                             NUMBER 13-13-00001-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

RUFINO IBANEZ AND
ANTONIO ARAIZA,                                                            Appellants,

                                           v.

GRACIELA ALONZO,                                                              Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides

       This is an appeal from a judgment based on a jury award for damages in appellee

Graciela Alonzo’s favor related to a 2009 auto accident. By three issues, which we

re-organize for clarity, appellants, Rufino Ibanez and Antonio Araiza, contend that (1) the

trial court reversibly erred by admitting an audio recording of Araiza; and (2) the
evidence is legally and factually insufficient to support the jury’s verdict that (a) Araiza

negligently entrusted his vehicle to a negligent driver and (b) Ibanez was the driver of the

vehicle in question. We affirm.

                                   I.     BACKGROUND

       Graciela sued Ibanez for the negligent operation of an automobile and Araiza for

the negligent entrustment of his vehicle to Ibanez.      The case was tried to a Hidalgo

County jury, and the record reveals the following: Graciela drove her 2000 Mercury

Sable in the late evening of January 31, 2009 in Hidalgo County, Texas, when another

vehicle struck the driver’s side of her Sable. According to Graciela, the other vehicle

traveled down the left lane of FM 2812 and attempted to turn left into a drive-thru

convenience store located on the right side of the road when it collided with her vehicle.

       Graciela testified that the force of the crash shattered her driver’s-side window

and pushed her vehicle off the road.    She further testified that after the crash, she could

not open her driver’s door, so she had to exit through the front passenger door. Once

Graciela was outside of her vehicle, an unknown and unidentified woman tended her.

According to Graciela, the woman asked her if she was okay, and the woman also

identified a black truck with a white camper and hitch, that was still in the vicinity of the

crash, as the vehicle responsible for the collision. The driver of the truck did not stop,

but Graciela was able to jot down the first two numbers of the truck’s license plate:     “9”

and “2.”   Graciela also observed that the truck’s cabin light was on and described the

driver of the truck as a “heavy set” man with a dark complexion and a beard.

       After speaking to the police at the scene until 1 a.m., Graciela made her way

home and spoke to her husband, Marcos. Graciela described to Marcos the truck that


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she saw that night and also told him about its first two license plate numbers. Marcos

testified that he suspected that the driver of the truck lived in the area because the

drive-thru convenience store was the only one in the area.                  Following his suspicions,

Marcos drove around the surrounding residential neighborhoods in search of the truck

that Graciela had described.            According to Marcos, he found the truck about one

half-mile from the drive-thru convenience store and called the Texas Department of

Public Safety (DPS) trooper who spoke to Graciela the previous night.                      Graciela also

viewed the truck with Marcos and confirmed that it was the truck that she had observed

the previous night.        Marcos also observed that one of the truck’s headlights was

“hanging.”

       Marcos testified that the trooper arrived a short time later and spoke to the truck’s

owner, Araiza.       According to Marcos, Araiza denied driving the truck on the previous

night, but Araiza told the trooper that he “had lent it to somebody else.”

       Araiza failed to appear at trial, but he was represented by counsel and portions of

his pre-trial deposition were read into evidence.            Araiza testified that he owned a black

1999 Ford Ranger. Araiza stated that he decided to have a cookout at his house on the

afternoon of January 31, 2009 and invited, among others, his cousin’s husband,

“Chapo,” a neighbor, “Pepe,” and another man, Ibanez, who had helped Araiza tend to

his horses in the past.1 Araiza testified that prior to the cookout, he had purchased three

24-packs of beer, and that he, along with Chapo, Pepe, and Ibanez, started drinking the

beer at 3 p.m. The beer lasted until 10 p.m., and Araiza admitted that at that point, he

and Chapo were intoxicated, but he was unsure whether Ibanez was intoxicated.


