                             NO. 12-08-00423-CV

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                 TYLER, TEXAS
FINIS HENRY, INDIVIDUALLY AND
AS ADMINISTRATOR OF THE ESTATE
OF WANDA JO [SHEPPARD] HENRY,                 '   APPEAL FROM THE 4TH
DECEASED AND BRIDGET HENRY,
INDIVIDUALLY,
APPELLANTS

V.                                            '   JUDICIAL DISTRICT COURT OF

BURLINGTON NORTHERN SANTA FE
CORPORATION, BNSF RAILWAY
COMPANY, STEVE MCMAHON,       ' RUSK COUNTY, TEXAS
UNION PACIFIC CORPORATION,
AND UNION PACIFIC COMPANY,
APPELLEES
                    MEMORANDUM OPINION
       Finis Henry, individually and as administrator of the estate of Wanda Jo
[Sheppard] Henry, deceased, and Bridget Henry, individually (collectively “Appellants”)
appeal the take nothing judgment entered against them in their wrongful death suit
against Burlington Northern Santa Fe Corporation, BNSF Railway Company, Steve
McMahon, Union Pacific Corporation, and Union Pacific Company (collectively
“Appellees”).   In two issues, Appellants argue that the trial court (1) erroneously
instructed the jury on negligence per se and (2) improperly admitted into evidence a
video containing an unauthenticated “LocoCAM” software overlay. We affirm.

                                    BACKGROUND
       On September 12, 2006, Wanda Jo [Sheppard] Henry was killed while she
attempted to drive across railroad tracks owned by Union Pacific Company at a railroad
crossing. The crossing was marked and preceded by a stop sign. As Wanda Jo crossed
the tracks, her vehicle was struck by a train operated by Engineer Steve McMahon and
owned by BNSF Railway Company.
       Finis Henry, Wanda Jo’s husband, and Bridget Henry, her daughter, sued
Appellees for wrongful death and negligence. The matter proceeded to a jury trial.
Ultimately, the jury found that Wanda Jo was one hundred percent negligent and that
Appellees were not liable for her death. The trial court entered a final judgment that
Appellants take nothing, and this appeal followed.

                                      CHARGE INSTRUCTIONS
       In their first issue, Appellants argue that the trial court erred in submitting charge
instructions related to Texas Transportation Code sections 545.151(b)(1) and 545.251(a)
to the extent that the instructions contained a reference to negligence per se. Specifically,
Appellants contend that an instruction on negligence per se is improper where the
instruction sets forth conditional duties. The trial court’s instruction to the jury in its
charge stated, in pertinent part, as follows:

                 The law requires the operator of a vehicle approaching a railroad grade crossing
       to stop not closer than 15 feet or farther than 50 feet from the nearest rail if: (1) a clearly
       visible railroad signal warns of the approach of a railroad train; (2) a crossing gate is
       lowered, or a flagger warns of the approach or passage of a train; (3) a railroad engine
       approaching within approximately 1,500 feet of the highway crossing emits a signal
       audible from that distance and the engine is an immediate hazard because of its speed or
       proximity to the crossing; (4) an approaching railroad train is plainly visible to the
       operator and is in hazardous proximity to the crossing; or (5) the operator is required to
       stop by: (A) other law; (B) a rule adopted under a statute; (C) an official traffic-control
       device; or (D) a traffic-control signal. An operator of a vehicle required under the law to
       stop shall remain stopped until permitted to proceed and it is safe to proceed. An
       operator of a vehicle who approaches a railroad grade crossing equipped with railroad
       crossbuck signs without automatic, electric, or mechanical signal devices, crossing gates,
       or a flagger warning of the approach or passage of a train shall yield the right-of-way to a
       train in hazardous proximity to the crossing, and proceed at a speed that is reasonable for
       the existing conditions. If required for safety, the operator shall stop at a clearly marked
       stop line before the grade crossing or, if no stop line exists, not closer than 15 feet or
       farther than 50 feet from the nearest rail.
                 An operator approaching an intersection shall stop, yield, and grant immediate
       use of the intersection in obedience to an official traffic-control device, including a stop
       sign. A failure to comply with this law is negligence in itself.


