MEMORANDUM OPINION
No. 04-11-00088-CV
Darlena CARTER,
Appellant
v.
Anna JOHNSON,
Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 320922
Honorable Irene Rios, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: February 15, 2012
AFFIRMED
Appellant, Darlena Carter, sued appellee, Anna Johnson, for injuries arising out of a
motor vehicle accident. Following a three-day trial, the jury returned a unanimous verdict
finding Carter seventy-five percent liable and Johnson twenty-five percent liable. Carter,
representing herself pro se on appeal, appeals the trial court’s judgment that she take nothing.
We affirm.
04-11-00088-CV
BACKGROUND
On April 21, 2006, Carter and Johnson were involved in a motor vehicle accident. The
accident occurred when Johnson, who lived one house away from Carter, drove down the street
and collided with the vehicle driven by Carter who was backing out of her driveway. Carter’s
two children, both minors, were in her vehicle at the time of the accident.
Later that year, Carter retained an attorney and filed a cause of action against Johnson for
personal injuries she and her children sustained as a result of the collision. Over the next few
years, the case was reset numerous times as a result of Motions for Continuance filed by Carter.
Ten months prior to trial, the trial court granted the motion of Carter’s attorney to withdraw
because of “irreconcilable conflict of interests.” Thereafter, Carter represented herself pro se and
filed yet another motion for continuance after the trial court granted Johnson’s motion to compel
discovery responses from Carter and her children. This time, the trial court denied Carter’s
motion for continuance and her request for an extension of time to respond to discovery.
On January 13, 2011, Carter filed a motion to abate the case on the grounds that her
attorney abandoned her and her children “in the late hour of the case (a few days before trial).”
The next day, at the hearing on the motion, the trial court denied Carter’s request for an
extension of time to respond to written discovery, request for a continuance, and request for
abatement. The trial court also ordered that the claims of the minor children be severed. The
case finally proceeded to trial on January 18, 2011, with only Carter’s claims against Johnson.
PRO SE LITIGANT
In her first issue, Carter complains the trial court held her to a stricter standard of law
than the opposing party’s counsel. 1 Carter cites several instances in support of this argument and
1
In this issue, Carter also complains of her trial counsel’s negligence; however, we decline to review her complaints
against her former attorney. See Farmer Found. Co. v. Leach, 680 S.W.2d 828, 830 (Tex. App.—Houston [1st
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contends the trial court abused its discretion and allowed bias to influence the trial. 2 We hold a
pro se litigant to the same standards as a licensed attorney and require compliance with all
applicable laws and rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
On appeal, we review Carter’s complaints for an abuse of discretion by the trial court. See
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
A. Denial of Motions
Carter contends the trial court abused its discretion when it denied her motions for
abatement and continuance after she claimed she was ill and in need of medication on the
morning of the first day of trial. We disagree. At trial, Carter presented a note from her doctor
restricting her from work. However, the note’s date was two years old. Additionally, the trial
court accommodated Carter by giving her three additional hours to fill her medications, take
them, and return to trial.
Similarly, Carter asserts the trial court abused its discretion in denying her motions after
her attorney withdrew on the eve of the trial. However, Carter is incorrect in asserting that her
attorney “withdrew on the eve of trial” because the record indicates counsel withdrew more than
ten months prior to trial. See Moreno v. Silva, 316 S.W.3d 815, 818 (Tex. App.—Dallas 2010,
pet. denied) (deciding trial court did not abuse its discretion when counsel withdrew three
months before hearing on summary judgment and client did not obtain new counsel in that time);
cf. Villegas v. Carter, 711 S.W.2d 624, 626–27 (Tex. 1986) (noting that an abuse of discretion
occurs if a trial court allows an attorney to withdraw two days before trial and the client “was not
Dist.] 1984, writ ref’d n.r.e.) (determining defendant’s complaint against trial counsel best “lies in a malpractice
action” and not as a complaint that trial court denied motion for new trial because of attorney’s negligence). Instead,
any arguments complaining of his negligence would lie in a malpractice action. Id.
2
In response, Johnson argues Carter waived this issue on appeal because Carter did not object at trial to the alleged
errors and because Carter inadequately briefed the issues. For purposes of this appeal, we will assume without
deciding waiver did not occur. As such, we will address the merits of Carter’s complaints.
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negligent or at fault in causing his attorney’s withdrawal”). Thus, we conclude Carter had
sufficient time to obtain another attorney.
