


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00055-CV
 
East Texas Medical Center EMS 
and Jeremy Cox,
                                                                                    Appellants
 v.
 
Kathy Nieves,
                                                                                    Appellee
 
 
 

From the 40th District
Court
Ellis County, Texas
Trial Court No. 69987
 

memorandum opinion

 
Kathy Nieves sued Appellant Jeremy Cox
for assault and sexual assault.  She also sued Appellant East Texas Medical
Center EMS (ETMC), her and Cox’s employer, for sexual harassment, ratification,
and negligent retention and supervision.  A jury found for Nieves on all her claims,
and the trial court entered judgment for her against Cox and ETMC, who have
both appealed.  While this appeal was pending, Nieves and ETMC resolved the
judgment as to ETMC and have filed an agreed motion to dismiss, which we will
address below.  As to Cox’s appeal, we will affirm.
Cox’s Appeal
In issues one, two, and five, Cox
asserts that the evidence is legally and factually insufficient to support the
jury’s finding that Cox assaulted and sexually assaulted Nieves and that he
acted with malice toward Nieves.  In reviewing the legal sufficiency of the
evidence, we view the 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.  City of Keller v. Wilson,
168 S.W.3d 802, 807, 822 (Tex. 2005).  There is legally insufficient evidence
or “no evidence” of a vital fact when (a) there is a complete absence of
evidence of a vital fact; (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (c) the
evidence offered to prove a vital fact is no more than a mere scintilla; or (d)
the evidence conclusively establishes the opposite of the vital fact.  Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997).  In reviewing the factual sufficiency of the
evidence, we must consider and weigh all of the evidence, not just the evidence
that supports the verdict.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d
402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625,
633 (Tex. App.—Waco 2000, pet. denied).  We will set aside the finding only if
it is so contrary to the overwhelming weight of the evidence that the finding
is clearly wrong and unjust.  Ellis, 971 S.W.2d at 407.
The charge set out the following
elements for assault:
A person commits an assault if he (1)
intentionally, knowingly or recklessly causes bodily injury to another; (2)
intentionally or knowingly threatens another with imminent bodily injury; or
(3) intentionally or knowingly causes physical contact with another when he
knows or should reasonably believe that the other will regard the contact as
offensive or provocative.
 
The jury question on sexual assault
included the following on consent:
A sexual assault is without the consent
of the other person if:
 
(1)  
the actor compels
the other person to submit or participate by the use of physical force or
violence;
 
(2)  
the actor compels
the other person to submit or participate by threatening to use force or
violence against the other person, and the other person believes that the actor
has the present ability to execute the threat; or
 
(3)  
the other person has
not consented and the actor knows the other person is unconscious or physically
unable to resist.
 
Cox, a paramedic, and Nieves, an EMT,
worked three 24-hour shifts together.  As for the assault claim, Nieves
testified that Cox tried to hold her hand in the ambulance, pushed her up
against a wall and tried to kiss her, and grabbed her on the buttocks.  She
said that these behaviors were unwanted and that she communicated that to Cox. 
Nieves did not report this conduct to her superiors until after sexual
harassment allegations had been made against her.
As for the sexual assault, Cox had just
spent two days in jail after being arrested for assaulting his wife, who was
having an affair.  Nieves said that Cox showed up at her apartment uninvited.  Nieves
testified that, after talking for a while, Cox put his hand on her shoulder, pushed
her down to the floor and on her back, and, while holding both her wrists above
her head, began to have intercourse with her.  Nieves said, “No, please don’t,”
but did not fight off Cox.  She stared out the window, waiting for it to be
over.  Nieves felt numb, wanted to forget it had happened, and did not want to
tell anyone about.  She did not tell anyone about it until a few days later,
when she was being investigated for sexual harassment.
Cox said that he called Nieves after
getting out of jail and told her he was coming to her apartment, and she gave
him directions.  She invited him in when he arrived.  While she was sitting at
her computer, he began to give her a neck and back rub.  Nieves moved to the
floor, and Cox continued the back rub.  He then removed her pants and
underwear, performed oral sex on her, and then had intercourse with her.  He
said that the sex was consensual, that Nieves appeared to enjoy it, and that
she never asked him to stop.
In complaining about the sufficiency of
the evidence, Cox points out that Nieves and Cox worked a shift together the
next day and did not act like someone who had been sexually assaulted.  Nieves
said that she worked the shift because she was out of sick days and did not
want to have to tell anyone why she did not want to work with Cox.  Cox also
points to electronic pages that Nieves had sent to Cox before the alleged
sexual assault and asserts that they show Nieves was romantically interested in
Cox and that Cox’s version is thus more credible.  Nieves, however, testified about
the context of the pages and explained how, in the context in which she sent
them, they were not romantic.  Instead, she was trying to just be friends with
Cox and fit in with him and her other male co-workers, some of whom she says
she sent pages to as well.
            Cox, citing to City of
Keller v. Wilson, asserts that we must consider the entire context,
circumstances, conversations, writings, acts, and relationships between the
parties in reviewing the sufficiency of the evidence.  City of Keller,
168 S.W.3d at 811-12.  We agree, but we may not intrude on the jury’s
credibility determinations.
[W]e must not substitute our opinion on
witness credibility for that of the jury.  Id. at 816-17.
 
