                                MEMORANDUM OPINION
                                       No. 04-11-00584-CV

                                       Alma R. BRIONES,
                                           Appellant

                                                 v.

                                        Hitzelt SHARKEY,
                                             Appellee

                     From the 57th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-08340
                         Honorable Cathleen M. Stryker, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: August 31, 2012

AFFIRMED

           Appellant Alma Rosa Briones filed suit against appellee Hitzelt Sharkey alleging

negligence following a rear-end motor vehicle accident.         The jury found Sharkey was not

negligent. On appeal, Briones argues the trial court included an erroneous instruction in the jury

charge, and that erroneous instruction resulted in an improper verdict. Briones also argues the

evidence was legally and factually insufficient to the support the jury’s finding of no negligence

on the part of Sharkey. We affirm the trial court’s judgment.
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                                          BACKGROUND

       Briones testified that on the afternoon of May 27, 2006, she was stopped at a red light

when she was struck from behind. Briones testified she took her foot off the brake, but before

she could accelerate, Sharkey’s Lincoln Navigator rear-ended her Ford F-150. At the scene,

Briones reported she was uninjured. The only damage to her vehicle was the camper shell on the

back of her vehicle had shifted and had to be reseated. According to Briones, she and her

boyfriend reseated the camper that evening. However, at trial, Briones testified that shortly after

the accident, she began to experience extensive pain, emanating from severe back spasms.

Sharkey did not testify. The jury found Sharkey was not negligent and this appeal followed.

                                      JURY CHARGE ERROR

       Briones’s first argument is the trial court erred in including an instruction that the mere

occurrence of a rear-end accident is not conclusive evidence of negligence. Sharkey counters the

instruction was a correct statement of the law and aided and assisted the jury.

                                       Standard of Review

       An appellate court reviews a trial court’s decision to submit or refuse a particular

definition or instruction under an abuse of discretion standard. Thota v. Young, 366 S.W.3d 678,

687 (Tex. 2012); In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). A proper jury instruction: (1)

assists the jury; (2) accurately states the law; and (3) is supported in the pleadings and evidence.

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009); see

La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). The trial court must submit jury

questions, instructions, and definitions that are raised by the written pleadings and the evidence.

TEX. R. CIV. P. 278.




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       An appellate court will not reverse a judgment for charge error unless the error was

harmful, that is, it “probably caused the rendition of an improper judgment” or “probably

prevented the appellant from properly presenting the case to the court of appeals.” TEX. R. APP.

P. 44.1. “Charge error is generally considered harmful if it relates to a contested, critical issue.”

Hawley, 284 S.W.3d at 856; see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480

(Tex. 2001). Our determination of whether the instruction “was reasonably calculated to and

probably did cause the rendition of an improper judgment” requires an examination of the entire

record. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006).

                                             Analysis

       Briones testified she was stopped at a red light when she was struck from behind by

Sharkey’s vehicle. The trial court submitted the case to the jury in a broad-form charge. The

liability question asked:   “Did the negligence, if any, of [Sharkey], proximately cause the

occurrence in question?” Over objection by Briones’s counsel, the trial court also included an

instruction: “The mere occurrence of a rear-end accident or collision is not of itself evidence of

negligence as a matter of law.”      In a unanimous verdict, the jury found Sharkey was not

negligent, and the trial court entered a take-nothing judgment in favor of Sharkey.

       Briones argues the instruction was an improper, direct comment on the weight of the

evidence because the instruction strongly suggested Briones had only proven an accident

occurred and not that the accident was the result of Sharkey’s negligence. Briones points out the

evidence was undisputed that Sharkey’s vehicle struck Briones’ vehicle from behind, Briones

was stopped at a red light, it was full daylight, and the weather was clear. Additionally, Briones

points out Sharkey neither plead nor presented evidence that the accident was unavoidable. See

Lemos v. Montez, 680 S.W.2d 798, 800 (Tex. 1984) (citing Dallas Ry. & Terminal Co. v. Bailey,



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250 S.W.2d 379, 383 (Tex. 1952)) (“[I]f the evidence does not raise the issue that something

other than the negligence of one of the parties (to the event) caused the injuries, then it does not

raise the issue of unavoidable accident.”).

