Affirmed and Opinion filed December 11, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00440-CV

DALE L. JOHNSON, Appellant 

V.

NATIONAL OILWELL VARCO, LP, Appellee 

On Appeal from the 152nd District Court 

Harris County, Texas 

Trial Court Cause No. 2013-62983 

O P I N I O N 

Dale L. Johnson appeals from an adverse jury verdict in his racediscrimination, employment-termination case against National Oilwell Varco, LP 

(“NOV”). In seven issues, Johnson contends that the trial court abused its discretion 

in (1) denying his motion for new trial; (2) imposing time limits in the middle of 

trial; (3) refusing to charge the jury in keeping with a federal pattern jury instruction; 

(4) finding that NOV only negligently, as opposed to intentionally, destroyed video 
2 

evidence; (5) failing to order a remedy for destruction of the evidence that would 

have restored Johnson’s ability to prove his case; (6) refusing to sanction NOV; and 

(7) admitting certain evidence while excluding other evidence. We affirm. 

Background 

 In June 2013, Johnson, who is African-American, was terminated from his 

position as a machinist at NOV’s West Little York facility, where he had worked for 

almost 23 years. NOV stated that the reason for the termination was a violation of 

its “lock-out, tag-out” (LOTO) procedures. On June 6, Johnson was working at his 

machine, a Vertical Turning Center or VTC, when a maintenance employee, Henry 

Sierra, placed a red tag on the control panel of the machine. The tag stated “Caution 

Maintenance in Progress,” and according to NOV, such tags were used to indicate 

that a machine should not be operated until the tag was removed or the operator was 

told to run the machine by a maintenance employee or supervisor. 

At the time, Sierra needed to perform repairs on a conveyor that fed parts into 

the VTC. According to Johnson and other witnesses, Sierra only needed to tag the 

conveyor to perform the work safely, he did not need to place the tag on the control 

panel of the VTC. Tagging just the conveyor would have allowed Johnson to 

continue working. Moreover, Johnson and others stated that Sierra should have first 

obtained permission from a supervisor before shutting Johnson’s machine down in 

this manner. After Sierra placed the tag, Johnson, who was purportedly working on 

a rush job, closed the door of his machine and prepared it to begin operating.1 NOV 

and its witnesses maintained that this was a serious breach of LOTO rules and a 

safety hazard that placed Pablo Amador—a maintenance worker who had begun 

working on the conveyor, Sierra, and potentially other employees at risk of injury. 

 

1 Machinists apparently use the phrase “setting the machine” to describe this action.
3 

There was considerable disagreement at trial regarding whether Johnson or Sierra 

had violated LOTO policy and whether any alleged violation was sufficient to 

warrant termination. 

Sierra reported Johnson’s alleged LOTO violation to Johnson’s supervisor, 

Ian Laing, who, after asking Johnson about the incident, reported it in an email to 

the machine shop manager, Kevin Evans. Subsequently, after reviewing written 

statements by Sierra and Amador, and purportedly viewing security video of the 

incident, Laing (Caucasian), Evans (Asian), and Human Resources Manager Gail 

Garcia (Caucasian) agreed that Johnson’s employment should be terminated. The 

termination was effective June 13, 2013. 

Johnson thereafter filed a charge with the Equal Employment Opportunity 

Commission (EEOC) and the present lawsuit, alleging that race was a motivating 

factor in his termination. Among other things, Johnson asserted that Sierra, who is 

Hispanic, had a history of using a racial epithet towards Johnson, and Evans, who is 

Asian, had treated Johnson and another African-American machinist differently than 

he treated other non-African-American employees in the machine shop. In a prior 

lawsuit, Evans had also been accused of retaliation against an employee who had 

made an allegation of discrimination at a previous company where Evans had 

worked. Johnson further asserted that Laing also had treated him differently than 

Laing did other employees. 

Prior to trial, it was revealed that the security video that purportedly showed 

the incident that led to Johnson’s termination had been destroyed. As will be 

discussed in more detail below, there apparently had either been a problem with 

copying the video onto a USB drive or it had been deleted or overwritten after being 

copied. As will also be discussed below, the loss of the video was the subject of 

multiple attempts at recovery, a spoliation claim by Johnson, and requests for 
4 

sanctions. The trial court determined that NOV negligently caused the destruction 

of the video but declined to find that NOV intentionally destroyed the video. The 

trial court therefore declined to give a spoliation instruction to the jury. Although the 

trial court ordered NOV to pay for the attempts to recover the video, it did not 

otherwise sanction NOV for its conduct, and, in fact, denied all five of Johnson’s 

motions for sanctions, as well as one motion for sanctions filed by NOV against 

Johnson’s attorney. 

 Counsel for both sides originally told the judge that they thought the case 

could be tried in four days, but when examination of the first witness took longer 

than expected, the judge raised the issue of time limits for the remainder of the trial. 

The judge expressed concern that one of the jurors had prepaid vacation plans that 

would be jeopardized if the trial went longer than initially expected. After 

consultation with counsel, Johnson was given 7-8 hours to complete his case, and 

NOV was given 6-7 hours to complete its case. Ultimately, the court granted Johnson 

additional time to question at least two witnesses, but Johnson did not present all of 

the witnesses he had originally listed as testifying. 

 Also during trial, the court admitted into evidence Johnson’s EEOC charge 

against NOV over Johnson’s objection. NOV sought with this evidence to show that 

Johnson had changed or supplemented his allegations over time. Contending that 

NOV had thus opened the door to such evidence, Johnson sought to introduce 

evidence concerning how other employees had been treated by NOV under allegedly 

similar circumstances. NOV objected that these comparators were not sufficiently 

similar to support admission, and the trial court sustained the objection. 

At the close of evidence, the jury was asked, among other things, whether race 

was a motivating factor in NOV’s decision to discharge Johnson. The jury charge 

included an instruction explaining what constitutes a “motivating factor.” Johnson 
5 

additionally requested that the charge include a “permissive-pretext” instruction. 

The requested instruction was pulled from the Fifth Circuit Pattern Jury Instructions 

and would have informed the jury that: “If you find that the reason [NOV] has given 

for firing is unworthy of belief, you may, but are not required to, infer that Johnson’s 

race was a motivating factor in [NOV]’s decision to terminate him.” The trial court 

denied Johnson’s request. The jury then returned a 10-2 verdict favoring NOV, and 

the trial court entered final judgment in keeping with the verdict. The trial court 

denied Johnson’s motion for new trial. 

Discussion 

 As stated above, Johnson contends that the trial court erred in (1) denying his 

motion for new trial; (2) imposing time limits; (3) refusing to instruct the jury on 

permissive pretext; (4) failing to find that NOV intentionally destroyed the video; 

(5) failing to order a sufficient remedy for the destruction of the video; (6) refusing 

to sanction NOV; and (7) admitting the EEOC charge while excluding comparator 

evidence. Because Johnson’s first issue merely congregates arguments made under 

other issues, we will address that issue last. 

