Opinion issued November 21, 2017




                                   In The

                          Court of Appeals
                                   For The

                      First District of Texas
                        ————————————
                          NO. 01-16-00112-CV
                        ———————————
                    ROBERTA BENSON, Appellant

                                     V.

FRED CHALK, INDIVIDUALLY, AND STEVE CHALK, INDIVIDUALLY
   AND AS NEXT FRIEND OF DRUCILLA HENKHAUS, Appellees


                 On Appeal from the 129th District Court
                          Harris County, Texas
                    Trial Court Case No. 2011-27959


                             OPINION
      Appellant, Roberta Benson, challenges the trial court’s judgment, entered

after a jury trial, in the suit for negligence and wrongful death1 brought against her

by appellees, Fred Chalk, individually, and Steve Chalk, individually and as next

friend of Drucilla Henkhaus (the “Chalks”). In six issues, Benson contends that the

trial court erred in admitting a video recording of an out-of-court experiment and

excluding impeachment testimony, eyewitness statements contained in a law

enforcement collision report and investigation file, and testimony on causation.

      We affirm.

                                     Background

      In their third amended petition, the Chalks alleged that on July 7, 2010, a red

Nissan minivan, driven by Mary Herron-Anders (“Anders”),2 collided with a black

Lexus sedan, driven by Benson, at the intersection Apple Tree Road and Wilcrest

Drive (the “intersection”), which was controlled by a traffic signal. Anders’s

passenger, Drusilla Henkhaus (the “decedent”), the mother of Fred and Steve Chalk,

sustained severe internal injuries in the collision and later died. According to the

Chalks, Benson failed to use ordinary care by entering the intersection in disregard

of a red traffic light, not controlling the speed of her car, and not keeping a proper



1
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012 (Vernon 2008 & Supp.
      2016).
2
      The Chalks non-suited Anders, who died prior to trial, and the trial court dismissed
      her from the case.
                                           2
lookout and timely applying her brakes. And Benson’s failure to use ordinary care

proximately caused the decedent’s death. The Chalks sought actual damages and

damages for their loss of companionship and their mental anguish.

      Benson filed an answer, generally denying the allegations and asserting that

the collision was instead caused by the negligence of Anders.

      At trial, Benson testified that she lives on Apple Tree and is familiar with the

traffic signal at the intersection. At 7:50 p.m. on July 7, 2010, she drove her Lexus

sedan east down Apple Tree toward the intersection. Benson “remember[ed] seeing

the light green,” but could not recall her location on Apple Tree when she noticed it.

However, she was “near the intersection” when she looked up and saw the green

light and “the light was green when [she] got there.” Benson noted that there was

not another motorist in front of her on Apple Tree and “there were stopped cars” in

the southbound lanes of Wilcrest, although she initially stated that there were no

such cars there. As she entered the intersection, she looked to her left and “glanc[ed]

to her right.” As Benson traveled across Wilcrest, she heard a “bam”; she was

suddenly on a curb, with the passenger side of her car “smashed in.” Although she

initially told a law enforcement officer at the scene that she “thought” she had the

green light, she “24 hours later,” after having “calmed down,” became “certain” that

she had the green light.




                                          3
      In her deposition, which was presented to the jury, Anders testified that at

approximately 7:00 p.m. on July 7, 2010, while it was daylight, but rainy, she drove

her Nissan minivan in the left lane of the two northbound lanes of Wilcrest.

Although trees lined the sides of the roadway, “they were not obstructing the light”

and she had a clear view of the traffic signal at the intersection of Apple Tree. As

she approached the intersection, the traffic light was green, and it stayed green. Her

passenger, the decedent, suddenly said, “The car is not stopping.” Anders then saw

Benson’s Lexus sedan for only a “split second,” and she swerved to try to avoid a

crash. After the collision, the decedent said that she smelled smoke, her stomach

hurt, and she felt nauseous. She got out of the minivan, laid on the grass, and was

later transported by ambulance to a hospital.

      Dr. Charles Aramburo, a trauma surgeon at Memorial Hermann Hospital,

testified that he was the decedent’s admitting physician. When she arrived at the

hospital, the decedent was unresponsive and never regained consciousness. She

suffered a ruptured spleen and liver, and subsequently died. During Aramburo’s

testimony, the trial court admitted into evidence the decedent’s medical records and

certificate of death, which reflects that she died from “blunt force injuries.”

      April Yergin, the Chalks’ expert witness on traffic-collision reconstruction,

testified that she has a bachelor’s degree in aeronautical engineering, attended

classes at Northwest Traffic Institute, has twenty years of experience in

                                           4
traffic-collision reconstruction, and investigates 150 to 200 traffic collisions per

year. In this case, she examined records of the City of Houston Department of Public

Works and Engineering (“the Department”) to determine how the traffic-light

sequence at the intersection was programmed. She then went to the intersection,

observed the flow of traffic and function of the traffic lights, and compared the light

sequencing against the Department’s records.          She saw that the traffic lights

controlling Wilcrest at the intersection remain green at all times unless a motorist

approaches on Apple Tree. Sensors mounted on the traffic lights regularly cycle,

periodically looking for changes in pixilation on Apple Tree. When a change is

detected, the traffic signal on Wilcrest begins to cycle to red to allow traffic on Apple

Tree to pass through the intersection.

      Yergin conducted an out-of-court “experiment” to depict the sequencing and

timing of the traffic lights at the intersection. Noting that the collision occurred on

July 7, 2010 at 7:55 p.m., she, in January 2013, went to the intersection at

approximately 7:00 p.m., staying until 8:30 p.m. Yergin observed how the traffic

flowed and noted the duration of each signal light. She then had her assistant, from

different directions and speeds, drive through the intersection several times. Yergin

made video recordings of the signal lights controlling traffic eastbound on Apple

Tree, as Benson had traveled at the time of the collision, and northbound on Wilcrest,

as Anders had traveled at the time of the collision. Yergin explained that “[i]n every

                                           5
scenario,” in order to trigger the signal lights controlling Wilcrest to begin cycling

to red, a motorist traveling eastbound on Apple Tree and approaching the

intersection had to “stop or come within a mile per hour” in front of the signal light

on Apple Tree. She noted that while at the intersection, she did not see any motorist

simply “catch a green light” on Apple Tree, unless another motorist happened to be

traveling in front of them.

