Vonda Barnhart v. Sylvia Morales and Luis Perez

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

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

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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

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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

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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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$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

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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

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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

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(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

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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).

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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.

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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.]

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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.

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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

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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.

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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.

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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