*1 378 punishment charge out, if points there has been a impossible As Williams it is
deadly weapon finding. portion deliberations; thus, A of that inquire into the erroneously instruction was finding left out of the speculation. of harm would be mere charge: Id. case, applicable Under the law in this jury The court instructed the not to con- the Defendant is sentenced to a term of good sider the extent to which conduct time imprisonment, eligible he will not become may by be awarded to or forfeited “this parole until the actual time served particular defendant.” He further instructed equals imposed one-half of the sentence jury “not to consider manner less, thirty years, whichever is without parole may applied which the law be to this any good consideration conduct time he particular presume defendant.” We that the may earn. is sentenced to If Defendant jury followed the court’s instructions and did years, term less than he must four parole. not consider Id. Williams claims years eligible serve least two he is before jury may imposed have maxi- parole. Eligibility parole does not mum sentence because of a concern that he guarantee parole granted.3 will be good could earn time conduct that would
Although
parole
period
submission
in
decrease the
of time which will
struction mandatory, any
by
This, however,
error
required
prison.
caused
serve
the trial court’s initial
failure to include it in
disregarded
assumes that the
the court’s
charge
arguably
by
waived Williams’
instructions.
object
failure to
to its absence. See Nixon v.
egregious
Williams has failed to show
State,
687,
940
(Tex.App.—El
691
Almanza,
harm.
Williams that this was an er magnitude
ror of constitutional requiring au
tomatic reversal. disagree. The United require parole
States Constitution does not State,
instruction in Myres state courts. v. (Tex.App.—Houston [1st ref'd) 1993, pet. (citing O’Bryan Dist.] v. MORSE, Appellant, Jason Estelle, (5th Cir.1983)). 714 F.2d No Texas case has that omitting held requires instruction automatic DELGADO, reversal. Id. Appellee. Carlos object, because Williams failed to No. 10-97-286-CV. will not reverse egregiously unless he was State, by harmed the omission. Almanza v. Texas, Appeals Court of 157, 171(Tex.Crim.App.1984). Waco. parole A may instruction favor the Aug. Myres, State or the defendant.
at 674. legislature intended
instruction to length increase the of sen juries. (citing Grigsby
tences set Id.
State, (Tex.App.—Dallas ref'd)). pet. if a learned
from the instruction the defendant longer expected, serve jurors
would
could be influenced to assess less time. Id. portion which was omitted punishment charge. Italics indicates from Williams’
Delgado’s amended We will answer. affirm the judgment.
FACTUAL BACKGROUND litigation This arises from collision be- *3 Delgado’s tween and vehicles Morse’s which College May in on occurred Station driving 1996. Morse was north on Texas approaching Avenue its intersection with George turning Bush Drive entered the and George Delgado lane to turn left on Bush. attempting was to a exit from Texaco sta- tion on the located east side Texas near a Apparently light the intersection. red Texas, up to back caused traffic and oth- Delgado er motorists allowed room to make Delgado slowly his left turn. crossed sever- al lanes of traffic the left turn and entered Davis, P.C., Bryan, “Rick” Richard W.B. Jeep, lane. He did see Morse’s and appellant. for until Delgado Morse did see his Célica Barcus, West, Webb, J. Hans Allbritton & entering was the turn lane. Morse collided Gentry, P.C., Station, College appellee. for with in Delgado, which resulted substantial damage damage to Célica minor and to DAVIS, C.J., Before and CUMMINGS and Jeep. VANCE, JJ. police A upon drove officer accident scene within minutes. declined her OPINION According offer to call an to ambulance. DAVIS, Justice. Chief Morse, began experience pain in thirty neck about minutes after the collision. Jason against Morse filed suit Carlos Del- chiropractor day a next visited who gado damages allegedly sustained aas treated him over the course of the next three Jeep result of a collision chiropractor him months. The also referred Wrangler Delgado’s Toyota and Célica. A physicians to other him who examined and negligence proxi- found that both assessed his condition. collision; mately caused the that Morse was thirty percent responsible suit on Morse filed October 1996. The seventy percent responsible collision; for the parties May proceeded to trial on 12 of the $3,800 and that Morse was in entitled year. next damages expenses. past medical damages past did not award FACTUAL SUFFICIENCY past anguish; future and mental point in argues his first physical impairment; future future medical jury’s any damages past failure award expenses; past earning capacity. loss or anguish, past and mental future verdict, accordance the court physical impairment, future future medical judgment rendered that Morse recover expenses, earning capacity past loss of $2,6601 damages Delgado. contrary overwhelming weight to the brings appeal asserting point essentially challenges in three evidence. This
points damages sufficiency sup evidence to award of factual Burnett, contrary weight port overwhelming the verdict. See Crow wholly inadequate pet. evidence and that — Waco denied). denying Delgado responds that Morse has court erred his motion strike $3,800 percent 1. awarded. Applicable sufficiency challenge right Law
waived
off
signed
counsel
the evidence because his
sufficiency challenge re
A factual
proposed judgment
notation
with the
weigh all the evi
us
quires
to consider
form.”