        Yergin further testified that the video recordings fairly and accurately depict

the functioning of the traffic signals at the intersection and, based on the

Department’s timing charts, the light sequencing at the time she was at the

intersection was the same as that at the time of the collision. Further, the timing

listed in the charts matched what she observed at the intersection. Although the

collision occurred during daylight hours in the month of July and she conducted her

experiment after dark in the month of January, Yergin noted that the “lighting

conditions [were] not an issue.” Rather, the issue was the timing of the lights, which,

according to the Department’s records, had not changed.

        During cross-examination, Yergin explained that the Department’s records do

not differentiate between months; rather, they differentiate between days of the

week.     And because the collision occurred on a Wednesday, she visited the

intersection on a Wednesday. Yergin also explained that once triggered, the traffic

light on Apple Tree remained green for only five seconds, then turned yellow for

                                           6
three and one-half seconds, and then turned red. The traffic light on Wilcrest would

then turn green after a one-and-one-half-second lag. Yergin noted that the timing of

the traffic light remained the same regardless of whether it was daytime or nighttime

and its camera detected images within 50 to 150 feet of its sensor. She further

explained that the sensor could not be triggered by headlights alone:

      I’m not sure exactly how that particular camera picks up objects. It has
      to do with visual pix[i]lization. I would assume at night it’s looking at
      lights, but headlights can be seen for a long distance. So, you wouldn’t
      want it to trigger when a car is, say, you know, 300 feet away because
      then it would have to wait for 10, 15, 20 seconds for that car to get there.
      So, I believe it has some sort of visual ability to see at night . . . .

Yergin did note that during her experiment, the reflective vest that she was wearing

appeared to have triggered the traffic light on Apple Tree to change. She also noted,

however, that there was not a cross-walk or pedestrian signals at the intersection, it

was not a pedestrian-friendly area, and there had been no mention in this case of any

pedestrians in the area at the time of the collision.

      The Chalks offered as a “demonstrative exhibit” three, thirty-minute video

recordings of Yergin’s out-of-court experiment. Benson objected to the admission

of the video recordings on the ground that they are more prejudicial than probative,

in that the lighting conditions depicted are not substantially similar to those that

occurred at the time of the collision. Benson asserted that Yergin had failed to

explain to the jury how the lighting conditions affected the sensor’s pixel detection



                                           7
and, thus, the triggering of the light. The trial court admitted the video recordings

as “demonstrative exhibit[s]” and portions were played for the jury.3

      Prior to trial, Benson had informed the trial court that she intended to present

to the jury the deposition testimony of Cindy Maddox, who witnessed the collision;

Houston Police Department (“HPD”) Officer M. Hroch, who was dispatched to the

scene of the collision; and HPD Officer A. Michon, who investigated the collision.

The trial court sustained the Chalks’ objections, discussed below, to the admissibility

of certain portions of the depositions. Benson then presented to the jury excerpts of

the remaining portions of the deposition testimony.

       In her videotaped deposition, Maddox testified that “right before the

collision,” she was driving her car on Wilcrest “[a]bout 400 feet” behind Anders’s

red minivan. Maddox was not focused on the minivan or on Benson’s car when it

entered the intersection. She noted that trees along both sides of the street were

“really overgrown” to the point that they obstructed a clear view of the traffic signal

at the intersection. When asked whether she could “say whether it’s more likely

than not that the light controlling [her] lane of traffic was red or green at the time of

the collision,” she responded, “I don’t know.” At the scene, Maddox had given to

Benson an envelope, on which Maddox had written her name and telephone number,

and the trial court admitted it into evidence.

3
      These videotape recordings were not made part of the appellate record.

                                           8
      In his deposition, which was read into the record, Officer Hroch testified that

at the time of the collision, he had been a law enforcement officer for approximately

three years and had attended a “basic accident course.” On July 7, 2010, he was

dispatched to investigate the collision. He noted that Benson, Anders, and the

decedent were “shaken up” and it would not have been unusual for a driver to use

the word, “thought,” “with regard to the [color of the] light they had.”

      In his deposition, which was read into the record, Officer Michon testified that

at the time of the collision, he had been a police officer for approximately one year,

attended two weeks of “accident investigation” training, and been assigned to HPD’s

Vehicular Crimes Division for five weeks. After he was assigned to investigate the

collision, he interviewed both drivers and Maddox. Michon established that Maddox

actually witnessed the collision. When asked his impression of whether Anders had

seen the traffic light, he responded, “I did not believe that she had seen the light. I

believe that she was relying more on her passenger.” The trial court admitted into

evidence redacted versions of the HPD “crash report” and “accident records.”

      Before the trial court read its charge to the jury,4 Benson made an offer of

proof regarding the excluded portions of the deposition testimony of Maddox and

Officers Hroch and Michon. In the proffered portion of Maddox’s deposition

testimony, she admitted that she had originally, at the scene, told Officer Hroch that


4
      See TEX. R. EVID. 103(c).
                                          9
Anders’s “van ran the red light and caused the accident.” Maddox also admitted that

eight days after the collision, she, in a recorded interview with an insurance adjuster,

had stated:

      As I was coming home, . . . I was about three car lengths behind this
      red van. I saw the light in front of me, and the light in front of the red
      van turned red and I started slowing down and I then, of course—that
      we had the red light, I saw the other—the dark car come off of [Apple
      Tree] like she would have for a green light, and I saw her coming out
      and I didn’t see that red van put on brake lights or anything, and I knew
      instantly that the van just didn’t see the red light, and then I just saw
      her broadside or hit that dark car coming off of [Apple Tree].
      ....
      There is absolutely no doubt in my mind that the light was red because
      I thought—because when I saw that dark car, I said, oh, my God, she’s
      going to—that van is going to hit that car because I never saw any brake
      lights on the van, so I knew that the van just did not, somehow, for some
      reason, did not see, did not pay attention to that red light. I mean, it
      was red. You know, I saw it red and that’s—I was shocked that the van
      didn’t stop.

Maddox further admitted that several weeks after the collision, she told Officer

Michon that she was “about four car lengths behind the red van” and there was “no

doubt that the van had the red light and ran the red light.”

      In the proffered portion of his deposition testimony, Officer Hroch noted that

he had arrived at the scene approximately ten minutes after the collision. He

described the positions of automobiles, the drivers, and a passenger. Hroch blocked

off the street from other motorists, gathered information from the drivers, summoned

tow trucks, observed the functioning of the signal light, and confirmed that it was


                                          10
functioning properly, “as red and green opposite.” He noted that there was nothing

obscuring the views of the traffic signals. And Hroch explained that “closer to the

beginning of [his] arriving on scene,” Maddox walked up to him, stated that she saw

the collision, and provided a statement, which Hroch recorded in the collision report.

