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Popwell v. Bryson

Court of Appeals of Texas, Seventh District, Amarillo

December 27, 2017


         On Appeal from the 100th District Court Collingsworth County, Texas Trial Court No. 7923, Honorable Stuart Messer, Presiding

          Before QUINN, C.J., and PIRTLE and, PARKER, JJ.


          PER CURIAM.

         Eddie 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.

         Issues 1 and 2: Sufficiency of the Evidence

         We 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.

         When 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 *3-4.

         Applying 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.

         Bryson's 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.

         Such 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.

         As for 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.

         Popwell 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.

         The "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.

         The 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 ...

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