*1 506 against ap-
introduction of their Payner, v.
рellants. United States GUZMAN, Appellant, Jose Santos 727, 2439, U.S. S.Ct. L.Ed.2d 468. v. 21 in No error is Point case shown. each Castro, Eduardo GUAJARDO and is overruled. Individually Representatives and as Castro, De- Point 22 in each case asserts: “The trial Estate ceased, Appellees. overruling appellants’ court erred in motion quash the indictments for said indict- No. 13-87-273-CV. allege failure to specificity ments’ with Texas, Appeals Court upon alleged dates which the criminal com- Corpus Christi. bination formed”. Nov. 1988. joint to trial filed a appellants Prior mo- quash tion to the indictments. One of the Rehearing Denied Dec. grounds in such motion asserted was that allege any the indictments failed to upon alleged
specificity criminal The trial court
combination formed. over- quash. the motion
ruled
Appellants claim that the indictments quashed
should have been because give notice to appellants
failed beginning date
as to the
alleged conspir criminal combination alleged
acy. indictments that on оr April, 1987, 14th day appel
about the conspired aggravated
lants to commit delivery of an
offense unlawful unusual
quantity aof controlled substance and did
perform certain overt acts on or about that allega The State
date. is not bound
tion of “on or in an indictment as to about” offense,
the date of of an commission rely upon
may period date within the prior
of limitation to the return of the State, Nees
indictment. Tex.Crim. State, 186;
Appls., 402 S.W.2d Williams v. Ex
Tex.Ct.Crim.Appls., 63;
parte Hyett, Tex.Ct.Crim.Appls., 610 S.W.
2d 787. 22 in
Point each case overruled.
AFFIRMED. *2 McAllen, appellant. Welch, W.
Robin Garcia, Jr., Edin- Garcia, Felipe Ramon appellees. burg, for DORSEY, UTTER Before SEERDEN, JJ.
OPINION DORSEY, Justice. Castro, ap- Guajardo death action1 brought wrongful
pellees, Guzman, appellant, Jose Inc., Company, Payne Motor Ed employer, alleged that Appellees Farms. Payne acting in the course appellant, while 1986). (Ver- non 71.002 § & Rem.Code 1. See Tex.Civ.Prac.
scope employment Payne, pass. point, of his At that he three noticed small negligent children, operation of a motor ve- bicycles, two of whom were on proximately standing hicle and caused the death of the lanes of traffic. son, seven-year-old Wally. their initially While stated that the children away” he first were “about a block plaintiffs’/appel- At the conclusion of the them, sighted that he later admitted case-in-chief, lees’ the court issued a take- figure boys “could distance.” The two *3 nothing directed verdict favor Ed bicycles started to cross the road Payne Company Payne Motor Farms. direction, easterly but then went back to- Following evidence, completion boy, Wally ward the median. The third jury appellant found that caused Castro, proceeded run towards the east- 1) negligently driving Castro’s death at Appellant ern shoulder of the road. stated 2) speed, failing keep an excessive a “very was close” to his truck lookout, 3) proper failing prop- to take began running. He testified he appel- er evasive action. The awarded skidded, applied his brakes and but could $1,570,- damages totaling lees various striking not avoid the child. Appellant challenges 000.00. the sufficien- cy points of of the evidence fourteen Weslaco Police Officer Medaro Pena was error. We affirm. the first to the scene the acci- arrive at measurements, According dent.
By
through
points, appel
his first
fourth
right
long
skid mark
feet
and the
was 36
or,
lant
there
contends
is no evidence
long.
left skid mark was 26 feet
Both
alternative,
insufficient evidence
northeasterly
in a
direction.
were slantеd
jury’s negligence
proximate
cause
appellant
Pena stated that
told him that the
evidence”,
findings.
considering
In
a “no
impact
point very
had occurred
close to
at a
“against
“insufficient evidence” or
mark,
right
the northern end of the
skid
great weight
preponderance
of the evi
body
and that
had been found be-
error,
point
dence”
we will follow the
approximately
the truck
13 feet from
hind
well-established test set forth
Pool v.
investiga-
edge
of the shoulder. Pena’s
Co.,
(Tex.
