1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00325-CV

__________________

JULIO MIRANDA-LARA, Appellant

V.

CHAD REBERT AND SASHA GUERRERO, Appellees

__________________________________________________________________

On Appeal from the 58th District Court

Jefferson County, Texas

Trial Cause No. A-196,160

__________________________________________________________________

MEMORANDUM OPINION

Appellant Julio Miranda-Lara appeals the trial court’s judgment awarding 

Chad Rebert and Sasha Guerrero (the Reberts) damages incurred due to a car 

accident in 2014.1, 2 In four issues, Miranda-Lara argues that the trial court erred 

when it allowed an officer to testify as to his opinions without evidence of expert 

knowledge, when it provided an instruction in its jury charge on negligence per se,

1 Sasha Guerrero and Chad Rebert married after the accident. 

2 Sasha Guerrero Rebert has since settled her claims with Appellant and is no 

longer a party to this appeal.
2

and when it refused to submit Miranda-Lara’s requested jury instructions regarding 

emergency and unavoidable accident. For the reasons explained below, we affirm 

the judgment of the trial court. 

I. Background3

The accident occurred on May 18, 2014, in Jefferson County on Highway 82, 

a two-lane roadway without a center turning lane. The Reberts were travelling on 

Highway 82, and Miranda-Lara was travelling behind the Reberts with at least one 

car between them. Miranda-Lara and another vehicle both attempted to 

simultaneously pass the Reberts’ car on the left as the Reberts began a left turn. 

While the vehicle in front of Miranda-Lara avoided any contact with the Reberts’ 

vehicle, Miranda-Lara collided with the Reberts’ vehicle on the driver’s side.

Testimony was disputed at trial as to whether the Reberts were traveling on

Highway 82 when they attempted their left turn, or if the Reberts merged into traffic 

from the side of the road and suddenly stopped to turn left. The jury found MirandaLara to be solely negligent in the cause of the accident and ordered him to pay the 

Reberts personal injury damages, post judgment interest, and court costs. MirandaLara timely filed an appeal. 

3 As Miranda-Lara does not challenge the sufficiency of the evidence, we only 

recite the facts necessary for resolution of his appellate issues.
3

II. Issue One

In his first issue, Miranda-Lara argues that despite his lack of training, 

observation or recollection, Officer Randy Daws, a patrol officer who investigated 

the accident and prepared the accident report, was permitted to testify regarding his 

opinion as to the cause of the accident. Miranda-Lara argues that Officer Daws did 

not have advanced training, and yet the trial court permitted the officer’s opinion 

testimony as to the cause of the accident over Defendant’s objection to his 

qualifications. Specifically, defense counsel lodged the following objection before 

trial, in a motion in limine:

Defendant objects to the instruction of the police officer’s opinion on 

the police report and his testimony based on the fact that he is not an 

expert, he’s not been proven up as an expert, no CV has been provided. 

The Court should exclude his opinions which is both testimony and in 

the report because he’s not qualified to give the opinion. The subject of 

his testimony is not specialized knowledge. His opinion is not reliable. 

The underlying facts of the expert’s opinion do not provide a sufficient 

basis for the opinion; and the probative value of the opinion is 

substantially outweighed by the danger of unfair prejudice, confusion, 

or delay. I have cited the Beaumont case of Brown vs. Masco that states 

the officer should not be allowed to testify as to his opinion as to the 

cause of the accident until the Court, out of the presence of the jury, 

makes its ruling as to whether he is qualified to give such an opinion. 

The Court goes on to say that just being a traffic accident officer and 

even investigating hundreds of accidents does not qualify you to give 

this opinion. He certainly has no reconstruction opinion, and that -- the 

officer stating who caused the accident is an expert opinion and should 

be excluded. And the Court found that the testimony of the officer was 

reasonably calculated to and probably did cause the rendition of an 

improper judgment.
4

The trial court overruled the objection and ruled that Officer Daws could testify as a 

lay witness.

To preserve an issue for appellate review, a party must make a timely, specific 

objection and obtain a ruling on that objection. Tex. R. App. P. 33.1(a). The general 

rule is that error in the admission of testimony “is deemed harmless and is waived if 

the objecting party subsequently permits the same or similar evidence to be 

introduced without objection.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 

907 (Tex. 2004). 