“approved as to
Corp., 692
Dyson v. Olin
dence.
Estate,
(Tex.1985);
Tex.
King’s
In re
Challenge
Sufficiency
Waiver of
(1951).
662, 664-65,
Generally
party
can
after verdict
only if
is “so
it
set
the verdict
will
aside
judg
a motion for
judgment
filing
obtain
overwhelming
contrary
weight
by tendering
proposed
ment
unjust.”
wrong
clearly
to be
evidence as
If
P.
See Tex.R. Civ.
court.
Dyson, 692
judgment on the
party files a motion for
opinion we set forth
prior
In a
manner
not indicate
verdict and does
*4
employ when evaluat
analysis
the
we
length
of the
disagrees
that it
with the substance
support
sufficiency
the
of the evidence
ing
verdict,
party
challenge on
then that
cannot
Crow,
damages.
of no
jury’s finding
a
See
requested.
appeal
judgment
it
First
the
Although
jury
897-98.
ambulance. forty per many Morse worked as hours with & M until the week J fall semester Jason Morse Although began. position require did not jested testified that he with the heavy lifting, he do testified that he did joking officer when she arrived but denied lifting. impeached pri- him with his any injury. explained about He that he did deposition testimony that he did not do initially not think he was hurt but began any lifting J “for a long at & M time.” twenty feel thirty minutes present job that in as an stated initially after the collision. He testified essentially “pencil engineer pusher.” he is telling he did recall the officer about prevent him The accident did from be- telling thirty but later recalled her after coming engineer, is what went which passed at minutes had the scene that college to become. *5 beginning to hurt. he the refused gained twenty Morse fifteen call officer’s offer to an ambulance. Morse pounds after the accident because he could heavy testified that as he carried boxes as play lift weights sports not as before. He twenty pounds night later that he because exercising began again around the first of moving. was sawHe no reason at time the April 1997 but cannot exercise well as as to think he not carry should the boxes. His frustrating, pain before. The is and he is night. neck hurt more later that He took possible concerned about future medical aspirin pain slept uncomfortably. the possible thought surgery treatments. The of Dudycha saw Morse Dr. David the next potential paralysis in risk the future and of day. Dudycha regularly treated him “weighs” on his mind. The accident affected three months. Each visit relieved Morse’s relationship at family Morse’s with his the pain period pain for a of The time. was of he unem- time the accident because was pretty at but bad first has decreased. Morse ployed, but it has had other effect. up night that testified he woke “several having symptoms of denied the pain times” because of the and still does prior described to the collision. acknowledges “from time to time.” He that time, pain his diminished over the treat- Dudycha Dr. David ments necessary. became less Morse testi- stopped fied he receiving that treatments as Dudycha chiropractor been a five and had frequently because he not could afford years one-half at the of trial. He treat- time school, work, away family. time from May regularly August from 31 to ed basis, initially daily frequently Morse had been laid off from work on the on a less but day Dudycha Dudycha gave pain him a time. that accident. over felt Morse’s generic stating spasms he in absence authorization that was obvious because of muscle neck, mobility, 3 to should excused June June restricted and the fact he pain Morse understood this to be an excuse from on He does believe was medication. not activities, though symptoms. exaggerating strenuous even he did Morse was his The job initially days have a at the time. He testified that it treat Morse decision five have him would been difficult for to work week rather than four was based his during the following “professional judgment.” month the accident be- He testified on job pain. began judg- cause of the He his based this next cross examination that he however, part pain. with & M latter of redirect J Industries ment Morse’s On June. was like he his things It difficult do routine he claimed that based determination pain. objective sit at his He Af- desk because of on both factors. explained treatment, spine. into the He progress protrudes ter weeks of some six frequency spinal cord has been flattened was decreased. On that the detected so reviewing September although he made a notation when protrusion, okay. will call me he distinction images, Morse “feels He he observed MRI Dudyeha him needs me.” never treated the rest contrast from “kind subtle” cross-examination, again. Powell of the cord. On radiologist characterized conceded Dudyeha an MRI because felt ordered opinion protrusion as “mild.” his problem had a and he wanted to disc disc and protrusion is with torn consistent injury. On cross evaluate extent