       To preserve error in the charge in a civil matter, the objecting party must
distinctly designate the error and the grounds for the objection. See TEX. R. APP. P.
33.1(a); TEX. R. CIV. P. 272, 274; Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891
(Tex. App.–El Paso 2005, pet. denied) (citing Keetch v. Kroger Co., 845 S.W.2d 262,
267 (Tex. 1992)) (to preserve charge error, appellant must comply with Texas Rules of
Civil Procedure Rules 271 through 279). Any complaint pertaining to an instruction is


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waived unless specifically included in the objections. Abell, 157 S.W.3d at 891; see also
TEX. R. CIV. P. 272.
       Historically, charge error has been a serious problem in Texas. See, e.g., Lemos
v. Montez, 680 S.W.2d 798, 801 (Tex. 1984) (discussing problems prior to broad
submission). A specific objection and a request serves to protect the trial court from
committing reversible error during the charge hearing. See Abell, 157 S.W.3d at 892.
       In sum, a party objecting to a charge must point out distinctly the objectionable
matter and the grounds of the objection. See Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 43 (Tex. 2007) (quoting TEX. R. CIV. P. 274). Objections to the charge and requests
for instructions must comport with the arguments made on appeal. See Isaacs v. Bishop,
249 S.W.3d 100, 113 n.13 (Tex. App.–Texarkana 2008, pet. denied); Coke v. Coke, 802
S.W.2d 270, 275 (Tex. App.–Dallas 1990, writ denied). In the absence of an objection at
trial that matches the complaint on appeal, nothing has been preserved for our review.
Isaacs, 249 S.W.3d at 113 n.13 (citing TEX. R. APP. P. 33.1).
       In the case at hand, during the charge conference, Appellants made specific
objections to three portions of the aforementioned instructions. Specifically, Appellants
objected as follows:

                 The second issue we would like to talk about, Judge, is the instructions section
       in regard to the third paragraph, the Transportation Code. The one in the Court’s Charge
       indicates the Transportation Code requires all vehicle operators to stop not closer than 15
       feet or further than 50 feet from the nearest rail of the railroad, and then proceed only
       with due care. It’s the plaintiff’s position in this case that that language, “To proceed
       only with due care,” is a conditional duty. According to the Texas Supreme Court, when
       a statute has a conditional duty in it, it’s improper to have it in the Charge under an
       instruction, and we would object on that matter, Judge. We would also object that it’s
       only a partial part of the statute that is taken there.

                ….

                 The next matter starts on that same page, Judge, at the bottom, along the lines of
       the previous objection, about the statute having the conditional duty in it. Specifically, if
       we read the statute where it starts, “The law requires” on that page, and then it goes on to
       the next page. It specifically says, “An operator of a vehicle, required under the law to
       stop, shall remain stopped until permitted to proceed and it is safe to proceed.” That
       language there is a conditional duty imparted by the statute onto the motorist. And under
       the Texas Supreme Court case, if it’s a conditional duty in the statute, it’s improper to
       have it as an instruction in a jury charge, and we would object to it on that matter.

                ….




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                   The next objection is the very next paragraph,1 Judge. It talks about - - again,
         it’s the same statute again. And this time, it’s just a portion of the statute. And it says,
         “The law requires the operator of the vehicle to stop not closer than 15 feet or farther than
         50 feet from the nearest rail of the railroad, and then requires the operator to proceed only
         with due care.” Again, we believe that is violative of the Texas Supreme Court in regards
         [sic] to conditional duty, and we would also point out that it’s just a partial portion of the
         statute, and it’s duplicative of the previous two paragraphs, Judge.


         The crux of Appellants’ first issue is that a negligence per se instruction is not
proper where the statute contains conditional duties.2 However, in their objections to the
court’s charge, Appellants make no reference to negligence per se. Rather, Appellants
only object that certain portions of the instruction contained conditional duties.
         Moreover, the portions of the instructions to which Appellants objected are each
contained in the first of two paragraphs comprising the instructions. Nowhere in that
paragraph does the trial court make reference to “negligence per se.”                            The second
paragraph does, in fact, contain a reference to “negligence in itself.” However, this
paragraph sets forth no conditional duties.                 Further, it bears mention that the two
paragraphs are derived from separate sections of the Texas Transportation Code. Thus,
the two paragraphs are reasonably construed as being separate statements of the law and,
thus, the language “[a] failure to comply with this law is negligence in itself” could
reasonably be construed as referring to the second paragraph alone.                             There is no
indication in the record that the “negligence in itself” language related also to the duties
set forth in the first paragraph.
         Appellants’ objections were specific concerning the portions of the instructions
they contended were erroneous, but vague concerning the underlying reason for the
objection. As such, Appellants have waived the error, if any, of which they complain.
TEX. R. CIV. P. 274. Further, Appellants’ objections to the charge do not specifically
comport with their argument on appeal. Thus, nothing has been preserved for our review.
See TEX. R. APP. P. 33.1. Finally, even had Appellants preserved error, based on our
reading of the instructions at issue, we conclude that the negligence per se instruction in
the second paragraph does not relate back to any of the conditional duties set forth in the
first paragraph. Appellants’ first issue is overruled.