It is well established that “a trial court’s ruling on a motion in limine does not 

preserve error.” Prati v. New Prime, Inc., 949 S.W.2d 552, 555 (Tex. App.—

Amarillo 1997, writ denied). One way a party may satisfy Rule 33.1(a) is by making 

a running objection. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242–43 

(Tex. App.—Corpus Christi 1994, writ denied); Commerce, Crowdus & Canton, 

Ltd. v. DKS Constr., Inc., 776 S.W.2d 615, 620 (Tex. App.—Dallas 1989, no writ). 

Miranda-Lara sought to exclude the police report of the accident and the 

officer’s testimony through a motion in limine.4 After hearing arguments from both 

sides, the trial court overruled Miranda-Lara’s motion in limine and allowed the 

officer to testify as a lay witness. Miranda-Lara was required to repeat his objections 

4 Miranda-Lara specified at the conclusion of the testimony, after the jury 

was dismissed for the day, that he was objecting to the officer’s testimony and not 

the admissibility of the police report.
5

or obtain a running objection from the court regarding the unacceptable evidence 

that made clear the scope of the objection. Compare with U-Haul Int’l, Inc. v. 

Waldrip, 380 S.W.3d 118, 131–132 (Tex. 2012) (stating that although the trial court 

denied a running objection, the appellant “timely objected” a total of 12 times on the 

grounds of relevance, hearsay, and lack of similarity through the witnesses direct 

examination, properly preserving error for appellate review). Generally, if an 

objecting party subsequently permits the same or similar evidence to be introduced 

at trial, the party waives error and the testimony is deemed harmless. Volkswagen, 

159 S.W.3d at 907; Atkinson, 878 S.W.2d at 242. Miranda-Lara did not request a 

running objection. Officer Daws was allowed to testify repeatedly without objection 

that Miranda-Lara was passing unsafely on the left and caused the accident. 

Accordingly, we conclude that Miranda-Lara failed to timely object to the evidence 

and, therefore, failed to preserve error. We do not reach Appellant’s first issue.

IV. Issues Two, Three, and Four: Jury Charge

A. Standard of Review

“The [trial] court shall submit such instructions and definitions as shall be 

proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. We review a trial 

court’s decision to include or refuse instructions and definitions in the jury charge 

for an abuse of discretion. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 

2006). If we determine the trial court abused its discretion by including or refusing 
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instructions, we must then review the entire record to determine if that error was 

harmful, i.e., probably caused the rendition of an improper verdict. See Tex. R. App. 

P. 44.1(a); Thota v. Young, 366 S.W.3d 678, 694 (Tex. 2012).

B. Inferential Rebuttal5

At trial, Miranda-Lara requested the inferential rebuttal definitions for 

emergency and unavoidable accident and complains on appeal that the trial court 

erred by refusing to include those instructions. If the evidence raises the issue, the 

instruction is proper. See Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 

(Tex. 1998). Both unavoidable accident and emergency are considered inferential 

rebuttal instructions. See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 432 (Tex. 

2005). Inferential rebuttal instructions are given to advise jurors that they do not 

have to find a party to the suit at fault if evidence shows that conditions beyond the 

party’s control caused the accident or that the conduct of a non-party to the litigation 

caused it. Id.; Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995). An unavoidable 

accident is one not proximately caused by the negligence of any party to it and is 

often used to address the causal effect of some outside weather condition or 

obstruction of view. See Reinhart, 906 S.W.2d at 472. A sudden emergency 

5 We address the jury charge issues out of order for purposes of clarity and 

conciseness.
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instruction is when the occurrence is caused by something other than the defendant’s 

negligence and arises suddenly. Dillard, 157 S.W.3d at 432.

In the present case, Miranda-Lara testified that the collision occurred as he 

passed on the left and Mr. Rebert attempted to turn left. He also testified that he 

“believe[d] 100 percent that it was [Mr. Rebert’s] fault.” Miranda-Lara asserts in his 

brief that there was evidence that “Rebert caused the accident by pulling onto the 

road from the side of the road ahead of traffic, causing cars to have to abruptly 

brake.”6 However, all of this testimony goes to the contributory negligence of 

Rebert, a party to the litigation, and not the inferential rebuttal instructions of 

unavoidable accident or sudden emergency. See Dillard, 157 S.W.3d at 432; 

Reinhart, 906 S.W.2d at 472. Miranda-Lara never testified that Rebert pulling out 

from the right side of the road and braking abruptly created a condition he had to 

respond to which caused him to be in the left lane. He only testified that he did not 

see the truck until he hit him. Additionally, while a witness testified that Rebert 

pulled out into a lane of traffic and stopped suddenly to turn left, causing him to pass 

