Opinion filed April 29, 2016

In The

Eleventh Court of Appeals 

__________

No. 11-12-00295-CV

__________

CHARLES EDWARD ROBINSON, Appellant

V.

AUSTIN WILEY GARCIA, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 24732

M E M O R A N D U M O P I N I O N

This court’s former opinion and judgment dated July 9, 2015, are withdrawn. 

This court’s opinion and judgment dated April 29, 2016, are substituted therefor. 

The motion for partial rehearing filed by Charles Edward Robinson is denied, and 

the motion for rehearing filed by Austin Wiley Garcia is also denied.

Austin Wiley Garcia sued Charles Edward Robinson, Appellant; John S. 

Robinson, Appellant’s father; and Sherry Ann Eaton for negligence in connection 
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with a three-vehicle collision. Garcia nonsuited Appellant’s father, and the trial 

court granted Eaton’s summary judgment motion and severed her from this case. At 

trial, the jury awarded Garcia $1,241,823.83 in damages. The trial court entered a 

final judgment in accordance with the jury’s verdict. Appellant asserts six issues on 

appeal. We reverse and remand for a new trial.

Procedural History

The week before trial, Appellant filed a motion to recuse the trial judge. The 

trial judge referred the motion to the presiding judge of the administrative region. 

The presiding judge denied the motion without a hearing, and the case proceeded to 

trial.

Also prior to trial, the trial court entered an order in relation to a motion in 

limine that Garcia had filed. In the order, the trial court indicated that certain items 

of evidence were not going to be admitted at the trial. During the trial, Appellant 

made offers of proof as to those items of evidence. The trial court responded to the 

offers of proof with a comment that it did not intend to change any pretrial rulings,

and it did not allow the items into evidence during the trial.

Evidence at Trial

Garcia worked for Rent-A-Center (RAC) as a customer account 

representative. As a part of his job, Garcia took care of customer accounts and 

delivered furniture, which involved driving a big box truck and lifting heavy objects.

While on a delivery assignment for RAC, Garcia stopped at an intersection

behind a pickup pulling a trailer. Eaton stopped her Chevrolet Lumina behind 

Garcia. While the vehicles were thus positioned, Appellant drove his pickup into

the back of Eaton’s car and pushed it underneath the back of the RAC box truck 

being driven by Garcia. The box truck moved forward a couple of feet but did not 

strike the pickup or trailer in front of it; Garcia said that he had his foot on the brake.
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Garcia testified that he put the box truck in park, got out, and spoke to Eaton 

and Appellant; everyone said that they were okay. Trooper Douglas Ray Masters 

arrived at the scene about forty-five minutes later, and no one reported any injuries

to him. Garcia told Trooper Masters that he was “perfectly okay.” Garcia drove to 

his last delivery location for that day and delivered a dryer. He then returned to the 

RAC office to complete paperwork about the accident.

Garcia testified that, later that night, he began to feel stiffness in his neck and 

lower back. Garcia also said that he had a radiating pain and a tingling sensation 

down his right leg. The stiffness and pain interrupted his sleep and made it difficult 

for him to walk or sit for long periods of time; he had to have his girlfriend help him 

from his bed. But Garcia did not go to the emergency room at any time after the 

accident and did not go see any medical personnel about his pain until several days 

after the accident. He did, however, report to work.

Garcia went to see Dr. Peck, a chiropractor, who put Garcia on a work 

restriction, and he was not to lift more than ten pounds. Later, Garcia met with other 

chiropractors and orthopedic surgeons, including a specialist in treating neck pain. 

Garcia received massage therapy, heat therapy, ultrasound therapy, and physical 

therapy. He also learned exercises that would help to strengthen his core.

Over the course of time that Garcia saw medical professionals, he had multiple 

MRIs of his neck and of his back. Garcia received prescription pain medication, 

muscle relaxers, and sleeping pills. Doctors gave Garcia several steroid injections 

in his back and one in his neck. Approximately seven months after the accident, 

Dr. David W. Strausser performed surgery on Garcia’s back, but the surgery did not 

alleviate Garcia’s pain. Sometime later, Garcia began to use a cane.

Appellant’s expert witness, Dr. Richard A. Suss, opined that Garcia should 

not have had back surgery. Dr. Strausser and Dr. Stephen Michael Sims, both of 

whom treated Garcia, opined that Garcia would most likely continue to have pain in 
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the future. Dr. Sims also opined that Garcia would continue to take pain medication 

and receive injections but that, if those were not successful, he could get a spinal 

cord stimulator and, if that did not work, could have surgery in the future. 

Dr. Strausser opined that Garcia might have another surgery.

Garcia testified that he would have continued to work at RAC but that he had 

a work restriction and could not do any heavy lifting. Garcia continued to work at 

RAC for six weeks after the accident, but he testified that he could not perform his 

normal daily activities. Although Garcia worked more overtime hours before the 

accident, he continued to work overtime hours after the accident. In December 2007, 

RAC terminated Garcia’s employment when he did not complete and return 

documents that would have kept him on indefinite unpaid leave.

Sometime after his surgery, Garcia got a job at a Pilot Travel Center; he 

worked at a Wendy’s Restaurant that was located in the travel center. A short time 

later, he got a job at a Radio Shack, which paid less than what he had made at RAC. 

Garcia’s economist, Dr. Thomas H. Mayor, testified as to Garcia’s lost earning 

capacity in the past and future and opined about the present value cost of medical 

expenses incurred in the future.

Defense counsel questioned Garcia about the number of jobs he had held prior 

to the RAC job, but the trial court limited cross-examination to questions on length 

of employment and pay rates. Defense counsel also was not allowed to inquire about 

other information in Garcia’s employment and Navy records even though the trial 

court allowed introduction of some of his Navy medical records.

