## Facts

- Joel Reyes was run over by a Missouri Pacific Railroad train shortly after midnight on June 17, 1974, while lying on tracks near a crossing in Brownsville, Texas.
- Reyes sued in a diversity negligence action governed by Texas substantive law, alleging the train crew failed to discover him in time and stop.
- The railroad contended Reyes was not visible in dark clothing until too late and that Reyes was contributorily negligent because he was intoxicated and passed out on the tracks.
- Reyes asserted he was on the tracks because an unknown assailant knocked him unconscious while he walked along them.
- Before trial, Reyes moved in limine to exclude evidence of four prior misdemeanor convictions for public intoxication.
- The district court denied the motion, accepting the railroad’s argument that the convictions were relevant to show intoxication on the accident night.
- After the ruling, Reyes introduced the convictions on direct examination to lessen their impact.
- The jury found Reyes more negligent than the railroad; under then-applicable Texas comparative negligence law, he took nothing, and judgment was entered for the railroad.

## Issues

1. Whether four prior misdemeanor convictions for public intoxication were inadmissible character evidence under Federal Rule of Evidence 404(a) when offered to prove Reyes was intoxicated on the accident night.
2. Whether the convictions were admissible as habit evidence under Federal Rule of Evidence 406 to prove Reyes acted in conformity with a “regular practice” of intoxication.
3. Whether Reyes waived any evidentiary error by eliciting the convictions on direct examination after losing a definitive in limine ruling.

## Decision

- The Fifth Circuit reversed the judgment and remanded for a new trial.
- The court held the prior public-intoxication convictions were inadmissible under Rule 404(a) because they were offered to show conduct in conformity with a character trait.
- The court rejected the railroad’s Rule 406 argument, holding that four convictions over roughly four years did not establish habit.
- The court held Reyes did not waive his objection by preemptively presenting the convictions after the court ruled they were admissible.
- The court did not address other appellate arguments because the evidentiary error required reversal.

## Legal Principles

- Under Federal Rule of Evidence 404(a), character evidence is generally inadmissible in civil cases when used to prove a person acted in conformity with a trait on a particular occasion.
- Rule 404(b) does not permit admission of prior acts where the proponent’s purpose is simply to show a propensity (e.g., a tendency to become intoxicated) and infer the same conduct on the event in suit.
- Habit evidence under Federal Rule of Evidence 406 requires a showing of sufficiently regular, semi-automatic conduct; a small number of incidents spread over several years may be inadequate to show the required regularity and uniformity of response.
- A party does not waive an evidentiary objection by introducing the challenged evidence after an adverse, definitive ruling that the opponent will be permitted to use it.

## Conclusion

The Fifth Circuit ordered a new trial because admitting Reyes’s four prior public-intoxication convictions improperly invited a propensity inference barred by Rule 404(a), and the convictions were too sporadic to qualify as habit under Rule 406; Reyes’s attempt to mitigate the damage after an adverse in limine ruling did not waive the error.


Reyes v. Mo. Pac. R.R. Co., 589 F.2d 791 (5th Cir. 1979)