      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00053-CV



                                 AnnaMarie Sherbin, Appellant

                                                 v.

                             Dean Word Company, Ltd., Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
       NO. C2003-0058A, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               AnnaMarie Sherbin was a passenger in a van involved in a multiple-vehicle collision

on Interstate Highway 35 (“I-35”) in New Braunfels. Sherbin sued the Dean Word Company (“Dean

Word”), which was engaged in a construction project near the scene of the accident, for injuries she

sustained. Sherbin claimed that Dean Word had negligently created a dust cloud, which obscured

visibility on the highway and proximately caused the accident. After a jury trial, the jury found for

Dean Word. In five issues on appeal, Sherbin argues that (1) there is factually insufficient evidence

to support the jury’s finding that the accident was not proximately caused by Dean Word’s

negligence, (2) the trial court erred in excluding eyewitness testimony of one of Sherbin’s experts,

(3) the trial court erred in excluding written witness statements attached to the accident report

prepared by the police, (4) the court erred in excluding Sherbin’s testimony about comments that

construction workers had made to her about the accident, and (5) the court erred in excluding the
testimony of another witness concerning comments made by construction workers after the accident.

We affirm the judgment of the trial court.


                                          BACKGROUND

                In January 2003, Dean Word was performing a road construction project along a

three-mile stretch of I-35 in New Braunfels, Texas.1 On January 21, 2003, Dean Word applied lime

to a subgrade that was being built in order to widen the highway. Donald Peters, Dean Word’s

director of safety at the time, and Ray Foyt, who was working for Dean Word on the project, testified

that pelletized lime, instead of powdered lime, was used on the subgrade. Peters testified that Dean

Word had been using pelletized lime for several years prior to the accident, as powdered lime is

“notorious” for causing dust clouds, while pelletized lime remains in capsule form until hydrated.2

                Foyt testified that, on the day in question, pelletized lime had been dumped onto the

ground and spread into the soil, and that the process of hydrating the lime had begun. When

pelletized lime is hydrated, it sometimes produces vapor trails—as described by Foyt, the lime would

give off “steam like out of your tea kettle.” Peters testified that he had never seen vapor trails form

a cloud or rise more than two to three feet off of the ground, and noted that the subgrade work was

being done roughly ten feet below the level of the highway.

       1
           The facts recited herein are taken from the testimony and exhibits admitted at trial.
       2
           Pelletized lime is known a Type C lime, while powdered lime is known as Type A lime.
In its interrogatory responses, Dean Word stated that “pelletized Type A lime” had been used on the
day of the accident. According to Peters, this response was mistaken; as Type A lime is, by
definition, powdered, there is no such thing as “pelletized Type A lime.” While there was testimony
at trial concerning possible use of powdered lime at the site several months after the accident, the
bills of lading for lime delivery on the morning of the accident indicated that
Type C—pelletized—lime had been delivered to the construction site.

                                                  2
               That same day, Sherbin was traveling on I-35 near the construction site. Sherbin, a

deputy sheriff for Dallas County, was riding in a van transporting prisoners. According to Sherbin

and several other eyewitnesses, a white cloud suddenly enveloped the cars on I-35 near the work site,

severely reducing visibility. An accident involving more than 20 cars, including the van in which

Sherbin was a passenger, ensued. While driving conditions had been foggy earlier in the day, some

witnesses stated that the fog had lifted by the time the accident occurred, while others indicated that

visibility was affected by fog through the time of the accident.

               Officer Chris Pelletier of the New Braunfels Police Department arrived 45 minutes

after the accident to investigate. He prepared an accident report in which he concluded, based on

his investigation of the scene and discussions with other officers, that the cause of the accident was

a “zero visibility cloud.” He added that Dean Word “was spreading lime on the site and contributed

to this accident.” Other witnesses attributed the creation of the dust cloud to the operation of a

cement mixer. Both Sherbin and Bill Cobb, a passenger in one of the vehicles involved in the

accident, stated that a cement mixer on the construction site created a large amount of white smoke

that drifted onto the highway. Peters and Foyt testified that, to their knowledge, there was no cement

mixer on the construction site on the day of the accident.

