TXI Transportation Co. v. Hughes (pdf), No. 07-0541 (Tex. Mar. 12, 2010)(illegal immigrant status
of defendant in deadly wreck suit prejudicial in jury trial, new trial ordered)
[W]e do not agree that evidence of the driver’s illegal status was either relevant or
harmless. Accordingly, we reverse the court of appeals’s judgment and remand the
cause for a new trial.
2nd district (02-04-00242-CV, 224 SW3d 870, 05-24-07)  
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Green, Justice Willett, and Justice Guzman joined, and in Part III of which Justice Wainwright
joined. [
Wainwright delivered an opinion concurring in part and dissenting in part. [pdf]
(Justice Johnson not sitting)
Electronic Briefs in 07-0541 TXI TRANSPORTATION CO. v. HUGHES   

TXI Transportation Co. v. Hughes (Tex. 2010)(Medina)  

Argued October 16, 2008

   Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O’
Neill, Justice Green, Justice Willett, and Justice Guzman joined, and in Part III of which Justice Wainwright joined.

   Justice Wainwright filed an opinion concurring in part and dissenting in part.

   Justice Johnson did not participate in the decision.

   In this wrongful death and survival action, stemming from a multi-fatality vehicular accident, we consider the
reliability of an accident reconstruction expert’s testimony, the legal sufficiency of the evidence supporting the
verdict, and whether the admission of evidence concerning the illegal immigrant status of one of the parties to
the accident was harmful error. The court of appeals, in a divided decision, concluded that the expert’s
testimony was reliable and therefore legally sufficient to support the plaintiffs’ verdict. 224 S.W.3d 870, 888.
The court also held that the driver’s illegal status was relevant impeachment evidence or, alternatively, its
admission was harmless error. Id. at 897. We agree that the trial court did not abuse its discretion in admitting
the expert’s testimony. However, we do not agree that evidence of the driver’s illegal status was either relevant
or harmless. Accordingly, we reverse the court of appeals’s judgment and remand the cause for a new trial.

I. The Litigation

   Several members of the Hughes family were killed when their vehicle collided with an eighteen wheel tractor-
trailer rig heavily loaded with gravel. The accident occurred outside the city of Paradise on Highway 114, a two-
lane highway. At the time of the accident, Kimberly Hughes was driving west toward Paradise with four other
family members in her GMC Yukon. Ricardo Rodriguez, who was driving the gravel truck for TXI Transportation
Company (“TXI”), was traveling east in the opposite direction. For reasons in dispute, the Yukon crossed the
center line into the eastbound lane, collided with the gravel truck and careened down the length of its trailer. At
the gravel truck’s tail end, the Yukon spun sideways into the path of an eastbound Ford pickup. The resulting
collision killed everyone in the Yukon except Hughes’s infant grandson.

   Hughes’s husband and other family members sued Rodriguez and his employer, TXI, for the deaths. After a
seven-day trial, a jury found that Rodriguez’s and TXI’s negligence proximately caused the accident, and
awarded compensatory and exemplary damages. The trial court rendered judgment on the verdict. The court of
appeals set aside the award of exemplary damages, but otherwise affirmed the judgment against Rodriguez
and TXI.1 224 S.W.3d at 881.

    What caused the Yukon to cross the center line into Rodriguez’s eastbound lane was the critical issue at
trial. Both sides relied on accident-reconstruction experts to explain their respective theories. Hughes’s
accident-reconstruction expert opined that the gravel truck crossed the center line first, forcing Hughes to steer
defensively into the eastbound lane where the collision occurred.

   TXI sought to exclude Hughes’s expert, objecting that his opinion was unreliable. TXI also objected to
evidence regarding Rodriguez’s status as an illegal immigrant on grounds of relevance and prejudice. Because
the trial court overruled both objections, the jury learned Rodriguez had previously been deported and had
made several misrepresentations regarding his immigration status to obtain his Texas commercial driver’s
license and his employment with TXI. The dissent in the court of appeals concluded that the trial court had
erred by admitting the expert testimony of Hughes’s accident reconstructionist and the evidence of Rodriguez’s
illegal immigrant status. Id. at 922 (Gardner, J. dissenting). We granted TXI’s petition for review to consider
these issues.

II. The Accident-Reconstruction Expert

   TXI argues the trial court erred by overruling its timely objection to Hughes’s reconstruction expert, Dr. Kurt
Marshek, whom it contends expressed an unreliable opinion that Rodriguez caused the accident by crossing
the center line first.

A. The Standard of Review

   For an expert’s testimony to be admissible, the expert witness must be qualified to testify about “scientific,
technical, or other specialized knowledge,” Tex. R. Evid. 702, and the testimony must be relevant and based
upon a reliable foundation. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). An expert’s testimony
is relevant when it assists the jury in determining an issue or in understanding other evidence. Tex. R. Evid.
702. But, expert testimony based on an unreliable foundation or flawed methodology is unreliable and does not
satisfy Rule 702's relevancy requirement. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556–
57 (Tex. 1995) (discussing Tex. R. Evid. 702).

