Full opinion text
OPINION SUE WALKER, Justice. I. Introduction This is a wrongful death and survival action stemming from a collision on Highway 114 between a westbound Yukon driven by Kim Hughes and an eastbound gravel truck driven by Ricardo Rodriguez. The gravel truck was owned by Aurelio Melendez and leased to TXI Transportation Company. The passengers in the Yukon were Joyce Watkins (Kim’s mother), Afton Hughes Royse (Kim’s daughter who was pregnant with twins), Shiloh Hughes (Kim’s son), and Jagr Royse (Kim’s grandson). As a result of the Yukon’s “sideswipe” collision with the gravel truck, the Yukon traveled down the length of the gravel truck, spun off the back of the gravel truck, veered into the oncoming lane of traffic, and was “T-boned” by a Ford F-250. Of the Yukon’s passengers, only Jagr Royse survived the accident. Following a seven-day trial, involving testimony from twenty-eight witnesses, a jury found that Rodriguez had negligently operated the gravel truck, that TXI had negligently hired Rodriguez, and that Melendez had negligently entrusted the gravel truck to Rodriguez. After disregarding certain jury findings, the trial court entered a judgment against Appellants for $15,787,190 in compensatory damages and $6,658,000 in exemplary damages. Appellants raise six issues encompassing seventeen individually asserted subissues on appeal. For the reasons set forth below, we will reverse the exemplary damages award and render judgment that Appellees take nothing on their claim for exemplary damages. We will also reverse the judgment against Melendez and render judgment that Appellees take nothing on the negligent entrustment claim asserted against him. We will affirm the remainder of the trial court’s judgment. II. Factual Background On December 17, 2002, the Hughes family was returning to Paradise, Texas, after grocery shopping in Fort Worth. Kim Hughes was driving westbound on Highway 114. Four vehicles were traveling eastbound on Highway 114 in the vicinity of the accident. First, Cody Jobe was driving his 1989 Firebird Trans Am — the easternmost vehicle of the four traveling eastbound — and had driven onto the right-hand shoulder in preparation to turn right off Highway 114 into his father’s driveway. Second, the gravel truck driven by Rodriguez was likewise traveling eastbound on Highway 114 approximately one-half mile behind Jobe. The gravel truck had an overweight permit, and its trailer was loaded with rocks so that it weighed approximately 84,000 pounds. Third, the Ford F-250 pickup truck driven by Jerry Larance and pulling a twenty-foot trailer was traveling eastbound on Highway 114 approximately 200 yards behind the gravel truck. And finally, a Chevy Lumina driven by Michelle Wyndham was also traveling eastbound on Highway 114, following the pickup closely and getting ready to pass. Jobe testified that, after he pulled onto the shoulder of Highway 114 and was preparing to turn into his father’s driveway, he glanced in his rearview mirror and saw the gravel truck behind him. Jobe turned right into his father’s driveway and, when he parked and exited his car, he saw that a wreck had occurred right in front of his dad’s mailbox. Jobe ran back towards the accident scene to help. Jobe saw that Rodriguez, the driver of the gravel truck, had exited the gravel truck and had used a cell phone to call 911. Rodriguez handed the cell phone to Jobe saying, ‘You need to talk to them because they can’t understand me.” Jobe spoke with the 911 dispatcher and “[checked] pulses.” Rodriguez told Jobe at the scene that “the Yukon or Suburban, whatever it was, was coming westbound, had a blowout, and hit him in the back of his truck, and then swerved back into the lane, and I guess that’s where the Ford T-boned her there.” Rodriguez testified that he was driving a gravel truck for TXI, hauling a load on Highway 114 from Bridgeport to Paradise. According to Rodriguez, he never left his lane of traffic. Rodriguez testified that when he saw the Yukon “coming to” him, he turned to the right, toward the shoulder, in an effort to avoid the accident. Rodriguez told Aurelio Melendez, his boss, in a conversation an hour after the accident that he had steered right for two to three seconds prior to the collision. Subsequently, Rodriguez testified that he steered right for only one second prior to the collision. Rodriguez likewise gave different descriptions of the point of initial impact between the gravel truck and the Yukon. He told Melendez that the Yukon had hit at the third axle — the front set of wheels at the back end of the trailer. He told Jobe that the Yukon initially had hit the wheels at the back of his truck — not the trailer. He told the DPS investigator, Trooper Wanda Raney, that the Yukon had hit him on the left, driver’s side, “touching” his tires. Jonathan Kennemer, TXI’s corporate representative, claimed that Rodriguez told him at the accident scene that the Yukon had hit the left front of the TXI truck, knocking off the clearance pole. The gravel truck’s trailer left 358 feet of skid marks on Highway 114, partially documenting its angle of travel as it slowed and stopped on the eastbound shoulder of Highway 114. Drug and alcohol screens performed on Rodriguez immediately after the accident were all negative. Jerry Larance testified that he had just gone through Paradise on Highway 114 and was about 200 yards behind the TXI gravel truck. He did not see the accident. He heard an explosion, looked up, and saw that the impact between the TXI truck and the Yukon had already occurred. Larance said that he did not see either the gravel truck or the Yukon outside of its own lane. The Yukon, after sliding down the side of the gravel truck, emerged from behind the gravel truck, and skidded on its wheel rims into the eastbound lane of traffic. Larance’s pickup “T-boned” the Yukon. George Wilton was a front-seat passenger in Larance’s pickup. He said that he did not see the Yukon until it appeared off the end of the TXI trailer; before that, the trailer had blocked it from view. Wilton did not see either vehicle outside of its proper lane. Finally, Michelle Wyndham testified that she lived in Paradise and on December 17, 2002, was taking her son to a doctor’s appointment in Boyd. She was in a hurry and running late. She approached Larance’s pickup and trailer, intending to pass him. As she pulled out to pass, she saw the Yukon coming towards her. She braked and slid to a stop. She saw Larance hit the Yukon. Wyndham exited her van and heard a baby crying. She approached the Yukon, determined that Jagr was crying, and got him out of the Yukon. Wyndham testified that she never saw the gravel truck at all. III. Admission of Appellees’ Accident Reconstruction Expert’s Testimony and Exclusion of an Opinion of The DPS Trooper In their issue II, Appellants claim that the trial court erred by admitting the testimony of Appellees’ accident reconstruction expert, Kurt Marshek. Appellants filed a pretrial motion to exclude Marshek’s testimony, and the trial court denied it. In subpart F of their issue I, Appellants claim that the trial court erred by excluding Trooper Wanda Raney’s opinion that the accident was caused by a tire blowout on the Yukon and by excluding the accident report prepared by Raney. We address these rulings by the trial court together because they involve the same standard of review. A. Standard of Review Upon objection by the opponent of the evidence, the proponent of expert testimony has the burden to prove that the evidence is admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). The testimony must be shown to be reliable before it is admitted. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). The trial court is required to assess the reliability— not the truth or falsity — of the expert’s opinion. Robinson, 923 S.W.2d at 558. The criteria for assessing reliability vary depending on the type of expert and the nature of the evidence. Gammill, 972 S.W.2d at 726-27; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). There must not be too great an analytical gap between the data or observations and the expert’s conclusions. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904-05 (Tex.2004). The trial court has broad discretion in determining admissibility of an expert’s testimony. Robinson, 923 S.W.2d at 556-57. We can reverse the district court’s determination regarding admission of expert testimony only if the trial court abuses its discretion. Id. at 558. We analyze an alleged abuse of discretion by examining whether the trial court acted without reference to any guiding rules or principles. See id. We cannot find an abuse of discretion merely because we disagree with the trial court’s decision. See id. And we will not reverse a trial court for an erroneous evidentiary ruling, including an evidentiary ruling regarding the admissibility of documentary evidence, unless the error probably caused the rendition of an improper judgment. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.2000); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). B. Reliability of Marshek’s Testimony Here, Appellants claim that Marshek’s testimony fails the second prong of the test governing the admissibility of expert testimony: the requirement that the testimony be based on a reliable foundation. See Helena Chem. Co., 47 S.W.3d at 499. Thus, we limit our analysis to this issue. Marshek explained that in reconstructing this accident, he reviewed the data from the Yukon’s “black box,” obtained a copy of the police report, reviewed photos that were taken of the accident scene, and went to the accident site and took measurements there. The marks on the road made by the collision were still visible when Marshek viewed the scene. He ran skid tests at the accident site to obtain the coefficient of friction on that particular roadway. He inspected the remains of the Yukon. And he reviewed statements made by Rodriguez and others. Marshek generated a drawing of the accident site, two drawings showing how he concluded that the accident had occurred, a freeze-frame drawing showing twelve mini drawings sequencing the collision, and several other exhibits; the trial court admitted all of these exhibits after Appellants indicated that they had no objection. A deep gouge mark in the pavement was made during the collision; this main gouge mark was about a foot inside the eastbound lane and angled westward toward the center line. That is, the westernmost point of the gouge mark was closest to the center line. Marshek opined that prior to the accident the gravel truck had crossed the center line and was either totally or partially in the Yukon’s lane, the westbound lane of traffic. He said that the gravel truck was in the process of returning to its proper lane, traveling into the eastbound lane at the angle represented by the main gouge mark in the road. According to Marshek, when the collision occurred, the truck portion of the gravel truck was back in its proper lane, but the trailer was still at least partially across the center stripe in the westbound lane. The initial point of impact between the gravel truck and the Yukon was at the trailer’s second axle and the Yukon’s front left tire. Photos offered into evidence showed large dents in the rims of the gravel truck’s front wheels at the trailer’s second and fourth axles. Marshek explained that the gouge in the pavement was made “right underneath the [gravel truck’s] second axle where the [Yukon’s left front tire] strikes that tire.” As the Yukon struck the gravel truck-because the gravel truck sat so much higher off the roadway, had larger tires, and weighed so much more than the Yukon — the gravel truck exerted a downward force on the Yukon, and the Yukon’s left front tire “[went] down on its rim.” That rim created the main gouge mark on the pavement. As the lighter Yukon slid down the side of the gravel truck’s fully-loaded 84,-000 pound trailer, the Yukon was forced into traveling at the same angle that the trailer was traveling in its return to the eastbound lane. Photos offered into evidence show maroon or red paint from the Yukon on the trailer’s tires and black rubber from the trailer’s tires down the entire left side of the Yukon. According to Mar-shek, the gouge mark establishes the direction that the trailer was traveling at the time of the accident, that being at an angle from the westbound lane back into its proper, eastbound lane. Photos of the scene showed that the gravel truck made skid marks as it pulled over and stopped on the shoulder. Measurements established that the skid marks began 128 feet from the alleged point of impact — the gouge mark — and that the total distance from impact to the gravel truck’s final stopped position was 486 feet. Marshek explained that if the angle of the skid marks is lined up with the angle of the gouge mark, the resulting path is a smooth right-steer maneuver, moving the gravel truck from partially across the center line to its resting point. He explained that if the gravel truck was not out of its lane across the center fine but instead was centered in its proper lane of traffic and it turned right prior to the impact as Rodriguez said, the gravel truck would have had to perform a right maneuver and then an immediate and quick left maneuver in order to line up with the skid marks made by the trailer. Marshek opined that the direction changes required to perform the steer right, then quick-left maneuver would be very difficult for a fully loaded gravel truck to perform and agreed that rock spillage was possible with the right-quick-left maneuver but that no rock spillage occurred here. Marshek explained that, using the speed of the Yukon from the SDM and Rodriguez’s testimony that he was traveling at approximately the speed limit of sixty miles per hour and that he steered right for one to three seconds before the collision occurred, Rodriguez had to have been at least partially over the center line when the accident occurred. If the gravel truck was not over the center line, was traveling the speed limit of sixty miles per hour centered in its own lane, and turned right for one second before the collision — with no quick-left maneuver — its trailer would have been six feet to the right of the gouge mark. For the most part, the remainder of Marshek’s testimony involved analyzing and controverting portions of the testimony of Appellants’ main accident reconstruction expert, John Painter. Appellants’ claim that Marshek’s opinion that the gravel truck was at least partially across the center line at the time of the collision is unreliable for three reasons: first, he wrongly