Maddox told Hroch:

      I was driving north on Wilcrest and I was behind the red van. I began
      to slow down because we had a red light and the van just drove right
      through the intersection and did not even slow down. The van ran the
      red light and caused the accident.

Hroch noted that Maddox was the sole independent witness at the scene and “seemed

sure.” Based on her statement, Hroch opined that Anders had caused the collision.

      In the proffered portion of his deposition testimony, Officer Michon noted

that on September 30, 2010, he met with Maddox, who provided a handwritten

statement as follows:

      As I was nearing the Apple Tree intersection I saw the light was red
      and started putting on my brakes. I was about four car lengths behind
      the red van and saw that the driver wasn’t braking. I saw a dark car pull
      out into the intersection and said to myself, “Oh no the van is going to
      hit that car.” That is what happened. I grabbed my cell and called 911
      as I was parking my car to assist. There is no doubt that the van had
      the red light and ran the red light.

Based on Maddox’s statement, Michon opined that Anders ran a red light and caused

the collision.

      The jury found that the negligence of both Benson and Anders proximately

caused the collision. It attributed eighty percent of the liability to Benson and twenty
                                          11
percent to Anders. It awarded Fred and Steve Chalk each damages in the amount of

$300,000 for past and future loss of companionship and mental anguish. And the

jury awarded the decedent damages in the amount of $25,000 for physical pain,

$10,000 for mental anguish, and $5,000 for funeral and burial expenses. The trial

court entered a judgment on the verdict.

                               Standard of Review

      The decision to admit or exclude evidence lies within the sound discretion of

the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234

(Tex. 2007).   A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner or without reference to guiding rules or principles. Bowie

Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We will uphold a trial court’s

evidentiary ruling if any legitimate ground supports the ruling, even if the ground

was not raised in the trial court. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.

App.–Houston [14th Dist.] 2006, pet. denied). And we will not reverse an erroneous

evidentiary ruling unless the error probably caused the rendition of an improper

judgment or prevented a proper presentation of the appeal. See TEX. R. APP. P.

44.1(a); Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 474 (Tex.

1998). In determining if the excluded evidence probably resulted in the rendition of

an improper judgment, we review the entire record, and, “[t]ypically, a successful

challenge to a trial court’s evidentiary rulings requires the complaining party to

                                           12
demonstrate that the judgment turns on the particular evidence excluded or

admitted.” Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.

2001). Ordinarily, we will not reverse a judgment because a trial court erroneously

excluded evidence if the evidence in question is cumulative and not controlling on a

material issue dispositive to the case. Id.

              Statements in Collision Report and Investigation File

      In her first and fourth issues, Benson argues that the trial court erred in

excluding from evidence Maddox’s statements, contained in the HPD collision

report and investigation file, that Anders ran the red light because the statements are

admissible under the exceptions to the hearsay rule for prior witness statements and

present sense impressions. See TEX. R. EVID. 801(e)(1), 803(1).

      Hearsay is defined as a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. TEX. R. EVID. 801(d). Hearsay is not admissible except as provided by the

rules of evidence or some other statute. TEX. R. EVID. 802. The proponent of

hearsay has the burden of showing that the testimony fits within an exception to the

general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc.

v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).

      The parties do not dispute that the collision report and investigation file meet

the public records exception to the hearsay rule.         See TEX. R. EVID. 803(8).

                                          13
However, they dispute the admissibility of Maddox’s statements contained within

the report and file. Hearsay within hearsay is not admissible unless each part of the

combined statements conforms with an exception to the general rule excluding

hearsay. See TEX. R. EVID. 805; Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184

S.W.3d 760, 782 (Tex. App.—Dallas 2005, pet. denied); Knox v. Taylor, 992 S.W.2d

40, 64 (Tex. App.—Houston [14th Dist.] 1999, no pet.). When a police report

contains a hearsay statement, the statement must fall under some hearsay exception

of its own because neither the public records and reports exception, nor the records

of regularly conducted activities exception, protects hearsay within hearsay. See

Kratz v. Exxon Corp., 890 S.W.2d 899, 905 (Tex. App.—El Paso 1994, no pet.).

      Benson first asserts that Maddox’s statements, contained in both the collision

report and investigation file, are admissible as a declarant-witness’s prior statement.

See TEX. R. EVID. 801(e)(1)(A). Rule 801(e)(1)(A) provides an exemption to the

hearsay rule providing, in pertinent part, as follows: A declarant’s prior statement

is not hearsay if she “testifies and is subject to cross-examination about a prior

statement, and the statement . . . is inconsistent with the declarant’s testimony,

and . . . was given under penalty of perjury at a trial, hearing, or other proceeding or

in a deposition.” Id. Here, Maddox’s statements at issue, which are those contained

in the collision report and investigation file, were made at the scene to Officer Hroch




                                          14
and during a subsequent interview with Officer Michon. Because her statements to

the officers were not made under oath, the exception does not apply. See id.

      Benson next asserts that Maddox’s statement, contained in the collision

report,5 is admissible as a present sense impression. See TEX. R. EVID. 803(1). A

present sense impression is “[a] statement describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or

immediately thereafter.” Id.    Present sense impressions possess the following

safeguards which make them likely to be true and thus admissible: (1) the report at

the moment of the thing then heard, seen, etc. is safe from any error from defect of

memory of the declarant; (2) there is little or no time for calculated misstatement;

and (3) the statement will usually be made to another—the witness who reports it—

who would have equal opportunity to observe and check a misstatement. First Sw.

Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 958–59 (Tex. App.—Texarkana

1989, writ denied).

      Again, the proponent of hearsay has the burden of showing that the

complained-of statement fits within an exception to the general rule prohibiting the

admission of hearsay evidence. See Ramirez, 159 S.W.3d at 908 n.5. To preserve

error for our review, an appellant’s complaint on appeal must comport with her


5
      We treat this portion of Benson’s issue as applying only to Maddox’s statement
      contained in the collision report because the record shows that she made the
      statement contained in the investigation file several weeks after the collision.
                                         15
objection in the trial court. See TEX. R. APP. P. 33.1(a); Taylor v. Am. Fabritech,

Inc., 132 S.W.3d 613, 621 & n.21 (Tex. App.—Houston [14th Dist.] 2004, pet.

denied). Benson does not direct us to any point in the record in which she asserted

in the trial court that Maddox’s statement, contained in the collision report,

constitutes a present sense impression. Thus, her stated ground for admission in the

trial court does not comport with her ground raised on appeal, and error, if any, is

waived. See Taylor, 132 S.W.3d 613, 621 & n.21; see, e.g., McKee v. McNeir, 151

S.W.3d 268, 270 (Tex. App.—Amarillo 2004, no pet.) (proponent of evidence

waived complaint trial court erred in excluding evidence because proponent’s stated

ground for admission at trial failed to comport with ground raised on appeal); Butler

v. Comm’n for Lawyer Discipline, 928 S.W.2d 659, 665 (Tex. App.—Corpus Christi

1996, no writ) (argument trial court erred in excluding hearsay testimony on ground

witness’s response went to state of mind waived because defendant did not urge

“state of mind” hearsay exception at trial).

