                           NUMBER 13-11-00639-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

RODWICK TERRENCE SMITH,                                                 Appellant,


                                         v.

WRANDALL CARTER,                                                        Appellee.


                   On appeal from the 58th District Court
                       of Jefferson County, Texas.


                        MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza
      Appellee, Wrandall Carter, sued appellant, Rodwick Terrence Smith, for personal

injuries sustained in an automobile collision. Smith stipulated to ordinary negligence

and to Carter’s past medical expenses in the amount of $6,192.50 and future medical

expenses in the amount of $2,045.00.      Following a bench trial, in addition to the

stipulated damages, the trial court awarded Carter $18,500 in damages for past pain,
suffering, and mental anguish; $6,000 for future pain, suffering, and mental anguish;

$5,000 for past disfigurement; and $5,000 for future disfigurement. By three issues,

Smith challenges: (1) the sufficiency of the evidence to support the trial court’s award of

$24,500 in past and future mental anguish damages; (2) the $24,500 mental anguish

damages award as excessive; and (3) the trial court’s finding that Smith failed to prove

that Carter was contributorily negligent by not wearing a seat belt at the time of the

accident. We affirm.

                                           I. BACKGROUND

        At the time of the accident, Carter was a nineteen-year-old student in Beaumont,

Texas. She was a passenger in a vehicle driven by her friend, Marvin Payne. Smith,

an unlicensed driver,1 admitted at trial that he was at fault for entering an intersection

from a stop sign without seeing Payne’s vehicle. 2                 Upon impact, Carter sustained

lacerations to her forehead when she “starburst” the windshield, shattering the inside

glass of the windshield. After the accident, Carter was placed in a neck and spinal

brace and taken by EMS to a hospital emergency room, where she received stitches to

the lacerations on her forehead, and was released.

        Carter testified that as a result of the accident, she experienced pain in her neck

and lower back and headaches. She was treated at Beaumont Back and Neck Clinic

for several months for these conditions. At the time of trial, approximately fourteen

months after the accident, Carter stated that she continued to experience pain. Carter

consulted a plastic surgeon regarding the scar on her forehead; she was advised that

        1
           Smith drove a car owned by his girlfriend, Inniercia Lomax. Carter alleged claims of negligent
entrustment against Lomax, but the trial court found there was no negligent entrustment. Lomax is not a
party to this appeal.
        2
         Smith was given citations for driving with an invalid license and failure to yield right-of-way in
connection with the accident.
                                                    2
she should undergo surgery to remove some glass fragments that remained embedded

in her forehead. Four months after the accident, Carter visited a psychologist, James A.

Duncan, Ph.D., who diagnosed her with mild post-traumatic stress syndrome.

       At the conclusion of the trial, the trial court announced the following findings in

open court: (1) Smith was, as stipulated, found liable for negligence, but the court found

no gross negligence or negligent entrustment; (2) Smith did not establish that Carter

was not wearing her seat belt; (3) the court awarded the stipulated past and future

medical damages; (4) the court awarded $18,000 in damages for past pain, suffering,

and mental anguish and $6,000 for future pain, suffering and mental anguish; and (5)

the court awarded $5,000 in damages for past disfigurement and $5,000 for future

disfigurement.

       Smith filed a motion for new trial, which was overruled by operation of law. See

TEX. R. CIV. P. 329b(c). This appeal followed.

                             II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, Smith contends the evidence was legally and factually

insufficient to support the trial court’s award of $24,500 in past and future mental

anguish damages.      Smith argues that there was no evidence presented as to the

nature, duration, and severity of Carter’s alleged mental anguish and no evidence that

the injuries caused a substantial disruption in Carter’s daily routine.

   A. Standard of Review and Applicable Law

       In conducting a legal-sufficiency analysis, we review all of the evidence in the

light most favorable to the challenged finding and indulge every reasonable inference

that would support it, to determine whether there is more than a scintilla of evidence to

support the challenged finding. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
                                              3
2005).     Without acting as a trier of fact, we must credit favorable evidence if a

reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-

finder could not. Id. at 827.

