TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00230-CV
Elsie O. Jones, Appellant
v.
Jose G. Ramirez-Rodriguez, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-13-002528, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
Elsie O. Jones, acting pro se, appeals the trial court’s take-nothing judgment rendered
on a jury verdict in favor of Jose G. Ramirez-Rodriguez. In five issues, Jones challenges the
sufficiency of the evidence to support the jury’s finding of no negligence and the trial court’s
exclusion of certain exhibits. We affirm.1
BACKGROUND
Jones sued Rodriguez in justice court. After a jury verdict in Rodriguez’s favor in
justice court, Jones appealed to county court. Her claims for damages were based on allegations that
Rodriguez’s vehicle, a blue Suburban, struck her parked vehicle in April 2012 when Rodriguez’s
1
Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
vehicle was leaving an adjacent parking space in the apartment complex parking lot where the parties
lived. She also alleged that Rodriguez improperly blocked her from parking in her assigned
“privileged” parking spot and was negligent when he allowed children under his control to vandalize
Jones’s parked vehicle in October 2012.
At the jury trial in county court, Jones called herself and her husband to testify about
the incident in April 2012. They testified that Jones parked her vehicle in the parking space next to
the space in which Rodriguez’s Suburban was parked, and they discovered about one hour later that
Jones’s vehicle had been damaged and Rodriguez’s Suburban was no longer in the adjacent parking
space. Jones thereafter called the police. At the time the police arrived, Jones’s daughter’s car was
in the parking spot adjacent to Jones’s vehicle. The police were able to locate Rodriguez, and he
told the police that he did own the Suburban but that “[he] didn’t hit anybody’s car.” No citation or
charges resulted from the police’s investigation. Jones’s admitted exhibits were photographs of
Rodriguez’s vehicle and the parking lot. According to Jones’s husband, the photographs of
Rodriguez’s Suburban showed “our blue paint on the right front corner bumper,” Rodriguez
subsequently replaced the Suburban’s bumper, and Jones attempted to schedule an expert to inspect
Rodriguez’s Suburban but “defendant’s counsel canceled each time not allowing the expert to do his
job proficiently.” Jones provided similar testimony about the April 2012 incident and also testified
about the incidents in October 2012.
Rodriguez did not call any witnesses and moved for directed verdict. The trial court
denied his motion and submitted the case to the jury. The jury answered “no” to Question 1, which
asked, “Did the negligence, if any, of [Rodriguez] proximately cause the occurrence in question?”
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Because the jury answered “no,” it did not answer any other questions. Jones filed a motion for
judgment notwithstanding the verdict and a motion for new trial. The trial court overruled both
motions, and this appeal followed.
ANALYSIS
Sufficiency of Evidence
In her first, fourth, and fifth issues, Jones challenges the evidence to support the jury’s
answers to the questions in the charge. In her first issue, she urges that the evidence does not support
the jury’s answers “[b]ase[d] on preponderance of the evidence.” To support this argument, she cites
the trial court’s denial of Rodriguez’s motion for directed verdict and the trial court’s statement that
there “was enough evidence to get to the jury.” In her fourth issue, she urges that the jury should
have awarded her damages “for her personal property and her privileged parking and parental
liability . . . because she testified that she was the witness that saw the child” who vandalized her car
and “about her allotted parking place.” In her fifth issue, she contends that Rodriguez failed to
present evidence “showing that his vehicle did not have [her] paint on his vehicle” or “pictures
showing [his vehicle] before and after [the April 2012 incident].”
