### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00266
- CV

Johnny Baker and Lacrecia Baker , Appellant s

v. Devante Williams; and Swift Transportation Co. of Arizona, LLC , Appellee s

FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 298,373-C, THE HONORABLE CARI L. STARRITT
- BURNETT, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
This appeal arises out of a personal injury lawsuit brought by appellant s Johnny Baker and Lacrecia Baker against appellees Devante Williams and Swift Transpo rt ation Co. of Arizona , LLC, arising out of a collision between two tractor

- trailers. After the jury returned a verdict finding 100% liability for Baker and no liability for Williams and awarding no damages to Baker, the trial court entered a final take n ot hing judgment. Baker now appeals, arguing the trial court abused its discretion by failing to exclude expert testimony by the investigating officer. For the following reasons, we affirm the final judgment.

BACKGROUND While driving a commercia l tract or-t railer in July 2016, Johnny Baker (Baker) struck the back of another commercial tractor

- trailer, operated by Devante Williams, that was at2 the time parked on the shoulder of the interstate. 1 Trooper Juan Gutierrez of the Texas Department of Public Saf e ty was the first officer on the scene of the collision

. In his post

- collision report, Trooper Gutierrez concluded that Baker had improperly driven on the highway’s improved shoulder before colliding with Williams, that Willia m s ’ s truck was disabled, and that W illiam s ’s failure to place emergency reflective triangles behind his disabled trailer was not a “contributing factor” to the collision. Trooper Gutierrez’s report also indicated that Baker may have been “ f atigued or a sleep , ” which may have contribut ed t o the collision. In 2018, Baker filed suit against Williams and Swift, asserting causes of action premised on Williams’ s alleged negligence in operating the tractor

- trailer and Swift’s a lleged negligence in training and supervising Williams. In partic ular , Baker later alleged in his amended pleadings that Williams was negligent because, among other things, Williams failed to timely place three bidirectional reflective triangles behind hi s disabled tractor

- trailer as requ ired under federal law. The part ies pr esented their cases before a jury from October 17 and 24, 2022. In the leadup to the trial, Baker filed a “Motion in Limine to Exclude Expert Testimony , ” seeking to exclude Trooper Gutierrez ’s testimony and portions of his collision report on the gr ound t hat Trooper Gutierrez did not qualify as an expert on the topics of safe operation of commercial vehicles and causation

. The trial court considered the motio n to exclude at a pre

- trial hearing, and after hearing arguments from counsel, the trial co u rt d enied the motion and stated that Trooper Gutierrez’s testimony and report would not be limited. In addition to all of the other evidence presented at trial , the jury repeatedly viewed a dual

- camera video of the collision , which included simultaneous vi d eo feeds of both

1 Williams was driving the tractor

- trailer on behalf of S w ift.3 the interior of Baker’s tractor

- trailer cab and the roadway in front of Baker’s vehicle. The jury also heard testimony from Baker, Williams, and approximately twenty

- one other witnesses. Althou gh Trooper Gutierrez did not provide live t e sti mony at trial, the jury considered his post

- collision report and portions of his deposition

. At the end of trial, the jury returned a verdict finding Bake r 100% at fault for the collision and awarded Baker zero dollars in damages. The trial court sub s equ ently entered a final judgment on February 10, 2023, ordering that Baker take nothing against Williams and Swift. Baker filed a motion for new trial, whic h was denied by the trial court

. This appeal followed

.
RELEVANT LAW AND STANDARD OF REVIEW We r evi ew the trial court’s decision to admit expert testimony for an abuse of discretion. Guadalupe

- Blanco River Auth. v. Kraft , 77 S.W.3d 805, 807 (Tex. 2002) ; see also Fleming v. Wilson , 610 S.W.3d 18, 21 (Tex. 2020) (per curiam) (stating abuse of discret i on applies to trial court’s decision to admit or exclude evidence). “To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a r eliable foundation.” Gunn v. McCoy , 554 S. W .3d 645, 666 (Tex. 2018) (citing Tex. R. Evid. 702)

. “The trial court ’ s role is not to determine the truth or falsity of the expert ’ s opinion ’ but ‘ to make t he initial determination whether the expert ’ s opinion is relevant and whether the methods and res e arc h upon which it is based are reliable.” State v. Skyway Holdings LLC , No. 03

- 19

- 00143

- CV, 2021 WL 833965, at *2 (Tex. App.