   When the reliability of an expert’s testimony is challenged, courts “‘should ensure that the [expert’s] opinion
comports with the applicable professional standards.’” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.
2001)(quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725–26 (Tex. 1998)). To aid in that
determination, we have suggested several factors to consider when assessing the admissibility of expert
testimony under Rule 702.2 We have emphasized, however, that these factors are non-exclusive, and that they
do not fit every scenario. Gammill, 972 S.W.2d at 726. They are particularly difficult to apply in vehicular
accident cases involving accident reconstruction testimony. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39
(Tex. 2007) (citing Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006)); see also Gammill,
972 S.W.2d at 727. Nevertheless, the court, as gatekeeper, “must determine how the reliability of particular
testimony is to be assessed.” Gammill, 972 S.W.2d at 726. Rather than focus entirely on the reliability of the
underlying technique used to generate the challenged opinion, as in Robinson, we have found it appropriate in
cases like this to analyze whether the expert’s opinion actually fits the facts of the case. Volkswagen of Am., Inc.
v. Ramirez, 159 S.W. 3d 897, 904–05 ( Tex. 2004). In other words, we determine whether there are any
significant analytical gaps in the expert’s opinion that undermine its reliability. Id.

B. The Expert’s Testimony

   Dr. Kurt Marshek, an emeritus professor of mechanical engineering at the University of Texas, testified for
Hughes. In preparing for his testimony, Marshek reviewed the police accident report and photographs from the
accident scene, visited and took measurements at the accident site, specifically measured the gouge and
scrape marks created by the accident, ran skid tests with an exemplar vehicle and measuring device to
determine the roadway’s coefficient of friction, inspected and photographed the Yukon, collected data on the
Yukon's speed and braking during the five seconds before impact from the vehicle's “black box,” performed a
time-distance analysis, and reviewed the accident scene witnesses’ statements and depositions. Employing this
data, Marshek rendered drawings of the accident site to illustrate his theory of the accident. Marshek’s theory
was that Rodriguez left his lane of travel, crossed over the center line into the westbound lane, and partially re-
entered his eastbound lane before the initial impact with the Yukon. Marshek further concluded Kimberly
Hughes steered sharply left into the eastbound lane to avoid Rodriguez’s gravel truck, which then at least
partially occupied her lane, resulting in the collision in Rodriguez’s eastbound lane.3

   Using the physical evidence, Marshek described his version of the initial collision and each vehicle’s
subsequent movements. The first impact occurred with the gravel truck’s second axle, creating downward
pressure on the Yukon’s tire and forcing the rim to carve a gouge in the eastbound lane six inches from the
center line. Reddish paint and rubber marks on the gravel truck’s tires revealed where the Yukon made contact
with the tires at the second, third, fourth, and fifth axles. Rim and axle damage to the second and fourth axles
demonstrated more substantial contact. After the initial collision, the gravel truck’s significant mass dictated the
Yukon’s direction, forcing the Yukon’s rear end to move clockwise and adopt the gravel truck’s trailer’s angle.
While following this angle, the Yukon’s front left rim first gouged and then scraped the concrete at an angle to
the center line. After hitting the fourth axle, the Yukon’s left rear rim moved back toward the centerline creating
a scrape mark. As it cleared the trailer’s end, the Yukon was fully in its westbound lane, moving slightly
sideways before it re-entered the eastbound lane, colliding with the Ford pickup. Meanwhile, the gravel truck
applied its brakes 128 feet after the point of impact, leaving tire marks on the road until the truck rested 486
feet away.

C. TXI’s Reliability Complaints

   TXI complains Marshek’s testimony is no evidence that Rodriguez proximately caused the collision. Marshek
was the only witness to suggest the gravel truck crossed the center line, but TXI assails his testimony, arguing
that (1) Marshek incorrectly assumed that the gouge mark pinpointed the place on the road where the Yukon
collided with the gravel truck’s second axle; (2) Marshek incorrectly assumed the gouge mark indicated the
angle of the gravel truck at the moment the Yukon struck it; (3) Marshek calculated the gravel truck's position
based on an imprecise witness time estimate contrary to proper protocol; and (4) Marshek selectively relied on
eyewitness line-of-sight testimony.

