in the Matter of the Marriage of Kerry Bryon Noble and Gayla Renee Noble ( 2016 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00032-CV
IN THE MATTER OF THE MARRIAGE OF KERRY BRYON NOBLE
AND GAYLA RENEE NOBLE
On Appeal from the 62nd District Court
Franklin County, Texas
Trial Court No. 11797
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Two weeks after her marriage to Kerry Bryon Noble (Noble) in October 2014, Gayla Renee
Lawrence (Lawrence) moved out of the marital home after having been physically abused by
Noble. Although Noble filed for divorce around the same time, the couple reconciled, only to
finally separate in May 2015. After Noble petitioned for divorce, Lawrence filed a counter-petition
seeking, among other things, damages for several instances of assault during the marriage. The
trial court granted the divorce on the grounds of cruelty and divided the property. Lawrence was
awarded damages of $250,600.00, which included damages for disfigurement; past and future
physical pain, suffering, and mental anguish; and past medical expenses. Noble does not dispute
that he assaulted Lawrence, but complains only of the damages awarded against him.
We affirm the trial court’s judgment because (1) sufficient evidence supports the awards
for pain, suffering, and mental anguish; (2) sufficient evidence supports the award for
disfigurement; (3) sufficient evidence supports the award for medical expenses; and (4) sufficient
evidence supports the finding that the Rolex watch is Lawrence’s separate property.
Within a few weeks of meeting Lawrence in the summer of 2014, Noble gave her a Range
Rover and deeded a one-half interest in his Winnsboro home to her. During that time, Noble was
living in a halfway house in Tyler following his release from prison. When he was evicted from
the halfway house in June 2014 for rules violations, Lawrence and Noble moved into the
Winnsboro home. Noble was arrested in July, served time in the Titus County Jail, and was
released from jail October 12. The couple married October 14.
2
Noble’s abuse of Lawrence began on their honeymoon. Lawrence was awakened one night
at the Adolphus Hotel in Dallas1 by Noble, who “jerked” her out of bed by her hair and threw her
into the wall and across the room. Hotel staff contacted law enforcement, and the couple was
asked to leave the hotel.2 After that, Noble hit Lawrence at least three times a week. Lawrence
left Noble for a short time, but reunited with him after he repeatedly promised to seek counseling
and attend church. Although the couple attended several sessions of marriage counseling, Noble
eventually refused to continue after the counselor witnessed Noble hitting Lawrence in the car as
the couple was leaving a counseling session.
In a second attempt to persuade Lawrence to stay with him, Noble signed over to her the
title to his 2010 Mercedes automobile. That gift was followed by Noble’s promise to attend
counseling with a new marriage counselor in December 2014. The couple visited that counselor
only “a couple” of times. Then, in January, Noble inflicted a series of physical assaults on
Lawrence during which Noble poured coffee on her, kicked her, hit her in the head, forced scarves
down her throat, and pinned her down with his knees. As he was attempting to remove the wedding
ring from Lawrence’s finger, Noble told her that he was going to break her finger. Lawrence
described this series of assaults as “an a** whooping”3 and reported it to the Winnsboro police
January 21, 2015.
1
Before their marriage, Noble did not abuse Lawrence.
2
Nobel’s rage on this occasion was evidently incited by the fact that Lawrence—who was sleeping—did not come
downstairs and look for Noble after he left the room.
3
After a jury trial in February 2016, Noble was found guilty of assault causing bodily injury for his January 21 assault
on Lawrence. The trial court instructed the jury that it must determine whether the State had proved, beyond a
reasonable doubt, that Noble caused bodily injury to Lawrence on January 21, 2015, by
3
Photographs of Lawrence’s injuries, taken by the Winnsboro police, depict an injury to her
right arm and bruising of the left arm. Scars resulting from those injuries remain.4 The
photographs also depict bruising to the right thigh and an injury to the right shin. The resulting
scarring is still visible.
Lawrence left Noble after the January assaults, but returned home in February after Noble
promised to move into his mother’s home. Noble, however, did not move as promised, and the
frequency of the assaults increased after Lawrence returned to the couple’s home. Noble would
not permit Lawrence to leave the house, and he hit her five to six times a week until the assaults
occurred on a daily basis. At one point, Noble hit Lawrence with a metal wall hanging, leaving a
scar between her eyes.5 In June 2015, Noble slammed Lawrence’s head into the dashboard of her
car, causing a black eye. He “threw [her] all over” and pinned her under the steering wheel. He
a. striking Gayla Noble with his hand or hands; or
b. kicking Gayla Noble with his foot or feet; or
c. shoving a scarf into the mouth of Gayla Noble with his hand or
hands; or
d. pinning down the arm or arms of Gayla Noble with his knee
or knees; or
e. throwing Gayla Noble to the ground; or
f. twisting the arm of Gayla Noble with the defendant’s hand or
hands; or
g. dragging Gayla Noble on the ground; or
h. banging the head of Gayla Noble on the floor.