Although it is not clear from her briefing, we construe her arguments as legal
and factual sufficiency challenges. See Tex. R. App. P. 38.9; Washington v. Bank of N.Y.,
362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.) (construing pro se brief liberally). When
the party with the burden of proof attacks the legal sufficiency of the evidence to support a jury
finding, the party “must demonstrate on appeal that the evidence establishes, as a matter of law, all
vital facts in support of the issue.” See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001);
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see City of Keller v. Wilson, 168 S.W.3d 802, 810, 823 (Tex. 2005) (describing legal sufficiency
standard of review). “When a party attacks the factual sufficiency of an adverse finding on an issue
on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is
against the great weight and preponderance of the evidence.” Dow Chem., 46 S.W.3d at 242. We
“must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so
weak or if the finding is so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust.” Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986));
see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard
of review).
Although Jones presented some evidence to support her theory that Rodriguez
negligently damaged her vehicle when his Suburban vacated the adjacent parking spot and that
children later vandalized her car, there was no evidence that: (i) Rodriguez was the driver of the
Suburban when it left the parking lot, (ii) the Suburban was being driven negligently when it left the
parking space, or (iii) Rodriguez was legally responsible for the children who allegedly vandalized
her car in October 2012. See Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.
1990) (listing elements of negligence to include legal duty owed to plaintiff, breach of duty, and
damages proximately caused by breach). There was no eyewitness to the April 2012 incident, and
the jury could have credited the evidence that the police investigation did not lead to the issuance
of a citation or ticket.
Further, the jury could have disbelieved Jones and her husband, who were witnesses
interested in the outcome. See City of Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of the
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credibility of the witnesses and the weight to give their testimony. They may choose to believe one
witness and disbelieve another.”); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986) (“The uncontradicted testimony of an interested witness cannot be considered as doing more
than raising an issue of fact unless that testimony is clear, direct, and positive, and there are no
circumstances in evidence tending to discredit or impeach such testimony.”).
Viewing the evidence in the light most favorable to the jury’s finding of no
negligence, we conclude that Jones has failed to demonstrate that the evidence establishes, as a
matter of law, that Rodriguez was negligent. See Dow Chem., 46 S.W.3d at 241; see also City of
Keller, 168 S.W.3d at 810, 827. Further, based on our review of the evidence, we cannot conclude
that the weight of the evidence is so contrary to the jury’s finding as to be clearly wrong and unjust.
See Dow Chem., 46 S.W.3d at 242; Cain, 709 S.W.2d at 176. Thus, we conclude that there is legally
and factually sufficient evidence to support the jury’s finding. We overrule Jones’s first, fourth, and
fifth issues.
Excluded Documents
In her second and third issues, Jones argues that the trial court should have allowed
a “lease agreement and violations” with “handwritten notation,” which she sought to introduce over
Rodriguez’s objection. Although Jones filed “exhibits” with the trial court approximately one month
after the jury trial, including a lease agreement and documents titled “Notice of Lease Violation,”
Jones did not make an offer of proof or bill of exception as to the exhibits that she sought to admit
during trial. See Tex. R. Evid. 103 (describing offer of proof); Tex. R. App. P. 33.2 (describing
formal bills of exception). Thus, she has failed to preserve any error for appellate review. See
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McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984) (concluding no error
preserved as to excluded evidence because party failed to make “proper bill of exceptions”);
Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.) (concluding
that filing document with trial court was not sufficient offer of proof to preserve error); see also
Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso 2002, no pet.) (“While the reviewing court
may be able to discern from the record the nature of the evidence and the propriety of the trial court’s
ruling, without an offer of proof, we can never determine whether exclusion of the evidence was
harmful. Thus, when evidence is excluded by the trial court, the proponent of the evidence must
preserve the evidence in the record in order to complain of the exclusion on appeal.”). We overrule
Jones’s second and third issues.2
CONCLUSION
For these reasons, we affirm the trial court’s judgment.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
Affirmed
Filed: August 21, 2015
2
To the extent Jones challenges the county court’s jurisdiction in her reply letter, we
conclude that the county court properly exercised its jurisdiction over her appeal from justice court.
See Tex. Gov’t Code § 25.0003; Tex. R. Civ. P. 506.1 (appeal from justice court), 506.3 (requiring
case to be tried de novo in county court).
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