   TXI claims Marshek’s theory—that the Yukon’s collision with the second axle created the gouge mark—lacks
any factual foundation.4 However, some facts do support Marshek’s theory. The gravel truck’s second and
fourth axles were the most heavily damaged, and thus may signify the most likely collision points capable of
creating the gouge. Marshek acknowledged that the severe damage to the fourth axle could indicate where the
Yukon gouged the road, but rejected the possibility based on the additional scrape marks present in the
eastbound lane after the gouge. Marshek matched these scrapes with subsequent impacts at the third and
fourth axles. While disputing other points, all experts agreed the Yukon began moving counterclockwise back
into the westbound lane after colliding with the fourth axle. As Marshek testified, had the fourth axle collision
caused the gouge, there would have been no further event in the eastbound lane to create the additional
scrape marks before the Yukon re-entered the westbound lane.

   TXI also claims Marshek admitted during cross-examination that the gouge mark did not signify the initial
collision with the second axle. Marshek testified that the Yukon would have traveled eleven feet after colliding
with the second axle, assuming it took one-eighth of a second for its wheel damage to create the gouge mark.
However, Marshek estimated that the actual time from initial impact to the rim gouging the pavement would
normally be one-tenth to one-twentieth of a second, and that here the impact between the Yukon and second
axle created “extra drag” with the larger truck tire applying a downward force on the Yukon’s wheel, inhibiting its
lateral movement. Thus, contrary to TXI’s claim, Marshek did not concede that the gouge mark would have
been made eleven feet from the point of initial impact with the second axle.

   TXI next argues Marshek’s conclusion that the gouge mark reflects the gravel truck’s angle during the
collision with its second axle is unreliable because Marshek did not rule out the possibility the gouge mark might
have been created during subsequent impacts with the gravel truck’s tires and axles. An expert’s failure to rule
out alternative causes of an incident may render his opinion unreliable. Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 720 (Tex. 1997). However, that is not the case here. Marshek pointed to scrape marks and other
physical evidence to conclude the gouge mark occurred during the collision with the gravel truck’s second axle,
which effectively eliminated other causes of the gouge mark. He also testified the additional scrapes were
created by the Yukon and angled in roughly the same direction as the gouge mark.

   Marshek’s gouge-mark-angle theory finds support in the physical evidence. As Marshek explained, the
Yukon weighs one-sixteenth of the gravel truck, making the collision analogous to a fly hitting a boulder. The
gravel truck’s weight was distributed along the trailer, so when the Yukon impacted the gravel truck’s tires and
axles it conformed to the trailer’s angle, gouging and scraping the road at an angle to the center line. Further,
Marshek found additional support in the angle of the gravel truck’s brake marks. He testified the direction and
length were consistent with the gouge mark angle and consistent with the gravel truck re-entering its eastbound
lane. Moreover, Marshek tried to line up the gouge mark and the brake marks using the assumption that the
gravel truck remained in its eastbound lane. He concluded the brake marks would not line up unless Rodriguez
executed a dangerous steering maneuver likely resulting in a rollover or spillage that did not occur.

   TXI also contends Marshek incorrectly estimated the gravel truck’s position by distorting Rodriguez’s
testimony and ignoring accepted accident reconstruction protocol. Rodriguez testified that he turned the gravel
truck to the right in an attempt to avoid the collision, but his estimates of how long he turned varied from
“probably one second or less” to “two or three seconds, I think.” TXI argues Marshek distorts Rodriguez’s
testimony by relying on these statements, yet rejecting Rodriguez’s assertion that he never crossed the center
line. Further, it contends Marshek violated accident reconstruction protocol by relying primarily on Rodriguez’s
time estimates instead of physical data.

   Marshek’s reliance on Rodriguez’s statements does not distort Rodriguez’s testimony. In City of Keller v.
Wilson, we said that “evidence cannot be taken out of context in a way that makes it seem to support a verdict
when in fact it never did.” 168 S.W.3d 802, 812 (Tex. 2005)(citing Bostrom Seating, Inc. v. Crane Carrier Co.,
140 S.W.3d 681, 684–85 (Tex. 2004)). We provided an example: “If a witness’s statement ‘I did not do that’ is
contrary to the jury’s verdict, a reviewing court may need to disregard the whole statement, but cannot rewrite it
by disregarding the middle word alone.” City of Keller, 168 S.W.3d at 812. Rodriguez made two statements: (1)
he did not move out of his lane, and (2) he turned right immediately before the collision. Rather than cherry-
picking parts of Rodriguez’s testimony or twisting its meaning, Marshek simply illustrated a possible
inconsistency in Rodriguez’s testimony based on his review of the physical evidence.

