                                 NUMBER 13-08-00009-CV
                                 COURT OF APPEALS
                     THIRTEENTH DISTRICT OF TEXAS
                        CORPUS CHRISTI - EDINBURG


REYNALDO GONZALEZ,                                                                       Appellant,

                                                   v.

GREAT LAKES DREDGE &
DOCK COMPANY,                                                                             Appellee.


                       On appeal from the 206th District Court
                             of Hidalgo County, Texas.


                               MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Wittig1
               Memorandum Opinion by Justice Don Wittig

        Appellant, Reynaldo Gonzalez, tried his Jones Act and other maritime claims to a

jury. See 46 U.S.C. § 688. The jury found appellee, Great Lakes Dredge & Dock

Company, 25 percent negligent and found appellant 75 percent negligent. The trial court



        1
         Retired Justice Don W ittig assigned to this Court by the Chief Justice of the Suprem e Court of
Texas pursuant to TEX. GOV’T CODE ANN. § 74.003 (Vernon Supp. 2004).
accordingly reduced the damage finding of $500,000 to $125,000. Appellant asserts the

trial court erred by not properly applying “the rule” (TEX . R. CIV. P. 267) to a critical defense

witness and that the evidence of contributory negligence was not legally sufficient. See

TEX . R. CIV. P. 267. We affirm.

                                       I. The Rule

        At the conclusion of appellant’s case, his counsel, for the first time, invoked the

rule. See TEX . R. CIV. P. 267; TEX . R. EVID . 613. After the defense witness, Lanny

Lawrence, testified on direct examination, appellant’s counsel began his cross examination

and elicited testimony by Lawrence indicating that he had some discussions about prior

court testimony with defense counsel and the corporate representative, Enrique Elizondo.

Appellant requested, and was afforded, a hearing outside the presence of the jury. During

the hearing, Lawrence, Elizondo, and defense counsel were questioned by appellant’s

counsel and the court concerning the apparent violation of the rule.

                                A. Standard of Review

       We review the trial court’s actions in enforcing the rule by an abuse of discretion

standard. Drilex Sys. v. Flores, 1 S.W.3d 112, 117-18 (Tex. 1999).             When the rule is

violated, the trial court may, taking into consideration all of the circumstances, allow the

testimony of the potential witness, exclude the testimony, or hold the violator in contempt.

Id. (citing TEX . R. CIV . P. 267(e); Triton Oil & Gas Corp. v. E.W. Moran Drilling Co., 509

S.W.2d 678, 684 (Tex. Civ. App.–Fort Worth 1974, writ ref'd n.r.e.)).

                                         B. Analysis

       Appellant argues that both defense counsel’s discussion with Lawrence and

counsel’s failure to warn Elizondo that the rule had been invoked, violated the rule.



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Counsel are obligated to ensure compliance with the rule. See Drilex, 1 S. W. 3d at 120.

While the record reflects some conversations between Lawrence, and Elizondo, these

occurred in part before the rule was invoked. Elizondo did not recall discussing any

specific testimony. “I don’t remember talking specific about testimonies [sic] and stuff like

that.” Though the record supports appellant’s contention that defense counsel, including

all four attorneys, did not properly admonish Elizondo, appellant does not point to any

specific revelation by Elizondo that affected his case.

       Appellant next argues that Lawrence materially altered his testimony in three ways.

Lawrence was appellee’s vice president for risk management and special projects.

Although not an eyewitness, Lawrence spoke with appellant after his fall down a shipboard

stairwell. According to appellant’s argument, in his deposition Lawrence testified that he

did not believe the paint on the ladder was non-skid paint. At trial, he was “certain” the

paint was non-skid. However, the record reveals a more ambiguous deposition answer:

“I don’t know if the paint has non-skid in it or not,” and indicated that he did not expect the

paint to have non-skid in it. Lawrence explained that prior to trial he actually touched the

painted surface and felt the non-skid material.

