AFFIRMED and Opinion Filed August 30, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00805-CV SHAMELL ROBERSON AND JO EL ROBERSON, Appellants V. SUNOCO PARTNERS LEASE AC QUISITION & MARKETING, LLC, AND ROBERT LEE JOHNSON, Appellees On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-18746 MEMORANDUM OPINION Before Justices Partida-Kipne ss, Reichek, and Breedlove Opinion by Justice Reichek Appellants Shamell Robers on and her husband Joe Robe rson sued Robert Lee Johnson and his employer Su noco Partners Lease Acquisition & Marketing, LLC for damages they alleged we re caused by Johnson’s negligen ce in a car accident. A jury found that Johnson was not negligent, and the trial court rendered a take-nothing judgment on the Robersons’ claims. In th is appeal, the Robersons contend the evidence is factually insufficient to support the finding of no negligence and complain of alleged evidentiary and jury-charge error. We affirm.–2– Background At about 3:00 a.m. on February 12, 2018, Shamell Robers on was driving to work in a Toyota Camry on US Highway 190/ State Highway 6 near College Station when she hit a black cow in th e roadway. She had not seen the cow and, at the time, did not know what she hit. She pulle d over to the right shoulder and stopped. Johnson was driving a commercial truck ha uling a tanker on the same highway in the same direction as Roberson. The partie s stipulated at trial that Johnson was in the course and scope of his employment w ith Sunoco at the time. When Johnson first saw Roberson’s car, it was in the shoulde r and he was in the right lane of the two-lane highway. He moved to the left la ne. Johnson then also hit a black cow that was in the road in front of him. He lo st control of his truck and crashed into Roberson’s car. Evidence showed the front of the commercial truck hit the back of Roberson’s Toyota at an angl e at a rate of about 50 m iles per hour. Roberson was badly injured in the crash. Roberson alleged Johnson was negligent for various reasons, including failing to drive at a speed safe for the conditions presented, failing to timely apply the brakes to avoid the collision, and by failing to take appropriate evasive measures. 1 She also alleged Johnson violated various traffic laws and regulations, which constituted

1 Although there are two appellants/plaintiffs in this case, Shamell Roberson and her husband, and two appellees/defendants, Johnson and hi s employer Sunoco, for the sake of simplicity we will generally refer to just the two drivers involved in the accident, Roberson and Johnson.–3– negligence per se. One of the provisions allegedly violated was 49 C.F.R. § 395.3(b), which sets limits on the hours a driv er of a commercial motor vehicle can drive in a certain period. In addition, Roberson alleged Su noco was vicariously liable for Johnson’s negligence. 2 Before trial, the tria l court granted summary judgment in favor of Johnson on Robe rson’s claims for negligence per se. Upon the motion of Sunoco and Johnson, the trial court designated Circle X Land and Cattle Co., a cattle ranc h near the accident site, as a responsible third party. They alleged Circle X owned the cattle that escaped onto th e highway and that Circle X’s negligence contributed to the collisions . At trial, a Circle X representative denied that the cows invol ved belonged to them. The jury charge asked whether the neglig ence of Johnson, Roberson, or Circle X proximately caused the occurrence in que stion. In a non-unanimous verdict, eleven jurors answered “no” for each pe rson or entity. The trial court rendered judgment on the jury’s verdict. Robers on filed a motion for new trial which was overruled by operation of law. This appeal followed. Factual Sufficiency Challenge In her first issue, Roberson challenges the factual sufficiency of the evidence to support the jury’s finding that Johnson was not negligent. She argues the finding

