HOUSTON – In a decision filed Nov. 21, the Court of Appeals for the 1st District of Texas affirmed a trial court’s decisions concerning the allowance and exclusion of evidence in a case seeking damages for the death of a woman in a traffic accident.

Appellant Roberta Benson had been attributed 80 percent of the liability in the death of decedent Drusilla Henkhaus in 2010, while the driver of the vehicle in which Henkhaus was riding, Mary Herron-Anders, was attributed the other 20 percent.

Benson argued to the appellant court that the trial court erred on several issues concerning the evidence allowed to be presented to the jury. 

First, Benson argued that the trial court erred in excluding evidence from the one witness to the accident, claiming that the statements are admissible under the exceptions to the rules for hearsay. 

The court, however, found that because the witness’s statements to the police officers on the scene were not made under oath, they do not fall under the purview of the hearsay exception. Furthermore, because Benson did not make such an objection during the trial court, she cannot use the argument upon appeal.

Benson further argued that the court should not have excluded the portions of the witness’s testimony that were inconsistent with those parts it did allow, claiming they were admissible as substantive evidence. However, according to Justice Terry Jennings’ written opinion, “'any probative value it may have had as impeachment evidence was substantially outweighed by its prejudicial effect.'”

The court also rejected Benson’s argument that it should have allowed one responding police officer’s testimony as well as parts of the report by another responding officer that stated that Anders had caused the accident, based on the statement from the single witness. Benson felt that both officers qualified as experts with reliable opinions. The court disagreed, determining that even if both officers did qualify as experts in determining the causes of traffic accidents, their conclusions relied only on the evidence provided by the single witness, and therefore lacked a reliable foundation.

Finally, Benson argued that the court should not have allowed video recordings of an out-of-court experiment performed at the site of the accident. Expert witness on traffic-collision reconstruction April Yergin had examined the intersection and recorded the lights and how the accident could have occurred, but Benson opposed the evidence on the grounds that it was not an accurate depiction of the conditions when the accident occurred, the opinion states. While the accident happened on a July morning, the expert conducted her experiments on a January evening.

The court determined that because Benson had not objected to Yergin’s testimony, but only to the videotapes, it would not overturn the trial court’s decision to allow them. 

“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,” wrote Jennings.

Chief Justice Sherry Radack and Justice Russell Lloyd concurred.

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