Amanda L. Embry v. Jose S. Martinez ( 2021 )

AFFIRMED and Opinion Filed June 7, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00022-CV
AMANDA L. EMBRY, Appellant
V.
JOSE S. MARTINEZ, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-10705
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Goldstein
Appellant Amanda L. Embry appeals the trial court’s judgment awarding
money damages for personal injuries sustained by Appellee Jose S. Martinez.
Embry presents three issues on appeal: [1] whether the jury charge was legally
incorrect for failing to comply with the Texas Proportionate Responsibility statute,
resulting in the rendition of an improper verdict; [2] whether the jury’s answer to
Question No. 1 finding Embry’s negligence was a proximate cause of the collision
was contrary to the overwhelming weight of the evidence; and [3] whether the jury’s
answer to Question No. 2 assigning 82.5% of the responsibility to Embry was against
the great weight and preponderance of the evidence. Martinez argues that Embry
failed to preserve all issues for appeal. We affirm the trial court.
BACKGROUND
This negligence case arises out of an automobile collision that occurred on
June 19, 2017, at the intersection of W. Miller Road and S. Garland Avenue in
Dallas. Martinez filed suit alleging that Embry’s negligence caused the collision,
and that Martinez suffered injuries and damages as a result. Embry denied fault and
sought apportionment of responsibility under Chapter 33 of the Texas Civil Practice
and Remedies Code. The case was tried before a jury and submitted on three
questions—negligence, proportionate responsibility, and damages. Neither party
lodged objections to Question Nos. 1 or 2. In response to Question No. 1 of the
charge, the jury found that the collision was caused by the negligence of both Embry
and Martinez. Question No. 2 asked the jury to assign percentages of responsibility
to each party found negligent in Question No. 1, which must total 100%. The jury
attributed 82.5% of responsibility for the collision to Embry and 17.5% to Martinez.
Martinez moved for the entry of judgment. Embry responded and moved for a new
trial, alleging the jury’s verdict was not supported by sufficient evidence. The trial
court entered judgment on the jury verdict, reducing the damages awarded to
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Martinez by his percentage of responsibility. Embry timely filed an amended motion
for new trial (“Motion”) that included a challenge to the jury charge and Martinez
responded. The trial court denied Embry’s Motion and Embry timely appealed.
ANALYSIS
I. Jury Charge Error
In her first issue, Embry asserts that the jury charge failed to comply with the
Texas Proportionate Responsibility statute because it omitted mandatory statutory
language that the trier of fact “shall” determine the percentage of responsibility
“stated in whole numbers.” See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a).
Rather than use whole numbers, the jury assigned 82.5% of fault to Embry and
17.5% to Martinez. Martinez asserts that Embry failed to preserve this issue for
appeal. We agree.
To preserve error on a jury-charge issue, a party must object to the court’s
charge, either in writing or on the record, before the court reads the charge to the
jury or the objection is waived. See TEX. R. CIV. P. 272; King Fisher Marine Serv.,
L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014). “Any complaint as to a question,
definition, or instruction, on account of any defect, omission, or fault in pleading, is
waived unless specifically included in the objections.” TEX. R. CIV. P. 274; see
Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014). Objections to the court’s
charge raised in a motion for a new trial are untimely and preserve nothing for
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review. Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 627-28 (Tex. App.—
Dallas 2004, pet. denied); see also Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917,
919–20 & n. 3 (Tex. 2015) (objection to wording of charge untimely after charge
read to the jury).
While each party submitted a proposed jury charge that included the language
“[t]he percentages must be expressed in whole numbers,” the sentence was omitted
in the final charge submitted to the jury, with no objections as to the omission. We
disagree with Embry that the omitted charge language constitutes “fundamental
error” excusing her failure to preserve the complaint for appeal. The “fundamental
error” exception applies to cases where jurisdiction is lacking or an issue affects the
broader public interest. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479,
511-13 (Tex. 2018). Embry raises no jurisdictional concern and acknowledges that
there is a dearth of case law establishing that omission of similar statutory language
from a jury charge constitutes fundamental error. The USAA Court makes clear that
“public interest” means “adversely affects the public’s (as opposed to the current
parties’) interests.” USAA, 545 S.W.3d at 512. Embry fails to demonstrate how the
broader public interest is adversely affected by the omitted language in her charge
instructions.
