Affirmed as Modified and Majority and Dissenting Memorandum Opinions

filed August 28, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00663-CV

JEFFERSON COUNTY, TEXAS, Appellant

V.

DONNA DAVIS, Appellee

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Court Cause No. B-182,252

DISSENTING MEMORANDUM OPINION

Assuming, as the majority concludes, that Issue No. 9 of the County’s brief 

raises a legal- or factual-sufficiency point of error regarding future mental anguish 

damages, I agree with Davis that we should not reach the issue because of the 

County’s briefing waiver.1

 Therefore, I would affirm the trial court’s judgment in 

1 The County’s first eight issues begin with the statement, “There is no evidence . . . .” 

Issue No. 9 complains about a “‘run-away’ jury” and states: “The verdict of the jury as to 

 
its entirety. Because the majority reaches Issue No. 9 and reverses on that basis, I 

respectfully dissent.

Through her appellee’s brief, Davis urges that the County’s wholesale 

failure to cite to the record waives any sufficiency challenge to damages. Davis 

notes that the only category of damages attacked by the County is future mental 

anguish damages. By its nature, evidence of future mental anguish is speculative. 

Therefore, we call upon the jury to evaluate non-speculative evidence and draw 

reasonable inferences about the future. Here, the County does not challenge the 

sufficiency of the evidence supporting past mental anguish damages. I believe the 

County, as appellant, has committed textbook briefing waiver by failing to cite to 

or otherwise analyze why the unchallenged evidence underpinning the past mental 

anguish element does not in any way support future mental anguish damages or 

does not support the amount awarded.

When an appellant’s brief fails to “contain a clear and concise argument for 

the contentions made, with appropriate citations to authorities and to the record,” 

Tex. R. App. P. 38.1(i), then Rule 38.9 affords the appellate court two choices:

(1) deem the appellant’s issue waived; or (2) exercise discretion to allow

amendment or rebriefing. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 

S.W.2d 279, 284 (Tex. 1994) (noting the “settled rule that an appellate court has 

some discretion to choose between deeming a point waived and allowing 

amendment or rebriefing”); Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex. App.—

Houston [14th Dist.] 1995, writ dism’d) (same). We construe briefs liberally, 

expect substantial compliance, and “may” require a brief to be amended, 

supplemented, or redrawn for formal defects, and we “may” require additional 

damages is so outrageous that it indicates that they failed to give the Defendant a fair hearing of 

the evidence it presented.”

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briefing for substantive defects. Tex. R. App. 38.9. The rule does not afford an 

appellate court discretion to ignore or forgive briefing deficiencies and address the 

merits of an appellant’s point of error that does not comply with this rule. 

I do not endorse a cavalier application of briefing waiver. For example, an 

appellant’s bare statement that there is “no evidence” does not waive a legal 

sufficiency point when the facts on appeal are undisputed and the gravamen of the 

sufficiency point is a question of law that the appellant has amply supported with 

citations to relevant authorities. See City of Arlington v. State Farm Lloyds, 145 

S.W.3d 165, 167–68 (Tex. 2004). Similarly, an appellant does not waive the point 

when the appellant cites to all of the material facts in a statement of facts and 

merely fails to repeat the citations in its analysis. See id. at 167. I completely 

agree that the Supreme Court rejects bright-line briefing waiver under these 

circumstances. See id. at 167–68.

However, the Supreme Court also embraces briefing waiver where an 

appellant fails to cite to the record to support a no-evidence argument that the 

evidence is so weak as to do no more than create a mere surmise or suspicion—

when there is no more than a mere scintilla of evidence. See id. at 167 (citing 

Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 

38 Tex. L. Rev. 361, 363 (1960)). Thus, citation to the record is required “when 

the vital fact must be inferred from other relevant facts and circumstances which 

are proved.” See Calvert, supra, at 363. 

Here, the County suggests that Davis’s evidence would not enable the jury to 

reach such an “outrageous award” of future mental anguish damages, which is “so 

excessive that the jury must have been dominated by passion or prejudice and 

could not have fairly weighed disputed evidence on the liability issue.” But, the 

amount of a party’s future mental anguish damages is one of those “vital facts” that 

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may be inferred from other circumstantial evidence. See Saenz v. Fid. & Guar. 

Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (direct evidence not always 

required). Texas law permits jurors to make a reasonable inference that a party 

will suffer future mental anguish damages. Adams v. YMCA of San Antonio, 265 

S.W.3d 915, 918 (Tex. 2008); see Wichita Cnty. v. Hart, 892 S.W.2d 912, 927 

(Tex. App.—Austin 1994) (jury could infer future mental anguish damages from 

past and present mental anguish when the terminated employee had not been 

reinstated; distinguishing case where the employee had been reinstated), rev’d on 

other grounds, 917 S.W.2d 779 (Tex. 1996).

The County necessarily contends that the jury could not make a reasonable 

inference from the unchallenged evidence of past mental anguish that Davis’s past 

mental anguish would continue in the future. But, the County does no more to 

support that contention than mention the words “no evidence.”

Therefore, I view the County’s briefing of its ninth issue regarding future 

mental anguish damages as deficient to an extent that liberal construction cannot 

repair. Within its ninth issue, the County does not provide a single citation to any 

part of the 640-page transcript of trial testimony, which includes testimony from 

the plaintiff, the plaintiff’s co-workers, and the plaintiff’s damages expert who was 

also a close relative. The County does not provide a single citation to any one of

the 200 pages of exhibits. And, the County does not refer to any of the record 

citations within the statement of facts, perhaps because all such citations pertain to 

the merits of liability. The County presents no analysis of how the evidence 

adduced in this five-day trial—including the unchallenged evidence of past mental 

anguish—when viewed under the appropriate standard of review,2 amounts to 

2 The County does not provide the standard of review for legal or factually sufficiency. 

Nor does the county cite any cases addressing the sufficiency of the evidence for future mental 

anguish damages.

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insufficient evidence or no evidence of future mental anguish damages.

Because Davis urged briefing waiver on this point, the County had ample 

opportunity to rebrief its ninth issue but did not. Because the County failed to 

rebrief, I would deem the County’s ninth issue waived. See Rendleman, 909 

S.W.2d at 59 (deeming the appellant’s sufficiency issue waived because the 

appellant failed to cite to the record; declining to exercise discretion to allow 

rebriefing because the appellant failed to rebrief during the seven months since the 

appellee’s brief had been filed). 

Accordingly, I respectfully dissent.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, Jamison, and McCally. (Christopher, J., 

Majority).

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