Josephine De La Garza v. George H. Beckett ( 2002 )

                             NUMBER 13-00-785-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI

JOSEPHINE DE LA GARZA,                                        Appellant,

                                           v.

GEORGE H. BECKETT,                                                Appellee.

                  On appeal from the 156th District Court

                           of Aransas County, Texas.

                              O P I N I O N

         Before Chief Justice Valdez and Justices Hinojosa and Castillo

                                  Opinion by Justice Castillo

  

            Appellant Josephine De La Garza appeals from a jury verdict awarding her personal injury damages resulting from an automobile accident. In five issues presented, De La Garza alleges errors in the limiting of voir dire, the refusal of the trial court to allow a police officer to testify as an expert witness, the denial of a jury instruction regarding the transportation code, the factual and legal sufficiency of the jury finding regarding medical damages, and the refusal of the trial court to grant a new trial.  We affirm. 

Facts

On November 17, 1997, De La Garza and appellee George Beckett had an automobile accident.  At a two-way intersection in Rockport, Texas, Beckett=s car collided with De La Garza=s car, resulting in injury to De La Garza.   De La Garza, who had entered the intersection first, was hit on the left rear side of her vehicle by Beckett.  A yield sign was in place at the intersection, requiring vehicles traveling in the direction of Beckett=s approach to yield to vehicles nearing the intersection from  De La Garza=s direction.  Officer Mark Gilliam was the police officer who subsequently arrived at the scene and investigated the accident.  Exactly two years later, on November 17, 1999, De La Garza filed suit against Beckett for her injuries.

Jury voir dire and trial in this case began on August 14, 2000, and concluded the next day.  The jury found that Beckett was eighty per cent responsible for the accident, and De La Garza was twenty percent responsible.  The jury awarded De La Garza $56.00 for medical damages, which represented eighty percent of the $70.00 that she was charged for her emergency room visit following the accident.  Notice of appeal, following the denial of De La Garza=s motion for new trial, was filed on November 27, 2000.

Analysis

Limitations on Voir Dire

In De La Garza=s first issue presented, she argues that the trial court erred by limiting voir dire in the case to thirty minutes per side and refusing her request for additional time to conduct voir dire. 

Decisions made by the trial court in choosing to limit voir dire are subject to an abuse of discretion standard.  Babcock v. Northwest Mem=l Hosp., 767 S.W.2d 705, 709 (Tex. 1989).  In reviewing a trial court decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  The exercise of discretion is within the sole province of the trial court, and an appellate court may not substitute its discretion for that of the trial judge.  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985).  Rather, an abuse of discretion occurs only when the trial court reaches a decision that is Aso arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@  Id. at 917. 

An abuse of discretion occurs when the trial court=s decision to limit voir dire prevents the attorney conducting voir dire from determining whether grounds exist to challenge for cause or prevents the attorney from exercising his peremptory challenges effectively.   Babcock, 767 S.W.2d at 709. 

De La Garza incorrectly cites Babcock for the proposition that the trial court may not limit voir dire.  Babcock concerned only the limitation of voir dire questions related to a specific topic.  Id. at 707.  Babcock states that a Abroad latitude should be allowed to a litigant during voir dire examination.@  Id. at 709.  However, the Babcock Abroad latitude@ standard must be read in its context B that is, the trial court=s refusal to allow the appellants to ask questions related to the Aliability insurance crisis@ and Alawsuit crisis.@  Id at 708.  The court went on to find that the trial court=s refusal to allow such questions prevented the Babcocks from exercising their right to a fair and impartial jury by preventing them from asking questions directed at exposing prejudice and bias. Id. at 709.  No mention is made in that case of the setting of time limits for the conducting of voir dire.  Babcock does not stand for the proposition that the trial court must allow for unlimited voir dire.  Nor is that the rule in Texas; on the contrary, trial court judges are allowed to set reasonable time limits for voir dire.  Cantu v. State, 842 S.W.2d 667, 687 (Tex. Crim. App. 1992); Clemments v. State, 940 S.W.2d 207, 210-11 (Tex. App.CSan Antonio 1996, pet. ref=d). 

In evaluating whether a trial court abused its discretion in refusing to grant additional time, we may look to (1) whether the appellant=s voir dire examination reveals an attempt to prolong voir dire, for example by including unnecessarily repetitious, irrelevant, or immaterial questions; (2) whether the additional questions asked were proper voir dire questions; and (3) whether the party was prevented from questioning potential jury members who ultimately sat on the jury.  Ratliff v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985); Splawn v. State, 949 S.W.2d 867, 871-72 (Tex. App.CDallas 1997, no pet.).  A trial court is required to grant additional time for jury questioning Awhen a legitimate request, based on a showing of need to proffer material and necessary questions, has been made.@  Clemments, 940 S.W.2d at 211.  The trial court should not restrict proper questions which are designed to discover a potential jury member=s views on an issue relative to the case.  McCarter v. State, 837 S.W.2d 117, 121-22 (Tex. Crim. App. 1992).  However, the fact that an attorney may have been prevented from asking one or more relevant questions of prospective jury members does not transform an otherwise reasonable time limit into an unreasonable one.  Splawn, 949 S.W.2d at 872. 