— Austin Mar. 5, 2021, pet. denie d) (mem. op.) (quoting E.I. du Pont de Nemours & Co. v . Robinson , 923 S.W.2d 549, 558 (Tex. 1995) )

. The jury then assesses the weight and credibility of that testimony. See Robinson , 923 S.W.2d at 558

. “To reverse a judgment based on a claimed error in admitting or excluding4 evidence,” we review the entire record , and “a party must show that the er ro r probably resulted in an improper judgment.” Interstate Northborough P ’ ship v. State , 66 S.W.3d 213, 220 (Tex. 2001) ; see also Tex. R. App. P. 44.1(a)

.
DI SCUSSION On appeal, Baker argues that the trial court abused its discretion by failing to

exc lu de Tro oper Gutierrez ’s testimony as an expert witness and that that error was harmful. Assuming without deciding that Trooper Gutierrez did not qua lify as an expert witness and the trial court erred by failing to exclude his testimony, Baker has failed to demon strate that allowing the jury to hear the testimony was harmful. The Texas Supreme Court has “recognized the impossibility of establishing a

s pecific test for determining harmful error,” instead “entrust[ing] the matter to the sound discretion of t he revie wing cou rt.” Caffe Ribs, Inc. v. State , 487 S.W.3d 137, 145 (Tex. 2016)

. Even when an evidentiary ruling is erroneous, the reviewing court m ay only reverse if the error “probably caused the rendition of an improper judgment.” Tex. R. App. P. 44. 1( a)(1). “ Probable error is not subject to precise measurement, but it is something less than certitude .” El Paso Indep. Sch. Dist. v. Portillo , 661 S.W.3d 512, 539 (Tex. App.

— El Paso 2023, pet. denied) (quoting T XI Transp. Co. v. Hughes , 306 S.W.3d 230, 2 42

– 43 (Tex. 20 10) ) . Whether the error was harmful is a matter of judgment based on an evaluation of the whole case, including all of the evidence b efore the factfinder, the strengths and weaknesses of the case, and the ultimate verdict. See Reliance St ee l & Al uminum Co. v. Sevcik , 267 S.W.3d 867, 871 (Tex. 2008)

. When considering the “role the evidence played in the context of the trial,” e rroneous ly admitted evidence is harmful if it was crucial to a key issue. Id. at 873 . Alternatively, the error i s5 harmle ss if that evidence is cumulative of other evidence or “if the rest of the evidence was so

one - sided that the error likely made no differ ence.” Id

. As an initial matter, we have only received a partial record on appeal, consisting of the pretria l he aring on the motion to exclude , testimony of six of the twenty

- three witnesses who testified at trial , the jury charge conferen ce, and exhibits admitted into evidence. However, that partial record does not include, among other things, voir dire, opening o r clos ing statements by the parties, or plaintiff’s full testimony. See id. at 871 (directing that harm analysis is based

on c onsidering whole trial). Because the record does not contain the request for a partial reporter’s record tha t includes a “statem ent of the points or issues to be presented on appeal,” Tex. R. App. P. 34.6(c)(1), we cannot determine whether other testimony in the record may have been relevant to the issues on appeal or the emphasis, if any, placed on Trooper Gutierrez ’s testimony du ring t hose missing portions , s ee , e.g. , Nissan Motor Co. v. Armstrong , 145 S.W.3d 131, 144 (Tex. 2004) (explaining that court m ay consider “efforts made by counsel to emphasize the erroneous evidence” in determining harm). Accordingly, we must presume “ th at the material missing from the reporter ’ s record is relevant and supports the trial court ’ s judgment. ” Leyva

v. Aguado Stone , Inc. , No. 03

- 23

- 00227

- CV, 2023 WL 8243816, at *2 (Tex. App.

— Austin Nov. 29, 2023, no pet.) (mem. op). Even limiting our review to the partial record before us on appe al, we cannot say the admission of Trooper Gutierrez ’s testimony was so harmful as to pr obably cause an improper judgment. T he testimony pr esented to the jury consisted of his conclusions containe d in the post

- collis ion re port about what may have contributed to the collision

— that Baker had improperly driven on the highway’s improved shoulder before colliding with Williams, that William’s truck was disabled, that William’s failure to place emergency reflective triangle s6 behi nd his disabled trailer was not a “contributing factor” to the collision , and that Baker may have been “ f atigued or a slee p . ” Portions of Trooper Gutierrez ’s deposition testimony were also introduced at trial, addressing similar t opics and conclusion s. Con trary to Baker’s suggestions, however, Trooper Gutierrez ’s testimony was not crucial to the jury’s determination of the key issues before them and was largely cumulative of other evidence in the partial record before us. See Re liance Steel , 267 S. W.3d at 87 3. In particular, throughout the trial the jury repeatedly viewed the dual

- screened collision video , which included simultaneous recordings of both the inside of the cab of Baker’s tractor