   Marshek’s use of Rodriguez’s testimony also did not violate accepted accident reconstruction protocol.
According to TXI’s testifying expert, John Painter, an accident reconstruction specialist uses witness statements
to help fill gaps after the specialist analyzes the physical data. Painter acknowledged eyewitness statements
assist in reconstructing an accident, but implied such statements cannot be an expert’s primary data source. As
discussed above, Marshek based the gravel truck’s position on the physical evidence—the gouge mark angle,
the subsequent scrapes’ angles, and the gravel truck’s brake marks—using Rodriguez’s testimony solely to
bolster his theory. Although his time estimates changed, Rodriguez consistently maintained that he turned to
the right before the collision. Given the gravel truck’s speed, Marshek concluded that even with only one
second of movement (Rodriguez’s lowest estimate), Rodriguez would have started the turn from the Yukon’s

   TXI similarly complains Marshek distorts another witness’s testimony by crediting the witness’s statement that
he did not see the Yukon until it passed the gravel truck’s trailer while ignoring the same witness’s assertion
that he never saw the gravel truck cross the center line.5 However, Marshek discussed the witness’s testimony
only in response to questions regarding Painter’s line-of-sight analysis.6 When asked whether the possibility
that the gravel truck re-entering the eastbound lane blocked the witness’s view of the Yukon until it cleared the
truck’s trailer supported Marshek’s theory, he responded, “Yes, it would.” However, Marshek did not ground his
theory upon the witness’s testimony, but instead based it on other evidence.

    Lastly, TXI asserts that Marshek conceded his theory to be speculation when he admitted that “nobody
knows what the steering was . . . it’s all total speculation.” Read in context, however, this comment was directed
at Painter’s use of a computer simulation, and its inability to consider the vehicles’ specific steering angles.
Rodriguez testified that he turned to the right immediately before the collision, and Marshek confirmed that
angle from the physical evidence and Rodriguez’s testimony.

D. Conclusion

   Expert testimony is unreliable when “‘there is simply too great an analytical gap between the data and the
opinion proffered.’” Ledesma, 242 S.W.3d at 39 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Expert testimony is also unreliable if it is not grounded in scientific methods and procedures, but is rather
based upon subjective belief or unsupported speculation. Coastal Transp. Co. v. Crown Cent. Petrol. Corp.,
136 S.W.3d 227, 232 (Tex. 2004). Expert testimony lacking a proper foundation is incompetent, City of Keller,
168 S.W.3d at 813, and its admission is an abuse of discretion. Cooper Tire, 204 S.W.3d at 800. A court’s
ultimate task, however, is not to determine whether an expert’s conclusions are correct, but rather whether the
analysis the expert used to reach those conclusions is reliable and therefore admissible. Zwahr, 88 S.W.3d at
629 (citing Gammill, 972 S.W.2d at 728).

   Reliability may be demonstrated by the connection of the expert’s theory to the underlying facts and data in
the case. Two recent cases illustrate the point. Compare Ledesma, 242 S.W.3d at 40–41 (concluding that a
complaint about an expert’s testimony went to its weight, not its admissibility) with Ramirez,159 S.W.3d at 906
(concluding an expert’s testimony was unreliable because it was based on a subjective interpretation of the
facts rather than scientific analysis). Both cases involved auto accidents allegedly caused by the failure of a
defective mechanical part. The question in both cases was whether the failure of the part caused the accident
or resulted from it.

   In Ledesma, a metallurgical and mechanical engineer testified extensively about his theory of how a u-bolt
came to be under-torqued on the rear leaf spring and axle assembly of a Ford truck. 242 S.W.3d at 37 –38. He
further explained how this defect caused the axle assembly to come apart which, in turn, caused the drive shaft
to separate from the transmission. Id. at 37. The expert supported his theory with observations and
measurements from the physical evidence and the manufacturer’s own specifications. Id. at 37–38. Although
there was some question as to when the part failed, the expert pointed to other physical evidence to support
his theory regarding the u-bolt’s failure as the triggering event for the accident. Id. at 38. We concluded that
the manufacturer’s complaints about the expert testimony ultimately went to its weight and not its admissibility.
Id. at 40–41.

   In Ramirez, the expert’s theory was that a bearing defect in the left rear wheel assembly of a Volkswagen
Passat caused a loss of control when that wheel became detached from its axle. 159 S.W.3d at 904. Although
detached from the stub axle, the wheel was found under the rear wheel well after the accident. Id. at 902.
Critical to the expert’s theory was the assumption that the detached wheel remained pocketed in the wheel well
throughout a turbulent and high-speed accident sequence, involving a grass and concrete median and another
vehicle. Id. at 904. The expert proposed the “laws of physics” explained his assumption, but did not connect his
theory to any physical evidence in the case or to any tests or calculations prepared to substantiate his theory.
Id. at 904–06. We concluded the expert’s testimony was unreliable because it was “not supported by objective
scientific analysis” but rather rested upon the expert’s “subjective interpretation of the facts.” Id. at 906. As we
have repeatedly said, “‘a claim will not stand or fall on the mere ipse dixit of a credentialed witness.’” City of San
Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.

   Marshek’s testimony here, however, was neither conclusory nor subjective. His observations, measurements,
and calculations were, as in Ledesma, tied to the physical evidence in the case which likewise provided support
for his conclusions and theory. Marshek’s expert testimony thus meets our standard for reliability, and the trial
court therefore did not abuse its discretion by admitting the testimony.