I. Time Limits 

In his second issue, Johnson contends that the trial court erred in imposing 

time limits on the presentation of evidence. Johnson’s main complaints are that the 

limits were imposed after trial had already begun and to preserve a juror’s prepaid 

vacation. We conclude that Johnson failed to preserve his complaints in the trial 

court and, even if Johnson had preserved the issue, the trial court did not abuse its 

discretion by imposing time limits under the circumstances. 

A. Governing Law 

Pursuant to Texas Rule of Evidence 611, trial courts “should exercise 
6 

reasonable control over the mode and order of interrogating witnesses and presenting 

evidence so as to: (1) make those procedures effective for determining the truth; (2) 

avoid wasting time; and (3) protect witnesses from harassment or undue 

embarrassment.” Tex. R. Evid. 611(a). Moreover, every trial court has the inherent 

power to control the disposition of the cases on its docket “with economy of time 

and effort for itself, for counsel, and for litigants.” Hoggett v. Brown, 971 S.W.2d 

472, 495 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (quoting Landis v. N. 

Am. Co., 299 U.S. 248, 254 (1936)). “How this can best be done calls for the exercise 

of judgment, which must weigh competing interests and maintain an even balance.” 

Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ 

denied) (quoting Landis, 299 U.S. at 254–55). Accordingly, the trial court’s inherent 

power, together with applicable rules of procedure and evidence, accord trial courts 

broad, but not unfettered, discretion in managing trials. State v. Gaylor Inv. Tr. 

P’ship, 322 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2010, no pet.); 

Hoggett, 971 S.W.2d at 495; Metzger, 892 S.W.2d at 38. 

B. Additional Background 

Prior to the start of trial, counsel for both sides represented to the trial judge 

that the case would take four days to try. On the basis of these representations, the 

judge allowed someone to serve on the jury who had a prepaid vacation scheduled 

that would allow for five to five-and-a-half days of testimony plus another day for 

deliberations.2

 Although the judge disqualified other potential jurors due to time 

conflicts, he stated that he would not disqualify that particular potential juror because 

 

2 The record on appeal does not include the voir dire examination of the jury panel or 

related proceedings, but the trial judge related the pertinent facts during later discussions, and 

counsel either agreed with or did not note any inaccuracies in the judge’s recounting. We presume 

that the missing portions of the record would support the trial court’s judgment. See, e.g., Aduli v. 

Aduli, 368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
7 

counsel had represented that the trial would be over in time for the potential juror to 

leave on his vacation. No one asked the potential juror when his vacation would end. 

Johnson’s counsel did not object to the potential juror, and he was placed on the jury. 

By the end of the first day of testimony, examination of the first witness 

(Johnson himself) was taking considerably longer than expected, in part due to the 

number of bench conferences that were being requested. The judge expressed 

concern that the trial would not be completed by the time the juror needed to leave 

for vacation and also noted that “I think everybody in this courtroom wants to get 

this over with for a lot of different reasons but not the least of which [is] the 

stress . . . litigation has on people.” NOV’s counsel stated that he also had a conflict 

if the case went longer than anticipated. 

The judge therefore discussed with counsel for both sides how to get the case 

tried within the budgeted time. Together, counsel and the judge went through the 

estimated time needed for the examination of each of the expected remaining 

witnesses. Johnson’s counsel stated that she respected the court’s “right to pare down 

the case” and actively participated in the discussion. When the estimates exceeded 

the available time, the judge suggested four possibilities: impose time limits on 

testimony, declare a mistrial, proceed with 11 jurors, or pause the trial while the juror 

was on vacation. Both sides staunchly agreed that they did not want a mistrial. The 

judge, however, indicated that the court may not have enough time to complete the 

case if the examination of witnesses continued to exceed time estimates. NOV’s 

counsel offered ways he could pare down his case, and he offered to accept less time 

than Johnson, so long as the time limitations were strictly enforced. The judge 

dismissed counsel for the day, telling Johnson’s counsel to return the next day with 

ideas on how she could pare down her case. The court again indicated that he would 

have to consider a mistrial if the case could not be completed in the time allotted. 
8 

The next day, after the completion of Johnson’s testimony, the judge began 

the discussion concerning time by stating that he was “probably” going to impose 

time limits, allotting 7-8 hours for Johnson to finish his examination of witnesses, 

and 6-7 hours for NOV.3 Johnson’s counsel then stated her only express objection 

to time limits: “for the record, I’m opposed to the time limit.” The trial judge 

requested useable, equitable alternatives, and Johnson’s counsel suggested NOV 

could concede the amount of attorney’s fees Johnson would be awarded if Johnson 

succeeded on the merits. When NOV’s counsel responded by suggesting that, if 

necessary, the amount of attorney’s fees could be tried to the bench after the jury 

returned its verdict, Johnson’s counsel stated that she was about to propose the same 

thing. 

The following exchange then occurred: 

THE COURT: [Johnson’s counsel], do you agree to try the attorney’s 

fees, in the event you are the prevailing . . . party[,] to the Court after 

the jury has rendered a Verdict? 

[Johnson’s Counsel]: Yes. 

THE COURT: Thank you. . . . Tell me what else you think is a more

equitable situation. What else would you do in this situation? What’s 

your suggestion?

[Johnson’s Counsel]: We’ve already shaved off an hour. 

THE COURT: No. I think we shaved off two hours. I legitimately think 

we’ve shaved off two hours. The question here is can you shave—if 

there—if I say there are 15 hours of trial time to be divvied up and I do 

eight to the Plaintiff and seven to the Defendant, that, by the way, 

includes whatever is left on Mr. Johnson, which, by the way, I think 

y’all have had enough from Mr. Johnson. 

 

3 As indicated, the time limits were imposed after Johnson had testified over two days. The 

limits also did not include the parties’ opening or closing arguments or voir dire of the jury panel.
9 

[NOV’s Counsel]: Oh, I’ve got 15 minutes, your Honor. 

THE COURT: And that’s—and that’s about it. 

[NOV’s Counsel]: Yes, sir. 

THE COURT: And, in fact, I would say that we need to get finished 

with Mr. Johnson in 30 minutes in on Monday. 

[NOV’s Counsel]: I have 15. 

[Johnson’s Counsel]: 15 for the Plaintiff and 15 for the Defendant. 

[NOV’s Counsel]: Fine. You can hold me to it, Judge. 

THE COURT: You good with that, [Johnson’s counsel]? 

[Johnson’s Counsel]: Yes. I am trying to be good with it. 

THE COURT: It makes you become very efficient. So, here’s what I’m 

going to do: I’m going to proceed with the thought that we have 15 

hours of trial time on Monday and Tuesday. 

The trial judge then mentioned speaking to the jury about taking shorter breaks and 

the discussion ended. 

