NO. 12-08-00423-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FINIS HENRY, INDIVIDUALLY AND

AS ADMINISTRATOR OF THE ESTATE

OF WANDA JO [SHEPPARD] HENRY, ' APPEAL FROM THE 4TH

DECEASED AND BRIDGET HENRY,

INDIVIDUALLY,

APPELLANTS

V. ' JUDICIAL DISTRICT COURT OF

BURLINGTON NORTHERN SANTA FE

CORPORATION, BNSF RAILWAY

COMPANY, STEVE MCMAHON, ' RUSK COUNTY, TEXAS

UNION PACIFIC CORPORATION,

AND UNION PACIFIC COMPANY,

APPELLEES

MEMORANDUM OPINION

Finis Henry, individually and as administrator of the estate of Wanda Jo 

[Sheppard] Henry, deceased, and Bridget Henry, individually (collectively “Appellants”) 

appeal the take nothing judgment entered against them in their wrongful death suit 

against Burlington Northern Santa Fe Corporation, BNSF Railway Company, Steve 

McMahon, Union Pacific Corporation, and Union Pacific Company (collectively 

“Appellees”). In two issues, Appellants argue that the trial court (1) erroneously 

instructed the jury on negligence per se and (2) improperly admitted into evidence a 

video containing an unauthenticated “LocoCAM” software overlay. We affirm.

BACKGROUND

On September 12, 2006, Wanda Jo [Sheppard] Henry was killed while she 

attempted to drive across railroad tracks owned by Union Pacific Company at a railroad 

crossing. The crossing was marked and preceded by a stop sign. As Wanda Jo crossed 

the tracks, her vehicle was struck by a train operated by Engineer Steve McMahon and 

owned by BNSF Railway Company. 
2

Finis Henry, Wanda Jo’s husband, and Bridget Henry, her daughter, sued 

Appellees for wrongful death and negligence. The matter proceeded to a jury trial. 

Ultimately, the jury found that Wanda Jo was one hundred percent negligent and that 

Appellees were not liable for her death. The trial court entered a final judgment that 

Appellants take nothing, and this appeal followed.

CHARGE INSTRUCTIONS

In their first issue, Appellants argue that the trial court erred in submitting charge 

instructions related to Texas Transportation Code sections 545.151(b)(1) and 545.251(a) 

to the extent that the instructions contained a reference to negligence per se. Specifically, 

Appellants contend that an instruction on negligence per se is improper where the 

instruction sets forth conditional duties. The trial court’s instruction to the jury in its 

charge stated, in pertinent part, as follows:

The law requires the operator of a vehicle approaching a railroad grade crossing 

to stop not closer than 15 feet or farther than 50 feet from the nearest rail if: (1) a clearly 

visible railroad signal warns of the approach of a railroad train; (2) a crossing gate is 

lowered, or a flagger warns of the approach or passage of a train; (3) a railroad engine 

approaching within approximately 1,500 feet of the highway crossing emits a signal 

audible from that distance and the engine is an immediate hazard because of its speed or 

proximity to the crossing; (4) an approaching railroad train is plainly visible to the 

operator and is in hazardous proximity to the crossing; or (5) the operator is required to 

stop by: (A) other law; (B) a rule adopted under a statute; (C) an official traffic-control 

device; or (D) a traffic-control signal. An operator of a vehicle required under the law to 

stop shall remain stopped until permitted to proceed and it is safe to proceed. An 

operator of a vehicle who approaches a railroad grade crossing equipped with railroad 

crossbuck signs without automatic, electric, or mechanical signal devices, crossing gates, 

or a flagger warning of the approach or passage of a train shall yield the right-of-way to a 

train in hazardous proximity to the crossing, and proceed at a speed that is reasonable for 

the existing conditions. If required for safety, the operator shall stop at a clearly marked 

stop line before the grade crossing or, if no stop line exists, not closer than 15 feet or 

farther than 50 feet from the nearest rail.

An operator approaching an intersection shall stop, yield, and grant immediate 

use of the intersection in obedience to an official traffic-control device, including a stop 

sign. A failure to comply with this law is negligence in itself.

 

To preserve error in the charge in a civil matter, the objecting party must 

distinctly designate the error and the grounds for the objection. See TEX. R. APP. P.

33.1(a); TEX. R. CIV. P. 272, 274; Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 

(Tex. App.–El Paso 2005, pet. denied) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 

267 (Tex. 1992)) (to preserve charge error, appellant must comply with Texas Rules of 

Civil Procedure Rules 271 through 279). Any complaint pertaining to an instruction is 
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waived unless specifically included in the objections. Abell, 157 S.W.3d at 891; see also 

TEX. R. CIV. P. 272.

Historically, charge error has been a serious problem in Texas. See, e.g., Lemos 

v. Montez, 680 S.W.2d 798, 801 (Tex. 1984) (discussing problems prior to broad 

submission). A specific objection and a request serves to protect the trial court from 

committing reversible error during the charge hearing. See Abell, 157 S.W.3d at 892.

