*1 every each and element proven State has BENAVENTE, a reasonable doubt. You will know
beyond Appellant, Maricella ....”; that, court held under plurality, Blue trial court’s reasoning of voir dire did not during comment consti GRANGER, Appellee. Daniel error that would obviate
tute fundamental contemporaneous objection). need to make No. 01-08-00227-CV. object, failed to we hold that
Because she Texas, preserve has failed to appellant this issue (1st Dist.). Houston for our review.2 We overrule appellant’s point sole of error. Oct. 2009.
CONCLUSION judgment
We affirm the of the trial
court. SHARP, concurring.
Justice SHARP, Justice, concurring.
JIM
I emphasize write concurrence to
any attempt by “clarify” the trial court to “beyond
the notion of a reasonable doubt” could, depending upon
for the venire used,
tone of voice and other mannerisms
easily by juror gloss be construed as a to minimize the import
intended this by juror
standard which а is to arrive at very important potentially
his or her
life-altering decision.
Here, the language used was both inart- confusing.
ful and Absent an audio re- know,
cording, we cannot nor should we to,
speculate as the tone of voice or other by possibly employed
mannerisms the trial
court in its communications with the veni- judge prejudic-
re. That a trial would risk a defendant at voir dire speaking of
legal concepts best left to trial counsel
(who so), responsibility bear the to do
ill-advised. Having appellant appellant’s point concludеd that failed the merits of error. preserve appeal, her issue for we do not reach *2 McKamie, Sr.,
Reginald E. Law Office P.C., McKamie, Sr., Hous- Reginald E. ton, TX, Appellant. for Drews, Sprague, Jackson Cooper, Karl Houston, TX, Boanerges, Appellee. for & Panel consists of Chief Justice and Justices SHARP and RADACK TAFT.1 OPINION RADACK, SHERRY Chief Justice. Benavente, appeals Appellant, Maricella upon judgment, from a rendered as, Taft, justice, participating by assignment. Tim retired 1. The Honorable Tex- for the First District of verdict, nothing that she take her suit NATURE OF BENAVENTE’S damages resulting for from a rear-end au- CHALLENGE issue, tomobile collision. In one she con- Benavеnte’s sole issue asks “wheth *3 jury tends that “the verdict is incorrect jury er the verdict is incorrect and that prevailed should as a [she] have plaintiff prevailed should have as a matter of affirm. matter law.” We of law.” Benavente states that legal
“this is a
sufficiency challenge,” her
issue is ambiguous as to whether she is
BACKGROUND
challenging
legal
the
or factual sufficiency
Appellee,
Granger,
Daniel
rear-ended
of the evidence.
car
Granger
Benavente’s
with his car.
wrote,
Justice Calvert
“It was
said
lane,
was
in the left-most
ap-
the beginning
magic
in words in
proaching an intersection. Two or three
points of error shоuld be as extinct as the
him,
cars were
in front of
where
Calvert,
dodo bird.” See Robert W.
‘No
light
only just
green.
turned
Al-
Evidence’ and
Evidence’
‘Insufficient
though
light
green, Granger
Error,
Points
361,
38 Tex. Law Rev.
of
down
slowed
because the cars
(1960). He further advised:
him
moving.
not
He had observed
were
If the language
point
of a
of error leaves
lane,
traffic in
adjoining
and he esti-
a
of
Court
Civil
in doubt as to
mated that he was driving about 10 miles
whether it is a “no
point,
evidence”
an
per
slowly
hour more
than the drivers in
point,
“insufficient evidence”
“pre-
or a
the next lane.
ponderance of the
point” point,
evidence
son,
Granger’s 10-year-old
who was a
the Court should
resolve the doubt
car,
in the
passenger
pointed
yellow
out a
looking
procedural
predicate for
car that was approaching the intersection
point,
argument
point,
under the
Granger
from the side lane.
briefly looked
prayer
and the
for relief.
car,
up
yellow
at the
which he believed was
Id. at
back,
Lamborghini.