2 Roberson brought direct negligence claims against Sunoco for negligent entrustment, retention, hiring, supervision, and training. She also brought claims against several other defendants who allegedly owned or controlled the cattle involved in the incident. These claims and parties are not part of this appeal.–4– is against the great weight and preponderance of the evidence and asks us to reverse and remand for a new trial. In reviewing Roberson’s assertion that th e evidence is factually insufficient to support the jury’s no-negligence finding, this Court considers and weighs all the evidence. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex . 2001). We can set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. We must not substitute our judgment for that of the factfinder. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003). The jury is the sole judge of the credibility of the witnesses. Id. Roberson called Johnson as an adverse witn ess. He testified his visibility was clear at the time of the accident; there wa s no fog, rain, or ic e on the roadway that night. He first saw Roberson’s vehicle fro m about a half a mile away. Johnson had his high beams on, but switche d to low beams because he did not want to blind Roberson. Roberson was parked in the right shoulder, but part of her car was in the right lane. Roberson’s brake lights were on , but her hazard lights were not. Johnson did not see anything to suggest Roberson had a collision. Johns on’s truck was on cruise control set at 70 miles per hour, wh ich was the speed lim it. Johnson testified that when he saw Roberson’s vehicle, he immediately m oved over to the left lane “just to play it safe” and “give [her] car cu shion.” He decelerated the cruise control as he got closer to Roberson’s car. Johns on then saw something big and black in the–5– left lane of the road in front of him, but did not know what it was. He testified that he braked when he saw it, but did not lear n it was a cow until afte r the accident. He hit the cow because he had no other option. He braced hi mself, grabbed the steering wheel as tight as he could, and drove strai ght through it. It was what he had been trained to do—slow down as much as possible, but drive through it. If he moved to the right to avoid the cow, he ran the risk of hitting Roberson head on. If he moved to the left, he might have gone into oncomi ng traffic. There were only fractions of a second between when he sa w the cow until he hit it. Once he hit the cow, he pushed in on both the brake and clutch. Th e steering wheel went “all the way over to the right.” Then there was another impa ct as he hit Roberson’ s vehicle. Johnson then went down a hill and was able to st op the truck. He checked on Roberson and called 911. Johnson often traveled that st retch of highway for work and had never seen cows in the roadway be fore. He agreed his testim ony that he braked before hitting the cow did not match the computer data from his truck. Johnson had worked the night shift for 15 to 20 years. The shift he was working at the time of the accident starte d at 5 p.m. on February 11. When the accident happened at 3 a.m., he was on his way to load the empty tank he was pulling with crude oil. Johnson’s job was not one that involved constant driving. He typically drives for about an hour at a time, then arrives at a site and gets out of the truck for about 45 minutes. During the 8 hours prior to the accident, he was “on duty” or working, but not continually driving.–6– On February 10, Johnson was on duty and driving for 10 hours and 23 minutes. On February 9, he was on duty and driving for 7 hours and 24 minutes. On February 8, he was on duty and driving for 2 hours and 42 minutes. On February 7, he was on duty and drivin g 10 hours and 46 minutes. On February 6, he was on duty and driving 12 hours and 30 minutes. On February 5, he was on duty and driving 10 hours and 26 minutes. Johnson testif ied that two or thr ee days before the collision, he had a “reset period” when he was off duty for more than 35 hours. He testified he was well rested that night and it was unfair to suggest he had been working too many hours. From February 5 to February 12, Johnson was on duty and driving 75 hours. Johnson spoke to State Troope r Kameron Yellin at the scene after the crash. He told him that when he saw Roberson’s vehicle, he started slowing down. Trooper Yellin’s crash report indicated that the anim al on the road was the sole contributing factor to the accident. Each side presented an accident rec onstructionist who reviewed data from different sources on the comm ercial vehicle Johnson dr ove. Roberson’s witness, Danny Phillips, testified that Johnson approached the crash area with his cruise control set to 70 mph. His speed then ab ruptly changed to 61 mph, disengaging the cruise control. At the same time, Johns on’s steering wheel, whic h had been straight, moved clockwise about 344 degrees. Acco rding to Phillips, Johnson never applied his brakes meaningfully from his abrupt sp eed change to the ti me his vehicle came–7– to a stop. Phillips also said that afte r the speed change, Johnson applied “nearly 100 percent throttle during the majority of his travel” until he came to a rest. Phillips testified this data indicated “pedal conf usion,” which is hitting the gas when one thinks they are hitting the br ake. Phillips testified the data showed Johnson did not apply the brakes until about 8 seconds after the collision and it was a “very momentary blip.” Roger Allen, an expert in commercial trucking, reviewed the crash report, discovery, exhibits, and the electronic data. In evaluating Johnson’s driving, Allen also considered the Texas Commercial Motor Vehicle Driver’s Handbook and the Federal Motor Carrier Safety Regulations which both apply to commercial drivers like Johnson. He agreed the data from th e truck showed Johnson did not apply his brakes until 8 seconds after the crash. According to Allen, Johnson was not acting as a safe and prudent commer cial driving prior to the crash. Allen cited Johnson’s failure to reduce his speed when he saw R oberson’s car on the side of the highway. He also testified Johnson was “overdri ving his headlights.” He explained that Johnson could see 250 feet in front of him w ith his headlights on, but could