B. Evidentiary Rulings
Carter next contends the trial court abused its discretion in several evidentiary rulings.
She first claims the trial court abused its discretion when it did not allow her to “talk about
insurance” and to introduce evidence of insurance. However, “[r]eferences to insurance which,
when reasonably construed, tend to imply to the jury that the defendant is protected by insurance
and will not be required to pay any judgment which may be rendered, are improper.” McGrede
v. Coursey, 131 S.W.3d 189, 194 (Tex. App.—San Antonio 2004, no pet.); see Univ. of Tex. at
Austin v. Hinton, 822 S.W.2d 197, 201 (Tex. App.—Austin 1991, no writ) (“[A] plaintiff may
not inform the jury that the defendant has insurance coverage, and a defendant may not inform
the jury that a plaintiff has insurance protection.”).
Next, she complains Johnson was allowed to testify about hearsay evidence regarding the
police report from the accident investigation. However, Carter did not bring a hearsay objection
to the attention of the trial court. Instead, Carter’s objection to Johnson’s testimony was
“speculation.” In order “[t]o preserve a complaint for appellate review, a party must have
presented to the trial court a timely request, objection or motion, stating the specific grounds for
the ruling he desired the court to make if the specific grounds were not apparent from the
context.” Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex.
App.—Dallas 2003, pet. denied); see TEX. R. APP. P. 33.1. “An objection must not only identify
the subject of the objection, but it also must state specific grounds for the ruling desired.
Without a proper presentation of the alleged error to the trial court, a party does not afford the
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trial court the opportunity to correct the error.” Birnbaum, 120 S.W.3d at 476. As a result,
Carter did not preserve this complaint.
Carter also complains she was not allowed to bring Johnson’s insurance appraisal into
evidence. At trial, Johnson objected to this evidence and the trial court sustained the objection.
The Texas Rules of Evidence require, as a predicate to admissibility, that evidence be properly
authenticated or identified. See TEX. R. EVID. 901. In other words, the proponent must show the
trial court that the document or evidence in question is what he purports it to be. See id. at
901(a); Miles v. Ford Motor Co., 922 S.W.2d 572, 597 (Tex. App.—Texarkana 1996), aff’d in
part and rev’d in part on other grounds, 967 S.W.2d 377 (Tex. 1998); Silva v. State, 989 S.W.2d
64, 67–68 (Tex. App.—San Antonio 1998, pet. ref’d). Here, Carter did not properly authenticate
the document; therefore, the trial court did not abuse its discretion in denying the appraisal into
evidence.
Carter next complains she was not able to present evidence of Johnson’s prior driving
record and whether she had previously been involved in other accidents. However, the Rules of
Evidence prohibit a party from bringing up “[e]vidence of other crimes, wrongs, or acts . . . to
prove the character of a person in order to show action in conformity therewith.” TEX. R. EVID.
404(b). Thus, the trial court did not abuse its discretion when it prohibited Carter from
questioning Johnson about her prior driving record.
Also, Carter complains the trial court prohibited her from using her medical records
during closing arguments. However, this complaint is not preserved for our review because it
was not sufficiently raised at trial. See TEX. R. APP. P. 33.1 (“As a prerequisite to presenting a
complaint for appellate review, the record must show . . . the complaint was made to the trial
court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the
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complaining party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint.”).
Carter makes her final evidentiary challenge complaining that the trial court did not allow
her to admit certain drawings or sketches into evidence. A review of the record shows the trial
court denied her request to mark or draw on an exhibit because it was already admitted into
evidence. As such, we conclude the trial court did not abuse its discretion by denying Carter’s
request to mark or draw on a previously admitted exhibit.
C. Jury Empanelment
Next, Carter contends the trial court abused its discretion when it improperly impaneled a
juror because the juror and Johnson both worked as teachers in San Antonio and the juror stated
she was familiar with Johnson. However, the record reveals that Carter never challenged the
juror for cause or notified the court of any error with regard to jury selection. See Ortiz v. Ford
Motor Credit Co., 859 S.W.2d 73, 75 (Tex. App.—Corpus Christi 1993, writ denied)
(recognizing that complaining party must notify court of potential error with objectionable jurors
and before exercise of peremptory strikes). Additionally, Carter never used a peremptory strike
on the juror. As a result, we conclude Carter cannot raise this issue for the first time on appeal
because she did not preserve the alleged error at trial. Hallett v. Houston Nw. Med. Ctr., 689
S.W.2d 888, 890 (Tex. 1985) (“[T]he complaining party waives any error by not timely bringing
such error to the attention of the trial court prior to making his peremptory challenges. A party
cannot wait until the trial is finished, then seek to reverse an unfavorable verdict by complaining
of an error which the trial court could have corrected had it been timely informed of the error.”).