assumed that the gouge mark was the initial point of impact between the vehicles; second, he did not take into account damage and markings on the gravel truck’s cab; and third, he wrongly assumed that the Yukon made the gouge mark while traveling down the left side of the gravel truck’s trailer when the gouge mark could have been made by a rebounding motion by the Yukon. All of the accident reconstruction experts agreed that the main gouge mark on the road was made during the collision in question. The parties disputed, however, the initial point of contact between the vehicles and how the gouge mark was made. Concerning the initial point of impact between the vehicles, Appellants’ second accident reconstruction expert, John Painter, contended that the initial point of impact between the Yukon and the gravel truck was on the gravel truck’s front left bumper. But Appellants’ first accident reconstruction expert, Lee Jackson, testified that the gouge mark represented the initial point of impact between the vehicles. Appellees claimed the initial point of impact was the Yukon’s left front tire hitting the gravel truck’s second axle. Appellants claim that debris found in the roadway east of the gouge mark showed that the point of impact was further east than the gouge mark. Marshek testified that both the Yukon and the TXI truck were traveling approximately eighty-eight feet per second at impact and that an impact at those speeds would scatter debris everywhere. Marshek also testified that the emergency vehicles dispatched to the scene likely drove through and further scattered the debris on the roadway. Concerning how the gouge mark was made, Appellants’ two accident reconstruction experts, Painter and Jackson, contended that the gouge mark was made when the Yukon’s left front tire struck the gravel truck’s trailer at the fourth axle; Appellants’ tire expert Charles Gold testified, however, that the gouge mark was made by the Yukon’s passenger-side left rear tire, not its front tire. Marshek contended the gouge mark was made when the Yukon’s left front tire struck the gravel truck’s second axle. Concerning Appellants’ contention that Marshek erroneously used the main gouge mark as the point of initial impact between the vehicles, the dispute over the vehicles’ point of initial impact is simply a factual one. Marshek and Jackson both personally saw the roadway and unequivocally testified that the main gouge mark represented the point of initial impact between the vehicles. Trooper Wanda Raney equivocated on this point, alternately saying that the gouge mark was the point of initial impact and that the Yukon initially made contact with the gravel truck’s clearance pole. Rodriguez himself equivocated on the point of initial contact between the vehicles. He told Kennemer that the Yukon had hit at the third axle — the front set of wheels at the back end of the trailer. He told Jobe that the Yukon initially hit the back of his truck — not the trailer. He told the DPS investigator, Raney, that the Yukon hit him on the left side “touching” his tires. He told Melendez in a conversation within an hour of the accident that he had tried to avoid a head-on collision, so he had steered as far as he could to his right, and that the Yukon had hit the gravel truck on its third axle. Likewise, the alleged marks on the gravel truck’s cab present a factual issue on the point of initial contact between the vehicles. Appellants claim black marks on the gravel truck’s driver side clearance pole and on the truck’s cab were made by the Yukon’s driver’s side mirror. But Appel-lees point out that the gravel truck had been in another accident before the pictures were taken allegedly showing the black-mark damage to the gravel truck’s cab. Appellees also claim that some of the purported black-mark damage was not visible in the photos tendered by Appellants to document it. Finally, no witness testified that the main gouge mark was made by a “rebounding” motion of the Yukon. Painter testified that it was made when the front left wheel of the Yukon struck the fourth axle of the truck. Thus, Appellants’ complaints concerning the reliability of Marshek’s testimony focus on whether certain disputed facts exist, not on Marshek’s methodology or techniques; Appellants’ challenge to facts disputed at trial does not constitute a true challenge to the reliability of Marshek’s conclusions. Texas has a long history of allowing qualified accident reconstruction experts to testify regarding the way in which an accident occurred. See, e.g., Chavers v. State, 991 S.W.2d 457, 460-61 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Waring v. Wommack, 945 S.W.2d 889, 893 (Tex.App.-Austin 1997, no writ); Trailways, Inc. v. Clark, 794 S.W.2d 479, 483 (Tex.App.-Corpus Christi 1990, writ denied); DeLeon v. Louder, 743 S.W.2d 357, 359 (Tex.App.-Amarillo 1987), writ denied, 754 S.W.2d 148 (Tex.1988); Bolstad v. Egleson, 326 S.W.2d 506, 519 (Tex.Civ.App.-Houston 1959, writ ref'd n.r.e.). At most, the factual disputes that Appellants argue Marshek erroneously premised his opinions on affect the credibility of Marshek’s testimony, not the reliability of his theories. See Ford Motor Co. v. Ledesma, 173 S.W.3d 78, 87-88 (Tex.App.Austin 2005, pet. granted) (holding expert testimony of accident reconstruction concerning mark left on roadway, allegedly by truck’s driveshaft, went to credibility not reliability of expert’s theories); Waring, 945 S.W.2d at 893 (holding no abuse of discretion occurred in admission of accident reconstruction expert’s testimony concerning location of the car and bicycle, the turning arc of the car, the speed of the descending bicycle, the point of impact, and the reaction time of each driver; defendant’s complaint was “more directed to the accuracy of the conclusions reached by the expert than to his methodology or the theory underlying accident reconstruction ... ”). The accuracy of the facts Marshek relied upon was thoroughly challenged by Appellants on cross-examination and through portions of the testimony of Appellants’ own accident reconstruction experts. Therefore, we hold that the trial court did not abuse its discretion by admitting Marshek’s testimony. We overrule Appellants’ issue II. C. Trooper Raney’s Qualifications and the Reliability of Her Causation Opinion Appellants complain that the trial court erred by refusing to admit Trooper Ra-ney’s “opinion testimony or the DPS accident report.” Trooper Raney was the first DPS trooper to arrive at the accident scene, and she prepared an accident investigation report. Under the “Conclusion:” portion of the investigation report, the form instructs the trooper completing it, “Why did this accident happen? Be definite and specific. This is your opinion— Remember no proof is necessary for your opinion.” Under this section of the report, Trooper Raney gave her opinion as to how the accident occurred. Appellees contended at trial that Trooper Raney was not qualified as an accident reconstruction expert to propound an opinion on the cause of the accident and that, in any event, her opinions on possible causes of the collision were unreliable as expressly, by the report’s own completion instructions, not based on any scientific data. Appellants asserted in the trial court, as they do here, that the report was admissible under Texas Rule of Evidence 803(8)(B) and the case of McRae v. Echols, 8 S.W.3d 797, 799 (Tex.App.