        Accordingly, we hold that the trial court did not err in excluding from

evidence Maddox statements contained in the HPD collision report and investigation

file.

        We overrule Benson’s first and fourth issues.




                                          16
                           Prior Inconsistent Statements

      In her third issue, Benson argues that the trial court erred in excluding from

evidence the portions of Maddox’s deposition testimony in which she admitted

making prior inconsistent statements to Officers Hroch and Michon and to the

insurance adjuster, i.e., that Anders drove through a red light, because the rule that

a witness may not be called solely for purposes of impeachment applies only in

criminal, and not in civil, cases. See TEX. R. EVID. 613(a). She further asserts that

Maddox’s prior inconsistent statements are admissible as substantive evidence.

      “Any party, including the party that called the witness, may attack the

witness’s credibility.” TEX. R. EVID. 607. A party may impeach a witness with

evidence of prior inconsistent statements. TEX. R. EVID. 613(a). However, only

those prior inconsistent statements made under the penalty of perjury at a trial,

hearing, or other proceeding, or in a deposition, are considered non-hearsay and may

be used. TEX. R. EVID. 801(e)(1)(A)(i). Because “most prior inconsistent statements

are . . . classified as hearsay, the danger remains that a litigant will call a witness[,]

whom it knows (or strongly suspects) will testify unfavorably,” and impeach the

witness with a prior inconsistent statement, “with the hope that the jury will

improperly use the prior statement for its truth.” 1 Steven Goode, et al., Texas

Practice Series: Guide to the Texas Rules of Evidence: Civil and Criminal § 607.2

(4th ed. 2016). Thus, with “near unanimity,” courts have held that “some restrictions

                                           17
must be placed on a party’s ability to impeach its own witness with prior inconsistent

statements.” Id. (“[C]ourts have wrestled with the task of reconciling the terms of

Rule 607, which seems to abandon all restrictions on impeaching one’s own witness,

and the continued hearsay status of most prior inconsistent statements.”).

“Regardless of their analytical approach,” courts have reached the same conclusion:

“[A] party may not impeach its own witness if its primary purpose is merely to the

get the witness’s prior inconsistent statement before the jury.” Id.; see also Barley

v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim. App. 1995) (“[T]he majority of

jurisdictions still do not allow prior inconsistent statements to be used under the

guise of impeachment for the primary purpose of placing substantive evidence

before the jury which is not otherwise admissible.”).

      Although the language of rule 607 is the same for both civil and criminal

cases, civil cases interpreting rule 607 in the instant context are limited. Thus, we

look to analogous criminal cases for guidance in interpreting rule 607. See TEX. R.

EVID. 101(b) (“These rules apply to proceedings in Texas courts . . . .”); Heckman v.

Williamson Cty., 369 S.W.3d 137, 146 (Tex. 2012) (“More than a century ago, this

Court noted that ‘there are criminal cases which may incidentally involve a question

of civil law, and civil cases in which in like manner points of criminal law call for

solution.’” (quoting Comm’rs’ Court v. Beall, 98 Tex. 104, 81 S.W. 526, 528

(1904))); Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex. App.—

                                         18
Texarkana 2005, pet. denied) (applying criminal cases in construing Texas Rule of

Evidence 607); see also McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 756

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[W]hen there is no binding

precedent, Texas courts also look to federal law and federal cases for guidance in

situations . . . in which the language of the [state statute] and the analogous federal

statute contain the same or substantially similar language.”); cf. McQuarrie v. State,

380 S.W.3d 145, 152–53 (Tex. Crim. App. 2012) (considering civil cases

interpreting former rules of civil evidence as persuasive authority for interpreting

rules of evidence in criminal case); Roise v. State, 7 S.W.3d 225, 234 n.3 (Tex.

App.—Austin 1999, pet. ref’d) (because Texas Rule of Evidence 702 is “equally

applicable to both Texas civil and criminal cases,” “Texas civil cases . . . may be

looked to for guidance” in “a Texas criminal case”).

      In Hughes v. State, Child Protective Services (“CPS”) investigators stated that

the defendant’s wife had told them that the defendant had admitted to having

sexually abused his step-daughter.       4 S.W.3d 1, 2 (Tex. Crim. App. 1999).

Subsequently, at a pre-trial hearing, the wife denied having told the investigators

about any such admission by the defendant. Id. at 2–3. At trial, the State called the

wife, who again denied having made such statements to the investigators. Id. at 3.

The State then called one of the CPS investigators to impeach the wife’s testimony.

Id. On appeal, the defendant argued that the trial court erred in admitting the

                                          19
impeachment testimony because the State called his wife for the sole purpose of

impeaching her with otherwise inadmissible hearsay, knowing prior to calling his

wife to testify that she would deny having told the investigators about his admission.

Id. at 2, 4–5. The defendant asserted that the State’s right to impeach its own witness

under rule 607 did not “extend to employment of such impeachment as a mere

subterfuge to get otherwise inadmissible hearsay evidence before the jury.” Id. at 3.

      The Texas Court of Criminal Appeals explained that in Barley v. State it had

observed that although a showing of “surprise” or “injury” is no longer required for

a party to impeach its own witness under rule 607, there did appear to be “a growing

distinction” among the courts as to whether the State was aware, prior to calling its

witness at trial, that the witness would testify unfavorably. Id. at 4 (citing 906

S.W.2d 27, 38 n.11 (Tex. Crim. App. 1995)). Specifically, in those cases in which

courts had refused to admit prior inconsistent statements under the guise of

impeachment, “it was obvious the State’s primary intent in calling the witness was

to introduce inadmissible hearsay.” Id. (citing Barley, 906 S.W.2d at 38 n.11).