When a trial court refuses to submit a requested instruction that is proper, we
reverse only if the charge error probably caused the rendition of an improper
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judgment or prevented proper presentation of the case on appeal. See TEX. R. APP.
P. 44.1, 61.1; Emerson Electric Co. v. Johnson, No. 18-1181, 2021 WL 1432226, at
*7-8 (Tex. April 16, 2021) (where proper design-defect charge should have included
omitted language, remand not required because omission not harmful). Any finding
that Martinez was more than 50% at fault for the collision would have prevented him
from recovering any damages. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001. The
percentage allocation was not close to fifty percent. The jury found the evidence
sufficient to find Embry 82.5% at fault. Assuming the omitted statutory language
was charge error, and assuming the jury would have rounded Embry’s percentage of
liability down rather than up if properly instructed, Embry fails to demonstrate that
liability for 82.5% rather than 82% of responsibility caused a different result in her
case. The record does not support reversal. We overrule Embry’s first issue.
II. Factual Sufficiency – Issues Two and Three.
Embry’s second issue contests the jury’s negligence finding in Question No.
1 of the charge as being so contrary to the overwhelming weight of the evidence that
the verdict was clearly wrong and manifestly unjust. In her third issue, Embry
asserts that the percentages of responsibility assigned to Embry and Martinez in
response to Question No. 2 were against the great weight and preponderance of the
evidence.
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A. Error Preservation
Martinez argues that Embry failed to preserve any factual sufficiency
challenges for appeal, maintaining that the issues Embry submitted in her Motion
were limited to legal sufficiency. To preserve a factual sufficiency challenge for
appeal, a party must present the specific complaint to the trial court in a motion for
new trial. See TEX. R. CIV. P. 324(b)(2), (3); In re Interest of A.R.M., 593 S.W.3d
358, 362 (Tex. App.—Dallas 2018, pet. denied) (mem. op.). Under Rule 324(b),
both “(2) A complaint of factual insufficiency of the evidence to support a jury
finding” and “(3) A complaint that a jury finding is against the overwhelming weight
of the evidence” are factual sufficiency complaints, differentiated by whether the
complaining party had the burden of proof. TEX. R. CIV. P. 324(b)(2), (3); Cecil v.
Smith, 804 S.W.2d 509, 510-12 (Tex. 1991); EYM Diner L.P. v. Yousef, No. 05-19-
00636-CV, 2020 WL 6883171, at *5-6 (Tex. App.—Dallas Nov. 24, 2020, no pet.
h.) (mem. op.). To determine whether an issue was waived, we look not only to the
wording of the issue, but also to the argument under each heading to assess the intent
of the parties. Lion Copolymer Holdings, L.L.C. v. Lion Polymers, L.L.C., 614
S.W.3d 729, 732-33 (Tex. 2020).
Although Embry’s Motion did not use the label “factual sufficiency,” she
complains that there is insufficient evidence to support the jury’s negligence finding
in Question No. 1, for which Martinez has the burden of proof. Tex. R. Civ. P.
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324(b)(2). In reviewing such a factual sufficiency complaint, we consider all the
evidence and will set aside the verdict only if the evidence supporting a jury finding
is so weak or so contrary to the overwhelming weight of all the evidence that the
answer should be set aside. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d
580, 615 (Tex. 2016) (emphasis added). Embry’s Motion asserts there was
“insufficient evidence” to support the jury’s finding of her negligence in Question
No. 1 and “overwhelming evidence presented at trial” of Martinez’s negligence
(emphasis added). Embry’s Motion then compares the evidence presented by both
parties. The Texas Supreme Court recently held that a factual sufficiency complaint
was preserved for review where a party cited the legal sufficiency standard, that
certain evidence constituted “no more than a scintilla of evidence,” but the legal
sufficiency analysis was intertwined with weighing pieces of evidence against
countervailing evidence. Lion Copolymer Holdings, 614 S.W.3d at 733 (remanding
case for factual sufficiency review not performed by intermediate appellate court).
Embry preserved her challenge to the jury finding on Question No. 1.