III. The Illegal Immigrant Issue

   TXI next argues that it was error to admit evidence of Rodriguez’s immigration status and his
misrepresentation of that status in order to live and work in this country. TXI complains that Rodriguez’s status
as an illegal immigrant was irrelevant to any issue in the case. TXI asserts instead that Rodriguez’s status was
impermissibly used to inflame the jury and impeach Rodriguez’s credibility. In sum, TXI submits that repeated
questions on this subject prejudiced its defense and effectively denied it a fair trial.

   Hughes argues, however, that Rodriguez’s misrepresentations about his qualifications and experience as a
commercial truck driver were relevant to claims of negligent hiring and negligent entrustment. In particular, he
relies on the Federal Motor Carrier Safety Regulation Act (FMCSRA), which defines mandatory employment
checks motor carriers must make when hiring new drivers. Under these regulations, a carrier must ensure that
prospective drivers have a commercial license, have a working knowledge of English, and possess the training
or experience to safely operate a commercial vehicle. 49 C.F.R. §§ 383.23, 391.11(b)(2)–(7), 391.15.

A. The Negligent-Hiring/Negligent-Entrustment Claim

   In a negligent-hiring or negligent-entrustment claim, a plaintiff must show that the risk that caused the
entrustment or hiring to be negligent also proximately caused plaintiff’s injuries. See Fifth Club, Inc. v. Ramirez,
196 S.W.3d 788, 796 (Tex. 2006) (stating “[n]egligence in hiring requires that the employer’s ‘failure to
investigate, screen, or supervise its [hirees] proximately caused the injuries the plaintiffs allege’”(quoting Doe v.
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995))); Schneider v. Esperanza Transmission
Co., 744 S.W.2d 595, 596–97 (Tex. 1987). To sustain such a claim based on a failure to screen, a plaintiff
must show that anything found in a background check “would cause a reasonable employer to not hire” the
employee, or would be sufficient to put the employer “on notice that hiring [the employee] would create a risk of
harm to the public.” Fifth Club, 196 S.W.3d at 796–97. The plaintiff must also prove that the risk that caused
the entrustment or hiring to be negligent caused the accident at issue. Schneider, 744 S.W.2d at 597.
Therefore, a plaintiff will not succeed on a negligent entrustment or hiring claim where an investigation would
not have revealed the risk. See, e.g., Doe, 907 S.W.2d at 477 (finding the failure to prove negligent hiring as a
matter of law because screening would not have indicated a specific risk); Fifth Club, 196 S.W.3d at 796
(noting a background check might only have shown that the employee was violating terms of employment with
another employer, but not the employee’s proclivity for violence).

   We have said a claim for negligent hiring or entrustment cannot lie if “[t]he risk that caused the entrustment
to be negligent did not cause the collision,” Schneider, 744 S.W.2d at 597, and if a “defendant’s negligence did
no more than furnish a condition which made the injury possible.” Doe, 907 S.W.2d at 477. Here, Rodriguez’s
immigration status did not cause the collision, and was not relevant to the negligent entrustment or hiring
claims—even if TXI’s failure to screen, and thus its failure to discover his inability to work in the United States,
“furnished [the] condition” that made the accident possible. Id. We agree with the court of appeals “that neither
Rodriguez’s status as an illegal alien or his use of a fake Social Security number to obtain a commercial driver’s
license created a foreseeable risk that Rodriguez would negligently drive the gravel truck.” 224 S.W.3d at 914.

B. Use of Immigration Status as Impeachment Evidence

   The court of appeals concluded, however, that the evidence of Rodriguez’s immigration status was
nevertheless admissible “to impeach his contrary trial testimony.” 224 S.W.3d at 897. This impeachment
apparently related to Rodriguez’s trial testimony that he never lied to get a driver’s license and did not know
whether he had a legal right to work in the United States. Id. at 897 n.32. Relying on Texas Rule of Evidence
801(e)(2)(A), the court concluded that Rodriguez, as a party, could be impeached “with evidence of his own
prior verbal statements.” Id. at 897. The court further concluded that, because the statements of a party are
not hearsay, see id., it was unnecessary to “address complaints that Rodriguez’s immigration status was not
relevant and was more prejudicial than probative.” Id. at 897 n.32. We fail to see the connection.

