                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00327-CV

JULIA P. DIAZ, INDIVIDUALLY AS
HEIR AND ON BEHALF OF THE ESTATE
OF JUAN DIAZ; MICHAEL BRASHEAR
AND DEBORAH STAYTON, INDIVIDUALLY
AS HEIR AND ON BEHALF OF THE ESTATE
OF PATRICK BRASHEAR,
                                                           Appellants
v.

ELLIS COUNTY, TEXAS,
                                                           Appellee


                           From the 40th District Court
                               Ellis County, Texas
                              Trial Court No. 66466


                          MEMORANDUM OPINION


      Julia Diaz, individually as heir and on behalf of the Estate of Juan Diaz, her son,

and Michael Brashear and Deborah Stayton, individually and as heirs of Patrick

Brashear, their son, appeal from a jury verdict denying liability as to Ellis County for

negligence. A jury determined that while a special defect was present in a road, neither

the negligence of Ellis County or Juan Diaz proximately caused the car accident that
claimed the lives of both Juan Diaz and Patrick Brashear. Diaz and Brashear complain

that the trial court impermissibly responded to a question from the jury, that the

evidence was factually insufficient to support the judgment, and that a question

submitted to the jury was improper. Because we find no error, we affirm the judgment.

Coercive Jury Instruction

        Diaz complains that the trial court erred by submitting a response to a jury

question in violation of rules 272 and 286 of the Texas Rules of Civil Procedure. Diaz

contends that the trial court answered a question made by the jury during their

deliberations regarding what would happen if they could not reach a verdict by stating:

“We have the rest of the month to reach a concensus (sic) and then we will make the

determination of what happens. Respectfully, Judge.” Diaz further contends that this

question was received and answered without any knowledge of its counsel or any

opportunity to review the question and response or to make objections. Ellis County

contends that both parties knew of the instruction and were present at all relevant

times. Further, Ellis County argues that Diaz made no objections to the trial court’s

answer during trial and has waived any objection by either not having a record made of

the discussion or by not objecting to the proposed answer to the jury’s question.

        According to Diaz and Brashear, the trial court’s message was a “dynamite

charge” that coerced the jury to reach a verdict against them. An Allen or “dynamite”

charge encourages the jury to reach a verdict and is usually given in response to a

specific communication from the jury indicating it is deadlocked. Stevens v. Traveler’s




Diaz v. Ellis County, Texas                                                         Page 2
Insurance Co., 563 S.W.2d 223 (Tex. 1978) (citing Allen v. United States, 164 U.S. 492, 17 S.

Ct. 154, 41 L. Ed. 528 (1896)).

        The burden is on the party appealing from a judgment to see that a sufficient

record is presented to show error requiring reversal. Nicholson v. Fifth Third Bank, 226

S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Both parties have included facts in their briefs

to this Court that are not contained in the record relating to this issue and that

contradict each other. While we may accept agreed facts as true, when the facts are not

agreed we do not act as a fact-finder as to whether or not the trial court presented the

question to the parties or not. There is no reporter’s record of the proceedings after the

conference for the charge that was first submitted to the jury until the jury rendered its

verdict in open court. The jury submitted other questions to the trial court during their

deliberations as well as prior to the receipt of the complained-of question and response.

We find that the record is insufficient for us to determine this issue. Therefore, we

conclude that in order to preserve an issue regarding questions from the jury and

answers made by the trial court Diaz and Brashear had the duty to request the court

reporter to record any proceedings involving the discussion of jury instructions. See

TEX. GOV’T CODE ANN. § 52.046(a) (Vernon 2005); see also Elec. Bankcard Sys., Inc. v.

Retriever Indus., Inc., No. 14-04-00452 CV, 2005 Tex. App. LEXIS 10576 at *7, 2005 WL

3435294 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, no pet.) (mem. op.) (Party must

object to the failure to make a reporter’s record in order to preserve an issue relating to

the trial court giving a coercive charge to jury). We overrule issue one.


Diaz v. Ellis County, Texas                                                            Page 3
Factual Sufficiency

        Diaz and Brashear complain that the evidence was factually insufficient for the

jury to have failed to find that Ellis County was negligent and that the County’s

negligence proximately caused the accident in question.          By attacking the factual

sufficiency of an adverse finding on an issue on which a party has the burden of proof,

that party must demonstrate on appeal that the adverse finding is against the great

weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001). We consider all of the evidence and will set aside the verdict only if the

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

evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 243. The jury

remains the sole judge of witnesses’ credibility and the weight to be given to their

testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

Negligence

        The elements of a negligence cause of action are the existence of a legal duty, a

breach of that duty, and damages proximately caused by the breach.              IHS Cedars

Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The

components of proximate cause are (1) cause-in-fact and (2) foreseeability. See Western

Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Mason, 143 S.W.3d at 798. The test for

cause-in-fact is whether a negligent act or some omission was a substantial factor in

bringing about the injury and whether the injury would have occurred without the act

or omission. Western Invs., 162 S.W.3d at 551; Mason, 143 S.W.3d at 799. There is no




Diaz v. Ellis County, Texas                                                          Page 4
cause-in-fact if the County’s negligence did nothing more than furnish a condition that

made the injury possible. See Mason, 143 S.W.3d at 799.