link” that Morse has a “weak means examination, Dudyeha stated that ordered spine. completely heals Such a tear never arm and the MRI because Morse’s neck pain. commonly thought and is cause pain, mobility, other his restricted “and a few rare for a believes the condition is Powell performed on June 5. tests.” MRI pro- A person twenty-six years old. similar radiologist’s report accompanying forty fifty years old person trusion in a images posterior MRI found a “mild central “the simply result from accumulative could bulge causing disc C6-C7 person living.” Such a would trauma deformity sac no definite minimal thecal but experience because of this condition. Dudyeha compression.” nerve root cord explained that he could not definitive- Powell change the did not course treatment after per- ly was torn without state that the disc receiving the MRI results. forming surgery to examine it. Gregory Dr. Powell impairment Powell believes physiatrist3 had been licensed six accident and Morse reason- result years Twenty percent at the time of trial. certainty suffer able medical will practice assessing patients is devoted to injury. He testified future because of *6 they to determine whether have achieved probably require surgery in that Morse will improvement if so maximum medical to disc, to fuse the which will cost future impairment rating. conduct an He evaluated $20-30,000. he does He later conceded that pro- Morse on October 30. The evaluation require not Morse will ever know whether five-page questionnaire cess consists of a through agreeing go that life surgery, some completed patient, patient’s medi- not need with a similar condition do records, x-rays, cal physical and a examina- ongoing medical surgery. He recommends diagnosed myofacial tion. Powell a “cervical two follow-up every six months for or once pain secondary inju- ato sudden deceleration years. He bases this recommendation three ry.” Powell found that had achieved for future on Morse’s treatment improvement maximum medical and assessed complaints. rating percent, impairment an of fourteen that the MRI was reason- Powell testified explained percentage which he ably necessary for an accurate evaluation body perform not it which does as generally He would order Morse’s condition. impairment explained used to. He that an respond not patient an did MRI (1) components: diagnosis has rating three six weeks. treatment after (2) injury; residual motion (3) body part; an affected assessment Blair Dr. William damage. Powell found nerve dam- nerve age rating his first two and based surgeon special- orthopedic an who Blair is components. injuries. practiced spinal izes in He had time of trial. He twenty-seven years diagnosed as bulge
Powell the disc “mod- nationally lot in the State of result, “and a teaches As a he classified erate to severe.” impairment evalua- conducting Texas” on “He which carries a condition as a lesion” “protruded explained that discs bulging tions. He higher impairment rating. The disc bulging extremely are common” and disc vertebrae is located between C6 C7 physical practices rehabilitation. 3. A doctor who medicine protrusion an does indicate annular tear. Blair’s of the disc at the C6-C7 testimony Dudycha’s contradicts and Powell’s irritating area that nerve root.” Ac- respects. in several Blair, cording radiculopathy a cervical is a problem pressure structural which causes Dudycha’s
Blair took issue with decision to resulting dysfunction. root nerve days an order MRI three after the collision interpretation with disagrees diagnosis his of the results of Blair with Anchondo’s agreed chiropractors the MRI. Blair personally though even he never examined regularly diagnosis order MRI’s aid inconsistency Morse. He cites the in An- symptoms treatment but stated that Morse’s findings obtaining chondo normal in a neuro- justify did not of an MRI. use He dis- logical yet has a concluding exam agrees Dudycha’s with assessment that the radiculopathy. protruding injury an disc indicates or pain. Blair does not doubt that Morse has susceptible the disc is to herniation. gave he does not believe Morse “easily Blair an testified that MRI would tests, range citing best effort motion a tear if demonstrate” one existed. Morse’s performed an 30 test October bulge” a “very MRI reveals small with no example. an sign of agrees a tear. He with Powell’s myofacial pain” diagnosis. “cervical Howev- er, he believes the MRI reveals a normal Dr. Paul Strube
