                                                                                         ACCEPTED
                                                                                     03-15-00242-CV
                                                                                             8080643
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                12/3/2015 4:12:55 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                        Case Number 03-15-00242-CV

              IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
                                                 3rd COURT OF APPEALS
                              at Austin              AUSTIN, TEXAS
                                                           12/3/2015 4:12:55 PM
                                                             JEFFREY D. KYLE
                     GUILLERMO OCHOA-CRONFEL,                      Clerk


                                  Appellant,

                                      v.

                            PATRICK C. MURRAY,

                                  Appellee.



     From Cause No. D-1-GN-11-002136 in the 345th Judicial District Court
                         Of Travis County, Texas


                      APPELLANT’S REPLY BRIEF



Paul T. Morin, P.C.                        Guillermo Ochoa-Cronfel
State Bar No. 14460550                     State Bar No. 15175600
503 W. 14th Street                         2700 Bee Caves Road, Suite 103
Austin, Texas 78701                        Austin, Texas 78746
Telephone: (512) 499-8200                  Telephone: (512) 347-9600
Facsimile: (512) 499-8203                  Facsimile: (512) 347-9911
PMorin@austin.rr.com                       Guillermo@thecronfelfirm.com

ATTORNEYS FOR APPELLANT



December 3, 2015
                                              Table of Contents

INDEX OF AUTHORITIES……………………………………………..…………2

I.   Murray’s Statement of Facts Mischaracterizes and/or Misstates the
     Record….....……………………………………………...…………………….4

     1. The Discovery Sanction………………………………………………….…4

     2. Cronfel’s Expert, Dr. Ira Lown, and Cronfel’s Medical Records………..…6

     3. Cronfel’s Testimony…………………………………………….......…..…19

II. Standard of Review…………………...…………………………………...….23

     1. Legal Sufficiency…………………..…………………………..……….…23

     2. Factual Sufficiency………………………………………..…………..…..25

     3. A Jury Can’t Simply Surmise or Suspect a Vital Fact………...…………..26

III. The Jury’s Negligence Finding as to Cronfel is not Supported by Legally or
     Factually Sufficient Evidence…………...…………………………………....27

IV. The Evidence is not Legally or Factually Sufficient to Support the Jury’s
    Damage Awards…………………………………..…………………….…….31

V. The Trial Court’s Discovery Sanction was an Abuse of Discretion……….....34

Conclusion…...........................................................................................................35

Certificate of Compliance........................................................................................37

Certificate of Service...............................................................................................37




                                                          [1]
                    INDEX OF AUTHORITIES

                                                          Page(s)

Cases

Browning-Ferris, Inc. v. Reyna,
     865 S.W.2d 925 (Tex. 1993)………………………………………………..25

Cain v. Bain,
      709 S.W.2d 175 (Tex. 1986)………………………………………………..25

Carney v. Roberts Inv. Co.,
     837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)………………………25

City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005)……………………………………23, 24, 26, 30

Ford v. Panhandle & Santa Fe Ry. Co.,
      252 S.W.2d 561 (Tex. 1952)………………………………………………..26

Ford Motor Co. v. Ridgway,
     135 S.W.3d 598 (Tex. 2004)………………………………………………..26

Guevara v. Ferrer,
     247 S.W.3d 662 (Tex. 2007)………………………………………………..33

JLG Trucking, LLC v. Garza,
     466 S.W.3d 157 (Tex. 2015)………………………………………………..33

Joske v. Irvine,
      91 Tex. 574, 44 S.W. 1059 (Tex. 1898)……………………………………..25

Kindred v. Con/Chem, Inc.,
      650 S.W.2d 61 (Tex. 1983)…………………………………………….…...26

Lozano v. Lozano,
     52 S.W.3d 141 (Tex. 2001)…………………………………………………25



                               [2]
McDonald v. Dankworth,
    212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)…23, 25, 26, 27, 28, 31, 32

Oakley v. C.E. Duke’s Wrecker Service,
     557 S.W.2d 810 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref’d
     n.r.e.)….........................................................................................................27

Plas-Tex, Inc. v. U.S. Steel Corp.,
      772 S.W.2d 442 (Tex. 1989)………………………………………………..25

Pool v. Ford Motor Co.,
      715 S.W.2d 629 (Tex. 1986)………………………………………………..25

Rash v. Whisennand,
      453 S.W.2d 353 (Tex.Civ.App.-Houston [14th Dist.] 1970, writ ref’d
      n.r.e.)………………………………………………………………….……27


Statutes, Rules and Other Authorities

Tex. R. App. P. 38.1(g)……………………………………………………………...4

Tex. R. App. P. 38.2(a)……………………………………………………………...4

Tex. R. Civ. P. 215…..........................................................................................34, 35

Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error,
     38 Tex. L. Rev. 361, 362-363 (1960)………………………………………23




                                                          [3]
I. Murray’s Statement of Facts Mischaracterizes and/or Misstates the Record

          Under Tex. R. App. P. 38.1(g) requires that an appellant’s brief, “…must state

concisely and without argument the facts pertinent to the issues or points

presented...The statement must be supported by record references.”1 Tex. R. App.

P. 38.2(a) applies the requirements of Tex. R. App. P. 38.1(g) to the appellee’s brief

as well. Murray spends some 37+ pages of argument in his Statement of Facts,

attacking the credibility of Appellant, Appellant’s testifying expert – Dr. Ira Lown,

and the medical records introduced into evidence. Murray makes a number of claims

that; (i) ignore evidence from the record that is unfavorable to such claims; (ii) are

not supported by his record references; and/or, (iii) are simply contradicted by the

record.

1.        The Discovery Sanction.

          After a brief recounting of the description of the dog attack that is the subject

of the case sub judice, gleaned from Cronfel’s First Amended Petition, Murray

launches into a colorful description of the circumstances that he alleges led to the

discovery sanction that Cronfel complained of in the final point of error in

Appellant’s Brief.2 This account abandons addressing the legal points raised in

Appellant’s Brief related to the trial court’s abuse of its discretion in assessing



1
    See, Tex. R. App. P. 38.1(g).
2
    See, Brief of Appellee at pp. 2-10.
                                             [4]
sanctions against Cronfel in favor of criticizing Cronfel’s efforts to protect clearly

privileged, confidential medical records that had nothing to do with the underlying

case. Moreover, this account relies on the sort of mischaracterizations and/or

misstatements of the record that pervade Appellee’s Brief.

