Affirmed and Opinion filed March 5, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00167-CV

                        VONDA BARNHART, Appellant
                                         V.

              SYLVIA MORALES AND LUIS PEREZ, Appellees

                    On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2010-17655

                                 OPINION


      In this car wreck case, appellant Vonda Barnhart appeals from a final
judgment signed following a jury trial, raising nine issues. In her first two issues,
Barnhart contends the trial court abused its discretion when it admitted medical
records and a police report containing the results of a blood serum alcohol test
performed at the hospital following the wreck. According to Barnhart, the trial
court should have sustained her hearsay objection because the records were
untrustworthy given that appellees, Sylvia Morales and Luis Perez, failed to offer
evidence establishing a complete chain of custody for Barnhart’s blood sample.
We overrule both issues because, in a civil case, chain of custody goes to the
weight to be given the evidence, not to its admissibility.

      Barnhart’s remaining issues concern the damages awarded to appellees.
Barnhart challenges the factual sufficiency of the evidence supporting the award of
past physical impairment damages to Morales and the award of future physical
impairment damages to Perez. Because the record on appeal contains factually
sufficient evidence that both appellees experienced physical impairment as a result
of the injuries they sustained in the wreck, we overrule these issues. Barnhart next
asserts that there is legally and factually insufficient evidence to support the award
of future mental anguish damages to both appellees. We overrule these issues
because the jury’s awards were for both physical pain and mental anguish, and
Barnhart does not argue on appeal that there is insufficient evidence of future
physical pain. Barnhart also challenges the final judgment’s award of exemplary
damages to appellees. In Barnhart’s view, there is factually insufficient evidence
supporting the jury’s gross negligence finding. We overrule this issue because
Barnhart failed to raise it in her motion for new trial. In her final two issues,
Barnhart contends the exemplary damages award is excessive and violates her
constitutional due process rights. We overrule both issues because the evidence
supports the exemplary damages found by the jury and the amount does not run
afoul of the constitutional limitations on exemplary damage awards. We therefore
affirm the judgment.

                                   BACKGROUND

      Appellees and their children spent Sunday, June 7, 2009, at the Magnolia
River on the east side of Houston. On their way home that evening on Interstate

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10, Morales’s truck began to have serious mechanical problems. 1                       Morales
maneuvered the truck to her right and into the safety zone where the southbound
flyover of Beltway 8 merged onto westbound Interstate 10. Morales was able to
get most of the truck out of the right hand lane of Interstate 10, but part of the rear
end of Morales’s truck remained in that lane of traffic. Unable to move the truck
any further, Morales put her emergency flashers on and appellees transferred their
two children to the car of Morales’s brother, who had been following Morales
home from the river. Appellees, not wanting to abandon the truck on a busy
freeway, decided to remain with the truck to wait for a tow truck. Perez stood in
the back of the pick-up truck waving oncoming traffic away from the stalled truck
while Morales sat in the driver’s seat with her seatbelt fastened.

      June 7 was Barnhart’s birthday. That afternoon, Barnhart went to celebrate
her birthday at the Riverside Inn, described as a biker bar, restaurant, and marina
on the east side of Houston. Barnhart spent more than two hours that afternoon at
the Riverside Inn celebrating with about twenty acquaintances. Barnhart admitted
that she consumed two beers and a shot of Captain Morgan’s rum while at the
Riverside Inn. Barnhart left the Riverside Inn and was driving westbound on
Interstate 10 when she hit the back of Morales’s truck. Barnhart testified that she
never saw the truck, Perez, or Morales prior to the collision. Barnhart testified that
she did not swerve, apply her brakes, or take any other action to avoid hitting the
truck. According to Barnhart, she could not see because the setting sun was
shining in her eyes.

      Arturo Islas was merging onto Interstate 10 from Beltway 8 and he saw the
collision. Islas pulled over and went to the crash scene to render assistance. Islas
checked Perez’s condition, called 9-1-1, and then went to check on Barnhart, who

      1
          It was learned later that the truck’s drive shaft had become disconnected.

                                                 3
of his medical appointments. Perez testified about the impact his injuries have had
on his life. According to Perez, he still was experiencing pain at the time of trial.
He also testified that he does not have the same amount of strength he had before
the wreck, which has limited his ability to lift things. He also testified that he
cannot run or even walk very fast. Perez testified that his injuries have made him
feel “real bad” emotionally because he is so limited in what he can do. He also
testified that as a result of his injuries, he worried about how he is going to pay his
bills, whether he would ever walk again, and whether his life would ever return to
the way it was before the wreck.

      Perez’s treating orthopedic doctor, Jeffrey Reuben, testified during the trial.
Dr. Reuben testified that as a result of Perez’s injuries, he advised Perez in August
2009 that Perez should not be very active and should avoid doing any lifting,
bending, stooping, running, or jumping. Dr. Reuben examined Perez again in
October 2010. At that time, Perez’s pain in both his wrist and his ankle had
increased from the levels he was experiencing fourteen months before. According
to Dr. Reuben, this pain could be the result of increased activity or the result of
some heretofore unknown problem caused by the initial fractures. Dr. Reuben
determined that Perez had reduced flexion in his wrist but a normal range of
motion in his right ankle and foot. Dr. Reuben went on to testify that he believed
Perez was developing arthritic changes in his right wrist that would negatively
impact the activities of his daily living.

      At the conclusion of the evidence, the case was submitted to the jury, which
found in favor of appellees. The jury determined that Barnhart negligently caused
the wreck and her conduct rose to the level of gross negligence. The jury awarded
appellees compensatory damages and assessed exemplary damages against
Barnhart. The trial court signed a final judgment for appellees in the amount of

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      Barnhart’s Memorial Hermann medical records report that after she arrived
at the hospital, the staff treating her observed that Barnhart appeared intoxicated,
her speech was slurred, and she smelled of alcohol. Barnhart’s medical records
also indicate that she was uncooperative and had to be restrained. During her
treatment, the hospital took a blood sample and performed a blood serum alcohol
test approximately one hour and forty minutes after the wreck. Barnhart’s records
report the result of that test as .335 percent.