Jurors
are the sole judges of the credibility of the witnesses and the weight to give
their testimony.  They may choose to believe one witness and disbelieve
another.  Reviewing courts cannot impose their own opinions to the contrary.  
 
Most
credibility questions are implicit rather than explicit in a jury’s verdict. 
Thus, reviewing courts must assume jurors decided all of them in favor of the
verdict if reasonable human beings could do so.  Courts reviewing all the
evidence in a light favorable to the verdict thus assume that jurors credited
testimony favorable to the verdict and disbelieved testimony contrary to it.
 
…
 
Of
course, “[t]he jury’s decisions regarding credibility must be reasonable.” 
Jurors cannot ignore undisputed testimony that is clear, positive, direct,
otherwise credible, free from contradictions and inconsistencies, and could
have been readily controverted.  And as noted above, they are not free to
believe testimony that is conclusively negated by undisputed facts.  But
whenever reasonable jurors could decide what testimony to discard, a reviewing
court must assume they did so in favor of their verdict, and disregard it in
the course of legal sufficiency review.
 
Id.
at 819-20 (footnotes and citations omitted).  
 
Hunter v. Ford Motor Co., 305 S.W.3d 202, 206 (Tex. App.—Waco
2009, no pet.).
            And in a factual-sufficiency
review, 
 
We must also remember that it is within
the province of the jury to determine the credibility of the witnesses and the
weight to be given their testimony.  Brush v. Reata Oil & Gas Corp.,
984 S.W.2d 720, 725-26 (Tex. App.—Waco 1998, pet. denied).  The trier of fact
may believe one witness and disbelieve another.  McGalliard v. Kuhlmann,
722 S.W.2d 694, 697 (Tex. 1986).  It may resolve inconsistencies in the
testimony of a witness, and it may accept lay testimony over that of experts.  Id.  We may not pass upon a witness’s credibility or substitute our judgment for
that of the jury, even if the evidence might clearly support a different
result.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).
 