-Waco 2000, pet. denied). The trial court ruled that Trooper Raney’s opinion of the cause of the accident would not be admitted but that her observations and findings at the scene were admissible. The trial court likewise ruled that the report of Trooper Raney’s investigation was inadmissible; subsequently, however, the trial court admitted several pages of the report into evidence as defense exhibits. The record reflects that during Appel-lees’ case-in-chief, Trooper Raney testified by deposition. Appellees offered a videotaped deposition clip covering approximately three pages in the reporter’s record, Appellants then offered a clip covering approximately six pages in the reporter’s record, and Appellees offered a rebuttal clip covering two pages in the reporter’s record. Neither side asserted objections to any of the video clips. In Appellants’ case-in-chief, Trooper Raney testified live. Trooper Raney testified that this was the first fatality accident that she had handled as a lead investigator. She had been a DPS trooper for eight months and had previously participated in the investigation of six fatality accidents. Three months prior to the accident, Trooper Raney had completed the second of DPS’s six testing levels for accident investigation. Trooper Raney testified concerning her arrival at the accident scene and her observations and findings there, including the gouge mark, the point of impact between the vehicles, maroon paint and black marks that she observed on the gravel truck’s cab and clearance pole, and the paint chips on the roadway east of the gouge mark. She said that she attributed the maroon marks on the left side of the gravel truck’s cab and smokestack and the black marks on the TXI truck’s left-side clearance pole to the collision with the Yukon. She testified that she knew at the outset of her investigation that the Yukon had suffered damage to its tires because both the front and rear passenger side wheels of the Yukon were down to the rims. According to Trooper Raney, some of the pictures of the scene showed “skip marks” where the rims of the Yukon had made divots in the roadway pavement as the Yukon “sideswiped” down the left side of the TXI truck. The bulk of the case law supports Appellants’ position that Trooper Raney’s opinions about the cause of the accident were admissible. See, e.g., Ter-Vartanyan v. R & R Freight, Inc., 111 S.W.3d 779, 781 (Tex.App.-Dallas 2003, pet. denied) (holding police officer trained in accident reconstruction was qualified to give expert opinion on the cause of accident); Sciarrilla v. Osborne, 946 S.W.2d 919, 923-24 (Tex.App.-Beaumont 1997, writ denied) (same); DeLeon, 743 S.W.2d at 359 (permitting investigating officer with accident reconstruction training to testify regarding causation); see also Lingafelter v. Shupe, No. 10-03-00113-CV, 2004 WL 2610515, at *4 (Tex.App.-Waco Nov.17, 2004) (mem.op.) (recognizing that “[t]he opinion of an investigating officer with level two reconstruction training is admissible”), rev’d on other grounds, 192 S.W.3d 577 (Tex.2006). But see Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 891-92 (Tex.App.-Texarkana 2004, pet. denied) (holding police officer not trained in accident reconstruction was not qualified to opine on whose negligence caused the accident); Clark v. Cotten, 573 S.W.2d 886, 886-88 (Tex.Civ.App.-Beaumont 1978, writ ref'd n.r.e.) (holding trial court did not abuse its discretion by excluding opinions of investigating officer who was a regular police officer because he had received no training in accident reconstruction). At the conclusion of trial, Appellants offered Trooper Raney’s complete accident investigation report into evidence as Defense Exhibit 430. The trial court refused to admit it. Generally, accident reports prepared by investigating officers— possessing sufficient training in accident reconstruction — are admissible under Texas Rule of Evidence Rule 803(8) as an exception to the hearsay rule. Tex.R. Evid. 803(8); Sciarrilla, 946 S.W.2d at 923-24; Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 181 (Tex.App.-Amarillo 1992, writ denied) (citing Clement v. Tex. Dep’t of Pub. Safety, 726 S.W.2d 579, 581 (Tex.App.-Fort Worth 1986, no writ)); Porter v. Tex. Dep’t of Pub. Safety, 712 S.W.2d 263, 265 (Tex.App.-San Antonio 1986, no writ). For purposes of our analysis, we will assume that the trial court abused its discretion, as asserted by Appellants, by excluding the testimony of Trooper Ra-ney — that the gravel truck took correct evasive action, that the Yukon veered into Rodriguez’s lane of traffic, concerning the point of impact between the vehicles, and that a blowout on the Yukon caused the accident — and by refusing to admit Trooper Raney’s accident report in its entirety. We review the entire record to determine whether any trial court error in the exclusion of Trooper Raney’s opinion testimony or whether any error in the trial court’s exclusion of Trooper Raney’s accident report probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1) (providing that appellate court may not reverse trial court judgment unless the error probably caused rendition of an improper judgment); Owens-Corning Fiberglas, 972 S.W.2d at 43 (same). Concerning the exclusion of Trooper Ra-ney’s testimony that the gravel truck took correct evasive action, this alleged fact was repeatedly placed before the jury. Rodriguez testified that he steered right before impact to avoid the collision. Melendez, Kennemer, and Painter all testified that Rodriguez had likewise told them that he steered right to avoid the accident. Trooper Raney’s excluded, non-eyewitness testimony that Rodriguez took correct evasive action would have been only cumulative of the evidence and testimony on this issue. Consequently, we cannot hold that the exclusion of Trooper Raney’s testimony that Rodriguez took correct evasive action to avoid the collision probably caused rendition of an improper judgment. Concerning the exclusion of Trooper Ra-ney’s testimony or opinion that the Yukon veered into Rodriguez’s lane of traffic, this fact is virtually undisputed. The question at trial was why. Appellees’ theory of the accident was that Hughes veered into Rodriguez’s lane because Rodriguez was partially or totally over the center line in Hughes’s lane — possibly because he was giving a wide berth to Jobe as Jobe slowed, moved onto the right shoulder, and prepared to turn right from the eastbound lane of Highway 114 — and that because at the point Hughes was required to make a decision regarding whether to steer right or left to avoid the oncoming gravel truck, a ditch and trees lined Highway 114 to her right, so she veered left. Appellants’ theory was that Hughes veered into Rodriguez’s lane because her Yukon suffered a blowout or because she was inattentive. We cannot hold that the exclusion of Trooper Raney’s cumulative testimony as to this undisputed fact probably caused the rendition of an improper judgment. Concerning the alleged exclusion of Trooper Raney’s testimony or opinion as to the point of impact between the vehicles, the record reflects that in fact Trooper Raney did offer testimony concerning the point of impact between the two vehicles. Thus, part