Affirmed and Opinion filed August 7, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00091-CV

                             ENA JONES, Appellant
                                         V.
   THE MATTRESS FIRM HOLDING CORP., THE MATTRESS FIRM
        HOLDING CORP., D/B/A MATTRESS FIRM, Appellees

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-34051

                                 OPINION


      This appeal concerns the admissibility of dated photographs obtained from the
Google Earth computer program.        Ena Jones appeals from a final judgment
following a jury trial in favor of appellees, the Mattress Firm Holding Corp. and the
Mattress Firm Holding Corp., d/b/a Mattress Firm. Jones contends Mattress Firm’s
inflatable advertising “tube man” caused her to fall and suffer serious injury as she
left a Mattress Firm store. The trial court excluded three satellite photographs from
Google Earth, which purportedly showed the location of the device on particular
dates before and after the incident, based on objections including lack of
authentication and relevance.

      Jones argues the photos are authentic and relevant to rebut Mattress Firm’s
evidence regarding where it generally placed the device. We conclude the trial court
did not abuse its discretion in excluding the photos because Jones did not
authenticate the dates on each photo, and without those dates the photos are not
relevant. In addition, even if error had been shown, the error was harmless because
ample photographic and testimonial evidence was admitted bearing on the device’s
location at the time of the incident and thereafter. We therefore affirm the trial
court’s judgment.
                                    BACKGROUND

      On April 2, 2014, Ena Jones went to a Mattress Firm in Houston, Texas to
purchase a mattress. The store utilized an inflatable moving “tube man,” also called
a “wind dancer,” to attract customers. An employee placed the tube man and its
attached electrical fan at ground level in front of the store’s entrance each business
day and put away the device when the store closed for the day.

      Jones testified she was startled by the tube man when she entered the store via
a ramp and told the store manager, Edwin Reyes, about her experience. Upon exiting
the store, Jones took an alternate route that involved the use of stairs. Jones testified
the tube man again startled her, resulting in her missing a step and falling down,
severely injuring herself.

      At trial, the parties disputed how close the tube man was to the parking space
Jones had used. Jones sought to introduce deposition testimony of Samuel Sanchez,
the district manager for Mattress Firm, identifying the store and the tube man and
discussing the device’s location as shown in three different Google Earth
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photographs. The photos purported to show the tube man in a particular location six
and eighteen months before the incident as well as in a different location further
from the parking space six days after the incident.        Mattress Firm objected on
multiple grounds: lack of authentication, relevance, and reliability; hearsay; and
unfair prejudice. The trial court sustained the objection and excluded this portion of
Sanchez’s deposition testimony as well as the Google Earth photos.

       At trial, several witnesses testified about where they had seen the tube man on
the day of the incident and where the tube man generally was placed. The jury was
shown other photos of the tube man in front of the store on different dates and in
different locations. Reyes agreed that the official incident report stated Jones fell in
an attempt to avoid the tube man. Jones’s daughter testified she told Reyes that the
tube man was not in a good spot and could obstruct handicapped people attempting
to enter the store.

       After a three-day trial, the jury returned a verdict finding neither party
negligent. The trial court signed a take-nothing judgment based on the jury’s
finding.
                                      ANALYSIS

       In two issues, Jones argues that the Google Earth photos were admissible, the
trial court abused its discretion in excluding them, and this error was harmful,
requiring a new trial.    In particular, Jones addresses each of Mattress Firm’s
objections to the photos in her brief. Mattress Firm responds, in part, that Jones did
not preserve her claim of error for our review. We begin our analysis there and,
having concluded that Jones did preserve her claim, proceed to consider whether the
trial court abused its discretion and whether any error was harmful.




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I.    Jones preserved her challenge to the exclusion of the photos.

      Mattress Firm contends that Jones failed to preserve her claim of error in
excluding the Google Earth photos by not offering the photos separately from
Sanchez’s deposition and not making a formal offer of proof. We hold that her
challenge to the trial court’s ruling is preserved for our review.