In sum, a party objecting to a charge must point out distinctly the objectionable 

matter and the grounds of the objection. See Ford Motor Co. v. Ledesma, 242 S.W.3d 

32, 43 (Tex. 2007) (quoting TEX. R. CIV. P. 274). Objections to the charge and requests 

for instructions must comport with the arguments made on appeal. See Isaacs v. Bishop, 

249 S.W.3d 100, 113 n.13 (Tex. App.–Texarkana 2008, pet. denied); Coke v. Coke, 802 

S.W.2d 270, 275 (Tex. App.–Dallas 1990, writ denied). In the absence of an objection at 

trial that matches the complaint on appeal, nothing has been preserved for our review. 

Isaacs, 249 S.W.3d at 113 n.13 (citing TEX. R. APP. P. 33.1).

In the case at hand, during the charge conference, Appellants made specific 

objections to three portions of the aforementioned instructions. Specifically, Appellants 

objected as follows:

The second issue we would like to talk about, Judge, is the instructions section 

in regard to the third paragraph, the Transportation Code. The one in the Court’s Charge 

indicates the Transportation Code requires all vehicle operators to stop not closer than 15 

feet or further than 50 feet from the nearest rail of the railroad, and then proceed only 

with due care. It’s the plaintiff’s position in this case that that language, “To proceed 

only with due care,” is a conditional duty. According to the Texas Supreme Court, when 

a statute has a conditional duty in it, it’s improper to have it in the Charge under an 

instruction, and we would object on that matter, Judge. We would also object that it’s 

only a partial part of the statute that is taken there. 

....

The next matter starts on that same page, Judge, at the bottom, along the lines of 

the previous objection, about the statute having the conditional duty in it. Specifically, if 

we read the statute where it starts, “The law requires” on that page, and then it goes on to 

the next page. It specifically says, “An operator of a vehicle, required under the law to 

stop, shall remain stopped until permitted to proceed and it is safe to proceed.” That 

language there is a conditional duty imparted by the statute onto the motorist. And under 

the Texas Supreme Court case, if it’s a conditional duty in the statute, it’s improper to 

have it as an instruction in a jury charge, and we would object to it on that matter.

....
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The next objection is the very next paragraph,1Judge. It talks about - - again, 

it’s the same statute again. And this time, it’s just a portion of the statute. And it says, 

“The law requires the operator of the vehicle to stop not closer than 15 feet or farther than 

50 feet from the nearest rail of the railroad, and then requires the operator to proceed only 

with due care.” Again, we believe that is violative of the Texas Supreme Court in regards 

[sic] to conditional duty, and we would also point out that it’s just a partial portion of the 

statute, and it’s duplicative of the previous two paragraphs, Judge.

The crux of Appellants’ first issue is that a negligence per se instruction is not 

proper where the statute contains conditional duties.2 However, in their objections to the 

court’s charge, Appellants make no reference to negligence per se. Rather, Appellants 

only object that certain portions of the instruction contained conditional duties. 

Moreover, the portions of the instructions to which Appellants objected are each 

contained in the first of two paragraphs comprising the instructions. Nowhere in that

paragraph does the trial court make reference to “negligence per se.” The second 

paragraph does, in fact, contain a reference to “negligence in itself.” However, this 

paragraph sets forth no conditional duties. Further, it bears mention that the two 

paragraphs are derived from separate sections of the Texas Transportation Code. Thus, 

the two paragraphs are reasonably construed as being separate statements of the law and, 

thus, the language “[a] failure to comply with this law is negligence in itself” could 

reasonably be construed as referring to the second paragraph alone. There is no 

indication in the record that the “negligence in itself” language related also to the duties 

set forth in the first paragraph.

Appellants’ objections were specific concerning the portions of the instructions 

they contended were erroneous, but vague concerning the underlying reason for the 

objection. As such, Appellants have waived the error, if any, of which they complain. 

TEX. R. CIV. P. 274. Further, Appellants’ objections to the charge do not specifically 

comport with their argument on appeal. Thus, nothing has been preserved for our review.

See TEX. R. APP. P. 33.1. Finally, even had Appellants preserved error, based on our 

reading of the instructions at issue, we conclude that the negligence per se instruction in 

the second paragraph does not relate back to any of the conditional duties set forth in the 

first paragraph. Appellants’ first issue is overruled.

 

1

It is apparent from the substance of his objection that Appellants’ counsel is referring to the next 

sentence in the instruction as opposed to the next paragraph. 

2 Appellants further argue in their brief that a negligence per se instruction is erroneous when there 

is evidence of an excused violation.
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ADMISSIBILITY OF VIDEO WITH LOCOCAM SOFTWARE OVERLAY

In their second issue, Appellants argue that the trial court abused its discretion in 

admitting into evidence a video of the collision because the video contained a software 

based data overlay called LocoCAM.3 Specifically, Appellants contend that the 

LocoCAM software overlay was not properly authenticated because the two BNSF 

employees who testified concerning it “knew nothing about how the software worked or 

anything at all about the accuracy of the information displayed.” 