of the testimony that Appellants claim was improperly excluded was actually admitted. Concerning the exclusion of Trooper Ra-ney’s opinion that a blowout on the Yukon caused the accident, this possible cause of the accident was placed squarely before the jury by other witnesses’ testimony. Appellants’ expert Charles Gold testified that he had examined the Yukon’s left rear tire and concluded that it had hit something in the road that had cut it. According to Gold, the cut in the Yukon’s left rear tire was 10.5 inches long, caused the tire to immediately deflate, and caused the Yukon to swerve into the gravel truck’s lane of traffic. Likewise, Jobe testified that Rodriguez told him at the accident' scene that he, Rodriguez, believed the Yukon had experienced a blowout. Thus, even without Trooper Raney’s testimony, the issue of whether the accident was caused by a blowout on the Yukon was placed before the jury. Accordingly, the exclusion of Trooper Raney’s opinion that a blowout on the Yukon caused the accident, even if erroneous, did not cause the rendition of an improper judgment. See, e.g., Nissan Motor Co., v. Armstrong, 32 S.W.3d 701, 708-09 (Tex.App.-Houston [14th Dist.] 2000) (holding that even discounting the erroneously admitted expert testimony, in light of the entire record, the jury could have based its affirmative answer “that the throttle cable system on Nissan’s ZX series was defective and that such defect was the cause of Ms. Armstrong’s injury” on other evidence properly admitted), rev’d on other grounds, 145 S.W.3d 131 (Tex.2004). Our analysis applies equally to any harm emanating from the exclusion of Trooper Raney’s accident report. Appellants claim that the trial court’s exclusion of “the DPS findings” contained in the accident report was “reversible error ... because the evidence was germane to a hotly contested key issue.” But Appellees point out the trial court ruled that Trooper Raney could, and she did, testify extensively concerning her factual findings at the scene; also, some pages of the accident report were admitted into evidence. We have thoroughly reviewed the accident report, and it appears that the factual findings in it, as well as the opinions set forth in it, were all admitted into evidence, albeit by testimony and exhibits other than the accident report. Consequently, the exclusion of the accident report, even if erroneous, did not cause the rendition of an improper judgment. See Owens-Corning Fiberglas, 972 S.W.2d at 43. Because any trial court error in excluding Trooper Raney’s opinions or in excluding the accident report did not cause the rendition of an improper judgment, we overrule Appellants’ issue I, subpart F. IV. Batson Challenge In issue I, subpart B, Appellants claim that the trial court reversibly erred by denying their Batson challenge to a peremptory strike exercised against a Hispanic juror, Frank Gonzalez. See Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (declaring that racially motivated use of peremptory challenges in criminal cases violates equal protection and requires reversal); see also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31, 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991) (extending the application of Batson to civil trials). A. Standard of Review Resolution of a Batson challenge involves a three-step process: (1) the opponent of the peremptory challenge must establish a prima facie case of racial discrimination; (2) the party who exercised the strike must provide a race-neutral explanation; and (3) if the striking party does so, the party challenging the strike must prove purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995); Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex.1997). B. Factual Background Appellees exercised a peremptory strike to remove Gonzalez from the jury panel, and no Hispanic jurors served on the jury. Appellants thus established a prima facie case of racial discrimination. Appellees provided two explanations for striking Gonzalez: (1) he was a relative newcomer to Wise County; and (2) he worked for a large corporation, American Airlines. C. Application of the Law to the Present Facts The issue for the trial court and the appellate court at this juncture is the facial validity of the explanation given. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771; Goode, 943 S.W.2d at 445; Brumfield v. Exxon Corp., 63 S.W.3d 912, 916 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). In evaluating whether the explanation offered is race neutral, a court must determine whether the peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons for the peremptory challenge are true. Goode, 943 S.W.2d at 445. A race-neutral explanation means that the challenge was based on something other than the juror’s race. Id. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral for purposes of the analysis at step two. Id. Appellees’ stated reasons for striking Gonzalez meet step two’s requirement of setting forth a race-neutral explanation. Moving to step three of the analysis, Appellants claim that Appellees’ stated reasons for striking Gonzalez are pretextual and that the record establishes purposeful racial discrimination because two other jury panel members whom Appellees did not strike were newcomers to Wise County, because Appellees did not individually question Gonzalez, and because a note by Appellees’ counsel beside the name of another, different jury panel member stated, “Looks Hispanic.” At the third stage of the Batson analysis, the trial court may determine whether the party challenging the strike has proven purposeful discrimination, and the trial court may believe or disbelieve the explanation offered by the party who exercised the peremptory challenge. See id. at 446. Factors the trial court may consider in determining whether the explanation for a peremptory challenge is merely a pretext include (1) explanations not related to the facts of the case; (2) a lack of meaningful questioning of the challenged juror; (3) disparate treatment, i.e., persons with the same or similar characteristics as the challenged juror not being struck; (4) disparate examination of venire members, i.e., questioning a challenged juror to evoke a certain response without asking the same question of other panel members; and (5) an explanation based on a group bias where the trait is not shown to apply to the challenged juror specifically. Brumfield, 63 S.W.3d at 916 (citing Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App.1989)). Here, the record does not demonstrate that the trial court abused its discretion by concluding that Appellants had not established purposeful discrimination by striking Gonzalez. The nonexclusive factors set forth in Brumfield do not weigh in favor of a finding of a pretextual explanation; to the contrary, a venire member’s length of residence in the community and occupation have been held to be proper, race-neutral reasons for exercising a peremptory strike. See, e.g., U.S. v. Lance, 853 F.2d 1177, 1180-81 (5th Cir.1988) (upholding peremptory strike where prosecutor explained that he challenged the venire member because he was “young, single, and without children or ‘a substantial stake in the community ”); Newsome v. State, 829 S.W.2d 260, 266 (Tex.App.