      Wayne Snodgrass, a medical doctor and toxicologist, explained during the
trial that an alcohol test conducted on whole blood would produce a result slightly
lower than a serum alcohol test. Dr. Snodgrass went on to explain that a blood
serum alcohol test result can be converted to the result that a blood alcohol test
would show. Dr. Snodgrass then performed that conversion and testified that
Barnhart’s blood alcohol level was .28 percent. Dr. Snodgrass also testified that
Barnhart’s blood alcohol level would have been higher at the time of the wreck and
he opined that her blood alcohol level at that point in time would have been .31
percent. Dr. Snodgrass testified that given Barnhart’s blood alcohol content, it was
medically impossible that she had only consumed two beers and a single shot of
rum. Dr. Snodgrass opined that Barnhart would have had to consume between 13
and 17 alcoholic drinks to reach that blood alcohol level.

      Dr. Snodgrass testified that the legal blood alcohol limit in Texas is .08
percent, and therefore Barnhart’s blood alcohol level was three and a half times
higher. Dr. Snodgrass opined that Barnhart would have been severely impaired as
a result of her alcohol consumption and should not have been driving.             Dr.
Snodgrass explained this was true despite descriptions in Barnhart’s medical
records that she was alert and oriented. According to Dr. Snodgrass, someone who
is a regular drinker, a person often described as able to hold their liquor, might not

                                            5
appear impaired, but the level of impairment is the same as for a person who has
no tolerance at all to alcohol. According to Dr. Snodgrass, a person driving a car
with a .28 percent blood alcohol level would be unable to comprehend that there
was a stalled vehicle ahead in time to maneuver around the stalled vehicle.

      During the trial, both Morales and Perez testified about the injuries they
received in the wreck as well as the adverse impact those injuries have had on their
lives. Morales testified that her back injury was painful and she attended physical
therapy for about two months in an effort to reduce the pain. Eventually, when the
pain did not subside, Morales received three steroid shots over a six-week period.
Morales testified that the steroid shots alleviated the pain for a period of time, but
the pain always returned. Morales also testified that she continued doing the
exercises she learned during physical therapy at home.

      Morales then turned to the impact her injury has had on her lifestyle.
According to Morales, she used to spend time with her children at the park, but she
could no longer do so because of her back pain. Morales also testified that she can
no longer lift heavy objects because of the pain.         Morales’s medical records
indicate that her injury impacted her life in other ways as well. The records show
that her back pain (1) prevented her from walking more than one-quarter mile, (2)
made it too painful to sit for more than 30 minutes or drive for more than an hour,
(3) eliminated her social life, (4) eliminated her sex life, and (5) negatively affected
her sleep. The records also note that, in addition to the physical limitations caused
by Morales’s back pain, she was experiencing feelings of anxiety, depression, and
sadness.

      Perez, who is right-handed, broke his right wrist and right ankle. As a result
of his injuries, Perez spent nearly two months in a wheelchair and was completely
dependent on Morales for his personal care. Morales also had to drive Perez to all

                                           6
of his medical appointments. Perez testified about the impact his injuries have had
on his life. According to Perez, he still was experiencing pain at the time of trial.
He also testified that he does not have the same amount of strength he had before
the wreck, which has limited his ability to lift things. He also testified that he
cannot run or even walk very fast. Perez testified that his injuries have made him
feel “real bad” emotionally because he is so limited in what he can do. He also
testified that as a result of his injuries, he worried about how he is going to pay his
bills, whether he would ever walk again, and whether his life would ever return to
the way it was before the wreck.

      Perez’s treating orthopedic doctor, Jeffrey Reuben, testified during the trial.
Dr. Reuben testified that as a result of Perez’s injuries, he advised Perez in August
2009 that Perez should not be very active and should avoid doing any lifting,
bending, stooping, running, or jumping. Dr. Reuben examined Perez again in
October 2010. At that time, Perez’s pain in both his wrist and his ankle had
increased from the levels he was experiencing fourteen months before. According
to Dr. Reuben, this pain could be the result of increased activity or the result of
some heretofore unknown problem caused by the initial fractures. Dr. Reuben
determined that Perez had reduced flexion in his wrist but a normal range of
motion in his right ankle and foot. Dr. Reuben went on to testify that he believed
Perez was developing arthritic changes in his right wrist that would negatively
impact the activities of his daily living.

      At the conclusion of the evidence, the case was submitted to the jury, which
found in favor of appellees. The jury determined that Barnhart negligently caused
the wreck and her conduct rose to the level of gross negligence. The jury awarded
appellees compensatory damages and assessed exemplary damages against
Barnhart. The trial court signed a final judgment for appellees in the amount of

                                             7
$606,077.99 and denied Barnhart’s motion for new trial. This appeal followed.

                                    ANALYSIS

      Barnhart brings nine issues on appeal, which we address in four groups.

I.    The trial court did not abuse its discretion when it admitted Barnhart’s
      medical records and Deputy Hughes’ crash report containing the results
      of Barnhart’s blood serum alcohol test.
      In her first two issues, Barnhart asserts the trial court abused its discretion
when it admitted her Memorial Hermann Hospital medical records without
redacting the results of her blood serum alcohol test and various handwritten notes
contained throughout the records. According to Barnhart, the trial court should not
have admitted the unredacted medical records because the blood serum alcohol test
results were not reliable or trustworthy since appellees did not introduce evidence
establishing a complete chain of custody for the blood sample. She also argues the
trial court should not have admitted the handwritten notes in the Memorial
Hermann medical records because she contends they are hearsay within hearsay.
Barnhart goes on to argue that the trial court should not have admitted Deputy
Hughes’ unredacted crash report because it reported Barnhart’s blood alcohol level
based on the Memorial Hermann Hospital blood serum alcohol test.

