DeLeon v. Louder

• Decision Date: 31 December 1987
• Docket Number: No. 07-87-0007-CV,07-87-0007-CV
• Citation: 743 S.W.2d 357
• Parties: Andres DeLEON and Rachel DeLeon, Individually and as Next Friend of Dana DeLeon, Appellants, v. David LOUDER, Appellee.
• Court: Texas Court of Appeals

Page 357

743 S.W.2d 357

Andres DeLEON and Rachel DeLeon, Individually and as Next Friend of Dana DeLeon, Appellants, v. David LOUDER, Appellee.

No. 07-87-0007-CV.

Court of Appeals of Texas Amarillo.

Dec. 31, 1987.

Rehearing Denied Jan. 26, 1988.

Donald M. Hunt, Carr Evans Fouts & Hunt, Lubbock, for appellee.

Carlton McLarty, McLarty & McLarty, Amarillo, for appellants.

Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.

REYNOLDS, Chief Justice.

Andres DeLeon and Rachel DeLeon, individually and as next friend of their child, Dana DeLeon, sought to recover damages from David Louder as the result of a collision between an automobile driven by Louder and one driven by Rachel DeLeon. Accepting jury findings that negligence on the part of both Louder and Rachel DeLeon caused the collision, and that fault was attributable 15% to Louder and 85% to Rachel DeLeon, the court rendered a take-nothing judgment.

This appeal by the DeLeons requires us to determine, conformable to their points of error, whether the trial court erred in (1) overruling their motion for mistrial when Department of Public Safety Trooper Heckerman testified that Rachel DeLeon got a citation, (2) overruling objections to the qualifications of Trooper Heckerman as an expert witness on the cause of the collision, and (3) overruling objections to Trooper Heckerman's testimony concerning a legal conclusion. We will overrule the second point, sustain the first and third points, reverse the judgment, and remand the cause.

Louder was driving his automobile north on a paved farm road at about sixty miles per hour as Rachel DeLeon, operating her automobile with the child, Dana, as a passenger, approached the farm road on an intersecting dirt road. Rachel DeLeon stopped at a yield sign at the intersection, and turned onto the paved road in front of Louder, who had slowed to avoid hitting pheasant crossing the road. When Louder looked up and saw the DeLeon automobile in front of him, he honked and turned his automobile to the left; however, the right front fender of his automobile collided with the left rear of the DeLeon automobile.

The accident was investigated by Texas Department of Public Safety Trooper Robert Heckerman, who was called as a witness by Louder. It was developed that Heckerman spent six years with the Department, during which he attended an eighteen week recruit school. Thereafter, he attended in-service and related schools to keep up to date on laws and matters pertaining to his job. He had accident reconstruction training and taught accident investigation at the United States Air Force Academy for one year. He investigates thirty to fifty accidents annually.

Heckerman testified that in investigating the accident, he took measurements and determined the point of impact was anywhere from 100 to 150 feet north of the intersection. He observed skidmarks left by the Louder vehicle going slightly toward the center of the roadway.

When Heckerman was asked if, based upon his training, teaching, investigative experience and his investigation of this accident, he had an opinion as to the factor contributing to the accident, the DeLeons objected on the ground that he was not qualified. The court overruled the objection, and Heckerman gave his opinion that the DeLeon vehicle failed to yield the right-of-way to the Louder vehicle.

The court's ruling, but not the opinion itself, is assigned as error by the DeLeons with their second point of error. Although there are no definite guidelines for ascertaining whether a witness possesses the expertise necessary to be permitted to express an opinion about a matter, Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.), it is accepted that one who, by knowledge, skill, experience, training, or education, has specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue may express an opinion about the matter. Tex.R.Civ.Evid. 702; Adams v. Smith, 479 S.W.2d 390, 393 (Tex.Civ.App.--Amarillo 1972, no writ). The trial court is vested with broad discretion to determine whether a particular witness is qualified to testify as an expert, and the court's determination will not be disturbed on appeal in the absence of a showing that the court clearly abused its discretion. Rogers v. Gonzales, supra; Adams v. Smith, supra.

In support of their point, the DeLeons contend that Heckerman's qualifications are strikingly similar to those of the state trooper whose testimony was excluded in Clark v. Cotten, 573 S.W.2d 886 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.). The Clark court affirmed the trial court's exclusion of the offered testimony of the trooper--who was shown to have been with the Department for eight and one-half years, had received seventeen weeks of training, and had investigated 350 accidents--on the reasoning that he was not qualified to opine the ultimate cause of the accident. Id. at 888.

Not only was Trooper Heckerman shown to be far better qualified than the Clark trooper by reason of his accident investigation training and education, but the opinion sought from him was not one of the ultimate cause of the Louder-DeLeon collision. Qualifications similar to those of Heckerman, coupled with the details of the investigation of the collision, have been held sufficient for the officer to express an opinion on a fact bearing on the determination of an ultimate issue in the cause. Adams v. Smith, supra, at 396. Accord, Rogers v. Gonzales, supra, at 512-14. We, therefore, perceive no abuse of discretion in the court's ruling. The second point of error is overruled.

Pursuant to a motion in limine, it was agreed that there would be no mention of a traffic citation. However, when during Trooper Heckerman's cross-examination it was revealed that he had lost his notes concerning the accident occurring over two years ago, he was asked:

Over two years? How is it that you remember that those skidmarks were a 100 to 150 feet, or do you remember, or are you making an estimate?

Heckerman responded:

No, I remember it was right in that general area on the skidmarks because I laid out a nomograph for Ms. DeLeon, to show her that he was going a minimum of maybe 56, 57 miles an hour, somewhere in that area. I pulled a nomograph out because she couldn't understand why she got the citation.

The DeLeons' motion for a mistrial, predicated on the ineffectiveness of an instruction to disregard the statement regarding the citation, was overruled, but the court did instruct the jury to "not consider for any purpose in this case the volunteered statement of the witness made just now concerning any citation issued at the time of the collision in question."

The overruling of the mistrial motion is the DeLeons' first point contention of reversible error, it being their position that the testimony of a citation being given to Rachel DeLeon was so highly prejudicial that the court's instruction was not sufficient to remove the taint from the jury. As a contrary position, Louder submits that there was not reversible error for at least three reasons, viz., (1) the complained of testimony was an invited response, (2) the court instructed the jury to disregard the statement, and (3) the DeLeons have not demonstrated that a different verdict would have been rendered except for the questioned evidence.

At the outset, we cannot agree that the citation statement was an invited response. Obviously, the question, which had been fully answered before the statement of the citation was made, did not call for that response, which the court correctly characterized as a "volunteered statement." But more than that, evidence that a party to an automobile collision was given a citation by an officer is not only improper for any purpose, Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277, 281 (1958), but it is inadmissible in a civil suit growing out of the same incident. Isaacs v. Plains Transport Company, 367 S.W.2d 152, 153 (Tex.1963).

Then, the critical determination is whether the improper and inadmissible statement, which the jury was instructed not to consider, was reasonably calculated to cause and probably did cause...