Opinion
No. 13-02-465-CV
Memorandum Opinion delivered and filed August 31, 2004.
On appeal from the County Court at Law No 2 of Nueces County, Texas.
Before Justices HINOJOSA, YAÑEZ and GARZA.
MEMORANDUM OPINION
Appellant, Perla Madrigal, appeals from a judgment rendered against her for damages sustained by appellee, Bonnie Soliz, pursuant to an automobile accident involving appellant and appellee's grandson, Brian Soliz. In five issues, appellant challenges: (1) the trial court's admission of the police accident report into evidence; (2) the sufficiency of the evidence establishing that she was the driver of the vehicle involved in the accident; (3) the legal and factual sufficiency of the evidence supporting the trial court's judgment against her; (4) the legal and factual sufficiency supporting the amount of damages awarded; and (5) the trial court's denial of her motion for directed verdict. We affirm.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4.
In her first issue, appellant contends the trial court erred in admitting a copy of the police accident report under the "business record" exception to the hearsay rule pursuant to Texas Rule of Evidence 803(6). Specifically, appellant complains that no foundation was laid by the custodian of the records, either by testimony or affidavit, as required by rule 803(6). See Tex. R. Evid. 803(6).
Rule 803(6), commonly known as the business records exception, provides the following are not excluded by the hearsay rule, even though the declarant is available as a witness:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or the circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
Tex. R. Evid. 803(6).
Whether to admit or exclude evidence is a matter committed to the trial court's sound discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will sustain the trial court's ruling, even if the wrong reason is given for the decision, if it is otherwise correct on any theory of law that is applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim. App. 1990) (stating that this principle "is especially true with regard to admission of evidence").
The business records exception to the hearsay rule can only be established by live testimony or by affidavit, and not by the face of the document itself. See State v. Foltin, 930 S.W.2d 270, 273 (Tex. App.-Houston [14th Dist.] 1996, writ denied). Here, the investigating officer's report was offered into evidence without a supporting witness.
However, accident reports are admissible under rule 803(8) as exceptions to the hearsay rule. Tex. R. Evid. 803(8); McRae v. Echols, 8 S.W.3d 797, 799 (Tex. App.-Waco 2000, pet. denied) (citing cases). We conclude the trial court did not err in admitting the accident report. We overrule appellant's first issue.
Rule 803(8) provides for the admissibility of records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.
Tex. R. Evid. 803(8).
We note that the trial court stated it was admitting the accident report under rule 803(6). See Tex. R. Evid. 803(6). However, we will sustain the trial court's ruling if it is correct on any theory of law applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).
Sufficiency of the Evidence
In her second issue, appellant contends there is "no evidence" supporting the finding that she was the driver of the vehicle involved in the accident. In her third issue, appellant challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that appellee "met and proved [her] pleadings."
Appellant argues that at trial, Brian Soliz, the driver of appellee's vehicle, testified he was unable to identify appellant and did not know her name. Appellant also argues that Brian Soliz's testimony at trial contradicted appellee's pleadings regarding the direction in which Soliz was traveling when the accident occurred.
When we review a "no evidence" or legal sufficiency of the evidence issue, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party's favor every reasonable inference deducible from the evidence. Formosa Plastics v. Presidio Eng'rs, 960 S.W.2d 41, 48 (Tex. 1998); Adams v. H. H. Meat Prod., Inc., 41 S.W.3d 762, 770 (Tex. App.-Corpus Christi 2001, no pet.). When both legal and factual sufficiency issues are raised, we must first review the legal sufficiency to determine if there is any evidence of probative value to support the judge's findings. Adams, 41 S.W.3d at 770 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981)). The findings of fact must be upheld if there is more than a scintilla of evidence in support thereof. Id. There is more than a scintilla when the evidence creates more than a mere surmise or suspicion of its existence. Id.
If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence. Id. When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the finding. Id. We set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the fact finder's conclusions. Id.
A trial court's legal conclusions will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id. at 769-70. Incorrect conclusions will not require a reversal if the controlling findings of fact will support a correct legal theory. Id. at 770. Moreover, conclusions of law may not be reversed unless they are erroneous as a matter of law. Id.
Here, the officer's report is on a pre-printed form entitled, "Texas Peace Officer's Accident Report," a form substantially similar to the officer's report form in McRae. See McRae, 8 S.W.3d at 800. The report identifies appellant as the driver of "Unit No. 1." In a section entitled, "Investigator's Narrative Opinion of What Happened," the officer wrote:
Witness # 1 advised that she was southbound on 700 Mesquite stopped at the red light. She observed that both Unit #1 and Unit #2 [Brian Soliz] had green lights, but Unit #1 failed to yield R.O.W. and turned left in front of Unit #2. Unit #2 was unable to stop in time and was struck by Unit #1 as she turned left. Unit #2 left approximately 33 feet of skid marks. Witness # 1 [name, address, and telephone number of witness]
In the section labeled, "Charges Filed," the report notes that appellant was given a citation for failure to yield right-of-way. In the section entitled, "Factors and Conditions Listed Are the Investigator's Opinion," the report notes that "Unit 1" "failed to yield ROW — turning left."
We conclude appellant's challenges to the sufficiency of the evidence are without merit. The accident report identifies appellant as the driver of the vehicle that failed to yield the right-of-way, resulting in the accident. We hold that the evidence is legally and factually sufficient to support the trial court's judgment that appellant proximately caused appellee's damages. We overrule appellant's second and third issues.
Damages
In her fourth issue, appellant challenges the legal and factual sufficiency of the evidence supporting the trial court's award of damages. The trial court's judgment awards appellee $4,959.12 plus post-judgment interest. At trial, appellee testified that although her insurance company "totaled the car" and paid her for its actual value, her preference was to have the vehicle repaired. Appellee's insurance adjuster testified that he estimated the cost of repairs to the vehicle at $4,959.12. We hold that the evidence is legally and factually sufficient to support the trial court's award of damages. We overrule appellant's fourth issue.
Appellee's insurance agent testified that the company paid appellee $3,371.38 minus her $200 deductible.
Motion for Directed Verdict
In her fifth issue, appellant contends the trial court erred in denying her oral motion for directed verdict.
An appeal from the denial of a motion for directed verdict is in essence a challenge to the legal sufficiency of the evidence. Kershner v. State Bar of Tex., 879 S.W.2d 343, 346 (Tex. App.-Houston [14th Dist.] 1994, writ denied); see Reyna v. First Nat'l Bank, 55 S.W.3d 58, 69 (Tex. App.-Corpus Christi 2001, no pet.). We have already determined that the evidence is legally and factually sufficient to support the trial court's judgment. Thus, the trial court did not err in denying appellant's motion for directed verdict. We overrule appellant's fifth issue.
We AFFIRM the judgment of the trial court.