not bring the vehicle to a stop in that distance. On cross-examinati on, Allen acknowledged that even if Johnson had been driving 50 m ph, he still would not have been able to stop in 250 feet. Allen agreed that if there were no cows on the highway that night there would not have been a crash. He further agreed Johnson’s decision to maintain–8– his lane when he saw the cow was reasonable and that it was not possible for Johnson to control his vehicle after hitting the cow. Robert Swint was Johnson’s accident reconstructionist. While Roberson’s expert Phillips relied solely on electronic data from the vehicles involved, Swint’s scope was broader. His office visited the scene within 12 hour s of the accident and looked at the physical evidence, including scraping and tire marks on the road, and GPS data. Swint indicated that the vehi cle data alone does not provide “precise accident reconstruction.” Sw int testified the electronic da ta from the truck needs to be evaluated in conjunction with the physical evidence on the highway. Even the manufacturers of the data equipment state th at it alone is not accurate when trying to determine what happened in a collision. Swint determined that Johnson’s change in speed from 70 to 61 mph occurred before he collided with the cow. According to Swint, at the time Johnson’s steering wheel turned 344 degrees upon hitting the co w, his truck was going approximately 58 mph, not almost 70 mph like the data indi cated. Swint testified the accident was beyond Johnson’s control. He could not see the cow in tim e to react and stop. Had the cow not been in the roadway, this accident would never have happened. Jeffrey Andre, an expert in human visual science, te stified that no driver in Johnson’s situation should have been expected to see th e cow in time to avoid a collision. The cow was virtually invisible. Roberson argues no reasonable juror woul d fail to find negligence when the–9– evidence showed Johnson was aware of Roberson’s vehicle on the shoulder and determined he should switch la nes, but maintained his 70 mph speed and did not turn on his high beams. Instead of turning the ve hicle, Johnson ran straight into the cow. Further, he did not apply his brakes until 8 seconds after impact with the cow. Under the appropriate standa rd of review, we must c onsider all the evidence. Even though there was nothing to indicate Roberson had been in an accident, Johnson moved to the left lane when he saw her to “pla y it safe” and give her car “some cushion.” He was driv ing the speed limit with his cr uise control on. Although Roberson’s expert Phillips said the vehicle data showed Robers on did not slow down before hitting the cow, there was testimony to the contrary. Johnson testified that when he saw Roberson’s car he started slowing the truck down by using his finger to decelerate the cruise control. Swint, whose analysis was broader than Phillips’, corroborated Johnson’s testimony about slow ing down. His accident reconstruction showed there was some type of braking fr om Johnson’s vehicle prior to the impact with the cow. According to Swint, Johnson was driving about 10 mph slower than the data showed when he hit the cow. Although the recording device indicated Johnson did not apply the brakes until after the collision, Swint testified the vehicle data must be considered with physical evidence. Further the black cows were virtually invisible in the middle of the night. Andre testified no driver should have been expected to see the cow until it was about 50 feet away. Johnson testified he did not attempt to swerve to avoid hitting th e cow because he was trained to maintain–10– his lane and drive through it. Roberson’s own expert agre ed it was reasonable for Johnson to maintain his lane and drive through the cow instead of attempting to turn left or right. After Johnson hit the cow, hi s truck’s front axle and right tire were compromised, causing the steering wheel to turn 344 degrees to the right and hit Roberson’s car. Johnson did not have c ontrol over his truck to avoid hitting Roberson. There was conflicting evidence on the issue of whether Johnson was negligent, most significantly on the issue of whether Johnson slowed his truck down when he saw Roberson on the side of the road . It is not our role to substitute our judgment for that of the jurors. We must defer to the jury’s determination of the credibility of the witnesses and other ev idence. The no-negligence finding is not against the great weight and preponde rance of the evidence. We overrule Roberson’s first issue. Exclusion of Evidence Next, Roberson contends the trial c ourt erred in excluding evidence of Johnson’s “driver’s logs, the hours-of-s ervice regulation, and Sunoco’s company policies.” Roberson argues this evidence would have shown that at the time of the accident Johnson had driven more hours th at week than Sunoco policy permitted and should not have been driving. We review a trial court’s decision to exclude evidence for an abuse of discretion. Fleming v. Wilson , 610 S.W.3d 18, 21 (Tex. 2020).–11– Driver’s Logs The trial court excluded Johnson’s “driver’s logs,” Plaintiffs’ Exhibits 30 and 73, at a pretrial hearing. Although we have been unable to locate these exhibits in the record, as described at the hearing, Ex hibit 30 is a record of Johnson’s driving taken from data on his truck and Exhibit 73 consists of pages from a log book kept by Johnson. Johnson objected that the evid ence was irrelevant because the trial court had dismissed Roberson’s neg ligence per se claims and t hus Roberson did not have a claim based on any violation of laws re gulating maximum driving hours. Roberson argued the logs were still releva nt to her ordinary negligen ce claims. The trial court sustained Johnson’s objection. Roberson’s brief does not direct this Cour t to where in the large record we can find the logs excluded by the trial court, a nd we have been unable to locate them. This Court does not have a duty to revi ew a voluminous record without guidance from the appellant to determine whether an assertion of reversib le error is valid. Keyes Helium Co. v. Re gency Gas Servs., L.P. , 393 S.W.3d 858, 861 (Tex. App.— Dallas 2012, no pet.). Roberson has not preserved any e rror in the exclusion of these exhibits for our review. See id. ; T EX

