David Louder v. Andres De Leon Et Al

Per Curiam OPINION ON APPLICATION FOR WRIT OF ERROR This is a negligence case which arose out of an automobile collision.
The trial court rendered a take-nothing judgment based on jury findings that plaintiff De Leon was 85% negligent. The court
of appeals reversed and remanded, holding that the trial court erred by (1) overruling objections to the state trooper's testimony
that De Leon's failure to yield the right-of-way was a proximate cause of the accident, and (2) overruling plaintiff De Leon's
motion for mistrial when a state trooper testified that De Leon received a traffic citation. 743 S.W.2d 357. We deny Louder's
application for writ of error, but write because a part of the court of appeals' opinion conflicts with this court's opinion
in Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex. 1987). Tex. R. Civ. Evid. 704 states: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact." Recently in Birchfield, we adhered to the plain
language of that rule to hold that the testimony by the expert in that case on proximate cause was admissible. In so doing,
we put to rest the difficult and confusing disputes over whether or not an expert opinion concerns an ultimate fact. E. Cleary,
McCORMICK ON EVIDENCE § 12 (3d ed. 1984). These disputes were a carryover from the time before Rule 704 was adopted when it
was believed that expert testimony on the ultimate issue invaded the province of the jury. Id. Most jurisdictions have abandoned
this viewpoint because excluding expert testimony of the ultimate issue is unduly restrictive, and the notion that opinions
on ultimate facts usurp the jury's function is illogical. Id.