
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00053-CV


AnnaMarie Sherbin, Appellant

v.

Dean Word Company, Ltd., Appellee




FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2003-0058A, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		AnnaMarie Sherbin was a passenger in a van involved in a multiple-vehicle collision
on Interstate Highway 35 ("I-35") in New Braunfels.  Sherbin sued the Dean Word Company ("Dean
Word"), which was engaged in a construction project near the scene of the accident, for injuries she
sustained.  Sherbin claimed that Dean Word had negligently created a dust cloud, which obscured
visibility on the highway and proximately caused the accident.  After a jury trial, the jury found for
Dean Word.  In five issues on appeal, Sherbin argues that (1) there is factually insufficient evidence
to support the jury's finding that the accident was not proximately caused by Dean Word's
negligence, (2) the trial court erred in excluding eyewitness testimony of one of Sherbin's experts,
(3) the trial court erred in excluding written witness statements attached to the accident report
prepared by the police, (4) the court erred in excluding Sherbin's testimony about comments that
construction workers had made to her about the accident, and (5) the court erred in excluding the
testimony of another witness concerning comments made by construction workers after the accident. 
We affirm the judgment of the trial court.

BACKGROUND
		In January 2003, Dean Word was performing a road construction project along a
three-mile stretch of I-35 in New Braunfels, Texas. (1)  On January 21, 2003, Dean Word applied lime
to a subgrade that was being built in order to widen the highway.  Donald Peters, Dean Word's
director of safety at the time, and Ray Foyt, who was working for Dean Word on the project, testified
that pelletized lime, instead of powdered lime, was used on the subgrade.  Peters testified that Dean
Word had been using pelletized lime for several years prior to the accident, as powdered lime is
"notorious" for causing dust clouds, while pelletized lime remains in capsule form until hydrated. (2)
  		Foyt testified that, on the day in question, pelletized lime had been dumped onto the
ground and spread into the soil, and that the process of hydrating the lime had begun.  When
pelletized lime is hydrated, it sometimes produces vapor trails--as described by Foyt, the lime would
give off "steam like out of your tea kettle."  Peters testified that he had never seen vapor trails form
a cloud or rise more than two to three feet off of the ground, and noted that the subgrade work was
being done roughly ten feet below the level of the highway.
		That same day, Sherbin was traveling on I-35 near the construction site.  Sherbin, a
deputy sheriff for Dallas County, was riding in a van transporting prisoners.  According to Sherbin
and several other eyewitnesses, a white cloud suddenly enveloped the cars on I-35 near the work site,
severely reducing visibility.  An accident involving more than 20 cars, including the van in which
Sherbin was a passenger, ensued.  While driving conditions had been foggy earlier in the day, some
witnesses stated that the fog had lifted by the time the accident occurred, while others indicated that
visibility was affected by fog through the time of the accident.  
		Officer Chris Pelletier of the New Braunfels Police Department arrived 45 minutes
after the accident to investigate.  He prepared an accident report in which he concluded, based on
his investigation of the scene and discussions with other officers, that the cause of the accident was
a "zero visibility cloud."  He added that Dean Word "was spreading lime on the site and contributed
to this accident."  Other witnesses attributed the creation of the dust cloud to the operation of a
cement mixer.  Both Sherbin and Bill Cobb, a passenger in one of the vehicles involved in the
accident, stated that a cement mixer on the construction site created a large amount of white smoke
that drifted onto the highway.  Peters and Foyt testified that, to their knowledge, there was no cement
mixer on the construction site on the day of the accident.
		Sherbin brought suit against Dean Word, claiming that she had suffered injuries due
to the accident, and that the accident had been proximately caused by Dean Word's negligence.  At
trial, David Steitle, one of Sherbin's expert witnesses, opined that the accident had been caused by
Dean Word "kicking up lime."  He also stated that he had personally witnessed the formation of the
dust cloud that in his opinion caused the accident.  While he agreed that hydrating lime would not
cause a dust cloud, he stated that pelletized lime is only guaranteed not to form a dust cloud when
it is spread, and that contractors must be careful that it does not form a dust cloud afterwards.  Steitle
admitted that he did not take weather data into consideration when forming his opinion, despite the
fact that several witnesses stated that the day had been foggy.  Dean Word's expert, Arthur Barrow,
stated that there was no way that the process of applying pelletized lime could foreseeably create a
dust cloud, and concluded that the cloud had formed due to a weather phenomenon.
		At the conclusion of the jury trial, the jury found in favor of Dean Word, and this
appeal followed.