- trailer and the roadway in front of Baker’s vehicle . Th e collis ion video spanned the approximately ten seconds preceding the collision through the immediate aftermath, and provided t he jury, as factfinder, ample opportunity to determine the fault of the respective parties based on what the video showed . The c ollision video was such a crucial piece of evidence before the jury that it was played multiple ti mes , “ad nauseum , ” throughout the trial, with multiple testifying witnesses repeatedly reinforc ing the importance of that video graphic evidence. Judd Joy, Ba ker ’ s tr ucking reconstruction expert, testified that the video was “absolutely” the best evi dence of how the collision occurred

. William Miller, Williams’s accident reconstruction expert, testified that the video of the collision was the “unbiased witness in this case . ” A nd two other expert witnesses, Dennis Seale (Baker ’ s human factors expe rt witness) and Roger Allen (Baker ’ s trucking expert witn ess), provided their testimony at trial while contemporaneous ly watchin g and describing the collision video. A dditiona lly , witnesses provided testimony relevant to the jur y’s determination that Williams was not at fault for the collision

. On the plaintiff’s side, v ideo excerpts from Baker’s deposition were pr esented to the jury where Baker admitted that, prior to the col lision ,7 he saw the “rear door” of Williams’ tractor

- t railer and that “there was no

- - no - - nothing and then I look

- - looked

- - I look up and see doors.” Seale testified that the reflecti ve triangles provided a better visual cue than flashing lights about the incapacitated tractor

- trailer, but when
pre ssed whether Baker’s actions were excused by Williams’ failure to place reflective triangles, Seale conceded that “I’m not saying that, no, sir.” Joy conceded that “[t]here does seem to be times when [B aker] does seem to be looking down” immediately befor e the collision, that reflective triangles would not change the outco me if a driver were distracted, that his calculations were based in part on the collision video, and that the jury “can obviou sly look at the video and determine for themselves.” Alle n also agreed that there were telltale signs of inattention and distraction by Baker, that Williams’ tractor

- trailer is visible on the side of th e road for ten seconds before the collision, and that Baker w ould not see reflective triangles or flashing ligh ts “if he’s totally distracted in some way.” Similarly, Miller, the defendants’ expert witness, testified about distractions inside Baker’s tra ctor

- trailer at the time of the collision and describ ed his det ermination that the collision video showed Baker was allegedly using an electronic device immediately before the collision. When aske d about whether placing reflective triangles to warn of a d isabled vehicle would have made a difference, Miller testified that there were several “huge cues” already
pres ent to warn Baker of the disabled tractor

- trailer (such as the lane lines, reflective tape on the trailer, and the flashing hazard lights on W illiams’ tractor

- trailer) and that “if you don’t see the elephant, how can you see the mice?” Revie wing the whole case, including all the evidence before the factfinder, s ee Reliance Steel , 267 S. W.3d at 871 , we conclude that there was extensive other evidence supporting the jury’s determination that Williams was not at fault for the collision , see Gunn , 554 S.W.3d at 665 (“ It is the province of the jury to resolve conflicts in8 the evidence, and when reasonable jurors could resolve conflicting evidence either way, we
presu me they did so in accordance with the v erdict .”). 2 Baker argues that Trooper Gutierrez ’s testimony was uniquely persuasive because he was the only disinterested expert witness. See, e.g. , Nikoloutsos v. Nikoloutsos , 47 S.W.3d 837, 839 (Tex. A pp.

— Beaumon t 2001, pet. denied) (“T he testimony of a disintere sted person undoubtedly carries more weight than similar testimony coming from interested parties to the

case. ”). Although testimony by a disinterested police officer “could” have an impact on a close

cas e, see , e.g. , Ter

- Vartanyan v. R & R Frei ght, Inc. , 1 11 S.W.3d 779, 784 (Tex. App.

— Da llas 2003, pet. denied) , the cases relied on by Baker did not have videographic evidence of the ir respective collision s ; instead, those cases invol ved juries weig hing two co mpeting narratives of what might have o ccurred, b as ed solely on the testimony prese nted by the two sides. See, e.g. , Walker v. Rangel , No. 14

- 08

- 00643

- CV, 2009 WL 4342505, at *7 (Tex. App.

— Houston [14th Dist.] Dec. 3, 2009, no pet.) (mem. op.) ( stating fo ur witnesses in total testified on caus ation and

co ncluding erroneous admission of testimony by two witnesses favoring one collision narrative probably resulted in improper judgment). We cannot say Trooper Gutierrez ’s disinterested testimony wa s similarly persuasive in this case , given the adm ission of th e co llision video
at trial

. 3

2 Similarly, it is the province of the jury to resolve the conflicting testimonial evidence regarding the extent and urgenc y of th e disability suffered by Willia ms’ s tractor

- trailer and Williams’s decision to stop his tractor

- trailer on the improved shoulder. S ee Gunn v. McCoy , 554 S.W.3d 645, 665 (Tex. 2018)