For example, in Cantu v. State, the court of criminal appeals upheld a similar limitation on the time allocated for voir dire.  Cantu, 842 S.W.2d at 687.  In that case, the trial court allowed only half an hour for questioning of an individual potential jury member.  Id. at 686-87.  This time limit was imposed prior to the beginning of jury questioning, and was enforced against the appellant in that case.  Id.  The Cantu court held that such a time limit was reasonable in light of the Atotality of the voir dire.@  Id. at 687.

In this case, the issues involved were simple.  The attorneys for both parties were able to ask questions related to the possible bias or prejudice of potential jury members.  De La Garza=s attorney submitted a bill of exception containing a list of questions that he would have asked the jurors if he had been granted the fifteen additional minutes to question the panel that he requested. Some of these questions were either repetitive of other questions asked by De La Garza=s attorney, or were asked in substantially the same form by Beckett=s attorney, and appear designed to unduly prolong the voir dire process.^[1]  Other questions submitted by De La Garza do not appear to be designed to reveal the biases of the panel members.^[2]  While some of counsel=s remaining questions might have been designed to reveal bias, he would have been able to ask those questions had he better allocated his time.^[3] 

De La Garza=s attorney did not question many of the jurors individually, as his questions were directed to the entire panel at once. Thus, several members of the jury chosen in this case were not questioned individually by De La Garza=s attorney.  However, the additional questions contained in De La Garza=s bill of exceptions were likewise directed at the entire panel of jurors rather than at individual jury members. In sum, we find that the trial court=s refusal to grant De La Garza additional time did not constitute an abuse of discretion in light of the totality of the voir dire examination.  Accordingly, we overrule De La Garza=s first issue. 

Exclusion of Expert Witness

In De La Garza=s second issue, she argues that the trial court improperly refused to allow Officer Gilliam to testify as an expert witness. We find that De La Garza has failed to preserve this error.

In order to preserve an error related to the testimony of an expert witness, a party must first make an offer of proof or a formal bill of exceptions.  Tex. R. App. P. 33.2.  In that offer or bill, the party must specify what the proffered witness would have testified to if he had been allowed to testify.  Tex. R. Evid. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998).  Only by such measures may the failure to allow an expert witness=s testimony be preserved.  Fletcher v. Minnesota Mining & Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.CHouston [1st Dist.] 2001, no pet.).  In this case, De La Garza failed to offer such a bill of exceptions, and has thus waived error on this issue.  Accordingly, De La Garza=s second issue is overruled. 

Sufficiency of the Evidence

In De La Garza=s fourth issue, she argues that the evidence supporting the jury=s determination of medical damages and the jury=s assignment of respective liability to the parties was both factually and legally insufficient. 

In reviewing the factual sufficiency of a jury verdict, we must review all the evidence in the record.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  We will overturn a trial court=s factual findings only if the challenged findings shock the conscience, clearly demonstrate bias, or are so obviously weak or contrary to the great weight and preponderance of the evidence as to be manifestly unjust.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  If those factual findings are found to be against the great weight and preponderance of the evidence, we must set aside the verdict and remand the cause for a new trial.  In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951). 

We review a legal sufficiency challenge by considering all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party=s favor.  Formosa Plastics Corp. v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 853 (Tex. App.BCorpus Christi 1999, pet. denied).   A Ano evidence@ standard of review is applied when the party not bearing the burden of proof at trial challenges a finding of fact by arguing that the evidence is legally insufficient to support the finding.  Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied).  A legal sufficiency point may only be sustained when the evidence conclusively establishes the complete absence of a vital fact, the record discloses no more than a mere scintilla of evidence to prove a vital fact, or the court is bound by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, or the evidence conclusively establishes the opposite of a vital fact.  Hines v. Comm=r for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.CCorpus Christi 2000, no pet.). 

We find that the evidence was both legally and factually sufficient to support the jury=s determination as to medical damages.  The only witness presented on the damages issue was Chiropractor Bradley Hawkins, who testified that he had treated De La Garza subsequent to the accident for neck pain, headaches, and dizziness.  Dr. Hawkins testified that these symptoms were consistent with an automobile accident.  However, Hawkins further testified that he had treated De La Garza prior to the accident, in reference to injuries she incurred as a result of a 1996 automobile accident.  He testified that she had suffered neck pains at that time as well, and that her current neck pain may have been related to that prior accident.  He testified that De La Garza suffered from arthritis, which may result in neck pain.  He further testified that De La Garza suffered from high blood pressure, which includes possible symptoms such as headaches and dizziness. 