       Amongst those mischaracterizations is reference to the deposition of James

Robison, IV, M.D., on which Murray claims his second amended motion to compel

was based.3 Murray claims that, “Cronfel’s failure to fully respond became more

apparent during the deposition of his medical expert, James Robison, IV, M.D., on

February 18, 2014.”4 This statement is flatly untrue, as Dr. Robison was an expert

retained by Murray. 5

       Murray further mischaracterizes and misstates the record related to his prior,

March, 2014 Amended Motion to Compel, the trial court’s order thereon, and

Cronfel’s response thereto (which, again, is not even the trial court order complained

of herein).6 Murray states that on March 7, 2014, “Cronfel finally provided Murray

with a limited medical authorization in violation of the trial court’s order.”7

However, what actually happened is that Murray complained of needing Cronfel’s

medical records regarding his “right hand, wrist and arm” dating back to at least



3
  See, Brief of Appellee at p. 7 (citing CR 248-250).
4
  Id.
5
  In fact, the same medical expert who Murray declined to present as a witness at trial.
6
  See, Brief of Appellee at pp. 7-8.
7
  See, Brief of Appellee at p. 8.
                                                [5]
2005. 8 The trial court then entered an order requiring Cronfel to, “…provide a fully

executed, Authorization to Disclose Protected Health Information by 3/6/14…” for;

Dr. Walters, Healthsouth Hand Clinic, and Select Physical Therapy. 9 On March 7,

2014, admittedly one day late, but contrary to Murray’s assertions, Cronfel provided

fully executed Authorizations directed at Select Physical Therapy/Healthsouth and

Robert Walters, M.D., for, “all medical and physical therapy records and diagnostic

studies pertaining to patient’s right arm, hand, and wrist.”10 Murray then asserts,

without reference to the record, “Critically, the medical records sought included

those of Lown – Cronfel’s testifying medical expert,” when neither his amended

motion to compel, nor the March, 2014 order thereon make any reference

whatsoever to Dr. Lown or his medical records.11 Mere sentences later, Murray

acknowledges that his motion to compel regarding Dr. Lown’s medical records was

filed some seven months later.12             Rife as it is with mischaracterizations and

misstatements with regard to the record, Murray’s “statement of facts” regarding the

discovery sanction, and the circumstances surrounding same, should be taken with

a grain of salt.

2.     Cronfel’s Expert, Dr. Ira Lown, and Cronfel’s Medical Records.



8
  CR 248-251.
9
  CR 327.
10
   CR 329-330.
11
   CR 248-251 & 327.
12
   See, Brief of Appellee at p. 8 (citing CR 176-184).
                                                [6]
       Murray first cites approximately six pages of testimony from Dr. Lown that

Cronfel had injured the same wrist at issue in this suit, “…in the same manner, in a

bicycle accident four years earlier,” ostensibly for the proposition that some incident

other than the July, 2009 dog attack was the cause (or a cause) of Cronfel’s injuries.13

This involved Murray’s trial counsel walking Dr. Lown through the medical records

of the late Dr. Robert Walters, a prior hand specialist whom Cronfel had seen, related

to a bicycle accident that Cronfel had in November of 2005, and essentially

describing what those records said about that earlier incident.14 However in his

analysis, Murray simply ignores Dr. Lown’s own opinion of the import (or lack

thereof) of the previous accident on the injuries Cronfel now complains of. On direct

examination Dr. Lown testified at length, directly and unequivocally, that with

reasonable medical probability, Cronfel’s 2005 accident caused neither the ‘ulnar

impact syndrome’ that led to his ulnar shortening surgery, nor the large tear in the

scapholunate ligament, which would ultimately require Cronfel to undergo a four-

corner wrist fusion surgery15:

       Q:     Looking at the Margolin & Keinarth records from the day after
              the attack, was there any indication that Mr. Cronfel had a
              lingering hand problem from any prior injury?

       A:     No.

13
   See, Brief of Appellee at pp. 13-19 (citing IV RR 89-95).
14
   See, IV RR 89-95; VII RR 42-43, 54-57, 62-65 & 72-77, Plaintiff’s Exh. 4.
15
   For additional, extensive testimony of Dr. Lown in this regard, see IV RR 36, 46, 52-54, 55-57
& 70.
                                              [7]
--IV RR 36.

Q:    Is it your medical opinion that Guillermo developed this ulna
      impact syndrome as a direct result of the July 23rd, 2009 injury?

A:    Yes.

Q:    And is that opinion based on your education, your experience,
      and your real life treatment of Guillermo?

A:    Yes, it is.

Q:    And is that based on reasonable medical probability?

A:    Yes.

Q:    Regarding the injury to Guillermo’s scapholunate ligament tear,
      do you have an opinion as to whether that injury was caused by
      the dog attack on July 23rd, 2009?

A:    I believe it was.

Q:    And that, again, Doctor, is based on your skills, your training,
      your experience, and your real-life treatment of Guillermo?

A:    That’s correct.

Q:    And that, again, is based on reasonable medical probability?

A:    Yes, it is.
--IV RR 46

Q:    Okay. If Guillermo had suffered a large scapholunate ligament
      tear in his right wrist two or four years before July 23rd, 2009,
      would you expect to see some arthritic changes in that X-ray that
      you’re looking at?

A:    I would.



                                 [8]
Q:   And looking at that wrist X-ray report of July 24th, 2009, was
     there any indication of arthritic changes due to a scapholunate
     ligament tear from back in 2005?

A:   No, there’s not. …

Q:   From the lack of evidence of arthritic changes in Guillermo’s
     right wrist on the July 24th, 2009 X-ray, can you tell us whether
     or not, in your opinion, Guillermo suffered a large scapholunate
     ligament tear at any time prior to July 23rd, 2009?

A:   I do not believe that he had….

                                *****

Q:   Is this a CT scan taken of Guillermo’s right wrist from an
     accident he had back in 2005?

A:   Yes, it is.

Q:   And do you see where it says, quote, mild widening of the
     scapholunate articulation measuring about four millimeters?

A:   I do.

Q:   And what does that mean? Can you explain that to us?

A:   Well, it could mean a couple of things. It could just be an
     anatomic variant, which means that we’re all born with a little bit
     different – the way our ligaments and bones are lined up, or it
     could mean that he’s had a minor injury to that ligament.

Q:   Is that type of injury that you’re looking at, is that a condition
     you’ve seen many patients for?

A:   Yes.