Ford Motor
509 3) person Miguel duty; An- harm to whom videotaped deposition of jury. proximate result of played duty for the Mr. is owed as a ciso was also Store, his wife’s essentially Anciso corroborated Rosas v. Buddies Food the breach. although (Tex.1975). testimony, he estimated Wal- Appel- in front of ly only 15 to feet negligence jury’s three-part began to cross Texas lant’s truck when he finding is first on the conclusion based He also added that witnessed Avenue. “driving his vehicle at appellant was the truck Wally’s body pass underneath using speed person greater rate of than impact. after ordinary have driven” under care would eyewitnеss sixteen- circumstances, i.e., children were while Garcia, year-old testified that David who busy, standing in the middle of a two-lane length” a car was “about speed elicit highway. The evidence of he ran in front of it. Garcia truck when (“30 per to 35 miles appellant ed from yards from the when he accident (“31 hour”), Reynaldo Lopez to 32 miles *4 it occur. saw (“35 hour”), to 40 miles per Sylvia Anciso testimony reconstruction- of accident (41.55 hour”), Tony miles per Cordoba appel- of Tony formed the crux ist Cordoba hour). Regardless of witness per which stated that based on lees’ case. Cordoba believed, are unable to con jury we measurements, the location the skid mark findings speed of еxcessive clude that the (as impact to him point of the of told manifestly unjust proximate cause are Pena), the distance which Officer in dangerous circumstances in of the view impact, after he calculated truck traveled immediately appellant found himself which per appellant driving 41.55 miles that was prior to the accident. applied Taking hour before he his brakes. did jury appellant also found appellant’s speed, reaction into account person using a “keep not such a lookout as time, skid, time, lag length and the kept” and failed ordinary care would have appellant also estimated that was Cordoba right turn his vehicle to the to “swerve or away he first 87.82 feet when question..” occurrence in before the try realized he would have to to avoid a appellant that collision. Cordoba concluded Appellant initially testified that was had sufficient time in which he could have the children away” from “about a block effectively taken action evasive swerv- in center of the first saw them the when he ing sharply right to the so as to vehicle appel- portions then read road. Counsel striking Wally. avoid revealed that he had deposition lant’s previously stated that the children were testimony Appellant rebutted Cordoba’s away or “about 50 feet” “half a block” by calling to the stand McAllen Police Offi- Appellant ad- sighted them. later when opinion, Reynaldo Lopez. Lopez’s cer figuring distances. mitted he had trouble of 87.82 too Cordoba’s estimation feet was from this jury could have concluded high appellant’s it assumed that because testimony appellant that was inconsistent equipped tires when truck was with radial tires; tires, keeping proper a lookout. ply actually ply it had bias bias according Lopez, a “coeffi- to have lower action, length On the issue of evasive call for a cient of friction” which would of the marks and the location of the skid Lopez also distance under 87 feet. final least appellant had at impact point indicate angle of the skid pointed out his truck out to maneuver 36 feet which did, fact, appellant indicates that marks sides Experts on both Wally’s path. braking. right before steer his truck to angle skid marks of the testified that speed at “31 to Lopez appellant’s calculated appellant steered his vehicle shows that per miles hour.” 32 applying his right before slightly However, given there were
Negligence requires presence brakes. road, of the 1) guard on the shoulder duty part of no rails three elements: a on the appel- finding that another; 2) jury justified person to a breach of that one boys “jerked to sharply to swerve his truck two started cross and then lant’s failure back,” negligence Wally, hanging right and was who had been bicycles, “just one proximate cause of death. We onto back of one, two, going.” three and four. points kept overrule Mrs. Anciso’s regard. in this uncontroverted Appellant argues by point fifth jury’s error that the failure to find appears jury’s It thus “failure negligent, response to Castro was negligence find” could have been based 5, against the Special Issue No. so Wally, seven-year-old, the fact great the evi- weight preponderance following companions the lead of his older manifestly unjust. dence as to be yet quickly to react as was unable appellant’s began did truck special A to a issue negative answer unwilling to approach. are conclude We nothing more than failure amounts response Special jury’s Issue prepon refusal to find from a great weight pre- No. 5 derance of the evidence the facts which ponderance of evidence. Point five Inc., sought Ergon proponent prove. overruled. Dean, (Tex.App . —Aus writ). 