4
The record indicates that the trial court observed scar marks on Lawrence’s arms.
5
Lawrence stated that, while she is embarrassed by the scars, she is unable to afford cosmetic surgery to have them
repaired.
4
choked her and hit her during that incident as well. Lawrence was able to make a 9-1-1 call, and
the Hopkins County Sheriff’s Department responded and arrested Noble.6
In August 2015, Lawrence applied for, and received, a protective order against Noble. In
the attached affidavit, Lawrence described incidents of violence that happened in June of that year,
as well as the abusive treatment she endured at the hands of Noble throughout the relationship.
She testified that Noble hit her in the head multiple times, poured hot coffee on her, choked her
multiple times, slammed her head into walls multiple times, slammed her head on tile and
hardwood floors, whipped her across the back and head with an extension cord, threw objects at
her, and hit her with a door jamb. Noble slammed her forehead into the dashboard of the car,
causing a black eye, and sexually assaulted her. She described multiple scars on her right arm and
legs from being thrown into cabinets and walls, as well as from skidding across the floor. She
described the scar between her eyes as well. Lawrence stated that she was thrown on her right
upper thigh so frequently that scar tissue had accumulated. Noble did not let Lawrence seek
medical care for her injuries and did not permit her to attend routine medical appointments because
she was bruised.
Lawrence described many instances of being locked in the house without the use of a
telephone and stated that she was not permitted to call her children or talk to anyone. On one
occasion, Noble let the air out of the tires on Lawrence’s car so she could not drive; and he took
6
The report of Noble’s arrest indicates that he was charged with family violence assault while impeding breath or
circulation and interference with a 9-1-1call.
5
her purse, driver’s license, social security card, bank card, and cash. He would not permit her to
get a job.
In addition, Noble verbally and emotionally abused Lawrence, telling her that she was good
for nothing since she did not earn a paycheck and that she was good only for sex. He would rarely
let her cook, clean, or work in the yard. She was made to sit beside Noble or lie in the bed beside
him. He would not allow her the dignity of using the restroom in private. She was not permitted
to answer the door. Her showers were timed, and Noble would drag her out if she was taking too
long. Noble repeatedly told her that everyone hated her, including her family, his family, and the
neighbors. He threatened to call Child Protective Services if she refused to do what he told her to
do and told her he had “been putting meth in [her] coffee” and had a friend conduct a hair-follicle
test on her, which came back positive. He threatened to use that information against her if she
refused to do what he wanted her to do. Noble told Lawrence that he would kill her if she left him.
A licensed vocational nurse of twenty years, Lawrence no longer feels as if she can work
in her chosen profession. She is nervous at work and questions her judgment and ability to take
care of patients because she has lost her confidence, a feeling she never experienced before her
marriage to Noble. Because Noble would not permit her to leave the house, Lawrence’s license
as a vocational nurse lapsed. Although she has since renewed her license, Lawrence is now
training to begin a new job in freight brokering.7
7
After renewing her nursing license, Lawrence began working as a charge nurse at a local nursing home in August
2015, but was laid off in April 2016.
6
Lawrence testified that she does not sleep well, and sleeps—when she is able—on the
couch, because she feels that she needs to be alert. She is frightened of Noble and indicated that
Noble “constantly had somebody doing something bad for him.” Noble has “already sent
somebody to [her] house once” and has threatened to “burn the house with [her] in it . . . . [H]e’s
told me all these horrible things he’s done to people. I don’t sleep.” Noble frequently told
Lawrence that he would bring her down and destroy her. He likewise frequently told her, “You
won’t walk out of here alive today.” Lawrence described her feeling of being disconnected and
her discomfort in going out and in communicating with people. She cries frequently and stated
that crying “seems like all I ever do.” Due to her lack of trust, she feels uncomfortable dating.
Lawrence testified that she endures daily physical pain in her hips and legs 8 and began
being treated by a chiropractor, Tim Davis,9 in May 2015. Photographs of Lawrence’s injuries
taken by Davis depict a scar between the eyes, a bruised right eye, and bruising on the right
forearm. Davis diagnosed Lawrence with a neck sprain/strain, lumbar sprain, bursitis of the right
hip with accumulated scar tissue, and muscle spasms. Lawrence underwent a course of physical
and physiotherapy for approximately one month. Her condition improved, but it was not an “easy
treat,” as there were other stressors involved. Davis did not see Lawrence as much as he had
planned to.