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. P. 38.1(i) (brief must contain appropriate citations to record). In addition, even if Roberson had preser ved error and the tr ial court erred in excluding Exhibits 30 and 73 , any error was harmless. See T EX

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. P. 44.1(a)(1). As detailed ear lier in this opinion, Johnson testified about the specific–12– number of hours he worked each day in the days leading up to the crash. A handwritten summary of the hours Johnson testified about was also admitted into evidence. Because the excluded exhibits were cu mulative of similar evidence showing how much Johnson drove in the da ys before the accident, any error in excluding the logs did not cause the rendition of an improper judgment. See Gunn v. McCoy , 554 S.W.3d 645, 668–69 (Tex. 2018). Sunoco Policies Roberson also complains about th e exclusion of “hours-of-service regulations” and Sunoco’s comp any policies. It is unc lear what hours-of-service regulations Roberson complain s were excluded. She directs us to two offers of proof, but they both involved Sunoco’s policie s. To the extent the hours-of-service regulations are something other than thes e policies, Roberson ha s waived any error in their exclusion by failing to ad equately brief this issue. See T EX

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. P. 38.1(i) (brief must contain clear and concis e argument for contentions made, with appropriate citations to authorities and record). The offers of proof regarding Sunoco co mpany policy were made near the end of trial through Johnson’s visual pe rception witness Jeffre y Andre and Johnson himself. Roberson’s counsel showed them each a copy of Sunoco’s Crude Trucking Driver Training Manual. The witnesses stated that one of the manual’s requirements was that no driver was allowed to drive if on duty 60 hours in a ny 7 consecutive days–13– or 70 hours in any 8 consecutive days. 3 Johnson was required to abide by the manual when driving for Sunoco. A ndre stated he did not analyz e whether fatigue played a role in Johnson’s reaction time because it was not relevant. No driver, no matter how alert, could have seen the cow fro m a distance greater than 50 feet. Johnson objected to the offer of proof as irrelevant. He argued the time issues had been addressed with th e chart summarizing his hours and that the manual did not set any relevant legal standard. The trial court ruled the evidence was not admissible. Roberson contends the trial court should have allowed the jury to hear that Johnson should not have been driving at the time of the accident per Sunoco rules. Roberson also argues the policies would have shown Johnson was fatigued at the time of the accident because he had driven more than allowed. We cannot conclude the trial court abused its discretion in excluding evidence of Sunoco’s policies on driving hours. A company’s internal po licies, taken alone, do not establish the standard of care in a negligence case. FFE Transp. Servs., Inc. v. Fulgham , 154 S.W.3d 84, 92 (Tex. 2004); Discount Tire Co. of Tex., Inc. v. Cabanas , 553 S.W.3d 566, 576 n.2 (Tex. App.—San Antonio 2018, pe t. denied). On the issue of fatigue, Roberson’s offer of proof included testimony from Andre that fatigue was not

