Sciarrilla v. Osborne

946 S.W.2d 919, 1997 Tex. App. LEXIS 3377, 1997 WL 351291

• Court: Court of Appeals of Texas
• Decided: June 26, 1997
• Docket: 09-95-365 CV
• Status: Published

Opinions

OPINION

WALKER, Chief Justice.

This is a suit for personal injuries brought by Mary Sciarrilla as a result of an automobile accident which occurred on September 12,1991. Plaintiff, now appellant, Mary Sci-arrilla, filed suit against defendant, now ap-pellee, Michael K. Osborne, claiming that he was negligent in causing the automobile accident made the basis of this suit. Plaintiff contended that defendant came into her lane and forced her vehicle off the road, causing the plaintiffs vehicle to flip over numerous times. Plaintiff Sciarrilla claimed injuries to her neck, back and head as a result of the accident. Defendant Osborne claimed that he was not negligent and that he did not run plaintiffs vehicle off the road. Osborne contended that Sciarrilla herself was negligent in causing the accident.

The jury found plaintiff to be negligent in causing the accident, thus pursuant to court instructions, the jury did not answer the questions regarding damages. The trial court entered judgment in favor of defendant, Michael K. Osborne, and against plaintiff, Mary Sciarrilla, from which appellant Sciarrilla now appeals.

Appellant brings three points of error which we shall pursue in the order presented. Point of error one contends that the trial court erred in allowing Trooper Daniel Young to testify as an expert witness.

The accident was investigated by Trooper Daniel Young. At the time he testified, Trooper Young was a Trooper II with the Texas Department of Public Safety. Trooper Young has a Bachelor of Science Degree in Criminal Justice, majoring in law enforcement, from Southwest Texas State University. Trooper Young took science and engineering courses in college. Trooper Young had been with the Texas Department of Public Safety since September 12, 1989. During his twenty-two (22) weeks at the police academy, Young received training in accident investigation and in all areas of law enforcement, most of which was based on traffic laws. Trooper Young moved to the Highway Patrol Division in May 1991. In July and August 1991, Trooper Young attended a three week advanced accident reconstruction school through the Department of Public Safety in Austin. When Trooper Young began Highway Patrol Division in May 1991, he was required to ride with a senior officer for six months. Prior to the accident which was the subject-matter of the present suit, Trooper Young had investigated approximately thirty-five to forty automobile accidents. Trooper Young had completed the advanced accident reconstruction school approximately one month before the September 12, 1991 accident. He had investigated approximately ten to fifteen accidents between the time he completed the advanced accident investigation school and the time he investigated the accident in question. At the time of his testimony, Trooper Young had investigated probably between four hundred and five hundred accidents.

While attending the advanced accident reconstruction school, Trooper Young learned how to arrive at an accident scene, take physical evidence and use that evidence to reconstruct what happened in an accident. His training with regard to physical evidence included observing and evaluating the physical evidence left from the vehicles themselves, parts of the vehicle, where the vehicles may come to rest, skid marks, scuff marks, etc. Trooper Young learned to take the weights of vehicles, where such vehicles come to rest, and use different types of formulas to calculate speed, direction of travel, and the like. His training included how to take the physical evidence at the scene and work the accident just from physical evidence. Young learned to evaluate the physical evidence at an accident and tell what happened from the point where the physical evidence starts until the final act of an accident. Young learned how to forego what people tell him happened in an accident and to base his conclusion on the physical evidence left there at the scene. Trooper Young testified that when he investigates an accident, his investigation and any opinions or conclusions he may have are based upon his training at the academy, his training at the advanced accident reconstruction school and his experience in investigating accidents.

Prior to Trooper Young’s testimony, his credentials were proved up outside the presence of the jury. Opposing counsel had an opportunity to voir dire Trooper Young regarding his credentials also outside the presence of the jury. While outside the presence of the jury, and prior to Trooper Young’s testimony, opposing counsel stated the following:

Factual testimony, we have no objections to him testifying to as to what he observed out there. It’s the conclusions that we object to, Your Honor, as being a trooper for less — I mean, actually being a trooper for less than five months, only out of school a month, still a trainee. I just don’t see any way that he can be classified on December [sic] 12th, 1991 as an expert.

This was the only objection to Trooper Young’s testimony made by opposing counsel. The trial court gave serious consideration regarding Trooper Young’s qualifications to testify as an expert as we see from the following colloquy by the court:

THE COURT: Well, an interesting question this has turned out to be. I’m not going to mind stating on the record a close question. Let me think about this for a little bit.

[Appellee’s trial counsel] They can testify that police officers also give testimony as lay witnesses based on what they perceive when they get there as well as their experience as a police officer.

THE COURT: The Court will allow the officer to testify. Bring in the jury.

We find nothing in the record designating Trooper Young as an expert witness, though we recognize that his opinion regarding physical evidence was offered and considered as that of an expert.