       Sharkey counters that the instruction was a correct statement of the law. Benavente v.

Granger, 312 S.W.3d 745, 749 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“Under common

law, the mere occurrence of a rear-end collision does not establish negligence as a matter of

law.”). We agree. Yet, even when an instruction correctly states the law, if the instruction can

be construed as an impermissible comment on the evidence, it is error for the trial court to give

the jury the instruction. See Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453, 460-61 (Tex.

App.—Beaumont 2007, pet. denied).         Generally, the instruction becomes an impermissible

comment on the evidence when the instruction is not supported by the evidence. Id. at 461;

Fethkenher v. Kroger Co., 139 S.W.3d 24, 33 (Tex. App.—Fort Worth 2004, no pet.).

       Here, Briones argues the instruction is equivalent to an unavoidable accident instruction,

which negates negligence, and is only proper when testimony is elicited that something or some

action occurred that made the accident unavoidable. See Reinhart v. Young, 906 S.W.2d 471,

472 (Tex. 1995) (explaining instruction most often used with some physical condition or

circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of view); see also

Greer v. Seales, No. 09-05-001-CV, 2006 WL 439109, *4 (Tex. App.—Beaumont, Jan. 2, 2006,

no pet.) (mem. op.) (driver testified she was blinded by sunlight when accident occurred); Evans

v. Allwhite, 111 S.W.3d 282, 284 (Tex. App.—Texarkana 2003, no pet.) (driver lost

consciousness); DeLeon v. Pickens, 933 S.W.2d 286, 288 (Tex. App.—Corpus Christi 1996, writ

denied) (“emergency” arose after truck darted across four lanes from private driveway causing

actions resulting in collision). The sole purpose of the “unavoidable accident” and “sudden



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emergency” instructions is to ensure the jury will understand that “they do not necessarily have

to find that one or the other parties to the suit was to blame for the occurrence complained of.”

Greer, 2006 WL 439109 at *4 (citing Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971)).

The trial court, however, is not free to include instructions that are an incomplete statement of

the law. Quantum Chem. Corp., 47 S.W.3d at 474-81. Moreover, when there is no evidence that

the accident was caused by some such peculiar circumstance, submission of the instruction is

generally improper. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992).

       We agree that the instruction served the same purpose as unavoidable accident instruction

would have in this case. Although it did not include the term “unavoidable accident,” the

instruction was clearly designed to advise the jury it was not required to find one or the other

party was to blame for the accident. See Greer, 2006 WL 439109 at *4. Because Sharkey did

not plead unavoidable accident, and did not put on any evidence that she could not avoid the

accident, we conclude the trial court erred in submitting the instruction. Accordingly, we turn to

whether the instruction constituted harmful error. See Bed, Bath & Beyond, Inc., 211 S.W.3d at

756.

                                         Harm Analysis

       As noted above, “[a]n incorrect jury instruction requires reversal only if it ‘was

reasonably calculated to and probably did cause the rendition of an improper judgment.’” Id. at

757 (quoting Reinhart, 906 S.W.2d at 473). This determination requires an examination of the

entire record. Id. More specifically, the question of whether a rear-end collision raises an issue

of negligence or establishes negligence as a matter of law depends on the particular facts and

circumstances of the case. DeLeon, 933 S.W.2d at 289.




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       To establish negligence, a party must establish: (1) a duty, (2) a breach of that duty, and

(3) damages proximately caused by the breach. Werner v. Colwell, 909 S.W.2d 866, 86 (Tex.

1995) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Failure to prove any

of these elements results in a failure to prove negligence. The Texas Supreme Court’s analysis

in Bed, Bath & Beyond, Inc. is particularly instructive in this case. Bed, Bath & Beyond, Inc.,

211 S.W.3d at 755. While shopping at a Bed, Bath & Beyond, the plaintiff claimed he was hit

on the head and knocked unconscious by plastic trash cans when an employee was attempting to

retrieve merchandise from a high shelf above. Id. The Bed, Bath & Beyond management

completed an offense report, but the plaintiff declined the manager’s assistance and did not

report being knocked unconscious. Id. The plaintiff sued, alleging severe back injuries. During

cross-examination, testimony revealed plaintiff’s prior work-related injuries and his request of

his doctor to amend the medical records to reflect the injuries were caused by the incident at Bed,