1983, no This Court has the tin through Points ten thirteen chal jury’s “failure to authority to review a lenge sufficiency sup may find” the same manner which it porting jury’s award to jury’s findings. Cropper review a v. Cat $300,- $100,000.00 society, Co., erpillar Tractor *5 $200,- society, 000.00 for future loss of (Tex.1988). $200,- anguish, 000.00 for and a child negligence the of Where for 000.00 future mental issue, age of child’s above the five is at the negligеnce of judged is to be a standard Damages non-pecuniary for harm applicable conduct a child of the same society anguish as of such and age experience and and not an adult Wrongful Death are allowable under the Berner, 467 Yarborough standard. v. Statute, Ann. Rem.Code Tex.Civ.Prac. & 188, (Tex.1971); v. S.W.2d MacConnell (Vernon 1986). v. 71.001-71.011 Sanchez § Hill, 524, (Tex.Civ.App.— 569 S.W.2d (Tex.1983). Schindler, 249, 251 writ). Corpus Christi of society positive Loss of refers to a loss love, flowing from comfort and benefits the points to the Appellant would, in companionship plaintiff which a Ofelia, Wally grandmother, and Castro’s experienced if probability, reasonable have mother, in of his contention Lydia, family lost member had lived. Mentаl the negligent that the failure to find the child pain, tor anguish represents the emotional against evi preponderance the of the ment, suffering surviving family that on the dence. Ofelia Castro stated that wrong experience a result members accident, grandson day of she told her the Lillebo, ful death. Moore S.W.2d stay to come off of Texas Avenue and (Tex.1986). 683, 687-88 Lydia straight alley. home via an taught previously that she had testified Moore, Supreme Court of Texas crossing Wally dangers streets may con- factors be held which importance “keeping out for eye awarding damages for mental sidered cars.” 1) the society and loss of include: child, However, parent di- Sylvia Anciso testified on 3) 2) arrangements parties, of the Wally’s compan- living rect two examination eight from the bene- be or nine” absence of the deceased appeared ions “about 4) periods, harmo- years age. ficiary She further stated extended relations, 5) inter- common boys, ny family “strad- these older who were two Moore, at dling” “motion like ests and bicycles, made a activities. going to cross” Texas Avenue. were 688.
5H that are recognizing positive benefits Lydia testimony, According to Castro’s salaries used as benchmarks husband, Wally’s received and and her she i.e., “helping professions,” Eduardo, received separated Wally workers, counselors. He clergy, social сhild, of her mar- first child her found, attempting to consider Wally then without riage to Eduardo. She and companionship, or mother, quality of the her Ofelia. In moved with day expect- the life Dallas, per hour over that one Lydia Wally moved to where to a discount together years. ancy Fol- of the mother would they resided for two father, Eduardo, $193,000; Edna, Texas, for the stay value of lowing a short two $157,000. Although Wally had returned to Weslaco. grandmother for sever- living
been with attempting Dr. Dillworth stated accident, al months as of date guide- provide some “benchmarks” back planned had to move evaluating the loss jury aid the lines to (Wally her in with when school started.- quali- society, quantity but both day of the schoоl killed on the first ty would have year). up to the to determine. provided was aggressively assailed His were calculations examination, During Lydia identi- direct on cross-examination. pictures fied of her son she had taken at photo- birthday parties, of his and a several upon called to determine whether We are school, graph had taken Castro, mother, to the the awards keep in her She relat- asked wallet. anguish are so loss of ed a little had told her of how weight preponder- great accident and how she had rushed manifestly as to be ance of the evidence hospital, she her son scream- where heard inju- emotional unjust. The valuation of an time, ing pain. pregnant at the She trial, using ry accrues to the time of expecting give any day. birth history companionship and brief intangibles that wrestling values of Appellees deposition offered the tes- also sold, properly a task bought are Ramirez, timony of Dr. Ramiro a clinical community to members of the for twelve psychologist Lydia and who evaluated both *6 manage by a collective decision. How her husband before trial. Ramirez stated future to foresee the much more difficult Lydia signs hys- paranoia, exhibited inju- of such quality, quantity, and value teria, anger and result of her severe a ries. Lydia son’s death. also told him that her life,” son and that she was appellate was “whole duty of the intermediate outraged longer because he no existed. ab court, thankfully, is not to determine quantity, Dr. Ramirez found that func- unit value quality, was and initio death, tioning intangibles, and prior components well to her son’s unhappiness, if found present degree that her to determine the value rather evidence, loneliness, or un- anger prior jury to so and did not exist evidence, so as to be supported by the the child’s death. carefully manifestly unjust. After review- Dillworth, an