. 3 Baker also complains that Trooper Gutierrez ’s testimony was ha rmful b ecause the jury was not present ed with evidence showing his lack of qualifications. A ssuming deposition materials rela t ing to Trooper Gutierrez ’s qualifications were not shown to the jury, nothing in the partial record before us demonstrates that B aker wa s prevented from introducing th ose materials9 Baker argues that Trooper Gutierrez ’s testimony was not cumulative because he was the only testifying law enforcement officer and he was the o nly witness to testify about fatigue or sleepiness of Baker being a con t ributing fa ct or for the collision. However, whether testimonial evidence is cumulative is not based on the attributes of the testifying witness but rather whether the evide nce is simi lar to other evidence already in the record. See Reliance Steel , 267 S

. W.3d at 873

. Although Trooper Gutierrez was the sole testifying law enforcement officer , his testimony about the reflective triangles and whether they were a contributing factor to th e collision is cumulative of other similar evidence, such as the collis i on video it se lf and testimony by the other expert witnesses. See, e.g. , Siddiqui v. Yellow Freight Sys., Inc. , No. 03

- 98

- 00517

- CV , 2000 WL 1433650, at *5 (Tex. App.

— Austin Sept. 29, 2 000, pet. denied) (not designated for pu blication) (concluding testimon y about obse rv ations of driver’s behavior at emergency room was cumulative of other testimony about party’s alleged intoxication)

. Even assuming the testimony about Baker being potentially fatigued or drowsy at the t ime of the collision was not cumulativ e of other evi de nce at trial, we cannot say that the limited testimony about Baker’s alleged fatigue or sleepiness (involving a single code entry on the post

- collision report and references on approximately six pages of Tro oper Gutierrez ’s 105

- page depositi on t ranscript ) was crucial to the key issu es before the jury. Without opening and closing statements in the record on appeal, nothing in the record shows that fatigue or sleepiness was emphasized by either counsel in thei r arguments to the jury. See Niss an M otor , 145 S .W.3d at 144

. Moreover, the record on appeal shows that instead of fatigue or sleepiness of Baker , the parties focused extensively on the content of the collision video and whether Baker

as part of its case

- in

- chief or why Baker decided not to seek admittance o f th at qualification evidence.10 was distracted by a cellphone or other electronic dev ice at the ti me of the collision. See Reliance Steel , 267 S.W.3d at 873 (explaining evidence must be “crucial” to key issue to be likely harmful). 4 Baker contends that Trooper Gutierrez ’s testimony must have caused an imp roper judgment because the jury as sign ed no fau lt to Williams. That is, Baker argues that Williams should have been held at least partially at fault for the collision for failing to place reflective triangles behind his disabled tractor

- trailer in a time ly fashion, and therefore Trooper Gutierrez ’s
te st imony mu st h ave improperly led the jury to assign no fault to Williams. Even if the jury should have assigned some percentage of fault to Williams, that does not mean that Trooper Gutierrez ’s testimony le d to an im proper judgment; Baker w ould have still been barred from recovery if the jury had assigned anything less than 50% of responsibility to Williams. See Tex. Civ. Prac. & Rem. Code § 33.001 . T he jury , however, was presented with testimony by multiple expert witness es, the collision vid eo , and num e rous other exhibits at trial from which the jury could determine who was at fault for the collision and undertake their role as “ the sole judges of the credibility of the witnesses and the weight to give their testim ony .” Gunn , 554 S.W.3d at 6 65 . Given t he evidence before them, the jurors could have determined that any failure by Williams to place the reflective triangles was irrelevant b e c a u s e Baker would not have seen them because he was distracted prior to the co llision. See id. (“I t i s the province o f the jury to resolve conflicts in the evidence, and when reason able jurors could resolve conflicting evidence either way, we presume they did so in accordance with the verdict. ” ). And the jury could have reached

4 W hen discussing how Baker’s possible fatigue or sleepiness may have contributed to the collision , Troop er Gutierrez often contemporane ously mentioned that Baker being distracted may have also been a contributing factor.11 that determination regardl ess of the test i mony by Trooper Gutierrez

. See Reliance Steel , 267 S.W.3d at 873. Based on the partial record on appeal, we con clude that any error in admitting Trooper Gutierrez ’s testimony as an expert witness di d not p robably cause the rendition of an improper judgm e nt. See Tex. R. App. P. 44.1(a); Reliance Steel , 267 S.W.3d at 873

. We overrule Baker’s sole issue on appeal.

CONCLUSION For these reasons, we affirm the final judgment.

_______________________ _______ ____________ Darlene Byrne , Chief Justice

Before Chief Justice Byrne, Justices Smith and Theofanis Affirmed Filed: April 25, 2024