      A party seeking admission of evidence must inform the court of the substance
of the evidence by an offer of proof, unless the substance is apparent from the
context. Tex. R. Evid. 103(a)(2); Garden Ridge, L.P. v. Clear Lake Ctr., L.P., 504
S.W.3d 428, 438 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Making an offer
of proof enables an appellate court to determine whether the exclusion of the
evidence was erroneous and harmful, and it allows the trial court to reconsider its
ruling in light of the actual evidence. Ludlow v. DeBerry, 959 S.W.2d 265, 270
(Tex. App.—Houston [14th Dist.] 1997, no writ.). The rules of evidence do not
mandate a formal offer; they require only a “short, factual recitation of what the
[evidence] would show” to preserve the issue for appeal. In re N.R.C., 94 S.W.3d
799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing Cathleen C.
Herasmichuk, TEXAS RULES OF EVIDENCE HANDBOOK 96 (4th ed. 2001)). Counsel
should reasonably and specifically summarize the evidence and state its relevance
unless already apparent. Id.

       In responding to Mattress Firm’s objections and the trial judge’s questioning,
Jones’s counsel described the photos as showing the store, the tube man, and its
location. Counsel further stated that the location of the tube man in the photos
directly contradicted Mattress Firm’s asserted location. The trial court understood
that counsel was “try[ing] to admit [some]thing . . . printed off of Google Earth.”
The court also focused on authentication of the photos, stating: “let’s talk about
Google Earth. . . . [H]ow can you authenticate this?” The court understood the

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admissibility of the photos to be preserved for appeal, stating that “if I’m wrong
about [my ruling] I’ll get it right the next time we try the case.”   The photos are
included in the record, enabling appellate review.

      Jones offered a short, factual recitation of what the photos showed and why
she intended to introduce them. Further, it is clear from the context that the trial
court excluded the photos and understood that the issue was preserved for appeal.
Despite not presenting a formal offer of proof, Jones made the substance of the
evidence apparent to the trial court and included it in the record. Thus, Jones
properly preserved the issue for appeal. See In re N.R.C., 94 S.W.3d at 806.

II.   The trial court did not abuse its discretion in excluding the dated Google
      Earth photos.
      Jones challenges the trial court’s ruling sustaining Mattress Firm’s objection
to the Google Earth photos by attacking each ground of objection in turn. She begins
by arguing that the photos “are authenticated by judicial notice and because there is
no way to reasonably dispute their scientific reliability.” Although Mattress Firm’s
counsel conceded that the photos depicted the store, the dates on each photo were
not authenticated. We conclude that without those dates, the photos are not relevant
and the trial court did not abuse its discretion in excluding them. We therefore need
not address Jones’s challenges to the other grounds for Mattress Firm’s objection.

      A.     Standard of review and applicable law

      The decision to exclude or admit evidence is within the sound discretion of
the trial court. Kroger Co. v. Milanes, 474 S.W.3d 321, 341 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). A trial court exceeds its discretion when it acts in an
arbitrary or unreasonable manner or without reference to guiding rules or principles.
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Barnhart v. Morales,
459 S.W.3d 733, 742 (Tex. App.—Houston [14th Dist.] 2015, no pet.). When

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reviewing matters committed to the trial court’s discretion, a reviewing court may
not substitute its own judgment for that of the trial court. Barnhart, 459 S.W.3d at
742. Thus, the question is not whether this court would have admitted the evidence.
Id. Rather, an appellate court will uphold the trial court’s evidentiary ruling if there
is any legitimate basis for the ruling. Id. (citing Hooper v. Chittaluru, 222 S.W.3d
103, 107 (Tex. App.—Houston [14th Dist.] 2006 pet. denied) (op. on reh’g)).

      To be relevant, evidence must have any tendency to make a fact of
consequence in determining the action more or less probable. Tex. R. Evid. 401.
Relevant evidence generally is admissible. Tex. R. Evid. 402. Photographs are
admissible if they are relevant to any issue in a case. Kroger, 474 S.W.3d at 342.