When he looked
the party’s
ambiguous,
When
brief was
saw that
the cars in front of him were
we and other
appeals
courts of
have looked
stopped on the other side of the intersec-
party’s prayer
to a
for relief to determine
hard,
tion. He braked
but his car hit the
See,
what standard of review to apply.
rear end of Benavente’s
which then
L.L.C.,
e.g.,
Offshore,
Skains v. Torch
No.
with the car in front
collided
of it. Gran-
01-07-00008-CV,
963039,
2008 WL
at *1
ger
very
testified at trial that there was
10,
(Tex.App.-Houston
April
[1st. Dist.]
impact
little
inside his car.
2008,
(memo,
no pet.)
op.) (construing issuе
Benavente sued
for negligence.
sufficiency
to be factual
when appellant
alert,
Granger testified that he was
review,
legal sufficiency
cited
standard of
closely,
too
and not speeding,
analyzed
sufficiency,
issue as factual
although he conceded that he hit Bena-
remand);
sought
City
Park v.
Univ.
of
cross-examination,
vente’s car. On
Doren,
(Tex.
Van
246-47
agreed that a driver should be attentive to
denied)
App.-Dallas
pet.
(construing
him,
traffic around
maintain a safe dis-
appellate issue
legal sufficiency
to be
when
tance,
speed.
and drive at a safe
appellant described issuе in terms of factu
negligent,
found that
sufficiency,
al
but cited no standard of
rendition).
appealed.
review and sought
OF REVIEW
suffi-
STANDARD
legal
brief recites the
However, in
review.
ciency standard
factu
party
attacks the
“When
argues for
argument, she
one-page
her
finding
on an
sufficiency
al
adverse
Transporta-
liability
the Texas
under
strict
proof,
which she has the burden of
issue on
Code,
is
the “evidence
saying
appeal
that the
she must demonstrate
negli-
that Mr.
overwhelming
great weight
finding
against
adverse
is
absolutely no evidence
there is
gent and
the evidence.” Dow
negli-
Benavente was
that Ms.
whatsoever
242. In
46 S.W.3d at
Chem.
argumеnt
is
any
This
gent
respect.”
finding
against the
challenge
that a
*4
sufficiency than of
like one of factual
more
of the
great weight
preponderance
and
in essence
sufficiency, as Benavente
legal
evidence,
weigh
we consider and
all of the
great
the
against
verdict is
argues that the
may
aside the verdict
evidence and
set
of the evidence.
weight
preponderance
and
great
the
only
finding
against
if the
is so
Francis,
v.
46 S.W.3d
See Dow Chem. Co.
weight
preponderance
and
of the evidence
(Tex.2001)(“When
237,
party
attacks
242
Id.;
wrong
and
that it is
sufficiency of an adverse find-
the factual
(Tex.
Bain,
175,
v.
709 S.W.2d
176
Cain
has the
an issue on which she
ing on
1986).
and
jury may
A
believe one witness
proof,
of
she must demonstrate
burden
another,
may
resolve in
disbelieve
and
against
finding
that the adverse
is
appeal
testimony.
in any
consistencies
witness’s
of the
weight
preponderance
great
the
(Tex.
Adams,
322, 327
Eberle v.
73 S.W.3d
evidence.”).
addition,
In
denied).
2001, pet.
App.-Houston
Dist.]
[1st
remand, which is
prayer for relief seeks
remedy for factual insufficien-
proper
the
NEGLIGENCE
Tex.
Indem.
cy. Compare
v.
Gen.
Glover
jury charge
included the fol
(Tex.1981)
400, 401-02
619 S.W.2d
lowing relevant definitions:
reme-
for new trial is
(holding that remand
evidence)
failure to use
dy
insufficiency of
“NEGLIGENCE” means
for fаctual
care;
Corp.,
ordinary
say,
821
that is to
failure to
with Beach v.
