Leopoldo Ramos, Individually and A/N/F of S.M., a Minor v. Jose Adolfo Cardona Rodriguez

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00120-CV
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LEOPOLDO RAMOS, INDVIDUALLY AND A/N/F OF S.M., A MINOR,
Appellant

V.

JOSE ADOLFO CARDONA RODRIGUEZ, Appellee
________________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 21-02-01806-CV
________________________________________________________________________

MEMORANDUM OPINION

Appellant Leopoldo Ramos, individually and as next friend of S.M., a minor

(“Ramos”), appeals from a take-nothing judgment that the trial court entered in favor

of Appellee Jose Adolfo Cardona Rodriguez (“Rodriguez”) after a jury refused to

find Rodriguez negligently caused the motor vehicle collision which gave rise to

Ramos’s claims. Because we conclude the evidence was sufficient to support the

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jury’s verdict, we affirm the trial court’s take-nothing judgment in Rodriguez’s

favor.

Background

Ramos sued Rodriguez alleging he negligently caused a motor vehicle

collision which caused Ramos’s and S.M.’s injuries and damages. Rodriguez denied

Ramos’s allegations and asserted Ramos’s negligence either caused or contributed

to causing the collision. The case proceeded to trial, and the jury returned a verdict

finding the collision was caused by Ramos’s negligence and not by any negligence

on Rodriguez’s part. Based on the verdict, the trial court entered a Final Judgment

awarding Ramos and S.M. nothing. In a single issue on appeal, Ramos argues the

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

it is manifestly wrong and unjust.

Analysis

At trial, Ramos called Rodriguez as his first witness. Rodriguez testified that

he did not have a valid driver’s license when the collision occurred and that his truck

came into contact with Ramos’s truck because he failed to pass safely. Rodriguez

agreed with Ramos’s counsel that he was at fault because he attempted to pass

unsafely and he was the only person who could have avoided the collision. He also

testified he was driving behind Ramos, who was towing a vehicle on a two-lane

residential street between 20 to 25 miles per hour when Rodriguez attempted to pass

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Ramos on the left, which was the wrong side of the road. Rodriguez agreed that he

was not blaming Ramos for the collision and that if he had waited for Ramos to turn

left, the collision would not have occurred.

When questioned by his own counsel, Rodriguez explained he was driving his

son to the Stop-N-Go and was at a stop sign when he first observed Ramos’s truck

“waiting on the road and [] going really slow and pulling over.” According to

Rodriguez, Ramos was traveling 5 miles per hour and did not have a turn signal on.

Rodriguez also testified the emergency hazard lights on Ramos’s truck were on, but

there were no lights on the salvage vehicle being towed behind Ramos’s truck.

Rodriguez explained that he decided to pass Ramos on the left because “he was

pulling over and I thought that he was allowing me to pass.” Rodriguez stated that

when he looked to see if it was safe to pass, there were no oncoming vehicles.

Rodriguez explained “when I was going to pass him, he came onto me and then we

crashed . . . .” Rodriguez testified he was paying attention to everything around him

and was not using his phone when the collision occurred. Rodriquez testified that

once he realized Ramos was turning, he did not do anything to avoid the collision,

and his passenger’s side mirror collided with the driver’s side of Ramos’s truck.

Rodriguez stated his airbags did not deploy, and he drove his truck home.

On further questioning by Ramos’s counsel, Rodriguez was shown a picture

of the junk vehicle Ramos was towing and agreed the picture shows lights on top of

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the towed vehicle. However, when questioned again by his own counsel, Rodriguez

testified he saw Ramos putting those lights on the towed vehicle after the accident.

Ramos testified that he bought a junk vehicle, hitched it up to tow, pulled out

of the driveway, and was preparing to make a left turn at an intersection when

Rodriguez passed him, “bounced” into his fender and driver’s door, and ended up in

the ditch. Ramos explained that he had his signal light on when he slowed down to

make the left turn. Ramos denied he motioned Rodriguez to pass and claimed he

never saw Rodriguez coming. Ramos testified lights were on the junk vehicle when

the collision occurred, explaining his custom or practice is to put lights on towed

vehicles as the first thing he does before he begins towing them. Ramos explained

that the lights connect to the back of his truck, are visible to drivers traveling behind

him, and essentially mirror the signal lights on his truck.