               Sherbin brought suit against Dean Word, claiming that she had suffered injuries due

to the accident, and that the accident had been proximately caused by Dean Word’s negligence. At

trial, David Steitle, one of Sherbin’s expert witnesses, opined that the accident had been caused by

Dean Word “kicking up lime.” He also stated that he had personally witnessed the formation of the

dust cloud that in his opinion caused the accident. While he agreed that hydrating lime would not



                                                  3
cause a dust cloud, he stated that pelletized lime is only guaranteed not to form a dust cloud when

it is spread, and that contractors must be careful that it does not form a dust cloud afterwards. Steitle

admitted that he did not take weather data into consideration when forming his opinion, despite the

fact that several witnesses stated that the day had been foggy. Dean Word’s expert, Arthur Barrow,

stated that there was no way that the process of applying pelletized lime could foreseeably create a

dust cloud, and concluded that the cloud had formed due to a weather phenomenon.

                At the conclusion of the jury trial, the jury found in favor of Dean Word, and this

appeal followed.


                                    STANDARD OF REVIEW

                When a party attacks the factual sufficiency of an adverse finding on an issue on

which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against

the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001). The court of appeals must consider and weigh all of the evidence, and can set aside a

verdict only if the evidence is so weak or if the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Id.

                Rulings on the admission or exclusion of evidence are committed to the trial court’s

sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Beck v. Law

Offices of Edwin J. Terry, Jr., P.C., 284 S.W.3d 416, 442 (Tex. App.—Austin 2009, no pet.). A trial

court abuses its discretion in admitting or excluding evidence if it acts without reference to any

guiding rules and principles or if the act complained of is arbitrary and unreasonable. Carpenter

v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). We must uphold a trial court’s

                                                   4
evidentiary ruling if there is any legitimate basis in the record to support it. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).


                                          DISCUSSION

Factual Sufficiency of the Evidence

                In her first issue, Sherbin argues that the jury’s finding that the accident was not

proximately caused by Dean Word’s negligence is against the great weight and preponderance of the

evidence, and therefore is supported by factually insufficient evidence. Question number one

submitted to the jury reads, “Did the negligence, if any, of Dean Word Company Ltd. proximately

cause the occurrence in question?” The jury was given the following 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 a person of ordinary prudence would not have
        done under the same or similar circumstances.

        “PROXIMATE CAUSE” means that cause which, in a natural and continuous
        sequence, produces an event, and without which cause such event would not have
        occurred. In order to be proximate cause, the act or omission complained of must be
        such that a person using ordinary care would have foreseen that the event, or some
        similar event, might reasonably result therefrom. There may be more than one
        proximate cause of an event.


In determining whether the jury’s finding was against the great weight and preponderance of the

evidence, we evaluate the evidence presented at trial in light of these definitions. See City of

Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (holding that where, as here, parties did not

object to charge, appellate court is bound to review evidence in light of definitions actually given

to the jury).



                                                 5
                While the witnesses at trial agreed that a cloud had formed on the highway and

reduced visibility immediately prior to the accident, the creation of the cloud was a primary point

of contention. Sherbin put forth two theories of how Dean Word’s negligent activities at the

construction site created the cloud, and in turn proximately caused the accident. Under the first

theory, Dean Word created a cloud of lime dust when applying lime to the subgrade. This theory is

consistent with Dean Word’s interrogatory response that the source of the “dust cloud” was

“Pelletized Type A lime” and with Pelletier’s accident report, which states that Dean Word “was

spreading lime on the site and contributed to this accident.” Pelletier admitted, however, that he did

not witness the accident, and based his opinion largely on his discussions with other peace officers.

Further, he stated that “spreading lime” was a general description, not a statement of causation.