The jury, after a four-day trial, found Appellant negligent and found that his 

negligence proximately caused the accident. The jury awarded Garcia $38,879.83 

for past medical care expenses, $382,720 for future medical care expenses, $149,726 

for past loss of earning capacity, $465,498 for future loss of earning capacity, 

$50,000 for past physical pain, $150,000 for future physical pain, $5,000 for past 
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physical impairment, and nothing for future physical impairment. Appellant filed a 

motion for judgment notwithstanding the verdict, a motion for new trial, and an 

alternative motion for remittitur. The trial court denied all three motions.

Issues Presented

Appellant first challenges the trial court’s exclusion of certain evidence. In 

his second issue, Appellant challenges the jury charge. In his third issue, Appellant

argues that the trial court erred when it denied his motion for new trial in which 

Appellant alleged incurable jury argument. In his fourth issue, Appellant challenges,

on legal and factual sufficiency grounds, the jury’s finding of future medical 

expenses. In his fifth issue, Appellant asserts that the evidence to support the jury’s 

findings of loss of both past and future earning capacity is legally and factually

insufficient. Appellant’s sixth issue is that the trial court erred when it denied his 

motion to recuse.

Analysis

Because legal sufficiency points require a reversal and rendition, if sustained, 

we will discuss those issues first. We will next address two of Appellant’s 

challenges to the exclusion of evidence and then address his final issue on the denial 

by the trial court of his motion to recuse.

A. Standard of Review

In a legal sufficiency review, we review the evidence in a light that tends to 

support the disputed finding and disregard all evidence and inferences to the 

contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We “assess all the 

evidence in the light most favorable to the prevailing party, indulging every 

reasonable inference in favor of the judgment.” City of Austin Police Dep’t v. 

Brown, 96 S.W.3d 588, 593 (Tex. App.—Austin 2002, pet. dism’d) (citing 

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 

1998)). 
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The no-evidence challenge must fail if more than a scintilla of evidence 

supports the challenged finding. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 

735, 739 (Tex. 2003); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 

1999). We may only sustain a legal sufficiency challenge when (1) the record 

discloses a complete absence of a vital fact, (2) the court is barred by rules of law or 

evidence from giving weight to the sole evidence offered to prove a vital fact, (3) the 

sole evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the 

evidence conclusively establishes the opposite of a vital fact. City of Keller v. 

Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” 

and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960)).

B. Issue Four: Future Medical Expenses

Appellant complains that “no evidence” or factually insufficient evidence was 

adduced at trial to support the jury’s finding of future medical expenses. We require 

no precise evidence for a finding of future medical expenses but will uphold the 

jury’s finding as long as more than a scintilla of probative evidence supports it.1 

Strahan v. Davis, 872 S.W.2d 828, 832–33 (Tex. App.—Waco 1994, writ denied). 

“Testimony of a ‘reasonable medical probability’ by a medical expert is not a 

prerequisite to a recovery for future medical expenses.” Id. at 832 (citing Hughett v. 

Dwyre, 624 S.W.2d 401, 405 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.)). Thus, 

a plaintiff may testify as to his own physical health. See City of San Antonio v. Vela, 

762 S.W.2d 314, 321 (Tex. App.—San Antonio 1988, writ denied).

Texas follows the “reasonable probability rule” for future damages for 

personal injuries. Doctor v. Pardue, 186 S.W.3d 4, 20 (Tex. App.—Houston [1st 

Dist.] 2005, pet. denied) (citing Rosenboom Mach. & Tool, Inc. v. Machala, 995 

 

1Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the 

Tenth Court of Appeals to the Eleventh Court of Appeals. Under Rule 41.3 of the Texas Rules of Appellate 

Procedure, we apply the precedent of the Tenth Court of Appeals unless it appears that the Tenth Court of 

Appeals would not be bound by that precedent. TEX. R. APP. P. 41.3.
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S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). “Thus, to 

recover future medical expenses, a plaintiff must show that there is a reasonable 

probability that expenses resulting from the injury will be necessary in the future and 

the reasonable costs of such care.” Id. The jury may determine reasonable 

probability “by consideration of the substance of the testimony . . . and . . . not . . . 

on semantics or on the use by [a] witness of any particular term or phrase.” Ins. Co. 

of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). We consider the immediacy 

of treatment of the plaintiff following the alleged cause of the injury, the breadth and 

scope of past treatment received for the injury and the success of that treatment, the 

plaintiff’s testimony about his injuries, his incurred medical expenses, his medical 

condition at trial, his future prognosis, and any testimony on maximum medical 

improvement. Blankenship v. Mirick, 984 S.W.2d 771, 778–79 (Tex. App.—Waco 

1999, pet. denied); see also Strahan, 872 S.W.2d at 833.

The Waco court has held that the absence of medical expert testimony on 

future medical expenses does not in and of itself result in legal or factual 

insufficiency. Blakenship, 984 S.W.2d at 778; Strahan, 872 S.W.2d at 832. The 

Amarillo Court of Appeals and the San Antonio Court of Appeals agree with the 

proposition applied by the Waco court. See Vela, 762 S.W.2d at 320–21; Hughett, 

624 S.W.2d at 405–06. Contrary to the argument put forth by Appellant, the Dallas 

Court of Appeals has not held otherwise. In Thate, the Dallas court opined that the 

preferred way to prove future medical expenses was through medical professional 

testimony about the kind of services required in the future and the reasonable value 

of those services. Thate v. Tex. & Pac. Ry. Co., 595 S.W.2d 591, 601 (Tex. Civ. 