spine “any protrusion does indicate chiropractor Strube is a who deals with spinal into the disagrees cord.” He spinal patients.5 According chronic opinion suscepti- Powell’s that Morse is more Strube, spinal Dudycha’s injury adequately ble because of the records do not bulging interpretation disc. His severity the MRI document the of Morse’s degenerative reveals no acute or condition responsiveness treatment. bulging probably predated and that the disc “[ojnly period an initial trial of treatment was explained the collision. He is a warranted” because there is documenta- finding in anyone normal fifteen older. provided significant tion the treatment Blair took issue with benefit to Morse. Strube testified that Powell’s classification bulging disc “lie chiropractic as a lesion.” Accord- period initial treatment care Blair, ing to a “He lesion” is disc herniation If would be two weeks. the treatment does *7 process significant disruptive ato weeks, not show benefits within two a new disc. He does believe that the MRI and course of be taken. action should Additional radiologist’s report justify desig- “He” a treatment is not warranted unless the treat- nation. He also testified that Powell deter- adjusted. ment is Strube concluded prematurely mined that Morse had reached Dudycha’s be- that treatment was excessive improvement maximum medical because this significantly cause he his ini- never modified only conclusion should be reached when the plan despite mar- apparently tial treatment patient has point stabilized that no ginal opined He MRI results. also change percent of more than antici- three was not warranted in Morse’s case. pated year. with treatment within the next examination, On issue cross Strube took cross-examination, On he stated that he radiculopathy diagnosis. with Anchondo’s Dr. had reviewed Homero Anchondo’s re- impairment rating discounted Powell’s He ports in assessing Morse’s case.4 Blair could after he tested Morse five months because neurologist not recall whether Anehondo is by the accident rather than six as called for neurosurgeon. diagnosed Anehondo radiculopathy likely secondary guidelines. “cervical most records, prac- According Dudycha's say long 4. to Dr. Morse 5. Dr. Strube did not how he has Ap- saw Dr. reviewing Anehondo on December testify did ticed. He he has been parently, failed to Morse disclose Anchondo's chiropractors’ reports two and one-half other discovery records before deadline so the years. court did not allow them to be admitted. Blair or Strube was Other Evidence not rebutted spasms and stiffness had muscle Morse evidence, per- According to the Morse neck, family in classified which the doctor range formed three different of motion tests: addition, sprain.” In as a “strain 31; Dudycha May Dudy- one for on one for testimony jury had to balance 9; Powell August cha on and one for on pain against Delgado’s testi- experienced he These the maxi- October 30. tests evaluated as mony joked with officer if he that he mum in five dif- angle could achieve faking injury. were Dudycha also evalu- types ferent motion. pain performed level ated Morse’s he that the fact the Morse also contends type each of motion. demonstrated past compensation for medical awarded some range of in a restricted motion each the failure to expenses demonstrates May 31. Just over five areas tested past pain and damages for mental award later, significant two months Morse showed overwhelming anguish contrary to the improvement in areas tested each five weight similar of the evidence.6 in areas and less three of five tested. rejected by other arguments have been In the test conducted for Powell October 804-05; Blizzard, 756 at See courts. of the five Morse achieved results four Terrell, 425, 427-29 v. McGuffin his Au- which were lower than areas tested 1987, writ); no see Worth (Tex.App.— Fort fact, graded lower in gust 9 results. 425, 427-28 Hyler Boytor, 823 S.W.2d also Dudycha’s one test for did 1992, no (Tex.App. [1st Dist.] — Houston May 31 exam. Zimmerman, writ); Hammett v. no (Tex.App. Worth 668-69 family practitioner on June 6. Morse saw — Fort writ); Enriquez, Sibert physician in Morse’s This found stiffness 1989, writ de (Tex.App. 813-14 Paso “palpable spasms neck the mid-cervi- — El nied). diagnosed cal to areas.” He the mid thoracic “a sprain, Morse to have cervical strain and applied principles have twice enun We sprain, bicipital thoracic strain and ten- ju in these in cases where ciated decisions donitis, secondary Dr. to trauma.” Anehon- ries awarded element also in Morse’s do found “mild stiffness” Crow, See damages submitted. neck. 897-99; v. USAA Ins. Lance following expenses incurred the — Waco the course of his treatment: writ). them in this will likewise follow We case. $4,461.00 Dudycha: Dr. 1,382.20 The MRI: must determine credi Dr. Powell: .00 weight bility and the witnesses Therapy Center: 186 .00 Crow, testimony. given their Dr. Ruggiero: 135 .00 our should not substitute *8 $6,579 Expenses:
Total .20 jury’s ‘Weighing for issues. Id. the these subjective complaints against the many the
Analysis
injuries]
might have
objective
[few]
accident,
by
apparent
it is
testimony
Drs.
been caused
this
Blair and Strube
more
essentially
testimony
the
of Drs.
that the indicia of
are
rebutted
428;
Hyler,
Dudycha.
objective.”