         When reviewing a challenge to the factual sufficiency of the evidence, we

examine the entire record, considering both the evidence in favor of, and contrary to,

the challenged finding.      Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).              After

considering and weighing all the evidence, we will set aside the fact finding only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Id.

         To support an award of mental anguish damages, the plaintiff’s evidence must

describe “the nature, duration, and severity of their mental anguish, thus establishing a

substantial disruption in the plaintiffs’ daily routine.” See Fifth Club, Inc. v. Ramirez, 196

S.W.3d 788, 797 (Tex. 2006) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex.1995)). The Texas Supreme Court has held that “some types of disturbing or

shocking injuries have been found sufficient to support an inference that the injury was

accompanied by mental anguish.”         Id. (quoting Parkway, 901 S.W.2d at 445; citing

Brown v. Sullivan, 71 Tex. 470, 476, 10 S.W. 288, 290 (1888) (“Where serious bodily

injury is inflicted involving fractures, dislocations, etc., and [which] results in protracted

disability and confinement to bed, we know that some degree of physical and mental

suffering is the necessary result.”)). Furthermore, to support an award for future mental

anguish, a plaintiff must demonstrate “a reasonable probability” that he or she will

“suffer compensable mental anguish in the future.” Adams v. YMCA of San Antonio,

265 S.W.3d 915, 917 (Tex. 2008).



                                              4
       “‘The process of awarding damages for amorphous, discretionary injuries such

as mental anguish or pain and suffering is inherently difficult because the alleged injury

is a subjective, unliquidated, nonpecuniary loss.’” Figueroa v. Davis, 318 S.W.3d 53, 62

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting HCRA of Tex., Inc. v. Johnston,

178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.)). “‘Once the existence of

some pain, mental anguish and disfigurement has been established, there is no

objective way to measure the adequacy of the amount awarded as compensation,

which is generally left to the discretion of the fact finder.’” Id. (quoting Pentes Design,

Inc. v. Perez, 840 S.W.2d 75, 80, (Tex. App.—Corpus Christi 1992, writ denied)). “‘The

amounts of damages awarded for pain and suffering and disfigurement are necessarily

speculative and each case must be judged on its own facts.’” Id. (quoting Perez, 840

S.W.2d at 80–81); see also Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort

Worth 2003, pet. denied) (“Matters of past and future physical pain, mental anguish, and

physical impairment are particularly within the jury’s province. Therefore, as long as

sufficient probative evidence exists to support the jury’s verdict, neither the reviewing

court nor the trial court is entitled to substitute its judgment for that of the jury.”)

(citations omitted).   A plaintiff is not required to testify about a specific amount of

damages in order to obtain a verdict for physical pain and mental anguish. See Baylor

Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 78 (Tex. App.—Texarkana 1992, writ

denied).

   B. Discussion

       Smith contends that Carter failed to provide any evidence showing: (1) a high

degree of mental pain beyond mere embarrassment, anxiety, or disappointment; (2) the



                                            5
nature and duration of the mental pain; and (3) that her daily routine was substantially

disrupted by the mental pain. See Parkway, 901 S.W.2d at 444.

       Carter testified that the headaches that she suffered as a result of the accident

“felt like somebody was stepping on [her] head or something.” After the accident, Carter

was out of school for approximately one week. She was treated for neck and lower

back pain for three or four months. She stated that she has experienced sudden pain in

her legs and “when it hurts, it hurts bad.” She testified that she still experiences pain in

her head, lower back and shoulders, and she expects the pain to continue in the future.

After she received stitches in her forehead, the wound was left unbandaged. When out

in public, she was teased because of the stitches.          She was so ashamed of her

appearance that she cried because she cared about her appearance. Carter visited a

plastic surgeon because she wanted to get rid of the scars on her face and because she

“[doesn’t] like [her] face like this.” Carter testified that the plastic surgeon told her that

even if she undergoes surgery to remove the glass fragments in her forehead, she

would still have facial scarring. During the period when Carter was undergoing physical

therapy following the accident, she could not play basketball or attend meetings or

parties. After consulting with a psychologist, Carter was diagnosed with post-traumatic-

stress disorder. Carter testified that the accident has caused her “great distress” and

that she has experienced nightmares, loss of sleep, anxiety, and embarrassment.