We find that, in light of Hawkins=s testimony, the jury could have concluded that the symptoms that De La Garza suffered were unrelated to the accident in this case.  Further, even though Hawkins was the sole witness to testify as to the injuries suffered by De La Garza, the jury may have chosen not to believe his testimony. See Caller Times Publ=g Co. v. Triad Communications, Inc. , 855 S.W.2d 18, 18 (a jury may choose to believe or disbelieve any or all testimony of a witness).  The jury is the sole judge of the credibility of the witnesses, and an appellate court may not review such a determination of credibility on appeal.  Walter Baxter Seed Co. v. Rivera, 677 S.W.2d 241, 244 (Tex. App.BCorpus Christi 1984, writ ref=d n.r.e.). 

De La Garza relies on several cases to bolster her argument that the jury should have found at least some medical damages beyond the $70 emergency room fee. See Srite v. Owens-Illinois, Inc., 870 S.W.2d 556, 558 (Tex. App.CHouston [14th Dist.] 1993), rev=d on other grounds, 897 S.W.2d 765, 769 (Tex. 1995); Hyler v. Boytor, 823 S.W.2d 425, 427 (Tex. App.CHouston [1st Dist.] 1992, no writ); Hammett v. Zimmerman, 804 S.W.2d 663, 666 (Tex. App.CFort Worth 1991, no writ).  These cases do not support De La Garza=s argument.  In Srite, as in this case, the injuries suffered by the plaintiffs were supported only by inconclusive testimony of expert witnesses.  Srite, 870 S.W.2d at 563.  Therefore, the Srite court held that the evidence was sufficient to support the judgment awarding zero actual damages.  Id.  In Hyler, the plaintiff presented objective evidence demonstrating an injury in the form of a CAT scan.  Hyler, 823 S.W.2d at 427.  Nonetheless, the Houston First District court affirmed a jury verdict awarding the plaintiff zero damages, noting that the injuries could be attributed to causes other than the accident.  Id. at 427-28.  In Hammett, the Fort Worth court reversed the jury finding of no actual damages based on undisputed, objective evidence of injury provided at trial, including testimony from a treating physician who had examined x-rays taken shortly before and after the accident in question.  Hammett, 804 S.W.2d at 668-69.  No mention is made in Hammett of any other alternative cause of the injury.  Hammett is therefore readily distinguishable from the present case, as many of the symptoms complained of by De La Garza are subjective, such as her headaches, and Dr. Hawkins was unable to rule out other potential causes of De La Garza=s symptoms.  There was no undisputed objective evidence produced at trial demonstrating the causation and extent of De La Garza=s injuries.  In light of these facts, reviewing all the evidence before us, we conclude that the jury verdict as to damages was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Maritime Overseas Corp., 971 S.W.2d at 406-07; Pool, 715 S.W.2d at 635. Viewing the evidence in the light most favorable to Beckett as the prevailing party, we do not find that the evidence conclusively demonstrates error in the jury=s damage award, and find that there was more than a scintilla of evidence to support the award.  See Hines, 28 S.W.3d at 701.

As to De La Garza=s arguments concerning the allocation of comparative responsibility in this case, we find that the jury=s determination that Beckett was 80% responsible, and De La Garza 20% responsible, was supported by factually and legally sufficient evidence.  De La Garza testified by way of deposition that she saw Beckett enter the intersection, but she thought that she could beat him through it. She stated that she quit watching him at that point.  While the jury was presented with evidence indicating that Beckett failed to yield and was clearly responsible in part for the accident=s occurrence, we find that De La Garza=s own testimony was sufficient to support a determination that she was at least partially responsible for the injuries she incurred, due to her failure to watch Beckett=s oncoming vehicle and her judgment in proceeding through the intersection despite initially seeing him enter it. Therefore, applying the above-stated standards for factual and legal sufficiency of the evidence, we find that the evidence was sufficient to support the comparative responsibility determination made by the jury.  See Maritime Overseas Corp., 971 S.W.2d at 406-07; Hines, 28 S.W.3d at 701.

Accordingly, we overrule appellant=s issue number four. 

Negligence Per Se

In her third issue, De La Garza argues that the trial court failed to include in the jury charge an instruction related to her claim of negligence per se. 

De La Garza=s requested instruction to the jury was, in relevant part, as follows:

ANegligence Per Se@ is the violation of a law, statute, or code designed to protect a member of the public: Texas Transportation Code ' 545.15 (a) states as follows:

AAn operator approaching an intersection shall stop, yield and grant immediate use of the intersection in obedience to an official traffic control device, including a stop sign or yield right of way sign; and 92) [sic] after stopping.@

In a cause of action based on both negligence and negligence per se, for instance, a party is entitled to an instruction on the standard of care derived from the statute as well as an instruction on negligence, when the statute goes beyond or is different from the common law duty.