823
reviewing
In
the medi-
Hammett,
evidence,
objective
“conscientious conviction.” already We have concluded without view- 805; McGuffin, S.W.2d at at 429. ing light the evidence most favorable Accordingly, is we conclude the verdict supports Delgado to the evidence contrary overwhelming weight not so to the say jury’s cannot that the verdict. clearly wrong of the evidence as to jury’s damages manifestly award of too unjust. Dyson, manifestly See 692 S.W.2d at Accordingly, small. we overrule Morse’s sec- point. first 457. We overrule Morse’s point. ond INADEQUACY DAMAGES OF AMENDED ANSWER DELGADO’S point urges in his second point in his Morse asserts final damages failure award denying the court erred his motion uncompensated wholly inade elements Delgado’s rec strike amended answer. The quate. See 320. Rule Tex.R. P. Civ. first Delgado ord reflects that filed his provides pertinent part that a trial court days amended answer ten the date of before may grant damages a new trial “when the accompany trial. The certificate of service manifestly are small.” Id. a com too Such ing the amended answer indicates plaint special example “is but a the conten copy mailed a to Morse’s counsel via certified findings supported tion that the are insuf mail. Morse’s counsel filed a motion to contrary ficient great evidence or are pleading morning strike the on the amended weight preponderance of the evidence.” trial, representing court that he Roth, Inadequate D. Damages Joe as Basis copy never pleading received a Trial, 369, (1981); New 44 Tex. B.J. surprised by the new defensive matters Lines, Inc., accord Davis v. J.H. Truck Rose asserted in the amended answer. The court (Tex. 421, Civ.App. 578 S.W.2d — Houston request denied this motion. Morse did not 1979, writ); Raul A. [1st Dist.] Gonzalez & continuance.8 Gilbreath, Jury’s Rob Appellate Review aof Damages,” Finding “Zero 54 Tex. B.J. preserve To appellate review (1991). 422 2n. claim granting that the trial court erred in research, According pri to our trial,9 amendment within days seven mary distinction complaining claim of inade party must demonstrate sur quate challenge and a prise request to the factual a continuance. Louisiana sufficiency support Ry. the evidence a dam Ark. Blakely, & Co. v. former, finding ages is that in the (Tex.App. we view 597 writ de — Texarkana nied); Greenstein, light the evidence “in the most favorable to Logan & v. Burgess Co. appellee Inc., indulge every legitimate Mktg., 184 (TexApp.— appellee might denied). conclusion favorable to which Waco writ failed proved.” have been from the drawn facts move for a continuance after the court denied Walker v. Missouri Pac. R.R. 425 his motion to Delgado’s strike an- amended decreased).” Zimmerman, fact, crest was Hammett immediately denying after the motion answer, Worth strike amended the court — Fort asked writ). No witness contradicted these parties they ready were proceed. Both findings. objective two Fort Worth court ready; petit sides announced was seated *9 opinion distinguished previous its sworn; McGuffm in the courtroom pro- and the case analysis because the "uncontradicted x- ceeded to trial. rays postural survey provide[d the court] additional, compelling more evidence of argues 9. Morse that because he did not receive provided objective than that to th[e] court notice pleading day amended before the distinguishable Hammett is Id. in McGuffin." trial the court’s decision to allow experts in that medical present case from the dispute proceed on the amended answer is tantamount MRI reveals defect Morse's whether ruling ato permitting a trial amendment. in his disc. Moreover, ready for he announced swer. ruling. For these rea-
trial after the court’s
sons, preserve for failed to our review has decision. Ac- propriety the court’s point.
cordingly, overrule third judgment. affirm the
VANCE, J., concurring.
VANCE, Justice, concurring. retreating my dissents in
Without v. Ins.
Lance USAA writ) — Waco Burnett, (Tex. Crow denied), I pet. concur.
App. — Waco Appellant, HARLAN,
Booker T. Texas, Appellee.
The STATE of
No. 12-97-00188-CR. Texas, Appeals
Court
Tyler.
Aug.