8
Before the marriage, Lawrence walked five miles a day, was in good shape, and felt healthy.
9
Coincidentally, Davis is Noble’s first cousin.
7
(1) Sufficient Evidence Supports the Awards for Pain, Suffering, and Mental Anguish
Noble claims that the evidence is legally and factually insufficient to support the trial
court’s awards of $200,000.00 for past pain, suffering, and mental anguish and $25,000.00 for
future pain, suffering, and mental anguish. Noble further claims that, even if the evidence is
sufficient to support an award for these elements of damage, the award is excessive.
In this case, the trial court issued findings of fact and conclusions of law.10 Findings of
fact in a case tried to the court have “the same force and dignity as a jury’s answers to jury
10
The pertinent findings of fact are:
5. As a direct and proximate result of Kerry Bryon Noble [sic] wrongful conduct of assaulting
Gayla Renee Noble, she suffered certain damages including reasonable and necessary medical
expenses in the past; reasonable and necessary medical expenses that in reasonable probability will
be incurred in the future; loss of earnings in the past; loss of earning capacity, diminution of earning
capacity, or both that in reasonable probability will be suffered in the future; physical pain, suffering,
and mental anguish in the past; physical pain, suffering, and mental anguish that in reasonable
probability will be suffered in the future; disfigurement; physical impairment; and mental anguish.
6. The Court Finds that; $250,600.00 if paid now in cash, would fairly and reasonably
compensate Gayla Renee Noble, for her injuries that resulted from the assaults committed by Kerry
Bryon Noble. With the following amounts for each element of the following damages:
reasonable and necessary Medical expenses in the past: $600.00
physical pain, suffering, and mental anguish in the past: $200,000
physical pain, suffering, and mental anguish that in reasonable probability will be suffered in the
future: $25,000
disfigurement: $25,000
....
9. The Court finds and confirms that each of the following items are the separate property of
Gayla Renee Noble.
....
Rolex Watch acquired by gift from Kerry Bryon Noble during the marriage and was delivered to
Gayla Renee Noble by Kerry Bryon Noble and acceptance [sic] by Gayla Renee Noble.
....
8
questions.” Lambright v. Trahan, 322 S.W.3d 424, 430 (Tex. App.—Texarkana 2010, pet. denied)
(quoting .39 Acres v. State, 247 S.W.3d 384, 387 (Tex. App.—Texarkana 2008, pet. denied) (citing
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991) (orig. proceeding)). The trial
court’s findings of fact are reviewable for legal and factual sufficiency of the evidence using the
same standards that are applied in reviewing the sufficiency of the evidence underlying jury
findings. Id. In contrast, we review conclusions of law de novo. See BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
In evaluating the legal sufficiency of the evidence, we must determine “whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings,
LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.). In looking at the evidence, we
credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless
a reasonable fact-finder could not. City of Keller, 168 S.W.3d at 827.
The evidence is legally insufficient if (1) there is a complete absence of evidence
of a vital fact; (2) the rules of law or of evidence bar the court from giving weight
to the only evidence offered to prove a vital fact; (3) there is no more than a mere
scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact
is conclusively established by the evidence.
Petrohawk Properties, L.P. v. Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet.
dism’d) (citing Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)). “More than a scintilla of
12. The Court finds that Gayla Renee Noble suffered substantial disruption in her daily routine
and experienced a high degree of mental pain and distress that his [sic] more than mere worry,
anxiety, vexation, embarrassment or anger. The Court finds that as a result, Gayla Renee Noble
suffered mental anguish and will continue to experience mental anguish as a result of the assaults
by Kerry Bryon Noble.
9
evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to
differ in their conclusions.” Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is so weak as to do
no more than create a mere surmise or suspicion of a fact.” King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)).
When reviewing a challenge to the factual sufficiency of the evidence, we consider and
weigh all of the evidence to determine whether the credible evidence supporting the finding is so
weak or “so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When conducting a factual sufficiency
review, we may not substitute our judgment for that of the trier of fact. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Further, we review a complaint that damages
are excessive for factual sufficiency. See Mari. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406
(Tex. 1998) (citing Rose v. Doctors Hosp., 801 S.W.2d 841, 847–48 (Tex. 1990); Pope v. Moore,
711 S.W.2d 622, 624 (Tex. 1986)).
(a) Pain and Suffering
“The process of awarding damages for amorphous, discretionary injuries such as mental
anguish or pain and suffering is inherently difficult because the alleged injury is a subjective,
unliquidated, nonpecuniary loss.” Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.—Texarkana
2002, no pet.). Likewise, “once the existence of some pain and suffering has been established . . .
there is no objective way to measure the adequacy of the amount awarded as compensation.”