App.—Dallas 1980, writ dism’d); see also Matbon, Inc. v. Gries, 288 S.W.3d 471, 

485 (Tex. App.—Eastland 2009, no pet.); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 

416, 422 (Tex. App.—Eastland 2006, no pet.). However, the Thate court did not 

take the position that such testimony was required. Thate, 595 S.W.2d at 601. 
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Rather, the court stated that the only requirement was that there be evidence in the 

record as to the reasonable value of past medical services as well as to the probable 

necessity of future medical treatment. Id.

Jury Question No. 2b asked the jury to determine “[m]edical care expenses 

that, in reasonable probability, . . . Garcia will incur in the future.” Both 

Dr. Strausser and Dr. Sims testified that they would base their answers on reasonable 

medical probability. Dr. Strausser testified that Garcia’s lower back pain would

“most likely” continue in the future. Dr. Strausser performed the first surgery, which 

did not resolve Garcia’s pain, but Dr. Strausser did not testify that Garcia would have 

a future surgery, only that he might have a fusion surgery.

Dr. Sims said that he relied on Garcia’s history and integrity for his belief that 

Garcia would have “chronic pain for the rest of his life.” Dr. Sims testified that he 

“would predict [Garcia] would have definitely some sort of treatment in the future; 

and [the chronic pain management, spinal cord stimulator implant, and fusion 

surgery were included in the] range of what that could be.” Dr. Sims told Garcia 

that Garcia was a candidate for a dorsal pain stimulator implant if continued steroid 

injections did not alleviate the pain. Dr. Sims also testified that his plan for Garcia 

included a fusion surgery if he did not respond well to pain medication, injections, 

and the stimulator treatment. Dr. Sims testified that the cost for chronic pain 

management for Garcia, if Garcia filled his prescription and got three injections a 

year, was on the higher end of the $2,000 to $10,000 range. Dr. Sims also testified 

that, if those treatments failed to alleviate Garcia’s pain, a low estimate for the dorsal 

pain stimulator implant would be between $30,000 and $40,000 and that a fusion 

surgery would cost between $50,000 and $100,000.

Dr. Mayor testified that Garcia’s life expectancy was 79.5 years “based on 

U.S. Government statistics.” Garcia was thirty years old at the time of trial. If 

Garcia were to spend $10,000 a year, as the high end of his chronic pain management 
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treatment, from the time of trial to the end of his life, the total would be $465,440, 

according to Dr. Mayor’s present value table. The jury’s award of $382,720 for 

future medical expenses falls within the range outlined by Dr. Sims. All of this 

evidence was some evidence of future medical expenses and is, therefore, legally 

sufficient. Because we are reversing and remanding this case on admissibility-ofevidence issues, we need not address whether the evidence was factually sufficient 

to support the award of future medical expenses. We overrule Issue Four insofar as 

it claims that the evidence was legally insufficient to support the jury’s findings as 

to loss of future medical expenses.

C. Issue Five: Loss of Past and Future Earning Capacity

The amount a plaintiff can recover for loss of earning capacity is the 

difference between the amount of money he was capable of earning before the injury, 

not what he actually earned, and the amount he is capable of earning after the injury. 

Pilgrim’s Pride Corp. v. Cernat, 205 S.W.3d 110, 120 (Tex. App.—Texarkana 2006, 

pet. denied) (citing McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943)); Pilgrim’s 

Pride Corp. v. Smoak, 134 S.W.3d 880, 903 (Tex. App.—Texarkana 2004, pet. 

denied).

1. Assessment of Past and Future Earning Capacity

The factfinder measures earning capacity by “what the worker’s capacity to 

earn a livelihood actually was, even if he or she had never worked in that capacity 

in the past.” Cernat, 205 S.W.3d at 120. The plaintiff must show his capacity to 

work before the injury, an impairment caused by the injury, and the extent of the 

loss of capacity resulting from the impairment. See Smoak, 134 S.W.3d at 903; 

Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 36 (Tex. App.—Tyler 2003, pet. 

denied) (citing Decker v. Latham, 446 S.W.2d 113, 116 (Tex. Civ. App.—El Paso 

1969, writ ref’d n.r.e.)).
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Post-injury earnings are always uncertain, however, “and must be left largely 

to the sound judgment and discretion of the jury. . . . If plaintiff’s earning capacity 

is not totally destroyed, but only impaired, the extent of his loss can best be shown 

by comparing his actual earnings before and after his injury.” McIver, 169 S.W.2d 

at 712. The plaintiff “must prove the amount of such damages with the degree of 

certainty to which it is susceptible.” Bonney v. San Antonio Transit Co., 325 S.W.2d 

117, 121 (Tex. 1959). “[T]he jury should not be left to mere conjecture where facts 

appear to be available upon which the jury could base an intelligent answer.” Id. 

The plaintiff, for example, must ordinarily show the amount of his fixed pay rate or 

salary if he received one. McIver, 169 S.W.2d at 712. The jury must use its 

“common knowledge and experience and sense of justice” to determine lost earning 

capacity. Id. at 713.

2. Loss of Earning Capacity in the Past

The jury awarded Garcia $149,726 for “[l]oss of earning capacity sustained in 

the past.” Garcia was employed at RAC at the time of the accident. Garcia adduced 

evidence that he had worked at RAC before the accident and had suffered an injury 

and was impaired as a result of the accident; he also provided evidence of his actual 

earnings before and after the accident. See Smoak, 134 S.W.3d at 903; Plainview 

Motels, 127 S.W.3d at 36. Garcia presented payroll records from the jobs he held 

from the time of his accident to the time of trial. The payroll records showed that 

Garcia’s current earnings at Radio Shack were about forty-five percent less than 

what he could earn at RAC.

