                                   NUMBER 13-06-473-CV

                                  COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


FRANCES T. MOORE AND
AARON MOORE,                                                                             Appellants,

                                                    v.

MICHAEL K. TIDWELL D/B/A
EXXON FOOD MART,                                                                            Appellee.


  On appeal from the 107th District Court of Cameron County, Texas.


                              MEMORANDUM OPINION

                   Before Justices Yañez, Rodriguez, and Garza
                     Memorandum Opinion by Justice Yañez

        In this slip-and-fall case, a jury found in favor of the defendant/appellee, Michael K.

Tidwell d/b/a Exxon Food Mart (“Tidwell”). In two issues, appellants Frances T. Moore and

Aaron Moore1 contend the trial court: (1) failed to enforce its own pre-trial order, which

        1
         Appellant, Frances T. Moore, alleged she suffered injuries when she tripped and fell on uneven
pavem ent at Tidwell’s convenience store. Throughout this opinion, we refer to Frances T. Moore as “Moore.”
prohibited Tidwell’s expert, Edmundo R. Gonzalez, Jr., from testifying as to a specific

matter; and (2) abused its discretion by permitting Gonzalez to testify as an expert witness.

We affirm.

                                              Background

        Moore alleged that while purchasing gas at Tidwell’s convenience store, she tripped

and fell on uneven concrete pavement near the gas pumps.2 Moore sued Tidwell for

premises liability, alleging that the uneven pavement presented an unreasonably

dangerous condition. At a pre-trial hearing, visiting Judge Joaquin Villarreal3 heard

arguments on Moore’s motion to exclude Gonzalez’s testimony as Tidwell’s expert on

grounds that Gonzalez was not qualified as an expert, and his testimony was therefore

unreliable and presented a risk of misleading and confusing the jury. Judge Villarreal ruled

that Gonzalez was prohibited from testifying as to whether the premises “presented an

unreasonably dangerous condition,” but could testify as to all other relevant matters.

        At trial, Moore’s counsel re-urged a “Robinson challenge” to Gonzalez’s testimony.4

The trial judge stated that he would “carry the previous orders of the Court regarding the

motion.” After a brief argument from Moore’s counsel, the court denied the motion.

        By her first issue, Moore contends that by permitting Gonzalez to testify as an

expert, the trial court violated its earlier order. By her second issue, she contends that the



        2
          Gonzalez’s testim ony at trial established that the uneven pavem ent m easured between one-fourth
of an inch and seven-eighths of an inch.

        3
         The Honorable Benjam in Euresti, presiding judge of the 107th District Court in Cam eron County,
Texas, presided over the trial. The Honorable Joaquin Villarreal, visiting judge, ruled on Moore’s m otion to
exclude Gonzalez’s testim ony.

        4
            See generally E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W .2d 549 (Tex. 1995).

                                                     2
trial court abused its discretion in permitting Gonzalez’s testimony.

                              Standard of Review and Applicable Law

        A trial court's ruling on an expert's qualifications is reviewed under an abuse of

discretion standard.5          “A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles.”6 An appellate

court may not reverse for abuse of discretion simply because it would have decided the

matter differently.7

        Even if a trial court errs by improperly admitting evidence, reversal is warranted only

if the error probably caused the rendition of an improper judgment.8 To make this

determination, we review the entire record and require the complaining party to

demonstrate that the judgment turns on the particular evidence admitted.9 As the supreme

court has explained:

        Clearly, erroneous admission is harmless if it is merely cumulative. But
        beyond that, whether erroneous admission is harmful is more a matter of
        judgment than precise measurement. In making that judgment, we have
        sometimes looked to the efforts made by counsel to emphasize the
        erroneous evidence and whether there was contrary evidence that the
        improperly admitted evidence was calculated to overcome.10

        Furthermore, an error in admission is deemed harmless if the objecting party


        5
            Broders v. Heise, 924 S.W .2d 148, 151 (Tex. 1996).

        6
            Bowie Mem'l Hosp. v. W right, 79 S.W .3d 48, 52 (Tex. 2002); Broders, 924 S.W .2d at 151.

        7
            Downer v. Aquamarine Operators, Inc., 701 S.W .2d 238, 242 (Tex. 1985).

        8
        T EX . R. A PP . P. 44.1(a)(1); Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W .3d 231, 234 (Tex.
2007); Nissan Motor Co. v. Armstrong, 145 S.W .3d 131, 144 (Tex. 2004).

