Supreme Court of Texas

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No. 22-0288

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Andrew Jackson,

Petitioner,

v.

Kristen C. Hitchcock Takara, as Representative and Independent 

Administratrix of the Estate of Reuben Blair Hitchcock,

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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PER CURIAM

The decedent in this case, Reuben Hitchcock, fell to the ground 

while he was standing in a tractor’s front-end loader and trimming his 

neighbor’s tree. He was hospitalized and died about a month later. 

Hitchcock’s estate sued the neighbor, Andrew Jackson, asserting 

Jackson was negligent in ignoring product safety warnings and allowing 

Hitchcock, who suffered lifelong intellectual deficiencies, to trim the tree 

in that manner and with no safety harness.

The jury failed to find any negligence of either Jackson or 

Hitchcock proximately caused Hitchcock’s fall, and the trial court 
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rendered a take-nothing judgment. A divided court of appeals reversed 

and remanded for a new trial, holding that the trial court’s admission of 

the lay testimony of another neighbor, Valerie McElwrath, constituted 

harmful error. We hold that the court of appeals erred both in 

concluding that the trial court abused its discretion by admitting 

McElwrath’s testimony and in determining that the admission of her 

testimony probably caused the rendition of an improper judgment. We 

therefore reverse the judgment of the court of appeals and render 

judgment for Jackson.

In 2018, Reuben Hitchcock was a 52-year-old resident of Milam 

County. He had no family nearby. He was in contact with his sister and 

had recently reconnected with his biological mother, but both lived 

outside Texas and did not regularly visit. Hitchcock had lived for a 

number of years with his many dogs in a trailer on property owned by 

McElwrath’s family. It is undisputed that Hitchcock had a low IQ and 

an elementary-school level reading ability. As an adult, Hitchcock had 

been hit by a car while bicycling, and this accident caused him to walk 

with a limp and endure regular back pain. Nevertheless, Hitchcock did 

odd jobs—like fence painting and tree trimming—to supplement his 

social security disability income. Although he earlier maintained a 

Texas driver license, in the later years of his life, he got around atop a 

riding lawnmower with an attached trailer advertising his services. It 

read “Country Boy Maintenance” and displayed the phone number at 

which he could be reached.

Jackson, who was retired, estimated that he had hired Hitchcock 

forty to fifty times over the years to do various odd jobs. He surmised 
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that, of those jobs, approximately fifteen involved tree trimming on 

Jackson’s property, sometimes using the front-end loader, or bucket, of 

Jackson’s tractor as a work platform. The men were not close friends, 

but Jackson occasionally drove Hitchcock to get groceries or pick up a 

prescription. In the months leading up to Hitchcock’s fall, the two had 

discussed trimming a particular tree on Jackson’s property until 

Hitchcock arrived at Jackson’s home one evening, unannounced, ready

to trim the tree.

Jackson testified that Hitchcock suggested the best way to reach 

the target branch was to raise Hitchcock up in the tractor’s bucket. 

Jackson drove the tractor over and positioned it according to Hitchcock’s 

suggestion. Hitchcock put his chainsaw in the bucket, then sat down in 

it before Jackson raised it ten to fourteen feet above the ground. Jackson 

put the tractor in park, turned it off, and stood nearby. When the limb 

was partially cut, Hitchcock asked Jackson to get a rope. Jackson tossed 

the rope to Hitchcock and stepped away. It was then that Hitchcock fell 

from the bucket to the ground. He took some time to catch his breath 

and rest. Jackson then brought him a chair and some ibuprofen, and 

after a while, Hitchcock began talking about how Jackson could finish 

the job. The men did not finish the tree trim—instead, Hitchcock drove 

his mower and trailer home.

Later that night, Hitchcock called for an ambulance. He was 

hospitalized for about a month, during which time his sister and 

biological mother visited from Louisiana and Colorado. In light of 

Hitchcock’s deteriorating condition, the physicians’ expectations that 

Hitchcock would likely require substantial rehabilitative or nursing 
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home care, and his sister’s belief that Hitchcock would not want to live 

in such an institution, his sister ultimately authorized the hospital to 

discontinue life-supporting care. Hitchcock died two days later.

Hitchcock’s sister, Kristen Takara, sued Jackson in her capacity 

as representative and independent administrator of Hitchcock’s estate. 