These records and Dr. Mayor’s testimony show that, based on Garcia’s pay 

rate, average hours worked, and fringe benefits, Garcia could have made $179,628 

from the time of the accident until trial if he had remained at RAC. Garcia actually 

made, from the time of the accident to the time of trial, a total of $29,902. What 
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Garcia could have made over this period, had he stayed at RAC, minus what he

actually made equals $149,726.

The court in Smoak held that the economic expert did not err by basing the 

plaintiff’s earning capacity on six weeks of work as a welder because the plaintiff 

said that he was able to perform as a welder before the accident but not after the 

accident. Smoak, 134 S.W.3d 900–01. Garcia, similarly, was only working at RAC 

for a short time before the accident. Garcia asserted that he could not continue to 

work at RAC. Dr. Strausser testified that he did not release Garcia to return to RAC 

after the accident. Defense counsel argued that Garcia’s work history did not support 

a finding that Garcia would have continued to work at RAC long term. Although 

Garcia said that he had no plans to ever leave the job and wanted to keep it “[a]s 

long as possible,” defense counsel argued that Garcia had held most of his jobs for 

only a few months and had never held a job anywhere for more than two years.

The jury knew of Garcia’s capacity to work both before and after the accident;

his sporadic, short-term work history before his RAC job; and his pay rate at RAC 

as compared to his other jobs. See Bonney, 325 S.W.2d at 121. Again, defense 

counsel asserted that Garcia’s employment history did not reflect that he would hold 

any job for a significant period of time; the jury chose to believe Garcia. We hold 

that legally sufficient evidence was adduced at trial to support the jury’s award of 

$149,726 in lost earning capacity in the past.

3. Loss of Earning Capacity in the Future

The jury awarded Garcia $465,498 for “[l]oss of earning capacity that, in 

reasonable probability, . . . Garcia will sustain in the future.” Garcia testified that 

the RAC job was the best job he had ever had. The job required heavy lifting, and 

Garcia showed that, after the accident, he was on a work restriction from heavy

lifting.
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Garcia showed that he had worked at RAC before the accident and that an 

injury occurred as a result of the accident; he also provided evidence of his actual 

earnings before and after the accident. See Smoak, 134 S.W.3d at 903; Plainview 

Motels, 127 S.W.3d at 36. Garcia submitted payroll records from Radio Shack, 

which showed that Garcia’s current earnings were about forty-five percent less than 

what he could earn at RAC.

Dr. Mayor predicted Garcia’s work-life expectancy, from the time of the 

accident, to be an additional 34.2 years based on general statistical information 

provided by the government. Dr. Mayor’s table shows the present value calculation 

of Garcia’s earnings from the time of trial through the end of his work-life 

expectancy. Garcia’s total lost wages, if the accident had completely incapacitated 

him from the time of trial to the end of his expected work life, would be $1,034,441, 

and forty-five percent of that would be $465,498. Unlike Bonney, evidence of 

Garcia’s “earnings or a monetary measure of his earning capacity prior to the injury” 

exists in the form of his payroll records from RAC. See Bonney, 325 S.W.2d at 121. 

And unlike Millett, Dr. Mayor did not “hypothesize how much [Garcia] could have 

earned had he [had another job that paid more money].” See Loyd Elec. Co. v. 

Millett, 767 S.W.2d 476, 483 (Tex. App.—San Antonio 1989, no writ). More than 

a scintilla of evidence supports the jury’s finding on future loss of earning capacity. 

Because we are reversing and remanding this case on admissibility-of-evidence 

issues, we need not address whether the evidence was factually sufficient to support 

the award of either past or future loss of earning capacity. We overrule Issue Five 

insofar as it claims that the evidence was legally insufficient to support the jury’s 

findings as to loss of past and future earning capacity.

D. Issue One: Exclusion of Evidence

Although there are several evidentiary issues that Appellant questions in his 

first issue, we will address only two of them. Those two instances deal with (1) the 
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exclusion of some of Garcia’s Navy documents and employment history records and 

(2) the exclusion of some of Dr. Strausser’s testimony.

1. Standard of Review

We review Appellant’s evidentiary complaints under an abuse of discretion 

standard. See Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 

2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable 

manner without reference to any guiding rules or principles. Walker v. Gutierrez, 

111 S.W.3d 56, 62 (Tex. 2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 

238, 241–42 (Tex. 1985). We will reverse only if the trial court’s decision 

constituted an abuse of discretion and if harm occurred and probably resulted in an 

improper judgment. TEX. R. APP. P. 44.1(a); see Wal-Mart Stores, Inc. v. Johnson, 

106 S.W.3d 718, 723 (Tex. 2003); Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 

756 (Tex. 1995). We review the entire record to determine whether an error is 

harmful. Interstate Northborough, 66 S.W.3d at 220.

2. Garcia’s Navy Documents and Other Employment Records

Appellant challenges the trial court’s exclusion of some of Garcia’s Navy 

records. He also challenges the exclusion of some of Garcia’s work history and 

employee evaluation information from Garcia’s jobs at Jack in the Box, Landmark 

Industries, and other places. Appellant attempted to use this evidence to impeach 

Garcia’s credibility. The trial court refused to admit evidence from Garcia’s Navy 

records, except specific Navy medical records, and refused to allow crossexamination of Garcia on the alleged, “unadjudicated” reasons why he left the Navy 

or why he was terminated from other civilian employment.

Garcia argues on appeal and in his motion for rehearing that the evidence from 

his Navy service and other civilian employment is inadmissible character evidence 
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under the Texas Rules of Evidence.2 At trial, Garcia argued extreme prejudice, 

under Rule 403, because the evidence would create a “trial within a trial.” On appeal 

and in his motion for rehearing, Garcia argued additionally that Rules 608 and 609 

required the trial court to exclude the “unadjudicated” reasons why Garcia left 

certain employment. The issue before us is whether Garcia’s trial testimony 

provided Appellant with the opportunity to impeach Garcia.

