                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-17-00109-CV
                           ____________________

                        YESSIKA SANCHEZ, Appellant

                                         V.

                          KRISTIN BRAYE, Appellee


                   On Appeal from the 172nd District Court
                          Jefferson County, Texas
                         Trial Cause No. E-195,641


                          MEMORANDUM OPINION

      Yessika Sanchez (Sanchez or Appellant) appeals the trial court’s denial of her

motion for new trial after a jury entered a take-nothing judgment in favor of Kristin

Braye (Braye or Appellee). Sanchez alleged she sustained personal injuries from an

automobile accident. Sanchez filed a motion for new trial arguing that the jury’s

failure to find that the negligence of Braye proximately caused the accident was so

contrary to the great weight and preponderance of the evidence that it was wrong

and clearly unjust. Braye filed a response to the motion. After a hearing, the trial
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court signed an order denying the motion, and Sanchez appealed. Finding the trial

court did not abuse its discretion in denying Sanchez’s motion for new trial, we

affirm the trial court’s judgment.

                                     Background

      Sanchez alleged that her injuries and damages were proximately caused by

Braye’s negligence. Sanchez also pleaded that Braye’s conduct was “characterized

by ‘malice’ and/or gross negligence” and Sanchez also sought exemplary damages.

Sanchez’s petition sought damages in an amount “over a $1,000,000.00.”

      Sanchez testified at trial that on the day of the accident her husband, William

Wilson, was driving and she was a passenger as they were leaving the Costco store

on I-10 in Houston. She explained that they were driving on the feeder road, took a

right turn onto Richmond, then merged over to the far-left lane to take a left turn at

the next street light at Rice Boulevard to go to Sam’s Club. She heard Wilson gasp

and then their vehicle hit a car. According to Sanchez, after the collision, Braye, the

driver of the other vehicle involved in the collision, got out of her car and said, “I

couldn’t see. So, I just went.”

      During the testimony of William Wilson, he indicated on a diagram admitted

into evidence that the vehicle he was driving on the day of the accident was in the

far-left lane before approaching another left turn lane for vehicles making an

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unprotected left turn across traffic at the same place where Braye was making the U-

turn. Wilson testified that a black Hummer was waiting there to make a left turn at

the time of the collision. According to Wilson, he was going below the posted speed

limit of thirty-five miles per hour at the time of impact and that up until Braye pulled

out he had not seen her vehicle. Wilson indicated that the left front driver’s side of

the vehicle he was driving collided with Braye’s vehicle’s passenger side front tire

area. Wilson testified that he did everything he could to stop and avoid the accident,

he had very little time to avoid the impact, and at the point of impact he “instinctively

moved to the right slightly.” According to Wilson, after the collision he heard Braye

say, “I couldn’t see. So, I went.” Wilson testified that Braye was at fault in causing

the collision and that the officer at the scene agreed.

      Officer David Phan with the Houston Police Department testified that he was

working patrol on the day of the accident, that he was notified of the accident and

arrived at the scene almost two hours after the collision occurred because of the

priorities of calls, and that he completed the accident report in this case. Officer Phan

testified that Wilson was driving a white Acura and Braye was driving a white

Nissan Altima. Officer Phan testified that Wilson told him that he was travelling

west on Richmond in the far-left lane and that Braye’s vehicle turned left in front of

his vehicle, causing the collision. Officer Phan explained at trial that Braye told him

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that she was driving eastbound on Richmond, made a U-turn onto westbound

Richmond, and did not see the white Acura approaching. According to Officer Phan,

no one reported any injuries. Officer Phan agreed that there was a turning lane in the

area of the collision. Officer Phan noted in the accident report that Braye’s vehicle

failed to yield the right-of-way and made a U-turn in front of Wilson’s vehicle,

striking Wilson’s vehicle in the right front portion of the vehicle. Officer Phan

testified that it was “clear-cut” that Braye violated the law in failing to yield the

right-of-way making the U-turn, and that because she made the decision “to turn

without clear out the street,” that “it would be her fault, regardless of what happened

to the other vehicle.” Braye received a citation for failing to yield the right-of-way.

Officer Phan testified that both cars were drivable after the accident and that he did

not perform an accident reconstruction because the accident was classified as a

minor accident. Photographs of the vehicles after the accident that were taken at the

accident scene were admitted into evidence.