However, in cases in which there was not a “clear showing that the State was aware

[that its] witness would testify unfavorably, the trend seemed to be ‘an analysis

conducted in the context of a Rule 403 balancing approach.’” Id. Some courts of

appeals, however, had interpreted Barley as creating an exception to rule 607 where




                                          20
the State was aware, or should have been, that its witness would testify unfavorably.

Id.

      In Hughes, the court of criminal appeals concluded that “the State’s

knowledge that its own witness will testify unfavorably is a factor the trial court

must consider when determining whether the evidence is admissible under Rule

403.” Id. at *5. Under a rule 403 balancing test, the impeachment evidence “must

be excluded” where the State “profits from the witness’s testimony only if the jury

misuses the evidence by considering it for its truth.” Id. Under such circumstances,

“any probative value the impeachment testimony may have is substantially

outweighed by its prejudicial effect.”6 Id.

      Further in Hughes, the court of criminal appeals concluded that, in the case

before it, the State had not offered any explanation as to why it had expected the

wife to testify differently at trial than she had during the pretrial hearing. Id. at 7.


6
             When a party calls a witness knowing that the witness will provide no
             useful testimony and then adduces a prior inconsistent statement, it
             must be doing so in the hope that the jury will make substantive use
             of the prior statement. If the jury used the evidence properly (that is,
             for impeachment purposes only), the best the party can do is to
             neutralize the witness’s testimony. . . . The party can profit from
             calling the witness only if the jury misuses the evidence by
             considering it for the truth of the matter asserted. In this situation, the
             prejudicial value of adducing the prior inconsistent statement must
             outweigh its probative value.

      Ramirez v. State, 987 S.W.2d 938, 944 (Tex. App.—Austin 1999, no pet.) (quoting
      1 Steven Goode, et al., Texas Practice Series: Guide to the Texas Rules of Evidence:
      Civil and Criminal § 607.2 (4th ed. 2016)).
                                             21
And an examination of the record revealed that, during trial, the State elicited “no

favorable testimony” from the wife. Id. The court concluded that the “lack of

favorable testimony suggest[ed] that the State was attempting to use [the wife’s]

prior inconsistent statements under the guise of impeachment, for the primary

purpose of placing before the jury evidence which was not otherwise admissible.”

Id. And the State had “little, if any, legitimate purpose in admitting [the wife’s] prior

inconsistent statements to impeach her testimony.”          Id. “[D]ue to the highly

prejudicial nature” of the defendant’s confession, “any probative value it may have

had [as impeachment evidence] was substantially outweighed by its prejudicial

effect.” Id.   Thus, the trial court erred in “failing to exclude the impeachment

evidence under rule 403.” Id.

      Similarly, in Aguilar v. State, the court of appeals held that the trial court erred

in admitting impeachment testimony because its probative value was substantially

outweighed by its prejudicial effect. No. 14-07-00362-CR, 2008 WL 5058974, at

*1–2 (Tex. App.—Houston [14th Dist.] Dec. 2, 2008, no pet.) (mem. op., not

designated for publication). There, a police officer stated that a witness told him

that the defendant had admitted to shooting the complainant.                  Id. at *1.

Subsequently, at a hearing outside the presence of the jury, the witness testified that

he did not remember giving a statement to the officer. Id. The witness also later

testified before the jury that he did not remember giving a statement to the officer.

                                           22
Id. at *2. The State then impeached the witness with the officer’s testimony. Id. On

appeal, the defendant argued that the trial court erred in admitting the impeachment

testimony because the State’s sole purpose in calling the witness was to impeach

him with inadmissible hearsay. Id. at *1–2. The court noted that although the

witness’s statement was admissible for impeachment purposes, the State “cannot call

a witness that it knows will testify unfavorably for the sole purpose of impeaching

that witness with otherwise inadmissible hearsay.” Id. The court, applying a rule

403 balancing analysis, noted that the “key issue” was the State’s prior knowledge

that the witness would not testify favorably. Id. at *2 (citing Hughes, 4 S.W.3d at

3). The court held that the trial court erred in admitting the officer’s testimony about

the content of the witness’s prior statement because the record showed that the State

had learned prior to the witness testifying at trial that he did not remember giving

the statement, the witness’s testimony at trial was not favorable to the State, and the

State did not expect that the witness would give favorable testimony. Id.

      In contrast, this Court, in Flores v. State, held that a trial court did not err in

admitting impeachment testimony. No. 01-10-00531-CR, 2013 WL 709100, at *22

(Tex. App.—Houston [1st Dist.] Feb. 26, 2013, pet. ref’d) (mem. op., not designated

for publication). There, the State knew in advance of trial that the witness would

testify unfavorably about whether she had heard police officers announce their

presence and the witness, who was the only civilian witness to the events other than

                                          23
the defendant, provided substantial evidence regarding the defendant’s links to

narcotics, firearms, and the events; however, the substance of the impeachment

evidence, i.e., that the witness had, in fact, heard someone yell, “police,” was also

presented through the testimony of other witnesses. Id. at *21 (citing Kelly v. State,

60 S.W.3d 299, 302 (Tex. App.—Dallas 2001, no pet.) (because several other

witnesses testified to substance of hearsay testimony used for impeachment, less risk

testimony “would be misused by the jury”)).

      Similarly, in Kelly, the court of appeals concluded that the trial court did not

err in admitting impeachment testimony because the prejudicial nature of the

testimony did not substantially outweigh its probative value. 60 S.W.3d at 302.

There, a State’s witness testified that he did not see the defendant with a firearm on

the day of the shooting and denied that he had previously told a detective otherwise.

Id. at 300. The State then called the detective, who testified that the witness had said

that he saw the defendant in possession of the firearm. Id. On appeal, the defendant

argued that the trial court erred in admitting the detective’s testimony because the

State improperly called the witness for the sole purpose of impeaching him with

otherwise inadmissible hearsay. Id. The court noted that the court of criminal

appeals, in Hughes, had addressed “the problem of the State’s calling a witness

knowing full well she would not repeat her earlier incriminating statements and then

following her with a State’s witness who would provide the desired evidence via

                                          24
hearsay.” Id. at 301 (citing Hughes, 4 S.W.3d at 5). Applying a rule 403 balancing

analysis, the court in Kelly concluded that the State had elicited no favorable

testimony from the witness. Id. at 302. At most, the witness “merely confirmed that

he denied” saying “anything helpful” to the detective. Id. However, other sources

provided the critical evidence by means other than hearsay testimony; several other

witnesses identified appellant as the shooter. Id. More important, nothing in the

record suggested that the State knew that the witness would recant. Id. (“Hughes

teaches us that prior knowledge is key.”).