 Thereafter, the subject of time limitations came up sporadically as the court 

reminded counsel that they were running out of time or needed to stick to the most 

pertinent questions. On at least two occasions, the judge honored Johnson’s 

counsel’s request for additional time to question a witness. On appeal, Johnson 

complains that he was unable to put on five of his twenty listed witnesses and had to 

cut short the examination of several others. 

C. Failure to Preserve Complaint 

To preserve a complaint for appellate review, a party must make a timely and 

sufficiently specific request, objection, or motion stating the specific grounds for the 

desired ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a). 
10

Failure to make a timely, specific objection to time limits imposed by a trial court 

waives any error. Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118, 126–

27 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 

Although Johnson’s counsel at one point stated that she was “opposed to the 

time limit,” she did not cite any legal basis for this objection. To the contrary, 

counsel had already agreed that the court had the “right to pare down the case.” More 

importantly, after stating her opposition, counsel appeared to agree that trying 

attorney’s fees to the bench would cut sufficient testimony to enable the trial to 

conclude in the time allotted. Johnson does not point to any place in the record where 

counsel renewed her objection or attempted to present a witness that the trial court 

did not permit. It is also worth noting that counsel did not complain when the juror—

whose vacation schedule was the primary time constraint—was placed on the jury. 

Accordingly, Johnson did not preserve his complaint regarding the trial court’s 

imposition of time limits. See, e.g., Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-

CV, 2011 WL 6118573, at *11–12 (Tex. App.—Austin Dec. 8, 2011, pet. denied) 

(holding party waived complaint regarding time limits imposed mid-trial by failing 

to make a timely, specific objection); State v. Reina, 218 S.W.3d 247, 254 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (same).

D. No Abuse of Discretion 

Additionally, even if Johnson had preserved his complaint regarding the time 

limitations, the trial court did not abuse its discretion under the circumstances. As 

set forth above, when examination of the first witness went considerably longer than 

expected, the trial judge found himself in a difficult position. Based on the parties’ 

mutual representation that the trial would take approximately four days, the judge 

had allowed a juror on the jury who had a prepaid vacation scheduled to commence 

at a time that would allow for approximately five to five-and-a-half days of 
11

testimony plus time for deliberations. Neither side had objected to putting that juror 

on the jury. The judge therefore discussed the issue of time with the attorneys, 

working diligently to determine how much time was still needed and how the 

presentation of evidence could be pared down to fit the time available. 

Although the juror’s vacation schedule appears to have been the main catalyst 

for the trial judge’s concern, the judge also indicated that it was in everyone’s interest 

to complete the proceedings efficiently, and NOV’s counsel stated that he also had 

a conflict if the trial continued past the time allotted. Moreover, Johnson’s counsel 

acknowledged that making the juror miss his prepaid vacation would not be a good 

idea, as it might make him angry. 

In hindsight, Johnson urges that the court should have more strongly 

considered pausing the trial and then reconvening after the juror returned from 

vacation, but counsel did not urge this remedy during trial. The trial judge may also 

have considered the inconvenience and disruption that pausing the trial before 

completion would likely have caused to the court itself, the parties, and the jurors. 

See Hoggett, 971 S.W.2d at 495 (explaining that a trial court has inherent power to 

control the disposition of cases on its docket “with economy of time and effort”); 

see also Reina, 218 S.W.3d at 255 (noting, in holding trial judge did not err in 

refusing to grant party more time to examine witness, the judge considered the effect 

that an extension would have on jurors). The judge indicated that if the case was 

going to take much longer to try, it would have to be moved six months further down 

the court’s docket, presumably because the docket was crowded with other matters. 

These factors may have led the judge to choose the option of time limits rather than 

pausing and later reconvening the trial. And regardless, the availability of another 

option alone does not mean that the judge abused his discretion in imposing time 

limits. 
12

Johnson additionally emphasizes that the time limits were imposed after the 

trial had already begun; however, he does not cite any authority suggesting this was 

improper. As happened here, the pace of a trial—and the resulting need for time 

limits—may only become apparent after a trial has begun. See, e.g., Walker v. 

Hitchcock I.S.D., No. 01-11-00797-CV, 2013 WL 3771302, at *7 (Tex. App.—

Houston [1st Dist.] July 16, 2013, no pet.) (holding trial court did not abuse its 

discretion in imposing time limits mid-trial). 

The record demonstrates that the judge acted with diligence and fairness in 

considering the options and dividing the remaining time, even giving Johnson an 

hour longer to present his case than NOV received and further extending that time 

when Johnson requested additional time to examine two of the witnesses. See 

Metzger, 892 S.W.2d at 38 (stating that a judge must exercise his or her judgment in 

managing trials while weighing competing interests and maintaining an even 

balance). Under the circumstances presented, the trial court’s decision to impose 

time limits during trial was not arbitrary, unreasonable, or without reference to 

guiding principles. See Gaylor Inv., 322 S.W.3d at 816, 819. Accordingly, the trial 

court did not abuse its discretion, and we overrule Johnson’s second issue. 

II. Permissive Pretext Instruction 

In his third issue, Johnson contends that the trial court erred in refusing to 

include a permissive-pretext instruction in the jury charge. Question 1 of the charge 

read as follows: 

QUESTION 1 

Was race a motivating factor in Defendant’s decision to discharge 

Plaintiff?

A “motivating factor” in an employment decision is a reason for making 

the decision at the time it was made. There may be more than one 

motivating factor for an employment decision. 
13

In addition to the “motivating factor” instruction, which was included, Johnson 

requested a permissive-pretext instruction that read: “If you find that the reason 

Defendant has given for firing is unworthy of belief, you may, but are not required 

to, infer that Plaintiff’s race was a motivating factor in Defendant’s decision to 

terminate him.” Johnson asserts that because the claim submitted in Question 1 was 

under federal law, the permissive-pretext instruction was required pursuant to 

precedent of the Fifth Circuit Court of Appeals and the Fifth Circuit Pattern Jury 

Instructions. 

A. Standards of Review 

A trial court has considerable discretion in determining which jury 

instructions are necessary and proper in a particular case. In re V.L.K., 24 S.W.3d 

338, 341 (Tex. 2000). We therefore review a trial court’s refusal to submit a 

particular instruction for an abuse of discretion. Id. A jury should not be burdened 

with surplus instructions, even those that accurately state the law. Arocha v. State 

Farm Mut. Auto. Ins. Co., 203 S.W.3d 443, 445 (Tex. App.–Houston [14th Dist.] 

2006, no pet.). When a trial court refuses to submit a requested instruction, the 

question on appeal is whether the request was reasonably necessary to enable the 

jury to render a proper verdict. See Tex. R. Civ. P. 277 & 278; Tex. Workers’ Comp. 

Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex. 2000). We may reverse and 

remand based on jury-charge error only if it was reasonably calculated and probably 

did cause the rendition of an improper judgment, considering the pleadings, the 

evidence presented at trial, and the charge in its entirety. See Tex. R. App. P. 

44.1(a)(1); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 

S.W.2d 551, 555 (Tex. 1986). 

B. Johnson’s Authority Is Not Controlling 

In support of his position, Johnson principally relies upon the Fifth Circuit’s 
14

opinion in Ratliff v. City of Gainesville, Tex., 256 F.3d 355 (5th Cir. 2001). As an 

intermediate Texas court of appeals, we are not bound to follow precedent from the 

Fifth Circuit even on matters of federal law. See Penrod Drilling Corp. v. Williams, 

868 S.W.2d 294, 296 (Tex. 1993). We may consider Fifth Circuit opinions as 

persuasive authority but are only bound to follow precedent on federal matters from 

the United States and Texas supreme courts. Id. Neither supreme court has stated an 

opinion on whether a permissive-pretext instruction is necessary in a Title VII 

discrimination case. Moreover, as will be discussed below, the federal circuits have 

split on this issue, and a subsequent panel of the Fifth Circuit has disagreed with the 

Ratliff panel regarding whether the instruction is required. See Kanida v. Gulf Coast 

Med. Pers. LP, 363 F.3d 568, 574-77 (5th Cir. 2004) (noting split among circuits, 

disagreeing with Ratliff, following it anyway as precedential, but holding any error 

in failing to instruct the jury was harmless); see also Estrada v. City of San Antonio, 

452 F. App’x 573, 575 (5th Cir. 2011) (following both Ratliff and Kanida).

Johnson’s citation to the Fifth Circuit Pattern Jury Instructions is equally 

unavailing. The pattern instructions do not have the force of law and need not be 

followed even by federal district courts within the Fifth Circuit’s jurisdiction. See 

United States v. Porter, 542 F.3d 1088, 1097 (5th Cir. 2008); United States v. 

Williams, 20 F.3d 125, 132 (5th Cir. 1994). 

C. Issue of First Impression 

As this is an issue of first impression in our court, we now examine authority 

both holding the instruction is required and concluding that the instruction is not 

required. In Ratliff, the case Johnson relies upon, a panel of the Fifth Circuit 

concluded that a permissive-pretext instruction was required by extension of 

principles set forth by the United States Supreme Court in Reeves v. Sanderson 

Plumbing Products, Inc., 530 U.S. 133 (2000). In Reeves, the Court clarified the 
15

legal burden of production a Title VII discrimination plaintiff must meet in order to 

have his or her case go to a jury, explaining that “a plaintiff’s prima facie case [of 

discrimination], combined with sufficient evidence to find that the employer’s 

asserted justification is false, may permit the trier of fact to conclude that the 

employer unlawfully discriminated.” 530 U.S. at 146-48.

Concerned that in the absence of a permissive-pretext instruction, jury 

deliberations would “depend on whether the jurors are smart enough or intuitive 

enough to realize that inferences of discrimination may be drawn from the evidence 

establishing plaintiff’s prima facie case and the pretextual nature of the employer’s 

proffered reasons for its actions,” the panel in Ratliff concluded that “[i]t does not 

denigrate the intelligence of our jurors to suggest that they need some instruction in 

the permissibility of drawing that inference.” 256 F.3d at 361 n.7 (quoting Smith v. 

Borough of Wilkinsburg, 147 F.3d 272, 281 (3d Cir.1998)).

In Kanida, a subsequent panel of the Fifth Circuit criticized the Ratliff panel’s 

extension of Reeves and conclusion that an instruction was necessary on five 

grounds. 147 F.3d at 574-77. First, Reeves only addressed the proper analysis in 

directed verdict and summary judgment cases and not in jury trials. Second, nothing 

in Reeves indicates an intention to change what a plaintiff must ultimately prove, 

i.e., that the adverse employment action was motivated by actual discriminatory 

intent.4

 Third, a jury may make numerous inferences from the evidence and requiring 

a specific instruction on just one permissible inference risks confusing the jury. 

Fourth, the jury in Kanida received proper instructions regarding the ultimate legal 

question and that it was permitted to draw reasonable inferences justified by the 

 

4 As the Fifth Circuit recognized in both Ratliff and Kanida, the permissive-pretext 

instruction is “only an evidentiary instruction, and to prevail employees must prove that the 

employer’s actions were taken because of the prohibited motivation.” Kanida, 363 F.3d at 573 

(citing Ratliff, 256 F.3d at 359 n.3).
16

evidence. And fifth, the plaintiff in Kanida was free to argue that actual 

discriminatory intent was the proper inference to draw from evidence that the 

employer’s purported reasons for its actions were mere pretext.5 

Other federal circuits have split on this question, taking similar positions to 

those found in either Ratliff or Kanida. Compare Townsend v. Lumbermens Mut. 

Cas. Co., 294 F.3d 1232 (10th Cir. 2002), Smith v. Borough of Wilkinsburg, 147 

F.3d 272 (3d Cir. 1998), and Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994) 

(holding permissive-pretext instruction is required), with Browning v. United States, 

567 F.3d 1038, 1041 (9th Cir. 2009), Conroy v. Abraham Chevrolet–Tampa, Inc., 

375 F.3d 1228 (11th Cir. 2004), Moore v. Robertson Fire Prot. Dist., 249 F.3d 786 

(8th Cir. 2001), Fite v. Digital Equip. Corp., 232 F.3d 3 (1st Cir. 2000), and Gehring 

v. Case Corp., 43 F.3d 340 (7th Cir. 1994) (holding or suggesting a permissivepretext instruction is not required). The one other Texas court of appeals to address 

the issue has concluded that the instruction is not required. See Collie v. IBEX 

Staffing Sols., Inc., No. 04-14-00269-CV, 2015 WL 1094825, at *3-4 (Tex. App.—

San Antonio March 11, 2015, no pet.) (mem. op.) (tracking the reasoning in Kanida).

We join our sister court. Under Texas law, even instructions that are proper 

statements of the law are not required, and a failure to include a requested instruction 

constitutes reversible error only when the instruction in question was reasonably 

necessary to enable the jury to render a proper verdict. See Tex. R. Civ. P. 277 & 

278; Mandlbauer, 34 S.W.3d at 911; Arocha, 203 S.W.3d at 445. We agree with the 

panel in Kanida that the United States Supreme Court’s analysis in Reeves does not 

 

5 As mentioned above, the Kanida panel found itself bound by the precedent in Ratliff that 

the instruction was required; it therefore followed Ratliff while calling for en banc consideration 

of the issue. See Kanida, 363 F.3d at 574-77. The Kanida panel went on to hold, however, that the 

trial court’s error in not including the permissive-pretext instruction was harmless. Id. at 578. As 

stated, we are not bound by Fifth Circuit precedent. See Penrod Drilling, 868 S.W.2d at 296.
17

mandate or suggest that a permissive-pretext instruction should be given. Kanida, 

147 F.3d at 574-76. As in Kanida, the jury here was properly instructed both 

regarding Johnson’s ultimate burden and the jury’s own ability to draw reasonable 

inferences from the evidence. Id. at 577. Johnson was also able to and did explain to 

the jury in closing argument how it could infer discriminatory intent from the 

evidence. See id. Under the circumstances, the trial judge may have reasonably 

concluded that including a permissive-pretext instruction could have caused juror 

confusion regarding what inferences should or should not be drawn from the 

evidence. See id. at 576. Such a specific instruction was not reasonably necessary 

for the jury to render a proper verdict. Consequently, the trial judge did not abuse 

his discretion. In re V.L.K., 24 S.W.3d at 341. 