Q:   And does a mild widening to the scapholunate articulation a
     condition that requires surgical repair of any type, or even a wrist
     fusion surgery?
                                  [9]
A:    Usually not.

Q:    Is a mild widening of the scapholunate space the type of injury
      that you would expect to result in degenerative arthritic changes?

A:    No.

Q:    In referring you, again, to the circled area, so we can follow along
      with you, a mild widening of the scapholunate space measured
      at approximately four millimeters – I asked you a little bit about
      four millimeters. That gap between the scaphoid bone and the
      lunate bone, is a four-millimeter gap considered normal?

A:    Yes, it is. …

Q:    If it’s a normal finding, Doctor, does that exclude the possibility
      that Guillermo suffered a large scapholunate ligament tear back
      in 2005 in November?

A:    I believe it does.
--IV RR 52-54.

Q:    Dr. Lown, would you have recommended Guillermo undergo a
      four-corner wrist fusion surgery if he simply had a mild
      disruption of the scapholunate ligament in his right wrist?

A:    No, I would not.
--IV RR 56-57.

Q     …In your professional opinion, would Guillermo need a wrist
      fusion surgery in his right wrist had he never been involved in
      this July 23rd, 2009 incident?

A:    No.
--IV RR 70.




                                  [10]
Murray’s contention in this regard, absent complete disregard of Dr. Lown’s actual

opinions as to the cause of Cronfel’s injuries, is not supported by the record. 16

       Murray then identifies approximately four pages of testimony from Dr. Lown

that he asserts casts doubt on Cronfel’s testimony related to what Murray callously

refers to as his, “purported physical pain and inability to perform routine

activities.”17 It is unclear from the record what (if any) medical records Murray’s

trial counsel was referencing during the cited testimony, but even in this example

from Murray there are at least four (4) references to physical pain and/or “hurt” that

Cronfel encountered in his daily activities as a result of the injury at issue. An actual

review of Cronfel’s medical records admitted at trial demonstrates a medical history

stretching from July 24, 2009 (contemporaneous with the incident that was the

subject of the lawsuit) through September, 2014, which includes more than forty

(40) doctor’s visits by Cronfel related to the incident that is the subject of the

underlying lawsuit, the vast majority of which reflect a near-constant pain




16
   Moreover Dr. Walters’ medical records regarding the 2005 injury make no mention of either
‘ulnar impact syndrome’ or a large tear in the scapholunate ligament, referring to any issue Cronfel
had at that time with the scapholunate as a “mild disruption”. In fact, Dr. Walter’s medical records
never mentioned the possibility of ‘ulnar impact syndrome’ until after the July, 2009 dog attack.
See, VII RR 38-77, Plaintiff’s Exh. 4.
17
   See, Brief of Appellee at pp. 19-22 (citing IV RR 95-99).
                                               [11]
experience on his part. 18   19
                                  These include Dr. Lown’s own records for more than

thirty (30) visits by Cronfel that almost universally describe the treating diagnosis

for Cronfel as “JOINT PAIN HAND”, and which include, amongst other remarks,

the following observations:

       “Pain will be the last area of resolution.” – Entry dated 4/24/2012. 20

       “Will the pain ever resolve?” – Entry dated 4/16/2013. 21

       “He [Cronfel] is having trouble opening doors and lifting.” – Entry dated
       5/28/2013. 22

       “Patient complains of not being able to turn key to start car or tie shoe.” –
       Entry dated 12/31/2013.23

A number of Dr. Lown’s medical records from Cronfel’s check-ups/physical therapy

appointments describe the constancy of Cronfel’s pain similarly as occurring, “…At

rest…During the day…In the morning…At night…While sleeping…With direct

pressure…With motion…With twisting motion,” and as exacerbated, “…By

work…By driving…With activity…With lifting…With motion.”24                        Moreover,




18
   See, VII RR 18-22; 25-34; 47-48, 58 & 66-67; 80-91; and, 94-177, 194-195 & 204-205;
Plaintiff’s Exhs. 2, 3, 4, 5 & 6, respectively.
19
   Among these records is an entry from the records of Dr. Walters, dated July 21, 2010, which
articulately described Cronfel’s situation with his right wrist thusly, “CLINICAL HISTORY:
Pain”. See, VII RR 58, Plaintiff’s Exh. 4.
20
   See, VII RR 123, Plaintiff’s Exh. 6.
21
   See, VII RR 161, Plaintiff’s Exh. 6.
22
   See, VII RR 165, Plaintiff’s Exh. 6.
23
   See, VII RR 204, Plaintiff’s Exh. 6.
24
   See, VII RR 165, 168, 204, 207, 210 & 214, Plaintiff’s Exh. 6.
                                            [12]
regarding Cronfel’s pain level and activity level, Dr. Lown testified that same were

normal given his injuries and in line with his recommendations:

      Q:    When you discuss the problems caused by the ulna becoming
            longer than the radius, can you describe for us in what kinds of
            problems do – does that cause a patient?

      A:    Well, if the – if the ulna is longer, it can cause pain in the wrist
            from, twisting or rotating motions, extension, inflexion. Any
            time there’s a – a transfer of force across the wrist, when you go
            to grab something, pick something up, squeeze something, that
            force goes across the wrist. And the normal anatomy of the wrist
            is no longer there. Typically, in a normal wrist, the ulna will take
            about 15 percent of the load, but when the radius is shorter than
            the ulna, the ulna – the ulna takes more of the load.

      Q:    And that’s a condition that can cause pain for patients?

      A:    It causes pain, yeah.

      Q:    Do these problems associated with the ulna impact syndrome, do
            they occur immediately, Doctor, or do they take some time to
            develop?

      A:    They take some time.

      Q:    Based on your experience treating Guillermo, was he suffering
            from those problems, too, down by his wrist as a result of the
            radius fracture by the elbow?

      A:    Can you say that again?

      Q:    Sure. Based on your experience treating Guillermo, was he
            having problems down at his wrist joint due to that radius
            fracture?

      A:    Yes, yes.
      --IV RR 41-42.


                                        [13]
          Q:     In your experience, when a patient fractures a radius bone like
                 Guillermo did, can it be painful to engage in just very mundane
                 everyday activities, like shaking hands?

          A:     It can.

          Q:     And if it gets worse, then – as opposed to saying, you know,
                 lifting a heavy bag of groceries hurt at the beginning of this
                 injury, but now it’s gotten worse and now it hurts to shake hands.
                 Have you seen patients experience that kind of development?