       Next, appellant charges Lawrence with altering his testimony concerning the

presence of diamond plating on the stairway. Appellant contends that, at his deposition,

Lawrence testified that the diamond plating was worn away. At trial, however, Lawrence

said the plating was intact. In his deposition, Lawrence stated: “It—looks like the high spots

are worn off of the diamond—the diamond—.” At the time of this testimony, Lawrence was

referring to a photograph of the stairs and not the actual stairs. At trial, Lawrence denied

that the diamond plate was “worn off” or had lost its effectiveness. He did agree with

counsel that if the top sharp edge of the plating were removed, it is not as effective at

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preventing slips.

       Appellant does not inform us how the semantic differences in play were caused by

any alleged violation of rule 267. Appellant’s counsel also noted that he did not need

Lawrence’s testimony on this subject noting “you can see it right there in the picture. . . .”

       Third, appellant charges that Lawrence altered his testimony regarding appellant’s

“fall,” from “slipping,” in his deposition, to “mis-stepping”2 in his trial testimony. In his

deposition Lawrence was asked:

       Q.         Okay. Now what’s the first thing you remember hearing about Mr.
                  Gonzalez’s injury?

       A.         Him just saying that he had hurt his arm.

       Q.         Okay. And in what fashion?

       A.         By slipping down stairs.

At trial, Lawrence was questioned about some discussions with one of the attorneys for the

defense, that appellant’s counsel “found very, very interesting. I thought you told this jury

that Reynaldo told you that he miss stepped [sic]. Did you testify to that?” Lawrence

replied, “I did.” Appellant’s trial counsel pointed out that Lawrence’s own hand-written report

from the day of the accident indicated that Gonzalez’s “[f]oot slipped while stepping down.”

       Finally, appellant further points out that Lawrence testified that, during his

conversations with other witnesses, he learned of specific testimony Gonzalez gave at trial.

However, with one exception, Lawrence denied learning any information that he did not

have before. The only new information admittedly gleaned was Gonzalez’s testimony that

a co-worker had shown up drunk. Appellant concludes that without Lawrence’s testimony,

there would have been no dispute that appellant slipped on a negligently maintained


       2
           The official transcript used the term “m iss stepping,” illustrating the problem with sem antics.

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stairwell and was injured as a result.

       In support of his argument, appellant cites Harris, a criminal case. Harris v. State,

122 S.W.3d 871, 882-83 (Tex. App.–Fort Worth 2003, pet. ref’d). Harris explains a two-step

analysis to ascertain whether a trial court has abused its discretion in allowing testimony by

a witness who has violated the rule. Id. The first step of the analysis is to determine

whether the witness was (1) a person who was not intended to be called to testify and who

was not connected to the case-in-chief, but has become a necessary witness; or (2) a

person who had been sworn or listed as a witness in the case and either heard or discussed

another's testimony. Id. If the witness had “personal knowledge of the offense and was

clearly anticipated as a witness,” the second step of the analysis requires the court to

determine whether the witness actually conferred with or heard the testimony of another

witness, and whether the witness's testimony contradicted the testimony of a witness he

actually heard from the opposing side, or corroborated the testimony of another witness he

actually heard from the same side on a question of fact bearing upon the issue of guilt or

innocence. Id. If both of the above criteria are met, then the trial court abused its discretion

by allowing the testimony of the witness. Id.

       Appellant correctly points out that: “[t]he premise underlying the rule is that the truth

is more likely to be reached by presenting the Jury each witness[’s] unalloyed, independent

version of an occurrence uncolored by previous testimony in the trial.” See Franklin v.

State, 733 S.W.2d 537, 540 (Tex. App.–Tyler 1985, pet. ref’d). Franklin goes on to say:

“Even the most righteous truthteller may be unconsciously influenced. And to allow each

succeeding witness to harmonize his story with those who precede him would undermine

the test of cross-examination.”     Aside from again being a criminal case, Franklin is



                                               5
distinguishable on the facts because in that case the two defense alibi witnesses excluded

had been in the courtroom and actually heard the officer’s critical testimony concerning both

the identification of appellant and the time period within which the offenses had occurred.

Id. at 538. The alibi witnesses could then tailor their own testimony knowing the critical

evidence.