   Rule 801(e)(2)(A) provides that a party admission is not hearsay. Whether impeachment evidence is
hearsay, however, has nothing to do with the relevancy requirement in Rules 401 and 402, or Rule 403's
requirement that evidence should be excluded if its prejudicial effect substantially outweighs any probative
value. See Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (stating that,
“subject to other Rules of Evidence that may limit admissibility [citing, among other evidentiary rules, Rules 402
and 403], any statement by a party-opponent is admissible against that party”); Willover v. State, 70 S.W.3d
841, 846 n.9 (Tex. Crim. App. 2002) (noting that non-hearsay “still must meet other requirements for
admissibility, such as relevance”). Thus, the observation that Rodriguez’s statements are not hearsay neither
establishes their admissibility nor explains why other witnesses were permitted to be questioned about
Rodriguez’s immigration status, or why extrinsic evidence was admitted on the subject.

C. The Error

   Although Rodriguez’s statements about his immigration status may have been offered for impeachment as
prior inconsistent statements, they were not admissible for at least two different reasons. First, Rodriguez’s
immigration status was clearly a collateral matter, that is, a matter that was “not relevant to proving a material
issue in the case.” Poole v. State, 974 S.W.2d 892, 905 (Tex. App.—Austin 1998, pet. ref’d). Rodriguez’s
immigration status clearly was not a material part of the plaintiffs’ case; it was not something the plaintiffs had to
prove to prevail. See Bates v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979) (stating that the “test as to
whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his
case”). As a collateral matter—not relating to any of plaintiffs’ claims on the merits, and merely serving to
contradict Rodriguez on facts irrelevant to issues at trial—it was inadmissible impeachment evidence. See
Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990) (stating parties may not impeach on collateral or
immaterial matters); Delamora v. State, 128 S.W.3d 344, 363 (Tex. App.—Austin 2004, pet. ref’d) (noting “[a]
party may not cross-examine a witness on a collateral matter, then contradict the witness’s answer”).

   The immigration-related evidence was also inadmissible under Texas Rule of Evidence 608(b). This rule
provides that “specific instances of the conduct of a witness, for the purpose of attacking . . . the witness’s
credibility, . . . may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”
Tex. R. Evid. 608(b); see Tex. R. Evid. 404(b) (governing admissibility of prior acts). The rule “reflects a
general aversion in Texas to the use of specific instances of conduct for impeachment.” David A. Schlueter &
Robert R. Barton, Texas Rules of Evidence Manual § 608.02[3][b] at 537 (8th ed. 2009). For over 150 years,
“Texas civil courts have consistently rejected evidence of specific instances of conduct for impeachment
purposes, no matter how probative of truthfulness.” Cathy Cochran, Texas Rules of Evidence Handbook 597
(7th ed. 2007-08) (citing Boon v. Weathered’s Adm’r, 23 Tex. 675, 679 (1859) and other Texas cases). Courts
in other jurisdictions have similarly held that a witness’s immigration status is not admissible to impugn the
witness’s character for truthfulness.7

   The only exception to this general prohibition is for certain criminal convictions. Texas Rule of Evidence 609
permits evidence of a criminal conviction for impeachment purposes if the conviction is not more than ten years
old, is a felony or involves moral turpitude, and is more probative than prejudicial. Tex. R. Evid. 609(a). As the
dissenting justice in the court of appeals observed, Rodriguez’s immigration conviction does not meet this
criteria. 224 S.W.3d at 930 (Gardner, J., dissenting). It was therefore error to admit evidence of Rodriguez’s
immigration status and deportation. The court of appeals nevertheless concluded that, even if it were error to
admit this evidence, it was not harmful. 224 S.W.3d at 897.

D. The Harm

   The erroneous admission of evidence is harmless unless the error probably caused the rendition of an
improper judgment. Tex. R. App. P. 44.1. Probable error is not subject to precise measurement, but it is
something less than certitude; it is a matter of judgment drawn from an evaluation of “the whole case from voir
dire to closing argument, considering the ‘state of the evidence, the strength and weakness of the case, and
the verdict.’” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (quoting Standard
Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979)).

   Although the trial court initially granted a motion in limine on immigration matters, it later reversed that ruling,
admitting extensive testimony and extrinsic evidence concerning Rodriguez’s immigration status, including that

•                     was an undocumented Mexican alien who had illegally entered the United States on multiple

•                     invented a false Social Security number, which he used to apply for a Texas commercial driver’s

•                     falsely answered “no” in his deposition when asked if he had ever lied to obtain a Texas driver’s

•                     falsely answered “yes” on his TXI employment application when asked if he had the legal right to
work in the United States;

•                     pleaded guilty to and was convicted of a misdemeanor immigration violation, serving four months
in jail; and

•                     was previously deported and ordered not to return to the United States for ten years.

   Rodriguez was also Hughes’s first called witness, and the first questions posed to him concerned his
immigration status. There followed over forty references to Rodriguez’s status, including thirty-five to his status
as an “illegal immigrant” and seven to his prior deportation. TXI representatives were also cross-examined
regarding whether they owed a “duty” to the public to prevent an “illegal” from driving a TXI truck:

•                     “Do you think he is entitled to drive here if he’s illegally here?”