Id. at 206-07 (quoting O’Connor v. Wilson, 127 S.W.3d
249, 254 (Tex. App.—Waco 2003, pet. denied)).
By their verdict, obviously, the jury
believed Nieves and did not believe Cox, and it was not unreasonable for the
jury to do so, based on all the evidence.  The evidence is legally and
factually sufficient to support the jury’s assault and sexual assault findings. 
And by finding that Cox assaulted and sexually assaulted Nieves, the jury’s
malice finding against Cox is also supported by legally and factually
sufficient evidence.  We overrule issues one, two, and five.
In issue four, Cox complains that the
evidence is legally and factually insufficient to support the jury’s answer to
Question 10, which awarded Nieves $750,000 in damages for past physical pain
and mental anguish and $250,000 in future physical pain and mental anguish.  Cox
asserts that Nieves did not offer any evidence that she was harmed by Cox’s
assaults (as opposed to the sexual assault.)  As for the sexual assault, Nieves
testified that it made her feel “overwhelmed” and unable to answer the door
even for her children.  She felt numb and empty and tried to repress the sexual
assault.  She was afraid that if anyone heard about it, they would not be
willing to work with her.
She would not let anyone in her
apartment, see anyone, or get out of bed.  She felt anger, embarrassment, and
humiliation; she felt violated and still had a fear of letting a male other
than her husband or children into her house, including her father-in-law.  She
sometimes kept her children home from school because of her fear of being
alone.  Nieves said she has problems leaving the house, cannot be around
people, and avoids interaction.  She missed all of her son’s soccer games,
except for one, and even then had to watch from the truck.  Nieves testified
that she is sad because she feels her fears cause her to shortchange her family
and miss out on things.  She sometimes has feelings of worthlessness and
flashbacks of the events, and she has nightmares and trouble sleeping.  When
she pictures in her mind the assault, she sometimes feels sick to her stomach
and shakes.
We find that the evidence is legally and
factually sufficient to support the jury’s damage findings.  Issue four is
overruled.
Issue three complains that because
Question 10 was submitted in broad form as to Nieves’s two claims against Cox
and her negligent retention and supervision claim against ETMC, the
compensatory damages cannot be upheld if the evidence for any one underlying
claim is legally or factually insufficient.  But we have held that sufficient
evidence supports the assault and sexual assault claims, and the negligence
claim against ETMC is no longer before us.  Moreover, Cox did not object to the
broad-form submission of Question 10 and its lack of segregation as to the
three claims.  See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); Haskett
v. Butts, 83 S.W.3d 213, 219-20 (Tex. App.—Waco 2002, pet. denied); Columbia/HCA
Healthcare Corp. v. Cottey, 72 S.W.3d 735, 747 (Tex. App.—Waco 2002, no
pet.).  Issue three is overruled.
The jury (and the judgment) awarded
Nieves $50,000 in exemplary damages against Cox.  In issue six, Cox asserts,
similar to issue three, that because the exemplary damages question was not
segregated, if either the assault or sexual assault claim is overturned, the
exemplary damages award must be reversed.  Again, we have held that sufficient
evidence supports the assault and sexual assault claims, and Cox did not object
to the lack of segregation in the exemplary damages question.  Issue six is
overruled.
Issue seven asserts that because the compensatory
damages question was not segregated between Cox and ETMC, a ratio analysis
cannot be done to determine whether the exemplary damages award is excessive
under due-process concerns.  See State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 418, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585 (2003).  We note again
that Cox did not object to Question 10.  Furthermore, the $50,000 exemplary
damages award, compared to the $1 million in compensatory damages awarded to
Nieves against Cox (jointly and severally) for assault and sexual assault,
cannot be said to violate due process.  Issue seven is overruled.  Having
overruled all of Cox’s issues, we affirm the trial court’s judgment as to Cox.
ETMC’s Appeal
In an agreed motion by ETMC and Nieves, the
parties informed the Court that they have resolved this matter, and they
jointly request this Court (1) to dismiss the appeal of ETMC, with each side
bearing their own costs, (2) to set aside the trial court’s judgment as to ETMC
without regard to the merits of Nieves’s claims, (3) to direct the trial court
to dismiss with prejudice all claims brought against ETMC, with each party
bearing their own costs, and (4) to order a discharge of all obligations of the
surety, SAFECO Insurance Company of America, and of ETMC on the supersedeas
bond and the release of the supersedeas bond.  See Tex. R. App. P. 42.1(a)(2)(B).
We grant the motion in part.  We set
aside the trial court’s November 28, 2008 judgment only as to ETMC without
regard to the merits and with each party to bear its own costs in this appeal. 
We remand the cause only as to ETMC to the trial court for dismissal with
prejudice of all claims brought against ETMC by Nieves, with each party to bear
its own costs, and for an order of discharge of all obligations of the surety,
SAFECO Insurance Company of America, and of ETMC on the supersedeas bond and
the release of the supersedeas bond.
 
REX D. DAVIS
Justice
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
Affirmed
in part; set aside and remanded in part
Opinion
delivered and filed December 29, 2010