      A.    Standard of review

      The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007).   A trial court exceeds its discretion if it acts in an arbitrary or
unreasonable manner or without reference to guiding rules or principles. Caffe
Ribs, Inc. v. State, 328 S.W.3d 919, 927 (Tex. App.—Houston [14th Dist.] 2010,
no pet.) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)).
When reviewing matters committed to the trial court’s discretion, a reviewing

                                         8
court may not substitute its own judgment for that of the trial court. Id. Thus, the
question is not whether this Court would have admitted the evidence. Rather, an
appellate court will uphold the trial court’s evidentiary ruling if there is any
legitimate basis for the ruling, even if that ground was not raised in the trial court.
Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.]
2006, pet. denied) (op. on reh’g). Therefore, we examine all bases for the trial
court’s decision that are suggested by the record or urged by the parties. Id.

      A party seeking to reverse a judgment based on evidentiary error must prove
that the error probably resulted in rendition of an improper judgment, which
usually requires the complaining party to show that the judgment turns on the
particular evidence excluded or admitted.       Prestige Ford. Co. v. Gilmore, 56
S.W.3d 73, 78 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). To determine
whether excluded evidence probably resulted in the rendition of an improper
judgment, an appellate court reviews the entire record. Caffe Ribs, Inc., 328
S.W.3d at 927 (citing Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001)).

      B.       The trial court did not abuse its discretion when it admitted
               records containing Barnhart’s blood alcohol level.
      Barnhart’s only argument that the trial court abused its discretion when it
admitted the unredacted medical records and crash report is that the Rule 803(6)
and Rule 803(8) hearsay exceptions should not apply because the reported blood
alcohol level found in those documents lacked trustworthiness. See Tex. R. Evid.
803(6), (8).     Barnhart asserts the blood alcohol level lacked trustworthiness
because appellees did not establish a complete chain of custody for the blood
sample.    In a civil case, however, complaints about the failure to introduce
evidence establishing a complete chain of custody for the sample used in a blood


                                          9
alcohol test go to the weight to be given the evidence, not to its admissibility. See
Missouri-Kansas-Texas R.R. Co. v. May, 600 S.W.2d 755, 756 (Tex. 1980) (stating
complaints about report’s failure to identify person taking blood sample and
security measures taken to protect sample from contamination go to weight and
credibility of the record, not to its admissibility as a business record); March v.
Victoria Lloyds Ins. Co., 773 S.W.2d 785 788 (Tex. App.—Fort Worth 1989, writ
denied).

      To the extent Barnhart asks this Court to extend the chain-of-custody
requirements found in Texas criminal jurisprudence to those civil cases where the
plaintiff seeks exemplary damages, we conclude she did not preserve that
argument for our review because she did not ask for a limiting instruction when the
test result was admitted.      Barnhart argues the criminal chain of custody
requirements should apply here because gross negligence and exemplary damages
require a unanimous verdict and clear and convincing evidence—standards that
approach the standards found in criminal law. In making this argument, however,
she concedes that the blood alcohol test result was admissible for purposes of
appellees’ negligence claims because the burden of proof on those claims is only
by a preponderance of the evidence. When evidence is admissible for one purpose,
but not another, Texas Rule of Evidence 105 requires the opponent of the evidence
to request an instruction from the trial court limiting the scope of the evidence.
Tex. R. Evid. 105. The rule further provides that “in the absence of such request
the court’s action in admitting such evidence without limitation shall not be a
ground for complaint on appeal.” Id. Because Barnhart did not ask the trial court
for a limiting instruction, she cannot demonstrate the trial court abused its
discretion when it admitted the blood alcohol test results for all purposes. See
Barber v. Bison Bldg. Materials, Ltd., No. 14-07-00566-CV, 2008 WL 4787108 *5


                                         10
(Tex. App.—Houston [14th Dist.] Nov. 4, 2008, no pet.) (mem. op.) (when
evidence is admissible for one purpose but not another, the onus is on the objecting
party to request a limiting instruction to restrict the jury’s consideration of the
evidence to the proper purpose).

       C.     The trial court did not abuse its discretion when it admitted the
              handwritten part of the medical records over Barnhart’s hearsay
              objection.
       Barnhart also complains about the trial court’s admission of Plaintiff’s
Exhibit 18, Barnhart’s Memorial Hermann Hospital emergency room medical
records, without redacting the handwritten notes that hospital staff made on
preprinted hospital forms while treating Barnhart. The challenged handwritten
notes include comments that Barnhart appeared intoxicated, was uncooperative,
and had to be restrained by hospital staff in order to be treated for her injuries. In
Barnhart’s view, these handwritten notes are hearsay within hearsay and
inadmissible because there is no indication who wrote the notes or whether they
had personal knowledge of the event or condition, rendering the notes
untrustworthy. We disagree.

       Rule 803(6) of the Texas Rules of Evidence creates an exception to the
hearsay rule for

       A memorandum, report, record, or data compilation, in any form, of
       acts, events, conditions, opinions, or diagnoses, made at or near the
       time by, or from information transmitted by, a person with
       knowledge, if kept in the course of regularly conducted business
       activity, and if it was the regular practice of that business activity to
       make the memorandum, report, record, or data compilation, all as
       shown by the testimony of the custodian or other qualified witness, or
       by affidavit that complies with Rule 902(10),3 unless the source of
       3
         Rule 902(10) of the Texas Rules of Evidence allows business records to be self-
authenticated and admissible at trial under Rule 803(6) if they are accompanied by an affidavit
prepared by the custodian of records for the entity keeping the records as long as the affidavit
                                              11
       information or the method or circumstances of preparation indicate
       lack of trustworthiness.