economist Dr. Everett G. evidence, say cannot the awards ing the we consultant, the de- and evaluated business $400,000 and past to Castro of earning capacity and the value of ceased’s $400,000 future loss services, guide- provided his household manifestly anguish are and future put monetary jury lines to the to value Points of error unjust the evidence. under parents. Wally’s the loss of twelve, ten, eleven, and thirteen are over- earned Wally would have He found that Moore, at 688. ruled. See $565,000 discounting, after there through moth- nine assert services to his Points six value of his household alternative, or, in $86,000 in the if he assisted no er would have been evidence support jury’s to at- hours a week. Dr. Dillworth her ten of soci- $60,000.00for future loss society by to evaluate the loss of award of tempted $100,000.00 Reed, In ety for future mental an- v. States Utilities Co. Gulf (Tex.App. S.W.2d 849 guish Guajardo. Eduardo [14th — Houston n.r.e.), writ ref’d the Court damage Dist.] found no to Eduardo $10,000.00 jury’s upheld the award fоr five past. pain by a seconds of conscious endured trial, appear While did at Eduardo high minor who was electrocuted volt deposition Ramirez’s revealed age wire. relationship” “very good had that he had a Transportation Southern Co. Pacific Wally, although prevent- he had been Luna, (Tex.App. Corpus — getting very ed to his son due to close remand) 1987, writ) (on involved Christi negative feelings” the “intensified injured minor had in a collision who been Lydia. stat- Ramirez further between his father’s car and a train. Medi togeth- although they ed that had not lived cal that the child had no records revealed Wally approxi- er since Eduardo saw response painful stimuli did not im mately once a month while prove neurologically after the accident. moreover, Weslaco; their However, the child’s father testified that be, considering “as close as it could responded by opening his son him his hearing circumstances.” Eduardo has a occasionally during eyes the last weeks of Ra- disability and communicated with Dr. although his life. found it This Court through interpreter. this mirez We find kind of impossible know what an support the com- evidence sufficient felt, guish “responses” consti six, points plained-of findings and overrule conscious, he tuted some evidence that was seven, eight, nine. $50,000.00 justified jury’s and therefore award. Id. Appellant by point error contends that the evidence does not fourteen case, clearly instant the record $600,000.00 for the jury’s award felt Wally consciously reflects that severe pain anguish suf conscious being after pain for at least fifteen minutes immediately before fered by appellant’s struck vehicle. addition his death. certainly pain, the child was physical he terrified as a result of the situation appellant’s The record reflects that after upon found thrust himself. Given the evi- Wally, Wally’s body tumbled truck struck pain, youth, dence of and the inferred Appellant underneath the vehicle. testified suffered, we cannot the accident was “awake” after $600,000.00was man- say that the award of moaning. Wally’s compan- two is overruled. ifestly unjust. Point fourteen рulled ions him from under truck out tailgate, him and laid on the where judgment the trial court AF- Ly- remained until an ambulance arrived. FIRMED. *7 rushing
dia testified that after UTTER, Justice, dissenting. screaming hospital, heard her son the she pain emergency in in the room. respectfully I I dissent. believe for of damages awarded amounts of exactly does not reflect The evidence excessive, society anguish are and mental long physical how suffered conscious I or that the and would order a remittitur However, pain his death. Officer before for remanded new case be reversed and testified that was called to Pena trial. p.m. He saw the accident at 6:08 scene of thirteen, lying tailgate appellant’s of through on the points In of error six Wally's complained inadequacy truck at 6:11. mother heard about of the of appellants immediately left of dam- support the accident at 6:15 and award the evidence anguish doc- hospital, ages society where she witnessed of and mental for loss if there is attempting give additionally her son blood. She tors and claimed award, long did not remember how evidence to stated that she jury are excessive. hospital. amounts she at the found