-Dallas 1992, no pet.) (upholding peremptory strikes exercised on venire members because they were either a teacher, a recent Dallas resident with few ties to the community, or a former East Coast resident); Hernandez v. State, 808 S.W.2d 536, 544 (Tex.App.Waco 1991, no pet.) (holding that State’s reasons for exercising peremptory strike— that venire member was not employed, appeared to lack community ties, and had worn a T-shirt to court — were sufficient race-neutral reasons); Crawford v. State, 770 S.W.2d 51, 54 (Tex.App.-Texarkana 1989, no pet.) (upholding peremptory strike where prosecutor stated that he struck venire member because she was “young and had not been in the community long”); see also United States v. Milan, 304 F.3d 273, 282 (3d Cir.2002) (holding that district court did not err by finding that'prosecutor was not motivated by discriminatory intent in exercising peremptory strike because prosecutor explained that he struck venire member because she had only lived in area for three years and would not “blend” with other jurors who were more familiar with local geography and more interested in community), cert. denied, 538 U.S. 1024, 123 S.Ct. 1956, 155 L.Ed.2d 869 (2003). Because the trial court did not abuse its discretion by concluding that purposeful discrimination had not been established, ■ we overrule Appellants’ issue I, subpart B. V. Venue In issue I, subpart C, Appellants argue that the trial court erred by denying their motion to transfer venue, which alleged that rock haulers such as Appellants could not obtain a fair trial in Wise County. A. Standard of Review Texas Rule of Civil Procedure 257 allows a trial court to transfer venue if there is so great a prejudice against the movant that he cannot obtain a fair and impartial trial or if an impartial trial cannot be had in the county where the action is pending. Tex.R. Civ. P. 257(a), (c). When a motion to transfer venue based on such prejudice is duly and properly made, it shall be granted, unless the party opposing the transfer attacks, by the affidavit of a credible person, the facts set forth in the motion to transfer or the affidavits supporting it. Tex.R. Civ. P. 258; City of Abilene v. Downs, 367 S.W.2d 153, 155 (Tex.1963). When thus attacked, the issue shall be tried by the judge. Tex.R. Crv. P. 258. The movant bears the burden of proof on a rule 257 motion for a change of venue. Glover v. Moore, 544 S.W.2d 777, 777-78 (Tex.Civ.App.-Eastland 1976, no writ) (citing Bennett v. Jackson, 172 S.W.2d 395, 398 (Tex.Civ.App.-Waco 1943, writ ref'd w.o.m.)). When a rule 257 motion to transfer venue is attacked as required under rule 258 and the issue is tried to the court, the trial court’s decision to grant or to deny such a motion will not be disturbed on appeal absent a clear abuse of discretion. Id.; Ferguson Seed Farms v. Fort Worth & D.-S.P. Ry. Co., 100 S.W.2d 177, 179-80 (Tex.Civ.App.-Amarillo 1936, writ dism’d). B. The Present Facts Appellants’ motion to transfer venue alleged that the residents of Wise County are prejudiced against gravel truck companies and drivers; the affidavits of more than three Wise County residents were attached, claiming that such a prejudice existed. Appellees filed a response to Appellants’ motion to transfer venue and attached affidavits from three Wise County residents claiming that rock haulers could obtain a fair trial in Wise County. The trial court conducted a hearing on Appellants’ motion to transfer venue and denied it. At the hearing, Appellants presented evidence that a private investigator had conducted a survey of 200 residents of Wise County and that the survey had revealed a local prejudice against gravel truck companies and drivers. On cross-examination, the private investigator admitted that he had reviewed other cases involving gravel truck drivers and that he had not seen any evidence of prejudice against or unfairness towards gravel truck drivers in those cases. Appellees introduced without objection the affidavits of three Wise County residents who stated their beliefs that trucking companies and truck operators could receive a fair trial in Wise County. C. Application of the Law to the Facts The evidence at the hearing on Appellants’ motion to transfer venue was conflicting, and consequently the trial court did not abuse its discretion by denying Appellants’ motion to transfer venue. See Clarkson v. Ruiz, 140 S.W.2d 206, 207 (Tex.Civ.App.-San Antonio 1940, writ dism’d judgm’t cor.) (holding that trial court did not abuse its discretion by resolving the conflicting testimony in favor of appellees and denying appellants’ motion to change venue); Gannaway v. Trinity Universal Ins. Co., 85 S.W.2d 345, 347 (Tex.Civ.App.-San Antonio 1935, writ ref'd) (same); Ferguson Seed Farms, 100 S.W.2d at 179-80 (holding that the “trial court has a wide discretion in passing on an application for a change of venue in a civil case where the grounds asserted are local prejudice”). We overrule Appellants’ issue I, subpart C. VI. The Twins’ Death In subpart E of issue I, Appellants claim that the trial court erred by allowing Ap-pellees to “try a claim for the wrongful death of unborn twin fetuses, when no such claim is recognized by Texas law, as the trial court ultimately ruled after verdict.” Afton Hughes Royse was six weeks’ pregnant with twins at the time of the accident. Appellee Clint Royse, Afton’s husband, pleaded a cause of action for the wrongful death of the twins. The trial court admitted evidence concerning Af-ton’s pregnancy and the twins’ deaths. Although Appellants moved for a directed verdict on Clint’s claim for wrongful death of the twins and also objected to submission of these claims to the jury, the trial court denied Appellants’ motion and submitted special questions to the jury on the wrongful death of the twins. The jury awarded Clint Royse $200,000 for damages he suffered from the death of each twin. But the trial court subsequently granted Appellants’ motion for judgment notwithstanding the verdict and rendered judgment that Clint take nothing on his claims for wrongful death of the twins. Although the trial court granted Appellants’ motion for judgment notwithstanding the verdict on Clint’s claims for wrongful death of the twins, Appellants nonetheless complain that they were prejudiced at trial by emotion-laden evidence about the unborn twins. The trial court submitted a damage question to the jury— authorizing the jury to compensate Clint Royse for the death of the twins — and the jury presumably utilized the very testimony that Appellants’ claim was overly emotional to award $200,000 to Clint for the death of each twin. The trial court’s charge instructed the jury to “not let bias, prejudice, or sympathy play any part in [their] deliberations” and to consider “the elements of damages listed below and none other,” to “consider each element separately,” to not include in any element of damages any sum of money for a loss included under another element, and to not compensate twice for the same loss. Accordingly, the jury was specifically instructed to consider the evidence that Appellants claim was prejudicially emotional, mostly Clint’s testimony concerning the twins’ death, only in connection with the exact damage special questions that the trial court subsequently disregarded. Unless the record demonstrates otherwise, we must presume that the jury followed these instructions. See, e.g., Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex.2003); Tesfa v. Stewart, 135 S.W.3d 272, 279 (Tex.App.