Ramos explained that he was driving about 10 to 15 miles per hour when the

collision occurred “out of the blue[.]” Ramos believed that Rodriguez was traveling

more than 30 miles per hour because “he wouldn’t have flew way like 50 miles into

the ditch to the left” where it had to be removed by a wrecker. Ramos claimed

Rodriguez told him that he passed because he was in a hurry. Ramos stated

Rodriquez “shouldn’t have passed me up on a two-way lane,” and if he hadn’t done

so, the accident would have been avoided. Ramos testified he did not have a valid

driver’s license when the collision occurred.

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On cross-examination, Ramos testified he was convicted in Harris County for

evading and spent one year in jail and three years on parole. Ramos’s counsel

objected to the testimony on the basis it violated the motion in limine and was

improper character evidence, but the trial court overruled the objections noting that

the motion in limine had been denied and that Ramos’s conviction was being used

for the purpose of impeaching Ramos’s credibility under Rule 609, rather than as

character evidence.

Ramos’s stepson, S.M., who was a passenger in Ramos’s truck, testified that

on the day of the collision, he put the signal lights on top of the towed vehicle and

made sure they were working properly before they towed it. S.M. also explained that

their truck has an indicator on the dash that shows the signal lights are activated.

S.M. explained that after he checked the signal lights and hitch, Ramos pulled onto

the road, activated his left turn signal, and was about to make a left turn when “out

of nowhere, like, the whole truck just shook[.]” S.M. testified Rodriguez hit them

“on the left passenger side and then swerved left and flew straight into the ditch . . .

pretty fast[.]” S.M. explained that just prior to the collision he was using the GPS on

his cell phone and told Ramos to turn left.

At the conclusion of the evidence, Ramos objected to the first question in the

jury charge – asking whose negligence, if any, proximately caused the occurrence in

question -- because there was no evidence of contributory negligence and Rodriguez

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admitted he was solely at fault for the accident. The trial court overruled Ramos’s

objection, noting there was evidence Ramos pulled onto the street and failed to yield

the right-of-way, made an improper turn, and did not have proper lighting equipment

to indicate he was turning.

In response to Question 1, the jury answered Rodriguez’s negligence, if any,

did not proximately cause the occurrence and that Ramos’s negligence did. Despite

conditional instructions that obviated the need for the jury to answer any additional

questions, the jury found in Question 2 that Ramos was 100% responsible for the

occurrence and in Question 3 that zero dollars was a fair and reasonable amount to

compensate Ramos and S.M. for their alleged damages. The trial court incorporated

the jury’s findings in its Final Judgment, rendered judgment for Rodriquez, and

ordered that Ramos and S.M. take nothing by their suit.

Ramos filed a Motion for New Trial, arguing the jury’s verdict finding him

100% negligent for the collision is against the great weight and preponderance of

the evidence. The motion also argues the jury’s verdict was prejudiced by the

introduction of Ramos’s misdemeanor conviction for evading arrest and his lack of

a valid driver’s license. The trial court denied Ramos’s Motion for New Trial,

explaining that the jury could have believed that Ramos was not credible and failed

to meet his burden of proof, and could have concluded that Ramos was distracted,

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failed to keep a proper look out, failed to yield the right of way by pulling out in

front of Rodriguez, and made an improper and unsafe turn into Rodriguez’s vehicle.

Analysis

In Ramos’s sole issue on appeal, Ramos argues the evidence was factually

insufficient to support the jury’s finding that Rodriguez was zero percent at fault for

the collision. We note that the jury’s answer assigning percentages of responsibility

to the parties in response to Question 2 is immaterial since the Final Judgment in

Rodriguez’s favor is based on the jury’s answer in response to Question 1 that

Rodriguez’s negligence, if any, did not proximately cause the occurrence in

question. However, we construe Ramos’s issue on appeal as fairly including an

attack on the factual sufficiency of the evidence with respect to the jury’s answer to

Question 1. See Tex. R. App. P. 38.1(f).

We note the jury’s answer of “No” with respect to Rodriguez in answer to

Question 1 is not an affirmative finding; rather, the jury’s “No” answer indicates it

was not persuaded by a preponderance of the evidence that Rodriguez’s negligence,

if any, proximately caused the collision, issues upon which Ramos bore the burden

of proof. See JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 164-65 (Tex. 2015);

Franks v. Horton, No. 09-21-00087-CV, 2022 WL 16643108, at *3 (Tex. App.—

Beaumont Nov. 3, 2022, no pet.) (mem. op.). When an appellant challenges the

factual sufficiency of the evidence supporting an adverse finding on an issue on

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which the appellant had the burden of proof, it must show that 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). We must consider and weigh

all the evidence, not just that favoring the appellant, and we may set the verdict 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 is the exclusive judge of the credibility of the witnesses and the

weight to be given their testimony. Golden Eagle Archery v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.

