in Re James Thibodeaux

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-20-00255-CV
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IN RE JAMES THIBODEAUX

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Original Proceeding
128th District Court of Orange County, Texas
Trial Cause No. A180121-C
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MEMORANDUM OPINION

In a mandamus proceeding, James Thibodeaux seeks to compel the trial court

to vacate its April 1, 2020 order granting a new trial to the plaintiffs in the underlying

automobile-collision case filed by real parties in interest Maria Teresa Soria and

Socorro Cisneros. In April 2019, a jury failed to find Thibodeaux’s negligence

proximately caused the accident. The trial court granted a motion for new trial.

Before the retrial took place, this Court conditionally granted mandamus relief and

directed the trial court to vacate the facially invalid order granting a motion for new

trial. See In re Thibodeaux, No. 09-20-00008-CV, 2020 WL 1465985, at *2–3 (Tex.

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App.—Beaumont Mar. 26, 2020, orig. proceeding) (mem. op.). On April 1, 2020,

the trial court signed an amended order granting a motion for new trial on two

grounds. As articulated in the order, the trial court conducted a factual-sufficiency

review and ruled that the jury’s finding that Thibodeaux did not commit negligence

is against the great weight and preponderance of the evidence. The trial court also

found jury misconduct occurred, it was material, and probably resulted in an

improper verdict in that there is some indication in the record that the misconduct

likely caused jurors to vote differently than they would have otherwise voted on one

or more issues vital to the judgment. Thibodeaux seeks mandamus relief again, this

time arguing that the trial court’s articulated reasons for granting the motion for a

new trial are not supported by the record.

In a mandamus proceeding, we review an order granting new trial for abuse

of discretion. In re Bent, 487 S.W.3d 170, 177–78 (Tex. 2016) (orig. proceeding).

Although trial courts have significant discretion in granting new trials, “such

discretion should not, and does not, permit a trial judge to substitute his or her own

views for that of the jury without a valid basis.” In re Columbia Med. Ctr. of Las

Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding). “If

the record does not support the trial court’s rationale for ordering a new trial, the

appellate court may grant mandamus relief.” In re Toyota Motor Sales U.S.A, Inc.,

407 S.W.3d 746, 756–59 (Tex. 2013) (orig. proceeding).

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 “When the trial court grants a new trial because the jury’s finding was against

the great weight and preponderance of the evidence, we review the entire trial record

to determine, using a factual sufficiency standard, whether the record supports the

trial court’s reasoning.” In re Pantalion, 575 S.W.3d 382, 383 (Tex. App.—

Beaumont 2019, orig. proceeding) (citing In re E.I. duPont de Nemours and Co.,

463 S.W.3d 80, 85 (Tex. App.—Beaumont 2015, orig. proceeding (per curiam)).

“The amount of evidence necessary to support the jury’s verdict is far less than that

necessary to warrant disregarding the jury’s verdict.” In re Zimmer, Inc., 451 S.W.3d

893, 906 (Tex. App.—Dallas 2014, orig. proceeding). “Evidence is factually

sufficient to support the jury’s verdict if the evidence is such that reasonable minds

could differ on the meaning of the evidence or the inferences and conclusions to be

drawn therefrom.” Id.

At trial, the jury heard testimony from the defendant, Thibodeaux, the

plaintiffs, Cisneros and Soria, an investigating officer, Jaclyn Patronella, and an

eyewitness, Eritrea Brooks.

Thibodeaux testified that he had a stop sign at the intersection and the cross-

traffic and Cisneros did not. Thibodeaux intended to proceed straight through the

intersection. According to Thibodeaux, he had a clear view of the intersecting street

to his left but an obstructed view to his right. He looked to see if anyone was coming

but could not see. He eased past the stop sign to see if anyone was coming.

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 Thibodeaux admitted that in his deposition he stated that he did not check

again and he proceeded forward after it looked clear. In his deposition testimony he

also stated that he eased into the intersection after he looked both ways. At trial,

Thibodeaux stated that he eased past the stop sign to see past the obstructed view,

looked both ways, then proceeded without looking again. Before he reached the

center of the intersection, the plaintiffs’ vehicle struck his vehicle from his right

while his vehicle was in motion and both vehicles ended up in the ditch in the far

left corner of the intersection. In his deposition he agreed that he was supposed to

yield the right-of-way but he qualified his answer, adding that he felt as if he did

yield the right-of-way because he felt as if it was safe at the time he decided to

proceed forward. He felt he proceeded as cautiously as he could. Thibodeaux stated

that he accepted responsibility in participating in the accident and that he would

accept half the responsibility.

Thibodeaux explained that there was almost a car length past the stop sign and

mid-way through the near lane of the intersecting street before a driver had a clear

view to his right. He eased past the stop sign almost to the street. He never saw the

plaintiffs’ vehicle before the impact. He could not say that he looked in their

direction again after he decided to proceed straight across the intersection.

Thibodeaux agreed that the accident would not have happened if he had stopped

midway through the near lane of the intersecting street and looked, but he did not

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see the moving vehicle. The impact damaged the right front quarter panel of his

vehicle but not the front of the vehicle.