A claim that the trial court failed to issue a proposed jury instruction is subject to an abuse of discretion analysis.  In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).  In order to preserve error on a claim that a trial court refused to issue a proposed instruction, it must be demonstrated that: 1) the complaining party must have presented a written request to the court that the omitted instruction be included in the charge; and 2) the party must have tendered the proposed instruction to the court in substantially correct language.  Tex. R. Civ. P. 278; Gilgon v. Hart, 893 S.W.2d 562, 565 (Tex. App.BCorpus Christi 1994, writ denied.  If error was preserved, the question to be considered on appeal is whether the proposed instruction was reasonably necessary to enable the jury to render a proper verdict. Texas Worker=s Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000).    

Without passing on propriety of this proposed instruction,^[4] we find that it was not necessary in this case for the rendition of an proper verdict.  Appellant argues on appeal that the omission of the requested instruction caused the rendition of an improper verdict because Athe jury was not properly informed that a common law violation of the Transportation Code had occurred . . . [which] probably caused the jury to not find appellee 100% at fault.@

We disagree.  Under the doctrine of negligence per se, a finding that one party violated the statutory law constitutes a finding that that party was negligent as a matter of law, provided that the statute was designed to prevent injury to the class of persons to which the injured party belongs.  El Chico Corp. v. Pool, 732 S.W.2d 306, 312 (Tex. 1987). However, the doctrine of proportionate responsibility still applies to a cause of action in which the jury has found negligence per se, provided that the claim does not fall within one of the enumerated exceptions to that doctrine in chapter 33 of the civil practice and remedies code.  Tex. Civ. Prac. & Rem. Code Ann. ' 33.002(c) (Vernon Supp. 2002); Smith v. Sewell, 858 S.W.2d 350, 356 (Tex. 1993). Those enumerated exceptions are: 1) worker=s compensation claims or exemplary damages suits against an employer arising out of the death of an employee; 2) any claim for exemplary damages; and 3) causes of action arising from the manufacture of methamphetamines.  Tex. Civ. Prac. & Rem. Code Ann. ' 33.002(c) (Vernon Supp. 2002).

In this case, the jury heard evidence during trial concerning Beckett=s failure to yield, specifically Beckett=s own testimony that he had been charged with failure to yield the right of way.^[5]  The jury in fact did find him at fault in this case.  However, simply because they found Beckett negligent in his conduct did not preclude them from finding De La Garza to be also negligent in causing the accident.  As stated supra, sufficient evidence was adduced regarding the fault of both Beckett and De La Garza to support the jury=s determination that De La Garza was 20% negligent.  There is no claim made that De La Garza=s claim falls within one of the three enumerated exceptions to the rule for proportionate responsibility.  Therefore, appellant=s assertion that the omitted instruction was necessary in order for the jury to have Aprobably@ assigned all liability to appellee, misstates the law applicable to the case.   We do not find that the  proposed instruction was necessary for the rendition of a proper verdict, and overrule De La Garza=s third issue. 

Motion for New Trial

In her fifth issue, appellant argues that the trial court erred in refusing to grant her motion for new trial.  The decision of a trial court denying a motion for new trial is subject to an abuse of discretion standard.  Pharo v. Chambers County, 922 S.W.2d 945, 947 (Tex. 1996).  In this issue, De La Garza merely repeats the arguments contained in issues one through four, and these four issues were also the basis for the motion for new trial.  Having found that those issues lack merit, or were not preserved for appeal, we find that the trial court did not abuse its discretion in denying a motion for new trial on those grounds.  Accordingly, we overrule appellant=s fifth issue.  

Conclusion

Having overruled appellant=s issues, we affirm the judgment of the trial court. 

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of August, 2002.

---

^[1] For instance, question number 14, which asks whether any jurors have ever had aches or pains in their muscles or joints, is similar to one asked by Beckett=s attorney, who questioned the jurors as to whether they had ever suffered from headaches, neck aches, or dizziness. 

^[2]  For example, question number 18 asks whether jurors feel that they do not have adequate time to devote to the trial, and question number 8 asks whether the jurors believe that trauma from an automobile accident may be harmful. 

^[3]  De La Garza=s attorney spent much of his time during voir dire examination asking jurors whether they knew each other. 

^[4] We note that the proposed jury instruction differs significantly from that contained in the Pattern Jury Charges.  See State Bar of Tex., Texas Pattern Jury Charges PJC 5.1, 5.3 (1996).

^[5]  As described above, Officer Gilliam did not testify as to who was at fault in the accident, and the accident report admitted into evidence did not implicate either party as being guilty of a traffic violation.