STANDARD OF REVIEW
		When a party attacks the factual sufficiency of an adverse finding on an issue on
which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against
the great weight and preponderance of the evidence.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001). The court of appeals must consider and weigh all of the evidence, and can set aside a
verdict only if the evidence is so weak or if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust.  Id. 
		Rulings on the admission or exclusion of evidence are committed to the trial court's
sound discretion.  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Beck v. Law
Offices of Edwin J. Terry, Jr., P.C., 284 S.W.3d 416, 442 (Tex. App.--Austin 2009, no pet.).  A trial
court abuses its discretion in admitting or excluding evidence if it acts without reference to any
guiding rules and principles or if the act complained of is arbitrary and unreasonable.  Carpenter
v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).  We must uphold a trial court's
evidentiary ruling if there is any legitimate basis in the record to support it.  Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

DISCUSSION
Factual Sufficiency of the Evidence
		In her first issue, Sherbin argues that the jury's finding that the accident was not
proximately caused by Dean Word's negligence is against the great weight and preponderance of the
evidence, and therefore is supported by factually insufficient evidence.  Question number one
submitted to the jury reads, "Did the negligence, if any, of Dean Word Company Ltd. proximately
cause the occurrence in question?" The jury was given the following definitions:

"NEGLIGENCE" means failure to use ordinary care, that is, failing to do that which
a person of ordinary prudence would have done under the same or similar
circumstances or doing that which a person of ordinary prudence would not have
done under the same or similar circumstances.

"PROXIMATE CAUSE" means that cause which, in a natural and continuous
sequence, produces an event, and without which cause such event would not have
occurred.  In order to be proximate cause, the act or omission complained of must be
such that a person using ordinary care would have foreseen that the event, or some
similar event, might reasonably result therefrom.  There may be more than one
proximate cause of an event.


In determining whether the jury's finding was against the great weight and preponderance of the
evidence, we evaluate the evidence presented at trial in light of these definitions.  See City of
Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (holding that where, as here, parties did not
object to charge, appellate court is bound to review evidence in light of definitions actually given
to the jury).
		While the witnesses at trial agreed that a cloud had formed on the highway and
reduced visibility immediately prior to the accident, the creation of the cloud was a primary point
of contention.  Sherbin put forth two theories of how Dean Word's negligent activities at the
construction site created the cloud, and in turn proximately caused the accident.  Under the first
theory, Dean Word created a cloud of lime dust when applying lime to the subgrade.  This theory is
consistent with Dean Word's interrogatory response that the source of the "dust cloud" was
"Pelletized Type A lime" and with Pelletier's accident report, which states that Dean Word "was
spreading lime  on the site and contributed to this accident."  Pelletier admitted, however, that he did
not witness the accident, and based his opinion largely on his discussions with other peace officers. 
Further, he stated that "spreading lime" was a general description, not a statement of causation.  
Steitle, Sherbin's expert, testified that a cloud of lime dust enveloped the highway prior to the
accident, though he could not say exactly how the cloud had been formed.  He allowed that the
hydration of pelletized lime, which Dean Word was using at the time of the accident, would
not create such a cloud, but maintained that the cloud must have been formed by Dean Word
"kicking up lime." (3) 
		Peters, however, testified that the lime that had been used on the day in accident was
pelletized lime, and stated that the application of such lime would not cause a dust cloud.  Foyt also
testified that he had never seen pelletized lime create a cloud or plume large enough to disrupt
motorists, despite participating in hundreds of applications of pelletized lime, and further stated that
there was fog in the air at the time of the accident.  Barrow, Dean Word's expert, agreed that
application of pelletized lime could not form a dust cloud of the type described by those in the
accident.  He further stated that, in his opinion, the cloud had been the result of a weather
phenomenon.  
		Under her second theory, Sherbin argues that operation of a cement mixer could have
caused the cloud.  Sherbin herself testified that she saw a man on the construction site mixing a
powdered substance in what she described as a cement mixer.  The mixer was producing smoke "like
a chimney."  Immediately after she saw the man, the van went into an area of "absolute white-out,"
and she testified that at least some of the cloud was emanating from this mixer.  Cobb testified that
he had seen a cement mixer sitting on the ground and spinning around that was producing large
amounts of white smoke that drifted onto the highway.  Foyt, however, testified that no one was
using a cement mixer on the site, either to apply lime or for any other purpose, and Peters testified
that he did not recall seeing a mixer on the site.
		Based on our review of the evidence, we cannot conclude that the jury's finding was
against the great weight and preponderance of the evidence with respect to either of the theories put
forth by Sherbin.  Regarding proximate cause, while there is some evidence to indicate that Dean
Word caused or contributed to the dust cloud by applying lime or using a cement mixer, there is
competing testimony suggesting otherwise.  It is for the jury to resolve such conflicts.  See City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) ("The jury may choose to believe one witness
and disbelieve another, and we must not impose our own opinion to the contrary.").  Further, Sherbin
has presented scant evidence that the creation of a dust cloud was a foreseeable result of any of Dean
Word's actions on the construction site.  Finally, there is little evidence in the record to show that,
had Dean Word created the dust cloud, it was negligent in doing so.  Accordingly, we conclude that
the jury's finding that Dean Word's negligence was not the proximate cause of the accident was
supported by factually sufficient evidence.  Sherbin's first issue on appeal is overruled.  