Steitle, Sherbin’s expert, testified that a cloud of lime dust enveloped the highway prior to the

accident, though he could not say exactly how the cloud had been formed. He allowed that the

hydration of pelletized lime, which Dean Word was using at the time of the accident, would

not create such a cloud, but maintained that the cloud must have been formed by Dean Word

“kicking up lime.”3

                Peters, however, testified that the lime that had been used on the day in accident was

pelletized lime, and stated that the application of such lime would not cause a dust cloud. Foyt also

testified that he had never seen pelletized lime create a cloud or plume large enough to disrupt

motorists, despite participating in hundreds of applications of pelletized lime, and further stated that




        3
          As noted above, while Steitle testified that some of the bills of lading indicated that
powdered lime might have been delivered to the site several months after the accident, there is no
evidence in the record that powdered lime was being used on the day of the accident.

                                                   6
there was fog in the air at the time of the accident. Barrow, Dean Word’s expert, agreed that

application of pelletized lime could not form a dust cloud of the type described by those in the

accident. He further stated that, in his opinion, the cloud had been the result of a weather

phenomenon.

               Under her second theory, Sherbin argues that operation of a cement mixer could have

caused the cloud. Sherbin herself testified that she saw a man on the construction site mixing a

powdered substance in what she described as a cement mixer. The mixer was producing smoke “like

a chimney.” Immediately after she saw the man, the van went into an area of “absolute white-out,”

and she testified that at least some of the cloud was emanating from this mixer. Cobb testified that

he had seen a cement mixer sitting on the ground and spinning around that was producing large

amounts of white smoke that drifted onto the highway. Foyt, however, testified that no one was

using a cement mixer on the site, either to apply lime or for any other purpose, and Peters testified

that he did not recall seeing a mixer on the site.

               Based on our review of the evidence, we cannot conclude that the jury’s finding was

against the great weight and preponderance of the evidence with respect to either of the theories put

forth by Sherbin. Regarding proximate cause, while there is some evidence to indicate that Dean

Word caused or contributed to the dust cloud by applying lime or using a cement mixer, there is

competing testimony suggesting otherwise. It is for the jury to resolve such conflicts. See City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (“The jury may choose to believe one witness

and disbelieve another, and we must not impose our own opinion to the contrary.”). Further, Sherbin

has presented scant evidence that the creation of a dust cloud was a foreseeable result of any of Dean



                                                     7
Word’s actions on the construction site. Finally, there is little evidence in the record to show that,

had Dean Word created the dust cloud, it was negligent in doing so. Accordingly, we conclude that

the jury’s finding that Dean Word’s negligence was not the proximate cause of the accident was

supported by factually sufficient evidence. Sherbin’s first issue on appeal is overruled.


Eyewitness Testimony of Expert

               In her second issue on appeal, Sherbin argues that the court erred in refusing to allow

Steitle, one of Sherbin’s expert witnesses, to testify as a fact witness. At trial, Sherbin’s counsel

approached the bench and explained to the trial court that Steitle had realized that he had witnessed

the cloud that caused the accident in his rear-view mirror. Sherbin’s counsel explained that Steitle

would not “be able to say where the source was, other than he saw in his rearview mirror what he

clearly believed to be a cloud of lime dust.” According to Dean Word’s counsel, however, the

defense had not been informed of this realization prior to trial, and discovery had not been

supplemented to either designate Steitle as a fact witness or to summarize his eyewitness testimony

regarding the dust cloud.

               For the exclusion of evidence to constitute reversible error, the complaining party

must show (1) that the trial court committed error, and (2) that the error was reasonably calculated

to cause and probably did cause rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d

756, 757 (Tex. 1992); Beck, 284 S.W.3d at 442; see Tex. R. App. P. 44.1. If the trial court erred in

excluding the witness, the error is reversible if it is both controlling on a material issue and not

cumulative. See Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 883 (Tex. App.—Austin

2007, pet. denied) (citing Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994)).


                                                  8
               In this case, we note that the testimony that Sherbin sought to include—that Steitle

had been an eyewitness to the accident—did come into evidence. During cross-examination, Steitle

stated, “I know what I saw them doing on this project. I was a witness to it, and so it’s not just

speculation on my part. I saw them creating an enormous dust cloud.” Accordingly, there was no

harm in the trial court’s earlier exclusion of Steitle’s testimony as a fact witness. Accordingly,

Sherbin’s second issue on appeal is overruled.