-Fort Worth 2004, pet. denied). Appellants do not point to anything in the record, and we have found nothing, that would demonstrate that the jury did not follow these instructions. Thus, when the trial court set aside the damage awards that the jury attributed to the twins’ deaths, it rectified the harm caused by the wrongful submission of these claims to the jury; that is, the award of $400,000 in damages to Clint based on the evidence Appellants allege was unfairly prejudicial. We hold that any error in permitting trial of Clint’s claims for the wrongful death of the twins did not cause the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1) (prohibiting appellate court from reversing judgment for error of law unless the error probably caused rendition of an improper judgment). We overrule subpart E of Appellants’ issue I. VII. Challenges to Evidentiary Rulings In issue I, subpart A, Appellants claim that the trial court reversibly erred by allowing the admission of evidence that Rodriguez was an illegal alien. In subpart D of issue I, Appellants claim that the trial court erred by excluding evidence that Kim Hughes, the driver of the Yukon, purportedly received a cell phone call at approximately the time of the collision. A. Standard of Review We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Horizon/CMS Healthcare Corp., 34 S.W.3d at 906. Unless an erroneous evidentiary ruling by the trial court probably caused the rendition of an improper judgment, we will not reverse the trial court’s ruling. Id. An appellate court must uphold the trial court’s eviden-tiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp., 972 S.W.2d at 43. B. Admission of Evidence of Rodriguez’s Status as an Illegal Alien Appellants globally claim that the trial court erred by admitting evidence of the fact that Rodriguez was an illegal alien. Appellants argued in a pretrial brief and argue on appeal that Rodriguez’s immigration status was not relevant to any issue in the case, could not be used for impeachment, and was more prejudicial than probative and should have been excluded on that basis. Appellees argued in a pretrial responsive brief and argue on appeal that Rodriguez’s status as an illegal alien was relevant and admissible to impeach Rodriguez and also in connection with Appellees’ negligent hiring and negligent entrustment claims. The trial court ruled that Rodriguez’s immigration status was admissible to impeach Rodriguez because he misrepresented his immigration status in his deposition and on his application to drive for TXI. The trial court instructed the lawyers outside the presence of the jury, however, to not belabor Rodriguez’s immigration status and not to use it as an inflammatory tool. Rodriguez testified by videotaped deposition as Appellees’ first witness. In response to the question, “Did you ever lie about the fact that you were not a U.S. resident or U.S. citizen to get a Texas driver’s license?” Rodriguez answered, “No.” But Rodriguez later admitted that in 2000 after he had crossed the Mexico-Texas border at night, he was arrested for, and pleaded guilty to, an immigration violation; he spent four months in jail and was then deported to Mexico. Rodriguez said that when he came back to the U.S. approximately five months later, he just walked across the border. He said that he did not have a green card or a laser card but said that he was uncertain whether he re-entered the country legally because he was not a lawyer. Rodriguez’s “Driver’s Application for Employment” dated May 18, 2001, was introduced into evidence as Plaintiffs’ Exhibit 1. Rodriguez completed it to apply for work as a truck driver for Melendez and to drive for TXI. The application contains a question, “Do you have the legal right to work in the United States?” Rodriguez answered, “Yes.” But Rodriguez gave the following sworn statement to the Department of Justice at the Del Rio port of entry into the United States on December 12, 1999, approximately nineteen months before he completed the “Driver’s Application for Employment”: Q. What documents do you have to legally live and work in the U.S.? A. I have no legal documents to live and work here. Appellants apparently argue that all questions and all documentary evidence touching on Rodriguez’s status as an illegal alien were inadmissible because “Texas Rule of Evidence 608(b) expressly prohibits the use of specific instances of conduct to impeach a witness’s credibility.” Here, however, Appellants did not introduce specific instances of misconduct to impeach Rodriguez; they impeached him with evidence of his own prior verbal statements, and this is specifically allowed under Texas Rule of Evidence 801(e)(2)(A). See Tex.R. Evid. 801(e)(2)(A); accord Strong v. State, 138 S.W.3d 546, 553, 558 (Tex.App.-Corpus Christi 2004, no pet.) (recognizing that “when the out-of-court statement is made not by a witness but by a party, rule 613 no longer applies, ... [s]uch statements are actually governed by rule 801(e)(2)(A), which provides that a statement is not hearsay if it is offered against a party and is that party’s own statement”). We hold that the trial court did not abuse its discretion by admitting evidence of Rodriguez’s immigration status to impeach his contrary trial testimony. Further, in light of our subsequent holdings herein that the evidence is legally and factually sufficient to support the jury’s findings of negligence against Rodriguez and TXI and in light of the record as a whole, even if the trial court abused its discretion by permitting Appellants to impeach Rodriguez with prior inconsistent statements that he had made, we cannot conclude that any error in the admission of the fact that Rodriguez was an illegal alien probably caused the rendition of an improper judgment. Accord Ramirez v. Acker, 124 S.W.2d 905, 908 (Tex.Civ.App.-Beaumont 1939) (recogniz-ing that defendants’ counsel’s argument that the jury would not “take the land in controversy from the defendants who were American citizens, and give it to an old Mexican who had not been naturalized” was an inflammatory appeal to racial prejudice but that trial court’s instruction not to consider it and plaintiffs counsel’s comments during closing that plaintiff was entitled to the same process as any litigant rendered error harmless), aff'd, 134 Tex. 647, 138 S.W.2d 1054 (Tex.1940); cf. Penate v. Berry, 348 S.W.2d 167, 168 (Tex.Civ.App.