Graham v. Scott, 01-16-00616-CV
| Decision Date | 17 August 2017 |
| Docket Number | NO. 01-16-00616-CV,01-16-00616-CV |
| Citation | 547 S.W.3d 245 |
| Parties | Algarie GRAHAM, Appellant v. James SCOTT; Rohini Leasing, LLC, and Texas Concrete Enterprise Ready Mix, Inc., Appellee |
| Court | Texas Court of Appeals |
Joseph Jones, Peter M. Kelly, John D. Sloan Jr., Carson Runge, for Appellant.
Jack McKinley, Houston, Robert L. Ramey, for Appellee.
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Seventy-six-year-old plaintiff-appellant Algarie Graham was struck by an 18-wheeler truck. Graham sued to recover for his injuries, and the jury returned a take-nothing judgment in favor of the defendant-appellees James Scott (the driver) and Texas Concrete Enterprise Ready Mix (Scott’s employer). On appeal, Graham argues that the trial court abused its discretion by overruling his hearsay objection to admission of a witness’s statement in the police report and that its admission was reversible error. Concluding that Graham has not established reversible error, we affirm.
It is undisputed that Scott struck Graham with a Texas Concrete truck on March 7, 2014 at the intersection of Homestead Road and Hwy 610. At trial, however, the parties presented different versions of how that accident happened. Graham and Scott testified, but there were no third-party witnesses to the accident—only witnesses who could describe what they saw before and immediately after.
Scott testified that, on the morning of March 7, 2014, he had just picked up a load of rocks in the 18-wheeler truck he drives for his employer, Texas Concrete, when he headed south on Homestead Road. As he came over a hill, the traffic-signal light he was approaching at Homestead and Hwy 610 was red. Scott saw Graham standing between two telephone poles at the intersection corner on the right side of the road. Just as Scott came to a stop at the intersection, the light turned green. He testified that he came to a "rolling stop"—which he described as meaning he stopped the truck just long enough to change gears—and then began to turn right onto the Hwy 610 frontage road.
It was a wide turn and, as Scott brought his truck and trailer into the right-hand lane on the feeder road, he saw "people waving and yelling and all that." He pulled over, put his emergency blinkers on, walked behind his trailer, and saw Graham lying on the ground. Graham was on the feeder road about three or four feet behind Scott’s trailer. Scott testified that he had not seen Graham enter the road, and that Graham was not in the crosswalk when Scott found him in the street after Graham was hit. He also stated that he had a clear view of the crosswalk in front of his truck because it has a sloped hood.
Graham testified that, on the morning of March 7, 2014, he was walking to the bus stop on Homestead so he could take the bus to the VA Hospital. He had taken the same route many times. He was not rushing, as he was well ahead of schedule. His route took him south down Homestead, and then across Homestead to the bus stop on the other side of Homestead at the intersection of Hwy 610.
The traffic light directing southbound Homestead traffic was green as Graham was walking, and turned red just before he reached the intersection with Hwy 610. Graham saw Scott’s Texas Concrete truck stopped at the intersection with the other traffic. Graham testified that he stepped off the curb into the crosswalk and in front of the stopped truck, and the truck "took off and knocked me down." He clearly remembers that Scott’s traffic signal was still red, and that the truck took off quickly into a right-hand turn while he was in front of it. He did not look for a cross-walk signal because he assumed if the southbound traffic was stopped by a red light, it was safe to cross.
Graham described his memory of what occurred after that as "hazy." He recalls feeling his leg get hit, but did not feel pain at the time, even though it was broken. He testified that he was hit by the front driver-side of the truck near the headlamp. Graham also testified that he did not know which tire ran over him, but speculated that it must have been the front driver-side tire. Graham recalls trying to get back to the edge of the street, but a police officer told him to not move until an ambulance arrived. He was then transported to the hospital, and his leg was operated on the following day.
Leroy Coleman was at a Shell gas station on the corner of Homestead and Hwy 610 at the time of the accident. It was about 7:30 a.m., during morning rush hour. He testified that traffic on Homestead was heavy and continuous. Coleman saw Scott’s truck moving south on Homestead and come to a stop at a red traffic light when it reached the intersection at Hwy 610. The light turned green a few seconds later, and Coleman saw the truck start to turn right. He did not see Scott’s face or which way Scott was looking as he began to turn. Coleman had an unobstructed view of the crosswalk, but never saw anyone in the crosswalk in front of the truck, and he did not see Graham crossing the road.