In challenging Trooper Young’s qualifications as an expert, appellant primarily relies on the cases of Clark v. Cotten, 573 S.W.2d 886 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.); Estate of Brown v. Masco Corp., 576 S.W.2d 105 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.); and E.I. du Pont de Nemours & Co. v. Robinson, 928 S.W.2d 549 (Tex.1995). In Clark, plaintiff attempted to introduce testimony from a State Trooper as to the ultimate cause of the accident. This Beaumont Court of Appeals determined that even though the State Trooper had been with the Department of Public Safety for eight and one-half years, received seventeen weeks of training and investigated three hundred and fifty accidents, these credentials failed to qualify the trooper to opine the ultimate cause of the accident. We distinguish Clark from the present case in that in Clark, there was no showing that the trooper had any specialized training in accident investigation or accident reconstruction. The seventeen weeks training referenced in Clark, does not indicate the type of training and whether such training was simply basic academy training or some other type of training. In the present case, Trooper Young specifically testified that he had additional and specialized training in the area of accident investigation by his attendance to advanced accident reconstruction school through the Texas Department of Public Safety. Even though Trooper Young had less time and service with the Department of Public Safety than did the trooper in Clark, Young was shown to have specialized training and education in the area in which expert opinion was given.

With regard to the Brown case, the qualifications of the police officer in question substantially differ from those of Trooper Young. The officer in Brown had only three days of accident investigation training, had investigated only twenty accidents prior to the trial, and his degree was in elementary education. Brown, 576 S.W.2d at 108. Recall that Trooper Young’s degree was in criminal justice and had received accident training not only in the police academy but also had attended a three-week advanced accident reconstruction school about one month prior to the accident in question, and that prior to the accident in question Trooper Young had investigated approximately thirty-five to forty accidents.

Our Texas Supreme Court has issued two recent opinions discussing the law with regard to qualifications of individuals being proffered as expert witnesses, as opposed to the scientific reliability of the data used by an already acknowledged expert in forming his or her opinion, as was the issue raised in E.I. du Pont de Nemours & Co. v. Robinson, supra. In June of 1996, the Court handed down Broders v. Heise, 924 S.W.2d 148 (Tex.1996), and then in January of 1997, the Court issued United Blood Serv. v. Longoria, 938 S.W.2d 29 (Tex.1997). We quote from Lon-goria:

Whether a witness is qualified to offer expert testimony is a matter committed to the trial court’s discretion. Broders v. Heise, 924 S.W.2d 148 (Tex.1996). The trial court must determine if the putative expert has “knowledge, skill, experience, training, or education” that would “assist the trier of fact.” See Tex.R. Civ. Evid. 702. The burden of establishing an expert’s qualifications is on the offering party. Broders, 924 S.W.2d at 151. We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

Longoria, 938 S.W.2d at 30-31.

To all of the above, the Court in Broders added the following observation, ‘What is required is that the offering party establish that the expert has ‘knowledge, skill, experience, training, or education’ regarding the specific issue before the court which would quality the expert to give an opinion on that particular subject, [citation omitted]” Broders, 924 S.W.2d at 153. The testimony of Trooper Young was partly scientifie/technieal and partly opinion based on said scientific/technical evidence gathered at the scene of the accident. His testimony was strictly limited to physical evidence obtained at the scene of the accident. Appellant’s brief points us to the following testimony of Trooper Young as the basis for her complaint:

Q. [Appellee’s trial counsel] Officer, based on your investigation of this accident, do you have an opinion as to how this accident occurred?

A. [Young] Yes, ma'am, I do.

Q. And what is that opinion, sir?

A. Based — based solely on the physical evidence left at the scene of the accident, I believe that the S-10 Blazer [appellant’s vehicle] was traveling in what would be the outside lane — the lane farthest from the interstate-traveling — left the roadway to the right, panicked to some extent, over-corrected to the left, came back up on the roadway — that’s what left — that’s what left the mark on the center stripe — attempted to regain control of her vehicle, jerked over to the right, and this vehicle lost— this vehicle left the roadway from the right up on the gravel or the shoulder and lost control of the vehicle and flipped over.

Trooper Young’s testimony also provided that none of the physical evidence present at the scene of the accident indicated Osborne did anything to cause or contribute to the accident. On cross-examination, the trooper confirmed the fact that he did not have an opinion as to what happened before the point where the physical evidence began, and did not know what caused appellant to lose control of her vehicle. Trooper Young further admitted that it was possible that appellant was forced off the road and if that were the case there would be no physical evidence to show it. In short, Trooper Young’s testimony was essentially confined to his interpretation of the physical evidence present at the scene of the accident, without regard to the legal blameworthiness of either party. A close examination of both direct and cross-examination testimony of Trooper Young indicates that his interpretations regarding the physical evidence virtually tracked and confirmed the testimony given by appellant as to the sequence of events involving herself and her vehicle. For all of these reasons, we simply cannot say that the trial court abused its discretion in its apparent finding of Trooper Young’s expertise in accident reconstruction investigation and thereafter permitting Young to testify as to the results of his investigation. Point of error one is overruled.

Appellant’s point of error two contends that the trial court erred in permitting the accident report prepared by Trooper Young to go before the jury.