Embry challenges the jury’s assignment of proportionate responsibility
percentages in Question No. 2, for which she has the burden of proof, as being
“against the great weight and preponderance of the evidence.” Tex. R. Civ. P.
324(b)(3). When a party attacks the factual sufficiency of an adverse finding on an
issue upon which she had the burden of proof, she must demonstrate that the adverse
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finding was so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust. Babiy v. Kelley, No. 05-17-01122-CV, 2019 WL 1198392,
at *2 (Tex. App.—Dallas Mar. 14, 2019, no pet.) (mem. op.) (citing Dow Chem. Co.
v. Francis 46 S.W.3d 237, 242 (Tex. 2001)) (emphasis added). Embry’s Motion
clearly challenges the factual sufficiency of evidence to support the jury finding on
Question No. 2. Accordingly, we hold that Embry preserved Issues Two and Three
for our review.
B. Factual Sufficiency Analysis
In a factual sufficiency review, appellate courts must examine the evidence
that both supports and contradicts the jury’s verdict in a neutral light. Wise v. SR
Dallas, LLC, 436 S.W.3d 402, 408 (Tex. App.—Dallas 2014, no pet.) (citing Dow,
46 S.W.3d at 242). The amount of evidence necessary to affirm a judgment is far
less than that necessary to reverse, as we may not reverse a verdict merely because
we conclude that the evidence preponderates toward a different answer. Bright v.
Addison, 171 S.W.3d 588, 595 (Tex. App.—Dallas 2005, pet. denied); Herbert v.
Herbert, 754 S.W.2d 141, 144 (Tex. 1988). If we find the evidence factually
insufficient, we must detail how the contrary evidence greatly outweighs the
evidence supporting the verdict, and clearly state why the jury’s finding is factually
insufficient or so against the great weight and preponderance of the evidence as to
be manifestly unjust, shock the conscience, or clearly demonstrate bias. Windrum
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v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019); Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761 (Tex. 2003) (citing Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986)). As the facts are predominately the same in support of each answer
challenged in Issues Two and Three, we address them together.
Martinez had the burden to adduce evidence showing it was more likely than
not that Embry’s negligence was a substantial factor in causing the collision and that
his damages resulted from that negligence. TEX. CIV. PRAC. & REM. CODE ANN. §
33.002; 33.003; Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017). To recover
damages, Martinez’s percentage of responsibility for causing the collision could not
exceed 50%. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001. Embry argues the
evidence was insufficient to support the jury findings that she was negligent and
82.5% responsible because the overwhelming weight of the evidence showed
Martinez was the primary cause of the collision due to his intoxication. The jury’s
finding that Embry was negligent could be set aside only if the evidence supporting
the finding is so weak and contrary to the overwhelming weight of all evidence that
the verdict is clearly wrong and manifestly unjust. Wise, 436 S.W.3d at 408 (citing
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). The jury’s apportionment of fault
could be set aside only if the finding is so against the great weight and preponderance
of all evidence that it is manifestly unjust, shocks the conscience, or clearly
demonstrates bias. Windrum, 581 S.W.3d at 781; Golden Eagle, 116 S.W.3d at 761.
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The jury was presented with conflicting evidence. Embry testified that:
 On the date of the incident, Embry was taking her regular route
home from work heading East on Miller Road at 45 miles per
hour and was not distracted by eating, drinking, or her cellphone.
 As she approached the intersection of Miller Road and Garland
Avenue, there was nothing obstructing her view of the green
traffic light that she planned to drive through.
 She saw Martinez approaching from the opposite direction and
merge into the lane to make a left turn.
 Martinez never stopped his car and instead began turning in front
of Embry, so she hit her brakes and attempted to hit her horn and
swerve out of the way.
 After the accident, she noticed Martinez was in his car on his
phone.
 Three or four police officers arrived quickly.
 Embry stayed at the scene for close to an hour, gave her account
of the accident to a police officer, and did not observe Martinez
receiving any sort of aid by emergency personnel or a police
officer.
Embry introduced the police report, reflecting Martinez as a “contributing
factor” of the collision for failure to yield right of way.1 The report indicates
Martinez was treated at the scene by the Garland Fire Department, no drug or alcohol
specimen was taken, and that the speed limit on Miller Road was 40 miles per hour.
