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Herrera v. City of San Antonio3/3/1999
AFFIRMED
Anna Herrera appeals a take-nothing judgment rendered in favor of the City of San Antonio in her wrongful death claim. She contends the trial court erred by giving the parties an extra peremptory strike and by admitting the City's expert testimony. Finding no error, we affirm.
Background
When Nadia Herrera lost control of her car on a rainy day, she struck a utility pole and was killed. Her mother, as Nadia's personal representative and as next friend of Nadia's child, sued the City. While Anna Herrera blamed the accident on road conditions, the City alleged Nadia was at fault. A jury found Nadia eighty percent negligent and the City twenty percent negligent.
Peremptory Challenges
In her third point of error, Herrera argues the trial court erred by giving the parties an extra peremptory strike after each side had exercised its original strikes. See Tex. R. Civ. P. 233 (permitting each party six peremptory challenges in a civil suit tried in district court). In rebuttal, the City maintains Herrera waived error. We agree with the City.
To preserve a complaint about peremptory challenges, a party must object before the jury is empaneled by showing it was forced to accept an objectionable juror. See Smith v. Irvin, 7 S.W.2d 926, 929 (Tex. Civ. App.-Waco 1928, no writ); see also Hallett v. Houston N.W. Med. Ctr., 689 S.W.2d 888, 889-90 (Tex. 1985) (regarding challenges for cause). Because Herrera did not show she was forced to accept an objectionable juror until she filed a motion for new trial, she waived her complaint. Accordingly, we overrule Herrera's third point of error.
Reliability of the City's Experts
In her first point of error, Herrera asserts the trial court erroneously admitted the testimony of Charles Ruble. Similarly, in her second point of error, Herrera alleges the court erroneously admitted the testimony of Shelton Spears. We disagree with both arguments.
1. Standard and Scope of Review
We review the trial court's decision to admit scientific expert testimony with the abuse of discretion standard. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). We therefore ask whether the trial court's decision was made without reference to any guiding rules or principles, or whether the decision was arbitrary or unreasonable. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
In deciding to admit scientific evidence, the trial court must find it both relevant and reliable. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). To test reliability, the court may consider the following non-exclusive factors: (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 that have been made of the theory or technique. Robinson, 923 S.W.2d at 557.
2. Witness Ruble
At trial, Herrera objected to the testimony of Charles Ruble on the basis of reliability, but the court declined to hold a reliability hearing. Herrera contends the denial of a Robinson hearing is automatically reversible error. We disagree. Although Robinson suggests reliability should be examined outside the jury's presence, 923 S.W.2d at 558, any error in the failure to hold a hearing is harmless if the evidence otherwise establishes reliability. See Reid v. Sta
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