Affirmed and Memorandum Opinion filed August 30, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00628-CV

                        DEBBIE PATTILLO, Appellant
                                        V.
                          SYLVIA FRANCO, Appellee

                 On Appeal from the Co Civil Ct at Law No 4
                           Harris County, Texas
                      Trial Court Cause No. 1024502

                 MEMORANDUM                      OPINION


      In this personal-injury case, appellant Debbie Pattillo brought suit against
appellee Sylvia Franco for damages she sustained in an automobile collision with a
vehicle operated by Franco. Following a one-day trial, the jury returned its verdict
awarding Pattillo no damages and the trial court signed a final judgment in
conformity with the jury’s verdict. Pattillo appeals that judgment, contending that
the trial court erred in refusing to submit requested instructions to the jury on
circumstantial evidence and the eggshell-skull rule.1 We affirm.

                                        BACKGROUND

                                              Collision

       On December 22, 2010, while in stop-and-go traffic, Franco rear-ended
Pattillo. The parties stopped and Pattillo stated she was okay. There was minimal
damage to both vehicles; Franco’s vehicle had a slight dent in the license plate and
Pattillo’s rental car had little damage, as well. The two motorists exchanged
insurance information and both parties drove away in their respective vehicles.

       About three weeks after the accident, on January 12, 2011, Pattillo visited a
chiropractor, reporting that her lower back was injured in the automobile accident.
Thereafter, Pattillo was diagnosed with a lumbar herniated disc and received
epidural steroid injections (ESI) in April and June 2011. She had no low-back
medical treatment in 2012 or 2013. In 2014, Pattillo had a third ESI treatment.

       Pattillo also complained that her left shoulder was sore following the
accident. Pattillo had magnetic resonance imaging (MRI) performed on her left
shoulder and was diagnosed with a strain and bone contusion.                          According to
medical records, Pattillo reported “a chronic 2-year history of left shoulder pain.”

                                                Trial

       Franco stipulated to liability, and on June 3, 2015, Pattillo’s damages were
tried to a jury. Pattillo testified that after the accident she experienced low-back

       1
          In her appellate brief, Pattillo sets forth three issues; however, the first “issue” is only a
recitation of the purported standard of review for jury-charge error. Pattillo makes no reference
to her particular case and does not argue any trial court error under “issue” one. To the extent
she argues this standard of review as a separate issue, we conclude she has presented nothing for
review and accordingly overrule the first issue.

                                                   2
pain. According to Pattillo’s testimony on direct examination, she had never
previously sought treatment for an injury to her back. During cross-examination,
however, Pattillo admitted that she sought and received treatment for low-back
back pain in August 2010.2 As an explanation for her impeached testimony, she
stated, “I didn’t recall that, sorry.”

       With regard to her shoulder, Pattillo denied at trial ever having any treatment
on her shoulder prior to the accident and testified that she believed her shoulder
was injured in the accident—“that’s when I noticed pain in the shoulder.” Pattillo
offered contradictory testimony about which shoulder was injured. She testified
that it was her right shoulder that was injured in the accident, “My left one. –
excuse me, my right one.” When discussing how the driver-side seatbelt bruised
her shoulder, Pattillo grabbed her right shoulder.

       After the close of evidence, the trial court conducted a charge conference.
At that time, Pattillo’s counsel requested an instruction on circumstantial evidence
and the eggshell-skull rule.3             The trial court refused both instructions.
Nevertheless, Pattillo’s counsel argued to the jury that they should consider the
circumstantial evidence with regard to Pattillo’s injury. In his closing, Pattillo’s
counsel also argued that if Pattillo had a pre-existing condition, Franco was
responsible for aggravating it.