3 These restrictions are the same as t hose found in the code of federal regulations and formed the basis for one of Roberson’s negligence per se cl aims dismissed on summary judgment. See 49 C.F. R. § 395.3(b).–14– relevant to the case. Under these circum stances, the trial cour t did not abuse its discretion in determining the Sunoco policies in question were not relevant. Even if it was error to exclude evidence of Sunoco’s driving policies, any error was harmless. Roberson wanted the jury to know about the policy to establish that Johnson was not supposed to be driving at the time of the accident and may have been fatigued. But Roberson did not presen t evidence or make an offer of proof to show Johnson was in violation of the pol icy. There was unc ontroverted testimony from Johnson that he took a 35-hour break dur ing the week and was not in violation of the policy. Any error in excluding the evidence did not cause the rendition of an improper judgment. See T EX

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. P. 44.1(a)(1). We ove rrule Roberson’s second issue. Jury Charge Finally, in her third issue, Roberson contends the trial court “abused its discretion by submitting multiple infere ntial rebuttal instructions—each unsupported by the evidence—and the erro r probably caused the rendition of an improper verdict.” Question 1 was a broad-form question on negligence. It asked the jury if the negligence of Johnson, Circle X, or R oberson proximately caused the injury in question. In connection with this question, the jury was given instructions on emergency, unavoidable accident, and ne w and independent ca use. Roberson contends that because each of these infere ntial rebuttal defenses was predicated on the same thing—the cows on the highway—the trial court erred in giving all three–15– instructions. In addition, although the phras ing of Roberson’s third issue asserts all three inferential rebuttal instructions were improper, she argues there was no evidence in the record to su pport only the instruction on ne w and independent cause. An inferential rebuttal defe nse operates to rebut an essential element of the plaintiff’s case by proof of other facts. Dillard v. Texas Elec. Co-op , 157 S.W.3d 429, 430 (Tex. 2005). The purpose of these in structions is to advise the jurors, in the appropriate case, that they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the pa rty’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it. Id. at 432. Here, following the definition of “neg ligence,” the trial court gave the following instruction on “emergency”: A person is not negligent if confronted by an “ emergency .” An emergency is circumstances arisi ng suddenly and unexpectedly, which was not proximately caused by a ny negligence on his/her part and which, to a reasonable person, re quires immediate action without time for deliberation. When confronted by an emergency, his/her conduct in such an emergency is not neglig ence or failure to use ordinary care if, after such emergency arises, s/ he acts as a person of ordinary prudence would have acted under th e same or similar circumstances. Then, after the definition of “proximate cause,” the charge in structed the jury on “unavoidable accident” and “new and independent cause”: A person is not negligent if an accident is an “ unavoidable accident ,” that is, an event not proxi mately caused by the negligence of any party to the occurrence.–16– “ New and independent cause ” means the act or omission of a separate and independe nt agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence. The test for determining whether a part y has preserved a complaint of jurycharge error for appellate re view is whether the party (1) timely and plainly made the trial judge aware of the compla int, and (2) obtained a ruling. JNM Express, LLC v. Lozano , 688 S.W.3d 327, 333 (Tex. 2024). Here , each side presented a proposed charge to the trial court. Both propos als included instructions on emergency, unavoidable accident, and new and independent cause. At oral argument before this Court, Roberson’s counsel represented that they later abandoned those definitions, but did not submit a new proposed charge. At the charge conference, Roberson ma de the following objection to Question 1: [T]here’s no evidence of sudden emergency. Mr. Johnson confirmed that he was not confro nted with an emergency. The instruction’s, therefore, improper. The instruction is also improper when combined with the unavoidabl e accident and new independent cause instruction because at this point it becomes an impermissible comment on the weight of the evidence. The trial court overruled Roberson’s objections. The objections made at the charge conf erence did not plainly make the trial judge aware of the complaints Roberson now raises. The objections involved only the instruction on “emergency.” A lthough Roberson included an identical–17– emergency instruction in her proposed char ge, she argued the evidence did not raise the issue of emergency. She also argue d that an instruction on emergency was improper in connection with the instructi ons on unavoidable accident and new and independent cause. The implication wa s that it was okay to instruct on both unavoidable accident and new and independent cause, but not on emergency as well. This is different from the issue raised on a ppeal in which Roberson contends the trial court should not have given all three instru ctions because they were all based on the same thing, the cows on th e road. Nor did Roberson object on grounds that new and independent cause was not raised by the ev idence. Also, Robers on’s appellate brief contains two just sentences regarding why it was improper to give a new-andindependent-cause instructio n, and the argument is not supported by any legal authority. See T EX