6 Appellant did not provide a record cite to this statement. We assume it is a

reference to the testimony of witness John DeBrita where he describes Rebert’s truck 

being on the side of the road right before the accident. DeBrita testified that Rebert

put his blinker on, abruptly pulled into traffic, slammed on his brakes and attempted 

to turn left. This witness testified that there was a white car travelling in front of him, 

and when Rebert jumped into traffic, the white car slammed on its brakes but was 

able to stop in time to avoid a collision. DeBrita explained that he was afraid the 

white car was going to hit Rebert, and he wanted to avoid hitting Rebert also, so he 

passed on the left.
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in the left lane to avoid colliding with Rebert, there was no evidence that such was 

the case for Miranda-Lara. In other words, simply because it may have been an 

emergency for the witness did not mean it was an emergency for Miranda-Lara. 

There was no evidence to indicate that this situation “require[d] immediate action” 

from Miranda-Lara “without time for deliberation.”7

Here, the evidence at trial only raised the possibility of negligence by 

Miranda-Lara or Rebert, and therefore, it was unnecessary for the trial court to advise 

jurors that they did not have to blame a party to the suit through an inferential rebuttal 

instruction. The trial court did not abuse its discretion by refusing to include these 

inferential rebuttal instructions in the charge. We overrule issue four. 

C. Negligence Per Se

In issues two and three, Miranda-Lara contends the trial court erred by 

including the negligence per se instruction and that the trial court improperly 

included the actual statute which is not sanctioned by the Texas Pattern Jury Charge, 

specifically that the statute cross-references other statutory provisions that were not 

provided to the jury.

“Negligence per se is a tort concept whereby the civil courts adopt a 

legislatively imposed standard of conduct as defining the conduct of a reasonably 

7 Miranda-Lara’s proposed charge to the court incorporated this language in 

the “sudden emergency” instruction.
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prudent person.” Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978). “Where the 

Legislature has declared that a particular act shall not be done, it fixes a standard of 

reasonable care, and an unexcused violation of the statute constitutes negligence or 

contributory negligence as a matter of law.” Mo. Pac. R.R. Co. v. Am. Statesman, 

552 S.W.2d 99, 103 (Tex. 1977) (citation omitted). While all persons have a duty to 

obey the criminal law, not all criminal statutes provide a standard for civil liability. 

See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979).

Texas courts only impose civil liability based on a criminal statute when the statute 

provides an appropriate basis for doing so. See Perry v. S.N., 973 S.W.2d 301, 305 

(Tex. 1998).8

To establish negligence per se, a plaintiff must prove: (1) the 

defendant’s act or omission is in violation of a statute or ordinance; (2) 

the injured person was within the class of persons which the ordinance 

was designed to protect; and (3) the defendant’s act or omission 

proximately caused the injury. 

8 In explaining negligence per se, the Perry court provided the following 

factors to consider:

(1) whether the statute is the sole source of any tort duty from the 

defendant to the plaintiff or merely supplies a standard of conduct for 

an existing common law duty; (2) whether the statute puts the public on 

notice by clearly defining the required conduct; (3) whether the statute 

would impose liability without fault; (4) whether negligence per se 

would result in ruinous damages disproportionate to the seriousness of 

the statutory violation, particularly if the liability would fall on a broad 

and wide range of collateral wrongdoers; and (5) whether the plaintiff's 

injury is a direct or indirect result of the violation of the statute.

Perry v. S.N., 973 S.W.2d 301, 309 (Tex. 1998)). 
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Lopez-Juarez v. Kelley, 348 S.W.3d 10, 27 (Tex. App.—Texarkana 2011, pet. 

denied) (quoting Ambrosio v. Carter’s Shooting Ctr. Inc., 20 S.W.3d 262, 265 (Tex. 

App.—Houston [14th Dist.] 2011, pet. denied.)). “A statute that creates an absolute 

duty may be appropriate for negligence per se because the statutory duty supplants 

the common law duty of ordinary care.” Babiy v. Kelley, No. 05-17-01122-CV, 2019 

WL 1198392, at *3 (Tex. App.—Dallas Mar. 14, 2019, no pet) (mem. op.) (citing 

Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 455 (Tex. App.—Texarkana 

2002, pet. denied)). But, if a statute imposes a conditional duty, and not an absolute 

duty, a violation of the statute does not result in negligence per se. Id. 

The jury charge contained the following language:

Definitions

“Negligence,” means failure to use ordinary care, that is, failing 

to do that which a person of ordinary prudence would have done under 

the same or similar circumstances or doing that which an ordinary 

person or ordinary prudence would not have done under the same or 

similar circumstances.

