Affirmed and Memorandum Opinion filed August 18, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00623-CV


JOSE RANGEL AND JUAN CARLOS ARGUNDIS-RAMIREZ, Appellants
                                       V.

                       JOSE ALVARO RIVERA, Appellee


                   On Appeal from the 133rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-19282


                 MEMORANDUM OPINION

      Appellants, Jose Rangel and Juan Carlos Argundis-Ramirez, appeal a take-
nothing judgment in their suit against appellee, Jose Alvaro Rivera, for personal
injuries allegedly sustained in an automobile accident.     In their sole issue,
appellants contend the evidence is factually insufficient to support the jury’s
finding that the negligence, if any, of Rivera did not proximately cause the
accident. We affirm.
                                  I. BACKGROUND

      According to appellants, one evening in May 2010, Rangel was driving a
truck in which Argundis-Ramirez was a passenger when their vehicle, while
stopped at a red light, was rear-ended by another truck. Argundis-Ramirez never
saw the occupants of the other truck. However, Rangel testified he saw two or
three men in the other truck who fled after attempting unsuccessfully to restart it.

      Appellants claim they were both injured in the accident. They sued Rivera,
alleging he was the driver of the other truck. At trial, Rangel did not unequivocally
identify Rivera as the driver although Rangel testified Rivera looked “very much
like” the driver. A police report admitted at trial listed Rivera as the registered
owner of the other truck at the time of the accident although the report also stated
“unknown” for the driver involved in the accident. Rivera denied he was the
driver; he testified he was home at the time of the accident and had sold the truck a
few days earlier to a man who apparently failed to formally transfer the title.

      The jury answered “No” to the following question: “Did the negligence, if
any, of [Rivera] proximately cause the occurrence in question?” Therefore, per the
instructions, the jury did not answer questions regarding damages. The trial court
signed a judgment ordering that appellants take nothing. Appellants filed a motion
for a new trial, challenging, inter alia, factual sufficiency of the evidence to
support the verdict, which was denied by written order.
                                    II. ANALYSIS

      In reviewing a factual sufficiency challenge, we consider and weigh all of
the evidence. Enright v. Goodman Distribution, Inc., 330 S.W.3d 392, 396 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (citing Dow Chem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001)). A party attacking factual sufficiency relative to an
issue on which he bore the burden of proof must demonstrate the adverse finding is
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“so contrary to the great weight and preponderance of the evidence as to be clearly
wrong and unjust.” See id. (citing Francis, 46 S.W.3d at 242). The trier of fact is
the sole judge of witness credibility and the weight to be given their testimony.
GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied). We are not a fact finder and may not pass
upon the witnesses’ credibility or substitute our judgment for the jury’s, even if the
evidence would support a different result. Big Dog Logistics, Inc. v. Strategic
Impact Corp., 312 S.W.3d 122, 135 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)).1

       The crux of appellants’ complaint is that the jury’s finding that Rivera was
not the other driver is “so contrary to the great weight and preponderance of the
evidence as to be clearly wrong and unjust.” We disagree.2 There were two areas
of evidence through which appellants attempted to prove Rivera was the driver: (1)
Rangel’s testimony that Rivera looked “very much like” the driver; and (2) the
undisputed fact that Rivera was the registered owner of the other truck at the time
of the accident. However, this evidence did not establish Rivera was the driver.

       The jury, as judge of witness credibility, was free to reject Rangel’s
testimony that Rivera looked “very much like” the driver. In fact, Rangel has
provided somewhat inconsistent descriptions of the driver. At trial, which was the
first time since the accident that Rangel encountered Rivera, Rangel described the

       1
         Appellants suggest the abuse-of-discretion standard applies because they presented the
factual-sufficiency challenge via a motion for new trial. Although we generally review the
denial of a motion for new trial for abuse of discretion, we apply the sufficiency standard when
the motion presents a challenge to sufficiency of the evidence. See Enright, 330 S.W.3d at 396.
       2
         We note that such a finding was not necessarily the basis for the jury’s answer to the
question at issue. Rather, the jury could have alternatively found that, even if Rivera was the
driver, appellants failed to establish he was negligent. Nonetheless, because we conclude the
evidence is factually sufficient to support a finding that Rivera was not the driver, we need not
consider sufficiency of the evidence to support any finding based on the alternative scenario.
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driver as a “somewhat tall” Hispanic man, which description matched Rivera. But
in a deposition, he described the driver as a Hispanic man of medium height,
although Rangel attempted to explain at trial that medium height could mean
“medium tall.” Additionally, Rangel agreed that his only observation of the other
driver was through Rangel’s rear-view mirror, in the dark.           Moreover, it is
axiomatic that being the registered owner of the vehicle would not alone establish
the owner was the driver when the vehicle was involved in an accident.

      Even if the jury believed the testimony that Rivera strongly resembled the
driver, it was free to believe Rivera’s testimony denying he was the driver despite
being the registered owner. Specifically, Rivera explained that, five days before
the accident, he was approached at a gas station by an unknown man who wanted
to buy the truck, which had a “for sale” sign on the back window. They negotiated
a price and met back at the station later that day to complete the sale. Rivera
signed the title, he exchanged it with the buyer for $5,000 in cash, and the buyer
then drove Rivera home. Rivera further testified that, on the evening of the
accident, he was home babysitting his children while his wife worked.

      Appellants maintain Rivera concocted the claim that he had sold the truck
and was not involved in the accident. Appellants cite several admissions by Rivera
as purportedly demonstrating his claim is incredible: (1) Rivera never requested the
buyer’s name or contact information; (2) Rivera permitted the buyer to test drive
the truck without requesting his driver’s license; (3) Rivera did not obtain a bill of
sale; (4) he did not deposit the $5,000, and thus there was no record he received
this money; (5) he took no further steps to transfer the title or determine whether
the buyer had done so; (6) the truck was still registered in Rivera’s name two
months after the accident; (7) he knew the truck was not drivable after the
accident; (8) he testified in his deposition that he had acknowledged owning the

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truck when contacted by telephone shortly after the accident; (9) there was no other
evidence corroborating that he was at home at the time of the accident; and (10) his
driver’s license was expired at the time of the accident, which, according to
appellants, was the reason he fled.

      We note that some of these points cited by appellants were further qualified
by Rivera. For instance, Rivera testified (1) he did not ask for the buyer’s license
because Rivera accompanied him during the test drive, (2) Rivera learned the truck
was not drivable after the accident from Rangel’s earlier testimony and not because
Rivera still possessed the truck, (3) either Rivera did not completely understand the
person who called after the accident because Rivera is not fluent in English or he
did not understand the deposition question, and (4) his wife could not appear at
trial to verify his whereabouts at the time of the accident because her employer
would not release her from work.

      Regardless, we defer to the jury’s role to weigh the factors cited by
appellants against Rivera’s claim that he had sold the truck and was not involved in
the accident and the jury’s choice to believe Rivera. See Big Dog Logistics, 312
S.W.3d at 135; Pascouet, 61 S.W.3d at 615–16. We conclude these factors do not
render the jury’s finding “so contrary to the great weight and preponderance of the
evidence as to be clearly wrong and unjust.” See Enright, 330 S.W.3d at 396.

      Accordingly, because the evidence is factually sufficient to support the
jury’s finding, we overrule appellants’ sole issue and affirm the trial court’s
judgment.


                                       /s/       John Donovan
                                                 Justice

Panel consists of Justices Boyce, McCally, and Donovan

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