513 arrangements par- (2) living Co., 730 Utility In Larson v. Cactus Moore, ties; the deceased (3) any of (Tex.1987) absence Pope 640 S.W.2d period; an extended (Tex.1986) Supreme plaintiff from the 622 our relation; family (4) harmony the standard of review Court clarified (5) in damages. The of actual interest activities.” actual amount remit- damages question is a fact and the definition a more discernible Reduced to proper damage award is titur of an actual if Supreme said Moore Court factually insuffi- the evidence is where family establishes proof of a Larson, support the award. cient to anguish mental and loss some evidence at Pope, 711 S.W.2d S.W.2d wrongful in a death case. companionship court Supreme stated that a Court previous from the departure This was appeals should examine all the evidence physical required some actual policy there is in the record to determine whether accompanying injury manifestation award; if support the anguish loss of socie- mental claims for Appeals should remitting, the Court of frequently the tes- ty. claims involve Such clearly why jury’s award is so state con- physicians psychiatrists timony of or so factually insufficient physical and mental illness cerning actual great weight preponderance the evi- the loss. This the so resulting from manifestly unjust. Pool dence as to be See require- “physical manifestation” called Co., 629, 635 v. Ford Motor Recog- anguish recovery. ment for Therefore, (Tex.1986). as actual as far evidentiary requirements, nizing Moore concerned, damages are not con- are we damages review the evidence will now prejudice, passion, cerned with evidence in this case. jury in improper or other motive First, turn damages. determining remittitur of actual at home testified she was Castro. She Pope, 711 at 624. S.W.2d something boy told her that when a little are While the above-stated standards Wally and that happened to her son had logical clear cut and a extension of the hospital. She taken him to the they had standard for review which has been grabbed keys just that she stated Supreme place years, for almost 100 got there.” “I don’t know how took off. IAllebo, Court’s decision Moore v. hospi- got to the stated that when she She (Tex.1986), appli- has made the S.W.2d straight, tal, lying she she saw her son damages test to for loss of cation of this crying, then and started opened the door wrongful Then she crying. he saw her and started difficult, impossible. if not death cases screaming. There was heard her son Moore, Supreme Court held that lay any other testimony from her or anguish is to defined “as the emotional be pain, tor- concerning any emotional witness torment, pain, suffering ment, suffering may have suf- that she would, plaintiff proba- named reasonable past, present, or future. fered bility, experience from the death of a fami- trial, one month before Approximately ly court then went on to member.” The Ramirez, a Dr. attorney sent her to positive define loss оf “as the bene- spent love, comfort, Dr. Ramirez psychologist. com- clinical flowing from the fits evaluation hours plaintiff approximately the named two panionship, and Castro, Ofelia Cas- would, probability, experi- in reasonable conference with *8 Guajar- tro, Wally’s grandmother, if the decedent lived.” The Court ence Garcia, father, Ly- do, Wally’s on to hold that: and Simon then went Dr. Ramirez testi- present husband. dia’s awarding damages for mental an- “in very defensive family fied companion- guish loss of from gained more case, that his results were wrongful death the trier ship Lydia. interviewing feelings he had after may instructed that it of facts shall be question counsel’s of whether (1) In answer to between thе consider child; symptoms which wife; or parent or a or not the attributes husband and friends, relatives, any priests or show might exhibited Lydia displayed have been accident, torment, suffering, past, replied: pain, or prior to the Dr. Ramirez emotional or future. I the awards present, believe very strongly, psychologi- in all I feel anguish are not past for and future mental condi- probability, that even if these cal and, supported by are exces- exist, the evidence they existed at did I don’t feel tions $150,- require I a remittitur type The of individual that sive. would this level. anguish. I would or- personality past 000 for almost like a histrionic $100,000 re- men- everything she felt for future quite, where der a remittitur brought a lot around here. Shе anguish. volved tal of attention to herself. the sum Additionally, awarded However, specifically I asked when $100,000 past loss of son, questions about her she would $300,000 society. Lydia’s for future loss of me, son, say change; her she is would Wally born on testimony showed that world, life, I my my is whole whole she, Wally and September and that be, but don’t know how true that would together one his father lived about outraged the son did with the fact that Wally’s sepa- father year. In she and anymore. not exist her Wally and she and lived with rated Now, guilt it out of of not whether was 1981, Lydia, Wally and mother Ofelia. guardian or being able to be a better to Dallas present husband moved her provider, I But I do don’t know. better approximately two they stayed for where brought this incident has believe and in They then moved to Edna years. brewing previous- in there whatever was At to Weslaco. May they moved back brought upit to the surface. She ly, just time, grand- his moved with intensified, very very angry individu- is a mother, Lydia testified that Ofelia. al. supposed stay with her mother only question, Dr. Ra- In answers to counsel’s September, school started until mirez further testified: living grandmother his still with prognosis, as I wrote here 5th, the opened September school psycho- I report, poor to fair. feel that direct-examination, day he was killed. On beneficial, therapy very but she would be Lydia testified: resistant, very very angry, she’s she started, Q. though school had And even feelings intensified of frustration has day had not discus- you up to that case, this whole matter. with this whole living your mother about sion with she good I how of a candidate don’t know you again? with Her lack of psychotherapy. would be for A. No. I sophistication, ability, intellectual don’t living his Wally’s with asked about When good of a she would
