Affirmed and Majority and Dissenting Opinions filed October 15, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00440-CV

                    ROEL SAENZ-GUERRERO, Appellant

                                            V.

                          JERRY GARDNER, Appellee

                    On Appeal from the 269th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-54364

                            DISSENTING OPINION

      The sole issue in this appeal challenges the use of the word “injuries” versus
“occurrence” in the jury charge. Appellant contends the jury charge question did not
accurately state the law because the instructions in the Texas Pattern Jury Charge
recommends the use of “injuries” rather than “occurrence” when there is no claim
of proportionate responsibility, and the pleadings and evidence did not raise a
question of proportionate responsibility.
      I acknowledge Appellant did not specify the plural form of “injuries” imposed
an improper predicate finding that all of Saenz-Guerrero’s injuries were proximately
caused by Gardner’s negligence. However, the failure of the trial court to use
“occurrence” rather than “injuries”, or to further define “injuries”, failed to fairly
place the disputed issues before the jury. Because this resulted in an improper
judgment, I dissent.

      This case involved multiple injuries. The term “injuries” was not defined in
the jury instructions. The Appellant claimed all of the injuries were caused by the
occurrence; Appellee’s biomechanical expert opined some, but not all, of the
claimed injuries were consistent with the force of the impact. Appellee’s retained
expert, Dr. Greider, reviewed the medical records of Appellant and opined that
medical treatment by Appellant’s orthopedic surgeons was unnecessary, but
conceded Appellant’s emergency room treatment was necessary.

      As noted by the majority, the jury was confused by the term “injuries” in jury
charge question no. 1, and asked which specific injuries the charge question referred
to. An improper instruction is especially likely to result in an unfair trial when the
evidence is “sharply conflicting” on the issue presented. Quantum Chem. Corp. v.
Toennies, 47 S.W.3d 473, 480 (Tex. 2001); see also Timberwalk Apartments
Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (“vigorous evidentiary
dispute”); Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995)
(“serious dispute ... vigorously and convincingly disputed”).

             An incorrect jury question is only grounds for reversal if it
      probably caused the rendition of an improper judgment. Tex. R. App.
      P. 44.1(A); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480
      (Tex. 2001). In determining whether charge error probably caused
      rendition of an improper judgment, we analyze the entire record.
      Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756
      (Tex. 1998).

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       In this case, negligence was not strongly disputed; Appellee admitted fault for
the collision. The injuries suffered by Appellant were “vigorously disputed”, and the
record supports this conclusion. The record further supports the confusion by the
jury. During deliberations, the jury sent out a note asking the trial court: “Can you
clarify the term ‘injuries’ in question? What specific injuries, if any, does this refer
to?”

       The cases cited in the majority opinion support this conclusion. Tex. Dep’t of
Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990), is a parental termination
case, during which a single question for termination of the parent-child relationship
for each child was presented to the jury. In that case, the Petitioner complained of
the broad form submission without including specific grounds for the terminations
in each question. Further, as the Supreme Court noted in its opinion, the terms
contained in the charge questions were clearly defined in the instructions to the jury,
including the definitions of “termination”, “clear and convincing evidence”, and
“endanger”, and the jury was given a list of some of the factors from Holley v.
Adams, 544 SW 2d 367, 371-72 (Tex. 1976), to consider in determining the best
interest of the child. Id. at 648. There was not a definition of injuries in the trial
court’s charge.

       Campbell v. State, 125 SW 3d 1, 7 (Tex. App.—Houston [14th Dist.] 2002,
no pet.), was a civil proceeding extending Campbell’s involuntary commitment, a
statutory cause of action. Our court reversed and remanded for a new trial. We
determined the jury question in the charge—lacking a complete definition of “clear
and convincing evidence”—probably resulted in an improper judgment. The charge
presented to us in this appeal had no definition of “injuries”, which was obviously
necessary for the jury to render a fair and just decision.



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      Although the trial court’s use of “injuries” rather than” occurrence” would not
be erroneous in every case, in this instance, based on the strongly disputed medical
evidence, I would hold the trial court erred. Because that error probably caused the
rendition of an improper judgment, the error is reversible.




                                       /s/       Margaret “Meg” Poissant
                                                 Justice




Panel consists of Justices Christopher, Hassan, and Poissant. (Hassan, J. majority).




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