       2
         Pattillo had visited her doctor at the Kelsey Seybold Clinic in August 2010—just four
months before the accident—and sought treatment for “constant” low-back pain. Pattillo’s
doctor prescribed her a ninety-day supply of a muscle relaxant for back pain and muscle spasms.
Her prescription ran out just a few weeks before the accident.
       3
          A tortfeasor takes a plaintiff as she finds her. See Coates v. Whittington, 758 S.W.2d
749, 752 (Tex. 1988) (a.k.a. the “eggshell skull rule”). The application of this rule means that a
tortfeasor may be liable for aggravation of a pre-existing physical condition of the plaintiff
caused by the tortfeasor.

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      The trial court then read the charge to the jury. The trial court asked the jury
to determine “[w]hat sum of money, if paid now in cash, would provide fair and
reasonable compensation for DEBBIE PATTILLO’s injuries, if any that resulted
from the occurrence in question.” The jury returned its verdict awarding Pattillo
no damages. The trial court signed a final judgment in conformity with the verdict
and this appeal timely followed.

                             ISSUES AND ANALYSIS

      Pattillo raises the following issues on appeal: (1) whether the trial court’s
failure to instruct on circumstantial evidence resulted in an improper and unjust
verdict; and (2) whether the trial court’s failure to instruct on the eggshell-skull
rule constitutes reversible error.

A.    Standard of Review

       A trial court must submit to the jury such instructions as a necessary to
enable the jury to render a verdict. Tex. R. Civ. P. 277; see Thomas v. Uzoka, 290
S.W.3d 437, 443 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
Submission of instructions is limited to those issues “raised by the written
pleadings and the evidence.” Tex. R. Civ. P. 278; see Rigdon Marine Corp. v.
Roberts, 270 S.W.3d 220, 228 (Tex. App.—Texarkana 2008, pet. denied) (“An
instruction is proper if it might assist the jury in answering the submitted questions,
accurately states the law, and finds support in the pleadings and evidence.”).

      A trial court has considerable discretion in deciding which instructions are
necessary and proper in submitting the charge to the jury. State Farm Lloyds Ins.
Co. v. Nicolau, 951 S.W.2d 444, 451-52 (Tex. 1997). Yet, the jury should not be
burdened with surplus instructions, even those that accurately state the law.
Arocha v. State Farm Mut. Auto. Ins. Co., 203 S.W.3d 443, 445 (Tex. App.—


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Houston [14th Dist.] 2006, no pet.). Therefore, we review a trial court’s decision
to submit or refuse a particular instruction for abuse of discretion.                    Shupe v.
Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006).4 When a trial court refuses to
submit a requested instruction, the question on appeal is whether the request was
reasonably necessary to enable the jury to render a proper verdict. See Tex. R. Civ.
P. 277 & 278; Texas Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909,
911 (Tex. 2000).

B.     Jury Instructions

       1.      Circumstantial Evidence

       In her first issue, Pattillo contends that the trial court erred by failing to
submit the following instruction:

       You are instructed that a fact may be established by direct evidence or
       by circumstantial evidence or both. A fact is established by direct
       evidence when proved by documentary evidence or by witnesses who
       saw the act done or heard the words spoken. A fact is established by
       circumstantial evidence when it may be fairly and reasonably inferred
       from other facts proved.
Pattillo argues that the failure to include this proposed instruction was an abuse of
discretion because she submitted a “mountain of circumstantial evidence” from
which the jury reasonably could have concluded that the injuries to her shoulder
and back were caused by the collision.5 According to Pattillo, “the jury was not
provided with that opportunity because they were unaware they could rely upon
circumstantial evidence.”


       4
         The trial court is granted considerably more latitude in submitting instructions than it is
granted in submitting questions. Harris v. Harris, 765 S.W.2d 798, 801 (Tex. App.—Houston
[14th Dist.] 1989, writ denied).
       5
        In the argument portion of her brief, Pattillo fails to provide even one record citation to
the “mountain of evidence” submitted.