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. P. 38.1(i). We conclude Roberson has not preserved her jury-charge error issues for our review. 4 Even if we consider the merits of R oberson’s arguments, there is no error. A trial court has broad discretion in constructing the ch arge, so long as it is legally

correct. Emerson Elec. Co. v. Johnson , 627 S.W.3d 197, 208 (Tex. 2021). An instruction is proper if it (1) assists the jury, (2) accura tely states the law, and (3) finds support in the pleadings and evidence. Columbia Rio Grande Healthcare, L.P.

4 At oral argument, Roberson asserted unavoidable accident was not raised by the facts in the case because someone who was not a “party to the occurrence” let the cows out. This argument was not briefed and has been waived. T EX

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. P. 38.1(i); St. John Missionary Bap tist Church v. Flakes , 595 S.W.3d 211, 215 (Tex. 2020).–18– v. Hawley , 284 S.W.3d 851, 855 (Tex. 2009). We will not reverse a jury verdict based on charge error unless the error probably caused the rendition of an improper judgment. Id. at 856. Roberson argues the new-and-indepe ndent-cause instruction was not supported by the evidence because Johnson’s collision with her car was “the last event on the roadway.” New and independent cause is a component of the proximate cause issue. Id. A new and independent cause of an occurrence is the act or omission of a separate and in dependent agent, not reasonably fo reseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question. Id. A new and independent cause alters the natural sequence of events, produces results that would not have otherwise occurred, is an act or omission not brought into operation by the original wrongful act of the defendant, and operates entirely independe ntly of the defendant’s a llegedly negligent act or omission. Id. at 857. Under the facts of this case, we cannot conclude the trial court abused its discretion in instructing the jury on new and independent cause . Roberson alleged in part that Johnson was negligent because when he first saw her car on the shoulder, he did not slow down. But a jury could have determined that the cow in Johnson’s lane was a new and in dependent cause that produced re sults that would not otherwise have occurred. It was undisputed that th e accident would not have occurred if the cow Johnson hit was not there.–19– We turn to Roberson’s argument that it was error to give multiple inferential rebuttal instructions. She has not cited any law, and we have found none, for the proposition that it is error to give multiple inferential rebuttal instruction. She relies