Tex. R. Evid. 803(6).

       The challenged handwritten notes are found within medical records that
were accompanied by an affidavit prepared by the custodian of records for
Memorial Hermann Hospital in compliance with Rule 902(10). See Tex. R. Evid.
902(10). The custodian’s affidavit provided that all 34 pages of records contained
in Plaintiff’s Exhibit 18 were business records of Memorial Hermann Hospital that
were kept in the regular course of the hospital’s business and that the records were
made by an employee, representative, or a physician on the hospital’s medical staff
who had personal knowledge of the act, event, or condition being recorded. There
is no requirement that the custodian preparing the affidavit be the creator of the
records or have personal knowledge of the information recorded in the document
but only knowledge of how the records were prepared. In re E.A.K., 192 S.W.3d
133, 142 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

       As Rule 803(6) makes clear, the hearsay exception applies to all business
records regardless of their form. See Tex. R. Evid. 803(6).              The fact that some
parts of the challenged records were handwritten notes on preprinted forms
designed to be filled in by the hospital’s staff while evaluating and treating
emergency room patients does not take them outside of the business records
hearsay exception, so long as all requirements of that exception are met. See In re
E.A.K., 192 S.W.3d at 142 (stating record custodian’s testimony and the face of the
challenged document support conclusion that the record was created by the entity
claiming the document as a business record). Here, the challenged records, along
with the business records affidavit, establish that the handwritten notes were made

addresses the requirements found in Rule 803(6). See Tex. R. Evid. 902(10)(a).

                                              12
2008, no pet.) (citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)).

      The Merriam-Webster Dictionary, New Edition defines physical as “of or
relating to the body.” THE MERRIAM-WEBSTER DICTIONARY 543 (New Edition
2004). The same dictionary defines impair to mean “to diminish in quantity, value,
excellence, or strength.” Id. at 359. More generally, Texas courts have recognized
that physical impairment damages can compensate for physical injuries that affect
the plaintiff’s activities or lead to loss of enjoyment of life. See Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 765–66, 772 (Tex. 2003). With that
understanding of the meaning of physical impairment, we turn to the question
whether factually sufficient evidence supports the jury’s determination of Morales
and Perez’s physical impairment damages.

      B.     The evidence supporting Morales’s past physical impairment
             damages is factually sufficient.
      In support of her contention that the evidence is factually insufficient,
Barnhart cites evidence indicating that Morales, despite her injuries, continued
working after the wreck, lifted objects, and even performed all tasks that the
incapacitated Perez required in the weeks following the wreck. In Barnhart’s view,
this evidence renders the jury’s award of past physical impairment damages to
Morales factually insufficient.

      The evidence in the record establishes that Morales suffered two herniated
discs in her lower back as a result of the accident and that they caused Morales a
great deal of pain. Although we recognize that the jury awarded Morales damages
for physical pain and mental anguish, there is also evidence that the herniations
and resulting pain affected Morales’s daily life in several ways. This evidence
includes Morales’s testimony that prior to the accident she used to spend time with
her children at the park, but she could no longer do that as a result of her back pain.

                                          15
did not have the burden of proof, we may set aside the verdict only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. See Ellis, 971 S.W.2d at 407; Nip v. Checkpoint Systems, Inc., 154 S.W.3d
767, 769 (Tex. App.—Houston [14th Dist.] 2004, no pet.).             The amount of
evidence necessary to affirm is far less than the amount necessary to reverse a
judgment. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied). This Court is not a factfinder. Ellis, 971
S.W.2d at 407. Instead, the jury is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Pascouet, 61 S.W.3d at 615–16.
Therefore, we may not pass upon the witnesses’ credibility or substitute our
judgment for that of the jury, even if the evidence would also support a different
result. Id. If we determine the evidence is factually insufficient, we must detail
the evidence relevant to the issue and state in what regard the contrary evidence
greatly outweighs the evidence in support of the verdict; we need not do so when
affirming a jury’s verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680,
681 (Tex. 2006) (per curiam).

      The jury was asked to determine an amount that would reasonably
compensate Morales and Perez for various elements of damages including physical
impairment sustained in the past and that in reasonable probability would be
sustained in the future. The jury was instructed not to include damages found in
response to one element in another element of damages.           The jury was also
instructed that if a word was used in the charge in a way that was different from its
ordinary meaning, the trial court would provide a correct legal definition. Because
the charge did not define physical impairment, we measure the sufficiency of the
evidence against the commonly-understood meaning of physical impairment. See
Kroger Co. v. Brown, 267 S.W.3d 320, 322–23 (Tex. App.—Houston [14th Dist.]


                                         14
2008, no pet.) (citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)).

      The Merriam-Webster Dictionary, New Edition defines physical as “of or
relating to the body.” THE MERRIAM-WEBSTER DICTIONARY 543 (New Edition
2004). The same dictionary defines impair to mean “to diminish in quantity, value,
excellence, or strength.” Id. at 359. More generally, Texas courts have recognized
that physical impairment damages can compensate for physical injuries that affect
the plaintiff’s activities or lead to loss of enjoyment of life. See Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 765–66, 772 (Tex. 2003). With that
understanding of the meaning of physical impairment, we turn to the question
whether factually sufficient evidence supports the jury’s determination of Morales
and Perez’s physical impairment damages.