          A:    Yes, I have.
          --IV RR 44.


          Q:     Is there any medical evidence in this case that you’ve seen that
                 would suggest that Guillermo needs a wrist fusion surgery
                 because of his exercise routine?

          A:    No.
          --IV RR 71-72.25

          Murray further goes on to cite the same passage of testimony for the

proposition that Cronfel, “…injured himself while working out with kettle weight-

bells and heavy weights (against the specific advice of his physical therapist and

Lown).26 But neither Dr. Lown’s testimony, nor the notes of Dr. Lown and/or his

physical therapist, indicate that either person “specifically” advised Cronfel not to

work out, not to work out with kettle bells, or not to work out with heavy weights.

In fact, as noted above, Cronfel modified his workout regimen in accordance with


25
     For additional testimony of Dr. Lown in this regard, see IV RR 41-44, 67-68 & 71-72.
26
     See, Brief of Appellee at p. 23 (citing IV RR 95-99).
                                                [14]
Dr. Lown’s treatment. Murray’s contention that the medical records and Dr. Lown’s

testimony do not comport with Cronfel’s testimony regarding the pain he

experiences and the difficulties he encounters with everyday activities, as a result of

his injuries, is not supported by the record.

          Murray next suggests that Cronfel’s medical records indicate that right hand

and wrist pain he was suffering in March of 2013 (and beyond), was the result of a

“separate and distinct bicycle accident, which occurred in August of 2012…”27

Tellingly, Murray chooses to ignore a portion of his own cross-examination of Dr.

Lown on this issue:

          Q:     And then he returns to your office, among other times, but he
                 returns on August the 14th of 2012. And at that time, he reports
                 an event where his brakes locked up and he went over the
                 handlebars, sometime before that, correct?

          A:     Correct.

          Q:     And for that event, you performed surgery within two weeks, did
                 you not?

          A:     No.

          Q:     You – you didn’t perform surgery to the left wrist within two
                 weeks of that event?

          A:    Sorry. On the left side, yes, I did.
          --IV RR 99 (emphasis added).

And again:


27
     See, Brief of Appellee at pp. 23-26 (citing IV RR 101-104).
                                                [15]
       Q:      Okay. So you think he actually – he went over the handlebars
               again in 2012, and he exacerbated himself again?

       A:    It was his left wrist.
       --IV RR 105 (emphasis added).

Further, in arriving at this contention, Murray also ignores at least seven (7)

additional, dated entries in Cronfel’s medical records that specifically address the

August, 2012 injury to his left wrist and hand, the surgery on his left scapholunate

ligament, and the subsequent rehabilitation and check-ups related to same. 28

Murray’s contention that the medical records reveal that Cronfel’s complaints about

the problems with his right hand and wrist were the result of a separate bicycle

accident is again, not supported by the record.

       Also in relation to the August, 2012 accident, Murray assails Dr. Lown’s

testimony as “blithely” suggesting, “…the dozen or more references to Cronfel’s

August 2012 collision with an automobile was a mistake or the fault of his medical

assistant.” 29 Dr. Lown testified on cross-examination that the reference to an

automobile collision was, “…a mistake on my part.” 30 Further, a review of the

medical records introduced at trial demonstrates not a “dozen or more references” to

an August, 2012 collision with an automobile, but just the one, mistaken reference,




28
   See, VII RR 128, 130, 132, 134, 156, 165 & 168, Plaintiff’s Exh. 6.
29
   See, Brief of Appellee at p. 26 (citing IV RR 105).
30
   See, IV RR 105.
                                              [16]
that came from a report dated September 11, 2014.31 Once again, Murray ignores

those parts of the record that do not fit this false narrative. The medical records from

Arise Austin Medical Hospital that were contemporaneous with the above-

referenced September, 2014 surgery, contain additional medical history records

from Dr. Lown, contemporaneous with the August, 2012 accident, that describe it

as follows:

       “Chief Complaint – Guillermo is a 56y old Male who presents with a
       primary complaint of left wrist pain. He was riding his bike on 8.5.12
       and the front brake locked up and he went over the handle bars. He was
       seen the next day at Dr. Windler’s office who ordered an MRI and
       applied a removable splint…Location: Left wrist…”
       --VII RR 320 - Plaintiff’s Exh. 8.

Once again, Murray’s contention in this respect is not supported by the record, and

his personal attack on Dr. Lown’s credibility is without merit.

       Murray then asserts that Dr. Windler’s medical records from 2009,

demonstrate that Cronfel had “normal” wrist function as of October, 2009,

approximately three months after the dog attack, and that Dr. Lown’s testimony

confirms this.32     But recall Dr. Lown’s testimony (referenced above) that the

symptoms of pain and difficulty with performing routine tasks in a patient with the

sort of injury Cronfel experienced in July, 2009, can take some time to develop.33


31
   See, VII RR 190-191, Plaintiff’s Exh. 6. To be fair, the same report does appear in duplicate,
two other times in the record at VII RR 273-274 & 311-312, Plaintiff’s Exh. 8.
32
   See, Brief of Appellee at pp. 26-28 (citing IV RR 107).
33
   See, IV RR 41-42.
                                              [17]
In fact, Dr. Windler’s records (as well as those of Cronfel’s general practitioner, Dr.

Margolin, who was the first to see him after the July, 2009 attack) indicate that while

there was initially some swelling in the right hand/wrist, Cronfel’s initial

presentment was predominantly for pain in his right elbow and right shoulder.34

Murray again ignores the record evidence that stands in contrast to his assertion, Dr.

Windler’s subsequent medical records that indicate the onset of the hand/wrist pain

that would begin to plague Cronfel, as Dr. Lown predicted could happen with that

type of injury. 35 Again, Murray’s contention in this respect is not supported by the

record.

       Murray sums up his attack on the credibility of Dr. Lown and Cronfel’s

medical records by listing his points of contention; “Prior Injury”; “No Surgery”;

“Subsequent Injury”; “Full Range of Motion and the Wrist Medically Declared

Normal in August 2009”; and, “Sporadic and Inconsistent History of Treatment”,

with no additional record references, apparently relying on those references already

discredited, above. 36 In sum, Murray’s argument regarding the credibility of Dr.