know how candidate Dr. Ramirez testified: grandmother, that. be for poor prognosis, guess, poor Q. they indicate that the little did When good grandmoth- living Ofelia? [boy] fair. It’s not as as had started with er, good think it’s as and even don’t from Moved back to Weslaco A. ’85. ex-husband’s. her grand- Dallas, stay with wanted to mother, boy wanted to live the little Lydia regarding her testimony grandmother. his with Wally’s she first heard reactions when injuries mirez’ ent award testimony in this in hеr evaluation interview testimony of her frustrations $200,000 at the record to hospital plus is the Dr. appar- Ra- Q. time that this little Did # with they [*] talk grandmother? [*] boy was you # about living at the [*] the fact # Yes, saying that were $200,000 A. think for future mental living grand- . the little Lydia’s moth- There nowas husband, mother. er, present *9 Wally your lived mother with Q. you ask them that situa- Did about there Weslaco. tion, why that was? A. Yes. was, in response
A. I think what couple Q. right. All And that was for a case, the little the mother’s years? grand- very comfortable with felt grandmother take A. Yes. mother—his would arrangement an ar- That him in. Q. During Wally’s that time did father to be rangement everyone Wally? seemed opportunity to see have agreed. Wally, yes. used to see A. He you Q. Okay. that be when or Would living referring Wally with Wally see mother takе your would her, Wally “my Castro referred to Ofelia him? addition, “my child.” In Ofelia son” or Right. A. only never testified that (sic) Q. pick up him at going stay with her until school started. He didn’t some your house? sup- only The other evidence offered to A. No. damages for loss port Lydia’s claim for Lydia testified: further society group companionship and Q. his fa- Did ever talk about birthday parties pictures taken at different ther? given Wally. than Lydia had Other pictures, testimony or these there was no to me. A. Not nurture, love, affection, caring, evidence of concerning the testimony family relationships, or harmony relationship Wally and his past. common interest and activities in the Guajardo came from Dr. Ramirez. Eduardo Except society compan- the natural The sum of Dr. Ramirez’ ionship the evidence showed existed stated as follows: best past presumption some in the and a feeling got I is that —and the in the type relationship would continue give feeling they wanted to me was future, absolutely is there no evidence good relationship. The had a companionship very good had a father I future. do not believe that there suffi- Seeing intensified boy. with cient evidence the record of this case feelings that the father and negative sustain the amounts awarded to Cas- had, there was some doubt the mother companionship tro for the loss of and socie- father my understanding I ty require of her sоn. would a remittitur really get that close to the little could $50,000 society and loss of refused to boy, the mother because companionship. require a remit- would and care for speak to the father even $200,000 titur of for loss of the father. companionship in the future. me—what was shared with But what me, father with the also father was shared with awarded individually, $60,000.00 to him with Guajardo the when talked sum $100,000.00 boy, little that it was the uncle of the for future loss of good, as close as positive, it was it was for future mental Eduardo Gua- be, considering the circumstanc- testify by deposi- could jardo did not at trial Castro, asked whether es. tion. when separated
Eduardo saw after she they indicate that Q. often did How living her mother from him and was seeing boy? little until 1981 when she presumably part, latter towards the A. think Garcia, testi- to Dallas with Simon moved (sic) I think a month. maybe one fied: year For the first something like that. together on a lived parents Q. you went to Dal- What about before las, you you you daily basis. I believe said lived— *10 society generic in a for a have entire record and the and situation I searched the in- only testimony family similarly family re- testimony is the situated to above comfort, However, love, companionship attempt herein. no was garding volved society by and of Dr. appellee any his made to connect Guajardo. than testimony Eduardo Other the the of this Dillman's to the facts comfort, love, society companionship and hypothetical questions were ease. No ordinarily Dillman, would flow between a fa- which expert opinion asked of Dr. and