Unavoidable Accident

        An unavoidable accident instruction is an inferential rebuttal instruction. Dillard

v. Tex. Elec. Coop., 157 S.W.3d 429, 432-34 (Tex. 2005). An inferential rebuttal defense

operates to rebut an essential element of the plaintiff's case by proof of other facts. Id. at

430. An inferential rebuttal instruction serves to inform the jury about such a defense.

See id. To warrant the submission of an unavoidable accident instruction, there must be

evidence that the accident in question was not proximately caused by the negligence of

any party to it. See Yarborough v. Berner, 467 S.W.2d 188, 190-91 (Tex. 1971); see also

Dillard, 157 S.W.3d at 432 n.2. “The instruction merely informs the jury that it may

consider causes of the occurrence other than the negligence of the parties.” Dillard, 157

S.W.3d at 433.

The Charge as Submitted

        The trial court submitted a question in the charge inquiring as to whether the

negligence, if any, of Diaz or Ellis County proximately caused the accident in question.

The trial court provided the jury definitions of negligence, ordinary care, and proximate

cause, as well as an “unavoidable accident” instruction—“an occurrence may be an

‘unavoidable accident,’ that is, an event not proximately caused by the negligence of

any party to it.” The jury found that neither Ellis County’s nor Diaz’s negligence was a

proximate cause of the accident.




Diaz v. Ellis County, Texas                                                             Page 5
The Facts

         Juan Diaz and Patrick Brashear were traveling in Brashear’s Mustang in the early

evening hours, when apparently what likely was a coyote darted into the road in front

of them. Although Diaz swerved to the left to avoid hitting the animal, the animal

made contact and may have been dragged for a short distance.            Diaz likely then

overcorrected back to the right where the passenger front tire fell into a hole caused by

erosion, ran into the edge of a single-lane wooden bridge, and the vehicle flipped over

onto its top and slid into a creek. Both Diaz and Brashear drowned after being trapped

in the vehicle.

The Jury’s Findings

         The jury answered affirmatively to a question regarding whether a special defect

existed in the condition of the road. Thus, the trial court also instructed the jury that

upon such an affirmative finding that Ellis County was negligent as to the condition of

the road if: “(1) the condition of the road posed an unreasonable risk of harm; (2) Ellis

County had actual knowledge or should have known of the unreasonable risk of harm,

if any, presented by the condition of the road at the time of the accident, and (3) Ellis

County failed to exercise ordinary care to protect Juan Diaz from the unreasonable risk

of harm, if any, by failing to adequately warn Juan Diaz of any unreasonable risk of

harm caused by the condition of the road, and failing to make the condition reasonably

safe.”

         Diaz and Brashear contend that since the accident investigator testified that the

boys would have escaped with only minor injuries had the vehicle not flipped and that


Diaz v. Ellis County, Texas                                                         Page 6
since they hit the special defect in the road, causing the vehicle to flip, the special defect

was “a” proximate cause of the accident. Further, Diaz and Brashear contend that the

County is not excused by an unavoidable accident of the animal darting out in the road

because the accident could have been prevented by filling the eroded area with dirt and

inspecting the bridge for wood rot or other damage.            Additionally, there was no

warning sign or other indication that the bridge was a single lane bridge.

        However, the trooper who conducted the investigation of the accident also

testified that the vehicle would have gone over the bridge from any location and would

have flipped over. It was approximately twenty-one feet from the top of the bridge to

the creek bottom. The causes indicated by the investigation were the wild animal and

faulty evasive action on the part of Diaz, the driver. Even if the jury was to determine

that the County was negligent, giving appropriate deference to the jury as the fact

finders, we cannot say that a finding that the injury would have occurred without any

negligent act or omission by the County was against the great weight and

preponderance of the evidence. We find that the evidence was factually sufficient for

the jury to have determined that neither the County nor Diaz proximately caused the

accident. We overrule issue two.

Jury Charge Error

        Diaz and Brashear complain that the trial court erred in its submission of

questions in the charge to the jury in that (1) uncontroverted facts were submitted to the

jury; (2) the wording of the question regarding the special defect was erroneous; (3) the

use of the term “unreasonable risk of harm” three times in one question constituted a


Diaz v. Ellis County, Texas                                                             Page 7
comment on the weight of the evidence; (4) there was no evidence to support the

submission of an instruction on “new and independent cause;” and (5) the use of

multiple inferential rebuttal instructions tends to skew the jury’s analysis.

        The County contends that Diaz and Brashear have failed to preserve their

objections to each of their complaints. Rule 274 of the Rules of Civil Procedure requires

that a party objecting to the jury charge “must point out distinctly the objectionable

matter and the grounds of the objection.” TEX. R. CIV. P. 274.

        The trial court conducted a charge conference where both parties submitted

requested questions. The trial court then prepared a written charge and gave both

parties the opportunity to object to the charge as prepared. The sole objection to the

charge relating to the negligence question by Diaz and Brashear was: “With respect to

Question 3, references to adequately warn Juan Diaz, I believe should say ‘duty to

warn,’ Your Honor, so I reject anything in Question No. 3 in regards to the area of

warning.” The objections of which they now complain were not made to the trial court

at all and the objection that they did make to the trial court does not comport with their

objections in this appeal. See TEX. R. APP. P. 33.1; In re B.L.D., 113 S.W.3d 340, 349-50

(Tex. 2003). Issue three is overruled.

Conclusion

        We find that the record is insufficient to determine whether the jury was

improperly coerced by the trial court. We find that the evidence was factually sufficient

to support the jury’s verdict in favor of the County. We find that Diaz’s and Brashear’s




Diaz v. Ellis County, Texas                                                         Page 8
complaints regarding the jury charge were not properly preserved at trial and do not

comport with their complaints in this appeal. We affirm the judgment of the trial court.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed October 27, 2010
[CV06]




Diaz v. Ellis County, Texas                                                        Page 9