      B.     The evidence supporting Morales’s past physical impairment
             damages is factually sufficient.
      In support of her contention that the evidence is factually insufficient,
Barnhart cites evidence indicating that Morales, despite her injuries, continued
working after the wreck, lifted objects, and even performed all tasks that the
incapacitated Perez required in the weeks following the wreck. In Barnhart’s view,
this evidence renders the jury’s award of past physical impairment damages to
Morales factually insufficient.

      The evidence in the record establishes that Morales suffered two herniated
discs in her lower back as a result of the accident and that they caused Morales a
great deal of pain. Although we recognize that the jury awarded Morales damages
for physical pain and mental anguish, there is also evidence that the herniations
and resulting pain affected Morales’s daily life in several ways. This evidence
includes Morales’s testimony that prior to the accident she used to spend time with
her children at the park, but she could no longer do that as a result of her back pain.

                                          15
Morales also testified that she can no longer lift heavy objects because of her back
pain. The record also reveals evidence that the pain resulting from her herniated
discs (1) prevented her from walking more than one-quarter mile, (2) made it too
painful to sit for more than 30 minutes or to drive for more than an hour, (3)
eliminated her social life, (4) eliminated her sex life, and (5) negatively affected
her sleep. While Barnhart is correct that the record indicates Morales carried on
with aspects of her life after the wreck, the jury also heard Morales explain that she
had no choice but to continue working to provide for her family despite her painful
back. The jury could also infer from the evidence that Morales took care of Perez
out of necessity despite the pain she was experiencing.

      It was the jury’s responsibility to resolve any conflicts in the evidence and to
judge the credibility of the witnesses and the weight to be given their testimony.
Kamat v. Prakash, 420 S.W.3d 890, 904 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). Having examined all of the evidence in the record, we conclude the jury’s
award of past physical impairment damages to Morales was not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. We
overrule Barnhart’s third issue.

      C.     The evidence supporting Perez’s future physical impairment
             damages is factually sufficient.
      In her fourth issue, Barnhart asserts the evidence is factually insufficient to
support the jury’s award of $20,000 to Perez for physical impairment he would
sustain in the future.    In this issue, Barnhart points to evidence that Perez
eventually returned to work after the wreck as well as short videos taken by a
private investigator showing Perez carrying a laundry basket through a parking lot
without limping and “without so much as a grimace or anguish on his face.”
Barnhart also discounts the opinion of Perez’s treating orthopedic doctor that Perez


                                         16
would likely experience degenerative changes in his wrist as a result of the fracture
he suffered in the wreck because, by the time of the trial, the doctor had not seen
Perez for nearly a year. Barnhart argues the evidence she cites establishes that
Perez was carrying on with his life and renders the evidence supporting the jury’s
award of future physical impairment damages factually insufficient.

       When evaluating the factual sufficiency of the evidence, we consider all the
evidence. Therefore, when conducting a factual sufficiency review, we must also
take into account evidence supporting the jury’s award that Barnhart does not
mention in her argument. This evidence includes the undisputed fact that Perez,
who is right-handed, broke his right wrist and right ankle in the wreck. It also
includes Perez’s testimony that he still was experiencing pain at the time of the
trial, that he does not have the same of amount of strength as he had before the
wreck, and that this has limited his ability to lift things. The jury was entitled to
believe this testimony despite the brief video introduced by Barnhart. 5 The jury
also heard Perez’s testimony that he cannot run or even walk very fast. In addition,
the jury heard the testimony of Perez’s treating orthopedic surgeon, Dr. Reuben, in
its entirety, which is summarized above.                    This testimony included his
determination that Perez had reduced flexion in his wrist, his opinion that Perez
was developing arthritic changes in the wrist that would negatively impact the
activities of his daily living, and his opinion that in the future Perez would
experience degenerative changes in his right wrist that might lead to the wrist
having to be fused.


       5
          The private investigator testified that she was assigned to follow appellees on two days
for a total of twenty hours. She further testified that during those twenty hours she took videos
for a total time of approximately twenty minutes, the majority of which was done for integrity
purposes to verify she was on the job. The actual video shown during the trial lasted less than
three minutes and showed Morales carrying a child and Perez carrying a laundry basket.

                                               17
       While there was conflicting evidence on Perez’s physical impairment, the
jury was entitled to believe the testimony of one witness and not that of another.
The jury was also empowered to resolve any inconsistencies in the evidence and
any witness’s testimony. Preston Reserve, L.L.C. v. Compass Bank, 373 S.W.3d
652, 658 (Tex. App.—Houston [14th Dist.] 2012, no pet.). That it resolved any
conflicts or inconsistencies in the evidence against Barnhart does not render the
evidence factually insufficient. We hold the evidence supporting the jury’s future
physical impairment award to Perez is factually sufficient and therefore overrule
Barnhart’s fourth issue on appeal.

III.   Barnhart may not separately challenge the sufficiency of the evidence of
       future mental anguish because the jury awarded a lump sum for both
       future physical pain and mental anguish.
       Barnhart, in her fifth issue, challenges the legal and factual sufficiency of the
evidence supporting the jury’s award of future mental anguish damages to
Morales. In her sixth issue, Barnhart contends the evidence is legally and factually
insufficient to support the jury’s award of future mental anguish damages to Perez.
Because both issues concern the sufficiency of evidence supporting mental anguish
damages, we address them together.

       Questions five and six of the jury charge asked the jury to determine “what
amount of money, if paid now in cash, would fairly and reasonably compensate
[each appellee] for [his/her] injuries, if any, that resulted from the occurrence in
question?” Each question then submitted various elements of damages, including
“physical pain and mental anguish that, in reasonable probability [each appellee]
will sustain in the future?” This damage element was then followed by a single
answer blank. In question five, the jury awarded a lump sum of $10,000 to
Morales for her future physical pain and mental anguish. In question six, it
awarded a lump sum of $22,500 to Perez for his future physical pain and mental
                                          18
the trial court on notice of a complaint that the element of future mental anguish
damages should not be submitted in a single broad-form submission along with
future physical pain because there was no evidence of the element of future mental
anguish. Cf. Texas Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536
(Tex. 2012) (holding defendant’s objection to lumping different actions together
was sufficient to place trial court on notice that broad-form question submitted
valid and invalid theories of liability even though defendant did not mention
Casteel).