      When a photograph is relevant to an issue in a case, it is admissible if it is
authenticated by a witness as an accurate portrayal. Davidson v. Great Nat. Life Ins.
Co., 737 S.W.2d 312, 314-315 (Tex. 1987). The verifying witness must be familiar
with the objects involved in the photograph and be able to state the photograph
correctly represents them. See Tex. R. Evid. 901(a), (b)(1); Kroger, 474 S.W.3d at
342. Conditions in a photograph do not need to be identical to the conditions at the
time of the event in question “if the changes are explained in such a manner that the
photograph . . . will help the jury in understanding the nature of the condition at the
time of the event at issue.” Kroger, 474 S.W.3d at 342.

      A trial court may exclude relevant evidence, however, if the probative value
is substantially outweighed by unfair prejudice, confusion of the issues, the potential
to mislead the jury or cause undue delay, or needless presentation of cumulative
evidence. See Tex. R. Evid. 403. Photographs taken at or around the same time
from the same angle are generally cumulative and excluding them is not an abuse of
discretion. Bartosh v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 443 (Tex.
App.—Houston [14th Dist.] 2005, no pet.).

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      B.     The dates on the photos were not authenticated.
      The trial court admitted several photographs of the store, all taken from
ground level and some showing the location of the tube man near the time of the
incident. The three Google Earth photos offered by Jones show an aerial view of the
Mattress Firm store. Counsel for Mattress Firm partially conceded the authenticity
of these photos, stating “I’m not questioning that this isn’t a picture of the store.”

      Each Google Earth photo also shows the location of the tube man, an issue
that was disputed and material to Jones’s claim of negligence. But there is no
evidence that the Google Earth photos were taken on the day of the incident; the
dates they bear are before and after the incident. Mattress Firm made clear that its
objection to lack of authentication includes those dates.

      A party may authenticate evidence about a process or system by “describing
[that] process or system and showing that it produces an accurate result.” Tex. R.
Evid. 901(b)(9).     This is the provision of Rule 901 typically employed in
authenticating data produced by a machine or a computer program such as Google
Earth. See United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015)
(discussing possible ways Google Earth photos could be authenticated under
identically worded Fed. R. Evid. 901(b)(9)); United States v. Espinal-Almeida, 699
F.3d 588, 610–13 (1st Cir. 2012) (holding Google Earth maps with marked
coordinates were properly authenticated under federal rule); Burleson v. State, 802
S.W.2d 429, 440 (Tex. App.—Fort Worth 1991, pet. ref’d) (holding computer-
generated information was properly authenticated under Tex. R. Evid. 901(b)(9)).

      Jones did not comply with this provision in order to authenticate the dates on
the photos. She offered no evidence in the trial court describing how the Google
Earth photos were dated or showing that those dates were accurate. On appeal, she
asserts that the dates are computer-generated, but she points to nothing in the record

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supporting that assertion. She also argues that we must take judicial notice of the
photos’ authenticity, but she identifies no sources at all—much less sources whose
accuracy cannot reasonably be questioned—from which a court can readily
determine the accuracy of the dates on the Google Earth photos.1 See Tex. R. Evid.
201(b)(2). As a result, the trial court could reasonably conclude that the dates were
not authenticated.

       C.     Without the dates, the photos are not relevant.

       The Google Earth photos purport to show the location of the tube man on
certain dates before and after the incident. Without the dates, the photos do not “help
the jury in understanding the nature of the condition at the time of the event.”
Kroger, 474 S.W.3d at 342. The photos merely show three different locations where
Mattress Firm placed the tube man. The undated photos provide no information
relevant to the disputed issue of the tube man’s location at the time of the incident.
Undated photos also cannot make more probable Jones’s theory that Mattress Firm
tended to place the tube man in a certain location before and at the time of the
incident, or that it changed that location after the incident to one further away from
where Jones had parked. For these reasons, we hold that the trial court did not abuse
its discretion in excluding the dated Google Earth photos.




       1
         For the first time on appeal, Jones does provide some links to websites that explain in
general terms the source of the images used in Google Earth. But these sites do not address how
the images are dated. Moreover, Jones did not ask the trial court to take judicial notice of the
information on these sites to authenticate the Google Earth photos, and therefore they provide no
basis for us to conclude that the trial court abused its discretion in sustaining Mattress Firm’s
objection to lack of authentication.

