Affirmed and Memorandum Opinion filed July 19, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00256-CV


                             CHARLES CRUM, Appellant

                                            V.

                          RONNY BYNUM GOZA, Appellee


                       On Appeal from the 189th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2009-26596


                   MEMORANDUM OPINION

       Appellant, Charles Crum, appeals a take-nothing judgment rendered on a jury
verdict in Crum’s personal injury suit against appellee, Ronny Bynum Goza, arising from
a vehicular accident. In five issues, Crum contends the evidence is legally and factually
insufficient to support the jury’s verdict. We affirm.

                                    I. BACKGROUND

       On June 28, 2008, Crum was a Houston Police Department motorcycle officer
assigned to escort an oversized load through Harris County. The caravan for this load
consisted of three vehicles: a “pilot” pick-up truck, driven by Goza; an 18-wheeler,
driven by Lynn Overton, which transported the load; and another pick-up truck, driven by
Dean Sells, which followed the 18-wheeler.            Crum’s duties included clearing
intersections ahead of the caravan; he rode to their left, stopped in each intersection to
block traffic while the caravan safely crossed, and then passed them to secure the next
intersection.

       At one point, the caravan was traveling east on the Beltway 8 service road. Under
the permit issued by the Texas Department of Transportation, the route included a left
turn from the Beltway 8 service road onto the northbound Highway 249 service road.
Before the caravan left its point of origin that day, Crum decided the permitted route was
not feasible because the drivers would encounter traffic difficulties on Highway 249.
Crum changed the route to entail proceeding straight through the intersection of the
Beltway 8 and Highway 249 service roads. Crum claims he notified all drivers of the
route change, whereas Goza maintains he was never informed of the change.

       The Beltway 8 service road had three lanes for traffic traveling straight through
the intersection and two lanes for traffic turning left onto the northbound Highway 249
service road. Goza had been travelling in the far right lane of the Beltway 8 service road.
As he approached the intersection, Goza first moved one lane to his left. He then moved
another lane to his left, preparing to make the left turn onto the northbound Highway 249
service road. As he entered this lane, Goza’s truck collided with Crum’s motorcycle as
Crum passed the procession to block the intersection. Crum claims he was injured as a
result of this collision.

       Crum sued Goza, alleging negligence and negligence per se.           Goza pleaded
comparative responsibility of Crum. A jury found that the negligence, if any, of Goza
was not a proximate cause of the accident and Crum’s negligence was a proximate cause.
Pursuant to the verdict, the trial court signed a final judgment ordering that Crum take
nothing. Crum filed a motion for new trial, which was denied by written order.




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                                       II. ANALYSIS

       In his first, second, and fifth issues, Crum essentially contends the evidence is
legally and factually insufficient to support the finding that he was negligent. In his third
and fourth issues, Crum contends the evidence is legally and factually insufficient to
support the finding of no liability on Goza’s part. As discussed below, we conclude the
evidence is legally and factually sufficient to support a finding that Goza was not
negligent. Therefore, we need not address Crum’s challenge to the finding that Crum
was negligent because it was immaterial once the jury assigned no liability to Goza.

       When examining a legal-sufficiency challenge, we review the evidence in the light
most favorable to the challenged finding and indulge every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit
favorable evidence if a reasonable fact finder could and disregard contrary evidence
unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if
it would enable a reasonable and fair-minded person to reach the verdict under review.
Id. A party attacking legal sufficiency relative to an adverse finding on which he had the
burden of proof must demonstrate that the evidence conclusively establishes all vital facts
in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
The fact finder is the sole judge of witness credibility and the weight to give their
testimony. See City of Keller, 168 S.W.3d at 819.

       In a factual-sufficiency review, we consider and weigh all the evidence, both
supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 406–07 (Tex. 1998). A party attacking factual sufficiency relative to an adverse
finding on which he had the burden of proof must demonstrate that the finding is against
the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. We set
aside the finding only if it is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
We may not substitute our own judgment for that of the trier of fact or pass upon the
credibility of the witnesses. See Ellis, 971 S.W.2d at 407. The amount of evidence

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necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE
Mobilnet of S. Tex. L.P. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied).