Eyewitness Testimony of Expert
		In her second issue on appeal, Sherbin argues that the court erred in refusing to allow
Steitle, one of Sherbin's expert witnesses, to testify as a fact witness.  At trial, Sherbin's counsel
approached the bench and explained to the trial court that Steitle had realized that he had witnessed
the cloud that caused the accident in his rear-view mirror.  Sherbin's counsel explained that Steitle
would not "be able to say where the source was, other than he saw in his rearview mirror what he
clearly believed to be a cloud of lime dust."  According to Dean Word's counsel, however, the
defense had not been informed of this realization prior to trial, and discovery had not been
supplemented to either designate Steitle as a fact witness or to summarize his eyewitness testimony
regarding the dust cloud.
		For the exclusion of evidence to constitute reversible error, the complaining party
must show (1) that the trial court committed error, and (2) that the error was reasonably calculated
to cause and probably did cause rendition of an improper judgment.  McCraw v. Maris, 828 S.W.2d
756, 757 (Tex. 1992); Beck, 284 S.W.3d at 442; see Tex. R. App. P. 44.1.  If the trial court erred in
excluding the witness, the error is reversible if it is both controlling on a material issue and not
cumulative.  See Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 883 (Tex. App.--Austin
2007, pet. denied) (citing Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994)).
		In this case, we note that the testimony that Sherbin sought to include--that Steitle
had been an eyewitness to the accident--did come into evidence.  During cross-examination, Steitle
stated, "I know what I saw them doing on this project.  I was a witness to it, and so it's not just
speculation on my part.  I saw them creating an enormous dust cloud."  Accordingly, there was no
harm in the trial court's earlier exclusion of Steitle's testimony as a fact witness.  Accordingly,
Sherbin's second issue on appeal is overruled.