Trust
Resolution
241,
ordinary pru-
(Tex.App.-Houston
person
[1st
S.W.2d
245
do that which
writ)
1991,
(holding that rendition
the
no
dence would have done under
same
Dist.]
evidence).
circumstances,
remedy
doing
is
for no
or similar
person
ordinary prudence
which a
Moreоver,
trial,
for new
her motion
would not have done under the same or
pre-
that “the evidence
argued
similar circumstances.
conclusively proved that
sented at
trial
therefore,
negligently,
acted
“ORDINARY CARE” means that de-
defendant
were
be used
jury’s findings
against
gree
of care which would
person
ordinary рrudence
of the evi-
under the
Thus, Benavente’s factual suffi-
same or similar circumstances.
dence.”
challenge
preserved.
See Tex.R.
ciency
“PROXIMATE CAUSE” means
324(b)(2).
Civ. P.
which,
cause
in a natural and continuous
event,
with-
procedural predicate
sequence, produces
Considering
relief,
for
we
out whiсh cause such event would
argument
prayer
and her
occurred;
have
and in order to be a
challenged
that Benavente has
conclude
cause,
sufficiency
proximate
the act or omission
the factual
of the evidence
per-
of must be such that a
complained
verdict
support
using ordinary care would have fore-
son
negligent.
749
event,
imposed
or some similar
under the common
seen that
law. See
event, might reasonably result
there-
id.
may
from. There
be more than one
law,
common
Under
the mere oc
an event.
proximate cause of
currence
aof
reаr-end collision does not
prove
Benavente had the burden to
negligence
establish
as a matter of law.
negligent
and that his
Sava, Inc.,
840,
Jordan v.
850
negligence
proximate
was a
cause of the
(Tex.App.-Houston
no
[1st Dist.]
Dietz,
845
occurrence.
See Neese
Neese,
pet.);
without with another vehicle.” trier of the Id. facts.” Conflicts in the Transp. 545.062(a) §§ Tex. ANN. Code testimony present credibility witnesses’ distance), (maintaining following questions for the to resolve. Id. at (Ver 545.351(b)(2)(controlling speed) car’s 314-15. 1999). essence, non in argues, Benavente the collision itself is evidence that parties provided partial us with a Granger violated those statutes and that record, reporter’s consisting only of Grаn- proves violation of those statutes specific ger’s testimony.2 trial Granger testified of negligence. acts moment,” away that he looked for a “brief slowly that he was more than sur- requires statute that a driver
“[A] traffic, rounding that he slowing down proceed safely imposes on the driver a approаched stopped by light as he cars a care, duty precluding of reasonable thus just green, that had turned and that he negligence per se instruction.” La.-Pac. “tailgating.” He testified that he Corp. Knighten, 976 S.W.2d 675 alert, although he also testified that (Tex.1998); see also Pool v. Ford Motor from the car in him was distracted (Tеx.1986) 631-32 during the moment that he looked at the (concluding appeals that court of erred in hand, yellow Granger car. On the other holding negligence per applied se to also that he “ran testified into back of 6701d, speeding under article section 171(b) yes, Granger her I did.” testified that of former Texas Revisеd Civil Stat collision, utes). saying, it was not a forceful Likewise, “[I]t a breach of section asked, say was a touch.” When “You can’t negligence per 545.062 does not constitute fault, you?,” she can was at re- Knighten, se. at 675 & n. 1 S.W.2d “No, cross-examination, plied, I can’t.” On (construing substantively language same that, 6701d, predecessor general, statute in article testified a driver sec 61(a) pay should attention and maintain a of former Texas Revised Civil Statutes). imposes Section 545.062 on the distance are safe for the duty driver the same of reasonable care as conditions. He later testified on redirect parties аgreed proceed parties 2. The here have nated constitutes the entire partial reporter's pre- purposes record. We “must record for the stated 34.6(c)(4). partial reporter’s desig- points sume that the record or issues.” P. Tex.R.App. despite the kept again. point, he felt thаt he had ahead At that examination that fact that he later claimed at trial that he safe distance. the cars “tailgating,” had not been saw provided, Considering all of the evidence ahead of him on the other side of verdict was not so we hold that intersection, “just lights,” brake saw prepon- cоntrary (his) hard,” very ... “applied brakes but that it was derance of the evidence room,” just and he enough “there wasn’t overrule Bena- wrong and We pre- hit car. he had vente’s sole issue. viously that it had not been rain- testified CONCLUSION day, describing when the actual collision, “the Granger asserted that inter- of the trial judgment We affirm the slippery section was from oil whatnot court. just stop complete- ... could not and [he] SHARP, dissenting. ly” Justice SHARP, Justice, dissenting.
