      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00230-CV



                                     Elsie O. Jones, Appellant

                                                  v.

                              Jose G. Ramirez-Rodriguez, Appellee


               FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
           NO. C-1-CV-13-002528, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Elsie O. Jones, acting pro se, appeals the trial court’s take-nothing judgment rendered

on a jury verdict in favor of Jose G. Ramirez-Rodriguez. In five issues, Jones challenges the

sufficiency of the evidence to support the jury’s finding of no negligence and the trial court’s

exclusion of certain exhibits. We affirm.1


                                         BACKGROUND

               Jones sued Rodriguez in justice court. After a jury verdict in Rodriguez’s favor in

justice court, Jones appealed to county court. Her claims for damages were based on allegations that

Rodriguez’s vehicle, a blue Suburban, struck her parked vehicle in April 2012 when Rodriguez’s



       1
          Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
vehicle was leaving an adjacent parking space in the apartment complex parking lot where the parties

lived. She also alleged that Rodriguez improperly blocked her from parking in her assigned

“privileged” parking spot and was negligent when he allowed children under his control to vandalize

Jones’s parked vehicle in October 2012.

               At the jury trial in county court, Jones called herself and her husband to testify about

the incident in April 2012. They testified that Jones parked her vehicle in the parking space next to

the space in which Rodriguez’s Suburban was parked, and they discovered about one hour later that

Jones’s vehicle had been damaged and Rodriguez’s Suburban was no longer in the adjacent parking

space. Jones thereafter called the police. At the time the police arrived, Jones’s daughter’s car was

in the parking spot adjacent to Jones’s vehicle. The police were able to locate Rodriguez, and he

told the police that he did own the Suburban but that “[he] didn’t hit anybody’s car.” No citation or

charges resulted from the police’s investigation. Jones’s admitted exhibits were photographs of

Rodriguez’s vehicle and the parking lot. According to Jones’s husband, the photographs of

Rodriguez’s Suburban showed “our blue paint on the right front corner bumper,” Rodriguez

subsequently replaced the Suburban’s bumper, and Jones attempted to schedule an expert to inspect

Rodriguez’s Suburban but “defendant’s counsel canceled each time not allowing the expert to do his

job proficiently.” Jones provided similar testimony about the April 2012 incident and also testified

about the incidents in October 2012.

               Rodriguez did not call any witnesses and moved for directed verdict. The trial court

denied his motion and submitted the case to the jury. The jury answered “no” to Question 1, which

asked, “Did the negligence, if any, of [Rodriguez] proximately cause the occurrence in question?”



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Because the jury answered “no,” it did not answer any other questions. Jones filed a motion for

judgment notwithstanding the verdict and a motion for new trial. The trial court overruled both

motions, and this appeal followed.


                                              ANALYSIS

Sufficiency of Evidence

                In her first, fourth, and fifth issues, Jones challenges the evidence to support the jury’s

answers to the questions in the charge. In her first issue, she urges that the evidence does not support

the jury’s answers “[b]ase[d] on preponderance of the evidence.” To support this argument, she cites

the trial court’s denial of Rodriguez’s motion for directed verdict and the trial court’s statement that

there “was enough evidence to get to the jury.” In her fourth issue, she urges that the jury should

have awarded her damages “for her personal property and her privileged parking and parental

liability . . . because she testified that she was the witness that saw the child” who vandalized her car

and “about her allotted parking place.” In her fifth issue, she contends that Rodriguez failed to

present evidence “showing that his vehicle did not have [her] paint on his vehicle” or “pictures

showing [his vehicle] before and after [the April 2012 incident].”