The law states as follows as to passing a vehicle on the left. 

Failure to comply with the law is negligence in itself. Tex. Trans. Code, 

545.054 

[. . .]

“Negligence per se is a common-law doctrine in which a duty is imposed 

based on a standard of conduct created by a penal statute rather than on the 

reasonably prudent person test used in pure negligence claims.” Ridgecrest Ret. & 
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Healthcare v. Urban, 135 S.W.3d 757, 762 (Tex. App.—Houston [1st Dist.] 2004, 

pet. denied) (citation omitted). Our sister court in Supreme Beef Packers explained 

that for a jury instruction regarding negligence per se to be appropriate, the violation 

must not leave any room for the driver to make a discretionary call. 67 S.W.3d at 

456. “For example, when a statute requires a person to exercise his or her judgment, 

as when a driver should proceed only when it is safe to do so, the statute reflects a 

standard of care that is no different from the ordinarily prudent person standard.” Id.

“But if the statute requires all persons to stop in obedience to a red flashing light at 

an intersection, the statute clearly defines the prohibited conduct, leaving the driver 

no discretion or room for the exercise of judgment, and it is therefore a standard of 

conduct statute.” Id. 

While there is a general ordinary care standard for all motorists to keep a safe 

distance and be alert and aware of their surroundings and other vehicles, sections 

545.053–545.056 of the Texas Transportation Code specifically address a motorist’s 

duty while attempting to pass in the left lane. 

Sec. 545.053. PASSING TO THE LEFT; RETURN; BEING 

PASSED.

(a) An operator passing another vehicle:

(1) shall pass to the left of the other vehicle at a safe distance; 

and

(2) may not move back to the right side of the roadway until 

safely clear of the passed vehicle.
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(b) An operator being passed by another vehicle:

(1) shall, on audible signal, move or remain to the right in favor 

of the passing vehicle; and

(2) may not accelerate until completely passed by the passing 

vehicle.

(c) Subsection (b) does not apply when passing to the right is 

permitted.

SEC. 545.054. PASSING TO THE LEFT: SAFE DISTANCE.

(a) An operator may not drive on the left side of the center of the 

roadway in passing another vehicle unless:

(1) driving on the left side of the center of the roadway is 

authorized by this subtitle; and

(2) the left side is clearly visible and free of approaching traffic 

for a distance sufficient to permit passing without interfering 

with the operation of the passed vehicle or a vehicle approaching 

from the opposite direction.

(b) An operator passing another vehicle shall return to an authorized 

lane of travel:

(1) before coming within 200 feet of an approaching vehicle, if a 

lane authorized for vehicles approaching from the opposite 

direction is used in passing; or otherwise

(2) as soon as practicable.

SEC. 545.055. PASSING TO THE LEFT: PASSING ZONES.

(a) An operator shall obey the directions of a sign or marking in 

Subsection (c) or (d) if the sign or marking is in place and clearly visible 

to an ordinarily observant person.

(b) An operator may not drive on the left side of the roadway in a nopassing zone or on the left side of any pavement striping designed to 

mark a no-passing zone. This subsection does not prohibit a driver from 

crossing pavement striping, or the center line in a no-passing zone 

marked by signs only, to make a left turn into or out of an alley or 

private road or driveway.

(c) The Texas Transportation Commission, on a state highway under 

the jurisdiction of the commission, may:
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(1) determine those portions of the highway where passing or 

driving to the left of the roadway would be especially hazardous; 

and

(2) show the beginning and end of each no-passing zone by 

appropriate signs or markings on the roadway.

(d) A local authority, on a highway under the jurisdiction of the local 

authority, may:

(1) determine those portions of the highway where passing or 

driving to the left of the roadway would be especially hazardous; 

and

(2) show the beginning and end of each no-passing zone by 

appropriate signs or markings on the roadway.

Tex. Transp. Code Ann. §§ 545.053–055. 

Miranda-Lara argues that sections 545.053–545.055 do not impose any 

additional duties beyond ordinary care, and we agree. Specifically, section 

545.054(a)(2) imposes a conditional rather than absolute duty. See Londow v. 

Bergeron, 398 S.W.2d 297, 301 (Tex. App.—Beaumont 1966, writ ref’d n.r.e.) 

(“The statutory duty to yield the right-of-way is not absolute, but is conditional.”); 

see also Lewis v. Murphy, No. 06-06-00107-CV, 2007 WL 1518207, at *2 (Tex. 

