                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-19-00001-CV


                           ELISHA SALDANA, APPELLANT

                                            V.

                            LESHAI WILLIAMS, APPELLEE

                    On Appeal from the County Court at Law Number 3
                                  Lubbock County, Texas
             Trial Court No. 2016-572,331; Honorable J. Phillip Hays, Presiding

                                      April 15, 2020

                            MEMORANDUM OPINION

                 Before QUINN, C.J., and PIRTLE and DOSS, JJ.


      Appellant, Elisha Saldana, sued Appellee, Leshai Williams, for injuries ostensibly

sustained from a low-speed car crash. After a jury trial in which the jury determined

Williams was not negligent, the court entered a take-nothing judgment. Via a single issue,

Saldana challenges the jury’s verdict, arguing it was against the great weight and

preponderance of the evidence so as to be manifestly unjust, that it is shocking to the

conscience, and it clearly demonstrates bias. We affirm the judgment of the trial court.
         BACKGROUND

         This suit arose after Saldana and Williams were involved in a low-speed car crash

in mid-September 2015, from which Saldana claimed $4,000 in damages to his car and

$4,456 in medical bills resulted.      The collision occurred around mid-morning, while

Saldana was driving home after going to a barber shop for a haircut. He was stopped at

a red light, waiting for it to turn green. He testified that as he was sitting there, he “heard

a loud noise.” He said at first, he felt “like if I blacked out . . . .” After looking around, he

realized he had been “pushed” into the intersection about five feet. He backed up and

saw the vehicle that had hit him. The driver, Williams, was driving an extended cab pick-

up truck. Williams testified she was stopped behind Saldana at the red light. She was

speaking with her daughter and saw in her “peripheral” vision that the light had turned

green. As a result, she started to proceed. Saldana did not proceed and, consequently,

Williams rear-ended him. She told the jury she could not have been moving more than

two miles an hour when the vehicles collided.


         Saldana inspected the vehicles and noticed that on his, “the lenses on the brake

lights were cracked, the bumper was pushed in, and the trunk was lifted slightly.” He also

noticed “the bottom bumper was pushed in” on Williams’s truck. Saldana said that other

than his adrenaline pumping and feeling some “tingling,” he did not “really feel pain.”

Williams was uninjured. Both parties were able to drive their vehicles from the site of the

crash.


         Two days after the crash, Saldana went to the emergency room complaining of

lower back pain, ankle pain, and wrist pain. During an examination, a physician observed

Saldana was able to walk on his ankle and move his wrist without difficultly. X-rays and

                                               2
a CT-scan were taken as part of the emergency assessment. The results of both tests

were normal. On release, the doctor told Saldana to follow up with his primary care

physician if necessary and provided to him a one-week work release. Saldana returned

to work after that time.


        Saldana went to see his primary care physician about four days after his

emergency room visit. His doctor recommended physical therapy. Saldana said the

therapy provided some relief from his pain. But, at the conclusion of physical therapy, he

went back to his primary care physician and requested an MRI. The results of that test

showed “no evidence to suggest recent acute trauma.” Rather, the results indicated only

“minimal chronic-appearing degenerative change” consistent with Saldana’s age of thirty-

nine.


        Nearly a year later, Saldana presented at the emergency room with chest pain and

pressure and complained of some back pain in relation to the chest pain. Nearly two

years later, Saldana went to a chiropractor, citing his back pain from the crash with

Williams as the reason for his pain. The chiropractor did not review any of the imaging

results from Saldana’s previous doctor visits, nor did he request additional imaging or

testing. Rather, he utilized a treatment plan of rubbing “BioFreeze” on Saldana’s back,

along with “popping” and massaging Saldana’s back.           Saldana’s pain temporarily

subsided.


        The chiropractor who treated Saldana testified at trial. He said the MRI showed

degenerative changes and arthritis that were consistent with Saldana’s age. He also

opined that these degenerative changes caused Saldana pain because of the crash.


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However, he said, his opinion was largely based on what Saldana told him, i.e., that his

back hurt following a car crash.


        Another chiropractor testified during Williams’s case-in-chief. He told the jury he

had reviewed all of Saldana’s medical records and saw Saldana had not received any

treatment for his back pain after he completed physical therapy until he saw a chiropractor

two years later. He also opined that because that chiropractor did not order any imaging

or tests, that meant he found Saldana’s complaints were minor in nature. Consequently,

he concluded there was nothing in Saldana’s medical records that showed the crash

caused Saldana’s back pain.


        After hearing the evidence, the jury was asked to determine, “Did the negligence,

if any, of Leshai Williams, proximately cause the collision and the injuries of Elisha

Saldana?” The jury answered this question, “No.” Based on the jury’s finding, the trial

court entered a take-nothing judgment. This appeal followed.


        ANALYSIS

        Through his sole issue on appeal, Saldana challenges the factual sufficiency of the

evidence supporting the jury’s finding that Williams’s negligence did not proximately

cause the collision and his injuries.1 Williams responds that Saldana failed to prove by a

preponderance of the evidence that her negligence was the proximate cause of his

claimed injury. We must agree.




        1
          Where there is conflicting evidence on an issue, the appropriate challenge to a jury finding
concerning an issue upon which the complaining party had the burden of proof is that the jury’s finding is
against the great weight and preponderance of the evidence. Raw Hide Oil & Gas, Inc. v. Maxus
Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.—Amarillo December 31, 1988, writ denied).

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       When a party attacks the factual sufficiency of an adverse finding on an issue on

which he has the burden of proof, he 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) (citations omitted). The court of appeals is

required to weigh all of the evidence, and can set aside a verdict only if the evidence is

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

that it is clearly wrong and unjust.” Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629,

635 (Tex. 1986); Hall, Standards of Review in Texas, 29 St. Mary’s L. J. 351, 484 (1998)).