We overrule Johnson’s third issue. 

III. Destruction of Video Evidence 

In his fourth issue, Johnson asserts that the trial court abused its discretion in 

determining that NOV only negligently, as opposed to intentionally, destroyed the 

video evidence that purportedly showed the incident that led to Johnson’s 

termination. In issue five, Johnson contends that the trial court erred in failing to 

order a remedy for destruction of the video that would have restored Johnson’s 

ability to prove his case. After a hearing on spoliation, the trial court determined that 

NOV negligently destroyed the video, or allowed it to be destroyed, and ordered the 

parties not to discuss the video, but the court refused to give the jury an instruction 

on spoliation. 

A. Law on Spoliation 

It is a fundamental tenet of our legal system that trials should be decided on 

the merits, but when one party destroys evidence or permits evidence to be 
18

destroyed, this can make fair presentation of the merits difficult. Brookshire Bros. v. 

Aldridge, 438 S.W.3d 9, 13, 16 (Tex. 2014). Conversely, the imposition of severe 

sanctions can shift the focus of a case from the merits to the gravity of the spoliating 

party’s improper conduct. Id. at 13. A spoliation jury instruction—which informs 

the jury that it must presume that the missing evidence would have harmed the 

spoliating party’s position—is a severe sanction. Id. at 13, 22. Indeed, the “very 

purpose” of the spoliation instruction is to “nudge or tilt the jury toward a finding 

adverse to the alleged spoliator.” Id. at 17 (quoting Wal-Mart Stores, Inc. v. Johnson, 

106 S.W.3d 718, 724 (Tex. 2003)). Accordingly, a spoliation instruction is

warranted only when (1) the spoliating party acted with specific intent to conceal 

discoverable evidence and a less severe remedy would be insufficient to reduce the 

prejudice to the nonspoliating party or (2) the spoliating party negligently failed to 

preserve evidence and the nonspoliating party has thereby been deprived of any 

meaningful ability to present a claim or defense. Id at 14.

Whether a party spoliated evidence and whether a particular remedy is 

appropriate are questions of law for the trial court. Id. at 14, 20. We review the trial 

court’s determinations on these issues under an abuse of discretion standard. Id. at 

27.

To hold that a party spoliated evidence, a trial court must find that the party 

had a duty to preserve the evidence and intentionally or negligently breached that 

duty. Id. at 14. Any remedy imposed for spoliation must have a direct relationship 

with the offensive conduct and the offender and be no more severe than necessary 

to satisfy its legitimate purpose. See id. at 21. The purpose of any sanction for 

spoliation is “to impose an appropriate remedy so that the parties are restored to a 

rough approximation of what their positions would have been were the evidence 

available.” Id. at 18 (citing Wal–Mart Stores, 106 S.W.3d at 721). 
19

When the proper standard of review is abuse of discretion, challenges to the 

sufficiency of the evidence are not independent grounds for reversal but instead are 

factors to be considered in determining whether the trial court abused its discretion. 

In re J.R.P., 526 S.W.3d 770, 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). 

Evidence is legally sufficient if it would enable reasonable and fair-minded people 

to reach the decision under review. Id. Evidence is factually sufficient if it is not so 

contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust. Id. The factfinder is the sole judge of the witnesses’ credibility and the weight 

to be given their testimony, and we may not interfere with the factfinder’s resolution 

of conflicts in the evidence. Id. 

After assessing the sufficiency of the evidence, we determine whether, based 

on the evidence, the trial court made a reasonable decision. Id. We will affirm the 

decision unless it is arbitrary or unreasonable or without reference to guiding rules 

or principles. Id. 

B. Additional Background

At a hearing on Johnson’s motion for a spoliation instruction, the trial court 

heard from six witnesses regarding the loss of the video. Garcia, Evans, and another 

NOV employee, Harvey Sterling, viewed the video from a security system server. 

Sterling’s description of the video largely matched a timeline of the video that Garcia 

had emailed to Laing on the same day that she viewed the video. Evans stated that 

he considered the video cumulative of statements made by Johnson, Sierra, and 

Amador. 

According to Sterling, after Garcia asked him to make a copy of the video, he 

gave the camera technician a USB drive on which to make a copy, and the technician 

returned the USB drive on the same day. Sterling stored the USB drive in an 

unlocked file cabinet, but Garcia never retrieved or otherwise obtained it. After 
20

Johnson filed his EEOC charge, Sterling retrieved the USB drive but was unable to 

get the video to play.6

 Sterling then asked an NOV IT employee, Jonathan 

McDonald, to see if he could pull the video data file from the drive.7

 McDonald 

testified that although he believed he was able to recover the data file, it was not 

playable. He then sent the USB drive to two data recovery companies that were also 

unable to recover a playable video file. The server on which the video was originally 

recorded was set to delete files automatically after a period of time, so the original 

data was no longer available by this time. 

According to Johnson, when he requested the video in September 2014, NOV 

initially responded just that the video was “unavailable” but then subsequently 

clarified that it had been overwritten after 21 days. Johnson further asserts that NOV 

did not reveal the existence of the USB drive until Johnson deposed Sterling.8

Johnson thereafter made the USB drive the subject of both a motion for sanctions 

and a motion to compel. The trial court denied the sanctions motion but compelled 

NOV to produce information regarding the video and the USB drive. At this point, 

NOV produced a CD with files allegedly recovered from the USB drive but not a 

playable version of the video. 

Johnson’s IT expert, Carlos Townsend, testified that he was able to recover 

even more files from the USB drive. Townsend testified that he “pretty much” was 

 

6

 Garcia acknowledged that there had been intermittent problems copying videos from that 

particular server.

7 As Johnson notes, there appears to be some discrepancy in the color or colors of the USB 

drive as described by Sterling and McDonald, although in his testimony at the hearing, McDonald 

stated that he really did not remember the color.

8

Johnson does not provide citation to the voluminous record for many of his assertions. 