10
HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.).
Consequently, the fact-finder has broad discretion when fixing an amount to award for pain and
suffering. Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997); SunBridge
Healthcare Corp. v. Penny, 160 S.W.3d 230, 247–48 (Tex. App.—Texarkana 2005, no pet.) (no
fixed rule exists for measuring damages for pain, suffering, and mental anguish); Marvelli v.
Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied) (matters of past and future
physical pain, mental anguish, and physical impairment are particularly within jury’s province).
Nevertheless, because the fact-finder “cannot simply pick a number and put it in the blank,” there
must “be some evidence to justify the amount awarded.” Saenz v. Fid. & Guar. Ins. Underwriters,
925 S.W.2d 607, 614 (Tex. 1996). We will not set aside the award on appeal, however, unless
there is a clear showing of passion, prejudice, improper motive, or that the award is so excessive
as to shock the conscience of the court. Penny, 160 S.W.3d at 247–48.
Certain types of injuries have objective manifestations that plainly support an award for
pain and suffering. Dollison, 79 S.W.3d at 249–50. Objectively verifiable injuries like bone
fractures, nerve damage, burns, lacerations, torn muscles, and concussions have been held to
support an award of pain and suffering. Id. at 250 n.1. We find that, in this case, there is sufficient
evidence of objectively verifiable injuries to support the fact-finder’s award for pain and suffering.
Even in the absence of direct testimony or other evidence of pain, the fact-finder is free to draw
on common sense and experience to infer the existence of pain or mental anguish from the
existence of an injury likely to cause suffering. See Telesis/Parkwood Retirement I, Ltd. v.
Anderson, 462 S.W.3d 212, 239 (Tex. App.—El Paso 2015, no pet.).
11
Here, the evidence showed that Lawrence was subjected to violent, recurring, abusive
assaults, which continued throughout the course of the marriage, later, on a daily basis. During
the course of the marriage, Lawrence was repeatedly choked, hit, dragged, kicked, and slammed
into walls and floors. She was burned with hot coffee, slammed into the dashboard of a car, pinned
under the steering wheel, hit between the eyes with a metal wall hanging, and sexually assaulted
by Noble. Some, but not all, of Lawrence’s injuries are documented in photographs taken by law
enforcement officers and Davis. Lawrence testified that she hurt every day, all the time. She
endures daily physical pain in her hips and legs.
There can be no doubt, based on this evidence, that Lawrence endured pain and suffering
as a result of Noble’s frequent and brutal assaults. The trial court’s findings are supported by the
record.
(b) Mental Anguish
Mental-anguish damages must be premised on “direct evidence of the nature, duration, or
severity of [the victim’s] anguish, thus establishing a substantial disruption in . . . daily routine,”
or other evidence of “a high degree of mental pain and distress that is more than mere worry,
anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995) (describing type of proof necessary to establish mental anguish in non-personal injury
case). Some types of “disturbing or shocking injuries,” however, such as a “threat to one’s physical
safety or reputation . . . have been found sufficient to support an inference that the injury was
accompanied by mental anguish.” Id. at 445; see Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797
(Tex. 2006) (finding that physical and mental suffering is necessary result of serious bodily injury
12
in case concerning future mental anguish); Country Rds., Inc. v. Witt, 737 S.W.2d 362, 365 (Tex.
App.—Houston [14th Dist.] 1987, no writ) (presumption applied to show mental anguish is natural
consequence of being badly beaten before being ejected from club).
A party must demonstrate a reasonable probability that he or she will suffer compensable
mental anguish in the future to support an award for future mental anguish. Adams v. YMCA of
San Antonio, 265 S.W.3d 915, 917 (Tex. 2008). However, in a case involving personal injuries,
as here, such injuries may provide an adequate basis to permit a jury to reasonably conclude that
a plaintiff will continue to suffer substantial disruptions in daily routine of the kind that the
evidence has shown the plaintiff has suffered in the past and will support an award of damages for
future mental anguish. See Ramirez, 196 S.W.3d at 797–98; cf. Parkway Co., 901 S.W.2d at 442.