       Carter lives with her grandmother, Lula Henry, Ph.D., a university professor.

Henry testified that as a result of the accident, Carter sometimes cries at night, is

anxious when she gets in a car, and suffers from frequent headaches. According to

Henry, before the accident, Carter was an avid basketball player, but could not play

basketball during the time she was receiving physical therapy treatments because she
                                              6
was in pain.   Henry stated that at the time of trial, Carter still did not play much

basketball because she says it hurts her back.

      Dr. Duncan’s notes regarding his consultation with Carter describe her mood as

“mildly depressed.” The notes show that Carter has a “mild phobic response” and

becomes “real nervous” when riding in a car. Carter reported that she is “more irritable,”

“get[s] mad easily,” and does not feel like going anywhere.

      Smith argues that Carter “failed to provide any evidence that rises to a

compensable level as described and required by Parkway Co. v. Woodruff.”              See

Parkway, 901 S.W.2d at 444.        In Fifth Club, however, the Texas Supreme Court

distinguished between cases, like Parkway, that did not involve claims for personal

injuries, from cases, like Fifth Club, that do involve claims for personal injuries. See

Fifth Club, 196 S.W.3d at 798.

      We conclude that the evidence shows the nature of Carter’s mental anguish, its

lasting duration, and the severity of her injuries, and is therefore legally sufficient to

support past and future mental anguish damages.         See id. at 797–98 (holding that

assault victim’s testimony that he continued to be depressed, humiliated, non-

communicative, unable to sleep, and angry, continued to have headaches and

nightmares, and that his daily activities with his wife and daughter continued to be

detrimentally affected almost two years after incident was legally sufficient to support

future mental anguish damages).

      Reviewing all the evidence, we also conclude that the trial court’s finding is not

“so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust.” See Cain, 709 S.W.2d at 176. Smith argues that evidence that Carter missed

a week of school and possibly some parties does not establish a substantial disruption
                                            7
of her daily routine. Smith also points to Carter’s testimony that she plays basketball

“every day.” Smith also argues that Carter’s “yes” answers to leading and conclusory

questions that she was embarrassed, ashamed, and anxious were insufficient to

support a mental anguish award. See Jackson v. Gutierrez, 77 S.W.3d 898, 903 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (finding appellee’s conclusory “yes” response

to question of whether she had some mental anguish was insufficient to support mental

anguish damages). This evidence does not negate the evidence that Carter continues

to suffer from pain, depression, anxiety, and shame about her facial scars.               We

conclude that the evidence is legally and factually sufficient to support the trial court’s

damage award for past and future pain and suffering and mental anguish. We overrule

Smith’s first issue.

                              III. EXCESSIVE DAMAGE AWARD

       By his second issue, Smith contends that even if the evidence supports some

award for mental anguish, the trial court’s damage award of $24,500 for past and future

pain and suffering and mental anguish is excessive. By a sub-issue, he also contends

that because the trial court combined mental anguish damages with pain and suffering

damages, this Court should reverse the entire $24,500 damage award.

   A. Standard of Review

       We review a complaint that damages are excessive for factual sufficiency. See

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). If we find the evidence

to be factually sufficient, we are not at liberty to order a remittitur. Wal-Mart Stores, Inc.

v. Odem, 929 S.W.2d 513, 528 (Tex. App.—San Antonio 1996, writ denied).

   B. Discussion



                                              8
       When the existence of some pain, mental anguish and disfigurement has been

established, “there is no objective way to measure the adequacy of the amount awarded

as compensation, which is generally left to the discretion of the fact finder.” Pentes, 840

S.W.2d at 80. The fact finder “is given a great deal of discretion in awarding an amount

of damages it deems appropriate for pain and suffering.” Id.