      In Texas Department of Transportation v. Pate, one of the few civil cases to

consider rule 607 in the present context, the court, although deciding the issue on the

basis of waiver, noted, relying on Barley and Hughes, that “a party may not call a

witness primarily for the purpose of impeaching him or her with evidence that would

otherwise be admissible.” 170 S.W.3d 840, 850 (Tex. App.—Texarkana 2005, pet.

denied).

      In Truco Properties, Inc. v. Charlton, a case that pre-dates Barley and Hughes,

a defendant-employer asserted that the trial court erred in not admitting witness

testimony about possible alternative causes of the plaintiff-employee’s alleged

on-the-job injury. 749 S.W.2d 893, 896 (Tex. App.—Texarkana 1988, writ denied).

There, the employee’s daughter testified outside the presence of the jury that she was

unaware of any possible alternative causes of the alleged injury. Id. Subsequently,

                                          25
although the employer had no expectation that the daughter would testify favorably,

the employer attempted to call the daughter as a witness at trial. Id. The trial court,

however, did not allow the employer to present the daughter’s testimony. Id.

      On appeal in Truco, the employer argued that because the trial court did not

allow it to call the daughter as a witness at trial, it was unable to impeach her

testimony with that of another witness, who would have testified that the daughter

had told her that her mother, the employee, had fallen out of bed while drunk and

hurt her back. Id. The court noted that the “question raised” by the employer was

“whether the [daughter] may be called solely for the purpose of later impeachment

by the use of otherwise inadmissible hearsay.” Id. The court concluded that the trial

court did not err in excluding the testimony because the employer was attempting to

present inadmissible testimony “through the back door.” Id.

      Turning to the instant case, we again note that the decision to admit or exclude

evidence lies within the sound discretion of the trial court. See Bay Area Healthcare

Grp., Ltd., 239 S.W.3d at 234. We will uphold a trial court’s evidentiary ruling if

any legitimate ground supports the ruling. See Hooper, 222 S.W.3d at 107. Relevant

evidence is generally admissible. TEX. R. EVID. 402. A trial court may exclude

relevant evidence, however, “if its probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; Farmers

                                          26
Texas Cty. Mut. Ins. Co. v. Pagan, 453 S.W.3d 454, 461 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). Thus, a trial court balances the probative value of admitting a

prior inconsistent statement for its legitimate impeachment purposes against the

danger of unfair prejudice created by the jury misusing the statement for substantive

purposes. Hughes, 4 S.W.3d at 5.

      Here, Benson first presented to the jury the portion of Maddox’s deposition in

which she testified that before the collision, she was driving “[a]bout 400 feet”

behind Anders’s red minivan; the trees lining the roadway were overgrown to the

point that they obstructed a clear view of the traffic signal at the intersection; and

she did not know whether the light controlling her lane of traffic was red or green at

the time of the collision. Benson then sought to present the portion of Maddox’s

deposition testimony in which she admitted to making the prior inconsistent

statements contained in the HPD collision report and investigation file, and in her

interview with the insurance adjuster, i.e., that before the collision, she was only

three or four car lengths “behind the red van and saw that the driver wasn’t braking”;

“the van just drove right through the intersection and did not even slow down”;

“[t]here [was] no doubt that the van had the red light”; and “the van ran the red light

and caused the accident.”

      The Chalks objected to Benson presenting evidence of Maddox’s prior

inconsistent statements to the officers and insurance adjuster on the ground that

                                          27
Benson had improperly called Maddox to testify by deposition for the sole purpose

of impeaching her with otherwise inadmissible hearsay. They asserted that Benson

“ultimately want[ed] to get into evidence” Maddox’s prior inconsistent statements,

which constituted hearsay, to the officers and insurance adjuster that Anders had run

a red light. The Chalks further asserted that Benson could not use prior inconsistent

statements under the guise of impeachment for the primary purpose of placing

substantive evidence before the jury which constituted hearsay and was not

admissible. The trial court sustained the objection and excluded the testimony.

      The record shows that Maddox was the only eyewitness, other than the parties

and the decedent, to the collision, and, thus, there were no other witnesses to offer

an independent accounting of the events.       Where there is “no other possible

independent source of critical evidence, . . . admitting it for impeachment purposes

pose[s] a significant risk [that] the information [will] be misused by the jury.” See

Kelly, 60 S.W.3d at 302.

      The record also shows that at the time of trial, Benson already knew that

Maddox, during her prior deposition, had recanted under oath her previously made

statements to the HPD officers and the insurance adjuster that Anders had driven

through a red light. Maddox did not appear and testify live at trial. Rather, Benson

simply presented to the jury specific portions of Maddox’s videotaped deposition

testimony. Benson then attempted to impeach that testimony with other portions of

                                         28
Maddox’s deposition testimony. Thus, this is not a case in which Benson could have

expected that Maddox might give favorable testimony at trial or in which Benson

could have tested at trial whether Maddox would adhere under oath to her prior

recantation. See Hughes, 4 S.W.3d at 3 (“key issue” in analysis is proponent’s prior

knowledge witness would testify unfavorably); see also Kelly, 60 S.W.3d at 302

(“Hughes teaches that prior knowledge is key.”).

      Further, as expected, the substance of Maddox’s testimony at trial was not

favorable to Benson’s case.     Maddox testified that before the collision, she was

“[a]bout 400 feet” behind Anders’s red minivan, the trees lining the roadway were

overgrown to the point that they obstructed a clear view of the traffic signal, and she

did not know whether the light controlling her lane of traffic was red or green at the

time of the collision. See Hughes, 4 S.W.3d at 7 (“[L]ack of favorable testimony

suggest[ed] [that] the [proponent] was attempting to use [the witness’s] prior

inconsistent statements under the guise of impeachment, for the primary purpose of

placing before the jury evidence which was not otherwise admissible” and proponent

had “little, if any, legitimate purpose in admitting [the witness’s] prior inconsistent

statements to impeach her testimony”).

      We conclude that based on the highly prejudicial nature of the portion of

Maddox’s deposition containing her prior inconsistent statements to the HPD

officers and the insurance adjuster, any probative value it may have had as

                                          29
impeachment evidence was substantially outweighed by its prejudicial effect. See

id. at 3–5; Pate, 170 S.W.3d at 850; cf. Aguilar, 2008 WL 5058974, at *1–2 (trial

court erred in admitting prior inconsistent statement for impeachment purposes

where witness’s testimony at trial not favorable to proponent and proponent did not

expect witness would give favorable testimony).