                Although it is not clear from her briefing, we construe her arguments as legal

and factual sufficiency challenges. See Tex. R. App. P. 38.9; Washington v. Bank of N.Y.,

362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.) (construing pro se brief liberally). When

the party with the burden of proof attacks the legal sufficiency of the evidence to support a jury

finding, the party “must demonstrate on appeal that the evidence establishes, as a matter of law, all

vital facts in support of the issue.” See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001);

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see City of Keller v. Wilson, 168 S.W.3d 802, 810, 823 (Tex. 2005) (describing legal sufficiency

standard of review). “When a party attacks the factual sufficiency of an adverse finding on an issue

on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is

against the great weight and preponderance of the evidence.” Dow Chem., 46 S.W.3d at 242. We

“must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so

weak or if the finding is so against the great weight and preponderance of the evidence that it is

clearly wrong and unjust.” Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986));

see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard

of review).

                Although Jones presented some evidence to support her theory that Rodriguez

negligently damaged her vehicle when his Suburban vacated the adjacent parking spot and that

children later vandalized her car, there was no evidence that: (i) Rodriguez was the driver of the

Suburban when it left the parking lot, (ii) the Suburban was being driven negligently when it left the

parking space, or (iii) Rodriguez was legally responsible for the children who allegedly vandalized

her car in October 2012. See Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.

1990) (listing elements of negligence to include legal duty owed to plaintiff, breach of duty, and

damages proximately caused by breach). There was no eyewitness to the April 2012 incident, and

the jury could have credited the evidence that the police investigation did not lead to the issuance

of a citation or ticket.

                Further, the jury could have disbelieved Jones and her husband, who were witnesses

interested in the outcome. See City of Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of the



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credibility of the witnesses and the weight to give their testimony. They may choose to believe one

witness and disbelieve another.”); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.

1986) (“The uncontradicted testimony of an interested witness cannot be considered as doing more

than raising an issue of fact unless that testimony is clear, direct, and positive, and there are no

circumstances in evidence tending to discredit or impeach such testimony.”).

                Viewing the evidence in the light most favorable to the jury’s finding of no

negligence, we conclude that Jones has failed to demonstrate that the evidence establishes, as a

matter of law, that Rodriguez was negligent. See Dow Chem., 46 S.W.3d at 241; see also City of

Keller, 168 S.W.3d at 810, 827. Further, based on our review of the evidence, we cannot conclude

that the weight of the evidence is so contrary to the jury’s finding as to be clearly wrong and unjust.

See Dow Chem., 46 S.W.3d at 242; Cain, 709 S.W.2d at 176. Thus, we conclude that there is legally

and factually sufficient evidence to support the jury’s finding. We overrule Jones’s first, fourth, and

fifth issues.


Excluded Documents

                In her second and third issues, Jones argues that the trial court should have allowed

a “lease agreement and violations” with “handwritten notation,” which she sought to introduce over

Rodriguez’s objection. Although Jones filed “exhibits” with the trial court approximately one month

after the jury trial, including a lease agreement and documents titled “Notice of Lease Violation,”

Jones did not make an offer of proof or bill of exception as to the exhibits that she sought to admit

during trial. See Tex. R. Evid. 103 (describing offer of proof); Tex. R. App. P. 33.2 (describing

formal bills of exception). Thus, she has failed to preserve any error for appellate review. See

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McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984) (concluding no error

preserved as to excluded evidence because party failed to make “proper bill of exceptions”);

Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.) (concluding

that filing document with trial court was not sufficient offer of proof to preserve error); see also

Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso 2002, no pet.) (“While the reviewing court

may be able to discern from the record the nature of the evidence and the propriety of the trial court’s

ruling, without an offer of proof, we can never determine whether exclusion of the evidence was

harmful. Thus, when evidence is excluded by the trial court, the proponent of the evidence must

preserve the evidence in the record in order to complain of the exclusion on appeal.”). We overrule

Jones’s second and third issues.2


                                          CONCLUSION

                For these reasons, we affirm the trial court’s judgment.



                                                __________________________________________
                                                Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: August 21, 2015




       2
           To the extent Jones challenges the county court’s jurisdiction in her reply letter, we
conclude that the county court properly exercised its jurisdiction over her appeal from justice court.
See Tex. Gov’t Code § 25.0003; Tex. R. Civ. P. 506.1 (appeal from justice court), 506.3 (requiring
case to be tried de novo in county court).

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