Court of Appeals of Texas, Second District, Fort Worth
THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and GABRIEL, JJ.
MEMORANDUM OPINION 
Rita Vigil filed a negligence suit against Appellee Amy
Kirkland alleging personal injuries and damages after
Vigil's vehicle was rear-ended by Kirkland's vehicle.
A jury found that Kirkland's negligence, if any, did not
proximately cause the occurrence; the trial court entered a
take-nothing judgment on the jury's verdict. Vigil raises
two issues. She argues that the jury's failure to find
that Kirkland's negligence proximately caused the
occurrence is supported by legally and factually insufficient
evidence and that the trial court abused its discretion by
overruling her motion for new trial. We will affirm.
Factual and Procedural Background
and Kirkland testified at trial regarding the cause of the
accident. On the morning of August 3, 2012, Vigil had stopped
her vehicle at a red light. About fifteen seconds later, a
vehicle driven by Kirkland struck the rear end of Vigil's
vehicle. Vigil estimated that Kirkland was traveling thirty
miles per hour immediately before the impact. Vigil said that
the impact of the collision propelled her vehicle forward
"[a]bout half a car" length. Vigil testified that
repairs to her vehicle cost approximately $4, 000 and that
she sustained personal injuries to her back, neck, and
shoulders necessitating medical treatment.
testified that the accident occurred while she was on her way
home. She had driven to the elementary school where she had
been employed to pick up her personal effects because she was
moving to Alabama. Kirkland's nine-week-old son was with
her; he was buckled in a rear-facing infant carrier in the
backseat. A mirror mounted on the backseat enabled Kirkland
to check on him. Kirkland said that her son had been crying
ever since they left the school. When he abruptly stopped
crying, Kirkland thought he might be choking. She looked back
at the mirror to check on him and noticed that he had fallen
asleep. When she looked back at the road, Kirkland saw
Vigil's vehicle stopped at the red light approximately
seven to ten car lengths ahead of her. Although Kirkland
applied her brakes, she was not able to stop her vehicle
before it collided with Vigil's vehicle. When asked by
Vigil's counsel, "What could have been done
differently to prevent this accident, " Kirkland
responded, "I could have kept my eyes on the road."
Sufficiency of the Evidence
Standard of Review
challenging the legal sufficiency of an adverse finding on an
issue on which the party had the burden of proof at trial
must demonstrate on appeal that the evidence conclusively
established, as a matter of law, all vital facts in support
of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). The reviewing court first examines the
record for evidence that supports the finding, crediting
favorable evidence if a reasonable fact-finder could, while
disregarding contrary evidence, unless a reasonable
fact-finder could not. Id.; see City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If no
evidence supports the finding, then the reviewing court will
examine the entire record to determine if the contrary
proposition is established as a matter of law. Dow Chem.
Co., 46 S.W.3d at 241.
attacking the factual sufficiency of an adverse finding on an
issue on which the party had the burden of proof must
demonstrate on appeal that the adverse finding is so against
the great weight and preponderance of all of the evidence,
the judgment should be set aside and a new trial ordered.
Id. at 242; Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986).
performing evidentiary-sufficiency reviews, we must be
mindful that the fact-finder is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694,
696-97 (Tex. 1986); Nwokedi v. Unlimited Restoration
Specialists, Inc., 428 S.W.3d 191, 199, 205 (Tex.
App.-Houston [1st Dist.] 2014, pet. denied). The fact-finder
is responsible for resolving conflicts in the evidence, and
it may believe one witness and disbelieve another.
McGalliard, 722 S.W.2d at 697. We may not reweigh
the evidence and set aside a finding merely because we are of
the opinion that a different result is more reasonable.
Pool, 715 S.W.2d at 634.