       Appellant argues that Lawrence tailored his testimony to respond to Gonzalez’s and

Hervey Martinez’s eye witness testimony. He cites several cases, including Elbar, Inc. v.

Claussen, 774 S.W.2d 45, 51 (Tex. App.–Dallas 1989, writ dis’m), which provides that,

“[r]ule 614 of the Texas Rules of Civil Evidence, commonly referred to as ‘the rule,’ provides

for the exclusion of witnesses from the courtroom so that they cannot hear and be

influenced by the testimony of other witnesses.” Id. “Sequestration minimizes witnesses'

tailoring their testimony in response to that of other witnesses and prevents collusion among

witnesses testifying for the same side.” Drilex Sys., 1 S.W.3d at 116. Drilex also observes:

“A violation of the Rule occurs when a nonexempt prospective witness remains in the

courtroom during the testimony of another witness, or when a nonexempt prospective

witness learns about another's trial testimony through discussions with persons other than

the attorneys in the case or by reading reports or comments about the testimony.” Id. at

117.

       Appellant concludes that Lawrence’s actions directly violated the rule and there is no

question that Gonzalez’s testimony influenced Lawrence. However, appellant fails to show

whether or not Gonzalez’s trial testimony differed from his deposition testimony, which was

known to Lawrence. Appellant does not point to a single material trial statement by

Gonzalez or Martinez that was somehow made known to Lawrence, who in turn changed



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his testimony based upon that testimony. The record reveals that the only new information

Lawrence learned was from defense co-counsel, who picked up Lawrence at the airport and

discussed the case with the witness before the rule was invoked. The new information

concerned the intoxicated state of co-worker Tim Riehl.3

       In response to appellant’s contentions, appellee first notes that appellant waived any

alleged error by proceeding after the court’s hearing on the matter without first obtaining a

ruling. After the hearing, appellant’s trial counsel did not renew his objection and stated he

was ready to proceed. The most likely inference would be that appellant’s counsel was

satisfied that no significant rule infraction had occurred. To preserve error, a party must

secure a ruling, explicit or implicit, or if the court refuses to rule, object to the refusal. See

TEX . R. APP. P. 33.1(a)(1)(A), (B)(2)(A), & (B). While appellee’s challenge is not without

merit, we will nevertheless address the merits of the issue.

       Appellee argues that under the standard of review, abuse of discretion, no abuse has

been shown. Appellee cites a number of cases where the trial court’s decision to either

exclude or allow a witness to testify was upheld.                      One case, Bishop, demonstrated

reversible error for the exclusion of a witness under the rule. Bishop v. Wollyung, 705

S.W.2d 312, 314 (Tex. App.–San Antonio 1986, writ ref’d, n.r.e.) (holding that Bishop's wife

should not be excluded from the proceedings on retrial because she was a party in interest).

More in point than this proposition of law is our holding in Weeks. See Weeks v. Heinrich,

447 S.W.2d 688, 697 (Tex. Civ. App.–Corpus Christi 1969, writ ref’d n.r.e.).                                 There,

appellants showed that two witnesses testified they met with appellee and his counsel and

the latter talked to them about their testimony. Id. The rule had been invoked, but neither



       3
           There is no indication that Riehl’s intoxication, vel non, played any part in appellant’s fall.

                                                         7
of the witnesses had been sworn or heard any of the testimony at the time of the meeting.

Id.   Appellants were allowed to question the two witnesses and to develop the

circumstances surrounding the meeting, both on bill of exception, and thereafter in the

presence of the jury. Id. The trial judge had the discretionary authority to permit the

testimony or to exclude it. Id. The Weeks appellants did not demonstrate abuse of

discretion in admitting or refusing to strike the testimony. Id. (citing TEX . R. CIV. P. 267;

Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Ins. Co. of N. Am. v.

Parker, 434 S.W.2d 159, 161 (Tex. Civ. App.–Tyler 1968, no writ)).