Bath & Beyond. Id. No defense witnesses were called. Id. The trial court submitted a broad-

form negligence question and an unavoidable accident instruction. Id. Unlike the current case,

Bed, Bath & Beyond conceded the instruction was in error. The court explained that “the

inclusion of an improper, unavoidable accident instruction is ordinarily harmless,” and can

actually provide the jury with additional insight. Id. at 757. The court continued, “[t]he truth is,

sometimes accidents are no one’s fault, and an unavoidable accident instruction,” simply allows

the jury to decide that no one was at fault. Id.

       More importantly, just as in Bed, Bath & Beyond, Inc., Sharkey’s counsel defended the

case by attacking Briones’ credibility. Instead of attacking whether Sharkey breached her duty

of care, Sharkey’s counsel argued Briones failed to put forward any credible evidence of

damages. Briones and her daughter were the only witnesses that testified regarding the accident.



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Sharkey’s trial counsel vigorously challenged Briones’s injuries that allegedly resulted from the

accident in question. Sharkey’s trial counsel revealed inconsistencies regarding medical records

produced during discovery and those offered before the jury. Briones offered several possible

explanations, but agreed the records were different. Sharkey’s trial counsel also questioned

chiropractic records that included a statement by Briones: “Following the accident, I was

transported to the Gonzaba Medical Group where I was prescribed medication.”                Briones

acknowledged that this statement was not true.         February 2010 medical reports provided:

“Patient was in a motor vehicle accident. She states the current episode of pain started on

December 29, 2009.” The December 29, 2009 date corresponds to a second, unrelated accident.

The records continued, “[s]he refers that everything started in December of 2009 when she was

involved in a motor vehicle accident.”

       Briones’ credibility was weakened during cross-examination when Sharkey’s counsel

discredited Briones before the jury. Based on the conflicts, the jury could have reasonably

disbelieved Briones was injured as a result of the accident. Briones, not Sharkey, bore the

burden to prove Sharkey’s negligence. Bed, Bath & Beyond, Inc., 211 S.W.3d at 758 (citing El

Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). Simply put, the jury could have

decided that Briones failed to prove the required elements of negligence and answered the

negligence question in the negative, without regard to the instruction in question. Id.

       Briones argues the erroneous instruction was exacerbated by Sharkey’s trial counsel

repeatedly referring to the instruction during closing arguments.        Although Sharkey’s trial

counsel did argue the instruction, we are not persuaded the instruction caused a jury

determination different than if the jury instruction had not been included. See id. at 758-59. In

light of the attack on Briones’s credibility, if the jury discredited Briones’s testimony, there was



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no evidence of damages and Briones failed to prove negligence. Accordingly, a review of the

entire record does not support a finding that the trial court’s submission of the instruction

“probably caused the rendition of an improper judgment.” We find any error in submitting the

instruction was harmless. We, therefore, overrule Briones’s first issue on appeal.

                               LEGAL AND FACTUAL SUFFICIENCY

       Briones next argues the evidence is legally and factually insufficient with regard to the

jury’s finding of no negligence on the part of Sharkey. The only negligence testimony presented

to the jury was elicited from Briones.

                                         Standard of Review

       In conducting a legal sufficiency review, an appellate court considers the evidence in the

light most favorable to the challenged finding, indulging every reasonable inference to support it.

City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Additionally, the court credits

favorable evidence if reasonable jurors could, while disregarding any contrary evidence unless

reasonable jurors could not. Id. at 827. A legal sufficiency challenge will be sustained when less

than a scintilla of evidence is offered to establish a vital fact. Kroger Tex. Ltd. P’ship v. Suberu,

216 S.W.3d 788, 793 (Tex. 2006). Evidence that a fact exists does not exceed a scintilla if it is

“‘so weak as to do no more than create a mere surmise or suspicion.’” Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983)). It is the jury alone that determines the credibility of witnesses, the weight to be

given their testimony, and whether to accept or reject all or part of their testimony. City of

Keller, 168 S.W.3d at 822. Recognizing this role, we will not invade the jury’s determination so

long as the evidence falls within the zone of reasonable disagreement. Id.