•                     “And you don’t think you owe any duty . . . to the public . . . to the people who are driving up and
down [Highway] 114 . . . to decide whether he’s illegal or not?”

•                     “Mr. Rodriguez is still illegal in the United States, is he not? . . . Will anybody ever turn him in, or
will he just continue to drive for TXI?”

   The investigating DPS trooper was asked whether she knew Rodriguez was “in this country illegally.”
Additionally, there were thirty-two references to Rodriguez’s misconduct in using a “falsified” Social Security
number, sixteen references to Rodriguez’s commercial driver’s license being “invalid” or “fraudulently obtained,”
and seven references that Rodriguez was a “liar” who had lied on his TXI employment application. A TXI
representative was pointedly questioned about whether Rodriguez might also have lied in denying responsibility
for the accident:

•                     “Do you think Mr. Rodriguez lied to . . . enter the United States?”

•                     “Are you telling this jury that you don’t know whether he lied to get into the United States?”

•                     “Now do you think that Mr. Rodriguez would lie when it relates to driving a rock truck?”

•                     “Did you ever consider . . . and I want you to face this jury and tell this jury, did you ever consider
whether Mr. Rodriguez might have lied about how this accident occurred?”

TXI complains that the repeated references to Rodriguez’s immigration problems and alleged
misrepresentations were inflammatory and deliberately calculated to cause the jury to disbelieve Rodriguez.

   TXI further objected to the trial court’s charge, complaining that the broad-form negligence question was
misleading in this particular case and that the negligence question should instead include Hughes’s theory of
the accident’s cause—that Rodriguez caused the accident by first crossing over into the opposing lane of
traffic. The trial court refused TXI’s requested substitutions, which TXI complains was harmful because it
allowed Hughes to disguise his real claim—that Rodriguez was negligent for driving without a right to be in this
country and that TXI was negligent for hiring an illegal alien. The dissenting justice in the court of appeals
concluded that Hughes’s “repeated injection into the case of Rodriguez’s nationality, ethnicity, and illegal-
immigrant status, including his conviction and deportation, was plainly calculated to inflame the jury against
him.” 224 S.W.3d at 931 (Gardner, J., dissenting). We agree.

   Even assuming the immigration evidence had some relevance, its prejudicial potential substantially
outweighed any probative value. Even in instances where immigration status may have limited probative value
as to credibility, courts have held that such evidence is properly excluded for undue prejudice under Rule
403.8 The only context in which courts have widely accepted using such evidence for impeachment is in
criminal trials, where a government witness’s immigration status may indicate bias, particularly where the
witness traded testimony for sanctuary from deportation.9

IV. Conclusion

   Hughes faced a difficult conceptual burden. He had to convince a jury that a collision involving on-coming
traffic, that unquestionably occurred in the eastbound lane of Highway 114, was the fault of Rodriguez, the
eastbound driver. The task was all the more difficult because Rodriguez possessed a clean driving record and
commercial driver’s licenses from both Texas and Mexico. Hughes had some evidence of how Rodriguez might
have been at fault for the collision in his lane, but the issue was hotly contested.

   The record indicates that Hughes sought to hedge his theory by calling attention to Rodriguez’s illegal
immigration status whenever he could. Such appeals to racial and ethnic prejudices, whether “explicit and
brazen” or “veiled and subtle,” cannot be tolerated because they undermine the very basis of our judicial
process. Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 864 (Tex. App.—San Antonio 1990, writ
denied); see also Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889) (“Cases ought to be tried in a court of justice
upon the facts proved; and whether a party be Jew or gentile, white or black, is a matter of indifference.”);
Penate v. Berry, 348 S.W.2d 167, 168-69 (Tex. Civ. App.—El Paso 1961, writ ref’d n.r.e.) (reversing judgment
against illegal alien in vehicle collision case because of “numerous remarks” about alien status). We conclude
that the trial court erred by admitting evidence impugning Rodriguez’s character on the basis of his immigration
status. Such error was harmful, not only because its prejudice far outweighed any probative value, but also
because it fostered the impression that Rodriguez’s employer should be held liable because it hired an illegal

   For the reasons stated, the judgment of the court of appeals is reversed and the cause is remanded to the
trial court for a new trial.


David M. Medina


March 12, 2010


1 Aurelio Melendez, who owned the gravel truck and leased it to TXI, was also sued and found liable by the jury
under a negligent-entrustment theory. The court of appeals reversed the judgment against Melendez, and
Hughes has not appealed that decision. 224 S.W.3d at 917–18.

2 These factors include the following: (1) the extent to which the theory has been or can be tested; (2) the
extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has
been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the
underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or technique. Robinson, 923 S.W.2d at 557.

