Opinion
No. 14-10-00598-CV
Opinion filed July 26, 2011.
On Appeal from the 215th District Court, Harris County, Texas, Trial Court Cause No. 2006-48243.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and BOYCE.
MEMORANDUM OPINION
Appellants, Earl Bryan Wilson and Cheatwood Electric a/k/a C M Cheatwood Electric a/k/a CMC Electric, contend that the evidence is legally insufficient to support a judgment in favor of Kellie Martinez. We affirm.
Background
Kellie Martinez and her father, Wayne Crittenton, were involved in a car accident around 9 p.m. on September 10, 2004. Martinez was injured in the car accident; she filed suit on August 4, 2006 against Earl Wilson, Claude M. Cheatwood, and CMC Electric, among others, to recover damages and punitive damages in connection with the accident. Martinez alleged in her first amended petition that Wilson hit the car, in which she was a passenger, with a vehicle he was operating in the course of his employment with CMC Electronic. Martinez alleged that the vehicle Wilson operated was owned by Claude Cheatwood. She also alleged that Wilson was intoxicated at the time of the collision.
A one-day bench trial was held on May 4, 2010. Martinez and Crittenton were present at trial; the defendants were not present at trial but were represented by counsel.
At trial, Martinez testified that she and Crittenton were driving on the feeder road off Beltway 8 toward the entrance ramp of the State Highway 225 overpass. As they were driving onto the entrance ramp, Crittenton told Martinez that a van behind them "was coming up very fast." Martinez suggested that Crittenton move to the shoulder so the van would not hit their car. As Crittenton was moving onto the shoulder, the van hit their car. Martinez identified Wilson as the driver of the van.
Martinez testified that Wilson did not stop after the collision, "flipped us off," and continued driving. Martinez told Crittenton to follow the van so she could write down information about the van and its tag number. The van started swerving and trying to hit their car. According to Martinez, Wilson was "hanging out of his window" and "flipping [them] off." Martinez called the police and was instructed to follow the van. An unmarked police car then arrived and pulled Wilson over. Wilson was arrested after he performed poorly on the field sobriety tests police administered at the scene.
Martinez testified that she did not talk to Wilson or exchange any information with him because the police officers at the scene did not allow her or Crittenton to go near Wilson. Martinez testified that she did not see Wilson's driver's license but that the police gave her all the information about Wilson when they arrested him. Martinez further testified that their car was damaged and that she suffered injuries as a result of the car accident.
After Martinez's trial counsel rested, appellants' moved for directed verdict arguing that there was no evidence that Wilson, Cheatwood or CMC Electric were involved in the accident and no evidence to prove that Wilson or Cheatwood drove the van. The trial court granted a directed verdict in favor of Cheatwood individually and denied the motion in all other respects. The trial court signed a judgment on June 3, 2010 against Wilson and Cheatwood Electric a/k/a C M Cheatwood Electric a/k/a CMC Electric and awarded Martinez damages in the amount of $48,149.50. The trial court filed findings of fact and conclusions of law on July 7, 2010. Appellants filed a notice of appeal on June 28, 2010.
Analysis
I. Sufficiency of the Evidence
In their sole issue on appeal, appellants contend that there is legally insufficient evidence to support the trial court's finding that Wilson was driving the van at the time of the accident.
In a bench trial, the trial court's findings of fact have the same weight as a jury verdict, and we review the sufficiency of the evidence to support the findings using the same sufficiency standards as when we review a jury's verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When conducting a legal sufficiency review, we credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. We sustain a legal insufficiency challenge only if: (1) the record reveals a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810; Niche Oilfield Servs., LLC v. Carter, 331 S.W.3d 563, 569 (Tex. App.-Houston [14th Dist.] 2011, no pet.).
Appellants contend there was no evidence that Wilson was driving the van at the time of the car accident. Appellants argue that the "only evidence presented by Ms. Martinez in her case was that one of the police officers told her that the gentleman driving the Van that collided with her vehicle [sic] name was Earl Wilson." Appellants argue that (1) "[s]uch evidence was hearsay;" (2) their trial counsel objected to this evidence; and (3) because the evidence was hearsay, Martinez presented no evidence that Wilson drove the van. Appellants point to the following portions of the record to support their argument:
APPELLEE'S TRIAL COUNSEL: Do you know of any reason why Mr. Wilson wouldn't have seen the vehicle you were in?