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          In reviewing the factual sufficiency of the evidence, we consider all the evidence and will

set aside the finding only if the evidence supporting the finding is so weak or so against the

overwhelming weight of the evidence that the finding is clearly wrong and unjust. Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). When the appellant challenges the factual

sufficiency on an issue on which she had the burden of proof, “we must overrule the challenge if,

considering only the evidence and inferences that support the finding in the light most favorable

to the finding and disregarding evidence and inferences to the contrary, any probative evidence

supports it.” Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 636-37 (Tex.

App.—Tyler 2004, no pet.) (citing Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.

1993)).     Accordingly, because Briones had the burden to prove Sharkey’s negligence, we

consider the evidence supporting a lack of negligence in the light most favorable to that finding,

and disregard evidence against it. Benavente v. Granger, 312 S.W.3d 745, 748-49 (Tex. App.—

Houston [1st Dist.] 2009, no pet.).

                                               Analysis

          As Briones points out, the supreme court has consistently held the fact-finder “cannot

ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from

contradictions and inconsistencies, and could have been readily controverted.” City of Keller,

168 S.W.3d at 820.         Furthermore, when the testimony of an “interested witness is not

contradicted by any other witness and is clear, positive, direct, and free from contradiction, the

testimony is considered true as a matter of law.” InvestIN.com Corp. v. Europa Intern., Ltd., 293

S.W.3d 819, 830 (Tex. App.—Dallas 2009, pet. denied). While these are correct statements of

the law, they do not compel a reversal in this case.




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       Texas courts have consistently held that the mere occurrence of a rear-end automobile

accident is not of itself evidence of negligence. Jordan v. Sava, Inc., 222 S.W.3d 840, 850 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). The plaintiff must prove specific acts of negligence on

the part of the following driver in addition to proving proximate cause. Pearson v. DeBoer, Inc.,

99 S.W.3d 273, 276 (Tex. App.—Corpus Christi 2003, no pet.) (citing Neese v. Dietz, 845

S.W.2d 311, 314 (Tex. App.—Houston [1st Dist.] 1992, writ denied)). The issue of whether a

rear-end collision is negligent depends on all the facts and circumstances of the particular case.

Pearson, 99 S.W.3d at 276; Neese, 845 S.W.2d at 314 (holding that in rear-end collisions,

“standards of ordinary care cannot be fixed with any degree of certainty but must be left in large

measure to the trier of the facts.”). Whether the plaintiff succeeds in proving negligence by a

preponderance of the evidence is within the jury’s province to determine. Pearson, 99 S.W.3d at

276. Neither Briones nor her daughter could testify regarding any negligent act committed by

Sharkey. In fact, no witness testified regarding direct evidence of negligence by Sharkey.

       Moreover, trial counsel spent hours questioning Briones on what she told doctors and

nurses versus her testimony before the jury. As a result, Briones’s testimony was not “free from

contradiction.” InvestIN.com Corp., 293 S.W.3d at 830; see also Walker v. Tex. Dept. of Family

& Prot. Servs., 312 S.W.3d 608, 624 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)

(concluding that “the uncontradicted testimony of an interested witness cannot be considered as

doing more than raising an issue of fact to be decided by the trial court if there are circumstances

in evidence tending to discredit or impeach the interested witness’s testimony.”). Considering

the attack on Briones’s veracity, the jury could have reasonably determined the evidence did not

prove Sharkey’s negligence by a preponderance of the evidence.




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       Although Briones argues the evidence as uncontroverted, this case is a question of

Briones failing to meet her burden of proof. First, she presented no specific acts of negligence

by Sharkey and, if the jury discredited Briones’s testimony, the record is silent with regard to

Sharkey’s negligence—an element Briones was required to prove by a preponderance of the

evidence. After viewing the entire record and the evidence in support of and against Sharkey’s

negligence, we do not find: (1) the jury’s determination outside the zone of reasonable

disagreement; or (2) that the great weight and preponderance of the evidence supports a reversal

of the jury’s no-negligence finding. Accordingly, we overrule Briones’s second issue on appeal.

                                         CONCLUSION

       Based on the foregoing, we overrule Briones’s issues and affirm the trial court’s

judgment.


                                                Marialyn Barnard, Justice




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