She alleged Jackson was negligent and grossly negligent for failing to 

provide Hitchcock safety equipment, failing to train Hitchcock, failing 

to hire a professional tree trimmer, and failing to comply with the 

tractor’s written warnings. Takara called four witnesses in her case-inchief. She testified first, emphasizing the severity of Hitchcock’s 

intellectual limitations and the physical injuries he had sustained in his 

bicycle accident ten years earlier. The theme of her case was that 

Jackson took advantage of Hitchcock.

Takara next called a psychologist who evaluated Hitchcock after 

his bicycling accident. He told the jury that Hitchcock scored well below 

average—in the tenth percentile—on an IQ test and that he could not

read beyond a third-grade level or manage his financial affairs. But he 

also opined that, even among people with an IQ score like Hitchcock’s, 

individuals’ functionality levels vary, such that some are capable of 

managing their financial affairs, while others with higher IQ scores may 

be incapable of doing so. The psychologist also noted that although facts 

Hitchcock reported were not always accurate, he was coherent and 

rational on most topics.

Takara then called Jackson, who described the events leading up 

to and following Hitchcock’s fall and characterized Hitchcock as capable 

despite his limitations. Finally, Hitchcock’s birth mother testified about 
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visiting Hitchcock when he was hospitalized, telling the jury Hitchcock 

was experiencing pain despite being in a medically induced coma. On 

cross-examination, Jackson’s counsel pointed the jury’s attention to one 

among thousands of pages of admitted medical records. Defendant’s 

Exhibit 16, the Final Report of the emergency department, reflected that 

a mere three hours after the fall, Hitchcock attributed his fall not to any 

conduct of Jackson’s but, rather, to Hitchcock’s own loss of balance.

Before she rested, Takara moved the trial court to exclude 

McElwrath from testifying on the ground that Jackson did not disclose 

her as a person having knowledge of relevant facts until two weeks 

before trial. Takara also argued Jackson’s untimely disclosure was 

substantively deficient insofar as it omitted McElwrath’s address and 

phone number and described McElwrath only as a neighbor, without 

detailing the topics on which she would testify. Takara’s counsel added 

that he called McElwrath on the phone after Jackson disclosed her, but 

McElwrath never returned the calls. In response, Jackson’s counsel told 

the trial court that McElwrath was timely disclosed under counsels’ 

agreement to extend the discovery period. Jackson’s counsel also stated 

that Takara’s counsel went to McElwrath’s home, which was on the 

same property where Hitchcock lived, when he inspected Jackson’s 

property. Jackson’s counsel asserted that Takara was “very much 

aware” of McElwrath and brought her up multiple times during 

Takara’s deposition. The trial court denied the motion to exclude and 

found there was no unfair surprise or unfair prejudice to Takara, adding

that she “had reasonable notice of the possibility that [McElwrath] 
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would testify” and that she “was certainly aware of [McElwrath] and her 

involvement with the decedent” and his capabilities.

McElwrath was Jackson’s sole witness. She told the jury that she 

and her parents had known Hitchcock for fifteen years and that she saw 

Hitchcock frequently. Like Jackson, McElwrath testified that Hitchcock 

was capable and mechanically inclined despite his intellectual 

limitations. She also told the jury that it is not uncommon for people to 

use a front-end loader as a work platform and that she had probably 

done so herself. McElwrath testified that Hitchcock had mentioned to 

her that his “policy” was he was comfortable using a front-end loader as 

a work platform as long as nobody was in or operating the tractor at the 

time.

The jury returned a unanimous verdict in less than fifty minutes, 

and the trial court rendered a take-nothing judgment on the jury’s 

verdict. Takara appealed, challenging the legal and factual sufficiency 

of the evidence and the admission of McElwrath’s testimony. 

640 S.W.3d 293, 297 (Tex. App.—Houston [14th Dist.] 2021). The court 

of appeals panel unanimously rejected Takara’s sufficiency challenges 

because, even assuming Jackson acted negligently, there was sufficient 

evidence that his negligence was not a proximate cause of Hitchcock’s 

fall. Id. at 301-03. But the panel disagreed about whether Rule of Civil 

Procedure 193.6(a) required exclusion of McElwrath’s testimony. See 

TEX. R. CIV. P. 193.6(a) (barring a party from offering the testimony of a 

witness who was not timely identified unless the court finds good cause 

for the untimely disclosure or the failure to timely disclose would not 

cause unfair surprise or unfair prejudice). The majority rejected 
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Jackson’s contention that the parties had agreed to extend the discovery 

deadline because the purported agreement was neither written nor filed 

as part of the court’s record. 640 S.W.3d at 304-05 (citing TEX. R. CIV.

