Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 100th District Court Collingsworth County,
Texas Trial Court No. 7923, Honorable Stuart Messer,
QUINN, C.J., and PIRTLE and, PARKER, JJ.
Popwell appeals from the trial court's judgment finding
that he committed assault against appellee, Linda Bryson,
over the course of several years and awarding her $30, 000.00
in damages for her past and future pain and suffering. He
challenges the legal and factual sufficiency of the evidence
to support the trial court's finding that he committed
the tort and the trial court's award of damages. He also
contends the trial court erred by failing to separately
calculate economic and noneconomic damages. We affirm.
1 and 2: Sufficiency of the Evidence
review the legal sufficiency of the evidence according to the
well-established standard discussed in City of Keller v.
Wilson, 168 S.W.3d 802 (Tex. 2005). The standard
requires us to determine whether the evidence presented would
enable a reasonable and fair-minded fact-finder to reach the
conclusion it did. See id. at 827; Carson v.
Carson, No. 07-16-00311-CV, 2017 Tex.App. LEXIS 9238, at
*2-3 (Tex. App.-Amarillo Sept. 29, 2017, no pet.) (mem. op.)
If it would, then the evidence is legally sufficient to
support the finding. Carson, 2017 Tex.App. LEXIS
9238, at *3. In making that determination, we must credit
favorable evidence if a reasonable fact-finder could, and
disregard contrary evidence unless a reasonable fact-finder
could not. Id. Furthermore, the factfinder is the
sole judge of the credibility of the witnesses and the weight
to be assigned to their testimony. Id. We cannot
supplant those credibility decisions with ours.
assessing the factual sufficiency of the evidence, we need
not defer solely to the evidence supporting the decision.
Instead, our duty is to consider all the evidence in a
neutral light and determine whether the finding is so against
the great weight and preponderance of the evidence as to be
manifestly unjust or clearly wrong, regardless of whether the
record contains some evidence supporting the decision.
Id. Yet, that does not give us carte blanche to
substitute our decision for that of the fact-finder.
Id. We must still defer to its authority to resolve
credibility disputes and weigh the evidence. Id. at
the foregoing standards to the record at bar, we begin by
addressing the trial court's finding of fact that Popwell
assaulted Bryson. The record at bar contains Bryson's
testimony indicating that she and Popwell lived together for
about ten years. Early in the relationship, he pulled her
from the bed causing her to strike her head. The witness
further testified that he would strike her at least once a
month during the last two years of their relationship. The
more stress he experienced, the greater the likelihood he
would strike her. Bryson's friend also testified that she
saw Bryson with black eyes, "busted lips, " and
bruises on her upper body.
counselor described Bryson as suffering from post-traumatic
stress disorder (PTSD) and battered person syndrome (BPS).
Furthermore, people with PTSD fear for their lives. The
syndrome also interferes with their performance of daily
activities and work. Often, they also have nightmares.
Bryson's condition was debilitating, in the
counselor's opinion. She cried constantly. It also
prevented her from working outside the home and functioning
on a daily basis. So too would it affect her future
relationships with men given that it caused sexual intimacy
issues. When asked, the counselor also opined that it would
take constant physical abuse over a course of years for
Bryson to reach the condition she was in.
evidence, if believed by the trial court sitting as
fact-finder, would support the finding that Popwell assaulted
Bryson. Though appellant maintains that other evidence
indicated that Bryson's claims were false, the trial
court, as fact-finder, was free to disregard it due to his
position as the fact-finder having the sole authority to
weigh the evidence and make credibility decisions. So, we
conclude that the evidence is legally sufficient to support
the finding of assault.
the claim of factually insufficiency, we acknowledge the
presence of evidence tending to discredit Bryson's
contentions. Such evidence includes the timing of her
accusations and the absence of any complaints to local law
enforcement. Yet, considering the entirety of the record, we
cannot say that the trial court's finding is overwhelmed
by evidence suggesting that the assaults may not have
occurred. Again, much depends on which witnesses the
fact-finder opted to believe. So, the finding that Popwell
had assaulted Bryson on various occasions has the support of
factually sufficient evidence, too.
next questions the sufficiency of the evidence to support the
trial court's award of damages. In his view, "there
was no testimony as to the value of the pain and suffering
that [Bryson] allegedly suffered." We disagree.
"presence or absence of pain, either physical or mental,
is an inherently subjective question." GMC v.
Burry, 203 S.W.3d 514, 551 (Tex. App.-Fort Worth 2006,
pet. denied) (op. on reh'g). Here, the record contains
evidence of the existence of physical pain and emotional pain
and suffering. As previously mentioned, Bryson's
counselor testified that she suffered from PTSD and BPS. So
too was it said that the assaults had to have occurred over a
long period of time for her to be in the condition she was
in, a condition which interfered with her performance of
daily activities. Again, there is evidence that (1) Bryson
cried a great deal, (2) her psychological condition was
debilitating, (3) she could not work outside the home, and
(4) her condition would affect all future relationships with
men. While no one testified as to monetary valuation of her
pain and suffering, there is evidence of past and future pain
and suffering and mental anguish.
question then becomes whether the fact-finder's award for
pain and suffering was excessive. See Turner v. Duggin,
___ S.W.3d ___, 2017 Tex.App. LEXIS 2786, at
*21 (Tex. App.-Texarkana Mar. 31, 2017, no pet). Although the
"duration of the pain and mental anguish is an important
consideration, " "[n]o objective measures exist for
analyzing pain and suffering ...