Impeachment was the primary purpose for which Appellant sought to use 

evidence of Garcia’s Navy and employment records. Generally, a party is not 

entitled to impeach a witness on a collateral matter. Floyd v. Fid. Union Cas. Co., 

39 S.W.2d 1091, 1093 (Tex. Comm’n App. 1931). Evidence that may otherwise be 

inadmissible, however, may become admissible when a party creates a false or 

misleading impression with the jury. See Bay Area Healthcare Grp., Ltd. v. 

McShane, 239 S.W.3d 231, 234 (Tex. 2007). Such evidence invites the other side 

to respond to correct the misleading impression. Caffe Ribs, Inc. v. State, No. 14-

0193, 2016 WL 1267677, at *6 (Tex. Apr. 11, 2016) (where State exploited 

exclusion of evidence and left impression with jury that a party was not committed 

to environmental cleanup of a property, that party was allowed to introduce evidence 

that delay in cleanup was partly the result of a State-imposed project).

A party may also be impeached by showing statements made by him that are 

contradictory or inconsistent with his testimony given in the pending case. Huff v. 

Harrell, 941 S.W.2d 230, 239 (Tex. App.—Corpus Christi 1996, writ denied) (citing 

Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 252 (Tex. App.—Beaumont 

1994, no writ)). “The general theory of impeachment by proof of a prior inconsistent 

statement by the same witness is to show that he has a capacity for making errors.”

 

2Garcia also argued that Rule 404(b) was applicable and precluded admission of the evidence. 

Rule 404(b) provides in part that evidence of prior bad acts is generally not admissible to show conformity 

with the acts alleged in the present case, but such evidence may be admissible for another enumerated 

purpose. TEX. R. EVID. 404(b).
15

Cirilo v. Cook Paint & Varnish Co., 476 S.W.2d 742, 748 (Tex. Civ. App.—Houston 

[1st Dist.] 1972, writ ref’d n.r.e.). From his error in one matter, it may be inferred 

that he has erred on other matters. Id. And if a previous statement and present 

testimony cannot both be true, such as when they are contradictory, then one of them 

must be erroneous. Id. Prior inconsistent statements contained in depositions are 

admissible in evidence to impeach a witness. Spring Branch Bank v. Wright, 404 

S.W.2d 659, 664 (Tex. Civ. App.—Houston 1966, writ ref’d n.r.e.). “The statements 

must be inconsistent in fact and directed to the same occasion.” Id.

Garcia testified in his deposition that it was a “mutual agreement” between 

the Navy and him for him to leave the service. In his deposition, Garcia represented 

that there were no “charges” and that there was nothing on his discharge documents 

to indicate that his discharge was “other than honorable.” Garcia also testified in his 

deposition that he did not “agree with things” and did not “want to be in the Navy.” 

He also represented that he had gotten into trouble for “underage drinking” and for 

“unauthorized absence” but that it was just “rowdy stuff”; he denied that he had been

“kicked out.” When asked if there was anything else, he testified, under oath, “No,

sir.” In response to a pretrial motion, the trial court limited the scope of crossexamination on Garcia’s Navy records on these matters.

At trial, Garcia answered “yes” when asked to confirm that he “didn’t like”

the Navy and “eventually mustered out of the Navy” after two years.3 He answered 

“yes” when asked if he “chose to leave the Navy” (emphasis added). When asked if 

he “did . . . things” while he was “in the Navy” that he was “[not] proud of,” Garcia 

answered, “Yes.” He also answered “yes” when asked if he agreed that he was not 

“very mature,” but he did not agree that he failed to act as a “mature young man 

 

3Garcia’s Navy records indicated that, although he had completed mess management training, had 

a “secret” security clearance, and had served for five and one-half months on the USS Tennessee, an Ohioclass ballistic missile submarine, he ultimately only served a total of one year and nine months of his fiveyear enlistment.
16

should act” in the Navy. When asked, “Bottom line is: After being in the Navy for 

awhile you decided, I need to get out of here and go do something else,” Garcia 

answered, “Yes.”

Garcia did not testify at trial that his separation and discharge was by “mutual 

agreement”; he also never mentioned his drinking or unauthorized absence. In his 

deposition, he testified that there were no “other” charges and that he was not 

“kicked out.” But he omitted, both in his deposition and at trial, that his Navy 

records indicated that he had pleaded guilty to larceny, that he had pleaded guilty to 

breaking restriction, and that he had been discharged for “other than honorable 

conditions” with “no potential for future service.” Appellant made an offer of proof 

regarding the testimony he sought to introduce on cross-examination, but the trial 

court did not allow the admission of the impeachment evidence from either Garcia’s

deposition testimony or Navy records about Garcia’s separation and discharge from 

the Navy.

Appellant argued that Garcia’s misleading testimony put Garcia’s service, 

separation, and discharge at issue. Navy records indicated that Garcia was separated 

under other than honorable conditions for misconduct for unauthorized absence and 

breaking restriction, as determined at a summary court martial where he pleaded 

guilty to all charges. See 10 U.S.C. § 886, art. 86 (absence without leave), § 934, 

art. 134 (general article).4 The summary court martial charges arose from Garcia’s 

pattern of misconduct, which included “underage” drinking and the commission of 

a serious offense: “larceny and wrongful appropriation,” a crime of moral turpitude.5

Garcia’s Navy records reflected that he had admitted his guilt to all offenses against 

 

4Garcia’s summary court martial punishment was thirty days’ confinement.