      Because she did not object to the submission of questions five and six on
this basis, Barnhart is limited to challenging the sufficiency of the evidence
supporting the lump-sum award for physical pain and mental anguish to Morales
and Perez. Mariner Health Care, 321 S.W.3d at 211; Ake v. Monroe, No. 04-05-
00751-CV, 2006 WL 3017181, at *4 (Tex. App.—San Antonio Oct. 25, 2006, no
pet.) (mem. op.) (citing Thomas v. Oldham, 895 S.W.2d 352, 359–60 (Tex. 1995));
Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921–22 (Tex. App.—Beaumont
1999, pet. denied); Haryanto v. Saeed, 860 S.W.2d 913, 922 (Tex. App.—Houston
[14th Dist.] 1993, writ denied).   On appeal, Barnhart does not challenge the
sufficiency of the evidence supporting the damage awards for future physical pain,
nor does she challenge the sufficiency of the evidence supporting the lump-sum
awards for future physical pain and mental anguish as a whole. We therefore
overrule her fifth and sixth issues. Ake, 2006 WL 3017181, at *4 (rejecting legal
and factual sufficiency challenges because appellant did not challenge on appeal
sufficiency of evidence supporting lump-sum amount awarded for physical pain
and mental anguish); Haryanto, 860 S.W.2d at 922 (same).




                                       20
the trial court on notice of a complaint that the element of future mental anguish
damages should not be submitted in a single broad-form submission along with
future physical pain because there was no evidence of the element of future mental
anguish. Cf. Texas Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536
(Tex. 2012) (holding defendant’s objection to lumping different actions together
was sufficient to place trial court on notice that broad-form question submitted
valid and invalid theories of liability even though defendant did not mention
Casteel).

      Because she did not object to the submission of questions five and six on
this basis, Barnhart is limited to challenging the sufficiency of the evidence
supporting the lump-sum award for physical pain and mental anguish to Morales
and Perez. Mariner Health Care, 321 S.W.3d at 211; Ake v. Monroe, No. 04-05-
00751-CV, 2006 WL 3017181, at *4 (Tex. App.—San Antonio Oct. 25, 2006, no
pet.) (mem. op.) (citing Thomas v. Oldham, 895 S.W.2d 352, 359–60 (Tex. 1995));
Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921–22 (Tex. App.—Beaumont
1999, pet. denied); Haryanto v. Saeed, 860 S.W.2d 913, 922 (Tex. App.—Houston
[14th Dist.] 1993, writ denied).   On appeal, Barnhart does not challenge the
sufficiency of the evidence supporting the damage awards for future physical pain,
nor does she challenge the sufficiency of the evidence supporting the lump-sum
awards for future physical pain and mental anguish as a whole. We therefore
overrule her fifth and sixth issues. Ake, 2006 WL 3017181, at *4 (rejecting legal
and factual sufficiency challenges because appellant did not challenge on appeal
sufficiency of evidence supporting lump-sum amount awarded for physical pain
and mental anguish); Haryanto, 860 S.W.2d at 922 (same).




                                       20
IV.   Barnhart failed to preserve her argument that the evidence is factually
      insufficient to support the jury’s gross negligence findings in her motion
      for new trial.
      Barnhart, in her seventh issue, asserts the evidence is factually insufficient to
support the jury’s gross negligence findings in response to jury questions 7 and 8.
A complaint that the evidence is factually insufficient to support a jury’s finding
must be preserved through the filing of a motion for new trial. Tex. R. Civ. P.
324(b)(2); Tex. R. App. P. 33.1(a); Harris Cnty. v. Gibbons, 150 S.W.3d 877, 881
n.4 (Tex. App.—Houston [14th Dist.] 2004, no pet.).          While Barnhart filed a
motion for new trial, she did not include any contention that the evidence was
factually insufficient to support the jury’s gross negligence findings. She has
therefore failed to preserve this issue for appellate review. Gibbons, 150 S.W.3d at
881 n.4.

V.    The final judgment’s award of exemplary damages is neither excessive
      nor does it violate Barnhart’s constitutional rights.
      In response to Jury Questions 7 and 8 the jury found that Barnhart was
grossly negligent.     It then determined that $350,000 should be assessed as
exemplary damages against Barnhart and awarded to Morales and Perez. Finally,
the jury apportioned that exemplary damages award as sixty percent to Perez and
forty percent to Morales.       The trial court, in its judgment, reduced Perez’s
exemplary damages to $200,000 to comply with the statutory cap found in the
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §
41.008(b)(2)   (West    2015)     (capping     exemplary   damages    at   $200,000).
Accordingly, it awarded $200,000 in exemplary damages to Perez and $140,000 to
Morales, for a total award of $340,000.

      In her eighth issue, Barnhart argues the award of exemplary damages was
excessive. In her ninth issue, Barnhart contends the award of exemplary damages

                                          21
violates her constitutional due process rights because it is grossly excessive. We
address each issue in turn.

      A.     The $340,000 exemplary damages award is not excessive.

      Barnhart begins her eighth issue by recognizing that the determination of the
amount of exemplary damages to award depends on the facts of the case. She goes
on to assert that the evidence in this case does not support the imposition of a
$340,000 exemplary damage award against her, making the award excessive. We
disagree.