Furthermore, some of the provided citations are not to relevant portions of the record. See, e.g., 

Univ. Gen. Hosp., LP v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 557 n.6 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (explaining that appellate court is not required to make an 

independent search of a voluminous record for evidence supporting a party’s position).
21

able to view at least a portion of all of the video files on the USB drive except for 

the video of the incident that precipitated Johnson’s termination.9

 He further stated 

that he found it “quite odd” that the USB drive appeared to be blank before recovery 

software was used on it. He indicated that typically after deletion, information would 

still be visible on the drive. On cross-examination by NOV’s counsel, Townsend 

acknowledged that there was no indication that various ways to intentionally remove 

data had been used on the USB drive, including use of a wiping tool, renaming the 

file, reformatting, or putting a magnet next to the drive. He further acknowledged 

that multiple files had been copied to the USB drive over a period of time.

As stated above, the trial court found that NOV negligently destroyed the 

video and ordered the parties not to discuss the video but refused to find that the 

destruction was intentional and refused to give the jury an instruction on spoliation 

as Johnson requested. 

C. Negligent Destruction 

We first turn to Johnson’s complaint that the trial court abused its discretion 

in determining that NOV’s destruction of the video was only negligent and not 

intentional. Although Johnson appears to concede that there is no direct evidence 

that NOV intentionally destroyed the video, he insists that the trial court should have 

inferred intent from the circumstances.10 See Tex. First Nat’l Bank v. Ng, 167 S.W.3d 

842, 853 (Tex. App.—Houston [14th Dist.] 2005, judgm’t vacated w.r.m.) (“Intent 

may certainly be proven by circumstantial evidence.”). Johnson specifically alleges 

 

9 The file name included a date and time identification code that was from the same date 

and time as the incident.

10 Johnson also asserts that the trial court erred in failing to consider the entire record in 

making its spoliation determination, citing Mercedes-Benz USA, LLC v. Carduco, Inc., No. 13-13-

00296-CV, 2016 WL 1274535, at *26 (Tex. App.—Corpus Christi Mar. 31, 2016, pet. filed) (mem. 

op.). However, he does not cite any place in the record suggesting the trial court failed to consider 

the entire record, and NOV denies that this occurred.
22

that the record shows that NOV: (1) delayed revealing the existence of the USB 

drive, (2) made inconsistent statements regarding the contents of the USB drive, and 

(3) failed to keep the USB drive safe and permitted other employees to use it for 

other purposes. Johnson further relies on other alleged conduct by NOV or its 

counsel in supposedly lying about having produced all human resources documents 

relating to the case, defying the trial court’s order to choose a neutral computer 

forensics company relating to a search of NOV databases on another matter (see 

below), and the allegedly unexplained relationship between NOV’s counsel and the 

selected forensics company in another case. 

The trial court could well have considered all of these matters. But the court 

may also have found the testimony of the NOV employee-witnesses credible. See In 

re J.R.P., 526 S.W.3d at 777; see also Siddiqui v. Fancy Bites, LLC, 504 S.W.3d 

349, 371 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Intent is a fact 

question uniquely within the realm of the trier of fact because it so depends upon the 

credibility of the witnesses and the weight to be given to their testimony.” (quoting 

Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986))). Even if the 

judge believed NOV delayed, concealed, and obfuscated after litigation began, it 

does not mean that the judge also had to conclude that the employees were lying 

about what happened with the USB drive. As set forth above, evidence supports the 

conclusions that the security server on which the video was originally kept 

automatically deleted the video before Johnson filed his EEOC charge, and an 

attempt was made to copy the video onto a USB drive but either the transfer process 

was unsuccessful (the server apparently had a history of such problems) or the video 

file was subsequently lost as the USB drive was reused multiple times. Although 

Johnson’s IT expert, Townsend, found it “odd” that the USB drive appeared blank 

when viewed without the use of recovery software, he did not expand on whether 
23

this suggested foul play of any sort, and he agreed that there was no evidence that a 

number of ways to intentionally destroy data on a USB drive had been utilized. 

Based on the available evidence, the trial court reasonably concluded that the 

destruction of the video was due to NOV’s negligence and was not intentional. The 

evidence indicates that NOV did not do enough to keep the video file protected, but 

the evidence does not mandate a finding of intentional destruction. Accordingly, we 

overrule Johnson’s fourth issue. 

D. Spoliation Remedy 

Johnson additionally argues that even if the trial court properly found that 

NOV only negligently destroyed the video, the court abused its discretion in not 

granting a remedy for spoliation that would have effectively returned him to the 

position that he would have been in had spoliation not occurred. See Brookshire 

Bros., 438 S.W.3d at 18. Johnson asserts the trial court should have imposed three 

additional remedies that it did not, i.e., the court should have: (1) awarded Johnson 

his attorney’s fees, costs, and expenses relating to spoliation; (2) given a spoliation 

instruction to the jury based on the finding of negligent destruction by NOV; and (3) 

told the jury that NOV claimed that it had the video but then deleted it without saying 

whether such destruction was intentional or negligent. For the following reasons, we 

conclude that none of Johnson’s arguments have merit. 

As the court in Brookshire Brothers emphasized, a trial court has broad 

discretion in fashioning an appropriate remedy for spoliation, and such remedy could 

certainly include an award of attorney’s fees, costs, and expenses to the 

nonspoliating party. 438 S.W.3d at 14, 21. Johnson, however, addresses this 

potential remedy in only half of one sentence in his brief. He offers neither any 

particular argument nor any citation to the record in support of this proposed remedy. 

See Tex. R. App. P. 38.1(i) (requiring that an appellant’s brief must contain a “clear 
24

and concise argument for the contentions made, with appropriate citations to 

authorities and to the record”). Specifically, Johnson does not assert that he 

established what amount of fees, costs, and expenses were attributable to the 

spoliation issue, and he offers no citation to any such proof in the record. 

Accordingly, Johnson has waived this argument on appeal. See, e.g., Bruce v. 

Cauthen, 515 S.W.3d 495, 512 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); 

Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395, 401 (Tex. App.—

Houston [14th Dist.] 2004, no pet.).11

Next, Johnson is correct that in Brookshire Brothers, the supreme court 

indicated that a spoliation instruction might be warranted when the spoliating party 

negligently failed to preserve evidence and the nonspoliating party has thereby been 

deprived of any meaningful ability to present a claim or defense. 438 S.W.3d at 14. 

The court cautioned, however, that this would be a rather rare circumstance. Id. 

Undoubtedly, the video would have been an important piece of evidence in this case, 

as it reportedly showed the incident for which Johnson was ostensibly terminated. 

We cannot say, however, that the trial court abused its discretion in determining that 

the absence of the video deprived Johnson of any meaningful ability to present his 

case. 

