Pam Sahualla and Tracy Sahualla v. Guseman Construction, LLC

• Court: Court of Appeals of Texas
• Decided: May 7, 2015
• Docket: 09-14-00342-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-14-00342-CV ________________

PAM SAHUALLA AND TRACY SAHUALLA, Appellants

V.

GUSEMAN CONSTRUCTION, LLC Appellee __________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-190,068 __________________________________________________________________

MEMORANDUM OPINION

Appellee Guseman Construction, LLC (“Guseman”) sued pro se appellants

Pam Sahualla and Tracy Sahualla 1 for breach of contract pertaining to an

agreement to pour a concrete driveway. The jury found that Guseman failed to

comply with the agreement but awarded the Sahuallas no monetary damages, and

the trial court signed a judgment in accordance with the jury’s verdict. In two

1 The Sahuallas were represented by counsel at trial, but they are pro se in this appeal. 1 appellate issues, the Sahuallas challenge the admission of expert testimony

regarding testing of the concrete, and Guseman’s counsel asking leading questions

during direct examination. 2 We affirm the trial court’s judgment.

ISSUE ONE

In their first issue, the Sahuallas challenge the admission of expert testimony

regarding testing of the concrete. At trial, professional engineer Tyler Henneke

testified regarding core sampling of the concrete. The Sahuallas did not object to

the admission of Henneke’s report into evidence, nor did they object to Henneke’s

testimony that the concrete passed the core sampling test. During Henneke’s

testimony, three video clips depicting the removal of core samples for testing and

the laboratory where the testing was done were shown to the jury and admitted as

exhibits. The Sahuallas did not object to the admission of the video clips into

evidence. Guseman’s counsel offered into evidence the three core samples of 2 The Sahuallas seem to also complain of alleged bias in the “court system.” The Sahuallas allege that Guseman has “a family member of very high power in our court system” which led to a mistrial in July 2013. The case was retried in April 2014 and the trial court signed the judgment from which the Sahuallas now appeal. As support for their argument, the Sahuallas cite this Court to the November 25, 2013, hearing on their trial counsel’s motion to withdraw, at which the Sahuallas seemed to contend that trial counsel’s performance was deficient and complained of their difficulties finding an attorney to represent them. The record does not reflect that the Sahuallas raised their claim of bias in the “court system” before the trial court and obtained a ruling; therefore, we may not now address that argument on appeal. The Sahuallas did not demonstrate that bias affected the outcome of their case. See Tex. R. App. P. 33.1(a). 2 concrete that were tested. The Sahuallas lodged a relevancy objection to the

admission of the three core samples of the concrete into evidence, contending that

“based on the expert’s testimony, all that shows is strength of the concrete. It

didn’t show whether there was a cold slab or any other defects.” The trial court

overruled the objection, stated that the core samples were admissible “for the

limited purpose of the jury being able to examine what was tested,” and admitted

the samples into evidence. As discussed above, the Sahuallas did not object to

Henneke’s qualifications, his testimony regarding the core sampling process, the

admission of Henneke’s report into evidence, or the admission of the video clips

into evidence. Therefore, the Sahuallas did not preserve those complaints for

appellate review. See Tex. R. App. P. 33.1(a).

We now turn to the Sahuallas’ complaint concerning the admission of the

concrete samples into evidence. We review the trial court’s evidentiary rulings for

an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,

43 (Tex. 1998); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).

The trial court abuses its discretion when it acts without reference to any guiding

rules or principles such that its ruling is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007). The Sahuallas have failed to demonstrate that

the trial court abused its discretion by admitting the core samples into evidence. In

3 addition, even if admitting the core samples into evidence had been erroneous, the

Sahuallas have not shown that the admission of the samples into evidence led to

the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Accordingly,

we overrule issue one.

ISSUE TWO

In their second issue, the Sahuallas complain of leading questions

Guseman’s counsel asked witnesses for Guseman. A leading question is one that

suggests the desired answer or puts words into the witness’s mouth to be echoed

back. GAB Business Servs., Inc. v. Moore, 829 S.W.2d 345, 351 (Tex. App.—

Texarkana 1992, no pet.). Leading questions should not be used during direct

examination except as necessary to develop the witness’s testimony. Tex. R. Evid.

611(c). Failure to object to a leading question waives any error. Cheng v. Wang,

315 S.W.3d 668, 672 (Tex. App.—Dallas 2010, no pet.); Tex. R. App. 33.1(a). The

decision to permit a leading question lies within the sound discretion of the trial

court. Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 568 (Tex.

App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). To obtain

reversal, the Sahuallas must demonstrate that the error probably caused the

rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Malone, 916

S.W.2d at 568.

4 The Sahuallas do not point out in their brief any specific instances of leading

questions. Any instances of leading questions to which the Sahuallas did not object

at trial are not preserved for appellate review. See Tex. R. App. P. 33.1(a); Cheng,

315 S.W.3d at 672. Our review of the record reveals several instances when the

Sahuallas’ counsel objected to leading questions by Guseman’s counsel, and the

trial court sustained many of the objections. The Sahuallas have not demonstrated

that the trial court abused its discretion by overruling any of their objections to the

leading questions, nor have they demonstrated that the leading questions probably

led to the rendition of an improper judgment. See Tex. R. Evid. 611(c); Malone,

916 S.W.2d at 568; see also Tex. R. App. P. 44.1(a). Accordingly, we overrule

issue two and affirm the trial court’s judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on April 9, 2015 Opinion Delivered May 7, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.