        9
            McShane, 239 S.W .3d at 234; Nissan, 145 S.W .3d at 144.

        10
             Nissan, 145 S.W .3d at 144 (citations om itted).

                                                        3
permits the same or similar evidence to be introduced without objection.11

                                                  Analysis

        Here, Moore contends the trial court reversibly erred in permitting Gonzalez to testify

that he did not consider the uneven pavement a hazard. However, even if we assume,

without deciding, that the trial court abused its discretion in permitting Gonzalez’s

testimony, Moore has not demonstrated that the judgment turned on Gonzalez’s testimony.

The only discussion of the harm issue appears in Moore’s reply brief. Citing Robinson12

and Gammill v. Jack Williams Chevrolet, Inc.,13 Moore asserts that Gonzalez’s testimony

was not merely cumulative, but “was controlling on a dispositive issue[,] namely Question

No. 1 of the Charge of the Court.”14 Moore states, “Mr. Gonzalez was the only expert who

testified on that issue [Question No. 1, the negligence of each party]. Consequently, the

admission of Mr. Gonzalez’s testimony caused the rendition of an improper judgment.”

        We first note that the record of the entire trial is not before us. The trial record

before us begins with the testimony of Tidwell’s witnesses; it includes the testimony of (1)

Elizabeth Mejia, an employee of the convenience store, (2) Gonzalez, and (3) Tidwell. It

does not include the testimony of any witnesses presented by Moore. We are thus unable

to review the entire record.15 We are also unable to determine “whether there was contrary



        11
             State Office of Risk Mgmt. v. Allen, 247 S.W .3d 797, 799 (Tex. App.–Dallas 2008, no pet.).

        12
             Robinson, 923 S.W .2d at 553.

        13
             Gammill v. Jack W illiams Chevrolet, Inc., 972 S.W .2d 713, 722 (Tex. 1998).

        14
             In answering Question No. 1, the jury found Tidwell was not negligent, and that Moore was
negligent.

        15
             See McShane, 239 S.W .3d at 234; Nissan, 145 S.W .3d at 144.

                                                       4
evidence that the improperly admitted evidence was calculated to overcome.”16

      We also note that on direct examination by the defense, Gonzalez declined to

expressly state his opinion as to whether the uneven pavement presented an unsafe

condition:

      Q [by Tidwell’s counsel]: What opinions do you have in relation to whether
      or not the premises were safe in connection with your inspection?

      [Moore’s counsel]: Your Honor, I object. I’m making the same argument as
      to this gentleman is not qualified to give any opinions about whether the
      conditions were safe or not safe.

      [Court]: It’ll be overruled.

      A [Gonzalez]: Basically what I saw there is fairly common in an area like
      ours.

                ....

      Q [Tidwell’s counsel]: How—after your inspection, what is your opinion as
      to whether or not this presented a typical hazard to a customer?

      [Moore’s counsel]: Your Honor, same objection.

      [Court]: It’ll be overruled.

      A: Well, like I just stated, especially for concrete slabs, it’s a common
      occurrence.

      On cross-examination, Moore’s counsel asked Gonzalez directly about his opinion

regarding whether the area was not hazardous:

      Q [Moore’s counsel]: And when you met and talked with [Tidwell’s
      attorneys], did you give them the opinion that you thought that this area was
      not hazardous?

      A [Gonzalez]: That is correct.



      16
           Nissan, 145 S.W .3d at 144.

                                           5
      We also note that the record includes numerous photographs of the uneven

pavement, which the jury was able to consider in making its determination.

                                            Conclusion

      Assuming, without deciding, that the trial court abused its discretion in admitting

Gonzalez’s testimony, we conclude that Moore has failed to demonstrate that the judgment

turned on Gonzalez’s testimony.17 We overrule both of Moore’s issues.

      We affirm the trial court’s judgment.




                                                       LINDA REYNA YAÑEZ,
                                                       Justice




Memorandum Opinion delivered and filed
this the 22nd day of January, 2009.




       17
            See McShane, 239 S.W .3d at 234; Nissan, 145 S.W .3d at 144.

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