Coleman testified that he did not see the truck strike Graham, but heard a commotion after the trailer "was in a turning position, turning." Coleman then heard Graham screaming and moving towards him. When Coleman first saw Graham, Graham was behind the trailer, on Homestead, and the trailer was still midway into its turn. Graham was "pretty close" to the crosswalk when Coleman saw him. Several people ran to Graham’s assistance. It looked to Coleman like Graham was "trying to take a shortcut."
Dr. Ivey, an orthopedic surgeon with LBJ Hospital, testified to the severity of Graham’s injuries, his surgery and treatment, and about Graham’s recovery. The tibia in Graham’s right leg was broken
into several pieces. His left foot was cut, covered in bruises, and had broken bones that had penetrated through the skin. When he was discharged from LBJ about a month after the accident, Graham transferred to a nursing home to regain mobility. He could not walk and needed physical and occupational therapy to build up his strength and ability to walk, and surgical services to help with remaining open sores on his leg and foot. After two months, Graham was transferred to a rehabilitation hospital.
Graham’s medical records contain a history and description of the accident and Graham’s injuries as reported by Graham. When he arrived at LBJ by ambulance, the records reflect that Graham told the doctors a truck ran a red light and turned, hitting him on his left side. Elsewhere in the medical records reflect Graham told a resident that he "doesn't remember exactly how he got hit."
Officer Tabor with the Houston Police Department testified that he arrived on the scene a few minutes after the accident. When he arrived, there was a Harris County officer—either with the constable’s office or sheriff’s department—already on the scene and parked in the Shell parking lot. Tabor testified that he recalled Graham was injured with foot or leg trauma. Tabor called an ambulance and took a statement from Scott. When he testified at trial, Tabor had little recollection of what anyone told him, and his written report only contained what Scott and Coleman had told him.
Tabor testified that Scott told him that he had not seen Graham prior to hitting him and that the first time he saw Graham was when he looked in his mirror and saw him in the road. He testified that Coleman told him that Graham was on the Hwy 610 frontage road when Coleman first saw him.
Office Tabor said he did not recall where Graham was when he arrived on the scene, but believed that Graham was already in the Shell parking lot. Graham was standing, but Tabor did not remember if it was with assistance. Tabor testified Graham told him that he had a green light for a pedestrian walkway.
Because Officer Tabor could not recall at trial most of what Scott had told him, the parties agreed to admit into evidence the part of Tabor’s report containing a three-sentence narrative about what Scott told him on March 7, 2014:
I was turning right on the loop from Homestead and I had a green light. I looked behind me after I made the turn and saw a man down in the street. I then stopped to check on him and he told me I hit him.
Graham objected, on hearsay grounds, to the remainder of the Tabor’s report being introduced into evidence, including Tabor’s notes about what Coleman told him, and Tabor’s accident diagram and conclusion about the point of impact. The trial court overruled the objection as to Coleman’s statement. The introduced report contains the following statement Tabor attributed to Coleman:
I saw the guy trying to wave down the truck like he was trying to get a ride and after the truck passed, the man stepped into traffic and was hit with the back wheel.
The trial court excluded the remainder of the accident report. The jury returned a take-nothing verdict in the appellees' favor. Graham contends on appeal that the trial court admitting of Coleman’s hearsay statement in Tabor’s police report was reversible error.
We review a trial court’s rulings on the admission or exclusion of evidence under an abuse-of-discretion standard. Broders v. Heise , 924 S.W.2d 148, 151–52 (Tex. 1996). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam).
A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. TEX. R. APP. P. 44.1 ; Nissan Motor Co. Ltd. v. Armstrong , 145 S.W.3d 131, 144 (Tex. 2004) ; City of Brownsville v....
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Salazar v. Payan
...judgment and requests reversal. We disagree. Standard of Review We review an evidentiary ruling for an abuse of discretion. Graham v. Scott, 547 S.W.3d 245, 249 (Tex. App.-Houston [1st Dist.] 2017, no pet.). A trial court abuses its discretion when its ruling on the admission or exclusion o......