Thibodeaux denied that a police officer asked him about how the accident

occurred from his point of view. He told the jury that he looked “left and right, right

and left[,]” and ensured that no one was approaching over the railroad track to his

left before easing out into the road past the stop sign.

Officer Patronella testified that she included the information from her

investigation of the accident in an accident report. After communicating with

Thibodeaux and with Cisneros through a translator at the scene of the accident,

Officer Patronella concluded that Thibodeaux failed to yield the right-of-way. She

did not recall if Thibodeaux mentioned that he had an obstructed view, but that

would be an important detail that she would include in an accident report According

to Officer Patronella, if a person’s vision is obstructed at a stop sign, the safe way to

proceed through the intersection is to pull forward slightly and continue to look to

ensure it is clear both ways before proceeding through the intersection. There is not

an instance where it would be safe for a driver to look, have an obstructed view, pull

forward, and never look again. In her opinion, Thibodeaux moved past the

obstruction into the street and should have seen Cisneros before the impact.

Cisneros testified that she saw Thibodeaux’s vehicle before the accident.

According to Cisneros, Thibodeaux did not stop at the stop sign. She claimed that

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she swerved and applied her brakes but he was already halfway in the road and she

could not avoid an immediate impact.

Soria testified that she was a passenger in the vehicle driven by Cisneros. She

did not describe the accident.

Defense witness Brooks testified that she was in the vehicle behind

Thibodeaux. Brooks stated that Thibodeaux stopped then eased forward because of

hanging tree branches to his right. She looked through a gap from her position farther

back. She claimed Thibodeaux never crossed the centerline. She did not speak with

the police officer.

The trial court’s amended order granting the motion for a new trial includes

the following:

The Court finds that the Jury’s answer to Question 1 of the
Court’s Charge in which the Defendant was found not negligent is
contrary to the great weight and preponderance of the evidence and is
manifestly unjust. The great weight of the evidence, including
Defendant’s own admissions, proved that Defendant was in fact
negligent. Evidence observed during trial that the Court bases its
determination and ruling on includes the following:
a. Defendant agreed that drivers with an obstructed view like he
had should proceed cautiously through intersections which includes
looking for oncoming traffic. The evidence showed that instead of
proceeding with caution, Defendant never looked for oncoming traffic
as he proceeded through the intersection.
b. Defendant had the stop sign and duty to yield to Plaintiff’s
vehicle. Defendant’s failure to yield caused the accident.
c. Defendant testified that he never saw the Cisneros vehicle until
the collision occurred, again indicating that he never looked for
oncoming traffic.

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 d. Defendant agreed with Officer Patronella’s finding that he
failed to yield the right-of-way to Plaintiff’s vehicle.
e. Defendant agreed that he contributed to causing the accident.
f. Defendant testified that he accepted 50% of the responsibility
for causing the accident.
g. Defendant testified that had he stopped and looked as he
proceeded through the intersection that the accident would never have
happened.
h. Officer Patronella investigated the accident. Officer Patronella
testified that based on her investigation that she was 100% certain that
Defendant failed to yield the right-of-way to Plaintiff.
i. Officer Patronella found Defendant to be the sole cause of the
accident.
j. Officer Patronella did not find Plaintiffs contributed to the
accident.
k. No direct evidence was presented that Plaintiffs were
negligent.
l. Little, if any, circumstantial evidence was presented that
Plaintiffs were negligent.

In his mandamus petition, Thibodeaux argues the jury heard testimony that

brush and trees to his right obscured his view of the intersecting street and the record

supports a finding that he exercised ordinary care by stopping at the stop sign, then

moving past the stop sign while looking until he decided it was safe to proceed and

moved his vehicle into the lane where it was struck by Cisneros. Cisneros and Soria

argue that the jury’s verdict is against the great weight and preponderance of the

evidence because Thibodeaux admitted he did not continue to look as he moved into

the intersection and a person acting with ordinary care would have continued to look

until he obtained an unobstructed view before proceeding through the intersection.

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They argue Thibodeaux could not have moved into a position where he could see

the traffic because he never saw Cisneros’s vehicle before the collision.

As we set forth in In re E.I. duPont de Nemours and Company, “the long-

established precedents in this state demonstrate respect for jury verdicts.” 463

S.W.3d at 84–85 (quoting Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988)).

The “significant discretion” of a trial court to grant a new trial “should not, and does

not, permit a trial judge to substitute his or her own views for that of the jury without

a valid basis.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d at 212. If a trial

court’s articulated reasons in its order granting a new trial are not supported by the

underlying record, the new trial order cannot stand. See In re Toyota Motor Sales,

407 S.W.3d at 758. In an original proceeding, the appellate court must determine

whether the reasons given by the trial court are reasonably specific and legally

sound, and whether the rationale is true. Id.