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IV.   Any error in excluding the photos was harmless.2

      Alternatively, even if the trial court erred in excluding the dated Google Earth
photos, we conclude reversal is not required. Erroneous exclusion of evidence
requires reversal only if the error probably resulted in rendition of an improper
judgment. See State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.
2009). A successful challenge typically requires the complaining party to show the
judgment turns on the particular evidence excluded. Tex. Dep’t of Transp. v. Able,
35 S.W.3d 608, 617 (Tex. 2000). A reviewing court will not reverse a judgment
because a trial court erroneously excluded evidence when the excluded evidence is
cumulative or not controlling on a material issue dispositive to the case. See Able,
35 S.W.3d at 618; Farmers Tex. Cnty. Mut. Ins. Co. v. Pagan, 453 S.W.3d 454, 462
(Tex. App.—Houston [14th Dist.] 2014, no pet.). To determine whether excluded
evidence probably resulted in the rendition of an improper judgment, an appellate
court reviews the entire record. Able, 35 S.W.3d at 617.

      At trial, Jones used witness and deposition testimony as well as
demonstratives of the admitted photos to prove the location of the tube man on the
day of the incident. The first witness called at trial was the store manager, Reyes,
who testified regarding two potential locations of the tube man with the aid of the
demonstrative photos. Reyes did not dispute the official Mattress Firm incident
report, which stated the “customer walked out the door to avoid our wind dancer and
fell down the steps.” Jones also testified about the tube man’s proximity to the
parking space she used and its interference with her in entering and exiting the store.

      Jones’s daughter, Mussette Walker, also testified about the location of the tube
man following the incident. Walker stated the tube man was placed close to the


      2
          Chief Justice Frost does not join Part IV of this opinion.

                                                  9
parking lot to the right of the store, which would place it in or near the ingress and
egress point for the parking space Jones used. Walker stated she observed the tube
man the same day of the incident.

       Part of the deposition of Sanchez, Mattress Firm’s district manager, was also
read to the jury. Sanchez testified that the tube man generally was placed in such a
fashion as to optimize visibility, with safety being the secondary concern for
placement.

       Many dated photographs of the tube man in various locations were also
admitted. Although taken from a different angle than the Google Earth photos, some
of the admitted photos taken around the time of the incident also show the tube man
located nearer to the space where Jones parked, while photos taken later show the
tube man located further away from that space.3 Because these admitted photos
provide evidence that Mattress Firm changed the location of the tube man after the
incident, which is what Jones contends the Google Earth photos were offered to
show, the Google Earth photos are cumulative and their exclusion was not harmful.
Bartosh, 178 S.W.3d at 443 (citing Nissan Motor Co. v. Armstrong, 145 S.W.3d 131,
144 (Tex. 2004)).

       Having considered all of this evidence, the jury decided neither party was
negligent. After reviewing the entire record regarding the placement of the tube
man, we cannot say that the jury’s decision would turn on the admission of three
additional photos. Because the exclusion of the Google Earth photos probably did


       3
         For example, plaintiff’s exhibit 16 shows the tube man located nearer to Jones’s parking
space on April 3, 2014 (the day after the incident)—approximately the same location shown in the
Google Earth photos dated October 27, 2012 and October 31, 2013. On the other hand, plaintiff’s
exhibit 17 and defendants’ exhibits 1 through 9 show the tube man located further away from
Jones’s parking spot after the incident—approximately the same location shown in the Google
Earth photo dated April 8, 2014.

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not result in an improper judgment, Jones is not entitled to reversal of the judgment
and a new trial.
                                   CONCLUSION

      The trial court’s exclusion of the dated Google Earth photographs was not an
abuse of discretion, and in any event an erroneous ruling would be harmless. We
overrule Jones’s issues and affirm the trial court’s judgment.




                                       /s/    J. Brett Busby
                                              Justice


Panel consists of Chief Justice Frost and Justices Busby and Wise (Chief Justice
Frost joins only Parts I, II, and III of this opinion).




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