Mental anguish can be established through testimony from the injured party explaining how he or
she felt and how his or her life was disrupted. Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex. App.—
San Antonio 2004, no pet.).
Here, there is objective proof of particularly disturbing events—Noble’s repeated, violent,
and demeaning assaults of Lawrence over the course of many months. Those assaults, as
previously described, left Lawrence with various injuries which, according to her testimony, have
caused her to endure daily physical pain. Such assaultive conduct, it can be reasonably inferred,
likewise resulted in mental anguish. But we need not rely solely on the inference of mental anguish
to support the trial court’s award for this category of damages. Here, the record includes ample
13
evidence of “a high degree of mental pain and distress that is more than mere worry, anxiety,
vexation, embarrassment, or anger.” Parkway Co., 901 S.W.2d at 444.11
The evidence showed that Lawrence, in addition to being repeatedly assaulted, was held
captive in her own home. She was cut off from all contact with her children and was not permitted
to seek medical attention for her injuries. Lawrence’s activities within the home were strictly
supervised, her showers timed, and her restroom use monitored. She was abused physically and
mentally, demeaned, sexually assaulted, and threatened with death.
Lawrence testified that she is understandably afraid of Noble, even now that she is not in
his immediate presence. That fear is the result of threats against her by Noble—threats to destroy
and kill her—threats which she takes seriously. She has trouble sleeping and has the compulsive
desire to remain constantly alert to danger from him. Lawrence no longer feels like she relates to
people well and now lacks her former confidence and self-esteem. She cries frequently and has
had recurring feelings of depression and experiences of dysfunction. After her experience with
Noble, Lawrence’s former role as a nurse was impaired. She no longer feels “normal” and is
unable to trust men. She re-lives Noble’s beatings “in [her] head daily” like a “tape . . . over and
over.” This affects her ability to be with others, because “nobody wants to be around somebody
like that.”12
11
Noble relies on Parkway to support his contention that the evidence is insufficient to support the award for mental
anguish. Consistent with Parkway, however, the evidence here regarding the frequency and severity of Lawrence’s
injuries is probably sufficient, in and of itself, to support an inference that mental anguish accompanied those injuries.
As described above, though, the record contains additional evidence that would support the trial court’s award.
12
Lawrence sought counseling for a time, but could not continue due to a lack of funds. She recognizes her need for
additional counseling.
14
After reviewing all the evidence, we conclude that it is legally sufficient to support the
award of damages for past and future physical pain and mental anguish. We likewise cannot say
that the evidence supporting the trial court’s finding of and awards for past and future physical
pain and mental anguish damages is so weak or so contrary to the overwhelming weight of all the
evidence as would lead us to conclude that these determinations are wrong. Finally, we find no
evidence to suggest that these awards were based on passion, prejudice, or improper motive, and
they are not so excessive as to shock the conscience. HCRA of Tex., Inc., 178 S.W.3d at 871–72.
(2) Sufficient Evidence Supports the Award for Disfigurement
Noble claims that the evidence is legally and factually insufficient to support the trial
court’s award of $25,000.00 for disfigurement and that, even if the evidence is sufficient to support
that award, the award is excessive.
“Disfigurement has been defined as that which impairs or injures the beauty, symmetry, or
appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms
in some manner.” Penny, 160 S.W.3d at 252 (quoting Goldman v. Torres, 341 S.W.2d 154, 160
(Tex. 1960)). “Disfigurement” is not limited to, but includes, scarring. Diamond Offshore Servs.
Ltd. v. Williams, No. 01-13-01068-CV, 2015 WL 4480577, at *12–13 (Tex. App.—Houston [1st
Dist.] July 21, 2015, pet. filed). Even a small scar that is covered by clothing is compensable
disfigurement. Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana
1999, pet. denied) (recognizing that multiple Texas courts have upheld disfigurement awards for
surgical scars). Moreover, evidence that a scar is embarrassing or causes shame is relevant to an
15
award for disfigurement. See, e.g., Hopkins Cty. Hosp. Dist. v. Allen, 760 S.W.2d 341, 344 (Tex.
App.—Texarkana 1988, no writ) (concerning future disfigurement).
Although there is no evidence of surgical scars in this case, there is ample evidence that
Lawrence remains physically scarred from Noble’s repeated assaults. Lawrence testified that she
has scarring on her upper right arm and has scars “on her arms” as depicted in photographs taken
by the Winnsboro Police Department following the January 2015 assault. Those scars were
pointed out to the trial court. She testified that she also has a scar on her right shin, also as depicted
in a photograph admitted into evidence. Finally, Lawrence testified that she has a scar between
her eyes, resulting from having been struck by Noble with a metal wall hanging. That scar is also
depicted in a photograph taken by Davis and in a photograph taken the day before trial. Lawrence
stated that she is embarrassed by those scars, which were still present at the time of trial in March
2016.