Our mandamus review must be mindful of the different roles of the jury, the

trial court, and the appellate court. As stated by one of our sister courts:

In a mandamus proceeding, we may not substitute our judgment
for that of the trial court. But neither may the trial court substitute its
judgment for that of the jury in granting a new trial. The method for
ensuring that the trial court does not substitute its judgment for that of
the jury, is [for the appellate court] to confirm that the court’s reasons
for granting a new trial are valid and correct, i.e., supported by the trial
record.

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In re Wyatt Field Serv. Co., 454 S.W.3d 145, 152 (Tex. App.—Houston [14th Dist.]

2014, orig. proceeding [mand. dism’d]) (citations omitted). If, after a review of the

record of the trial, the appellate court determines that the record does not support the

trial court's stated reasons for granting the motion for new trial, then the trial court

will have abused its discretion in granting a new trial based on factual sufficiency.

Id.

When a party attacks the factual sufficiency of an adverse finding on an issue

on which that party had the burden of proof, the party must demonstrate that,

considering all of the evidence, the adverse finding is against the great weight and

preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001) (per curiam). A verdict can be set aside “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. The jury's failure to find a fact cannot be

taken away by the trial court simply because the trial court concludes that the

evidence preponderates toward an affirmative answer. Herbert, 754 S.W.2d at 144.

A “no” answer does not have to be supported by a preponderance of the evidence or

even affirmative evidence, because to require such would incorrectly shift the burden

of proof. Clophus v. General Motors Corp., 769 S.W.2d 669, 670 (Tex. App.—

Houston [14th Dist.] 1989, no writ).

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 Finally, when reviewing a jury verdict, it is the jury that weighs the credibility

of the witnesses and the jury may choose to believe all, some, or none of the

testimony from the witnesses. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003). In a jury trial, the jury is the fact finder and sole judge of the

credibility of the witnesses and of the weight to be given to their testimony. Id. When

presented with conflicting testimony, the jury may believe one witness and

disbelieve others, and it may resolve inconsistencies in the testimony of any witness.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). A reviewing court

“must not merely substitute its judgment for that of the jury.” Golden Eagle Archery,

Inc., 116 S.W.3d at 761.

A driver’s failure to yield the right of way does not establish negligence as a

matter of law. Mata v. Coastal Agric. Supply, Inc., No. 01-17-00509-CV, 2018 WL

3150869, at *6 (Tex. App.—Houston [1st Dist.] June 28, 2018, no pet.) (mem. op.).

When he was asked, “Do you agree that you only entered the intersection when it

was safe[,]” Thibodeaux replied, “I felt as if it was safe at the time.” The jury heard

Thibodeaux testify that he eased forward and looked to his right before he proceeded

through the intersection, and reasonably could have found that he acted with

reasonable prudence under the circumstances. While Thibodeaux conceded his

responsibility for the accident, he at all times maintained that he was not negligent

in his actions and we can’t say such statements are inconsistent with the position

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taken by him at the trial that he was not negligent. Thus, his statements do not rise

to the level of an admission. See Wirtz v. Orr, 575 S.W.2d 66, 71 (Tex. Civ. App.-

Texarkana 1978, writ dism’d). The evidence is such that reasonable minds could

differ on the meaning of the evidence or the inferences and conclusions to be drawn

therefrom. Because the record does not support the trial court’s finding that the jury’s

verdict is contrary to the overwhelming weight of the evidence, the trial court abused

its discretion by granting a new trial on grounds of factual sufficiency.

Thibodeaux argues the trial court abused its discretion by granting a new trial

because the record does not support its stated reason that juror misconduct probably

resulted in an improper verdict. “To warrant a new trial based on jury misconduct,

the movant must establish that (1) the misconduct occurred, (2) it was material, and

(3) it probably caused injury.” In re Health Care Unlimited, Inc., 429 S.W.3d 600,

602 (Tex. 2014) (orig. proceeding) (citing Tex. R. Civ. P. 327(a)). The complaining

party bears the burden to prove all three elements before the trial court may grant a

new trial. Id. Whether jury misconduct occurred and caused injury are questions of

fact for the trial court. Id. “When the ground of a motion for new trial, supported by

affidavit, is misconduct of the jury, . . . the court shall hear evidence thereof from

the jury or others in open court[.]” Tex. R. Civ. P. 327(a). The evidentiary hearing

is required because “a trial judge ruling on a motion for new trial based on affidavits

of juror misconduct alone cannot perform the critical function of assessing the

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credibility of the affiants, who are making serious charges about the manner in which

their fellow jurors have discharged their duties.” In re Zimmer, 451 S.W.3d at 901.

In this case, the motion for new trial filed by Cisneros and Soria included a

supporting affidavit from one juror, but they presented no evidence in the hearing

on the motion for a new trial. Because the complaining party failed to prove jury

misconduct in the evidentiary hearing on the motion for new trial, the trial court

abused its discretion by granting a motion for new trial on the ground of jury

misconduct. See id. at 903.

We conditionally grant Thibodeaux’s petition for a writ of mandamus. A writ

will issue only in the event the trial court fails to vacate its order of April 1, 2020.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on November 20, 2020
Opinion Delivered December 30, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.

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