2005. The jury may believe one witness, disbelieve another and resolve

inconsistencies in any witness’s testimony. City of Keller, 168 S.W.3d at

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

may not impose its own opinion to the contrary. City of Keller, 168 S.W.3d at

819; Golden Eagle, 116 S.W.3d at 761. “As long as the evidence falls within the

zone of reasonable disagreement, we cannot substitute our judgment for that of the

factfinder.” Martin v. Clarke, No. 09-16-00421-CV, 2017 Tex. App. LEXIS 7321,

at *4 (Tex. App.—Beaumont Aug. 3, 2017, no pet.) (mem. op.).

Ramos argues the evidence against Rodriguez was overwhelming in part

because he admitted he was solely responsible for the collision. The record does not

indicate what standard Rodriguez used when arriving at the conclusion that he was

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at fault, nor was the jury asked to decide who was at fault; it was asked whether

either party’s negligence, if any, proximately caused the collision. The jury was

instructed, “‘Negligence’ means failure to use ordinary care. That is, failing to do

that which a person of ordinary prudence would have done under the same or similar

circumstances, or doing that which a person of ordinary prudence would not have

done under the same or similar circumstances.” The jury was further instructed, “The

term ‘preponderance of the evidence’ means the greater weight and degree of

credible evidence presented in this case. If you do not find a preponderance of the

evidence supports a ‘yes’ answer, then answer ‘no.’”

“A party’s testimonial declarations which are contrary to his position are

quasi-admissions. They are merely some evidence, and they are not conclusive upon

the admitter. The weight to be given such admissions is decided by the trier of fact.”

Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)

(citations omitted). In addition to Rodriguez’s opinion testimony that he alone was

at fault, the jury also heard Rodriguez’s testimony explaining his version of the facts

surrounding the accident. In reaching its decision, the jury may have believed and

assigned weight to Rodriguez’s testimony that as he approached Ramos’s vehicle

from behind there were no lights on the vehicle Ramos was towing, that Ramos was

going very slowly and pulling over, that just as Rodriguez was going around Ramos

he turned left without signaling and collided with Rodriguez’s vehicle, and that

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Rodriguez saw Ramos putting the lights on the towed vehicle after the accident.

Although Ramos and S.M. presented an alternative version of the accident, the

weight of such evidence was not so great that it renders the jury’s verdict manifestly

wrong or unjust. The jury may have reasonably concluded the greater weight and

degree of the evidence did not establish Rodriguez failed to exercise ordinary care

under the circumstances. The evidence “falls within the zone of reasonable

disagreement” and we cannot substitute our judgment for the jury’s verdict. See

Martin, 2017 Tex. App. LEXIS 7321, at *4.

Although not raised as a separate issue, Ramos also argues the jury’s verdict

was influenced by Rodriguez’s counsel’s improper impeachment of Ramos with his

prior conviction for evading arrest, which he asserts is not a crime of moral turpitude.

We note that Ramos’s complaint on appeal does not comport with his objections at

trial, which were that the evidence violated the motion in limine and constituted

improper character evidence. See Tex. R. App. P. 33.1(a) (requiring a timely

objection stating grounds with sufficient specificity to make the trial court aware of

the complaint in order to preserve an objection for appellate review). We also note

Ramos’s conviction for evading arrest could not have been a misdemeanor, because

Ramos testified he served one year in jail and three years on parole as a result of his

conviction. See Tex. Penal Code Ann. §§ 12.21 (punishment for Class A

Misdemeanor cannot exceed one year in jail), 38.04 (indicating offense of evading

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arrest can be a Class A misdemeanor, state jail felony, second-degree felony, or

third-degree felony). As the trial judge explained to Ramos’s counsel, the conviction

was not admitted as character evidence but for the purpose of impeachment under

Rule 609, which allows a witness’s felony conviction to be used to impeach the

witness’s credibility. See Tex. R. Evid. 609 (evidence of a witness’s prior conviction

must be admitted for purposes of impeachment if the crime was either a felony or a

crime of moral turpitude). Based on this record, we cannot conclude that Ramos was

improperly impeached with his prior conviction for evading arrest.

Having concluded the evidence was factually sufficient to support the jury’s

verdict, we overrule Ramos’s sole issue and affirm the trial court’s take-nothing

judgment in Rodriguez’s favor.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on August 13, 2024
Opinion Delivered April 17, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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