Court of Appeals of Texas, Twelfth District, Tyler
from the County Court at Law of Van Zandt County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Beth Browder appeals from a take nothing judgment rendered
after a jury trial in her personal injury suit against
Derrick Jace Peel. In her sole issue, Browder complains of
the trial court's ruling on the admissibility of certain
evidence. We affirm.
sued Peel alleging that she sustained personal injuries and
property damage when Peel's vehicle struck Browder's
vehicle from behind. The jury determined that both
parties' negligence proximately caused the accident,
attributing fifty-one percent of the negligence to Browder
and forty-nine percent to Peel. The trial court rendered a
take nothing judgment. Browder appeals.
sole issue, Browder asserts that the trial court erred in
failing to admit Peel's deposition testimony. Citing Rule
of Evidence 107, the rule of optional completeness, she
argues that she should have been allowed to offer into
evidence Peel's entire deposition because the defense
offered excerpts from the deposition. She further argues that
when a party fails to appear at trial but does appear for a
deposition, after the court rules on objections, all fairness
dictates that his deposition should be admitted.
admission or exclusion of evidence is a matter within the
sound discretion of the trial court. City of Brownsville
v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Rule of
Evidence 107 provides in pertinent part that, if a party
introduces part of a recorded statement, an adverse party may
inquire into any other part on the same subject. Tex. R.
Evid. 107. It further provides that an adverse party may
introduce any other recorded statement that is necessary to
explain or allow the trier of fact to fully understand the
part offered by the opponent. Id. Rule 107 is
designed to guard against the possibility of confusion,
distortion, or false impression that could be created when
only a portion of evidence is introduced. Crosby v.
Minyard Food Stores, Inc. 122 S.W.3d 899, 903 (Tex.
App.-Dallas 2003, no pet.).
clearly appears to be necessary to the due administration of
justice, the court may permit additional evidence to be
offered at any time. Tex.R.Civ.P. 270. It is within the sound
discretion of the court to allow a party to reopen his case
after having rested. Smart v. Mo.-Kan.-Tex. R.R.
Co., 560 S.W.2d 216, 217 (Tex. Civ. App.-Tyler 1977,
writ ref'd n.r.e.). There must be a showing of diligence
on the part of the moving party in making such a request.
Id. In determining whether to grant a motion to
reopen, the trial court also considers if the proffered
evidence is decisive, reception of such evidence will cause
undue delay, and granting the motion will cause an injustice.
Karam v. Brown, 407 S.W.3d 464, 472-73 (Tex. App.-El
Paso 2013, no pet.).
did not attend the trial. Browder did not call Peel to
testify either live or by deposition. During presentation of
evidence for the defense, Peel's counsel read part of
Peel's deposition testimony, including the part where he
described the accident. Counsel announced "that
concludes the reading of Jace Peel's deposition for
defendant." The court inquired of Browder's counsel,
"your cross-examination of Mr. Peel's
deposition?" Counsel responded, "No, [y]our
Honor." Defendant rested and both sides closed. They
discussed the charge and adjourned for the day.
following morning, they completed their charge conference and
Browder's counsel raised the issue of admission of the
proposed exhibits. He said that he "did offer all of the
depositions." He further argued that, since defense
counsel read from Peel's deposition, "for optional
completeness, " he suggested that deposition should be
in the record. He added that, "for appeal purposes,
" Peel's complete deposition should be in the
record. Counsel also explained that he was surprised that
Peel did not appear at trial. In ...