       1   Aside from Ibanez, Araiza could not provide the full names for the other men.

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       Araiza stated that Chapo then asked to borrow Araiza’s truck to buy more beer,

and Araiza told him “that the truck was there,” with the keys in the truck, but that Chapo

did not leave.   Araiza was under the impression that Chapo was “going to send another

person” to buy the beer for him since Chapo had been drinking beer. Araiza testified

that he believed that Ibanez was the person that Chapo sent to the store because Ibanez

was the only other person there.    Araiza observed the truck leave, but he did not know

who drove it.    Araiza testified that only he, Chapo, Pepe, and Ibanez were at his

residence at that time. When pressed by Graciela’s lawyer at the deposition, Araiza

testified that “maybe” Ibanez drove his truck that night.

       In his deposition testimony, Araiza described Ibanez, who also failed to appear at

trial but was represented by counsel, as “thin,” “not too tall” and with a “little goatee.”

Araiza testified that Chapo had a mustache, but no beard.           Araiza stated he did not

discover that his truck had been involved in a wreck until the next morning, when the

police arrived at his house.   Araiza testified that he told the police that he had “loaned”

out his truck to Chapo, but Chapo did not drive his truck that night.        Araiza told the

police that “maybe” Ibanez drove his truck that night “because he was the other one” that

was at his house that night.    Finally, Araiza testified that he has not spoken to Ibanez

since the night of the accident, but he has spoken to Chapo, who told Araiza that he

“doesn’t know anything” about the accident.

       At trial, Graciela introduced a recorded conversation between Araiza and

Graciela’s hired private investigator, Ricardo Tamez.       Tamez testified that he was hired

by Graciela’s counsel to investigate the accident, and as part of his investigation, he

made contact with Araiza.      Tamez recorded his conversation with Araiza.         The trial


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court overruled Araiza and Ibanez’s objections to the recording and admitted it into

evidence.     In the recording, Araiza admits to loaning out his truck that night, but he did

not know to whom.        Araiza admitted, however, that everyone at his house that night was

drunk because they all started drinking beer at one o’clock that afternoon.                         Araiza

confirmed that Chapo and Ibanez went to the store that night.                On the recording, Araiza

stated that Ibanez sported a “small beard” while Chapo had a mustache.

        The jury found both Ibanez and Araiza liable and awarded Graciela $366,600 in

past and future damages, and pre- and post-judgment interest. The trial court entered

judgment on October 4, 2012.            Ibanez and Araiza filed a joint motion for new trial that

was overruled by operation of law. This appeal followed.

                            II.     ADMISSIBILITY OF AUDIO RECORDING

        By their first issue, Ibanez and Araiza contend that the trial court reversibly erred

by admitting the audio recording of Tamez and Araiza’s conversation (Plaintiff’s Exhibit

120) over their objections that the recording was improperly authenticated and that it

amounted to hearsay.2

        A.       Standard of Review

        Evidentiary rulings are committed to the trial court’s sound discretion.                Bay Area

Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). The test for

abuse of discretion is whether the trial court acted without reference to any guiding rules

or principles.    E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558

(Tex. 1995).       Even if a trial court errs by improperly admitting evidence, to find

         2 Appellants also asserted that the recording’s probative value was outweighed by its unfairly

prejudicial effect; however, this argument was inadequately briefed. See TEX. R. APP. P. 38.1(i)
(“[Appellant’s] brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). As a result, we decline to address this argument. See TEX. R.
APP. P. 47.1.

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reversible error, this Court must find that the district court's errors probably caused the

rendition of an improper judgment or prevented a party from properly presenting their

case.     See TEX. R. APP. P. 44.1; see also Bay Area Healthcare, 239 S.W.3d at 234.

        B.      Discussion

        We turn first to appellants’ argument that the audio recording was improperly

authenticated because Tamez’s purported “threats and intimidation” in obtaining Araiza’s

statements made them unreliable.         Authentication or identification is a condition

precedent to admissibility of evidence.     See TEX. R. EVID. 901(a).      One method of

authentication or identification is through testimony of a witness with knowledge that the

matter is what it is claimed to be.   See TEX. R. EVID. 901(b)(1). In this case, Tamez

testified that he recorded his conversation with Araiza and that Plaintiff’s Exhibit 120 was

a “true and correct and accurate copy” of the recorded conversation that he had with

Araiza.      We conclude that such testimony was sufficient under rule of evidence

901(b)(1) to properly authenticate the recording.    See id.; see also generally Jones v.