Witness Statements in Accident Report
		In her third issue on appeal, Sherbin argues that the court erred in excluding from
evidence written witness statements attached to Pelletier's accident report.  According to Sherbin,
the affidavits of Vicki Smith and Kiersta Garcia had originally been attached to the accident report. 
Smith's affidavit stated that "one of the construction workers came up after the accident to inquire
if we were OK.  He then stated that he had told 'them' to stop 'grinding' because those people can't
see."  Garcia's affidavit stated, "After the accident construction workers came over to see if I was
OK.  When I told them I could not see anything they said, 'we know we told the guys to stop what
they were doing up there because it was making the traffic blind.'  They said they had told them this
several times that because of the moisture in the air the smoke was making it where no one could
see."  While the trial court admitted the accident report into evidence, these affidavits were removed
from the report prior to its admittance. (4)
		The witness statements of Smith and Garcia are hearsay, see Tex. R. Evid. 801(d),
while the statements of the construction workers constitute hearsay within hearsay, as these
statements are themselves hearsay and are contained within the hearsay witness statements of Smith
and Garcia.  See Tex. R. Evid. 805; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 139-40 (Tex.
2004).  Accordingly, for the statements of the construction workers to be admissible, Sherbin must
show that both the witness statements of Smith and Garcia and the construction-worker statements
contained therein qualify under exceptions to the hearsay rule.  See Nissan Motor Co., 145 S.W.3d
at 139-40 (holding that hearsay within hearsay is admissible only if each part of statement comports
with exception to hearsay rule).
		We begin with the witness statements of Smith and Garcia.  Sherbin argues that these
written statements fall within the public-records exception to hearsay, as the statements were
attached to the accident report prepared by the police and admitted as a public record.  See Tex. R.
Evid. 803(8).  However, Texas courts have held that witness statements in a police officer's file
do not qualify under the public-records exception set forth in Rule 803(8).  See id.; Corrales
v. Department of Family & Protective Servs., 155 S.W.3d 478, 486 (Tex. App.--El Paso 2004,
no pet.) (holding that while police officer's factual findings in police report may qualify as public
record, statements of witnesses in report would not) (citing Kratz v. Exxon Corp., 890 S.W.2d 899,
905 & n.5 (Tex. App.--El Paso 1994, no writ)); see also In re E.A.K., 192 S.W.3d 133, 145 (Tex.
App.--Houston [14th Dist.] 2006, pet. denied) (same).  Accordingly, as the statements of Smith and
Garcia do not fall under the public-records hearsay exception, we conclude that the trial court did
not abuse its discretion in excluding them.
		Even if the statements of Smith and Garcia qualified under a hearsay exception, the
statements of the construction workers do not.  Sherbin argues that the statements of the construction
workers were excited utterances.  To be admissible as an excited utterance, a statement must be (1) a
spontaneous reaction (2) to a personal observance of (3) a startling event (4) made while the
declarant was still under the stress of excitement caused by the event.  Tex. R. Evid. 803(2);
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 (Tex. 2004).  For an exclamation to be
spontaneously made while under the stress of excitement, it must occur before the declarant has the
opportunity to reflect on or ponder the shocking incident.  Volkswagon of Am., 159 S.W.3d at 908.
In other words, "[t]he circumstances must show that it was the event speaking through the person
and not the person speaking about the event."  Malone v. Foster, 956 S.W.2d 573, 580 (Tex.
App.--Dallas 1997), aff'd, 977 S.W.2d 562 (Tex. 1998).  In this case, Sherbin argues that the
statements fall under the exception because the workers made the statements without being asked
and because the statements were made shortly after the accident.  However, the record does not
indicate how much time elapsed between the accident and the statements or demonstrate the
demeanor of the workers at the time of the statements.  See Volkswagon of Am., 159 S.W.3d at 908
n.5 (noting that, in excited utterance analysis, proponent of hearsay has burden to show that
testimony falls under exception). Accordingly, exclusion of the statements for failing to meet the
standard for excited utterances does not constitute an abuse of discretion.
		Sherbin also attempts to incorporate arguments from her trial brief that the statements
of the construction workers fall under hearsay exceptions for present-sense impression and then-existing mental, emotional, or physical condition.  See Tex. R. Evid. 803(1), (3).  However, as these
arguments are not presented in her appellate brief, they are not properly before this court on appeal. 
See Tex. R. App. P. 38; Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829, 832-33
(Tex. App.--Fort Worth 1998, pet. denied) (holding that permitting incorporation by reference of
arguments made in summary judgment motion "would be an open door for parties to circumvent the
appellate brief page limits"); Coggin v. State, No. 03-04-00585-CR, 2006 Tex. App. LEXIS 4121,
at *13 n.3 (Tex. App.--Austin May 12, 2006, no pet.) (mem. op., not designated for publication)
(holding that incorporation of arguments "conflict[s] with the rules of appellate procedure") (citing
Guerrero).  
		Even if the arguments regarding present-sense impression and then-existing mental,
emotional, or physical condition were properly before this Court, the statements of the construction
workers do not fall within these exceptions.  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."  Tex. R. Evid. 803(1).  To the extent that the construction workers were
describing an event or condition in discussing their attempts to stop production of the dust cloud,
there is no indication that the workers' statements were made at the time of the event or immediately
thereafter.  While counsel stated that the statements occurred after the accident and shortly before
the police arrived, he did not specify when the event itself had occurred.  See Daniels v. Yancey,
175 S.W.3d 889, 895 (Tex. App.--Texarkana 2005, no pet.) ("Without probative evidence in the
record which establishes the amount of time between [the] statement and [the event described], we
cannot conclude that the statement falls within this exception.").  Further, the exception for a then-existing mental, emotional, or physical condition covers statements regarding the declarant's "intent,
plan, motive, design, mental feeling, pain, or bodily health."  See Tex. R. Evid. 803(3).  The
statements in question refer to the construction workers' alleged prior attempts to stop production
of the dust cloud, not to their mental, emotional or physical condition at the time they were making
the statements, and consequently do not fall under the exception.
		Accordingly, as neither the witness statements of Smith and Garcia nor the statements
of the construction workers fall under exceptions to the hearsay rule, we conclude that the trial court
did not abuse its discretion in excluding the statements.  Sherbin's third issue is overruled.