      Benson further argues that the trial court erred in not admitting Maddox’s

prior inconsistent statements as substantive evidence because the jury had an

opportunity to observe Maddox’s demeanor in her videotaped deposition, Maddox

admitted to having made the prior statements, and the “inherent reliability of the

earlier statements’ proximity in time to the accident, justify full admissibility.”

      “It is the well-settled rule in this State, and elsewhere, that prior inconsistent

statements are usable only for impeachment purposes and are not substantive

evidence of the facts stated.” Fultz v. First Nat. Bank in Graham, 388 S.W.2d 405,

408 (Tex. 1965); Spring Branch Bank v. Wright, 404 S.W.2d 659, 665 (Tex. Civ.

App.—Houston [1st Dist.] 1966, writ ref’d n.r.e.) (“It is well settled that such prior

inconsistent statements cannot be used as substantive evidence of the truth of the

facts stated.”); see also Anthony Pools, a Div. of Anthony Indus., Inc. v. Charles &

David, Inc., 797 S.W.2d 666, 676 (Tex. App.—Houston [14th Dist.] 1990, writ

denied) (jury may not consider prior inconsistent statement as substantive evidence).

We are bound by the precedent of the Texas Supreme Court and this Court.

                                          30
      Accordingly, we hold that the trial court did not err in excluding from

evidence the portions of Maddox’s deposition in which she testified about her prior

inconsistent statements to Officers Hroch and Michon and to the insurance adjuster

that Anders drove through a red light and caused the collision.

      We overrule Benson’s third issue.

                                    Causation

      In her second issue, Benson argues that the trial court erred in excluding from

evidence Officer Hroch’s narrative in the HPD collision report and portions of both

his and Officer Michon’s deposition testimony, in which they opined that Anders

caused the collision by entering the intersection against a red light, because “both

officers were adequately qualified as experts on accident investigation and their

opinions were reliable.”

      To establish causation in a negligence suit, a plaintiff must prove that the

defendant’s conduct caused an event and the event caused the plaintiff to suffer

compensable injuries. Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,

603 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Causation cannot be

established by mere conjecture, guess, or speculation. McClure v. Allied Stores of

Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). However, proximate cause may be

established by direct or circumstantial evidence and the reasonable inferences that

may be drawn from that evidence. Id. at 903–04.

                                          31
      Generally, police officers, based on their position as police officers alone, are

not qualified to render opinions regarding causation in collision cases. Pyle v.

Southern Pac. Transp. Co., 774 S.W.2d 693, 695 (Tex. App.—Houston [1st Dist.]

1989, writ denied); see also Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 334 (Tex.

App.—El Paso 1993, no writ). Police officers are qualified to testify about collision

reconstruction if they are trained in the science and possess the high degree of

knowledge sufficient to qualify as an expert. Pilgrim’s Pride Corp. v. Smoak, 134

S.W.3d 880, 891 (Tex. App.—Texarkana 2004, pet. denied).

      For an expert’s testimony to be admissible, the expert witness must be

qualified to testify about “scientific, technical, or other specialized knowledge,” and

the testimony must be relevant and based upon a reliable foundation. TXI Transp.

Co. v. Hughes, 306 S.W.3d 230, 234–35 (Tex. 2010); see also TEX. R. EVID. 702.

An expert’s testimony is relevant when it assists the jury in determining an issue or

in understanding other evidence. TEX. R. EVID. 702. However, expert testimony

based on an unreliable foundation or flawed methodology is unreliable and does not

satisfy the relevancy requirement. Hughes, 306 S.W.3d at 234–35 (citing E.I. du

Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556–57 (Tex. 1995)).

      Expert testimony is not required to establish negligence in a traffic-collision

case if the question is not complex and not beyond the competence of an average

juror. See Smoak, 134 S.W.3d at 893–94 (holding officer’s lay opinion collision

                                          32
caused by defendant’s unsafe lane change legally sufficient to support jury’s finding

defendant seventy-five percent at fault for collision); see also Ten Hagen

Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 485 (Tex. App.—Dallas 2016,

pet. denied). “[N]ot every motor vehicle accident requires expert testimony to

understand how it took place and who is at fault.” See Smoak, 134 S.W.3d at 892.

Lay evidence may establish causation “in those cases in which general experience

and common sense will enable a layman to determine, with reasonable probability,

the causal relationship between the event and the condition.” Jelinek v. Casas, 328

S.W.3d 526, 533 (Tex. 2010). Lay testimony is admissible if it is “(a) rationally

based on the witness’s perception and (b) helpful to clearly understanding the

witness’s testimony or to determining a fact in issue.” TEX. R. EVID. 701.

      Here, Officer Hroch, in his deposition, testified that his “ultimate conclusion”

that Anders drove through a red light was “based off of an independent witness that

had no connection to either driver,” i.e., Maddox, the sole surviving, independent

witness. He explained that given Maddox’s later statement, both in her affidavit and

at her deposition, that she “really doesn’t recall” whether Anders had the red light,

his conclusion “would have been . . . no fault because [he] really couldn’t tell who

ran the red light.” And “[s]ince he was not there, [he] would not be able to know if

one [light] was green or red.”




                                         33
      Officer Michon, in his deposition, testified that his conclusion that Anders

drove through a red light and caused the collision was based “entirely upon the

statement of [Maddox].” He explained that because the statements of Benson and

Anders were conflicting as to which of them had the green light, he just “canceled

those out.” Because Michon was not there and did not see any “physical evidence

that indicated which car ran the red light,” he was unable to opine as to which driver,

more likely than not, had caused the collision. He noted that given Maddox’s later

statement that she did not see the light on Wilcrest, he would have reported the cause

of the collision as “undetermined.”

      Thus, even were we to conclude that Officers Hroch and Michon were

qualified as experts to opine as to which driver drove through a red light at the

intersection and caused the collision, the trial court could have reasonably concluded

that their “opinions,” which were not based on their own perceptions, but based

entirely on Maddox’s statement that Anders ran a red light and caused the collision,

were without a reliable foundation. See TXI Transp. Co., 306 S.W.3d at 234–35; see

also TEX. R. EVID. 702.

      Further, even were we to conclude, which we do not,7 that the question of

which driver ran the red light in this case was not complex and not beyond the



7
      See, e.g., Harris v. State, 866 S.W.2d 316, 327 (Tex. App.—San Antonio 1993, pet.
      ref’d) (admitting expert testimony regarding which driver ran red light).