1
Failure to yield the right of way does not, in and of itself, establish negligence. Bentley v. Snodgrass,
No. 10-17-00319-CV, 2018 WL 4623940, at *2-3 (Tex. App.—Waco Sept. 26, 2018, no pet.) (mem. op.)
(evidence factually sufficient to support jury finding that Snodgrass did not cause collision where police
report found Snodgrass failed to yield the right of way and Snodgrass himself admitted failure to yield as
well as financial responsibility for damages).
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Martinez testified at trial that he was returning to work as a mechanic’s helper
after purchasing spare parts, and as he approached the intersection, the light was red
and he stopped his car. When the green arrow to turn left came on, he moved ahead
and then felt the impact of the collision. His airbag deployed and he could not move,
so he remained in his car until the police arrived and helped him out of the car.
Martinez stated that his boss picked him up from the accident scene and drove him
to work at the mechanic’s shop. He could not work due to his injuries, so after ten
minutes his boss’s son drove him home. Martinez said that he was home for about
half an hour before his wife took him to Parkland Hospital for treatment. Martinez
testified that he remembered having his blood drawn at Parkland Hospital.
Parkland Hospital’s medical records contained a diagnosis of alcohol
intoxication and reflected that Martinez had noticeable hand tremors and smelled of
alcohol. Parkland’s records further reflected that Martinez denied binge drinking,
that his reliability appeared questionable because his self-reported alcohol use was
inconsistent with toxicology results, and that his ability was impaired because he
was inebriated. Martinez denied consuming alcohol on the day of the collision–
only on the day before, a Sunday. To explain the “alcohol smell,” Martinez testified
that he sometimes spills fluids on his clothing from his work as a car mechanic.
Martinez identified inconsistencies in his hospital records that also described him as
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alert, oriented, and having no issues with sensory or motor skills, and reflected that
he had a 9 lb. weight gain in one day.
Embry presented a toxicology expert who interpreted the results of two blood
alcohol tests given to Martinez at Parkland Hospital. The expert explained that the
first test from blood drawn approximately two-and-a-half hours after the collision
showed a blood alcohol concentration of 0.29 grams per 100 milliliters of blood,
which suggested Martinez’s blood alcohol level was over three times the 0.08 gram
legal limit for intoxication. Based on this test and a rate of metabolism, the expert
calculated that Martinez would have been severely intoxicated at the time of the
collision, with a blood alcohol level of 0.34 grams, four times the legal limit. The
expert opined that an average person with this blood-alcohol level would be
unconscious and close to death, but a person who consumes alcohol on a regular
basis can develop a tolerance that allows them to function and even drive a car. The
expert concluded that, at the time of the collision, Martinez was severely intoxicated
and even with a tolerance would not have had normal use of his mental and physical
faculties.
The jury may believe one witness and disbelieve another. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Harrison v. Baldock, No. 05-97-
02072-CV, 2000 WL 31805, at *2 (Tex. App.—Dallas Jan. 18, 2000, no pet.) (not
designated for publication) (jury could have believed one party’s excessive speed
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rather than other’s failure to yield caused the impact). The jury may believe lay
testimony over that of experts. McGalliard, 722 S.W.2d at 697. On this record,
when viewing all of the evidence in a neutral light, we cannot conclude that there is
insufficient evidence to support the jury’s answer to Question No. 1 or that the jury’s
failure to attribute more responsibility to Martinez in Question No. 2 is so against
the overwhelming weight and preponderance of the evidence that it is clearly wrong
and unjust. See Crosstex, 505 S.W.3d at 615; Dow, 46 S.W.3d at 242.
There was factually sufficient evidence to support the jury’s answers to
Question Nos. 1 and 2. The trial court did not err in entering judgment on the jury
verdict. Accordingly, we overrule Issues Two and Three and affirm the trial court’s
judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
200022F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AMANDA L. EMBRY, Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-20-00022-CV V. Trial Court Cause No. DC-17-10705.
Opinion delivered by Justice
JOSE S. MARTINEZ, Appellee Goldstein. Justices Partida-Kipness
and Pedersen, III participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 7th day of June 2021.
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