Lown and the import of the medical records is disingenuous, at best, and sheds little

to no light on the fanciful argument he seems to posit that the jury could have

reasonably found that an occurrence other than the dog attack caused Cronfel’s


34
   See, VII RR 18-22; and, 27-29; Plaintiff’s Exhs. 2 & 3, respectively.
35
   See, VII RR 25-26 & 30-34, Plaintiff’s Exh. 3.
36
   See, Brief of Appellee at pp. 28-29.
                                               [18]
injuries, given the complete lack of evidence of a causal connection between any

such occurrences and Cronfel’s injuries.37

3.     Cronfel’s Testimony.

       As with his attack on the credibility of Dr. Lown’s Testimony, Murray’s

assault on the testimony of Cronfel is dependent on mischaracterizations of, and/or

flat misstatements of the record. First, Murray asserts that, “Subsequent to the (sic)

Dr. Lown’s testimony, Cronfel testified that, contrary to what his medical records

said, he never sustained a right wrist injury in 2005.”38 This is simply not what

Cronfel testified to in the passage cited by Murray, and it ignores Cronfel’s lengthy

testimony as to the referenced injury he suffered in 2005. The passage cited by

Murray reflects Cronfel’s testimony that when questioned at his deposition

approximately a year earlier, he initially stated that he had not injured his right wrist

prior to the July, 2009 dog attack, but later in the deposition corrected that

statement. 39 Moreover, Cronfel addressed the 2005 injury at length in his direct

examination, explaining that his understanding was in conformity with that of Dr.

Walters’ contemporaneous medical records, chiefly that he had broken the hamate

bone in his right hand and had a ‘mild disruption’ of the scapholunate ligament:




37
   Tellingly, Murray did not present any medical expert testimony at trial in support of any such
theories.
38
   See, Brief of Appellee at pp. 29-31 (citing IV RR 174-177).
39
   See, IV RR 175.
                                              [19]
       Q:     And what was your understanding of your diagnosis at that time
              back in 2005?

       A:     I understood that I broke a little – a bone here on the palm of your
              hand called the hook of the hamate by pressing – by trying to
              break my fall….

                                             *****

       Q:     Was it your understanding that your scapholunate ligament had
              a mild widening or a large tear back then?

       A:     I understood a mild widening. 40

Murray’s assertion that Cronfel’s trial testimony lacks credibility in this regard is

predicated on an untrue depiction of the record, and is without merit.

       Next, Murray states that Cronfel, “…also testified that he injured his right

hand and wrist in a 2007 bicycle accident.” 41 This assertion is based on a two

question-two answer passage in Cronfel’s cross-examination in which Cronfel

misspoke regarding his own, earlier testimony, and requires Murray to simply ignore

that earlier testimony as well as the medical records related thereto. In fact,

Cronfel’s earlier testimony in this regard was that he had visited Dr. Walters in early

2007 regarding an injury to a finger on his left hand, and again in late 2007/early

2008 regarding an injury to a finger on his right hand. 42




40
   For Cronfel’s extensive testimony in this regard, see IV RR 149-153.
41
   See, Brief of Appellee at p. 31 (citing IV RR 177-178).
42
   See, IV RR 153-156.
                                              [20]
Dr. Walters’ contemporaneous medical records confirm Cronfel’s account of the

above-referenced injuries in 2007/2008.43 Murray’s assertion that Cronfel’s trial

testimony lacks credibility in this regard is predicated on a misleading (at best)

depiction of the record, and is without merit.

       Murray then cites approximately seven pages of testimony in which Cronfel

generally describes the circumstances surrounding his collision with Murray’s dog.44

And, while Murray accurately quotes certain sections from said testimony, some of

his characterizations of that testimony, e.g., that Cronfel was, “…riding very fast in

the middle of the road,” and, “…did nothing to avoid colliding with the dog,” are

once again, simply not supported by the record. Even in those passages of testimony

quoted by Murray, Cronfel testifies only that he; (i) was “trying to pick up speed”

and going pretty fast; (ii) was riding in the roadway some “three, four feet” away

from parked cars; and, (iii) “had no chance” to avoid colliding with the dog. 45 In

this respect, Murray’s characterizations of the record are, once again, misleading (at

best), and further, fail completely to support Murray’s assertion that Cronfel’s

testimony lacked credibility.

       Finally, Murray cites a section of his own testimony as demonstrating the

location in the roadway, “…where Cronfel was immediately after the claimed


43
   See, VII RR 40-41, 49-53 & 68-71, Plaintiff’s Exh. 4.
44
   See, Brief of Appellee at pp. 31-37 (citing IV RR 178-185).
45
   Id.
                                              [21]
collision with Magnum, the dog.”46 This passage of Murray’s brief is the first

appearance of a brand, new argument – the apparent implication that the collision

may not have happened at all. This despite the fact that Cronfel’s testimony on this

issue is clear, direct, unequivocal, and uncontroverted. In fact, Murray’s testimony

as to the collision was simply:

          Q:     Okay. So it’s your testimony that you didn’t see Mr. Cronfel
                 biking down the street?

          A:    Not at all, no, sir.
          --IV RR 208.


          Q:     Now, do you have any knowledge of any facts that Mr. Cronfel
                 did anything wrong in this collision with your dog?

          A:     I don’t know what he did because I did not see him.

          Q:     Okay. So you don’t have any facts to base on that –

          A:    I don’t know. I did not see what he was doing.
          --IV RR 217.

Frankly, it is unclear what Murray is asserting this testimony demonstrates, beyond

Cronfel’s position in the roadway after Murray’s dog attacked him. Nevertheless,

Murray’s testimony certainly does not demonstrate anything with respect to the

credibility of Cronfel’s testimony.            In sum, Murray’s argument regarding the

credibility of Cronfel’s testimony at trial demonstrates no inconsistency, no



46
     See, Brief of Appellee at pp. 37-38 (emphasis added) (citing IV RR 223-224).
                                                [22]
prevarication, and no equivocation in same, is not supported by a review of the entire

record, and importantly, shines a light on Murray’s mischaracterizations and/or

misstatements regarding same.

                               II. Standard of Review

      As Cronfel explained in his principal Brief, the applicable standard of review

for his legal sufficiency and factual sufficiency challenges to the jury’s findings in

the underlying case are well-settled.

1.    Legal Sufficiency.

      The Court reviews a legal sufficiency challenge to determine, “…if the record

reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital

fact; (c) the evidence offered to prove a vital fact is no more than a scintilla; or (d)

the evidence establishes conclusively the opposite of the vital fact.” McDonald v.