      We review the excessiveness of an exemplary damages award as a factual
sufficiency challenge.    Ellis, 971 S.W.2d at 406.      We will not set aside an
exemplary damages award unless, after reviewing the entire record, we determine
the exemplary damages award is so contrary to the overwhelming weight and
preponderance of the evidence as to be clearly wrong and manifestly unjust.
Trans. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994). When determining
whether an exemplary damage award is excessive, we consider the following
factors: (1) the nature of the wrong; (2) the character of the conduct involved; (3)
the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the
parties; and (5) the extent to which such conduct offends a public sense of justice
and propriety. Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981). The
Civil Practice and Remedies Code added an additional factor, the defendant’s net
worth, to the list. Tex. Civ. Prac. & Rem. Code Ann. § 41.011 (West 2015). The
jury charge in this case instructed the jury to consider each of these factors. We
must detail the relevant evidence and explain why that evidence either supports or
does not support the exemplary damage award in light of these factors. Hernandez
v. Sovereign Cherokee Nation Tejas, 343 S.W.3d 162, 168 (Tex. App.—Dallas
2011, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 41.013 (West 2015)

                                         22
(requiring reviewing court to include in opinion reasons for affirming or reversing
an award of exemplary damages)).

      The first two factors ask about the nature of the wrong and the character of
the conduct involved. While Barnhart argues on appeal that undisputed evidence
established that she was not intoxicated the evening of the crash and that she was
driving with due care for the safety of herself and others, the jury heard evidence
that she was instead driving while intoxicated in violation of the law prior to the
crash. This includes evidence that her blood alcohol level at the time of the wreck
was .31 percent, almost four times the .08 percent legal limit in Texas. The jury
also heard evidence that, to reach such an elevated blood alcohol level, Barnhart
had to consume between thirteen and seventeen alcoholic beverages before getting
into her vehicle to drive home. The jury also heard evidence that a person with a
.28 percent blood alcohol level would have been severely impaired and should not
have been driving. They also heard testimony that a person with a .28 percent
blood alcohol level would be unable to comprehend that there was a stalled vehicle
ahead and react to that information in time to maneuver around the stalled vehicle.
Based on this evidence, the jury could have determined that Barnhart’s conduct
was driving while intoxicated and that her behavior was especially egregious. We
conclude the first two Kraus factors support the imposition of exemplary damages.

      Turning to the third factor, the degree of culpability of the wrongdoer,
evidence was admitted that Barnhart was subjectively aware of the serious risks
involved when a person drives while intoxicated. Barnhart herself volunteered that
she had previously been convicted of driving while intoxicated and had been
forced to attend AA and MADD meetings discussing the risks involved when one
drives while intoxicated. Barnhart also testified that she was independently aware
of the risks involved when someone drives while intoxicated. There was also

                                        23
evidence that, despite her knowledge of the risks involved in driving while
intoxicated, Barnhart drank thirteen to seventeen alcoholic beverages before
getting behind the wheel of her daughter’s car to drive home the evening of the
crash. We conclude that, based on this evidence, the jury could reasonably have
decided that Barnhart had a high degree of culpability for her actions that day. We
hold the third Kraus factor supports the imposition of exemplary damages against
Barnhart.

      The fourth factor addresses the situation and sensibilities of the parties. The
evidence established that Barnhart spent a good part of the day of the wreck
drinking to celebrate her birthday with twenty acquaintances but chose to get into a
car to drive home despite being highly intoxicated. Morales and Perez were
travelling home on a busy freeway when their truck broke down. They moved the
truck as far out of the lane of traffic as possible and then sent their children away in
another car.    The evidence also showed that Morales and Perez, rather than
abandoning their truck on a busy freeway, elected to stay and then tried to warn
oncoming drivers of the hazardous situation by using the truck’s emergency
flashers and waving them away. There was also evidence that both Morales and
Perez suffered painful injuries in the wreck, they were still experiencing injury-
related problems at the time of trial, and both were likely to experience pain and
future problems related to the injuries they had suffered. Based on this evidence,
the jury could have decided that the situation and sensibilities of the parties
weighed in favor of Morales and Perez and against Barnhart. The fourth Kraus
factor supports the imposition of exemplary damages against Barnhart.

      The fifth Kraus factor examines the extent to which the conduct at issue
offends a public sense of justice and propriety. There is a strong public policy in
the State of Texas against driving while intoxicated. See Dabney v. Home Ins. Co.,

                                          24
643 S.W.2d 386, 388 (Tex. 1982) (recognizing the existence of a strong public
policy against driving while intoxicated and the public’s concern over the large
number of serious accidents and injuries which result from driving while
intoxicated). There was ample evidence that Barnhart was highly intoxicated at the
time of the wreck, and the jury could easily have concluded that her behavior
offended a public sense of justice and propriety. The fifth Kraus factor thus
supports the imposition of exemplary damages against Barnhart.

      There is no evidence in the record related to the sixth factor, Barnhart’s net
worth. While evidence of net worth is relevant in determining the amount of
exemplary damages to impose on a defendant, it is not required that a plaintiff
introduce such evidence. Durban v. Guajardo, 79 S.W.3d 198, 210–11 (Tex.
App.—Dallas 2002, no pet.). Because a jury is not required to consider evidence
of the defendant’s net worth before imposing exemplary damages, we conclude the
sixth factor does not weigh for, or against, the award of exemplary damages in this
case. See In re Jacobs, 300 S.W.3d 35, 50 n. 8 (Tex. App.—Houston [14th Dist.]
2009, orig. proceeding).

      Having reviewed the complete record in light of the Kraus factors, we hold
the evidence supports the amount of exemplary damages awarded and hold that
they are not excessive. We overrule Barnhart’s eighth issue.