-El Paso 1961, writ ref'd n.r.e.) (holding defense counsel’s closing argument urging jury to rule for defense because plaintiff was an alien and “in this country you can’t come into court and reach your hands into the pockets of an American citizen and take his property from him— not for an alien” to be improper inflammatory appeal to racial prejudice). Here, Appellees’ counsel made no inflammatory, improper arguments concerning Rodriguez’s status as an illegal alien. In closing argument, Appellants’ attorney specifically told the jury that whether Rodriguez “[lacked a] social security number” was a “red herring” in terms of challenging how the accident happened; he argued that Appellees had introduced this evidence “to appeal to your bias and your prejudice [,] and imply that he’s an illegal alien.” In view of the record as a whole, the evidence that Rodriguez was an illegal alien, even if improperly admitted, was not harmful under the standard that we are required to apply. See Tex.R.App. P. 44.1(a)(1). We overrule Appellants issue 1, subpart A. C. Exclusion of Evidence of Cell Phone Call Appellants also complain in issue I, sub-part D, that the trial court erred by excluding evidence of a cell phone call made by Randy Hughes to Kim Hughes’s cell phone. Appellants argue that this cell phone evidence was admissible because it was relevant to the issue of whether Kim was negligent. Appellants assert that Kim was distracted by the call or by the ringing of her cell phone and drifted over the center line of Highway 114. Appellees assert that the trial court correctly excluded the cell phone evidence for two reasons: because Appellants did not timely designate the witness that they called to explain the meaning of the cell phone bills and because no evidence existed connecting Randy’s call to Kim’s driving. Appellants attempted to offer the testimony of Tonya Battles, a Cingular employee, to explain how cell phone calls are connected, charged, and appear on billing records. Appellees objected to Battles’s testimony on the grounds that she had not been properly or timely designated as a fact witness and was never designated as an expert witness. Appellees pointed out that the cell phone bills at issue sometimes showed a two-minute call “where the next phone call would start one minute after that two-minute phone call supposedly began, so we don’t believe the two-minute phone call just stands for what they are saying.” The trial court sustained Appel-lees’ objection to Battles’s testimony on the ground that she had not been timely designated. Rule 193.6(a) mandates the exclusion of the testimony of any witness other than a named party who was not timely designated unless the court finds that there was good cause for the failure to timely respond or that the failure to timely respond would not unfairly surprise or prejudice the other parties. Tex.R. Civ. P. 193.6(a); IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 202 (Tex.App.-Fort Worth 2005, no pet.). The burden of establishing good cause or the lack of unfair surprise or prejudice is on the party seeking to call the witness. Tex.R. Crv. P. 193.6(b). In their reply brief, Appellants claim that Battles was properly designated as a fact witness in their supplemental responses to Appellees’ request for disclosure. But neither Appellants’ responses nor supplemental responses list Battles’s name, address, or telephone number or provide a statement of her connection to the case. Appellants supplemental responses simply list as a fact witness the “Records custodians and employees of Southwestern Bell Mobile Systems, Acct. # 300313311” for Randy’s telephone number and for Randy’s December 2002 to January 2003 cell phone statement. Appellants’ disclosure does not meet the requirements of rule 194.2(e) and does not constitute a proper fact witness disclosure. See Tex.R. Civ. P. 194.2(e). The trial court did not find, nor do Appellants argue that they established, good cause or the lack of unfair surprise or prejudice. Accordingly, the trial court did not abuse its discretion by excluding Battles’s testimony. See IAC, Ltd., 160 S.W.3d at 202. Also under this subpart, Appellants claim that the trial court should have allowed them to question Randy in front of the jury concerning his call to Kim’s cell phone. Wise County 911 emergency records, marked as Defense Exhibit 425, showed that Rodriguez’s 911 call was received at 1:56 p.m. An offer of proof outside the jury’s presence established that Randy’s cell phone records, offered as part of the bill and identified as Defense Exhibit 441, show a call purportedly lasting two minutes from Randy’s cell phone to Kim’s cell phone at 1:55 p.m. and two more calls purportedly lasting one minute each from Randy’s cell phone to Kim’s cell phone at 1:57 p.m. and at 1:58 p.m. Kim’s cell phone records show an “incoming” call from Randy’s cell phone number at 1:55 p.m. Randy testified that no one answered Kim’s cell phone when he called at around 1:55 p.m., that his call did not roll over to voice mail, and that he subsequently called Kim’s cell number a couple more times. Appellees claim that the trial court correctly excluded Randy’s testimony concerning his cell phone call to Kim because no evidence exists connecting Randy’s call to Kim’s driving. That is, Appellees argue there is no evidence Kim’s cell phone rang, was not on vibrate, or was even in the front seat of the Yukon when Randy attempted to call. We recently addressed a similar issue in Bedford v. Moore, 166 S.W.3d 454, 463 (Tex.App.-Fort Worth 2005, no pet.). In Bedford, the plaintiff attempted to introduce evidence that a gravel truck driver tested positive for methamphetamine immediately after an accident. Id. The trial court excluded the evidence, and we affirmed, explaining that no evidence existed tying the presence of methamphetamine in the driver’s body to impairment at the time of the accident. Id. Consequently, we held that the trial court did not abuse its discretion by excluding this evidence. Id. Here, no evidence exists tying Randy’s call to Kim’s cell phone to Kim’s driving at the time of the accident. Consequently, we cannot say that the trial court abused its discretion by excluding this evidence. See, e.g., Morgenstern v. Knight, 134 P.3d 897, 898 (Okla.Civ.App.2006) (holding that absent other facts, mere use of cell phone during accident did not even warrant submission to jury of contributory negligence by cell phone user). We overrule Appellants’ issue I, subpart D. VIII. CHARGE ERROR In issue V, subparts A, B, C, and D, Appellants raise four challenges to the court’s charge. Specifically, they claim that the trial court erroneously omitted a required element of Appellees’ negligent hiring claim, erroneously submitted broad-form liability questions, erroneously refused to submit an unavoidable accident instruction, and erroneously submitted “gross neglect” instead of “malice” in connection with the exemplary damages question. A. Standard of Review The standard of review for error in the jury charge is abuse of discretion, which occurs only when the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). A party is entitled to a jury question, instruction, or definition that is raised by the pleadings and evidence. Tex.R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). This is a substantive, nondis-cretionary directive to trial courts, requiring them to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). The trial court has broad discretion in submitting jury questions so long as the questions submitted fairly place the disputed issues before the jury. Toles v. Toles, 45 S.W.3d 252, 263 (Tex.App.-Dallas 2001, pet. denied). This broad discretion is subject only to the limitation that controlling issues of fact must be submitted to the jury. Tex.R. Crv. P. 278; Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex.App.-Corpus Christi 1990, writ denied) (op. on reh’g). A trial court is afforded even more discretion when submitting instructions than when submitting questions. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Ant