                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-121-CV


DANIEL BINION                                                     APPELLANT

                                        V.

BRANDON BRINKLEY,                                                  APPELLEES
NATHANAEL FRIEND, AND
AMERICAN MEDICAL
RESPONSE OF TEXAS, INC.

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           FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Daniel Binion appeals the judgment awarding him damages for

injuries that he sustained as a passenger in a car accident involving Appellees

Brandon Brinkley; Nathanael Friend; American Medical Response of Texas, Inc.;


      1
           See Tex. R. App. P. 47.4.
and involving Eric Clifford Wallace, who is not a party to this appeal. In two

issues, Binion argues that (1) the trial court abused its discretion by denying his

motion to exclude expert testimony from Officer Emily Summers concerning the

speed of the vehicle in which he was riding, and (2) that the trial court’s abuse

of discretion in admitting Officer Summers’s testimony constitutes harmful

error. Because we hold that any error in admitting Officer Summers’s testimony

about the speed of the vehicles were traveling prior to the accident was not

harmful, we will affirm.

                              II. F ACTUAL B ACKGROUND

      The facts of the car accident are not in dispute. Binion was a passenger

in a modified Dodge Neon SRT driven by Brinkley. When Wallace, who was

driving a white Mustang, pulled up near the Neon at a light on South Cooper

Street, Binion yelled, “Mustangs suck,” to Wallace.         Brinkley and Wallace

thereafter began racing; the speed limit was forty-five miles per hour. Brinkley

ultimately hit an American Medical Response of Texas ambulance.              Binion

sustained injuries as a result of the accident.

      At trial, Brinkley testified that he had told the police at the scene that he

thought he was traveling about sixty miles per hour. 2 Officer Cameron Huggins,




      2
           Brinkley later pleaded guilty to the offense of felony racing.

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who was on patrol and saw the vehicles racing on the night in question,

estimated that they were initially traveling at fifty-five to sixty miles an hour

and were accelerating from that speed. Officer Huggins opined that the speed

at the point of impact was a lot higher than sixty miles per hour based on the

level of damage to the Neon. Timothy Lovett, Binion’s expert, agreed that

Brinkley’s Neon was going close to eighty miles an hour at the time of impact.

Officer Becky Brandenburg, an accident investigator, opined that traveling at a

speed of eighty miles per hour down a public street was excessive. Officer

Emily Summers, an accident investigator, testified that she calculated Brinkley’s

speed at 102 miles per hour at the time of impact. Eric Moody, Ph.D., the

defense’s accident reconstruction expert, testified that Brinkley was traveling

102 miles an hour to 108 miles an hour, plus or minus five miles an hour, at the

time of impact. Moody also made a finding in his report that “eyewitnesses

Anderson, Watson, Griffin, and Huggins corroborate my finding that Mr.

Brinkley and Mr. Wallace were racing at a high rate of speed.”

      The case was submitted to the jury, and it found Brinkley 47% liable,

Wallace 47% liable, 3 and Binion 6% liable. Because the jury found in response

to question number one that Friend, the ambulance driver, was not negligent,




      3
           Binion entered into a settlement agreement with Wallace prior to trial.

                                          3
the jury did not apportion any fault to Friend. 4 The jury awarded damages to

Binion in the following amounts: $50,000 for past physical pain and mental

anguish; $100,000 for future physical pain and mental anguish; $166,271.60

for future loss of earning capacity; $10,000 for past disfigurement; $30,000

for past physical impairment; $100,000 for future physical impairment;

$321,551.93 for past medical care expenses; and $55,221.67 for future

medical care expenses. In light of Binion’s settlement with Wallace, the trial

court signed a judgment that Binion should recover from Brinkley $370,477.15,

for damages, prejudgment interest, and taxable court costs.          This appeal

followed.

            III. A DMITTING E XPERT T ESTIMONY ON S PEED W AS H ARMLESS

      In his two issues, Binion argues that the trial court erred by admitting

Officer Summers’s testimony about the Neon’s speed at the time of the

accident and that the trial court’s error was harmful because, without Officer

Summers’s testimony, “the jury would have had a different view of the

apportioned responsibility of each Defendant and would have been more

receptive of the Appellant’s theories.” For purposes of this opinion, we will

assume that the trial court erred by admitting Officer Summers’s testimony



      4
        Binion does not challenge on appeal the jury’s failure to find Friend
negligent in question number one.

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concerning the speed of the Neon at the time of the accident, but as discussed

below, the record does not support Binion’s contention that any such error was

harmful.