We review a trial court's decision to admit or exclude evidence under an abuse of 

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

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without 

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 

701 S.W.2d 238, 241–42 (Tex. 1985).

 Texas Rule of Evidence 901(a) requires authentication of evidence. See TEX. R.

EVID. 901(a). Texas Rule of Evidence 901(b) gives examples of authentication 

conforming with rule 901(a). See TEX. R. EVID. 901(b). Rule 901(b), however, expressly 

states that the examples listed are not limitations on the ways an object can be 

authenticated to meet the requirements of rule 901(a). See id.

Under rule 901(a), the requirement of authentication “is satisfied by evidence 

sufficient to support a finding that the matter in question is what its proponent claims.” 

In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Sanchez v. State Bd. of Med. 

Examiners, 229 S.W.3d 498, 508 (Tex. App.–Austin 2007, no pet.); see TEX. R. EVID.

901(a). Such evidence may include testimony by a witness with knowledge that a matter 

is what it is claimed to be, but the predicate for admissibility under rule 901 may also be 

proved by circumstantial evidence. Sanchez, 229 S.W.3d at 509; In re G.F.O., 874 

S.W.2d 729, 731 (Tex. App.–Houston [1st Dist.] 1994, no writ). This requirement may 

be met by “appearance, contents, substance, internal patterns, or other distinctive 

 

3 The LocoCAM software overlay displayed information such as time, date, speed of the train, and 

location of the train. The record reflects that the video camera was mounted on the third rearward facing 

locomotive. The record further reflects that a LocoCAM module and an event recorder were also located 

on the third rearward facing locomotive. The video camera makes a video and audio recording of the train. 

The LocoCAM camera module records information such as global positioning system (“GPS”) coordinates, 

time, speed, brake application, and whether the whistle was blown. The event recorder is a separate device 

from the LocoCAM module. The event recorder records the engine’s speed, the application of the 

emergency brakes, and the duration of time for which the whistle was blown.
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characteristics, taken in conjunction with circumstances.” Am. Cas. Co. of Reading, PA 

v. Hill, 194 S.W.3d 162, 167 (Tex. App.–Dallas 2006, no pet.); see TEX. R. EVID.

901(a)(4).

However, any error in excluding evidence is harmless if other admitted evidence 

reveals the same facts as that which is excluded. See Bryant v. Transcon. Gas Pipe Line 

Corp., 821 S.W.2d 187, 188 (Tex. App.–Hous. [14th Dist.] 1991, writ denied). 

Erroneous admission or exclusion of evidence requires reversal if the error probably 

caused the rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 

S.W.3d 131, 144 (Tex. 2004). The erroneous admission of evidence that is merely 

cumulative of properly admitted evidence is harmless error. McInnes v. Yamaha Motor 

Corp., 673 S.W.2d 185, 188 (Tex. 1984); City of Austin v. Houston Lighting & Power 

Co., 844 S.W.2d 773, 791 (Tex. App.–Dallas 1992, writ denied).

In the case at hand, Appellants argue that the supposedly improperly authenticated 

LocoCAM software injected data, specifically time, date, speed, and location of the train, 

into the video. Even assuming arguendo that Appellants correctly assert that the 

LocoCAM software overlay was not properly authenticated, there is evidence concerning 

the time, date, speed, and location of the train that was admitted into evidence without 

objection. The information contained in a printout from the event recorder taken from 

the third locomotive that was admitted into evidence indicated the date, time, the blowing 

of the whistle, the application of the emergency brakes, and the time it took the train to 

stop. BNSF expert, Foster Peterson, testified that the video played through the LocoCam 

software depicted the accident at issue. Peterson testified concerning the accident 

location at the Front Street crossing and noted that this location matched the GPS 

information depicted in the LocoCAM overlay. He noted that the LocoCAM software 

could not be altered to make it depict one location versus another. Peterson further 

testified that, by watching the video, listening to when the “emergency occurs,” and 

watching how long it takes for the locomotive to come to rest, he determined that the 

time is roughly eighty-one or eighty-two seconds, which is what is depicted in the 

locomotive event recorder data. Peterson watched the video and testified concerning the 

various speeds indicated throughout the video. He also testified concerning the 

application of the whistle of the front locomotive, which is audible on the video tape and 

again noted the eighty-two seconds that elapsed between that sound and the accident. 

Appellants have not challenged the admissibility of Peterson’s testimony on appeal. 
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Thus, based on our review of the record, we hold that even assuming the evidence at 

issue was improperly admitted, the error is harmless because evidence pertaining to the 

same information was properly introduced from another source. Appellants’ second issue 

is overruled.

DISPOSITION

Having overruled Appellants’ first and second issues, we affirm the trial court’s 

judgment.

BRIAN HOYLE 

Justice

Opinion delivered September 15, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)