waste Servs. of Tex., Ltd. , 236 S.W.3d 390, 403 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (stating witness presented arguably

legitimate explanation for change in testimony, “Thus, the jury could have,

with the proper instruction, found [counsel’s] arguments to be deliberately

false and in bad faith.”).

The trial court could have

instructed the jury that there was no evidence of bribery, forced counsel to

clarify that he meant that the witness was attempting to help the family

financially, or simply reminded the jury that attorney argument is not evidence

and that the jury should decide the case based on the evidence. All of these instructions, and perhaps

others, were available at the time, and would have cured any error. See Zurita v. Lombana , 322 S.W.3d 463 ,

482–83 (Tex. App.—Houston [14th Dist.] 2010, no pet. h.) (holding counsel’s

argument not incurable because parties are entitled to argue facts to jury and

counsel did not use inflammatory epithets such as “liar,” “fraud,” “faker,”

“cheat,” or “imposter.”). Assuming the gesture was made, the

argument was improper, but it was not incurably so under these

circumstances. Mrs. Austin, therefore,

must have objected in order to preserve her complaint for appeal.

We overrule Mrs. Austin’s third

issue.

Conclusion

We hold the evidence was

factually sufficient to support the jury’s verdict. Mrs. Austin failed to preserve error as to

the admission Deputy Jordan’s testimony and any improper jury argument by

Weems’s counsel. We affirm the judgment

of the trial court.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

Justice

Jennings, concurring.

[1] All the eye-witness depositions were taken within five

years of the accident.

[2] Different parts of Deputy Jordan’s accident report were

admitted as three separate exhibits at various times at trial. For ease and clarity, the parts will be

referred to as three separate reports or as the diagram, the standard report,

and the narrative report.

[3]

At the bottom of the police report was a section for the

investigating officer to indicate factors and conditions that did contribute

and may have contributed to the accident.

Below this is a standardized list of 72 factors that the officer may

choose.

[4]

Mrs. Austin mentioned the word “opinion” in her objection, but limited her

objection to hearsay and never raised Texas Rule of Evidence 701 or 702.

[5]

Mrs. Austin does not challenge

the trial court’s ruling that Jordan could testify regarding the fault of the

parties. When Weems asked Deputy Jordan

if he had formed an opinion as to fault based on his skill, knowledge,

training, experience, and investigation, he testified, “The pedestrian was at

fault for walking in or standing in the roadway.” In her brief to this court, Mrs. Austin does

not address Deputy Jordan’s opinion on fault.

[6]

Mrs. Austin stated the

italicized portions in the factual summary of her motion to exclude, though at

no time in her argument section. Reading

the motion broadly, we believe she preserved error as to the two statements

indicated in her motion.

[7] The

court in Jones explained that the

trial court has no obligation to “sort through challenged evidence in order to

segregate the admissible from the excludable . . . If evidence is offered and

challenged which contains [both admissible and inadmissible parts] the trial

court may safely admit it all or exclude it all, and the losing party, no

matter who he is, will be made to suffer on appeal the consequences of his

insufficiently specific objection.” Jones v. State , 843 S.W.2d 487, 492

(Tex. Crim. App. 1992).

[8] This rule has been repeatedly

utilized to find any error was waived concerning summary judgment evidence. See, e.g., Columbia Rio Grande Reg’l Hosp. v.

Stover , 17 S.W.3d 387, 396 (Tex. App.—Corpus Christi 2000, no

pet.) (stating that objections to four exhibits on basis of hearsay did not specifically

identify objectionable hearsay statements and did not preserve error); Moulton

v. Vaughn , 982 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied) (noting that objection directed to affidavit as whole, which does not

point out which part is objectionable, preserves nothing for review).

[9] If Mrs. Austin had preserved error, we agree with the

concurring opinion that any error would be harmless.