                                                                                                ACCEPTED
                                                                                           01-14-00430-CV
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                       1/5/2015 2:54:32 PM
                                                                                      CHRISTOPHER PRINE
                                                                                                    CLERK

                                      NO. 01-14-00430-CV
                                        ____________
                                                                           FILED IN
                                                                    1st COURT OF APPEALS
                                OCTAVIO RIVERA, Appellant               HOUSTON, TEXAS
                                                                    1/5/2015 2:54:32 PM
                                              V.                    CHRISTOPHER A. PRINE
                                                                            Clerk
       786 TRANSPORTATION, LLC and CARLOS CUCHILLA, Appellees

                          On Appeal from the 113th District Court
                                   Harris County, Texas
                            Trial Court Cause No. 2011-16425


     APPELLANT’S REPLY BRIEF (ORAL ARGUMENT REQUESTED)

TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS:

        COMES NOW OCTAVIO RIVERA, Appellant, and files this his Appellant’s

Reply Brief. Appellant will be referred to herein by name as “Rivera” or as

“Plaintiff.” Appellees will be referred to herein as “Cuchilla” or “Defendants.”

I.      THE COURT’S RULING ON THE ADMISSIBILITY OF THE
        OPINION AT ISSUE WAS NOT A LIMINE RULING

        While argument on the admissibility of the police report certainly occurred

around the same time the trial court addressed the motions in limine, the court’s

ruling was not a limine ruling. The trial court initially abstained from ruling on the

report’s admissibility, instead granting what appeared to be a limine point on the

report. (R.R. v1, 26:1-5). Plaintiff re-urged the issue of the admissibility of the

evidence after empaneling the jury, and before opening statements, in order to avoid

the prejudice to the jury that Plaintiff was sure would occur if the opinions of the
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Rivera, Octavio: Appellant’s Reply Brief                                               1
officer were admitted into evidence. (R.R. v1, 91:22 – 92:6). The court’s ruling, “It’s

either all in, or it’s all out,” was therefore NOT a limine ruling—in other words, the

trial court had moved past its initial decision to approach before discussing the report

(a limine ruling) to a definitive ruling on the admissibility of the contents of the

report. (R.R. v1, 92:4-5).

        Once the court allows the admission of evidence that was timely objected to,

there is no requirement that the party opposing the evidence continue to object every

time it is offered. Tex. R. Evid. 103(a)(1); Geuder v. State, 115 S.W.3d 11 (Tex.

Crim. App. 2003).

II.     SINCE OFFICER ROGERS HAD NO EVIDENCE TO OFFER OTHER
        THAN THAT CONTAINED IN HIS REPORT, CALLING HIM LIVE
        TO EXPLAIN THE REPORT DID NOT WAIVE PLAINTIFF’S
        OBJECTION TO ITS ADMISSION.

        Cuchilla contends that Rivera has waived his objection to the evidence in the

police report, because Rivera offered both the report and Rogers’ testimony into

evidence. The reasoning behind the offer of both the police report and Rogers’

testimony was explained in Appellant’s Brief on the Merits—i.e. the trial court’s

ruling gave Plaintiff a Hobsons’ choice regarding whether to offer the report for the

credibility evidence Plaintiff needed for its case in chief, or do without it.1


1
  Statements used for the purposes of impeachment are not evidence. The Court’s ruling may not
have impeded Plaintiff’s ability to impeach Cuchilla with a prior inconsistent statement, but the
ruling did foreclose the submission of that statement to the jury during deliberations, unless the
officer’s conclusions were also allowed.
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Rivera, Octavio: Appellant’s Reply Brief                                                        2
        It is worth noting in this reply that Officer Rogers did not remember the

accident and could not speak to the investigation performed or conclusions drawn

EXCEPT as to what was already memorialized in his report. (R.R. v1, 168:7-9, 19-

23, 171:23-172:3). No new, supplementary, or contradictory evidence was offered

by Officer Rogers; therefore, Plaintiff did not waive his objection to the conclusions

contained in the report by not continuing to object to the EXACT same evidence the

Court had already ruled upon.

III.    THE JURY’S ZERO DAMAGES FINDING IS FURTHER PROOF
        THAT THE COURT’S ERROR WAS HARMFUL.

        Though Cuchilla attempts to mitigate the effect a uniformed officer’s

testimony has on a jury in his brief, the fact that the jury entered a zero damages

award for EACH and EVERY element of damages is in fact further proof that the

prejudice caused by the trial court’s ruling affected every part of the trial after the

evidence’s admission. Whatever leaps of logic Defendant wishes to make regarding

Rivera’s lack of a driver’s license leading to a jury disbelieving his medical

treatment, there was no argument that the emergency care Mr. Rivera received, at

least (and which was admitted into evidence without objection) was not directly

caused by the accident—Rivera was taken from the scene of the crash by ambulance.

        The fact that the jury did not award EVEN the ER bills shows that they did

not consider damages separately from liability. It is as if the zero damages award

was simply to underscore the jury’s liability determination. This is the reason
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Rivera, Octavio: Appellant’s Reply Brief                                             3
Plaintiff has asked for remand for a new trial on the proceedings. The jury could not

get past the officer’s opinions; therefore the trial court’s ruling was harmful error.

                                           PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant Octavio Rivera prays

that the Court reverse the judgment of the trial court and remand the case for a new

trial excluding the opinion evidence, both written and testimonial, of Officer Vince

Rogers, and for all other relief, whether in law or in equity, to which he may show

himself justly entitled.

                                               Respectfully Submitted,

                                               THE DUNK LAW FIRM, PLLC

                                               __________________________
                                               Brenna L. Sanchez
                                               State Bar No. 24068039
                                               4505 Caroline Street
                                               Houston, Texas 77004
                                               (713) 223-1435
                                               (713) 223-1438 (fax)
                                               brenna@dunklawyers.com


                           CERTIFICATE OF COMPLIANCE

        I hereby certify that this document contains 804 words, exclusive of these

certificates.

                                               ________________________
                                               Brenna L. Sanchez, Esq.



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Rivera, Octavio: Appellant’s Reply Brief                                                 4
                               CERTIFICATE OF SERVICE

      I hereby certify that on the 5th day of January, 2015, the foregoing was served
upon the persons identified below in accordance with Texas Rules of Appellate
Procedure 9.5.

VIA E-SERVICE
Jack McKinley
Robert L. Ramey
RAMEY, CHANDLER, QUINN, & ZITO, PC
750 Bering Drive, Ste. 600
Houston, Texas 77057             _________________________
                                 Brenna L. Sanchez, Esq.




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Rivera, Octavio: Appellant’s Reply Brief                                           5