P. 11); see TEX. R. CIV. P. 191.1 (allowing parties to modify discovery 

rules by agreement but noting such an agreement is unenforceable 

unless it “complies with Rule 11” or is made part of the record in a 

deposition). And it disregarded the assertions by Jackson’s counsel that 

Takara repeatedly referred to McElwrath in Takara’s deposition 

because the relevant deposition testimony was not included in the 

record. 640 S.W.3d at 305. The court concluded the record did not 

contain evidence that Takara “was aware that Jackson considered 

McElwrath to be a person with knowledge of relevant facts” and thus 

Jackson failed to establish a lack of unfair surprise or unfair prejudice. 

Id. Finally, it concluded the trial court’s error in admitting McElwrath’s 

testimony was harmful because Hitchcock’s physical and intellectual 

capabilities were a central issue at trial and McElwrath was the only 

disinterested witness who saw Hitchcock regularly enough to testify 

about them. Id. at 306-07. The majority particularly took issue with 

McElwrath’s testimony that Hitchcock had a “policy” regarding the use 

of a tractor bucket as a work platform, noting Takara had no reason to 

discover such a policy before trial and no evidence in the record 

supported its existence. Id. at 307.

The dissenting justice would have held the trial court did not err 

in finding Takara was not unfairly surprised or unfairly prejudiced by 

McElwrath’s testimony because Takara knew McElwrath and knew that 

she had knowledge of relevant facts about Hitchcock’s life and 
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capabilities. Id. at 309 (Christopher, C.J., dissenting). The dissenting 

justice also concluded that, even assuming admission of McElwrath’s 

testimony was erroneous, it was cumulative of Jackson’s and therefore 

not harmful. Id. The court of appeals reversed and remanded for a new 

trial, id. at 308, and Jackson petitioned this Court for review.

We conclude the court of appeals erred in holding the admission 

of McElwrath’s testimony was an abuse of discretion. Under Rule 193.6, 

a party may not offer testimony from a witness that was not timely 

identified unless the trial court finds that (1) there was good cause for 

the failure or (2) the failure “will not unfairly surprise or unfairly 

prejudice the other parties.” TEX. R. CIV. P. 193.6(a). Thus, once it is 

determined that the witness was not timely designated, a trial court 

must inquire whether there is (1) good cause for failing to timely identify 

the witness or (2) a lack of unfair surprise or unfair prejudice. A court 

of appeals reviews a trial court’s decision under Rule 193.6(a) for abuse 

of discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (“We 

review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion.”).

The court of appeals misapplied Rule 193.6(b)’s requirement that 

a finding of no unfair surprise or no unfair prejudice “must be supported 

by the record,” TEX. R. CIV. P. 193.6(b), by unduly excluding material 

about the discovery process that the trial court had before it as a basis 

for its decision. The trial court was free to find that Takara was not 

unfairly surprised based on Jackson’s counsel’s undisputed 

representations to the court that counsel had agreed to extend discovery, 

that Takara identified McElwrath multiple times during Takara’s
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deposition, and that Takara went to McElwrath’s home on the day the 

parties inspected Jackson’s property.

The court of appeals disregarded counsel’s uncontested 

representations and found error in the trial court’s reliance on them 

because Jackson did not present evidence to support them. 640 S.W.3d 

at 305. But nothing in the text of Rule 193.6 requires the trial court’s 

finding to be supported by specific evidence in the record when it is 

otherwise substantiated by counsel’s uncontested representations to the 

trial court as to the state of discovery in the case. And even if it did, 

counsel’s statements made in open court without any objections satisfy 

that requirement if the trial court credits them, as it did here. See

Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (noting that, while an 

attorney’s statements are not evidence unless made under oath, the oath 

requirement is waived if the opponent fails to object when she “knows 

or should know that an objection is necessary”). In considering whether 

the trial court abused its discretion, the court of appeals should have 

considered counsel’s statements, along with Takara’s trial testimony 

that she “talked to [McElwrath] multiple times throughout all of this.” 