       Appellee aptly points out that the trial court went to considerable lengths to ascertain

whether the letter and spirit of rule 267 had been adhered to. She conducted an extensive

hearing out of the presence of the jury. She asked a number of questions to counsel,

Elizondo, and Lawrence. It was the trial judge, not appellant’s counsel, whose inquiry

brought out the fact that Lawrence apparently had not heard before the trial that Riehl

showed up for work intoxicated. However, as we noted above, this occurred before the rule

was invoked.     Appellant’s counsel was afforded ample opportunity to question all

concerned, and seemed to acquiesce to the further trial testimony of Lawrence.

       The trial judge was faced with the same question we face today. When counsel

changes a question from “What’s the first thing you heard?” to “Did you testify to that?” is

a witness expected to answer in the exact same language? Is there a significant difference

between a mis-step and a slip, or as appellant’s counsel questioned Gonzalez, about the

“fall down the stairs?” At one point Gonzalez testified: “I only slipped and I don’t know how

things happened because it was a matter of seconds.” There were variations in testimony

by both Gonzalez and Lawrence. At least one appellate criminal opinion held that we must



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presume that the court has properly exercised its discretion until the contrary is shown.

Tijerina v. State, 460 S.W.2d 123, 124 (Tex. Crim. App. 1970).

        In addition to the problem of semantics, several difficulties face appellant’s attempt

to show an abuse of discretion. Lawrence had not been previously sworn as a witness or

admonished by the trial court. We do find fault in appellee’s counsel’s failure to admonish

the witness as instructed by the court. Lawrence was already familiar with the prior

testimony of Gonzalez, and others, whose depositions were previously taken. Lawrence

was, after all, a company vice-president and risk manager. Unless Gonzalez changed his

prior deposition testimony at trial, which is not contended, then Lawrence was already

familiar with appellant’s contentions. Lawrence had revisited the scene of the fall and could

have refreshed his recollection of the particulars, such as the presence of non-skid paint.

Lawrence spoke with counsel, which is permissible, and learned of the only new factor, the

intoxication of Riehl, before the rule was invoked. Lawrence was not in the courtroom

during the prior testimony. Moreover, even if Lawrence changed his testimony, it does not

necessarily follow that the change was due to a rule violation.4 All factors that appellant

argues to suggest he changed his testimony were presented to the jury, who were charged

to weigh Lawrence’s credibility. The record does not otherwise distinguish between what

Lawrence knew prior to his conversation with Elizondo, and what, if anything, he may have

learned from Elizondo. Nor does the record clearly differentiate between what Lawrence

may have discussed before the rule was invoked and what may have been discussed after

the rule was invoked. And finally, as appellee points out, the trial judge conscientiously and

painstakingly addressed the situation presented to her.


        4
           A classical violation of logic occurs when it is argued that because a event follows another event,
that the first caused the second. “Propterea quod ergo propter quod.”

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        The trial court, in the exercise of judicial discretion, must determine whether the

witness's testimony will be received. Johnson, 389 S.W.2d at 648 (holding that the mere

fact or circumstance that a trial judge may decide a matter within his discretionary authority

in a manner different from what an appellate judge would decide if placed in a similar

circumstance does not demonstrate that an abuse of discretion has occurred). We

conclude that appellant has not demonstrated that the trial judge abused her discretion.

See Drilex Sys., 1 S.W.3d at 117 (stating that when the rule is violated, the trial court may,

taking into consideration all of the circumstances, allow the testimony of the potential

witness, exclude the testimony, or hold the violator in contempt). We overrule appellant’s

first issue.

                                        II. Legal Sufficiency

        In his second issue, appellant argues the evidence is insufficient to support the

contributory negligence finding of the jury. He argues that a seaman’s conduct is negligent

only when there is a safer alternative available which the seaman knows, or should have

known, and nevertheless proceeded with the unsafe choice, citing Shipman v. Central Gulf

Lines, Inc., 709 F.2d 383, 386 (5th Cir.1983). More accurately, Shipman holds that in order

to support a jury finding of contributory negligence, the seaman must have had a duty to act

or refrain from acting. Id. While a seaman's duty to protect himself is slight, the duty does

exist.5 Id. A seaman would not be contributorily negligent merely because he used an

unsafe tool or appliance or proceeded in an unsafe area of the ship. Id. “Where it is

shown, however, that there existed a safe alternative available to him, of which he knew or



        5
         This “slight duty” concept was heightened in later cases. See e.g., Gautreaux v. Scurlock Marine,
107 F.3d 331, 339 (5th Cir. 1997) (discussed infra).

