Tot Thi Huynh v. R. Warehousing & Port Services, Inc.

973 S.W.2d 375, 1998 Tex. App. LEXIS 4148, 1998 WL 414499
CourtCourt of Appeals of Texas
DecidedJune 26, 1998
DocketNo. 12-97-00249-CV
StatusPublished
Cited by3 cases

This text of 973 S.W.2d 375 (Tot Thi Huynh v. R. Warehousing & Port Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tot Thi Huynh v. R. Warehousing & Port Services, Inc., 973 S.W.2d 375, 1998 Tex. App. LEXIS 4148, 1998 WL 414499 (Tex. Ct. App. 1998).

Opinion

HOLCOMB, Justice.

This appeal involves the single issue of whether the trial court abused its discretion in excluding evidence. The proffered but excluded evidence was testimony that a truck driver failed to take a drag test when requested to do so by his employer after he was involved in the accident made the basis of this suit. We will affirm.

Appellant, Tot Thi Huynh (“Huynh”), brought suit against R. Warehousing & Port Services, Inc., R. Warehousing & Port Services, Inc. d/b/a Woodard Transportation, Nicholas B. Thompson, Richardson Steel Yard, Inc., Richway Cartage, Inc. and Robin International Transport, Inc., Appellees. In her petition, Huynh alleged damages for injuries she sustained when her vehicle collided with an eighteen-wheeler owned by R. Warehousing & Port Services, Inc. and driven by their driver Nicholas B. Thompson (“Thompson”).1 Specifically, Huynh was driving her Hyundai automobile when she was involved in an accident with Thompson near the intersection of 610 Loop and IH-10 in Houston. Exactly how the accident occurred and who was negligent was contested at trial. The jury found Appellees 60% at fault, Huynh 40% at fault, and R. Warehousing not guilty of negligent entrustment. Based on the jury’s finding, the court entered judgment for Huynh in the amount of $55,636.89 against R. Warehousing under the doctrine of respondent superior.

The record reflects that Thompson had been convicted of felony possession of crack cocaine in 1989, for which he received two years’ probation. This conviction was admitted by Thompson and referred to on numerous occasions by Huynh during the trial. Several times during the trial, Huynh attempted to show that Thompson had been directed by his supervisor to give a drag test after the accident and that he had not done so. This evidence was excluded by the trial court after an objection that it was not relevant, but if relevant, highly prejudicial. The court concluded that “the probative value of offering it for gross negligence is outweighed by the prejudicial effect that it may have on the jury in terms of determining or implicating that somehow or another he was under the influence of drugs at the time of the accident.”

Huynh contends that the federal motor safety regulations require a driver to submit to drug testing when required by his employer. Section 391.99 of the Code of Federal Regulations regarding reasonable cause testing requirements states the following:

(a) A motor carrier shall require a driver to be tested, upon reasonable cause, for the use of controlled substances.
(b) A driver shall submit to testing, upon reasonable cause, for the use of controlled substances when requested to do so by the motor carrier.
(c) The conduct must be witnessed by at least two supervisors or company officials, if feasible. If not feasible, only one supervisor or company official need witness the conduct. The witness of
[377]*377witnesses must have received training in the identification of actions, appearance, or conduct of a commercial motor vehicle driver which are indicative of the use of a controlled substance, (emphasis ours)

49 C.F.R. § 391.99(b) (1997). Huynh claims that Thompson was directed to take such a test after the accident and he refused to do so. She proffered the alleged drug test refusal through the testimony of Ronald Daigle (“Daigle”), a former safety inspector for Ap-pellee. Daigle stated that he remembered seeing, after the accident, a written request to Thompson that he submit to a drug test by Dr. Gonzales, a doctor who performed Appel-lee’s drug tests. As far as he knew, Thompson had not complied with the request. Dai-gle admitted that he never spoke personally to Thompson about it, however. Additionally, we have not been directed to the location in the record of Thompson’s refusal or the reason for his refusal.

Huynh claims that evidence of Thompson’s refusal was admissible under Rules 401 and 402 of the Texas Rules of Civil Evidence to show his competency as a truck driver, credibility, state of mind, and that Appellee was negligent in entrusting the track to this driver. We do not agree. Rule 401 provides that “relevant evidence [is any evidence that has] the tendency to make the existence of any fact that is of consequence to the determination of the action more probable ... than it would be without the evidence.” TEX. R. CIV. EVID. 401. Similarly, Rule 402 states that “all relevant evidence is admissible....” TEX. R. CIV. EVID. 402. However, Rule 403 acts as a brake when it provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. CIV. EVID.-403.

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). A trial court abuses its discretion when it acts without regard for any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). In other words, the test is whether the court’s action was arbitrary or unreasonable. Id, at 242; Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 532 (Tex.App.—Tyler 1992, writ denied). Reviewing evidentiary rulings involves a two-step analysis. Hur v. City of Mesquite, 893 S.W.2d 227, 234 (Tex.App.—Amarillo 1995, writ denied). To obtain reversal of a judgment based upon error of the trial court in admission or exclusion of evidence, the following must be shown: (1) that the trial court did in fact commit error; and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); TEX. R. APP. P. 44.1. The Texas Supreme Court has recognized that it is impossible to prescribe a specific test for making the latter determination, and calls it a “judgment call entrusted to the sound discretion and good senses of the reviewing court.” Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex.1980). This judgment call must be made by an evaluation of the entire case. Id. A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. City of Brownsville, 897 S.W.2d at 753-54.

In regard to Huynh’s argument that the evidence went to Thompson’s credibility, the court could have determined that the excluded evidence was not admissible to impeach Thompson’s credibility in light of Rule 608(b).

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973 S.W.2d 375, 1998 Tex. App. LEXIS 4148, 1998 WL 414499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tot-thi-huynh-v-r-warehousing-port-services-inc-texapp-1998.