Dankworth, 212 S.W.3d 336, 340 (Tex.App.-Austin 2006, no pet.), citing City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No

Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-363

(1960)). Murray (understandably) focuses his discussion of the legal sufficiency

standard almost solely on the principle of deference to the trier-of-fact as it relates

to the jury’s consideration of the evidence presented, i.e., the credibility of the




                                         [23]
witnesses and weight to be given their testimony. 47 However, Murray glosses over

a number of standards that the reviewing court must also bear in mind when

performing a legal sufficiency review.

       The reviewing court cannot disregard contrary evidence demonstrating that

evidence ostensibly in support of the jury’s findings was taken out of context.48 The

reviewing court cannot disregard contrary evidence showing that evidence in support

of a verdict is incompetent; e.g., a supposed eyewitness’s testimony being shown to

be “physically impossible”, or a situation in which expert testimony is required and

thus, lay evidence legally insufficient. 49 The reviewing court cannot disregard

contrary inferences when the equal-inference rule applies, i.e., “…the evidence does

not rise above a scintilla (and thus is legally insufficient) if jurors would have to

guess whether a vital fact exists.” 50 And, “…when the circumstantial evidence of a

vital fact is meager, a reviewing court must consider not just favorable but all the

circumstantial evidence, and competing inferences as well.”51 Moreover, though

jurors are the sole judges of the credibility of the witnesses, “[t]he jury’s decisions

regarding credibility must be reasonable,” and, “Jurors cannot ignore undisputed

testimony that is clear, positive, direct, otherwise credible, free from contradictions



47
   See, Brief of Appellee at pp. 40-42.
48
   See, City of Keller, 168 S.W.3d at 812, fn. 28.
49
   Id., at 812, fns. 30 & 32.
50
   Id., at 813, fns. 40 & 41.
51
   Id., at 814.
                                                [24]
and inconsistencies, and could have been readily controverted.” 52 Further, while the

jury may draw inferences from the evidence presented, such inferences must be

reasonable, “Circumstantial evidence may be used to establish any material fact, but

it must transcend mere suspicion…The material fact must be reasonably inferred

from the known circumstances.”53

2.     Factual Sufficiency.

       The Court reviews a factual sufficiency, or “insufficient evidence” challenge

by considering, weighing and examining all evidence in the record, “…both

supporting and against the finding, to decide whether the verdict should be set aside.”

McDonald, 212 S.W.3d at 339, citing Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d

442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986);

See also, Carney v. Roberts Inv. Co., 837 S.W.2d 206, 208 (Tex.App.-Tyler 1992,

writ denied). A factual sufficiency challenge should be sustained, “…only if the

evidence that supports the jury finding is so weak as to be clearly wrong and

manifestly unjust.” McDonald, 212 S.W.3d at 339, citing Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986); See also, Carney, 837 S.W.2d at 208 (“A reversal is required

if this court concludes that the verdict is so against the great weight and

preponderance of evidence as to be manifestly unjust.”)


52
  Id., at 819-820, fns. 89, 99 & 100.
53
  Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001); citing Browning-Ferris, Inc. v. Reyna, 865
S.W.2d 925, 928 (Tex. 1993), and Joske v. Irvine, 91 Tex. 574, 44 S.W.1059, 1064 (Tex. 1898).
                                            [25]
3.     A Jury Can’t Simply Surmise or Suspect a Vital Fact.

       As noted above and at length in Appellant’s Principal Brief, while jurors are

the sole judges of credibility of witnesses and the weight to give their testimony, this

is not a get-out-of-jail-free-card for findings that are not supported by actual

evidence and/or reasonable inferences therefrom. However, contrary to Murray’s

position in this respect, jurors’ ability to “resolve conflicts and inconsistencies in the

testimony of any one witness as well as in the testimony of different witnesses” relies

on there actually being such conflicts and/or inconsistencies. 54                      Again, as

demonstrated in Appellant’s Principal Brief, and above in reply to Appellee’s Brief,

there were no actual conflicts and/or inconsistencies for the jury to resolve in the

case sub judice, such that their findings in regard to those points of error brought by

Appellant are not subject to meaningful review for legal and/or factual sufficiency.

That is, “When the evidence offered to prove a vital fact is so weak as to do no more

than create a mere surmise or suspicion of its existence, the evidence is less than a

scintilla and, in legal effect, is no evidence.” McDonald, 212 S.W.3d at 339, citing

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).



54
  See, Brief of Appellee at p. 44. Appellee’s Brief failed to properly cite the quoted passage; City
of Keller, 168 S.W.3d at 819, fn. 90, citing Ford v. Panhandle & Santa Fe Ry. Co., 252 S.W.2d
561, 563 (Tex. 1952). This is notable, as in Ford the Texas Supreme Court noted conflicting
evidence at trial, which required such resolution by the jury. Here, there were no such conflicts to
resolve.
                                               [26]
 III. The Jury’s Negligence Finding as to Cronfel is Not Supported by Legally
                        or Factually Sufficient Evidence

       Murray relies on a comparison of the facts at issue in this Court’s prior opinion

in McDonald, to those at issue in the case sub judice in support of his contention that

the jury’s contributory negligence finding in the instant case was supported by

legally and factually sufficient evidence. 55 However, this is a demonstrably false

comparison.

       McDonald involved a motor-vehicle accident in which Dankworth, by her

own admission, rear-ended McDonald while both of their vehicles were at a

stoplight. Importantly, the evidence presented at trial involved conflicting testimony

of Dankworth, McDonald, and the driver of a third car that was in front of McDonald

at the stoplight – Mazza. As this Court stated in McDonald:

       “The evidence is inconsistent on whether McDonald stopped suddenly
       in front of Dankworth. Both McDonald and Mazza testified that
       McDonald had been sitting stopped in traffic behind Mazza in the
       moments before Dankworth hit him. The sole evidence that McDonald
       stopped suddenly in front of Dankworth was her testimony. She
       testified that McDonald stopped “unexpectedly” or “suddenly,” but did
       little to elaborate on what she meant. Dankworth did testify, however,
       that she heard “screeching brakes,” then saw McDonald’s brake lights,
       but was unable to avoid hitting him. The jury could have inferred from
       this testimony that the screeching brakes Dankworth heard were
       McDonald’s and that McDonald, in fact, did stop suddenly or abruptly
       in front of her.”56