      To obtain reversal of a judgment based upon an error in the trial court, the

appellant must show that the error occurred and that it probably caused

rendition of an improper judgment or probably prevented the appellant from

properly presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v.

KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).            We will not

reverse a trial court’s judgment because of an erroneous evidentiary ruling

unless the ruling probably, though not necessarily, caused the rendition of an

improper judgment. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d

867, 871 (Tex. 2008). The complaining party must usually show that the

whole case turned on the evidence at issue. Interstate Northborough P’ship v.

State, 66 S.W.3d 213, 220 (Tex. 2001); City of Brownsville v. Alvarado, 897

S.W.2d 750, 753–54 (Tex. 1995). Error in admitting evidence is generally

harmless if the objecting party later permits the same or similar evidence to be

introduced without objection. Bay Area Healthcare Group Ltd. v. McShane,

239 S.W.3d 231, 235 (Tex. 2007); Richardson v. Green, 677 S.W.2d 497,

501 (Tex. 1984).




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      The statutory provision governing proportionate responsibility provides

that the trier of fact shall determine the percentage of responsibility, stated in

whole numbers, with respect to each person’s causing or contributing to cause

in any way the harm for which recovery of damages is sought, whether by

negligent act or omission. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a)

(Vernon 2008).     The determination of the negligent parties’ proportionate

responsibility is a matter soundly within the jury’s discretion; it is not the place

of this court to substitute its judgment for that of the jury. See Hagins v. E-Z

Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.—Texarkana 2004, no pet.)

(citing Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex.

App.—Dallas 2002, pet. denied) (explaining that section 33.033 of the Texas

Civil Practice and Remedies Code affords juries “wide latitude in . . . allocating

responsibility for an accident”)).

      As set forth above, Officer Summers’s testimony was not the only

testimony admitted concerning the speed of the Neon at the time of the

accident. The jury heard unobjected-to testimony about the speed of the racing

vehicles from other officers, lay witnesses, and each side’s experts. Brinkley

himself told officers that he was traveling approximately sixty miles per hour at

the time of the accident. Throughout the trial, there was no evidence that

Brinkley was driving within the speed limit as he raced down South Cooper.

                                         6
Based on this evidence, the jury found the drivers of both of the racing vehicles

equally responsible, assessing each of their percentages of fault at 47%. The

jury found Binion 6% at fault.

      Our review of the entire record does not support the contention that the

admission of Officer Summers’s opinion on the speed of the Neon probably

caused rendition of an improper judgment. See Tex. R. App. P. 44.1(a). The

proportionate responsibility statute requires the jury to determine the

percentage of responsibility with respect to each person’s causing or

contributing to cause in any way the harm for which recovery of damages is

sought. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). Ample evidence

exists in the record—even not considering Officer Summers’s testimony—from

which the jury could have concluded that Brinkley was speeding and was

equally responsible along with Wallace for causing the harm for which Binion

sought recovery of damages. Nothing in the record supports any contention

that the exclusion of Officer Summers’s testimony would have altered the jury’s

finding that Binion was 6% responsible for causing the harm for which he

sought damages.     We cannot say—based on the undisputed evidence that

Brinkley and Wallace were speeding and that Binion played some role in

instigating the race—that if Officer Summers’s opinion on the speed of the




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Neon had been excluded, the jury would have apportioned liability differently. 5

Instead, the jury likely would have reached the same apportionment of liability

based on the undisputed evidence that, regardless of the degree of speeding by

the racing cars, both were speeding and based on the evidence that Binion

played some role in instigating the race.

      Additionally,   because   Officer       Summers’s   testimony   was   merely

cumulative and corroborative of other evidence concerning the speed of the

Neon, it was not, in any event, harmful. See Adams v. Morris, 584 S.W.2d

712, 718 (Tex. Civ. App.—Tyler 1979, no writ) (holding that even if officer’s

testimony on speed was inadmissible, it was merely cumulative and

corroborative of other evidence and was therefore harmless error); Adams v.

Smith, 479 S.W.2d 390, 395 (Tex. Civ. App.—Amarillo 1972, no writ) (same).

Therefore, even assuming error as Binon urges in his first issue, we find any

such error harmless and overrule his second issue.




      5
        We note that there was no gross negligence submission within the
jury charge.

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                               IV. C ONCLUSION

      Having held that any error by the trial court in admitting Officer

Summers’s opinion on the speed of the Neon at the time of the accident was

harmless, we affirm the trial court’s judgment.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DELIVERED: February 4, 2010




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