While Noble does not contend that Lawrence does not bear the scars of his abuse, he relies
on Pendergraft v. Carillo, 273 S.W.3d 362 (Tex. App.—Eastland 2008, pet. denied), for the
proposition that there is insufficient evidence to support the trial court’s finding that Lawrence
suffered disfigurement. In Pendergraft, there was evidence that Carillo had a 2.5 centimeter
laceration under his lip as the result of being struck in the face by an air compressor hose. Id. at
364. The court noted, however, that there was no evidence of scarring or disfigurement as a result
of that injury. Id. at 367–68. Unlike the evidence in Pendergraft, the record in this case contains
undisputed evidence of external scarring resulting from Noble’s assaults.
16
The disfigurement award is supported by legally sufficient evidence. Additionally, we
cannot say that the evidence in support of that award is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. Because the evidence is factually sufficient to
support an award of disfigurement damages of $25,000.00 and because that amount is not so
excessive as to shock the conscience, we overrule this point of error.
(3) Sufficient Evidence Supports the Medical Expense Award
In two arguments, Noble claims the trial court’s award of $600.00 in medical expenses is
not supported by legally or factually sufficient evidence.
Noble initially contends that the treatment provided by Davis was apparently for some
injuries Noble caused, but because there is no evidence that Lawrence’s hip injury was caused by
the assaults, the damage award cannot stand. We disagree.
Lawrence testified that she sought treatment from Davis in May 2015—the same month
she left Noble—because she had been assaulted on a daily basis and, as a result, she hurt “all the
time.” Lawrence complained to Davis of neck pain, headaches, and right hip pain. She reported
a history of having her head slammed into the dashboard of a car and a history of hip pain related
to having been slammed into the ground by Noble. She testified that, before the marriage, she
walked five miles a day, was in good shape, and was feeling healthy. On the date of her visit to
Davis, Davis photographed injuries to Lawrence’s face and head. He testified that it was apparent
that Lawrence had been exposed to “some type of trauma” and diagnosed her with a neck strain.
Lawrence’s reported history and Davis’ testimony indicate that Lawrence’s neck strain was related
17
to and caused by Noble’s assaultive behavior. Noble apparently does not challenge this causal
nexus.
Noble does claim, however, that there is no medical testimony that ties Lawrence’s hip
pain to any action by Noble. Davis testified that Lawrence had scar tissue in her right hip: “[M]ore
than likely when we see that, which I see . . . regularly, it is mostly from trauma, but it’s not
necessary. I couldn’t pinpoint that on anything, but it could have been repetitive stress or
something of that nature.” We agree that this testimony, standing alone, falls short of establishing
a causal nexus between Noble’s assaults and the hip pain Lawrence reported to Davis.
However, medical testimony is not always required to establish the cause of an injury. The
connection between a person’s injuries and the cause of those injuries can be established by lay
testimony if the evidence permits the use of common sense to link the act and the injury. Sw. Bell
Tel., L.P. v. Valadez, 02-07-00129-CV, 2008 WL 425746, at *3 (Tex. App.—Fort Worth Feb. 14,
2008, no pet.) (mem. op.) (testimony that plaintiff fell in hole and immediately felt shoulder pain,
absent before fall, established causal connection between fall and shoulder injury); Byrd v.
Delasancha, 195 S.W.3d 834, 837 (Tex. App.—Dallas 2006, no pet.) (testimony that pain started
after car accident sufficient to establish causation); see Morgan v. Compugraphic Corp., 675
S.W.2d 729, 732 (Tex. 1984) (evidence that plaintiff was in good health after returning to work
from vacation, but was exposed to typesetting machine leaking chemical fumes in her office, after
which she developed headaches and breathing problems, was enough for trier of fact to infer,
without expert medical testimony, that release of fumes caused injury). “Generally, lay testimony
establishing a sequence of events which provides a strong, logically traceable connection between
18
the event and the condition is sufficient proof of causation.” Byrd, 195 S.W.3d at 837 (citing
Morgan, 675 S.W.2d at 733).