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      As set forth above, a trial court is vested with broad discretion in
determining which legally correct instructions are necessary and proper. Nicolau,
951 S.W.2d at 451-52. In her appellate brief, Pattillo fails to cite any authority
mandating that a trial court submit an instruction on circumstantial evidence. As
the Texas Supreme Court has observed, in practically all cases, some of the
evidence is circumstantial. Johnson v. Zurich Gen. Accident & Liab. Ins. Co., 205
S.W.2d 353, 354 (Tex. 1947). “Surely a jury understands that it is its function to
make reasonable inferences from proven facts, and we are unwilling to sanction a
rule based upon the hypothesis that it does not.” Id. Thus, it is not reversible error
to fail to include a circumstantial-evidence instruction in the jury charge. Id.; see
also Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 188 (Tex. App.—
Corpus Christi 1992, writ denied) (“We find no error in the trial court’s
determination to exclude the instruction [on circumstantial evidence].”); Daniels v.
Southwestern Transp., 621 S.W.2d 188, 191 (Tex. App.—Texarkana 1981, no
writ) (holding trial court’s refusal to give jury instruction on circumstantial
evidence was not error).

      Moreover, the trial court’s refusal of the requested instruction did not
probably cause the rendition of an improper judgment, as required under Texas
Rule of Appellate Procedure 44.1(a)(1).       In closing argument, Pattillo’s trial
counsel repeatedly argued that the jury should consider the circumstantial evidence
in reaching its decision. The fact that the jury did not award Pattillo damages does
not mean that it did not consider circumstantial evidence. The jury reasonably
could have inferred from the evidence presented at trial of Pattillo’s prior treatment
for low-back pain that Pattillo’s injuries did not result from the accident. In other
words, the jury reasonably could have inferred from the circumstantial evidence



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that Pattillo had herniated discs prior to the accident, but the accident was so minor
that it did not exacerbate her pre-existing condition.

      We find no abuse of discretion in the trial court’s determination to exclude
the requested instruction on circumstantial evidence, and the omission of the
instruction did not probably cause the rendition of an improper judgment. We
overrule Pattillo’s issue.

      2.     Eggshell-skull rule

      In her second issue, Pattillo argues that the trial court erred by failing to
submit the following instruction:

      You are instructed that a defendant takes a plaintiff as she finds her.
      This means that regardless of Debbie Patillo’s [sic] physical condition
      at the time of the incident, she is entitled to recover the damages
      resulting from the incident conditioned as she was at the time of the
      injury. The fact that Debbie Patillo [sic] had physical problems at the
      time of the incident that made her more susceptible to injury does not,
      in itself, relieve the Defendant of liability for all damages sustained by
      Debbie Patillo [sic] that were proximately caused by or aggravated by
      the incident.
Pattillo contends that the jury should have been instructed that Franco “could be
held liable for the injuries caused by the collision, in spite of her weakened
condition that may have allowed the injury to either occur or be extraordinarily
sever [sic].” According to Pattillo, if the jury had been so instructed, “there is a
high probability, if not a certainty the jury would have found, by preponderance of
the evidence, Plaintiff’s damages were caused by the collision.”

      The trial court instructed the jury to determine Pattillo’s damages, if any,
that resulted from the accident. Although the trial court refused to give Pattillo’s
requested instruction, Pattillo argued in closing the following:



                                           7
         Based on the evidence you heard, it is more likely than not that this
         collision caused these damages, that these damages, the medical
         damages, and the physical pain and suffering, the impairment resulted
         from this collision more probable than not. That’s the standard. And
         when you apply that standard I think you will agree she is entitled to
         medical care and the other noneconomic damage that I’ve asked you
         for. Just be fair. Thanks.
Even presuming that the trial court’s refusal to give appellant’s requested
instruction was an abuse of discretion, we conclude that any such error did not
probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1;
Pan v. Liu, No. 14-12-00831-CV, 2014 WL 3512834, at *3, n.5 (Tex. App.—
Houston [14th Dist.] July 15, 2014, no pet.) (mem. op.). We overrule Pattillo’s
issue.
                                    CONCLUSION

         We affirm the judgment of the trial court.




                                         /s/       Ken Wise
                                                   Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise.




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