                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo

                                 No. 07-19-00019-CV


  SUSAN H. PETROS, INDIVIDUALLY, AND CHRISTOPHER WAYNE HUSTEAD,
  INDIVIDUALLY AND AS NEXT FRIEND OF CHRISTIAN ROY HUSTEAD, KARA
    HUSTEAD, AND BRIANNA HUSTEAD, MINOR CHILDREN, APPELLANTS

                                          V.

                              JOI BODINE, APPELLEE

                         On Appeal from the 216th District Court
                                 Gillespie County, Texas
             Trial Court No. 15,104, Honorable Spencer W. Brown, Presiding

                                    May 1, 2020

                          MEMORANDUM OPINION
                   Before QUINN, C.J., and PARKER and DOSS, JJ.

      Susan H. Petros, individually, and Christopher Wayne Hustead, individually and

as next friend of Christian Roy Hustead, Kara Hustead, and Brianna Hustead (Petros),

appeal from a final summary judgment denying recovery against Joi Bodine. Petros had

sued Bodine to recover damages purportedly arising from a motor vehicle collision.

Apparently, Bodine was operating a motorcycle when she lost control of it during a

rainstorm and collided with Petros’s vehicle. Requests for admission were served on
Petros, which requests were not answered timely. That resulted in them being deemed

admitted. Eventually, Bodine moved for both a traditional and no-evidence summary

judgment. The trial court convened a hearing on the summary judgment motions as well

as on Petros’s motion to strike the deemed admissions. The trial court denied the latter

and granted the former. That resulted in this appeal.

        Two issues pend before us. The first concerns whether the trial court abused its

discretion in denying Petros’s motion to strike the admissions. The second concerns

whether the trial court erred in excluding the accident report developed by the law

enforcement official that investigated the accident; had it been admitted, its content

allegedly would have precluded entry of summary judgment. We consider only the

second issue, for it is dispositive of the appeal, and affirm.1

        Admissibility of Accident Report

        Petros attached a “Texas Peace Officer’s Crash Report” to her response to the

pending motions for summary judgment. The trial court excluded it as inadmissible

hearsay. Yet, the report was a certified copy of the official document and purportedly

admissible under Texas Rule of Evidence 902(4). As said by Petros, “[a]lthough the trial

court here was apparently unfamiliar with evidence rule 902, other courts have admitted

such crash reports routinely.” We overrule the issue.

        Rule 902(4) provides that “[e]xtrinsic evidence of authenticity as a condition

precedent to admissibility is not required with respect to the following . . . [a] copy of an

official record or report or entry therein.” TEX. R. EVID. 902(4) (emphasis added). As can



        1
           Because this appeal was transferred from the Fourth Court of Appeals, we are obligated to
apply its precedent when available in the event of a conflict between the precedents of that court and this
Court. See TEX. R. APP. P. 41.3

                                                     2
be seen from the portion of the rule we highlighted, 902(4) pertains to authenticating a

piece of evidence. Yet, “[a]dmissibility, and its predicate, authenticity, are two different

things.” White v. State, No. 2-04-350-CR, 2005 Tex. App. LEXIS 7226, at *14 n.8 (Tex.

App.—Fort Worth Aug. 31, 2005, no pet.) (per curiam) (mem. op.). They “are two different

concepts.” Patriot Homes, Inc. v. Lopez, No. 04-04-00645-CV, 2005 Tex. App. LEXIS

10734, at *8 (Tex. App.—San Antonio July 20, 2005, no pet.) (mem. op.). For instance,

“a document may be authenticated hearsay, and [still] . . . not admissible upon objection

without an applicable hearsay exception.” White, 2005 Tex. App. LEXIS 7226, at *14 n.8.

In other words, while a writing may not be subject to exclusion on the basis that the

proponent failed to authenticate it, it may be excluded if it constitutes inadmissible

hearsay. Consequently, the proponent would have to overcome both the hearsay and

authentication bar to gain admission of the evidence. Petros ignored this in her appellate

brief.

         Contrary to her accusation, the trial court undoubtedly knew of Rule 902 but had

no need to consider it. This is so because it excluded the accident report as inadmissible

hearsay, not because Petros failed to authenticate it. And, more importantly, she failed

to address in her appellate brief why the trial court erred in deeming the report and its

content inadmissible hearsay. That was her burden on appeal. See Landers v. State,

No. 07-10-0130-CR, 2011 Tex. App. LEXIS 2982, at *5 (Tex. App.—Amarillo Apr. 19,

2011, pet. ref’d) (mem. op., not designated for publication) (stating that the proponent of

hearsay excluded by the trial court had the burden to establish the admissibility of the

evidence); see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex.

2004) (stating that the proponent of hearsay has the burden to demonstrate the testimony



                                             3
comes within an exception to the general rule denying the admission of hearsay

evidence).2 Failing to carry it, she failed to establish that the trial court abused its

discretion.

        This omission on the part of Petros is dispositive of the appeal given her reliance

upon the report to rebut Bodine’s no-evidence motion for summary judgment. Such is

exemplified by the argument in her appellate brief. There she asked us to “reverse the

trial court’s ruling excluding Appellants’ summary judgment evidence and reverse the

summary judgment granted below, as the Texas Peace Officer’s Crash Report raises

a genuine issue of material fact.” Indeed, the report was the only “evidence” she offered

below to controvert Bodine’s contention that she had no evidence establishing any of the

elements underlying the claim of negligence. So, without the report, it matters not whether

the trial court erred in denying her motion to strike the deemed admissions. Bodine

remains entitled to summary judgment.

        Accordingly, we affirm the trial court’s final summary judgment.



                                                                         Brian Quinn
                                                                         Chief Justice




        2
          That the official report itself may be admissible because of some hearsay exception does not
mean that the report’s content which may be hearsay is also admissible. Hearsay statements within the
report must also fall under some hearsay exception of their own. Benson v. Chalk, 536 S.W.3d 886, 895
(Tex. App.—Houston [1st Dist.] 2017, pet. denied). So, Petros also would have had the burden to illustrate
that hearsay within the report was somehow admissible too.

                                                    4