Witness Statements in Accident Report

               In her third issue on appeal, Sherbin argues that the court erred in excluding from

evidence written witness statements attached to Pelletier’s accident report. According to Sherbin,

the affidavits of Vicki Smith and Kiersta Garcia had originally been attached to the accident report.

Smith’s affidavit stated that “one of the construction workers came up after the accident to inquire

if we were OK. He then stated that he had told ‘them’ to stop ‘grinding’ because those people can’t

see.” Garcia’s affidavit stated, “After the accident construction workers came over to see if I was

OK. When I told them I could not see anything they said, ‘we know we told the guys to stop what

they were doing up there because it was making the traffic blind.’ They said they had told them this

several times that because of the moisture in the air the smoke was making it where no one could

see.” While the trial court admitted the accident report into evidence, these affidavits were removed

from the report prior to its admittance.4



       4
          While Sherbin’s brief on this issue also discusses the admissibility of statements that
construction workers allegedly made to her, the record does not indicate that a witness statement
from Sherbin was attached to the accident report. Admissibility of statements made by construction
workers to Sherbin is addressed in our analysis of Sherbin’s fourth and fifth issues on appeal.

                                                 9
               The witness statements of Smith and Garcia are hearsay, see Tex. R. Evid. 801(d),

while the statements of the construction workers constitute hearsay within hearsay, as these

statements are themselves hearsay and are contained within the hearsay witness statements of Smith

and Garcia. See Tex. R. Evid. 805; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 139-40 (Tex.

2004). Accordingly, for the statements of the construction workers to be admissible, Sherbin must

show that both the witness statements of Smith and Garcia and the construction-worker statements

contained therein qualify under exceptions to the hearsay rule. See Nissan Motor Co., 145 S.W.3d

at 139-40 (holding that hearsay within hearsay is admissible only if each part of statement comports

with exception to hearsay rule).

               We begin with the witness statements of Smith and Garcia. Sherbin argues that these

written statements fall within the public-records exception to hearsay, as the statements were

attached to the accident report prepared by the police and admitted as a public record. See Tex. R.

Evid. 803(8). However, Texas courts have held that witness statements in a police officer’s file

do not qualify under the public-records exception set forth in Rule 803(8). See id.; Corrales

v. Department of Family & Protective Servs., 155 S.W.3d 478, 486 (Tex. App.—El Paso 2004,

no pet.) (holding that while police officer’s factual findings in police report may qualify as public

record, statements of witnesses in report would not) (citing Kratz v. Exxon Corp., 890 S.W.2d 899,

905 & n.5 (Tex. App.—El Paso 1994, no writ)); see also In re E.A.K., 192 S.W.3d 133, 145 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied) (same). Accordingly, as the statements of Smith and

Garcia do not fall under the public-records hearsay exception, we conclude that the trial court did

not abuse its discretion in excluding them.



                                                 10
               Even if the statements of Smith and Garcia qualified under a hearsay exception, the

statements of the construction workers do not. Sherbin argues that the statements of the construction

workers were excited utterances. To be admissible as an excited utterance, a statement must be (1) a

spontaneous reaction (2) to a personal observance of (3) a startling event (4) made while the

declarant was still under the stress of excitement caused by the event. Tex. R. Evid. 803(2);

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 (Tex. 2004). For an exclamation to be

spontaneously made while under the stress of excitement, it must occur before the declarant has the

opportunity to reflect on or ponder the shocking incident. Volkswagon of Am., 159 S.W.3d at 908.

In other words, “[t]he circumstances must show that it was the event speaking through the person

and not the person speaking about the event.” Malone v. Foster, 956 S.W.2d 573, 580 (Tex.