Because Carter accepted the role of a pro se plaintiff, she had the obligation to comply
with all applicable laws and rules of procedure. Larned v. Gateway East, Inc., 186 S.W.3d 597,
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600 (Tex. App.—El Paso 2006, no pet.); see Allen v. Rushing, 129 S.W.3d 226, 231 (Tex.
App.—Texarkana 2004, no pet.). This is the same requirement as on any licensed attorney.
Larned, 186 S.W.3d at 600. We conclude the trial court did not abuse its discretion and did not
hold Carter to a stricter standard than a licensed attorney.
JURY CHARGE ERROR
Carter next complains of jury charge error because the trial court refused to submit her
requested instruction on the “eggshell skull doctrine” and her requested definitions of “ordinary
prudence,” “asymptomatic,” “dormant,” “pre-existing injury,” and “punitive damages.” The
record shows the instructions on the eggshell skull doctrine and punitive damages were denied
because they were incorrect statements of the law. Traylor v. State, 43 S.W.3d 725, 730 (Tex.
App.—Beaumont 2001, no pet.) (“A trial court should refuse an instruction which is vague and
misleading and which does not properly state the law.”). Additionally, the instruction on
ordinary prudence was denied because the trial court determined it was “not necessary to
define.” See Campbell v. State, 125 S.W.3d 1, 9 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (noting a court is only required to “include definitions for terms used in the charge that have
a technical or legal meaning apart from the meaning in ordinary usage”). As for the other
definitions, we note “[t]he trial court has great latitude and considerable discretion to determine
necessary and proper jury instructions.” Lousiana-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676
(Tex. 1998). The goal of the charge is to submit the issues “logically, simply, clearly, fairly,
correctly,” and in a complete fashion. Campbell, 125 S.W.3d at 9 (“Simplicity in the jury charge
must be an overriding concern.”). As such, the trial court has considerable discretion as long as
the charge is legally correct. Id. We conclude the trial court did not err in refusing to submit
Carter’s requested instructions and definitions.
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Carter also complains the trial court erred in submitting an unavoidable accident
instruction and a sudden emergency instruction in the jury charge. However, the jury charge, as
submitted, does not contain either instruction. Instead, the charge was taken directly from the
Texas Pattern Jury Charges and did not contain any instructions concerning unavoidable accident
or sudden emergency. See State Bar of Tex., Texas Pattern Jury Charges—General Negligence
PJC 2.1, 2.4, 4.1, 4.3 (2010). We conclude these complaints are without merit.
SUFFICIENCY OF THE EVIDENCE
We liberally construe Carter’s next issue on appeal as raising a sufficiency of the
evidence challenge. It is not clear from her brief whether it is a legal or factual sufficiency
challenge. However, because Carter did not file a motion for new trial, we decline to review the
complaint for factual sufficiency. TEX. R. CIV. P. 324 (stating appellant cannot challenge factual
sufficiency of evidence without first raising the point in motion for new trial). The test for legal
sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
making this determination, we credit favorable evidence if a reasonable fact-finder could, and
disregard contrary evidence unless a reasonable fact-finder could not. Id. If the evidence falls
within the zone of reasonable disagreement, then we may not substitute our judgment for that of
the factfinder. Id. at 822. The fact-finder is the sole judge of the credibility of the witnesses and
the weight to give their testimony. Id. at 819.
Here, there was ample evidence to support the jury’s verdict in finding Carter and
Johnson comparatively negligent. Johnson presented testimony and evidence depicting and
supporting her assertion that Carter was more negligent in causing the accident. She provided
photos of the vehicles, accident scene, and sketches of how the accident occurred. Carter also
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presented her own evidence of how the accident occurred, including the testimony of Sharon
Johnson, who is unrelated to the appellee and who was a witness to the accident. Although
Carter’s and Sharon’s testimony is in conflict with Johnson’s testimony, the jury was the
ultimate judge of the credibility of the witnesses and the weight to give their testimony. Id.
Based on a review of the evidence, we conclude the evidence is legally sufficient to support the
jury’s finding that Carter was seventy-five percent negligent and Johnson was twenty-five
percent negligent.
CONCLUSION
We overrule Carter’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
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