State, 80 S.W.3d 686, 689 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (concluding

that a confidential informant’s identification of the voices on the recording was sufficient

for authentication purposes).

        Furthermore, appellants’ arguments that Tamez’s purported threats and

intimidation tactics toward Araiza made Araiza’s statements unreliable are not supported

by the record. Plaintiff’s Exhibit 120 reveals that Tamez told Araiza that “the criminal

case does not interest us that much.” When asked during cross-examination why he

mentioned the “criminal case” to Araiza, Tamez replied with the following:

        The reason that I mentioned that it wasn’t a criminal [case] is because—I
        never said I had to, because a lot of times when you deal with people that

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       are from Mexico, they believe that an accident, like in Mexico, is a criminal
       act here, and it’s not, and that was my point to mention it to him.

       Additionally, Tamez, who is not a law-enforcement officer, testified that he

“absolutely” did not intimidate Araiza during the conversation.     Tamez stated that when

he met with Araiza, he wore plain clothes, did not carry a firearm, and he wore a badge

that said “private investigator.” Tamez asserted that he did not pretend to be an officer

that day and that Araiza never indicated to Tamez that he believed him to be an officer,

although Tamez did not tell Araiza that he worked for Graciela. Araiza did not refute

Tamez’s testimony by presenting any testimony to the contrary regarding the alleged

intimidation or threats. Accordingly, based on this record, we conclude that the trial

court did not abuse its discretion by admitting Plaintiff’s Exhibit 120 over objections that it

was unauthenticated.

       Next, we turn to appellants’ argument that the audio recording amounts to

inadmissible hearsay. “Hearsay” is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. TEX. R. EVID. 801(d). A statement is not hearsay if the statement is offered

against a party and is the party’s own statement in an individual capacity.     Id. 801(e)(2).

Here, the recorded statements were made directly by Araiza during his conversations

with Tamez.     Accordingly, the trial court did not abuse its discretion by admitting

Plaintiff’s Exhibit 120 over the appellants’ hearsay objections.

       We overrule appellants’ first issue.

                   III.   LEGAL AND FACTUAL SUFFICIENCY CHALLENGES

       By their second issue and third issues, appellants assert that the evidence is

legally and factually insufficient to support the verdict that (1) Araiza entrusted his vehicle

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to a negligent driver; and (2) Ibanez was the negligent driver.

       A. Standard of Review

       When an appellant attacks the legal sufficiency of an adverse finding on an issue

for which he did not have the burden of proof, the appellant must demonstrate that there

is no evidence to support the adverse finding.       Editorial Caballero, S.A. de C.V. v.

Playboy Enters., Inc., 359 S.W.3d 318, 328 (Tex. App.—Corpus Christi 2012, pet.

denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)).               A

no-evidence challenge will be sustained only if:     (1) there is a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively

the opposite of a vital fact.   City of Keller, 168 S.W.3d at 810; King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003).         “The final test for legal sufficiency must

always be whether the evidence at trial would enable reasonable and fair-minded people

to reach the verdict under review.”   Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,

770 (Tex. 2010). We must view the evidence in the light most favorable to the verdict

and “must credit favorable evidence if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.” Id. (citing City of Keller, 168 S.W.3d at

822–27).

       In reviewing a factual-sufficiency challenge to a jury finding on an issue on which

the appellant did not have the burden of proof, we consider and weigh all of the evidence

and set aside the verdict only if the evidence that supports the jury finding is so weak as

to make the verdict clearly wrong and manifestly unjust.    Cain v. Bain, 709 S.W.2d 175,


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176 (Tex. 1986). We must examine both the evidence supporting and that contrary to

the judgment.   Editorial Caballero, 359 S.W.3d at 329.    Additionally, the jury is the sole

judge of the witnesses’ credibility, and it may choose to believe one witness over

another, and we may not impose our own opinion to the contrary.          Id. (citing Golden

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

       B. Discussion

       1. Araiza’s Entrustment

       To establish liability under a theory of negligent entrustment, Graciela must show

that (1) Araiza entrusted the vehicle to Ibanez; (2) Ibanez was an unlicensed,

incompetent, or reckless driver; (3) at the time of the entrustment, Araiza knew or should

have known that Ibanez was an unlicensed, incompetent, or reckless driver; (4) Ibanez

was negligent on the occasion in question; and (5) Ibanez’s negligence proximately

caused the accident. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758

(Tex. 2007).     Araiza specifically challenges the first element of the negligent

entrustment cause of action—i.e., that Araiza entrusted his vehicle to Ibanez.