5Garcia’s nonjudicial punishment for the larceny was forty-five days of restriction and forty-five 

days of extra duties with a reduction in rank and pay grade and forfeiture of one-half of one month’s pay 

for two months.
17

military justice, including the larceny, and had admitted that his conduct reflected a 

pattern of misconduct and the commission of a “serious” offense.6

Appellant argued that Garcia’s trial testimony left a misleading impression 

about his wrongdoing in the Navy, which included admissions of a serious offense.

He also left a misleading impression about the overall character of his service and 

discharge. Garcia’s Navy records also do not mention a “mutual agreement” for 

separation. Appellant argued that these separation and discharge matters became an 

issue when Garcia represented at trial that he “chose to leave the Navy”; Appellant

argued that Garcia’s records indicated that he was required to end his enlistment

early. His trial testimony created issues about his credibility, and Appellant should 

have been allowed to cross-examine and impeach him with the differences, 

contradictions, or errors in his testimony. See Cirilo, 476 S.W.2d at 748; Spring

Branch Bank, 404 S.W.2d at 664.

The trial court, in pretrial, also limited the scope of cross-examination about 

Garcia’s civilian employment. When asked to confirm that he wanted to pursue his 

interest as a “cook” after his discharge from the Navy, Garcia answered, “Yes.” 

Garcia was initially trained as a Navy mess specialist or cook; he said the job’s name 

was later changed to “culinary specialist.” But his last assignment before discharge 

was simply manual labor.7 Garcia said that, after the Navy, he went “mostly with 

food” because that was what he “was trained to do, so it was easier” and was what 

he “knew how to do.” He said, “I was promoted to management at a lot of 

restaurants.” He said, “I started realizing I could manage because I had skills from 

the military” (emphasis added).

 

6Garcia’s Navy records also indicated that Garcia waived all rights to the administrative discharge, 

including the right to counsel and the right to an administrative board hearing, and that he did not appeal.

7Garcia’s Navy records indicated that he was removed from submarine service and placed in an 

administrative post where he did manual labor before he was administratively discharged.
18

Garcia worked many jobs, both in and out of food service, and was 

unemployed for several months during the fifty-five month period from his Navy 

discharge to his RAC employment. When asked about his frequent job changes, 

Garcia answered that there is “a really high turnover rate when it comes to 

restaurants,” and he also said that “[m]ost of the time it’s you figure out the job is 

not worth what you’re getting paid.” When asked if he changed jobs after six months 

to “[m]ove on to something else,” he said, “That’s correct.”

But, as to at least two of the jobs Garcia held after the Navy, Appellant argued 

that the evidence indicated that the reason for Garcia’s departure was different than 

the reason he testified to, which was to “move on to something else” because “most 

of the time it’s you figure out the job is not worth what you’re getting paid.” Garcia 

actually worked at one job, at Jack in the Box, where he was a shift supervisor and 

made $7.00 an hour. But his next job was at a Shell station, “Landmark Industries, 

Ltd.,” where he was a “walk-in” hire who worked as a cashier, and he made less, 

$6.50 an hour. Garcia, in his deposition, represented that he was fired for asking too 

many questions at Jack in the Box, and Garcia claimed that the manager was “the 

thief.” Garcia’s Jack in the Box records indicated that he was terminated because 

he closed the store early without authorization. The Landmark records indicated 

that he was terminated because he was accused of theft of store merchandise, which 

was an accusation of misconduct similar to the misconduct that he had committed in 

the Navy.

Garcia’s ability to work long term at RAC was an issue at trial.8 Garcia 

asserted at trial that he had management skills from the military. But Appellant was 

not allowed to cross-examine him on his last evaluation report in the Navy. In that 

 

8Garcia’s RAC job, as a customer account representative, included heavy lifting. Garcia’s Navy 

entrance physical and medical history were admitted as evidence of good health and to show the lack of 

health issues that he alleged arose after the accident.
19

report, Garcia’s rater, D.L. Taylor, evaluated Garcia’s performance in a manual labor 

job. Taylor reported that Garcia was a “1.0” on a 1.0–5.0 scale (5.0 being the highest 

rating and 1.0 being “[b]elow [s]tandards”) because Garcia needed excessive

supervision. Taylor also reported that Garcia:

(1) failed to understand team goals and was wasteful of resources; 

(2) failed to take direction well and his work product often needed rework; 

(3) prioritized poorly and avoided responsibility; 

(4) failed to value differences from cultural diversity; 

(5) had poor self-control; 

(6) was unwilling to work with others and created conflict; 

(7) had a consistent unsatisfactory appearance; 

(8) was unable to meet one or more physical readiness standards; 

(9) acted in a way counter to good order and Navy retention; and

(10) failed to live up to one or more of the Navy’s Core Values of Honor,

Courage, and Commitment.

In addition, Garcia represented at trial that he had no plans to ever leave his job at 

RAC because he “loved” the job and it was the “best job [he] ever had.” However,

RAC records indicated that he was on RAC’s “COMMIT!” plan.

9

 He was on the

“COMMIT!” plan because he had been late for work several times and had shown 

up seventy-three minutes late for work without authorization—issues that were

similar to issues he had during his Navy service and other civilian employment. 

These facts stand in contrast to Garcia’s representation at trial that he “could manage

because [he] had skills from the military” (emphasis added).

Garcia argued that the evidence was properly excluded because it was 

collateral and “extremely prejudic[ial].” “A party can make otherwise irrelevant 

 

9Garcia’s “COMMIT!” plan warned that further tardiness could result in his termination.
20

evidence relevant by injecting collateral issues into a lawsuit.” Bay Area 

Healthcare, 239 S.W.3d at 234 (quoting W. JEREMY COUNSELLER & CHARLES D.