App.—Dallas 1997), aff’d, 977 S.W.2d 562 (Tex. 1998). In this case, Sherbin argues that the

statements fall under the exception because the workers made the statements without being asked

and because the statements were made shortly after the accident. However, the record does not

indicate how much time elapsed between the accident and the statements or demonstrate the

demeanor of the workers at the time of the statements. See Volkswagon of Am., 159 S.W.3d at 908

n.5 (noting that, in excited utterance analysis, proponent of hearsay has burden to show that

testimony falls under exception). Accordingly, exclusion of the statements for failing to meet the

standard for excited utterances does not constitute an abuse of discretion.

               Sherbin also attempts to incorporate arguments from her trial brief that the statements

of the construction workers fall under hearsay exceptions for present-sense impression and then-

existing mental, emotional, or physical condition. See Tex. R. Evid. 803(1), (3). However, as these



                                                 11
arguments are not presented in her appellate brief, they are not properly before this court on appeal.

See Tex. R. App. P. 38; Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829, 832-33

(Tex. App.—Fort Worth 1998, pet. denied) (holding that permitting incorporation by reference of

arguments made in summary judgment motion “would be an open door for parties to circumvent the

appellate brief page limits”); Coggin v. State, No. 03-04-00585-CR, 2006 Tex. App. LEXIS 4121,

at *13 n.3 (Tex. App.—Austin May 12, 2006, no pet.) (mem. op., not designated for publication)

(holding that incorporation of arguments “conflict[s] with the rules of appellate procedure”) (citing

Guerrero).

               Even if the arguments regarding present-sense impression and then-existing mental,

emotional, or physical condition were properly before this Court, the statements of the construction

workers do not fall within these exceptions. A present-sense impression is a “statement describing

or explaining an event or condition made while the declarant was perceiving the event or condition,

or immediately thereafter.” Tex. R. Evid. 803(1). To the extent that the construction workers were

describing an event or condition in discussing their attempts to stop production of the dust cloud,

there is no indication that the workers’ statements were made at the time of the event or immediately

thereafter. While counsel stated that the statements occurred after the accident and shortly before

the police arrived, he did not specify when the event itself had occurred. See Daniels v. Yancey,

175 S.W.3d 889, 895 (Tex. App.—Texarkana 2005, no pet.) (“Without probative evidence in the

record which establishes the amount of time between [the] statement and [the event described], we

cannot conclude that the statement falls within this exception.”). Further, the exception for a then-

existing mental, emotional, or physical condition covers statements regarding the declarant’s “intent,



                                                 12
plan, motive, design, mental feeling, pain, or bodily health.” See Tex. R. Evid. 803(3). The

statements in question refer to the construction workers’ alleged prior attempts to stop production

of the dust cloud, not to their mental, emotional or physical condition at the time they were making

the statements, and consequently do not fall under the exception.

               Accordingly, as neither the witness statements of Smith and Garcia nor the statements

of the construction workers fall under exceptions to the hearsay rule, we conclude that the trial court

did not abuse its discretion in excluding the statements. Sherbin’s third issue is overruled.


Testimony about Construction Worker Statements

               In her fourth and fifth issues, Sherbin argues that the trial court erred in excluding her

own testimony and the deposition testimony of Garcia regarding statements of unidentified

construction workers that they had attempted to stop the creation of the dust cloud. Neither issue

is properly before this Court. To begin with, neither issue is adequately briefed. Sherbin’s brief

states no legal argument for the proposition that the testimony is admissible except for references

to arguments made in her trial brief. As explained above, incorporation of arguments in this

manner conflicts with the rules of appellate procedure. See Tex. R. App. P. 38.1; Guerrero,

977 S.W.2d at 832-33.

               Even were we to address Sherbin’s arguments, none of them compel admission of the

statements in question. The statements of the construction workers are hearsay. As analyzed above,

the record does not support the arguments in Sherbin’s trial brief that the statements of the

unidentified construction workers fall under hearsay exceptions for excited utterance, present-sense




                                                  13
impression or then-existing mental, emotional, or physical condition. See Tex. R. Evid. 803(1)-(3).

Accordingly, Sherbin’s fourth and fifth issues on appeal are overruled.


                                         CONCLUSION

               Finding no reversible error, we affirm the judgment of the trial court.




                                             __________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: July 9, 2010




                                                14