      B.    The $340,000 exemplary damages award does not violate
            Barnhart’s due process rights.
      Barnhart, in her ninth and final issue on appeal, contends the $340,000
award of exemplary damages violates the Due Process Clause of the Fourteenth
Amendment, which prohibits the imposition of grossly excessive or arbitrary
punishments on a defendant.        See U.S. Const. amend. XIV, § 1.             The
constitutionality of exemplary damages is a legal question, which we review de

                                        25
novo. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 307 (Tex. 2006). The
Supreme Court of the United States has directed us to review an award of
exemplary damages for constitutional excessiveness by using three guideposts.
Bennett v. Reynolds, 315 S.W.3d 867, 873 (Tex. 2010) (citing BMW of N. Am., Inc.
v. Gore, 517 U.S. 559, 568, 575, 580, 583 (1996)). These guideposts are: (1) the
degree of reprehensibility of the defendant’s conduct; (2) the disparity between the
actual or potential harm suffered by the plaintiff and the exemplary damages
awarded; and (3) the difference between the exemplary damages awarded by the
jury and the civil penalties authorized or imposed in comparable cases.          Id.
“Exacting appellate review” employing these guideposts is necessary to ensure that
exemplary damages are “based upon an application of law, rather than a
decisionmaker’s caprice.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 418 (2003) (internal quotation marks omitted).

      The first guidepost—the reprehensibility of the defendant’s conduct—is the
most important. Id. at 874 (citing Gore, 517 U.S. at 575). Within that first
guidepost, we consider five nonexclusive factors: (1) whether the harm inflicted
was physical rather than economic; (2) whether the tortious conduct showed an
indifference to or a reckless disregard for the health and safety of others; (3)
whether the target of the conduct had financial vulnerability; (4) whether the
conduct involved repeated actions, not just an isolated incident; and (5) whether
the harm resulted from intentional malice, trickery, or deceit, as opposed to mere
accident. Id. (citing Campbell, 538 U.S. at 419; Gore, 527 U.S. at 576–77)). One
factor alone may not be sufficient to sustain an exemplary damages award on
appeal, and the absence of all of them renders an exemplary damages award
suspect. Id. While a reviewing court must presume that a plaintiff has been made
whole for his or her injuries by the compensatory damages award, “exemplary


                                        26
See McCullough v. Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 915 (Tex.
App.—Dallas 2014, pet. denied) (affirming exemplary damages award that slightly
exceeded the 4:1 ratio when three out of the five reprehensibility factors were
present).

      The third guidepost requires an examination of the difference between the
exemplary damages awarded by the jury and the civil and criminal penalties
authorized or imposed in comparable cases.        Bennett, 315 S.W.3d at 881–82
(examining criminal penalties due to lack of comparable civil penalty before
concluding the third guidepost offered little guidance to the analysis). Barnhart, as
a result of driving with a .31 percent blood alcohol level, could have been
prosecuted for driving while intoxicated, a Class A misdemeanor. See Tex. Penal
Code Ann. §§ 12.21, 49.04(d), 49.09(a) (West 2011) (providing that driving while
intoxicated is a Class A misdemeanor if the defendant has an alcohol concentration
level of 0.15 or higher or if the defendant has been previously convicted of driving
while intoxicated). If found guilty, Barnhart could be fined up to $4,000 and
sentenced to up to one year in jail. Id. While it is difficult, if not impossible, to
reasonably compare a monetary penalty with any term of imprisonment, the Penal
Code makes it clear that driving while intoxicated is a serious offense.         See
Bennett, 315 S.W.3d at 881 n.73 (cautioning against comparing a monetary penalty
with a period of incarceration). In light of the seriousness of Barnhart’s conduct,
we conclude the third guidepost supports the exemplary damages award.

      After evaluating the evidence in light of the guideposts, we hold the
exemplary damages awarded here do not cross the line of constitutional propriety
and therefore do not violate Barnhart’s Due Process rights.            We overrule
Barnhart’s ninth issue.



                                         28
See McCullough v. Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 915 (Tex.
App.—Dallas 2014, pet. denied) (affirming exemplary damages award that slightly
exceeded the 4:1 ratio when three out of the five reprehensibility factors were
present).

      The third guidepost requires an examination of the difference between the
exemplary damages awarded by the jury and the civil and criminal penalties
authorized or imposed in comparable cases.        Bennett, 315 S.W.3d at 881–82
(examining criminal penalties due to lack of comparable civil penalty before
concluding the third guidepost offered little guidance to the analysis). Barnhart, as
a result of driving with a .31 percent blood alcohol level, could have been
prosecuted for driving while intoxicated, a Class A misdemeanor. See Tex. Penal
Code Ann. §§ 12.21, 49.04(d), 49.09(a) (West 2011) (providing that driving while
intoxicated is a Class A misdemeanor if the defendant has an alcohol concentration
level of 0.15 or higher or if the defendant has been previously convicted of driving
while intoxicated). If found guilty, Barnhart could be fined up to $4,000 and
sentenced to up to one year in jail. Id. While it is difficult, if not impossible, to
reasonably compare a monetary penalty with any term of imprisonment, the Penal
Code makes it clear that driving while intoxicated is a serious offense.         See
Bennett, 315 S.W.3d at 881 n.73 (cautioning against comparing a monetary penalty
with a period of incarceration). In light of the seriousness of Barnhart’s conduct,
we conclude the third guidepost supports the exemplary damages award.

      After evaluating the evidence in light of the guideposts, we hold the
exemplary damages awarded here do not cross the line of constitutional propriety
and therefore do not violate Barnhart’s Due Process rights.            We overrule
Barnhart’s ninth issue.



                                         28
                                       CONCLUSION

      Having overruled each of the issues raised by Barnhart in this appeal, we
affirm the trial court’s judgment.


                                 /s/            J. Brett Busby
                                                Justice


Panel consists of Justices Boyce, Busby, and Wise.




                                           29