BROWN, HANDBOOK OF TEXAS EVIDENCE § 401.03 (2005)). Garcia injected 

collateral issues into the case with his misleading testimony. The impeachment 

evidence that Appellant wanted to introduce was certainly prejudicial; this type of 

evidence always is prejudicial. However, Rule 403 provides that the court may 

exclude relevant evidence if its probative value is substantially outweighed by a 

danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, 

or needlessly presenting cumulative evidence. TEX. R. EVID. 403.

Garcia’s trial testimony differed from the testimony that he gave in his 

deposition and also contradicted evidence contained in his Navy and other 

employment records. Garcia also was the only witness that testified about his 

potential longevity at RAC. See Border Apparel-E., Inc. v. Guadian, 868 S.W.2d 

894, 898 (Tex. App.—El Paso 1993, no writ) (work performance and prospects for 

promotion are factors in determining lost earning capacity). Garcia’s credibility was 

a critical issue, and he testified about his desire and ability to work at RAC—the job 

that he described as the “best job [he] ever had,” a job he “loved,” and the job that 

he had no plans to ever leave. The impeachment evidence that Appellant sought to 

use was highly probative and was not unfairly prejudicial or confusing; it also was 

not cumulative of other evidence. Appellant sought to impeach Garcia’s trial 

testimony where it differed from Garcia’s deposition or from his Navy or civilian 

employment records. Because Garcia’s trial testimony created those issues, 

Appellant should have been allowed to use Garcia’s deposition testimony and his

Navy and civilian employment records to impeach him with these differences, 

contradictions, or errors. See Cirilo, 476 S.W.2d at 748; Spring Branch Bank, 404 

S.W.2d at 664. The trial court abused its discretion when it did not allow Appellant

to cross-examine Garcia after Garcia gave misleading testimony at trial.
21

3. Exclusion of Dr. Strausser’s Testimony

Appellant also challenges the trial court’s exclusion of portions of

Dr. Strausser’s deposition in which Dr. Strausser was confronted with facts that 

Garcia had not told him when Garcia related his medical and work history to 

Dr. Strausser. For instance, Garcia had not told the doctor about a prior automobile 

collision in which he was involved. On that occasion, Garcia drove his vehicle into 

a horse. His mother was riding with him and was injured. She ultimately sued him 

for those injuries. Additionally, Garcia did not tell Dr. Strausser that he continued 

to move and deliver furniture after the accident made the basis of this suit.

Although the jury heard that Garcia delivered furniture for RAC after the 

accident, the jury was not able to hear the opinion that Dr. Strausser gave in his 

deposition that the prior accident with the horse or the work duties following the 

RAC accident may have been the cause of the disc herniation. Garcia conceded that 

Dr. Strausser’s records showed that the disc herniation, which Garcia alleged was 

caused by the RAC accident, did not actually occur at the time of the accident in this 

case. Reasonable probability is determined by the substance and context of the 

opinion and does not turn on semantics or on the use of a particular term or phrase. 

Schaefer v. Tex. Emp’rs’ Ins. Ass’n, 612 S.W.2d 199, 202 (Tex. 1980). Dr. Strausser 

testified that all his answers would be given based upon a reasonable degree of 

medical probability. Appellant made an offer of proof to admit this evidence, which 

was denied by the trial court. Dr. Strausser’s testimony should have been allowed 

at trial as part of Appellant’s cross-examination of Dr. Strausser.

We hold that the trial court abused its discretion when it excluded this 

evidence. If evidence presents “other plausible causes of the injury or condition that 

could be negated, the [proponent of the testimony] must offer evidence excluding 

those causes with reasonable certainty.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 

211, 218 (Tex. 2010) (alteration in original) (quoting Merrell Dow Pharm., Inc. v. 
22

Havner, 953 S.W.2d 706, 720 (Tex. 1997)) (internal quotation marks omitted)

(citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558–59 (Tex. 

1995)). In the instant case, the opposite occurred. Dr. Strausser opined, in his 

deposition testimony,

10 that the RAC accident did not cause the herniation. When 

defense counsel apprised Dr. Strausser of the prior accident and Garcia’s postaccident work duties, Dr. Strausser stated, in his deposition, that those could be 

possible causes of Garcia’s disc herniation. The trial court did not allow the jury to 

hear that evidence. When it excluded the evidence, the trial court erred and abused 

its discretion.

4. Whether Trial Court’s Exclusion of Evidence Requires Reversal

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 need only prove that the error probably resulted in an improper 

judgment. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (citing 

McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); King v. Skelly, 452 S.W.2d 

691, 696 (Tex. 1970)). We review the entire record to see if the judgment turned on 

the excluded evidence. Id. at 754.

Only Garcia testified about his continued long-term, future employment at 

RAC. Garcia’s trial testimony about his Navy service and discharge differed from 

his deposition testimony and his records. Garcia also gave reasons why he left 

certain civilian employment that were different from the reasons reflected in his

deposition testimony and employment records. Appellant was not allowed to crossexamine Garcia about these differences or about his work habits at the job that he 

had held the longest: his twenty-one month Navy enlistment. The court in Cameron 

 

10Dr. Strausser also noted in Garcia’s medical records, which were admitted at trial, that the 

accident did not cause the disc herniation, but Dr. Strausser’s responses to the “did you know questions” 

were excluded.
23

Mill & Elevator Co. v. Anderson stated that the jury should determine earning 

capacity based on whether “the plaintiff be afflicted in mind or body, or if he be 

indolent, drunken, and thriftless, the defendant ought to be permitted to prove the 

fact, so as to show that his earning capacity is not that of a person of ordinary 

endowments, mental or physical, and of ordinary habits.” 81 S.W. 282, 283 (Tex. 

1904) (emphasis added).