55
  See, Brief of Appellee at p. 46-50.
56
  See, McDonald, 212 S.W.3d at 343, citing Oakley v. C.E. Duke’s Wrecker Service, 557 S.W.2d
810, 812 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref’d n.r.e.); Rash v. Whisennand, 453
S.W.2d 353, 356-357 (Tex.Civ.App.-Houston [14th Dist.] 1970, writ ref’d n.r.e.)
                                           [27]
That is, McDonald had just the sort of inconsistency, or conflict, in the evidence

regarding McDonald’s contributory negligence that would require the jury to resolve

that conflict through its reasonable inferences. Here, there is no such conflict. Here,

the only competent testimony regarding Cronfel’s actions leading up to and

including the attack from Murray’s dog comes from Cronfel, and that testimony is

clear, direct, and free from inconsistencies and/or contradictions. In pertinent part,

Cronfel’s testimony was that; (i) Cronfel was revving up for a bike ride, riding pretty

fast, on a straight, slightly uphill roadway that Cronfel had ridden at least hundreds

of times before57; (ii) Cronfel was focused on what he was doing and being careful

to avoid obstructions to the side of the road 58; and, (iii) Cronfel did not see Murray

or his dog standing off of the roadway. 59 Once again, Murray mischaracterizes

Cronfel’s testimony regarding the speed at which he was traveling, in an attempt to

manufacture the speculative inference the jury would have had to draw from this

meager evidence, i.e., that Cronfel was riding his bike negligently. 60

       So desperate is he to find something, anything, on which he can assert the

jury’s finding in this regard is supported by the record, Murray further misstates

Cronfel’s testimony, and even his own. Murray states that the jury heard his


57
   See, IV RR 123-127 & 178-181.
58
   See, IV RR 125-126.
59
   See, IV RR 123-127 & 178-181.
60
   See, Brief of Appellee at pp. 49-50.
                                          [28]
testimony that Cronfel was, “…in the middle of the road and past the parked cars

when the collision with Magnum took place,” 61 when this testimony was actually

about what Murray witnessed after the attack had taken place. In fact, Murray

testified explicitly that he witnessed nothing, and knew nothing about the attack

itself:

          Q:      Okay. So it’s your testimony that you didn’t see Mr. Cronfel
                  biking down the street?

          A:    Not at all, no, sir.
          --IV RR 208.


          Q:      Now, do you have any knowledge of any facts that Mr. Cronfel
                  did anything wrong in this collision with your dog?

          A:      I don’t know what he did because I did not see him.

          Q:      Okay. So you don’t have any facts to base on that –

          A:    I don’t know. I did not see what he was doing.
          --IV RR 217.

To the extent Murray asserts that the jury could have reasonably inferred anything

about Cronfel’s actions from Murray’s testimony, such is clearly not the case, as his

testimony demonstrates its own legal incompetency in that respect. Nothing can be

reasonably inferred about Cronfel’s actions from Murray’s testimony, much less that

Cronfel was contributorily negligent for his injuries, because Murray “did not see”



61
     See, Brief of Appellee at p. 50 (citing IV RR 223-224).
                                                 [29]
anything Cronfel was doing and did not “know” anything about what Cronfel was

doing.62 Murray also repeats, ad nauseam, his mantra that Cronfel testified that he,

“…failed to take any evasive action or attempt to avoid the collision.” 63 But again,

as noted above, this is demonstrably false, as Cronfel’s testimony in this respect was

not that he failed to take evasive action, but that he had no opportunity to take evasive

action. 64 This is, apparently, Murray’s attempt to address Appellant’s argument that,

assuming arguendo there was legally and factually sufficient evidence from which

the jury could reasonably have found that Cronfel breached a duty for which he could

have been found contributorily negligent, there is still no evidence that any such

breach by Cronfel proximately caused his injuries. To the extent this is the case, it

simply assists in demonstrating that there was no evidence from which the jury could

have reasonably inferred that Cronfel’s actions were a proximate cause of his

injuries, as explained in Cronfel’s Principal Brief.65

       Based on the evidence presented, the jury had no evidence or no more than a

scintilla of evidence demonstrating that Cronfel’s conduct constituted contributory

negligence that was a proximate cause of his injuries. Moreover, the evidence was




62
   See, City of Keller, 168 S.W.3d at 812-813.
63
   See, Brief of Appellee at pp. 50-51 (citing IV RR 183-185).
64
   See, IV RR 183-185.
65
   See, Appellant’s Brief at pp. 34-37.
                                              [30]
so one-sided in this respect that the jury’s finding of contributory negligence was

against the great weight and preponderance of the evidence.

 IV. The Evidence is Not Legally or Factually Sufficient to Support the Jury’s
                              Damage Awards

       Here again, Murray relies on a false comparison to the McDonald case in

support of his argument on Appellant’s damages points of error, stating that as in

McDonald he, “…vigorously disputed whether all of Cronfel’s medical treatment

and expenses, purported physical pain and suffering, mental anguish, and alleged

impairment were caused by the accident at issue.” 66 Respectfully, Murray’s version

of ‘vigorous dispute’ differs greatly from that which this Court analyzed in

McDonald. In McDonald, the defendant offered her own expert medical testimony,

from a cardiologist, to counter the testimony of plaintiff’s medical expert, an ear,

nose, and throat specialist, regarding the accuracy of a diagnosis of a carotid artery

dissection.67 Here, tellingly, Murray offered no contrary expert testimony of any

kind, much less of a kind meant to call into question Dr. Lown’s expertise, as a

fellowship trained hand and wrist surgeon68, to diagnose Cronfel’s hand/wrist injury.

In McDonald, the defendant challenged plaintiff’s expert’s review (or lack thereof)

of the medical records of plaintiff’s primary care provider. Here, Dr. Lown testified



66
   See, Brief of Appellee at p. 52.
67
   See, McDonald, 212 S.W.3d at 348.
68
   IV RR 32-34.
                                        [31]
that he examined the medical records of not only Cronfel’s primary care provider,

but the medical records of two other hand specialists (Drs. Walters and Vagner) and

an orthopedic surgeon (Dr. Windler), including records as far back as four (4) years

prior to the attack and injury in question.69 In McDonald, plaintiff’s expert testified

that he “didn’t know exactly what was going on” with the plaintiff, and that the

carotid artery dissection was “just something on the list of what it might be.” 70 Here,

as noted at length above, Dr. Lown testified that Cronfel’s injuries, and the surgeries

that they necessitated and would eventually necessitate, arose solely from the dog

attack at issue:

          Q:     I just want to make clear. And after answering Mr. Payne’s
                 questions, have your opinions changed at all as Mr. Cronfel’s
                 treating physician that, other than this July 23rd, 2009 injury,
                 would Mr. Cronfel need this ulnar shortening surgery or would
                 he need the wrist fusion?