Testimony about Construction Worker Statements
		In her fourth and fifth issues, Sherbin argues that the trial court erred in excluding her
own testimony and the deposition testimony of Garcia regarding statements of unidentified
construction workers that they had attempted to stop the creation of the dust cloud.  Neither issue
is properly before this Court.  To begin with, neither issue is adequately briefed.  Sherbin's brief
states no legal argument for the proposition that the testimony is admissible except for references
to arguments made in her trial brief.  As explained above, incorporation of arguments in this
manner conflicts with the rules of appellate procedure.  See Tex. R. App. P. 38.1; Guerrero,
977 S.W.2d at 832-33. 
		Even were we to address Sherbin's arguments, none of them compel admission of the
statements in question.  The statements of the construction workers are hearsay.  As analyzed above,
the record does not support the arguments in Sherbin's trial brief that the statements of the
unidentified construction workers fall under hearsay exceptions for excited utterance, present-sense
impression or then-existing mental, emotional, or physical condition.  See Tex. R. Evid. 803(1)-(3). 
Accordingly, Sherbin's fourth and fifth issues on appeal are overruled.  

CONCLUSION
		Finding no reversible error, we affirm the judgment of the trial court.


						__________________________________________
						Diane M. Henson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed:   July 9, 2010

1.   The facts recited herein are taken from the testimony and exhibits admitted at trial.
2.   Pelletized lime is known a Type C lime, while powdered lime is known as Type A lime.
In its interrogatory responses, Dean Word stated that "pelletized Type A lime" had been used on the
day of the accident.  According to Peters, this response was mistaken; as Type A lime is, by
definition, powdered, there is no such thing as "pelletized Type A lime."  While there was testimony
at trial concerning possible use of powdered lime at the site several months after the accident, the
bills of lading for lime delivery on the morning of the accident indicated that
Type C--pelletized--lime had been delivered to the construction site.
3.   As noted above, while Steitle testified that some of the bills of lading indicated that
powdered lime might have been delivered to the site several months after the accident, there is no
evidence in the record that powdered lime was being used on the day of the accident.
4.   While Sherbin's brief on this issue also discusses the admissibility of statements that
construction workers allegedly made to her, the record does not indicate that a witness statement
from Sherbin was attached to the accident report.  Admissibility of statements made by construction
workers to Sherbin is addressed in our analysis of Sherbin's fourth and fifth issues on appeal. 