       Here, the trial court awarded $18,500 in damages for past pain, suffering and

mental anguish and $6,000 for future pain, suffering and mental anguish. As noted,

Carter testified that fourteen months after the accident, she continues to suffer from

neck and lower back pain, sudden headaches, depression, and anxiety. She testified

that she will likely undergo surgery to remove the glass fragments from her forehead but

that she will still have facial scars. We cannot say that the evidence supporting the trial

court’s award of past and future damages for pain, suffering and mental anguish is so

weak or so contrary to the overwhelming weight of all the evidence as would lead us to

conclude that the damages are excessive. See Cain, 709 S.W.2d at 176.

       By his sub-issue, Smith argues we should reverse the entire award because the

trial court combined mental anguish damages with pain and suffering damages. In

support, Smith cites Jackson, 77 S.W.3d at 903. In Jackson, however, the court found

that there was no evidence supporting an award of mental anguish damages. See id.

Because the record in Jackson did not provide a means of distinguishing the amount

awarded for mental anguish from that awarded for pain and suffering, it also reversed

the pain and suffering award.     Id. at 903–04.    Here, however, we have found the

evidence legally and factually sufficient to support an award of mental anguish

damages; therefore, Jackson is inapplicable. We overrule Smith’s second issue.

                                 IV. SEAT BELT FINDING
                                            9
        By his third issue, Smith argues that the great weight of the evidence showed

that Carter was not wearing her seat belt at the time of the accident and so the trial

court erred in failing to find that Carter was contributorily negligent. Smith points to the

following evidence: (1) the police report indicated that Carter was not wearing a seat

belt; (2) the EMS report stated that Carter was not wearing a seat belt; and (3) the

emergency room records refer to Carter as an unrestrained passenger. Smith argues

that because the Texas Legislature repealed former section 545.413(g) of the

Transportation Code in 2003—which, prior to 2003, prohibited evidence of non-use of a

seat belt in a civil trial—such evidence is now admissible to show that a plaintiff is

responsible for her own damages.3 Carter argues that the repeal of the “statutory bar

does not necessarily mean that the Legislature intends for seatbelt usage to be

introduced at trial.”

        We need not decide the effect of the repeal of the statutory bar to such seat-belt

evidence, however, because the trial court found that Smith did not meet his burden of

proving that Carter was not wearing her seat belt. In its oral findings, the trial court

stated,

               I’m going to find on the issue of the seat belt that the police officers
        really had no real recall of what was going on, and the ambulance driver
        was real cloudy on it. I don’t think the burden was met on the issue of the
        seat belt. So, that will also be declined.

        We agree with the trial court. Carter testified that she was wearing her seat belt.

Payne testified that he and Carter were both wearing their seat belts. David Vaughn,

one of the investigating police officers for the Beaumont Police Department, testified

that he does not remember whether Carter was wearing her seat belt or not. Chris
        3
         See Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 545.413(g), 1995 TEX. SESS. LAW
SERV. 1025, 1644, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 8.01, 2003 TEX. SESS. LAW
SERV. 847, 863.
                                                  10
Daniels, an investigating officer with the Beaumont Police Department, testified that

when he arrived at the scene of the accident, Carter was already in the ambulance and

he did not speak to her. Joseph Edward Stuart, a paramedic with the City of Beaumont,

testified that when he arrived at the scene, Carter was walking around and therefore, his

knowledge as to whether she was wearing her seat belt was based on what she said at

the time. We conclude that the trial court’s finding that Smith did not establish Carter’s

contributory negligence by proving that she was not wearing a seat belt was not so

contrary to the overwhelming weight and preponderance of the evidence as to be

clearly wrong or unjust. See Cain, 709 S.W.2d at 176. We overrule Smith’s third issue.

                                     V. CONCLUSION

      We affirm the trial court’s judgment.




                                                   DORI CONTRERAS GARZA
                                                   Justice

Delivered and filed the
9th day of August, 2012.




                                              11