Entrustment may be shown by express or implied permission to drive the vehicle in

question.   See Jamar v. Patterson, 910 S.W.2d 118, 121 (Tex. App.—Houston [14th

Dist.] 1995, writ denied). “Express permission is that which is affirmatively stated, while

implied permission may be inferred from conduct between the parties in which there is

acquiescence or lack of objection signifying consent.”     Id. (citing Royal Indem. Co. v.

H.E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex. 1966)).

       In this case, the evidence reveals that Araiza and others, including Ibanez, spent

the afternoon of January 31, 2009 drinking three 24-packs of beer. Araiza testified that


                                            9
he had a prior business relationship with Ibanez, but did not know him well.      Once the

beer ran out that evening, Chapo asked to borrow Araiza’s truck in order to buy more

beer at the drive-thru convenience store one-half mile away.     Araiza consented and told

Chapo that the keys were in the truck.       Araiza testified, however, that Chapo did not

drive his truck.   Araiza testified in his deposition that he did not give Ibanez permission

to drive his truck that night.   However, during the interview with Tamez, Araiza testified

that “some boys, some men,” including Ibanez, asked Araiza to borrow his truck to buy

more beer. Furthermore, in the interview, Araiza stated the following:

       [TAMEZ]:       That—that—that man who drove your truck, you say you
                      don’t know him?

       ARAIZA:        No.

       [TAMEZ]:       Was he a friend of your nephew[’]s?

       ARAIZA:        My cousin[’]s.

       [TAMEZ]:       What were their names?

       ....

       ARAIZA:        Rufino Ibanez because he was investigating. The police
                      officer told me to get information, the State officer. And
                      that’s when I found that was his name and that’s it.

       Later in the interview, Tamez pressed Araiza further and asked him whether

Ibanez was drunk before he left for the store, and Araiza replied, “Yes.” In turn, Tamez

asked, “You lent them the truck although they were drinking?” And Araiza replied, “Yes,

because we were all—we were all sitting there.”        Finally, Araiza told Tamez that he

thought that he was at fault because he lent out his truck. Again, Tamez asked Araiza

whether he had lent his truck out with permission, and Araiza replied, “Yes.”



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       Appellants argue that the record shows that Araiza had a very limited relationship

with Ibanez, that he did not give his permission to Ibanez to drive his truck, and that

these facts conclusively establish that Araiza did not entrust Ibanez with the vehicle.

We disagree.       The record shows that Ibanez knew Araiza prior to January 31, 2009

because he helped Araiza move bales of hay.                 Furthermore, the record shows that

despite this purportedly “limited relationship,” Araiza invited Ibanez, among others, to his

house for a cookout, where the men consumed a combined total of 72 beers over a

seven to nine-hour period of time. When the beer ran out, Chapo suggested that the

group buy more beer. Araiza told Chapo that the keys were in his truck, and granted

Chapo permission to take his truck to buy more beer. At this point in the record, the

evidence conflicts about the person that Araiza granted permission to take his truck to

buy more beer. First, Araiza testified that he did not give Ibanez permission to drive his

truck, but that he instead gave permission to Chapo.                   That testimony contradicts

Araiza’s recorded statements to Tamez, in which Araiza says that he gave permission to

Ibanez3 to drive his truck and that he knew that Ibanez was drunk.

       Furthermore, we find no evidence to show that Araiza’s conduct that night

demonstrated a failure to acquiesce or a failure to consent to Ibanez driving his truck.