       Crum argues the evidence is legally and factually insufficient to support the
finding of no liability on Goza’s part because he was negligent per se. Negligence per se
is a common-law tort concept under which the standard of conduct is defined by statute
instead of the reasonably-prudent-person test usually applied in “pure” common-law
negligence claims. Thomas v. Uzoka, 290 S.W.3d 437, 444 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied). When negligence per se is submitted, the jury is not asked to
decide whether the person acted as a reasonably prudent person would have acted under
the same or similar circumstances because the statute itself identifies the appropriate
standard of conduct as a matter of law. Id. at 444–45. Unless an excuse for the statutory
violation is proffered, the jury need decide only whether the statute was violated and, if
so, whether the violation was a proximate cause of the injury. Id. at 445. Therefore,
negligence per se is merely one method of proving breach of duty—a requisite element of
any negligence claim. Id.
       The statute pertinent to the present case provides,

          (a) An operator on a roadway divided into two or more clearly marked
       lanes for traffic:
              (1) shall drive as nearly as practical entirely within a single lane; and
              (2) may not move from the lane unless that movement can be made
              safely.
Tex. Transp. Code Ann. § 545.060(a) (West 2011). In the jury question at issue, the trial
court submitted the following instruction, consistent with the statute:

       “Negligence” when used with respect to [Goza] means failure to use
       ordinary care that is, failing to do that which a person of ordinary prudence
       would have done under the same or similar circumstances or doing that
       which a person of ordinary prudence would not have done under the same
       or similar circumstances. Negligence includes moving from one lane of
       traffic to another when that movement cannot be done safely.


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Accordingly, we must determine whether the evidence is legally and factually sufficient
to support the jury’s rejection of the proposition that Goza’s change into the left lane
“[could] not be done safely.”

       At trial, the parties focused extensively on whether Crum informed the drivers,
including Goza, of the change in the permitted route. Crum testified that, before the
caravan left the point of origin, he first obtained the agreement of Overton (driver of the
18-wheeler) to the change; Crum then informed Goza and Sells (the other escort truck
driver) of the change and instructed Goza to “stay to the right.” Overton also testified he
agreed to the route change before the transport began that day. However, in a previous
statement to an insurance-company representative, Overton said the caravan planned to
turn left onto the Highway 249 service road and he did not know there had been a route
change. Further, Overton testified that, after the accident, Goza said he had not been
informed of the route change and complied with the permit. Crum emphasizes the
testimony from an investigating police officer that Goza admitted there had been a route
change. However, this officer later clarified that Goza did not indicate whether he was
informed of the change before or after the accident.

       Goza testified he learned during his load-escort training that a police officer
intending to change a permitted route is required to meet with all drivers and note their
agreement on the permit; in this case, there was no meeting or notation, and Crum did not
inform Goza of the route change. Goza further testified that, before moving toward the
left, he announced “left-hand turn” to the other drivers via CB radio, and no one protested
because of any route change. At trial, Sells confirmed there was no meeting and notation
on the permit regarding a route change, Sells was never informed of a route change, and
Goza announced the left turn via radio with no protest from the other drivers.

       The issue regarding whether Crum informed Goza of the route change was simply
a matter of deciding witness credibility, on which we defer solely to the jury’s resolution.
See City of Keller, 168 S.W.3d at 819; Ellis, 971 S.W.2d at 407. Thus, the jury was free
to believe Goza’s testimony, Sells’s testimony, and Overton’s initial statement, indicating

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Crum did not inform them of the route change and Goza intended to guide the procession
in a left turn, as originally permitted. Therefore, the jury could have also reasonably
concluded that Goza did not expect Crum would pass the procession on the left to block
the intersection as though the parties were traveling straight. In fact, Goza indicated that,
under the permitted route, Crum’s role at this point would have involved his staying to
the left of the procession as it approached the intersection to prevent other traffic from
also attempting a left turn while the procession was making its turn.

       Crum suggests Goza was negligent per se, irrespective of whether he knew of the
route change, because he should have seen Crum’s motorcycle, with its flashing lights,
before changing lanes. However, Goza testified that he signaled and looked in his
driver’s side mirror before moving into the lane where the accident occurred. At that
point, Goza observed Crum behind the load with his motorcycle still stopped, blocking
traffic at the previous intersection—the Beltway service road and the Southbound
Highway 249 service road. Obviously, once Goza made the lane change, Crum was no
longer at the preceding intersection, considering they collided.        Nonetheless, Crum
indicated he accelerated toward the next intersection in order to pass the procession—the
action that Goza did not expect based on his belief the caravan planned to turn left.
Therefore, the jury was free to conclude that Goza began the lane change at a point when
he could safely perform this action—to comply with the permitted route, as understood
by the drivers. Additionally, Crum emphasizes his extensive experience as a motorcycle
officer escorting loads, compared to Goza’s relative inexperience as an escort driver.
However, the jury was free to consider these factors when deciding whether Goza was
negligent, and we find no reason to disturb the jury’s determination.

       Accordingly, we conclude the evidence is legally sufficient to support the jury’s
finding of no liability on Goza’s part and this finding is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule
Crum’s third and fourth issues.



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      We affirm the trial court’s judgment.




                                        /s/       Charles W. Seymore
                                                  Justice


Panel consists of Chief Justice Hedges and Justices Seymore and Brown.




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