APPELLANTS' TRIAL COUNSEL: I'm going to object to the reference to Mr. Wilson until the driver of the other vehicle is identified.
THE COURT: All right.
APPELLEE'S TRIAL COUNSEL: Ms. Martinez, do you know who was driving the other vehicle?
MARTINEZ: Yes, sir, Mr. Earl Wilson was.
APPELLEE'S TRIAL COUNSEL: Okay.
MARTINEZ: I did not know it at the time of the accident. I knew it when they arrested him.
APPELLEE'S TRIAL COUNSEL: Okay.
APPELLANTS' TRIAL COUNSEL: Your Honor, may I take the witness on voir dire about the identification of the other driver?
THE COURT: No. You can just cross[-]examine her.
APPELLANTS' TRIAL COUNSEL: All right.
APPELLEE'S TRIAL COUNSEL: Okay. After Mr. Wilson ran into you, then what happened next?
Appellants made no further objections. After both parties rested and the trial court ruled on appellants' motion for directed verdict, appellants' trial counsel made the following statement during his closing argument:
Your Honor, I would reurge my objection. The only evidence that Earl Wilson was involved in this or my client Earl Wilson — there are thousands of Earl Wilsons — was something that the police officer, one of the police officers told Ms. Martinez. Obviously that's hearsay. And hearsay is no evidence. I don't know how you can call it anything but hearsay. She didn't identify him, her father didn't identify him. There is nothing — hearing something from one of the investigating officers, may not even have been the one that actually investigated the accident. It's still no evidence. So there is no evidence.
Appellants never objected to Martinez's identification of Wilson as the driver of the van on hearsay grounds or any other grounds. The first time appellants argued that Martinez's identification of Wilson was based on hearsay and thus did not constitute competent evidence was during closing statement.
Unobjected-to hearsay properly may be considered in analyzing the sufficiency of the evidence supporting a finding. Niche Oilfield Servs., 331 S.W.3d at 571; see Tex. R. Evid. 802; City of Keller, 168 S.W.3d at 812 n. 29. Therefore, we consider Martinez's testimony identifying Wilson as the driver in considering appellants' sufficiency challenge. Because Martinez testified that Wilson was the driver of the van that collided with the car she and Crittenton were travelling in, we conclude that the evidence is legally sufficient to support the trial court's finding that Wilson drove the van at the time of the accident.
Accordingly, we overrule appellants' sole issue on appeal.
II. Sanctions
In her response to appellants' appellate brief, Martinez requests that this court impose sanctions against appellants for filing a frivolous appeal under Texas Rule of Appellate Procedure 45. Martinez states in her brief that "this appeal has been brought by Appellants on the basis of testimony that does not exist, objections that were never made and rulings that never happened. Appellants, through their attorney, disagreed with the trial Court's decision, fabricated an objectionable hearsay statement, allege[d] nonexistent objections and now request that this Court reverse the trial Court's decision based on this farce."
After considering the record, briefs, or other papers filed in this court, we may award a prevailing party damages if we objectively determine that an appeal is frivolous. Tex. R. App. P. 45; Glassman v. Goodfriend, No. 14-09-00522-CV, 2011WL 2150225, at *7 (Tex. App.-Houston [14th Dist.] June 2, 2011, no pet. h.). Rule 45 does not mandate that this court award just damages in every case in which an appeal is frivolous; rather, the decision to award damages is a matter within this court's discretion. Glassman, 2011WL 2150225, at *7. In determining whether an appeal is objectively frivolous, we review the record from the viewpoint of the advocate and decide whether the advocate had reasonable grounds to believe the case could be reversed. Id. Assuming arguendo that appellants' appeal is frivolous, we decline to exercise our discretion to award damages. We overrule Martinez's request for Rule 45 sanctions.
Conclusion
We affirm the trial court's judgment and deny the request for sanctions.