Evidence adduced at trial outlined that RAC had several requirements for the 

job that Garcia held, and those requirements included that Garcia had to follow 

instructions and all policies and procedures and adhere to all standards. But Garcia 

was on probation and under a “COMMIT!” plan at RAC for failure to adhere to 

attendance policies. Garcia’s last Navy rater reported that Garcia needed excessive

supervision, avoided responsibility, was unable to meet one or more physical 

readiness standards, and failed to live up to the Navy’s core value of commitment. 

The jury was unaware of this evidence. Appellant should have been allowed to 

present the excluded impeachment evidence when Garcia’s trial testimony put these 

matters at issue. Had Appellant been allowed to cross-examine and impeach Garcia,

the excluded evidence would have cast substantial doubt not only on Garcia’s 

credibility, but also on his capacity for duration, consistency, and efficiency of work 

at RAC, which involved heavy lifting and which he asserted would have continued, 

uninterrupted, into the future because he had no plans to ever leave the job he 

“loved,” the “best job [he] ever had.”

In addition, the exclusion of Dr. Strausser’s testimony about other possible 

causes for the disc herniation, which Garcia alleged was the source of his pain and 

the medical problem that led to his back surgery, was likewise not only erroneous 

but harmful. See JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 165 (Tex. 2015)

(defendant entitled to present evidence of a second accident as alternate cause to 

rebut plaintiff’s claims of injury from first accident). In JLG Trucking, the Texas 
24

Supreme Court held that the defendant was entitled to present evidence of the second 

accident to the jury, which was relevant to the plaintiff’s theory of causation. Id. 

Here, Appellant should have been allowed to present Dr. Strausser’s testimony, 

which cast doubt on the accident in this case as the cause of the disc herniation, and 

should have been allowed to rebut Garcia’s assertions with evidence of the first 

accident as an alternate cause of Garcia’s injuries. After a review of the entire 

record, we hold that the exclusion of evidence probably resulted in an improper 

judgment. We sustain that part of Appellant’s first issue in which he claims that the 

trial court reversibly erred when it refused to admit the proffered testimony about 

the Navy records and civilian employment records and the testimony from 

Dr. Strausser about other causes for the disc herniation, including the first accident.

E. Issue Six: Motion to Recuse

Appellant asserts, in his sixth issue, that the trial court abused its discretion 

when it denied his motion to recuse because the motion failed to meet the 

requirements of Rule 18a and Rule 18b. We review the denial of a motion to recuse

under an abuse of discretion standard. TEX. R. CIV. P. 18a(j)(1)(A). A motion to 

recuse must “assert one or more of the grounds listed in Rule 18b” and must “state 

with detail and particularity facts that: (A) are within the affiant’s personal 

knowledge, [or] on information and belief if the basis for that belief is specifically 

stated; (B) would be admissible in evidence; and (C) if proven, would be sufficient 

to justify recusal or disqualification.” TEX. R. CIV. P. 18a(a)(2), (4). Grounds for 

recusal include reasonably questioned impartiality of the judge and personal bias or 

prejudice of the judge concerning the subject matter or a party. TEX. R.

CIV. P. 18b(b)(1), (2). The responding judge must then recuse himself or refer the 

motion to the regional presiding judge. TEX. R. CIV. P. 18a(f). The regional 

presiding judge may summarily deny the motion without a hearing if the motion 

does not comply with Rule 18a. TEX. R. CIV. P. 18a(g)(3).
25

Appellant complained in his motion to recuse that the trial judge ruled against 

Appellant several times at a pretrial hearing and subsequently made the statement 

that, “when I was a real lawyer, Farmers [Insurance] could be counted on to make a 

fair offer.” He also argues that a letter from Garcia’s counsel supports his argument. 

Appellant acknowledged in his motion that the trial judge knew both that Farmers 

was the insurance company involved and that the matter had not been successfully 

resolved at mediation before he made his statement.

But Appellant produced no evidence that the trial judge knew of the settlement 

offer amounts. The trial judge also did not say that the offer at mediation was fair 

or unfair; he only related his past experience. Thus, his statement did not show 

partiality or a bias for or against any party or subject matter. His statement follows 

Texas policy to encourage parties to resolve their issues without litigation. See TEX.

CIV. PRAC. & REM. CODE ANN. § 154.002 (West 2011) (“It is the policy of this state 

to encourage the peaceable resolution of disputes.”); Schlumberger Tech. Corp. v. 

Swanson, 959 S.W.2d 171, 178 (Tex. 1997) (“Texas law favors and encourages 

voluntary settlements and orderly dispute resolution.”). The trial judge’s statement 

was not sufficient to justify recusal or disqualification. We hold that the regional 

presiding judge did not abuse his discretion when he denied the motion to recuse 

without a hearing because, even if Appellant’s allegations had been presented at a 

hearing, those allegations would not have justified recusal. Issue Six is overruled.

Conclusion

After a review of the record, we hold that the trial court abused its discretion 

when it prohibited the admission of evidence about Garcia’s Navy service and other 

employment history, as well as the complained-of portions of Dr. Strausser’s 

deposition. We also hold that the trial court’s refusal to admit those items of 

evidence resulted in harmful error. To that extent, Issue One is sustained, and we 

need not address the remainder of the matters raised in Issue One.
26

Because we are reversing and remanding on those evidentiary grounds, we 

need not address either Issue Two or Issue Three. We also hold that legally sufficient 

evidence supported the jury’s award of future medical expenses, loss of earning 

capacity in the past, and loss of earning capacity in the future, and we overrule Issues 

Four and Five to that extent. Because we are remanding on other issues, we do not 

reach the factual sufficiency arguments in Issues Four and Five. Finally, Appellant’s 

sixth issue is overruled.

This Court’s Ruling

We reverse the judgment of the trial court and remand this cause for a new 

trial.

MIKE WILLSON

JUSTICE

April 29, 2016

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.