1... See Tex. R. App. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-257-CV

ANANN ARABIE APPELLANT

V.

CRETE CARRIER CORPORATION APPELLEE

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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MEMORANDUM OPINION1

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Appellant Anann Arabie appeals the trial court’s judgment that she take

nothing from Appellee Crete Carrier Corporation. In one issue, Arabie

complains that the trial court erred by not allowing her to comment on the

negative presumption created by Crete’s not calling a witness within its control.

We will affirm.
2

This case arises out of an alleged motor vehicle accident that occurred on

May 25, 2006, in Gainesville, Texas. Arabie claims that she was the victim of

a hit-and-run accident involving a vehicle owned by Crete and operated by

Crete’s employee. Crete denied liability and also denied that its vehicle was

involved in any accident with Arabie. The case was tried before a jury. 

Because this court has only a partial record of the proceedings below, it

is unclear how many witnesses Crete called or how much, if any, evidence

Crete put on regarding Crete’s position that it was neither liable nor involved in

the accident. But during Arabie’s closing argument to the jury, the following

exchange took place:

[ARABIE’S COUNSEL]: Now, let's talk about the burden of

proof, preponderance of the evidence. Is it more likely than not

that [Arabie] was rear-ended by a Crete Carrier vehicle who

ignored the rules of the road, struck her and fled the scene? More

likely than not.

We have the obligation to prove the case, folks, and [Arabie]

sat up in the witness stand and described everything to you that

happened. We have more than met the burden of telling you who's

responsible for this.

Now, [Crete’s counsel] told you yesterday we don't have an

obligation to prove anything as the Defense, and that's true. They

don't. [Crete’s counsel] even asked you is anybody going to make

them disprove what it is that we're saying?

Now, not everybody -- I watched your responses. Not

everybody agreed to that. Now, she stood up here earlier today

and in her opening statement she said two wrongs don't make a
3

right. The first one is obvious. [Arabie] was rear-ended. The

second wrong, I guess she's implying, is that Crete Carrier didn't

do it; that it would be wrong to hold them accountable for what

happened to [Arabie]. I guess that's implying that they're

somehow being incorrectly or falsely accused of doing this.

Ladies and gentlemen, if we're falsely accused of something,

what do most innocent people do?

[CRETE’S COUNSEL]: Your Honor, I'm going to object.

That's improper argument shifting the burden of proof.

THE COURT: Sustained.

[ARABIE’S COUNSEL]: Your Honor, may we approach on

that?

THE COURT: Go ahead.

The exchange continued at the bench outside the hearing of the jury:

[ARABIE’S COUNSEL]: Your Honor, I'm allowed to comment

on the fact that they chose -- that they chose not to testify, not to

offer any evidence. If you look at the case of John Deer[e]

Company versus May, and subsequent case law I have for the

Judge, I believe you're certainly allowed to do that.

[CRETE’S COUNSEL]: He never called my representative. He

never took their deposition. He should have done something. But

it's his burden.

[ARABIE’S COUNSEL]: Judge, case law. Judge, the case

law clearly says that I'm allowed to comment.

THE COURT: Say that again.

[ARABIE’S COUNSEL]: I believe I'm allowed to comment on

the jury witnesses or say no evidence shows that the evidence is

produced.
4

THE COURT: You're not allowed to say that they should

have the burden. I'm sustaining the objection.

After the bench hearing, Arabie’s counsel next addressed the jury with

this statement:

[ARABIE’S COUNSEL]: Ladies and gentlemen, the burden of

proof in this case is on us. And Nann Arabie described in particular

exactly what happened, how it happened, and gave all the

information that she could to the 911 operator as this was

happening. She gave the information to Officer Mathes as she was

under the stress of the -- once the stress of the event set in, she

could give him some information, but even if he testified that she

was nervous and shook up. And witnesses who are nervous and

shook up sometimes have trouble. That's what happened in this

case, folks. That's exactly what happened in this case.

The jury ultimately returned a take-nothing verdict in Crete’s favor, and

the trial court signed its judgment on June 11, 2008. This appeal followed. 

In her sole issue, Arabie complains that the trial court erred in not

allowing her to comment on the negative presumption created by Crete’s not

calling a witness. See Texas Power & Light Co. v. Walker, 559 S.W.2d 403,

406 (Tex. Civ. App.—Texarkana 1977, no writ) (holding unfavorable inferences

may be drawn from the failure of a party to call witnesses who stand in some

special relationship to the party). Arabie argues that Crete failed to call a

corporate representative who was present at trial and listed as a witness.

Thus, Arabie argues, she should have been allowed to comment upon the

unfavorable inference created by Crete’s failure to call a witness under its
5

control. See id. Crete counters that, among other things, Arabie has waived

her argument because she failed to specifically object to not being allowed to

comment on Crete’s alleged failure to call a witness under its control. We

agree with Crete.

To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint

is waived. See Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 195

(Tex. App.—Fort Worth 2006, no pet.); see also Bushell v. Dean, 803 S.W.2d

711, 712 (Tex. 1991) (op. on reh'g).

Based on our review of the record, we are unable to conclude that Arabie

ever objected to not being allowed to comment on Crete’s alleged failure to call

a witness under its control. Arabie does not cite to any place in the record

where she objected to the trial court not allowing her to comment on Crete’s

alleged failure. The exchange recited above is Arabie’s only objection found in

the limited record that she filed. But this exchange reveals to us that Arabie,

Crete, and the trial court all believed that the objection was related to Arabie’s

attempts to shift the burden of proof to Crete. Arabie’s complaint to the trial
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court that she should be “allowed to comment on the fact that [Crete] chose --

that [Crete] chose not to testify, not to offer any evidence” relates only loosely

at best to her argument now on appeal that the trial court erred by not allowing

her to comment on the negative presumption created by Crete’s not calling a

witness allegedly under its control. Thus, Arabie’s objection to the trial court

was not specific enough to inform the trial court of the basis of the argument

she now raises on appeal so as to afford the trial court opportunity to rule on

it. See Tex. R. App. P. 33.1(a). Thus, we hold that Arabie has waived the

error, if any, of which she now complains. Arabie’s sole issue is overruled.

Having overruled Arabie’s sole issue, we affirm the trial court’s judgment.

BILL MEIER

JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

MCCOY, J. filed a concurring opinion.

DELIVERED: May 14, 2009
1... See Tex. R. App. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-257-CV

ANANN ARABIE APPELLANT

V.

CRETE CARRIER CORPORATION APPELLEE

------------

FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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CONCURRING MEMORANDUM OPINION1

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I concur in the result reached by the majority in this case in affirming the

trial court’s judgment but diverge from the path utilized to reach that result. I

believe that Arabie’s complaint was preserved for our review. I would hold that

considering Arabie’s counsel’s comments to the trial court regarding Crete’s

failure to call witnesses or offer evidence, along with his specific reference to
2

John Deere Company v. May, 773 S.W.2d 369 (Tex. App.—Waco 1989, writ

denied), Arabie preserved the asserted error for our review. May clearly

references negative presumptions to be made through the failure to call certain

witnesses. Specifically, “[f]ailing to produce evidence within its control or to

call its own officers and employees or John Deere’s field representative raised

a presumption or inference that such evidence and testimony, if produced,

would have been unfavorable to Hyco on the challenged findings.” Id. at 377.

I would then hold, however, that under the appropriate harm analysis, that

error, if any, was harmless on the record before us. See Tex. R. App. P. 44.1.

BOB MCCOY

JUSTICE

DELIVERED: May 14, 2009