Court of Appeals of Texas,

Corpus Christi–Edinburg.

Carmen MENDEZ, Individually and On Behalf of the Minor Child, Francesca Mendez

v.

Rocky BAYLOR.

No. 13–98–107–CV.

|

Aug. 19, 1999.

Attorneys & Firms

Juan Perales and Marisa Perales, for Carmen Mendez.

Mike Hummell and Paul Dodson, for Rocky Baylor.

Before Chief Justice SEERDEN, Justices YANEZ and CHAVEZ.

OPINION

Opinion by Justice CHAVEZ.

*1 Appellant Carmen Mendez sued appellee Rocky Baylor for personal injuries resulting from a parking lot accident between their two vehicles in July 1994. According to Baylor, he checked behind him, saw that there was nothing blocking his way, and then backed out of his parking place. Sometime after he started backing up Mendez drove into his path, and the back of his truck hit the side of her van. Mendez testified that she was waiting to pull onto a road when Baylor backed into her. She did not specify whether she was already occupying the space when Baylor began to reverse. The jury found each party to be fifty percent responsible for the accident, and found that Mendez and her daughter, who was a passenger in Mendez’s van, had suffered $2000 in damages. Because the jury found Mendez to be fifty percent responsible for the accident, her recovery was reduced in the final judgment to $1000.¹ On appeal, Mendez brings three challenges to the admission of evidence offered by Baylor. We find no reversible error in the trial court’s determination to admit the challenged evidence, and affirm the judgment of the trial court.

The decision to admit certain evidence lies within the discretion of the trial court and will not be disturbed absent a demonstration that the court abused its discretion. Cecil v. T.M.E. Investments, Inc., 893 S.W.2d 38, 43 (Tex.App.-Corpus Christi 1994, no writ). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Errors of law by the trial court require reversal of the trial court’s judgment only when the error probably caused the rendition of an improper judgment, or probably prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App. P. 44.1(a).

Mendez first challenges the admission of evidence concerning a one-car accident that she had in 1992. In that accident, Mendez lost control of her vehicle and hit a concrete barrier at fifty-five miles-per-hour. Mendez testified that two of the three children who were in the car were injured, but she was not injured.

Mendez’s appellate brief argues that the admission of this evidence was improper under evidence rules 608(b), 401, 402, 403, and 404. At trial, appellant first moved the trial court for a limine ruling excluding mention of the 1992 accident, explaining “I don’t see the relevance.” The trial court instructed Baylor not to mention the 1992 accident until later in the trial, when the matter would be explored outside the presence of the jury.

When that time came, Baylor indicated that he wanted to admit evidence of the 1992 accident to challenge the credibility of Mendez’s claims for injuries resulting from the 1994 accident with Baylor, explaining “how can you have this big ol’ crash over here and walk away unscratched, and then you get in this little fender bender and your hurt in that?” Mendez argued that “there has to be some materiality” in the evidence of the prior accident, and the lack of similarities between the accidents prohibited evidence of the prior accident. Mendez also argued that evidence of the 1992 accident would unfairly prejudice her case by suggesting that, if she was negligent in the 1992 accident, she was negligent in the 1994 accident.

*2 Mendez never objected at trial based on rule 608(b) and its prohibition on references to specific instances of the conduct of a witness for the purpose of supporting or attacking the witness’s credibility. Nor did Mendez object that evidence of the 1992 accident was improper character evidence under rule 404. Rather, Mendez’s objections were confined to the relevance and potential prejudice of the evidence, matters which are covered by rules 401–403. The argument on appeal challenging the admission of evidence must conform with the objection made during trial. Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 151 (Tex.App.-Corpus Christi 1996, no writ). An objection made during trial which is not the same as an argument urged on appeal presents nothing for appellate review. Id. Therefore, we confine our review to Mendez’s argument that the evidence of the 1992 accident was irrelevant and unfairly prejudicial.

Evidence rules 401–403 provide:

RULE 401. DEFINITION OF “RELEVANT EVIDENCE”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Tex.R. Evid. 401.

RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE

All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.

Tex.R. Evid. 402.

RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex.R. Evid. 403.

Evidence of earlier accidents that occurred under reasonably similar but not necessarily identical circumstances is admissible. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341 (Tex.1998). The requisite degree of similarity is not very high. McInnes v. Yamaha Motor Corp., U.S.A., 659 S.W.2d 704, 710 (Tex.App.-Corpus Christi 1983), aff’d, 675 S.W.2d 185 (Tex.1984).

Nevertheless, it is difficult to say that these two accidents were similar. The 1992 accident occurred at a high speed, the 1994 accident occurred at a low speed. The 1992 accident involved no other drivers, the 1994 accident did involve another driver. In 1992, Mendez was driving a car that was impacted from the front, in 1994 she was driving a van that was impacted from the side.

However, even if the trial court erred in admitting this evidence, we hold that the error probably did not lead to the rendition of an improper judgment. In an accident such as this one, where there was evidence that both cars simultaneously moved toward the point of impact at a low speed, the jury has ample basis for concluding that both parties were equally at fault. Similarly, although Mendez sought more in damages than the jury awarded, Baylor presented evidence that significantly undermined Mendez’s damages claims. Mendez had been involved in other car accidents in addition to those in 1992 and 1994, and had also fallen on more than one occasion. These incidents resulted in injuries to her knees, neck, wrist, and back. Mendez admitted that some of these injuries were still bothering her at the time of the 1994 accident, but claimed that they were aggravated by the 1994 accident. Baylor also emphasized inconsistencies between Mendez’s testimony at trial, her deposition, and medical records. Baylor also presented evidence that the knee injury claimed by Mendez’s daughter at trial was not mentioned during the daughter’s medical treatment following the accident, nor in Mendez’s responses to pretrial discovery. We note also that Baylor’s cross-examination regarding the 1992 accident consumes only three pages in the reporter’s record, and Baylor did not refer to it during his closing argument. From these facts, we cannot say that any error in permitting testimony regarding the 1992 accident probably led to the rendition of an improper judgment, and, therefore, no reversible error is shown.

*3 In her second issue, Mendez argues that the trial court erred in admitting an exhibit consisting of records from her employer which contained mention of a workers’ compensation claim she had filed. At trial, Mendez objected on the ground that these records were hearsay, and that the custodian of records lacked the personal knowledge required to authenticate the documents. See Tex.R. Evid. 803(6). However, on appeal, Mendez argues that the probative value of the evidence is substantially outweighted by its prejudicial effect. See Tex.R. Evid. 403. Here again, because the argument on appeal does not conform to the objection at trial, nothing is presented for review. Arroyo Shrimp Farm, 927 S.W.2d at 151.

Mendez’s final issue concerns the admission of two letters written by eye doctors she had seen as a patient. One letter is from Dr. Charles Campbell to Dr. Eliud Fuentes, and the other from Dr. Fuentes to Dr. Campbell. Both letters describe their diagnoses of Mendez’s eyesight problems. On cross-examination, Mendez admitted that she had been prescribed glasses. When challenged evidence is merely cumulative of other similar evidence in the record, no harm is shown and reversal is not required. Southwestern Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 474 (Tex.1998). Although the doctors’ letters give more specific information regarding Mendez’s eyesight problems, they do not add sufficient information such that, even if the trial court erred in admitting them, the inclusion of this evidence probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1).

The judgment of the trial court is affirmed.

	Footnotes
1		The amount of damages recovered is reduced by the percentage of the claimant’s responsibility. Tex. Civ. Prac. & Rem.Code Ann. § 33.012 (Vernon 1997).