In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00019-CV 

SUSAN H. PETROS, INDIVIDUALLY, AND CHRISTOPHER WAYNE HUSTEAD, 

INDIVIDUALLY AND AS NEXT FRIEND OF CHRISTIAN ROY HUSTEAD, KARA 

HUSTEAD, AND BRIANNA HUSTEAD, MINOR CHILDREN, APPELLANTS 

 

V. 

 

JOI BODINE, APPELLEE 

 

On Appeal from the 216th District Court 

Gillespie County, Texas 

Trial Court No. 15,104, Honorable Spencer W. Brown, Presiding 

 

May 1, 2020 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Susan H. Petros, individually, and Christopher Wayne Hustead, individually and 

as next friend of Christian Roy Hustead, Kara Hustead, and Brianna Hustead (Petros),

appeal from a final summary judgment denying recovery against Joi Bodine. Petros had 

sued Bodine to recover damages purportedly arising from a motor vehicle collision. 

Apparently, Bodine was operating a motorcycle when she lost control of it during a 

rainstorm and collided with Petros’s vehicle. Requests for admission were served on 
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Petros, which requests were not answered timely. That resulted in them being deemed 

admitted. Eventually, Bodine moved for both a traditional and no-evidence summary 

judgment. The trial court convened a hearing on the summary judgment motions as well 

as on Petros’s motion to strike the deemed admissions. The trial court denied the latter 

and granted the former. That resulted in this appeal. 

Two issues pend before us. The first concerns whether the trial court abused its 

discretion in denying Petros’s motion to strike the admissions. The second concerns 

whether the trial court erred in excluding the accident report developed by the law 

enforcement official that investigated the accident; had it been admitted, its content

allegedly would have precluded entry of summary judgment. We consider only the 

second issue, for it is dispositive of the appeal, and affirm.1

Admissibility of Accident Report

Petros attached a “Texas Peace Officer’s Crash Report” to her response to the 

pending motions for summary judgment. The trial court excluded it as inadmissible 

hearsay. Yet, the report was a certified copy of the official document and purportedly 

admissible under Texas Rule of Evidence 902(4). As said by Petros, “[a]lthough the trial 

court here was apparently unfamiliar with evidence rule 902, other courts have admitted 

such crash reports routinely.” We overrule the issue.

Rule 902(4) provides that “[e]xtrinsic evidence of authenticity as a condition 

precedent to admissibility is not required with respect to the following . . . [a] copy of an 

official record or report or entry therein.” TEX. R. EVID. 902(4) (emphasis added). As can 

1 Because this appeal was transferred from the Fourth Court of Appeals, we are obligated to 

apply its precedent when available in the event of a conflict between the precedents of that court and this 

Court. See TEX. R. APP. P. 41.3
3

be seen from the portion of the rule we highlighted, 902(4) pertains to authenticating a 

piece of evidence. Yet, “[a]dmissibility, and its predicate, authenticity, are two different 

things.” White v. State, No. 2-04-350-CR, 2005 Tex. App. LEXIS 7226, at *14 n.8 (Tex. 

App.—Fort Worth Aug. 31, 2005, no pet.) (per curiam) (mem. op.). They “are two different 

concepts.” Patriot Homes, Inc. v. Lopez, No. 04-04-00645-CV, 2005 Tex. App. LEXIS 

10734, at *8 (Tex. App.—San Antonio July 20, 2005, no pet.) (mem. op.). For instance,

“a document may be authenticated hearsay, and [still] . . . not admissible upon objection 

without an applicable hearsay exception.” White, 2005 Tex. App. LEXIS 7226, at *14 n.8. 

In other words, while a writing may not be subject to exclusion on the basis that the 

proponent failed to authenticate it, it may be excluded if it constitutes inadmissible 

hearsay. Consequently, the proponent would have to overcome both the hearsay and 

authentication bar to gain admission of the evidence. Petros ignored this in her appellate 

brief. 

Contrary to her accusation, the trial court undoubtedly knew of Rule 902 but had 

no need to consider it. This is so because it excluded the accident report as inadmissible 

hearsay, not because Petros failed to authenticate it. And, more importantly, she failed 

to address in her appellate brief why the trial court erred in deeming the report and its 

content inadmissible hearsay. That was her burden on appeal. See Landers v. State,

No. 07-10-0130-CR, 2011 Tex. App. LEXIS 2982, at *5 (Tex. App.—Amarillo Apr. 19,

2011, pet. ref’d) (mem. op., not designated for publication) (stating that the proponent of 

hearsay excluded by the trial court had the burden to establish the admissibility of the 

evidence); see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 

2004) (stating that the proponent of hearsay has the burden to demonstrate the testimony 
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comes within an exception to the general rule denying the admission of hearsay 

evidence).

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 Failing to carry it, she failed to establish that the trial court abused its 

discretion. 

This omission on the part of Petros is dispositive of the appeal given her reliance 

upon the report to rebut Bodine’s no-evidence motion for summary judgment. Such is 

exemplified by the argument in her appellate brief. There she asked us to “reverse the 

trial court’s ruling excluding Appellants’ summary judgment evidence and reverse the 

summary judgment granted below, as the Texas Peace Officer’s Crash Report raises 

a genuine issue of material fact.” Indeed, the report was the only “evidence” she offered 

below to controvert Bodine’s contention that she had no evidence establishing any of the 

elements underlying the claim of negligence. So, without the report, it matters not whether 

the trial court erred in denying her motion to strike the deemed admissions. Bodine 

remains entitled to summary judgment.

Accordingly, we affirm the trial court’s final summary judgment.

Brian Quinn

Chief Justice

2 That the official report itself may be admissible because of some hearsay exception does not 

mean that the report’s content which may be hearsay is also admissible. Hearsay statements within the 

report must also fall under some hearsay exception of their own. Benson v. Chalk, 536 S.W.3d 886, 895 

(Tex. App.—Houston [1st Dist.] 2017, pet. denied). So, Petros also would have had the burden to illustrate 

that hearsay within the report was somehow admissible too.