       The definitions provided in the charge to the jury relevant to disposition of

Saldana’s appellate issue are as follows:


       “Negligence” means the 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.

       “Ordinary Care” means the degree of care that would be exercised by a
       person of ordinary prudence under the same or similar circumstances.

       “Proximate Cause” means a cause that was a substantial factor in bringing
       about an occurrence, and without which cause such occurrence would not
       have occurred. In order to be a proximate cause, the act or omission
       complained of must be such that a person using ordinary care would have
       foreseen that the occurrence, or some similar occurrence, might reasonably
       result therefrom. There may be more than one proximate cause of an
       occurrence.

       As support for his position that Williams’s negligence proximately caused his

damages, Saldana relies on the property damage estimate regarding his car, showing

$4,000 in damages, the emergency room “no return to work” statement, and documents

showing total medical expenses of $4,456, introduced into evidence as Plaintiff’s exhibits

2, 2A, 7, 8, 9, and 11. He also points to his own testimony that prior to the crash with

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Williams, he had never sustained a back injury or been in a car accident. He focuses on

the facts that he received physical therapy for his back pain, went back to his doctor when

the pain continued, and had an MRI to determine the cause of his pain. He also said he

continued working despite the pain but went to see a chiropractor when the pain would

not completely subside. He also notes the testimony of his supervisor at work that after

the accident, he noticed Saldana had a stiff neck and had to turn his entire body to look

at him.     Furthermore, an employee in Human Resources at Saldana’s place of

employment said that while Saldana had a desk job, he usually filmed football games on

Friday night. He was, however, unable to do so in September, October, and November

of 2015. Finally, Saldana asserts as support for his position, Williams’s admission that

she caused the accident, that it was preventable, and that her acts or omissions were a

proximate cause of the crash.


       Williams argues on appeal that Saldana failed to prove by a preponderance of the

evidence that the crash proximately caused the damages he seeks. In support of her

position, she first acknowledges her admission that she rolled into the back of Saldana’s

car at a very slow speed of one to two miles per hour. She was not injured, and Saldana

did not complain of any injury at the time of the crash. Damage to the vehicles was minor

and both were able to be driven. Williams also notes the only evidence of Saldana’s pain

comes from his subjective complaints.2 He did not provide any objective evidence of a

back injury and in fact, the only objective evidence, the x-rays and MRI, showed no acute




       2
         Williams also points to Saldana’s other medical issues including diabetes, hypertension, chest
pain, morbid obesity, and age-related arthritis in his back as the potential cause of his back pain.

                                                  6
injury. Williams’s expert, a chiropractor, testified he did not see anything in Saldana’s

medical records to support a diagnosis of a back injury caused by the crash.


       Williams also notes conflicting evidence in the record from which the jury could

have determined Saldana was not credible. First, she points to Saldana’s testimony that

he felt like he “blacked out” at the time of the crash. But, medical records from the

emergency room two days later indicate Saldana did not lose consciousness. Second,

Williams points to Saldana’s testimony that a year after the crash, he went to the

emergency room with back pain radiating to his chest. The medical records from that

episode indicate he presented with chest pain and pressure, along with radiation to the

side of his chest. We note the record also states Saldana reported “mid to upper” back

pain in conjunction with the onset of chest pain. Third, Williams says the chiropractor

who treated Saldana testified the MRI showed only degenerative changes and arthritis

consistent with Saldana’s age. He said that, in his opinion, those degenerative changes

caused pain because of the crash. The chiropractor also admitted that because the only

information regarding pain comes from the patient, it is possible for a patient to claim the

pain is from an accident when it is actually due to arthritis. Williams further points to the

chiropractor’s testimony that it is possible to have a patient with degenerative changes

with no history of a car crash present with the exact symptoms as those presumably

suffered by Saldana.


       Lastly, Williams notes the testimony of her expert. She says he controverted the

testimony of Saldana’s chiropractor when he testified it was not reasonable that the pain

Saldana complained of was due to the car accident two years prior. He said, “people who

have significant, ongoing pain related to a specific incident are going to go get treatment

                                             7
and not wait for two years to do some other kind of treatment if the first treatment hasn’t

been effective. So, he may have had some pain that warranted treatment, but not—not

due to something two years earlier.”      Williams concludes that because the medical

records show Saldana had degenerative changes consistent with his age, the jury could

have reasonably concluded the crash was not the “but for” cause of Saldana’s pain.


       When presented with conflicting evidence on an issue, it is within the province of

the jury to resolve those conflicts and decide those factual issues. See City of Keller v.

Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005); Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003) (noting the “familiar principle that the jury is the sole judge

of the credibility of witnesses and the weight to be given to their testimony”); McGalliard

v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (jury can choose to believe one witness

over other witnesses or resolve inconsistencies in their testimony when presented with

conflicting evidence). The appellate court may not substitute its own judgment for the

jury’s, even in the event it would reach a different answer on the evidence. Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Lamb v. Franklin, 976 S.W.2d

339, 341 (Tex. App.—Amarillo 1998, no pet).


       Here, given the testimony and evidence before it, the jury could have reasonably

concluded that while Williams’s negligence was the proximate cause of the crash, the

crash was not the proximate cause of Saldana’s claimed injuries. Consequently, based

on our review of the evidence under the applicable standard of review, we find the

evidence was factually sufficient to support the jury’s finding. As a result, we resolve

Saldana’s sole issue against him. Issue one is overruled.



                                            8
         CONCLUSION

         Having overruled Saldana’s sole appellate issue, we affirm the judgment of the trial

court.




                                                          Patrick A. Pirtle
                                                               Justice




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