          A:     No, he would not.

          Q:     And that’s based on your skills, experience, training, and
                 reasonable medical probability?

          A:    That’s correct.
          --IV RR 117-118.




69
     IV RR 35-36, 53-56, 58-61 & 64-65.
70
     See, McDonald, 212 S.W.3d at 348.
                                           [32]
Further, many of the pieces of “evidence” that Murray cites in support of his position

regarding inconsistencies in the medical/damages testimony, are unaccompanied by

any record references. 71

          So, in the face of conclusive expert medical testimony from Dr. Lown, and

with no contrary expert medical testimony of his own, Murray asserts that the jury

could have reasonably inferred that the damages Cronfel complained of as a result

of the July, 2009 dog attack, were actually caused by an incident that occurred four

years earlier. This assertion is supported by no evidence at all. “The general rule

has long been that expert testimony is necessary to establish causation as to medical

conditions outside the common knowledge and experience of jurors.” Guevara v.

Ferrer, 247 S.W.3d 662, 665 (Tex. 2007), citing Ins. Co. of N. Am. v. Myers, 411

S.W.2d 710, 713 (Tex. 1966); see also, JLG Trucking, LLC v. Garza, 466 S.W.3d

157, 162 (Tex. 2015). The only expert medical testimony presented came from Dr.

Lown, and despite Murray’s attempts at mischaracterization of same, was clear,

direct, unequivocal, and based on reasonable medical probability. The medical

records (both Dr. Lown’s medical records, and Dr. Walters’ medical records

regarding Cronfel’s 2005 injury as well as his 2009 injury, see pp. 6-8, above)

support Dr. Lown’s testimony.




71
     See, Brief of Appellee at pp. 28-29 & 54-55.
                                                [33]
          In sum, Murray’s argument with respect to the jury’s damages findings is that

because they heard evidence that Cronfel had injured his right hand some four years

earlier, they could reasonably have inferred that the injuries he was complaining of

presently arose from the prior injury as opposed to the instant dog attack, despite the

fact that the jury heard no evidence establishing a causal connection between the

prior injury and the present complaints. This position is without support in the record

or in the legal authorities cited. As such, the jury’s damages findings were not

supported by legally or factually sufficient evidence, as complained of in Appellant’s

Principal Brief.

         V. The Trial Court’s Discovery Sanction Was an Abuse of Discretion

          As noted at the outset, and tellingly, Murray fails to address the legal

contentions set forth in Appellant’s Brief in this regard, and mischaracterizes

Cronfel’s position as that he should not have been sanctioned because, “…$5,000.00

was excessive and not explained to Cronfel’s satisfaction.” 72 In point of fact, and as

described at length in Appellant’s Principal Brief, the sanction complained of was

an abuse of discretion because same did not comport with the requirements of Tex.

R. Civ. P. 215 in that no evidentiary hearing was held regarding the issuance of said

sanctions, and the sanctions included an award related to “objectionable conduct”,




72
     See, Brief of Appellee at pp. 63-64.
                                            [34]
not authorized by Rule 215. 73 The analysis on this issue is as simple as that, and

Murray’s failure to address same points to the fatal flaws inherent in the trial court’s

sanction order.

                                            Conclusion

          In Appellee’s Brief, Murray doubles-down on the admonition from his trial

attorney to the jury to engage in rank speculation 74, not only as to the contributory

negligence of Cronfel and its status as a proximate cause of his injuries arising from

the July, 2009 dog attack, but also to the medical causation of Cronfel’s injuries as

arising from a 2005 bicycle accident, as opposed to the July, 2009 dog attack.

Disregarding the dearth of evidence or any reasonable inferences therefrom that

would support those findings, Murray essentially argues that the jury was entitled to

reasonably infer backwards, from the occurrence of the accident itself, that the facts

should then be read to support the conclusion. This is simply not how reasonable

inferences drawn from actual evidence works. A review of all the evidence adduced

below or only that evidence that would arguably tend to support the jury’s findings,

even in the light most favorable to Murray, yields the firm conclusion that reasonable

minds could not differ as to the negligence that was the cause of the July, 2009

incident, or as to the cause of Cronfel’s injuries arising therefrom. Upon this record,



73
     See, Appellant’s Brief at pp. 62-66.
74
     V RR 26.
                                               [35]
the decision below must be reversed and remanded, affording Cronfel a new trial on

this matter.

                                             Respectfully submitted,

                                             /s/ Paul T. Morin
                                             Mr. Paul T. Morin
                                             Texas Bar No. 14460550
                                             Paul T. Morin, P.C.
                                             503 West 14th Street
                                             Austin, Texas 78701
                                             Telephone: (512) 499-8200
                                             Facsimile: (512) 499-8203
                                             pmorin@austin.rr.com

                                             Guillermo Ochoa-Cronfel
                                             Texas Bar No. 15175600
                                             The Cronfel Firm
                                             2700 Bee Caves Road, Suite 103
                                             Austin, Texas 78746
                                             Telephone: (512) 347-9600
                                             Facsimile: (512) 347-9911
                                             Guillermo@thecronfelfirm.com

                                             Counsel for Appellant,
                                             Guillermo Ochoa-Cronfel




                                      [36]
                            Certificate of Compliance

      I certify that on December 3, 2015, this Appellant’s Reply Brief was produced

on a computer and contains 7,492 words, excluding the caption, table of contents,

index of authorities, signature, certificate of compliance and certificate of service,

and thus does not exceed the 7,500 word limit provided for by Tex. R. App. P. 9.4(i).

                                               /s/ Paul T. Morin
                                               Paul T. Morin


                         Certificate of Filing and Service

      I certify that on December 3, 2015, I used the Court’s electronic case filing

system to file this Appellant’s Brief and to serve this document on the counsel for

Appellee:

Mr. Gregory R. Ave
Texas Bar No. 01448900
Mr. Jay R. Harris
Texas Bar No. 00793907
Walters, Balido & Crain, L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
Telephone: (214) 347-8310
Facsimile: (214) 347-8311
Greg.Ave@wbclawfirm.com
Jay.Harris@wbclawfirm.com

                                               /s/ Paul T. Morin
                                               Paul T. Morin




                                        [37]