Johnson does not dispute that during the incident in question, he closed the 

doors to his machine and set the machine after Sierra placed the tag on the machine’s 

control panel. This is indeed what Garcia and Sterling said that the video showed 

 

11 Although not referenced by Johnson, it appears that he filed a post-judgment motion for 

attorney’s fees, expenses, and costs relating to the spoliation issue and his fifth motion for 

sanctions (discussed below). The motion and attached documentation generally does not 

differentiate between fees related to spoliation and fees related to other items covered in the fifth 

sanctions motion. Moreover, Johnson offers no explanation as to why this motion should be 

considered timely. Regardless, Johnson has not properly presented his argument on appeal. See 

Bruce, 515 S.W.3d at 512; Thomas, 148 S.W.3d at 401.
25

and is what NOV claims was a LOTO violation. With one exception, the key 

disputes in this case were not so much about what happened but whether Johnson’s 

conduct amounted to a LOTO violation, whether the alleged violation was serious 

enough to merit termination, and whether race was a motivating factor in Johnson’s 

termination. The one point of disagreement regarding the incident that Johnson 

references and the video may have helped resolve concerned whether Sierra pressed 

the stop button on Johnson’s control panel when he placed the tag on the panel. 

Sierra claimed that he pressed the button and that this deenergized the machine. 

Johnson testified that Sierra did not press the button and that, even if he had, it would 

not have deenergized the machine. While we do not know whether the video would 

have resolved this factual dispute, it certainly would have been preferable for the 

jury to be able to see it. However, as noted, Johnson’s case did not turn on resolution 

of that one dispute. Accordingly, the trial court did not abuse its discretion in 

refusing to give the spoliation instruction in light of its determination that NOV 

negligently spoliated the evidence. 

Lastly, Johnson argues that the trial court should have, in the absence of a 

spoliation instruction, informed the jury that NOV claimed it had a video that 

supported its reason for terminating Johnson but also claimed that the video was 

deleted. Johnson suggests that this information could have been imparted without 

referencing whether the destruction of the video was intentional. This approach 

would have essentially left it up to the jury to determine whether spoliation occurred 

and what to make of the video’s destruction. The court in Brookshire Brothers, 

however, clearly rejected such an approach when it emphasized that “the trial court, 

rather than the jury, must determine whether a party spoliated evidence and, if so, 

impose the appropriate remedy.” Id. at 20. 

Finding no merit in any of Johnson’s arguments concerning other potential 
26

spoliation remedies, we overrule his fifth issue. 

IV. Sanctions 

In his sixth issue, Johnson contends that the trial court erred in refusing to 

sanction NOV and its counsel for allegedly disobeying court orders, lying about the 

reasons they failed to comply, and concealing documents and data. We review a trial 

court’s decision to grant or deny sanctions for an abuse of discretion. See Am. Flood 

Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam); Clark v. 

Bres, 217 S.W.3d 501, 515 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). 

When reviewing matters committed to the discretion of a trial court, we may not 

substitute our judgment for that of the court below. Bowie Mem’l Hosp. v. Wright, 

79 S.W.3d 48, 52 (Tex. 2002) (per curiam). Rather, our review is limited to deciding 

whether the trial court acted arbitrarily, unreasonably, or without reference to 

guiding rules or principles. Am. Flood Research, 192 S.W.3d at 583. A trial court 

does not abuse its discretion if it bases its decision on conflicting evidence and some 

evidence supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 

(Tex. 2009) (per curiam). The party moving for sanctions bears the burden of 

overcoming the presumption that pleadings and other papers are filed in good faith. 

See id.

A. The Motions 

Johnson specifically references his first, fourth, and fifth motions for 

sanctions, although it is not entirely clear whether he is arguing on appeal that the 

trial court should have granted one, more, or all of these motions. Johnson’s first 

motion for sanctions involved, among other things, NOV’s failure to produce a 

written progressive discipline policy. Johnson requested the policy in discovery, but 

NOV claimed that it did not exist, despite the fact that Evans mentioned that he had 

received written “guidelines” in 2013 and Garcia stated that she thought they had a 
27

written policy. In response to the motion, NOV continued to deny the document’s 

existence. Although it is not clear whether the trial court expressly denied the 

motion, it is clear that the trial court did not grant the motion. 

Johnson’s fourth motion primarily concerned NOV’s failure to produce an 

employee handbook referencing a progressive discipline policy.12 Johnson asserted 

that he had discovered such a handbook in his own possession and recalled that it 

had been issued to him in 2008. NOV responded to this motion by asserting that it 

did not have such a policy and that the handbook Johnson discovered was not an 

NOV document. In support, NOV presented a declaration from its Vice President of 

Human Resources stating NOV had not had a “corporate-sponsored” handbook in 

place since at least 2007. 

The trial court deferred a ruling on the fourth motion in order for a search of 

NOV’s computer databases to be conducted by an outside IT firm, paid for by NOV. 

After Johnson rejected NOV’s first two suggestions, NOV mentioned a firm based 

in Dallas called Stroz-Frieberg that NOV’s counsel stated he had just learned about. 

Johnson neither agreed to nor rejected this firm on the record. The list of search 

terms was to be prepared by the outside firm, added to by Johnson, and then 

approved by the court before the search was performed. NOV subsequently reported 

to the trial court that the search conducted by Stroz-Frieberg found 13,552 

documents matching various search terms and that it was producing 24 of those 

documents as responsive to discovery requests, but no progressive discipline policy 

was uncovered. NOV additionally stated that the total cost of the project was at least 

$50,000. The trial court refused to allow NOV to use any of the newly discovered 

 

12 Johnson’s second motion for sanctions concerned emails that NOV allegedly failed to 

produce. Johnson’s third motion concerned the spoliation claims discussed in a previous section 

of this opinion.
28

documents at trial but otherwise denied Johnson’s fourth motion for sanctions. 

Johnson’s fifth motion concerned in relevant part whether NOV’s counsel 

followed the trial court’s instructions regarding the database search. Johnson alleged 

that his counsel did not agree to NOV using Stroz-Friedberg to conduct the search, 

and therefore, NOV violated the trial court’s directives by using that firm. Johnson 

additionally alleged that NOV’s counsel lied to the court in claiming that Johnson’s 

counsel had agreed to using Stroz-Friedberg. In the motion, Johnson requested death 

penalty sanctions or, in the alternative, $50,000. NOV denied the allegations in the 

fifth motion. During a hearing on the motion, the trial judge stated that the search 

was not conducted as directed by the court but reserved action on the motion. The 

trial court ultimately did not impose any sanctions against NOV. 

B. Analysis 

Johnson’s briefing on this issue reads as a litany of complaints, but it falls 

short of explaining why the trial court abused its discretion in declining to sanction 

NOV or its counsel. All three motions in question concerned NOV’s failure to 

produce documents pertaining to a progressive discipline policy that NOV insists it 

did not have or follow. Johnson cites to vague references to such a policy by two 

NOV employees or former employees, Evans and Garcia, and to Johnson’s assertion 

that he found such a policy in his own possession. NOV countered with a declaration 

from its human resources vice president who maintained that NOV did not have such 

a policy in place at the time of the incident that led to Johnson’s termination. 