no son, testimony ther and there is no given applicable Wally’s to the facts to was I him, would such an award. which parents his or theirs in not the evidence this case is believe opinion Dillman’s loss of to sustain Dr. on $60,- to sustain the award of addition, society. In there no evidence was companionship for loss and socie- 000.00 of helped introduced to show that ever Guajardo. require I would ty to chores, his there- mother with household $30,000 companion- remittitur of for loss of fore, $86,000 for Dr. Dillman’s estimate of past. ship society the loss of household services in this Dr. Dill- without foundation record. Additionally, awarded Eduardo testimony man’s no of constitutes evidence $100,000.00for Guajardo the sum of future the amount of loss of love again, Eduardo did Once in by parties case. suffered this torment, pain, testify any emotional not suffering any relative or friend or nor did damages concerns last item of testimony only his behalf. The in this $600,000 me is of the con- the award Ramirez, again given by Dr. record was pain suffered scious at the time of the evaluation exami- taken immediately death. before his deceased nation, when he stated: sequence after accident is time evaluation, again, according But to the Upon her p.m. p.m. from 6:08 until 6:15 results, of the evaluation the kinds hospital Lydia that arrival at the testified him, things I felt asked that screaming. saw heard him she her son and great was under moment, deal distress at long hospi- how she at the When asked was apparently seemed to be tal, Lydia didn’t She was stated she know. very uncomfortable that evaluation time not to estimate the amount of asked family session with his ex there and the hospi- nor hospital, she was in the were my results, according But there. the time tal records introduced show very felt that he disturbed was over acci- showing than death. Other son, fully, major— and a accident p.m. approximately 6:05 happened dent major depression like his and a full-blown at 6:15 hospital called to was wife, exhibiting, not Lydia, or was p.m., showing no of the amount there was seen. pain. physical time suffered showing of again, there was Once testimony Appellee’s refers brief grief anguish that the natural of one of to the accident the witnesses parent expected to suffer one would be moaning in he saw the child awake and death son. There from the of a truck. One pain after he was struck pain, emotional torment other evidence of moan- testify that the witness did child suffering, justify an sufficient to award the child ing softly also testified that $100,000.00. require a remit- would moving pain. if he Noth- $50,000 loss of titur of attempts frame this ing the record companionship in the future. sequence time also brief, accident the child’s death. Appellee, reply refers to the its accident, she saw testified after the testimony of a Dillman as some Dr. Everett open were eyes and that of the amount of loss love and deceased refer- pain. There is no parties. Dill- and that he was suffered Dr. $157,000 in time of observation point ence to this testified the amount man record either. death figure for loss of love child’s was a benchmark showing the time of No death certificate COUNTY, Appellant, into evidence. There
death was offered CAMERON doctor, nurse, or *11 no from a v. hospital personnel any to show con- RIVERA, County Joe Cameron G. pain anguish scious sustained Clerk, Appellee. testimony presented, I Wally. Under the is not believe the evidence sufficient No. 13-87-449-CV. $600,000for sustain the award of conscious Texas, Appeals Court require pain I would Corpus Christi. $400,000. remittitur of a appears majority opinion It me Nov. holding Supreme
misconstrues the of our Lillebo, in Moore
Court S.W.2d
(Tex.1986). Moore, Supreme Court necessary
simply prove held that it is not physical anguish of mental manifestation opinion
damages. Nowhere in the does the hold, does,
Supreme majority Court as the damages the role of of such review longer sufficiency
the Court is illogical to its conclu-
the evidence. Taken extreme,
sory majority’s review stan- mean million award
dard would $50 finger up-
for a would have broken to be if
held someone testified that broken
finger anguish caused mental damages. There is
found million $50
simply no basis for such a rationale in the common of this state. In both
current law Pope, Supreme re-
Larson Court position its
affirmed that the standard of damages sufficiency for all
review actual
of the evidence. The must be to support the amount of the damages. In neither
award of these exception
cases nor Moore carved general anguish rule for
damages. applying the appropriate
standard of review to the mental case,
damages in this would find the
evidence was not sufficient damages awarded this case.
amount order a remittitur the total would $980,000.00. If the
amount of remittitur appellee, would order not offered Brownsville, appel- Roerig, Jeffrey D. case reversed remanded for a new lant. trial. Brownsville, Barrera, ap- L.
Horacio pellee. C.J., NYE, DORSEY
Before KENNEDY, JJ.