Here, Lawrence testified to her good health and fitness before her marriage to Noble and
the beginning of the assaults. During the course of the marriage, Noble threw her down on her
right upper thigh so frequently that she now endures daily pain in her hip. That pain was described
by Davis as “[b]ursitis.” The medical diagnosis appended to Lawrence’s hip pain is not
determinative here. The controlling consideration is that Lawrence’s testimony enabled the trier
of fact to infer, without expert medical testimony, that her daily hip pain was caused by being
repeatedly thrown on her hip by Noble. It is undisputed that Lawrence was free of hip pain before
the assaults. That testimony is sufficient to establish causation. Accordingly, Davis’ charges for
Lawrence’s treatment are compensable.
Noble next contends that the amount of the $600.00 medical expense award is not
supported by the evidence.
“In resolving the sufficiency of the evidence to support damages, the trial court’s damage
award will be upheld if it is within the range of the testimony regarding the amount of damages
incurred.” Seabourne v. Seabourne, 493 S.W.3d 222, 230 (Tex. App.—Texarkana 2016, no pet.)
(citing Garza de Escabedo v. Haygood, 283 S.W.3d 3, 6 (Tex. App.—Tyler 2009, pet. granted),
aff’d sub nom. Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011); Cont’l Dredging, Inc. v.
De-Kaizered, Inc., 120 S.W.3d 380, 392 (Tex. App.—Texarkana 2003, pet. denied)).
Lawrence testified that she has incurred $600.00 in medical expenses related to injuries
inflicted by Noble and that she has paid “part of that” amount to Davis. In addition to seeking
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treatment from Davis, Lawrence visited a counselor in Winnsboro on two occasions, and she
believes she paid $50.00 for each visit. Noble claims, though, that Lawrence’s medical expenses
were only $407.00, as reflected in Davis’ statement.
While it is true that Davis’ billing statement reflects charges of $407.00, Lawrence’s
testimony, to which no objection was posed, is likewise evidence of damages. Because there was
more than a scintilla of evidence to support the trial court’s $600.00 award—an amount within the
range of testimony regarding this category of damage—and because we cannot say the great weight
and preponderance of the evidence indicates this award was improper, we overrule this point of
error.
(4) Sufficient Evidence Supports the Finding that the Rolex Watch Is Lawrence’s Separate
Property
In the division of property pursuant to the divorce, the trial court awarded Lawrence a
Rolex watch, finding that it had been given to her by Noble. The trial court therefore characterized
the watch as Lawrence’s separate property. Noble disputes this characterization, claiming that it
is unsupported by legally and factually sufficient evidence.
It is presumed that property possessed by spouses during or on the dissolution of marriage
is community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). This presumption can be
overcome, however, by clear and convincing evidence that it is the separate property of a spouse.
See TEX. FAM. CODE ANN. § 3.003(b) (West 2006). Property a spouse owns before marriage or
acquires during marriage by gift is separate property. TEX. FAM. CODE ANN. § 3.001(2) (West
2006).
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Here, the trial court found that Noble gave the watch to Lawrence during the marriage.13
We therefore review the alleged characterization error to determine if this finding is supported by
clear and convincing evidence.14 Should we determine that a characterization error has been
established, we must then decide if that error amounts to an abuse of discretion. See In re Marriage
of Mouncey, 404 S.W.3d 701, 706 (Tex. App.—Texarkana 2013, no pet.) (error in
mischaracterization of property in division of marital estate does not require reversal unless
mischaracterization materially affects just and right division of property).
“A gift is a voluntary transfer of property to another made gratuitously and without
consideration.” Id. at 710 (citing Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas
2007, pet. denied)). To establish the existence of a gift, the donee must establish (1) the intent to
make a gift, (2) the delivery of the property, and (3) its acceptance. Id. The intent to make a gift
must exist at the time of the transfer. Id. (citing Long v. Long, 234 S.W.3d 34, 40 (Tex. App.—
El Paso 2007, pet. denied)). The donor’s intent is the principal issue in the determination of
whether a gift was made. In re Marriage of Skarda, 345 S.W.3d 665, 671 (Tex. App.—Amarillo
2011, no pet.).
13
There is no evidence in the record regarding the characterization of the watch as Noble’s separate property either
before, or during, the marriage. We therefore presume that the watch was community property at the outset.
Consequently, a gift of the watch from Noble to Lawrence would simply amount to a gift of his one-half community
property interest in the watch.
14
Lawrence contends that, in this situation, the law presumes the transfer was a gift, in reliance on Somer v. Bogart,
749 S.W.2d 202, 204 (Tex. App.—Dallas 1998), aff’d sub nom. Bogart v. Somer, 762 S.W.2d 577 (Tex. 1988)
(presumption of gift when parents pay purchase price for real property and place title in name of child); York v.