      Kristin Braye testified she was driving a two-door Nissan Altima when she

was involved in the collision. According to Braye, she and her passenger were on

their way to eat and were trying to decide where they were going to eat. Braye

testified that after the protected intersection she realized she needed to turn around,

that she did not know where the next stoplight would lead to, so she came to a

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complete stop and made a U-turn at a grass median where there were no signs

prohibiting a U-turn. According to Braye, there was a four-door gray sedan facing

her and in front of her waiting to turn left, and that there was no Hummer in that

lane. Braye testified that nothing blocked a significant portion of her view of

oncoming traffic and that she would not have pulled out if a large vehicle had been

there, making it impossible for her to see oncoming traffic. Braye testified that if she

had known that a white Acura was coming towards her, she would not have pulled

out. Braye testified that she heard Wilson’s testimony that after he made a right turn

on Richmond he started making lane changes over to the left, Braye agreed that the

pictures of the area depict three or four lanes of oncoming traffic, and Braye testified

that when she started to make her U-turn there was no vehicle in the left lane coming

towards her. According to Braye, as she was turning she saw out of her peripheral

vision something coming and she “cut the wheel as much as [she] could[.]” She got

out of the car and called 911, and her only conversation with Wilson was that he told

her that his fiancée was calling 911. Braye testified that she never told Wilson, “I

couldn’t see you; so, I just went anyway[.]” According to Braye it took a long time

for a police officer to arrive at the scene. Braye testified that she had called her

parents in Port Neches, and that her parents arrived at the scene before the police.



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      Braye agreed that she told Officer Phan at the scene of the accident that she

was making a U-turn and did not see the white Acura, but denied telling him, “Well,

I couldn’t see; so, I just pulled out anyway[.]” Braye testified that the officer did not

go into a lot of detail with her about how the accident happened. Braye agreed that

she had the duty to keep a proper lookout and the duty to yield the right-of-way to

be absolutely sure and know it was safe before she turned, but she testified that she

did not see the white Acura, that all she could say was she “did [her] best” to exercise

a proper lookout, and that she felt that she did not act unsafely because “[i]t was

clear when [she] looked[,]” and she “did what [she] needed to do to make a U-turn.”

Braye also agreed that she could have turned at a protected left turn, which would

have been the safest place to make a left turn, but she agreed she chose a less-safe

option by choosing to turn from a moving lane of traffic. Braye testified that she did

the best that she could do, but she agreed it wasn’t enough:

      [Plaintiff’s Attorney:] Don’t you wish you had moved up to the safer
      place?

      [Braye:] I mean, yes, sir.

      [Plaintiff’s Attorney]: All right. Because if you had made that safety
      decision, just like if you had exercised a proper lookout, just like if you
      did not turn when it was unsafe, we wouldn’t be here, would we?

      [Braye:] I just did the best that I could do.


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      [Plaintiff’s Attorney:] All right. But it wasn’t enough. It wasn’t safe. It
      wasn’t proper. Can we agree on that?

      [Braye:] Of course we can.

      Braye acknowledged that she pleaded guilty to the ticket for failure to yield

the right-of-way and that she took defensive driving, but she said that she did not

believe the accident was her fault because she believed that when she moved into

the oncoming lane of traffic it was safe to make a U-turn. Braye testified that in

making the U-turn on the day of the accident, and based on what she knew then, she

believed she acted like an ordinary person would have done under the same or

similar circumstances. According to Braye, during her deposition and trial, she was

uncomfortable with opposing counsel’s repeated attempts to get her to admit she was

at fault because she did not believe she was at fault. Braye agreed that opposing

counsel’s questioning of her assumed that there was a car in the left lane when Braye

made the U-turn, and Braye did not see a car in the left lane. According to Braye, if

she had seen the white car coming right at her in the left lane like opposing counsel

was assuming, she would not have made the U-turn. When asked whether Braye

agreed that if she had just pulled out at the time of the impact, then the other vehicle

had to have been pretty close, Braye responded, “I mean, it could be; or he could be

changing lanes. I don’t know.”


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      After the Plaintiff rested, the trial court granted the Defendant a directed

verdict on Plaintiff’s gross negligence and malice claims. After deliberations, the

jury answered “No” to the question, “Did the negligence, if any, of Kristin Braye

proximately cause the occurrence in question?” The jury did not reach the damage

questions. Braye filed Defendant’s Motion for Entry of Final Judgment in

accordance with the jury’s verdict. Sanchez filed Plaintiff’s Opposition to and

Objection to Defendant’s Motion for Entry of Final Judgment, arguing that the trial

court record conclusively establishes Braye’s negligence in proximately causing the

collision, and Braye filed a response. The trial court signed a take-nothing final

judgment in favor of Braye. Sanchez filed a motion for new trial, Braye responded,

and the trial court denied Sanchez’s motion for new trial by written order.