Moreover, the search of NOV’s databases by an outside IT firm found no such 

policy. The trial court was therefore within its authority to conclude that no such 

policy existed. See Unifund CCR Partners, 299 S.W.3d at 97; In re J.R.P., 526 

S.W.3d at 777. If no such policy existed, there was no basis to sanction NOV for 

failure to produce such a policy. 
29

That leaves Johnson’s complaint that NOV failed to follow the procedures 

laid out by the trial court for the search of the databases. Indeed, the trial judge 

expressed frustration with this failure during the hearing on the fifth motion for 

sanctions. The judge also, however, expressed frustration with the “bickering” and 

“sniping” in the case from counsel for both sides. NOV filed its own motion for 

sanctions, complaining about Johnson’s counsel’s conduct during Johnson’s 

deposition. The trial court ultimately did not sanction either side. 

Based on the status updates NOV provided and the description of the search 

NOV offered at the sanctions hearing, the trial judge may have been satisfied with 

the outcome of the search and the search terms and methods used. The judge 

reasonably could have concluded that sanctions were not warranted because no 

progressive discipline policy was uncovered after NOV spent a reported $50,000 or 

more searching for one. Based on the record before us, we cannot say that these 

conclusions were arbitrary, unreasonable, or undertaken without reference to 

guiding rules or principles. See Am. Flood Research, 192 S.W.3d at 583. 

Accordingly, we overrule Johnson’s sixth issue.13

V. Evidentiary Rulings 

Lastly, under issue seven, Johnson challenges the trial court’s admission of 

certain evidence and exclusion of other evidence. We review a trial court’s rulings 

on the admission or exclusion of evidence for an abuse of discretion. See Brookshire 

Bros., 438 S.W.3d at 27. The complaining party must demonstrate that the judgment 

 

13 Johnson also points out that in his motion for new trial, he asserted that there was a 

preexisting connection between NOV’s counsel and Stroz-Frieberg in that executives of StrozFrieberg supposedly had “family ties with the Apache Corporation,” which was also a client of 

NOV’s counsel. Johnson, however, does not cite any evidence establishing the alleged family 

connection or whether NOV’s counsel was aware of any such connection. In its briefing, NOV

denies the alleged connection exists.
30

turns on the particular evidence that was excluded or admitted. Hooper v. Chittaluru, 

222 S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). We will 

not reverse a judgment based on an erroneous evidentiary ruling when the evidence 

in question was cumulative or not controlling on a material issue dispositive to the 

case. See id. 

Johnson specifically argues that the trial court should not have admitted into 

evidence the EEOC charge that he filed against NOV. NOV apparently introduced 

this evidence to suggest that Johnson’s allegations had changed or evolved over 

time. Additionally, Johnson argues that the trial court should have permitted him to 

introduce evidence of other incidents at NOV involving other employees who were 

not terminated for alleged safety violations. For the following reasons, we are unable 

to consider the merits of either of these assertions. 

A. The EEOC Charge 

In his brief, Johnson suggests that the EEOC charge was inadmissible for three 

reasons: (1) affidavits are not generally admissible as evidence in a contested trial, 

citing Roberts v. Mullen, 446 S.W.2d 86 (Tex. Civ. App.—Dallas 1969, writ ref’d 

n.r.e.) and Stephens v. City of Reno, 342 S.W.3d 249, 253 (Tex. App.—Texarkana 

2011, no pet.)14; (2) the charge contained hearsay; and (3) the charge “included 

employees NOV claimed were not proper comparators to Johnson.” Johnson, 

however, does not cite where in the record he made any of these objections in the 

trial court. 

When NOV first moved to admit the EEOC charge into evidence, the trial 

judge asked Johnson’s counsel for her objection. Counsel responded only that “[i]t’s 

 

14 Johnson’s EEOC complaint included a notarized statement by Johnson, but it was not an 

affidavit per se.
31

not admissible under the Rules of Evidence. It’s never admitted in employment 

cases.” Apart from these general pronouncements, counsel did not offer any specific 

legal or other basis for her objection.15 The trial judge, however, deferred his ruling 

on the charge’s admissibility until the next day. When the issue was again raised, the 

judge asked Johnson’s counsel whether she had any authority suggesting that the 

charge was inadmissible and whether she had had a chance to review the authority 

NOV provided, i.e., Wawarosky v. Fast Group Houston Inc., No. 01-13-00466-CV, 

2015 WL 730819, at *5 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015, no pet.) 

(mem. op.) (holding EEOC charge was admissible as a public record under Tex. R. 

Evid 803(8)). Counsel stated that she did not have any authority and had not read the 

case provided by NOV. She made no further objection, and the judge admitted the 

charge. 

As stated above, to preserve an issue for appellate review, a party must make 

a timely request, objection, or motion stating the specific grounds for the desired 

ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a). Johnson’s 

counsel’s general statement that the EEOC charge was inadmissible did not preserve 

any complaint for our review. See, e.g., In re A.A., No. 01-13-00542-CV, 2013 WL 

6569922, at *17 (Tex. App.—Houston [1st Dist.] Dec. 12, 2013, pet. denied) (mem. 

op.); Lege v. Jones, 919 S.W.2d 870, 874 (Tex. App.—Houston [14th Dist.] 1996, 

no pet.). Accordingly, we do not address the merits of Johnson’s arguments on 

appeal. 

B. Evidence of Comparators 

Regarding the fifteen exhibits Johnson contends the trial court erred in 

excluding, Johnson acknowledges that these exhibits are not in the record. In a 

 

15 Counsel specifically told the trial judge: “It’s not hearsay.”
32

footnote in his initial brief, Johnson states that he “will supplement with an appendix 

that includes these exhibits in his Reply Brief.” Although Johnson subsequently filed 

a reply brief, it did not have an appendix. And, even if it did, we cannot consider 

documents attached to a brief that are not part of the appellate record. See In re 

Marriage of Farmer, No. 14-17-00077-CV, 2018 WL 2247380, at *2 (Tex. App.—

Houston [14th Dist.] May 17, 2018, pet. denied) (mem. op.); In re C.C.E., 530 

S.W.3d 314, 317, n.1 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Accordingly, 

Johnson has presented nothing to review in regards to the fifteen exhibits. See, e.g., 

Melendez v. Exxon Corp., 998 S.W.2d 266, 278 (Tex. App. 1999) (“The burden is 

on the complaining party to present a sufficient record to the appellate court to show 

error requiring reversal.”).

We overrule Johnson’s seventh issue. 

Conclusion 

 Having overruled each of Johnson’s underlying substantive issues, we also 

overrule his first issue concerning denial of his motion for new trial based on the 

same arguments. 

We affirm the trial court’s judgment. 

 

 /s/ Martha Hill Jamison

 Justice 

Panel consists of Justices Boyce, Jamison, and Brown.