                                                    10
should have known, a seaman's choice of an unsafe course of action can properly be

considered in determining whether he was negligent.” Id.

       Appellant also argues from Gautreaux v. Scurlock Marine, 107 F.3d 331, 339 (5th

Cir. 1997). Gautreaux is inaccurately cited for the proposition that a seaman does not have

a duty to find the safest way to perform his work. More accurately, the case holds that a

seaman is obligated under the Jones Act to act with ordinary prudence under the

circumstances. Id.

       The circumstances of a seaman's employment include not only his reliance
       on his employer to provide a safe work environment but also his own
       experience, training, or education. The reasonable person standard,
       therefore, and a Jones Act negligence action becomes one of the reasonable
       seaman in like circumstances. To hold otherwise would unjustly reward
       unreasonable conduct and would fault seamen only for their gross negligence, which was not th


       Id. (citations omitted).

                                    A. Standard of Review

       For the Jones Act, both the burden of proof and the standard of appellate review is

less stringent than under the common law. Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 406 (Tex. 1998) (citing Texas & Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex.

1972)). As with the law on causation, the FELA standard of appellate review applies in

Jones Act cases. Id. The purpose of the Jones Act standard of review is to vest the jury

with complete discretion on factual issues about liability. Id. Once the appellate court

determines that some evidence about which reasonable minds could differ supports the

verdict, the appellate court's review is complete. Id. Essentially, a Texas court of appeals

may not conduct a traditional factual sufficiency review of a jury's liability finding under the

Texas “weight and preponderance” standard; rather we must apply the less stringent federal


                                              11
standard of review. Id.

                                      B. Analysis

       Appellant argues that the only witness to the accident, Martinez, did not indicate any

contributory negligence on appellant’s part. Martinez heard no criticism of appellant’s

negotiation of the stairwell. Appellant further argues that had the trial court properly

excluded Lawrence’s testimony, no evidence would support the adverse jury finding. “A

finding of contributory negligence without Lawrence’s testimony is ‘mere conjecture and

speculation.’” However, we have already held the trial court did not abuse her discretion

by admitting Lawrence’s testimony.

       Appellant worked on the vessel in question from 1998 to 2005. He was intimately

familiar with his workplace and had traversed the stairwell in question hundreds of times.

If indeed the paint on the stairs lacked non-skid material, as a watch engineer appellant had

authority, when the ship was underway, to address and repair the unsafe condition.

Appellant himself was unsure how the accident happened, although he testified the stairs

were clean and dry and, if there was any water present, he brought it in on his shoes. The

vessel was not on the high seas or underway when the accident occurred. The vessel was

stationary and the seas calm. Appellant testified that there was an alternate route available,

had the need arisen. While appellant testified that he slipped, he told a physician that he

“lost his footing.” In Lawrence’s testimony, appellant was quoted as saying he “miss

stepped [sic].” Appellant’s own lawyer described the incident as a “fall.” Additionally, the

jury was furnished with a photo of the stairwell, and as appellant’s trial counsel pointed out,

the jury could see for themselves the condition of the stairwell. Finally, the vessel was

subject to regular Coast Guard inspection and they had not noted material defects.


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                                   C. Conclusion

       Appellate inquiry is limited to whether there was any evidence to support the jury's

verdict, irrespective of its sufficiency, or whether plain error was committed which, if not

noticed, would result in a "manifest miscarriage of justice." Shipman, 709 F.2d at 385. No

plain error is argued or apparent. We find that there is some evidence of contributory

negligence about which reasonable minds could differ. See Maritime Overseas Corp., 971

S.W.2d at 406.

       We overrule appellant’s second issue. The judgment of the trial court is affirmed.




                                                        DON WITTIG,
                                                        Justice
Delivered and filed
the 24th day of June, 2010.




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