It erred in failing to do so. Had it considered both Takara’s testimony 

and counsel’s uncontested statements as the kinds of record support that 

may satisfy Rule 193.6(a), it would have concluded that the trial court 

did not abuse its discretion by allowing McElwrath to testify.

The court of appeals also erred by concluding that the admission 

of McElwrath’s testimony was harmful error. A court of appeals cannot 

reverse a trial court’s judgment based on the erroneous admission of 

evidence unless the error “probably caused the rendition of an improper 
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judgment.” TEX. R. APP. P. 44.1(a)(1); see Nissan Motor Co. v. Armstrong, 

145 S.W.3d 131, 148 (Tex. 2004) (concluding the erroneous admission of 

evidence on other automobile incidents probably resulted in an improper 

judgment and thus was reversible error because it was “far more than 

cumulative,” was “emphasized at every opportunity,” and was central to 

the liability case). The complaining party must “demonstrate that the 

judgment turns on the particular evidence admitted.” Nissan Motor Co., 

145 S.W.3d at 144. By contrast, the erroneous admission of cumulative 

evidence or evidence that does not control a material and dispositive 

issue is generally harmless and thus does not require reversal of the 

trial court’s judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 

396 (Tex. 1989). In evaluating whether erroneously admitted evidence 

is harmless, we review the entire record, considering, in particular, the 

“state of the evidence, the strength and weakness of the case, and the 

verdict.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 

(Tex. 2008) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 

841 (Tex. 1979)); see also Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 

2018).

Considering the entire record, we cannot agree with the court of 

appeals’ conclusion that the admission of McElwrath’s testimony, even 

if erroneous, would constitute harmful, reversible error. We find no 

merit in the court of appeals’ suggestion that McElwrath’s testimony 

had outsized importance because she was the only disinterested witness 

who interacted with Hitchcock frequently enough to credibly testify 

about the extent of his intellectual and physical deficiencies. While the 

extent of Hitchcock’s capabilities may have been thematically important 
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context the jury considered, there was no suggestion that his deficiencies 

gave rise to a legal incapacity impacting the applicable legal standards. 

Cf. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971) (holding the 

trial court properly refused to submit to the jury the issue of whether a 

child under the age of five was negligent because such a child “was 

incapable of negligence as a matter of law”). For this reason, the 

conflicting testimony regarding the degree of Hitchcock’s physical and 

intellectual deficiencies—with Takara and the psychologist 

emphasizing Hitchcock’s deficiencies and Jackson and McElwrath 

emphasizing his capabilities—was not the case-turning issue Takara 

and the court of appeals made it out to be. Instead, the central disputed 

issue was whether any negligent conduct of Jackson, Hitchcock, or both 

was a proximate cause of Hitchcock’s fall. McElwrath, who was not an 

eyewitness to the incident, had little to offer on this score. Regardless 

of which side the jury ultimately believed about the level of Hitchcock’s 

abilities, it seemingly—and rationally—found that no negligence on 

Jackson’s part, if any, proximately caused Hitchcock’s fall and resulting 

injuries. That conclusion is consistent with the uncontroverted 

documentary evidence of Hitchcock’s own assessment in the emergency 

room—elicited on cross-examination and repeated in closing—of the 

central issue in the case: the cause of his fall was his loss of balance. 

Accordingly, the other disagreement between the majority and dissent 

below—whether McElwrath’s testimony was “cumulative”—is 

ultimately immaterial. There was no basis for a new trial either way.

Finally, the court of appeals’ harm analysis wrongly ascribed 

importance to the fact that McElwrath testified last. See 640 S.W.3d at 
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306 (“McElwrath was the last witness to testify at trial and we presume 

her placement at the end was strategic rather than accidental.”). 

McElwrath was Jackson’s last witness because she was Jackson’s only

witness. The placement of her testimony at the end of the two-day trial, 

dictated by court procedure, simply cannot lend support to the court of 

appeals’ conclusion that her testimony was harmful.

We conclude the court of appeals erred in holding that the trial 

court abused its discretion by allowing McElwrath to testify and in 

concluding that the admission of her testimony probably caused the 

rendition of an improper judgment. Without hearing oral argument, see

TEX. R. APP. P. 59.1, we grant the petition for review, reverse the court 

of appeals’ judgment, and render judgment for Jackson.

OPINION DELIVERED: September 1, 2023