Boatman, 487 S.W.3d 635, 642 (Tex. App.—Texarkana 2016, no pet.) (deed of real property from parent to child
presumed gift); and Richardson v. Laney, 911 S.W.2d 489, 492 (Tex. App.—Texarkana 1995, no writ) (deed of real
property from parent to child is presumed gift). Those cases are distinguished from the present case in that they
involve a presumption of a gift of real property to the object of one’s bounty. Further, because this case involves the
disposition of property in a divorce proceeding, the provisions of the Texas Family Code, previously cited, apply.
21
Lawrence provided the only testimony regarding ownership of the watch. She testified that
Noble gave her the watch after he had assaulted her, indicating that he did not want her to leave or
go to the police. Noble then removed the watch from his wrist and said, “I love this more than
anything else in my world . . . . This should show you how serious I am.” Following that
transaction, Lawrence kept the watch. There is no evidence that Noble ever asked Lawrence to
return it.15
Later, after the couple separated, Noble called Lawrence to ask her if anyone was aware
that she had the watch. He told her that he had reported to his insurance company that the watch
had been stolen from his home, along with some other things. He asked Lawrence to verify his
“story.” Lawrence had previously pawned the watch for $500.00 because it was “very pricey” and
she was afraid it would get lost or stolen. After Noble’s request to back up his story, Lawrence
15
In connection with the report of insurance fraud by Noble, Lawrence was asked:
Q. Did you have in your possession a Rolex watch?
A. Yes, I did.
Q. And how had you come in possession of that watch?
A. He gave it to me.
Lawrence later testified:
Q. And that was a watch that he had made a gift of you -- to you?
A. Yeah. He knew I had the watch. He had given it to me. He had given me that right after -- it was,
like, not long after I came back after I had left in January.
....
Q. He gave it to you or he told you to hold it?
A. No. He gave that to me.
22
retrieved the watch from the pawn shop, reported this false claim of theft to the Winnsboro Police
Department, and delivered the watch to them.
Noble contends that Lawrence’s testimony does not establish Noble’s intent to make a gift
of the watch. He relies on Christian v. Walker, 381 S.W.2d 675 (Tex. App.—Texarkana 1964, no
writ), for the proposition that a ratiocinative16 opinion that a gift was made in the course of a
conversation has no probative value. Id. at 677. Walker involved a parol gift of land, which the
alleged grantor denied having made. There, “the witnesses did not attempt to state the elder
Walker’s oral expressions word for word, or in substance, but . . . gave their understanding of the
meaning and effect of the elder Walker’s words.” Id. at 676–77. Here, we do not face the issue
of a ratiocinative opinion. Instead, the record reflects that Noble told Lawrence that he loved the
watch and that he gave it to her to demonstrate how serious he was about not wanting her to leave.
It is apparent that the watch remained in Lawrence’s actual or constructive possession until August
2016, when Noble contacted her about filing a false insurance claim.
Noble further contends that donative intent was not established because (1) Noble filed an
insurance claim regarding the watch and (2) Lawrence pawned the watch. We do not believe either
of these actions speak to the issue of donative intent at the time Noble gave Lawrence the watch.
Conversely, the fact that Noble filed a false insurance claim in which he reported the watch as
stolen is evidence that he did not expect the watch to be returned. The fact that Lawrence pawned
the watch for safekeeping sheds no light on Noble’s intent to make a gift at some earlier time.
Ratiocination is defined as “the process of exact thinking: reasoning” or “a reasoned train of thought.” Ratiocination,
16
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2006).
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Here, there is no conflicting evidence. Noble did not testify regarding ownership of the
watch or any lack of intention to give the watch to Lawrence. The trial court has great discretion
in determining the weight and credibility to be accorded to the testimony and clearly believed
Lawrence was a credible witness. We have reviewed the evidence in the light most favorable to
the finding and conclude that a reasonable trier of fact could have formed a firm belief or
conviction that a gift was intended. See Long v. Long, 234 S.W.3d 34, 39 (Tex. App.—El Paso
2007, pet. denied). We therefore conclude that the evidence is legally sufficient to support the trial
court’s finding. Likewise, in light of the entire record, the evidence is such that a fact-finder could
have reasonably formed a firm belief or conviction that a gift was intended. We thus conclude that
because the evidence is legally and factually sufficient, the trial court properly characterized the
Rolex watch as Lawrence’s separate property. In light of this determination, we need not perform
a harm analysis. We overrule this point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 6, 2016
Date Decided: November 4, 2016
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