JIM Despite Granger’s contention that he driving only guess had been “I would be- Granger’s testimony I believe that own hour, per possibly tween five and ten miles duty that he violated his establishes less,” even rear-ended engaged in specific reasonable care and “very light” what he described as a negligence that caused the acts of collision. impact, he vehicle in damaged her both testimony, According to his as front, rear damaged lights, front *6 approached the intersection his Camaro and “crumpled caused the hood to be and work, Z28 with his son en route to he Despite bent.” that Granger’s insistence 1,000 his some started to reduce right only he had looked to the “for a brief yards more from the intersection. second,” Granger himself established that There were two or three cars in the lаne in (1) away long enough had looked both traveling which he that were already engage to in a conversation with his son stopped light. light changed, at the (2) approaching about the car and to iden- forward, and he continued with the same tify specifically by (yel- the car both color him in cars ahеad of the intersection. low) and make (Lamborghini). When he was about to cross the intersec- tion, approach- being he was distracted a car How is one who admits to distract- right “glanced from the from moving, stop-and-go long ed traffic right” enough identify “for a brief second” to look at it. color and mаke of especially He had a brief conversation with his son an rare not negli- automobile when, about turning gent just the car1 before back to look as entering “[he] was son, curiously pointed Lamborghini 1. inconsistent about out the to his son, how this conversation started. testifying even that he had told his only we have his cross-examina- "Look at that. I mean check that out.” trial, testimony parties as from Twice he denied that it was his son who provided appeal, a limited record on it is had drawn his attention to the apparent testimony from that question response second time in to a from changed positiоn repeatedly his on this judge. being But after confronted with point. suggests The record at trial deposition, Granger audiotape of his stated, deposition first in his be- changed again, position testifying his trial, fore that his son had been the one to pointed had been his son who out the trial, point out the car to him. But аt yellow Lamborghini. position took the that it was he who had intersection, he looked forward and saw Rodney TOW, as Trustee of the Bank the cars had on the other ruptcy Consunji Estate of Erwina
side,” yet still slammed into the rear Consunji, Appellant, Bernardino of the car front of him with sufficient force to cause that vehicle to hit the car in front of it? PAGANO, Scott K. Campbell D.C. and mayWe all be able to tell Pontiac from Clinic, Chiropractic P.C., Camp d/b/a Volvo, cars, but when it comes to rare Chiropractic bell Center, Ap Wellness the identification not only pellees. not instanta-
neous, requires but some careful review to No. 01-07-00464-CV. one distinguish from another. Fiat? Fer- rari? Maserati? Alfa Romeo? Lancia? Texas, (1st Dist.). Bizzarrini? DeTomaso? Ghia? Inter- Houston Design? meccaniea? Iso? Ital Pininfari- Nov. Vignale? Zagato? na? Mercedes?
Bentley?
Under these facts and the reporter’s provided,
record I would hold that Bena- provided
vente overwhelming evidence of
specific acts of negligence Granger’s
part: paying attention to the traffic him, closely too for the
conditions, rapidly too for the specific
conditions. But for these acts
negligence, Granger would not have rear-
ended Benavente’s car. *7 evidence,
Considering all of the contrary verdict was so of the evidence
as to be wrong I appellant’s
would sustain issue and remand
for a new trial.