The record indicates that Chapo did not drive Araiza’s truck that night, but Araiza was

aware that someone else drove his truck to buy more beer because he saw the truck

leave, and he stated that of the four men present at the cookout that night, neither he,

Pepe, nor Chapo drove the truck. Araiza then testified that “maybe” Ibanez was the one

who drove the truck that night in search of more beer. Finally, Araiza admitted in

       3 Throughout the interview, Araiza does not identify Ibanez by name, but instead, as a “man . . .
from Diaz Ordaz, [Mexico].”

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Plaintiff’s Exhibit 120 that he believed that he was at fault because he lent out his truck.

       After viewing this evidence in the light most favorable to the verdict, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not, we hold that the appellants failed to demonstrate that there

is no evidence to support the jury’s finding that Araiza entrusted his vehicle to Ibanez

either by express or implied permission.          See City of Keller, 168 S.W.3d at 810.

Stated another way, we conclude that the evidence at trial is legally sufficient to enable

reasonable and fair-minded people to reach the verdict under review.          See Del Lago

Partners, Inc. v. Smith, 307 S.W.3d at 770.

       Likewise, after weighing all of the evidence supporting and that contrary to the

judgment, we conclude that the evidence is not so weak as to make the verdict clearly

wrong and manifestly unjust.    See Cain, 709 S.W.2d at 176.

       Appellants’ second issue is overruled.

       2. Ibanez As the Negligent Driver

       Appellants also challenge the factual and legal sufficiency of the evidence to

support the jury’s finding that Ibanez was the negligent driver.

       Neither Ibanez nor Araiza were present at trial, but both were represented by

counsel. Graciela read various pre-trial written discovery responses by Ibanez and

Araiza into the record. The first was an interrogatory to Ibanez, which asked him to

state in detail how the collision in question occurred.   Ibanez replied: “will supplement,”

but no supplement was provided. The next interrogatory to Ibanez asked, “If the vehicle

driven by [Ibanez] was not owned by you, please state the vehicle owner’s name,

address and telephone number.” Ibanez responded with Araiza’s name and address.


                                             12
Furthermore, Graciela propounded requests for disclosure to Araiza, which asked him to

list “the name, address, and telephone number of persons having knowledge of relevant

facts and a brief statement of each identified person’s connection with the case.”

Araiza identified Ibanez as a person with knowledge of relevant facts and identified him

as the “defendant/driver.”

       Additionally, Araiza’s statements in Plaintiff’s Exhibit 120 stated that Ibanez drove

his truck along with Chapo. Araiza additionally testified in his deposition that of the four

men present at the cookout that night—i.e., himself, Chapo, Pepe, and Ibanez—neither

he, Chapo, nor Pepe drove the truck that night, and testified that “maybe” it was Ibanez.

In his deposition, Araiza described Ibanez as a “thin” “dark skinned” individual with a

“little goatee.” Graciela testified that shortly after the accident, she witnessed the truck

that collided with her vehicle drive away from the convenience store.              Graciela

described the driver of the truck as a “heavy set” man with a dark complexion and beard.

While the two descriptions of Ibanez conflict, when reasonable jurors, as in this case,

can resolve the evidence either way, we must presume that the jury did so in favor of the

prevailing party and disregard the conflicting evidence in our review.   See City of Keller,

168 S.W.3d at 820.

       Therefore, after viewing this evidence in a light most favorable to the verdict,

crediting favorable evidence if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not, we hold that the appellants failed to

demonstrate that there is no evidence to support the jury’s finding that Ibanez was the

negligent driver that proximately caused Graciela’s damages. See id. at 810.        In other

words, the evidence at trial is legally sufficient to enable reasonable and fair-minded


                                            13
people to reach the verdict under review.      See Del Lago Partners, Inc. v. Smith, 307

S.W.3d at 770.

      Similarly, after weighing all of the evidence supporting and that contrary to the

judgment, we conclude that the evidence is not so weak to make the verdict clearly

wrong and manifestly unjust.   See Cain, 709 S.W.2d at 176.

      Appellant’s final issue is overruled.

                                   IV.    CONCLUSION

      We affirm the trial court’s judgment.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice



Delivered and filed the
24th day of April, 2014.




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