App.—Texarkana May 25, 2007, no pet.) (mem. op). Therefore, a jury is required to 

determine as a matter of fact, not law, whether a motorist was negligent when he 

attempted to pass in the left lane. Waring v. Wommack, 945 S.W.2d 889, 891–92 

(Tex. App.—Austin 1997, no writ) (explaining that statute requiring a motorist to 

yield to passing vehicles before turning did not impose “an absolute duty that 

required better judgment than that exercised by a reasonably prudent person”);
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Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 269 (Tex. App.—Houston [1st 

Dist.] 1998, no pet.) (“If . . . the statute imposes a duty that is not absolute, but, 

rather, is conditioned upon a finding that the violator failed to act ‘safely’ or 

‘prudently,’ a violation of the statute does not constitute negligence per se. For these 

statutes, the ‘reasonable person’ standard of common-law negligence is read into the 

statute, thus requiring the jury to determine, as a matter of fact, whether the motorist 

acted as a reasonably prudent person would have under the same or similar 

circumstances”); compare with Supreme Beef Packers, 67 S.W.3d at 456 (citations 

omitted) (outlining various moving violations that amount to negligence per se 

including driving on the wrong side of the road and failing to stop at a railroad 

crossing when a train is approaching). Any violation of section 545.045 does not 

establish that Miranda-Lara was negligent as a matter of law, but is to be used in 

consideration with other factors, and “the violation should merely be considered in 

determining, as a matter of fact, whether the conduct of a motorist is negligent under 

the common-law standard of the reasonably prudent man.” Lewis, 2007 WL 

1518207, at *2. Accordingly, we conclude the trial court abused its discretion by 

including the negligence per se instruction.

D. Harm Analysis

“An incorrect jury instruction requires reversal only if it ‘was reasonably 

calculated to and probably did cause the rendition of an improper judgment.’” Bed, 
15

Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) (quoting Reinhart, 

906 S.W.2d at 473; Tex. R. App. P. 61(a)); see also Thota, 366 S.W.3d at 694. In 

this analysis, we examine the entire record to determine if the improper instruction 

probably caused an improper judgment. Urista, 211 S.W.3d at 757. In the present 

case, the trial court’s inclusion of the negligence per se instruction constituted an 

abuse of discretion; however, it was not harmful. To determine if the error 

constituted reversible harm, we examine the record in its entirety and must be able 

to conclude that the error probably caused the rendition of an improper verdict. See 

id.; Tex. R. App. P. 44.1(a). 

In addition to the improper negligence per se standard of care, the charge also 

instructed the jury on ordinary care and defined negligence as the “failure to use 

ordinary care.” The charge informed the jury there could be more than one proximate 

cause of an occurrence or injury. The broad form submission question regarding the 

single liability theory of negligence provided separate blanks for Miranda-Lara and 

Mr. Rebert. The jury concluded only Miranda-Lara’s negligence proximately caused 

the accident. Although we cannot determine the standard of care under which the 

jury found Miranda-Lara negligent, we conclude the evidence supports the jury’s 

negligence finding under the ordinary care standard. Specifically, we point to 

Miranda-Lara’s own testimony in which he admitted he attempted to pass in the left 

lane because the truck in front of him did so even though he could not see oncoming 
16

traffic in front of the truck he was following. A reasonable jury could conclude from 

this record that Miranda-Lara’s conduct violated the standard of ordinary care, which 

the charge defined as “that degree of care that would be used by a person of ordinary 

prudence under the same or similar circumstances.”

Although Miranda-Lara complains that the trial court admonished the jury not 

to conduct any research and follow its instructions on the law and that by failing to 

include situations in which driving left of center is authorized, the jury was left with 

the impression that nothing relevant authorized driving left of center. We disagree. 

There was no evidence adduced at trial that would have authorized Miranda-Lara 

driving left of center when he admittedly could not see oncoming traffic in front of 

him beyond the truck that he was following as both vehicles were attempting to pass 

simultaneously. 

Because we cannot conclude that the improper inclusion of the negligence per 

se instruction probably caused the rendition of an improper verdict, it did not 

constitute harmful error. See Tex. R. App. P. 44.1(a); Urista, 211 S.W.3d at 757. We 

overrule Miranda-Lara’s second and third issues.

IV. Conclusion

Having found that Miranda-Lara failed to preserve error in his first issue and 

having overruled all other issues, we affirm the judgment of the trial court.

AFFIRMED.
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_________________________

CHARLES KREGER

Justice

Submitted on December 9, 2019

Opinion Delivered August 31, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.