         1
          It is apparent from the substance of his objection that Appellants’ counsel is referring to the next
sentence in the instruction as opposed to the next paragraph.
         2
          Appellants further argue in their brief that a negligence per se instruction is erroneous when there
is evidence of an excused violation.
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            ADMISSIBILITY OF VIDEO WITH LOCOCAM SOFTWARE OVERLAY
        In their second issue, Appellants argue that the trial court abused its discretion in
admitting into evidence a video of the collision because the video contained a software
based data overlay called LocoCAM.3                  Specifically, Appellants contend that the
LocoCAM software overlay was not properly authenticated because the two BNSF
employees who testified concerning it “knew nothing about how the software worked or
anything at all about the accuracy of the information displayed.”
        We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985).
        Texas Rule of Evidence 901(a) requires authentication of evidence. See TEX. R.
EVID. 901(a).       Texas Rule of Evidence 901(b) gives examples of authentication
conforming with rule 901(a). See TEX. R. EVID. 901(b). Rule 901(b), however, expressly
states that the examples listed are not limitations on the ways an object can be
authenticated to meet the requirements of rule 901(a). See id.
        Under rule 901(a), the requirement of authentication “is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.”
In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Sanchez v. State Bd. of Med.
Examiners, 229 S.W.3d 498, 508 (Tex. App.–Austin 2007, no pet.); see TEX. R. EVID.
901(a). Such evidence may include testimony by a witness with knowledge that a matter
is what it is claimed to be, but the predicate for admissibility under rule 901 may also be
proved by circumstantial evidence. Sanchez, 229 S.W.3d at 509; In re G.F.O., 874
S.W.2d 729, 731 (Tex. App.–Houston [1st Dist.] 1994, no writ). This requirement may
be met by “appearance, contents, substance, internal patterns, or other distinctive


        3
           The LocoCAM software overlay displayed information such as time, date, speed of the train, and
location of the train. The record reflects that the video camera was mounted on the third rearward facing
locomotive. The record further reflects that a LocoCAM module and an event recorder were also located
on the third rearward facing locomotive. The video camera makes a video and audio recording of the train.
The LocoCAM camera module records information such as global positioning system (“GPS”) coordinates,
time, speed, brake application, and whether the whistle was blown. The event recorder is a separate device
from the LocoCAM module. The event recorder records the engine’s speed, the application of the
emergency brakes, and the duration of time for which the whistle was blown.
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characteristics, taken in conjunction with circumstances.” Am. Cas. Co. of Reading, PA
v. Hill, 194 S.W.3d 162, 167 (Tex. App.–Dallas 2006, no pet.); see TEX. R. EVID.
901(a)(4).
       However, any error in excluding evidence is harmless if other admitted evidence
reveals the same facts as that which is excluded. See Bryant v. Transcon. Gas Pipe Line
Corp., 821 S.W.2d 187, 188 (Tex. App.–Hous. [14th Dist.] 1991, writ denied).
Erroneous admission or exclusion of evidence requires reversal if the error probably
caused the rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145
S.W.3d 131, 144 (Tex. 2004). The erroneous admission of evidence that is merely
cumulative of properly admitted evidence is harmless error. McInnes v. Yamaha Motor
Corp., 673 S.W.2d 185, 188 (Tex. 1984); City of Austin v. Houston Lighting & Power
Co., 844 S.W.2d 773, 791 (Tex. App.–Dallas 1992, writ denied).
       In the case at hand, Appellants argue that the supposedly improperly authenticated
LocoCAM software injected data, specifically time, date, speed, and location of the train,
into the video.   Even assuming arguendo that Appellants correctly assert that the
LocoCAM software overlay was not properly authenticated, there is evidence concerning
the time, date, speed, and location of the train that was admitted into evidence without
objection. The information contained in a printout from the event recorder taken from
the third locomotive that was admitted into evidence indicated the date, time, the blowing
of the whistle, the application of the emergency brakes, and the time it took the train to
stop. BNSF expert, Foster Peterson, testified that the video played through the LocoCam
software depicted the accident at issue.     Peterson testified concerning the accident
location at the Front Street crossing and noted that this location matched the GPS
information depicted in the LocoCAM overlay. He noted that the LocoCAM software
could not be altered to make it depict one location versus another. Peterson further
testified that, by watching the video, listening to when the “emergency occurs,” and
watching how long it takes for the locomotive to come to rest, he determined that the
time is roughly eighty-one or eighty-two seconds, which is what is depicted in the
locomotive event recorder data. Peterson watched the video and testified concerning the
various speeds indicated throughout the video.        He also testified concerning the
application of the whistle of the front locomotive, which is audible on the video tape and
again noted the eighty-two seconds that elapsed between that sound and the accident.
Appellants have not challenged the admissibility of Peterson’s testimony on appeal.
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Thus, based on our review of the record, we hold that even assuming the evidence at
issue was improperly admitted, the error is harmless because evidence pertaining to the
same information was properly introduced from another source. Appellants’ second issue
is overruled.

                                               DISPOSITION
         Having overruled Appellants’ first and second issues, we affirm the trial court’s
judgment.




                                                                BRIAN HOYLE
                                                                     Justice
Opinion delivered September 15, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)




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