3 Marshek testified that he calculated the relative positions of the vehicles and approximately where the Yukon
was on the road when Hughes made her decision to turn left by using the vehicles’s speeds and a standard
perception time factor. Marshek theorized the gravel truck was still moving into the westbound lane when
Hughes made her evasive steering decision, and he also noted a large ditch to Hughes’s right.

4 TXI’s accident reconstruction expert and Marshek dispute whether the Yukon’s rim created a gouge mark
when the left front tire impacted with the gravel truck’s tire at the second or fourth axle. The difference is
significant because only a gouge produced by the impact at the second axle would be consistent with the
gravel truck crossing the center line and causing the accident.

5 This witness was a passenger in the Ford pickup that was following the gravel truck and ultimately collided
with the Yukon. According to Painter, TXI’s expert who performed a line-of-sight analysis of the accident scene,
the witness would have seen the Yukon before it careened off the rear of the gravel truck’s trailer. The witness
testified, however, that he did not see the collision and did not see the Yukon until it came off the trailer. By his
own estimate, the witness was about 300 yards behind the gravel truck. The witness also qualified his testimony
about the gravel truck not crossing the center line by saying “[n]ot to my knowledge” multiple times. In City of
Keller, we said “courts must view the evidence in the light favorable to the verdict, crediting favorable evidence
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” 168 S.W.
3d at 807. Under this standard, the jury could reasonably have disregarded this witness’s testimony because it
was inconclusive.

6 Because the witness testified he was watching the gravel truck and that he did not see the Yukon until it
cleared the trailer, his testimony suggests the gravel truck was over the center line, blocking his view of the

7 See Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207–08 (E.D.N.Y. 1996) (“Ford has cited no authority,
and the court is aware of none, to support the conclusion that the status of being an illegal alien impugns one’s
credibility. Thus, by itself, such evidence is not admissible for impeachment purposes.”); First Am. Bank v. W.
Dupage Landscaping, Inc., No. 00-C-4026, 2005 WL 2284265, at *1 (N.D. Ill. Sept. 19, 2005) (“[T]he court will
not allow impeachment of witnesses on the basis of a witness’s undocumented status.”); Hernandez v. Paicius,
134 Cal. Rptr. 2d 756, 761–62 (Cal. Ct. App. 2003) (finding immigration status evidence inadmissible to attack
a party’s credibility); Castro-Carvache v. I.N.S., 911 F. Supp. 843, 852 (E.D. Pa. 1995) (“[A]n individual’s status
as an alien, legal or otherwise, however, does not entitle the Board to brand him a liar.”); Figeroa v. I.N.S., 886
F.2d 76, 79 (4th Cir. 1989) (accord).

8 See Maldonado v. Allstate Ins. Co., 789 So.2d 464, 466, 470 (Fla. Ct. App. 2001) (reversing judgment on jury
verdict when immigration status and false Social Security number improperly became “a central feature” of trial;
court held that any “limited probative value” on the issue of legal residence in Florida “was thoroughly
outweighed by unfair prejudice, confusion of the issues, and misleading of the jury”); Clemente v. State, 707 P.
2d 818, 829 (Cal. 1985) (holding immigration status, “even if marginally relevant [on damages issues], was
highly prejudicial”); Diaz v. State, 743 A.2d 1166, 1184 (Del. 1999) (finding that even if a witness’s concern
about immigration status was relevant to impeach her, the court still must “determine if the probative value of
that immigration status . . . is outweighed by any unfair prejudice”); Klapa v. O&Y Liberty Plaza Co., 645 N.Y.S.
2d 281, 282 (N.Y. Sup. Ct. 1996) (precluding “evidence which would indicate a plaintiff’s immigration status,”
because “whatever probative value illegal alien evidence may have [as to damage calculations] is far
outweighed by its prejudicial impact”); Gonzalez v. City of Franklin, 403 N. W.2d 747, 759-60 (Wis. 1987)
(affirming exclusion of illegal alien status, which had only “speculative or conjectural” relevance to damage
issues but carried “obvious prejudicial effect”); see also People v. Martin, No. B164978, 2004 WL 859187, at *6
(Cal. Ct. App. Apr. 22, 2004) (“Although by definition a person illegally in this country has most likely engaged
in some type of subterfuge, the connection between that conduct and credibility of testimony is tenuous. . . . At
the same time, the prejudice from such evidence is manifest and substantial. There is unequivocally an
inherent bias among certain segments of society against illegal immigrants.”); Romero v. Boyd Bros. Transp.
Co., No. 93-0085-H, 1994 WL 287434, at *2 (W.D. Va. June 14, 1994) (“The danger of a jury unfairly denying
Mr. Hurtado relief based on his status alone outweighs the probative value of the evidence that he acted
dishonestly in the past.”).

9 See, e.g., State v. Ferguson, 796 A.2d 1118, 1130–31 (Conn. 2002); People v. Turcios, 593 N.E.2d 907,
918–19 (Ill. App. Ct. 1992).