                                  Appellate Issue

      In Sanchez’s sole appellate issue, she argues the trial court erred in denying

her motion for new trial. According to Sanchez, the jury’s answer to question one

refusing to find that the negligence of Braye proximately caused the accident is so

against the great weight and preponderance of the evidence that it is clearly wrong

and unjust. Sanchez also argues that this alleged error probably caused an improper

judgment because of the substantial evidence that she suffered serious bodily injury

in the motor vehicle crash.

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                          Standard of Review and Analysis

      We review the denial of a motion for new trial for abuse of discretion. Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Under an abuse of

discretion standard, legal and factual sufficiency of the evidence are relevant factors

in assessing whether the trial court abused its discretion. Lesikar v. Moon, 237

S.W.3d 361, 375 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)); see Carlin v.

Carlin, 92 S.W.3d 902, 905 (Tex. App.—Beaumont 2002, no pet.). In reviewing the

factual sufficiency of the evidence, we consider and weigh all the evidence, and we

will set aside the trial court’s finding only if the evidence is so weak or the finding

is so against the great weight and preponderance of the evidence that it is clearly

unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As long as

evidence falls within the zone of reasonable disagreement, we cannot substitute our

judgment for that of the factfinder. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005).

      As the sole judge of the weight and credibility of the evidence, the jury was

entitled to resolve any conflicts in the evidence and choose whom to believe. See id.

at 819-20; see also Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761

(Tex. 2003). In doing so, the jury could have believed Braye and reasonably

                                          9
concluded that before making the U-turn she looked to make sure no oncoming

traffic was in the left lane and that the left lane was clear when she began making

the U-turn. The jury could have inferred from the testimony and the photographs at

the scene that Wilson was changing lanes at the time of the collision. “The mere fact

that a Court of Civil Appeals might have reached a different conclusion does not

authorize us to substitute our judgment for the jury’s findings.” Clark v. Cotten, 573

S.W.2d 886, 888 (Tex. App.—Beaumont 1978, writ ref’d n.r.e.). The jury’s failure

to find facts of negligence vital to the appellant’s recovery need not be supported by

affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973); Clark,

573 S.W.2d at 888.

      On appeal, Sanchez relies on Lechner v. Kelley, 467 S.W.2d 652 (Tex. Civ.

App.—Tyler 1971, writ ref’d n.r.e.), and Dellolio v. Brown, 399 S.W.2d 425 (Tex.

Civ. App.—Houston 1966, no writ). Both Lechner and Dellolio involve a plaintiff’s

vehicle stopped at a red light and rear-ended by a defendant’s vehicle. See Lechner,

467 S.W.2d at 652-53; Dellolio, 399 S.W.2d at 426. In Lechner, the Tyler Court of

Appeals affirmed the trial court’s granting of plaintiff’s motion for judgment

notwithstanding the verdict after the jury found no negligence by the defendant. 467

S.W.2d at 652, 655. In determining that the evidence conclusively established that

the defendant was negligent, the Tyler Court of Appeals noted in Lechner that “[the

                                         10
defendant’s] admission that he was looking at business papers rather than in the

direction he was traveling compels the conclusion that he failed to keep such a

lookout as would have been maintained by a person of ordinary prudence under the

same or similar circumstances proximately causing the collision.” Id. at 654-55. In

Dellolio, the First District Court of Appeals reversed the trial court’s final judgment

based on the jury’s verdict that plaintiffs take nothing in their negligence suit. 399

S.W.2d at 426, 428. In that case, the defendant testified that she was about a car-

length away from Dellolio’s vehicle when she first saw it, that Dellolio’s vehicle

was stopped at the light, that the defendant assumed the light was red, and that she

was familiar with the signal. Id. at 427. In finding the jury’s answer in acquitting the

defendant of failure to keep a proper lookout so contrary to the overwhelming weight

and preponderance of the evidence as to be clearly wrong and manifestly unjust, the

First Court of Appeals noted that the only evidence in the record shows that the red

light could be seen at least half a block away, the defendant did not say the incline

on the street prevented her from seeing Dellolio’s car or the light, and the defendant

knew the light was at the intersection but did not testify that she looked for the signal.

Id. We find both cases are inapposite to the facts in the present case.

      Based upon the record before us, we conclude that the jury’s failure to find

negligence was not so weak, nor so against the great weight and preponderance of

                                           11
the evidence, as to render the verdict clearly wrong and unjust. See Dow Chem. Co.,

46 S.W.3d at 242. Accordingly, the trial court did not abuse its discretion in denying

Sanchez’s motion for new trial. Because we have concluded that the trial court did

not abuse its discretion in denying Sanchez’s motion for new trial, we need not

address Sanchez’s remaining argument about her alleged injuries. See Tex. R. App.

P. 47.1. We overrule Sanchez’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.


                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on January 4, 2018
Opinion Delivered September 13, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.




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