on Dillard v. Texas Elec. Co-op , which also involved cows in the road and inferential rebuttal instructions. Dillard , however, presented the invers e of this case. The issue on appeal was whether the trial court erred in giving just one inferential rebuttal instruction. In Dillard , a truck driver was delivering a load of utility poles for his employer TEC when he enc ountered cows on the highwa y at night. 157 S.W.3d at 430. Unable to stop without losing contro l of his vehicle, th e driver hit a cow, leaving it dead in the road. A few minutes later another driver, Brown, hit the dead cow with her car. She crashed into anothe r vehicle, killing one of its occupants, Dillard. Id. In a suit brought by Dillard agains t TEC and its driver, TEC asked for two inferential rebuttal instru ctions, unavoidable accident and sole proximate cause. Id. at 431. The trial court instruct ed only on unavoidable accident. Id. TEC argued on appeal that it was entitled to both instructi ons because there was evidence the accidents may have been caused by a conditi on beyond its control (the cattle) or by someone not a party to the litigation (either the cattle owner or Brown). Id. at 432. But TEC had not argued at trial that Brown was to blame for the accident, and the Texas Supreme Cour t held that the unavoidable accident instruction given was sufficiently broad to include “all shades of TEC’s inferential rebuttal theories concerning the cattle.” Id. at 433. The court stated that “giving–20– multiple instructions on every possible rebu ttal inference has the potential to skew the jury’s analysis.” Id. Despite this language, Dillard does not impose a bright-line rule against giving multiple inferential rebuttal instruc tions. Given the discretion afforded to trial courts in preparing the jury charge, we cannot conclude the trial court erred in giving multiple inferential rebuttal instru ctions. All three were raised by the evidence in this case, and Roberson initially asked for all three instructions in her proposed charge. At the charge conf erence, Roberson only expressed a problem with giving the emergency instruction in addition to the other two. Roberson argues that because multiple in ferential rebuttal in structions were given, the jurors may not have all agreed on one defensive theory. But Dillard instructs that the jurors need not have agreed on what person or thing caused an occurrence, as long as they agreed it was not the defendant. Dillard , 157 S.W.3d at 434. In other words, under broad-form s ubmission rules, jurors need not agree on every detail of what occurred so long as th ey agree on the legally relevant result. Id. Even if the trial court erred in giving multiple inferential rebuttal instructions, we conclude the error did not re sult in an improper judgment. See T EX

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. P. 44.1(a)(1). There was ampl e evidence that Johnson did not drive in a negligent manner, even without consideration of the inferential rebuttal de fenses. Even though he had no reason to be lieve Roberson had been in an accident, he cautiously moved to the left lane when he saw her to give her cushion. Evidence showed Johnson–21– decelerated his cruise control upon seeing Roberson. His decision to drive through the cow instead of swerving was based on his training and was reasonable. We overrule Roberson’s third issue. Cumulative Error Finally, at oral argument, Roberson’s coun sel asserted that even if none of the issues presented amounts to reversible error, together they presen t cumulative error. Roberson did not make a cumu lative error argument in he r brief, therefore it has been waived. T EX

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. P. 38.1(i); St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 215 (Tex. 2020) (courts of appeals have authority to deem unbriefed point waived). Even so, there is no cumula tive error here. Under the doctrine of cumulative error, where no one in stance of error is sufficient to call for a reversal, all instances taken together may do so. Sproles Motor Freight Lines, Inc. v. Long , 168 S.W.2d 642, 645 (Tex. 1943). To s upport reversal based on cumulative error, a complaining party must show that based on the record as a whole, but for the alleged errors, the jury would have re ndered a verdict favorable to it. OwensCorning Fiberglas Corp. v. Malone , 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d , 972 S.W.2d 35 (Tex. 1998). When , as here, there are no errors to be considered as a combined whole fo r purposes of evaluating harm, we reject cumulative error arguments. In re BCH Dev., LLC , 525 S.W.3d 920, 930 (Tex. App.—Dallas 2017, orig. proceeding).–22– Accordingly, we affirm the trial court’s judgment.

220805F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–23– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SHAMELL ROBERSON AND JOEL ROBERSON, Appellants No. 05-22-00805-CV V. SUNOCO PARTNERS LEASE ACQUISITION & MARKETING, LLC, AND ROBERT LEE JOHNSON, Appellees On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-18-18746. Opinion delivered by Justice Reichek. Justices Partida-Kipness and Breedlove participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellees SUNO CO PARTNERS LEASE ACQUISITION & MARKETING, LLC, AN D ROBERT LEE JOHNSON recover their costs of this appeal from a ppellants SHAMELL ROBERSON AND JOEL ROBERSON.
Judgment entered this 30th day of August, 2024.