                                          34
competence of an average juror and thus that expert testimony was not required to

establish negligence, lay testimony is admissible only if it is rationally based on the

witness’s perception. See TEX. R. EVID. 701; Smoak, 134 S.W.3d at 893–94; see

also Ten Hagen Excavating, Inc., 503 S.W.3d at 485. Here, Officers Hroch and

Michon testified that they based their stated opinions as to causation not on their

own perceptions, but “entirely” on Maddox’s statement that Anders had the red light.

      Accordingly, we hold that the trial court did not err in excluding from

evidence the portions of Officer Hroch’s narrative in the collision report and portions

of both his and Officer Michon’s deposition testimony in which they opined that

Anders drove through a red light and caused the collision.

      We overrule Benson’s second issue.

                             Out-of-Court Experiment

      In her fifth issue, Benson argues that the trial court erred in admitting into

evidence video recordings of an out-of-court “experiment” because they were

“simply not a true depiction of the actual conditions at the time of the accident.” See

Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281–82 (Tex. 1964).

She further argues that the video recordings lack probative value because they were

not necessary to help the jury understand the traffic-light cycle. And Benson argues

that the video recordings were prejudicial because they “most likely confused the




                                          35
jury” and resulted in the rendition of an improper judgment. See TEX. R. APP. P.

44.1.

        “When an experiment is conducted out-of-court and in the absence of

opposing counsel, there must be a substantial similarity between the conditions

existing at the time of the experiment and the actual event that is the subject of

litigation.” Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79, 84 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (citing Williams, 375 S.W.2d at 281–82).

However, the conditions need not be identical. Id. Where there exists a dissimilarity

in the conditions, if the differences are minor or are explained to the jury, the

admission of the experiment is within the trial court’s discretion to determine

whether the dissimilarity would cause the evidence to confuse rather than aid the

jury and, thus, whether the evidence should be excluded. Williams, 375 S.W.2d at

282; see also Sosa v. Koshy, 961 S.W.2d 420, 430 (Tex. App.—Houston [1st Dist.]

1997, pet. denied) (no abuse of discretion where expert testified video substantially

similar to conditions existing at time of collision and cross-examined about

differences between video and actual event); Garza v. Cole, 753 S.W.2d 245, 247

(Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (no abuse of discretion

where testimony explained differences between video and actual event); cf. Lopez v.

Foremost Paving, Inc., 796 S.W.2d 473, 481 (Tex. App.—San Antonio 1990, writ

dism’d) (trial court erred in admitting video where it could have been perceived as

                                         36
simulated re-enactment of collision and no explanation to jury of differences

between experiment and actual events).

      Again, an appellant, to obtain a reversal based on an error in the admission of

evidence, must show that the trial court’s ruling was erroneous and the error was

calculated to cause and probably did cause the rendition of an improper judgment.

TEX. R. APP. P. 44.1(a); Interstate Northborough P’ship, 66 S.W.3d at 220. The

excluded evidence must be controlling on a material issue and not cumulative of

other evidence. See Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex.

1995).

      In Garza, a car driven by the defendant struck a car driven by the plaintiff at

an intersection. 753 S.W.2d at 246. At trial, the jury viewed a videotape recording,

presented by the defendant, of an out-of-court experiment depicting what the

plaintiff “could have seen as she approached the intersection” where the collision

occurred. Id. at 247. The defendant’s videotape technician also testified in narrative

form about the contents of the videotape recording.            Id.   On appeal, the

plaintiff-appellant argued that the trial court erred in admitting the videotape

recording because what it depicted was not substantially similar to the actual scene

of the collision. Id. The Fourteenth Court of Appeals noted that even had it

concluded that the trial court had erred in admitting the videotape recording, the

error would have been harmless because the videotape recording was cumulative of

                                         37
other testimony and evidence presented at trial. Id. at 248 (when trial court errs in

“admit[ting] evidence of a nature that is largely repetitious” of other testimony, error

is harmless).

      Here, the material issue presented was whether the light was green when

Benson entered the intersection. Benson testified that there was not another car

ahead of her on Apple Tree and “the light was green when [she] got there.” Yergin

testified that based on her research of the signal lights controlling the intersection,

“[i]n every scenario,” in order to trigger the signal lights controlling Wilcrest to

begin cycling to red, a motorist traveling eastbound on Apple Tree and approaching

the intersection had to “stop or come within a mile per hour” in front of the signal

light on Apple Tree. She noted that while at the intersection, she did not see any

motorist simply “catch a green light” on Apple Tree, unless another motorist

happened to be traveling in front of them. The trial court also admitted into evidence

videotape recordings of Yergin’s experiment, and Yergin further testified in detail

about the contents of the videotape recordings as they were played to the jury.

      The material evidence displayed in the videotape recordings, i.e., that in order

to trigger the signal light controlling Wilcrest to begin cycling to red, a motorist

traveling eastbound on Apple Tree and approaching the intersection had to stop or

slow in front of the signal light, was cumulative of Yergin’s testimony. Although




                                          38
Benson objected to the admission of the videotape recordings, she did not object to

Yergin’s testimony about her experiment or the contents of the videotape recordings.

      Thus, even were we to conclude that the trial court erred in admitting the

videotape recordings, the error was harmless as the videotape recordings were

cumulative of other testimony presented at trial. See Volkswagen of Am., Inc. v.

Ramirez, 159 S.W.3d 897, 906–07 (Tex. 2004) (any error in admission of videotape

recording harmless where defendant did not object to other evidence, i.e., live

testimony of witness about contents of videotape recording); Owens-Corning

Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.]

1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“The erroneous admission of evidence that

is merely cumulative of properly admitted evidence is harmless.”); Garza, 753

S.W.2d at 248 (where trial court errs in “admit[ting] evidence of a nature that is

largely repetitious” of other testimony, error harmless); see also Gardner Oil, Inc.

v. Chavez, No. 12-10-00274-CV, 2012 WL 1623420, at *7–8 (Tex. App.—Tyler

May 9, 2012, no pet.) (mem. op.) (any error in admitting video recording of

out-of-court experiment harmless where plaintiff objected to admission of video

recording, but not to expert’s testimony, which was cumulative of evidence in

recording).

      We overrule Benson’s fifth issue.




                                          39
      Having concluded that the trial court did not err in making its evidentiary

rulings, we do not reach Benson’s sixth issue, in which she asserts that the “trial

court’s errors, independently or cumulatively, require reversal.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                    Terry Jennings
                                                    Justice


Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




                                         40