Trooper Young, as required by the Texas Department of Public Safety and the State of Texas, prepared a written report regarding his investigation and findings. Defendant’s Exhibit No. 1 was proved up as a true and correct copy of the report made by Trooper Young of the accident on September 12, 1991. During defense counsel’s prepato-ry foundation for the admission of Defendant’s Exhibit No. 1, plaintiff’s counsel made the following objection: “We’re going to object to the introduction of whatever number it is. I didn’t catch the number. We do not feel that proper predicate is laid. We do not feel the document is admissible in its form, and we feel that it is hearsay — rank hearsay.” No ruling was made by the trial court at the time and defense counsel moved forward with proving up the report. Following further lengthy predication, defense counsel offered Defendant’s Exhibit No. 1, which, following redaction and corrections, was admitted. Plaintiff’s counsel stated: ‘We’ll renew our objections, your Honor.” The corrections constituted redacting all references to insurance and traffic citations issued to any party.

Rule 803 of the Texas Rules of Civil Evidence, pertaining to hearsay exceptions, states the following:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. “Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

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(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activity of the office or agency, or (B) matters observed pursuant to duly imposed by law as to which matters there was a duty to report, or (C) factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.

Trooper Young’s written report clearly falls within the two stated sections as an exception to hearsay rule. Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176 (Tex.App.Amarillo 1992, writ denied); Clement v. Texas Dep’t of Public Safety, 726 S.W.2d 579 (Tex.App.—Fort Worth 1986, no writ); Porter v. Texas Dep’t of Public Safety, 712 S.W.2d 263 (Tex.App.—San Antonio 1986, no writ).

Rule 103(a)(1), Texas Rules of Civil Evidence requires that an objection to evidence be specific. Where a specific ground for objection is not stated a general objection amounts to no objection at all. Murphy v. Waldrip, 692 S.W.2d 584 (Tex.App.—Fort Worth 1985, writ ref'd n.r.e.). A general objection to a unit of evidence as a whole, which does not point out specifically the portion objected to, is insufficient. See Cherokee Water Co. v. Gregg County Appraisal Dist., 773 S.W.2d 949 (Tex.App.—Tyler 1989), aff'd, 801 S.W.2d 872 (Tex.1990).

At trial, appellant made two objections to the admission of the accident report, namely that the report was hearsay and that the proper predicate was not laid. Appellant’s case law on this issue was handed down prior to enactment of the Rules of Civil Evidence. Said cases stand for the proposition that although public records are admissible as an exception to the hearsay rule, the contents of such records, which may include ex parte statements, hearsay, conclusions and opinions, are subject to the same rules of evidence respecting relevancy, competency, or materiality as any other evidence. Texas Dep’t of Public Safety v. Nesmith, 559 S.W.2d 443, 447 (Tex.Civ.App.—Corpus Christi 1977, no writ). In the instant case, appellant merely made a generic “hearsay” objection to Defendant’s Exhibit 1. She did not further object that the Trooper’s opinions contained within the document itself may, for example, have been irrelevant (Tex.R. Civ. Evid. 402), or that its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or would be misleading to the jury (Tex.R. Crv. Evid. 403). As such, appellant’s brief addresses issues which do not comport with the objection raised before the trial court. Said issues are therefore waived for appellate review. See Estate of Veale v. Teledyne Indus., 899 S.W.2d 239, 242-243 (Tex.App.—Houston [14th Dist.] 1995, writ denied). Point of error two is overruled.

Finally, appellant’s point of error three contends that the trial court erred in refusing to permit plaintiff, Mary Sciarrilla, to impeach Trooper Young’s credibility through testimony regarding the disposition of Mary Sciarrilla’s traffic citation.

The accident report prepared by Trooper Young was admitted into evidence following redaction. The portion pertaining to Sciar-rilla’s receiving a traffic citation was removed. At no time during Trooper Young’s testimony did he state that Sciarrilla received a traffic citation nor was Trooper Young asked such question. The only testimony regarding a traffic citation was presented during a bill of exception outside the presence of the jury.

It is plaintiffs contention that she should have been allowed to admit evidence that she received a traffic citation and ultimately show that a subsequent trial in justice court resulted in a finding that Sciarrilla was not guilty. Appellant contends that such evidence is admissible to “impeach” the testimony and credibility of Trooper Young.

Rules 607 through 610, and Rule 613 of the Texas Rules of Civil Evidence speak to witness impeachment. We fail to see how appellant’s tender qualifies under the stated rules. There is no written transcript of the justice court proceeding nor is there any allegation, contention or proof that Trooper Young made any statements which were untruthful or that he made any inconsistent statements. There is nothing about Trooper Young’s prior testimony in justice court which could be used for impeachment purposes unless Young made an untruthful statement or an inconsistent statement. Appellant further contends that being found “not guilty” in justice court is evidence that Trooper Young’s testimony in that court was not credible. The mere fact that a juxy rendered a “not guilty” verdict in no way shows or proves that Trooper Young was shown to be non-credible. We find appellant’s argument as to why evidence of the justice court proceedings should be admitted into evidence to be without merit and groundless. The trial court properly excluded this evidence from the jury. Appellant’s point of error three is overruled and the trial court’s judgment is affirmed.

AFFIRMED.