AFFIRMED and Opinion Filed August 30, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00805-CV 

SHAMELL ROBERSON AND JOEL ROBERSON, Appellants 

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 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Reichek, and Breedlove 

Opinion by Justice Reichek 

Appellants Shamell Roberson and her husband Joe Roberson sued Robert Lee 

Johnson and his employer Sunoco Partners Lease Acquisition & Marketing, LLC 

for damages they alleged were caused by Johnson’s negligence 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 this 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. 
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Background 

 At about 3:00 a.m. on February 12, 2018, Shamell Roberson 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 the roadway. She had not seen the cow and, at the time, 

did not know what she hit. She pulled over to the right shoulder and stopped. 

Johnson was driving a commercial truck hauling a tanker on the same highway in 

the same direction as Roberson. The parties stipulated at trial that Johnson was in 

the course and scope of his employment with Sunoco at the time. When Johnson 

first saw Roberson’s car, it was in the shoulder and he was in the right lane of the 

two-lane highway. He moved to the left lane. Johnson then also hit a black cow that 

was in the road in front of him. He lost 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 angle at a rate of about 50 miles 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 his employer Sunoco, for the sake of simplicity we will generally refer 

to just the two drivers involved in the accident, Roberson and Johnson. 
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negligence per se. One of the provisions allegedly violated was 49 C.F.R. § 

395.3(b), which sets limits on the hours a driver of a commercial motor vehicle can 

drive in a certain period. In addition, Roberson alleged Sunoco was vicariously 

liable for Johnson’s negligence.2

 Before trial, the trial court granted summary 

judgment in favor of Johnson on Roberson’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 ranch near the accident site, as a responsible third party. 

They alleged Circle X owned the cattle that escaped onto the highway and that Circle 

X’s negligence contributed to the collisions. At trial, a Circle X representative 

denied that the cows involved belonged to them. 

The jury charge asked whether the negligence of Johnson, Roberson, or Circle 

X proximately caused the occurrence in question. In a non-unanimous verdict, 

eleven jurors answered “no” for each person or entity. The trial court rendered 

judgment on the jury’s verdict. Roberson 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. 
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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 the 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 witness. He testified his visibility was 

clear at the time of the accident; there was no fog, rain, or ice on the roadway that 

night. He first saw Roberson’s vehicle from about a half a mile away. Johnson had 

his high beams on, but switched 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. Johnson’s truck was on 

cruise control set at 70 miles per hour, which was the speed limit. Johnson testified 

that when he saw Roberson’s vehicle, he immediately moved over to the left lane 

“just to play it safe” and “give [her] car cushion.” He decelerated the cruise control 

as he got closer to Roberson’s car. Johnson then saw something big and black in the 
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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 learn it was a cow until after the accident. He 

hit the cow because he had no other option. He braced himself, grabbed the steering 

wheel as tight as he could, and drove straight 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 oncoming traffic. There were only fractions of 

a second between when he saw the cow until he hit it. Once he hit the cow, he 

pushed in on both the brake and clutch. The steering wheel went “all the way over 

to the right.” Then there was another impact as he hit Roberson’s vehicle. Johnson 

then went down a hill and was able to stop the truck. He checked on Roberson and 

called 911. Johnson often traveled that stretch of highway for work and had never 

seen cows in the roadway before. He agreed his testimony 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 started 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. 
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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 driving 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 testified that two or three 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 Trooper 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 animal on the road was the sole contributing 

factor to the accident. 

Each side presented an accident reconstructionist who reviewed data from 

different sources on the commercial vehicle Johnson drove. Roberson’s witness, 

Danny Phillips, testified that Johnson approached the crash area with his cruise 

control set to 70 mph. His speed then abruptly changed to 61 mph, disengaging the 

cruise control. At the same time, Johnson’s steering wheel, which had been straight, 

moved clockwise about 344 degrees. According to Phillips, Johnson never applied 

his brakes meaningfully from his abrupt speed change to the time his vehicle came 
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to a stop. Phillips also said that after 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 confusion,” which is hitting the gas when one 

thinks they are hitting the brake. 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 the 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 commercial driving prior to the crash. Allen cited Johnson’s 

failure to reduce his speed when he saw Roberson’s car on the side of the highway. 

He also testified Johnson was “overdriving his headlights.” He explained that 

Johnson could see 250 feet in front of him with his headlights on, but could not bring 

the vehicle to a stop in that distance. On cross-examination, Allen acknowledged 

that even if Johnson had been driving 50 mph, 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 
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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 hours of the accident and 

looked at the physical evidence, including scraping and tire marks on the road, and 

GPS data. Swint indicated that the vehicle data alone does not provide “precise 

accident reconstruction.” Swint testified the electronic data from the truck needs to 

be evaluated in conjunction with the physical evidence on the highway. Even the 

manufacturers of the data equipment state that 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 cow, his truck was going approximately 

58 mph, not almost 70 mph like the data indicated. Swint testified the accident was 

beyond Johnson’s control. He could not see the cow in time 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, testified that no driver in 

Johnson’s situation should have been expected to see the cow in time to avoid a 

collision. The cow was virtually invisible. 

Roberson argues no reasonable juror would fail to find negligence when the 
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evidence showed Johnson was aware of Roberson’s vehicle on the shoulder and 

determined he should switch lanes, but maintained his 70 mph speed and did not turn 

on his high beams. Instead of turning the vehicle, Johnson ran straight into the cow. 

Further, he did not apply his brakes until 8 seconds after impact with the cow. 

Under the appropriate standard of review, we must consider 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 “play it safe” and give her car 

“some cushion.” He was driving the speed limit with his cruise control on. Although 

Roberson’s expert Phillips said the vehicle data showed Roberson 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 slowing down. His accident reconstruction 

showed there was some type of braking from 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 the cow because he was trained to maintain 
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his lane and drive through it. Roberson’s own expert agreed 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, his 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 control 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 evidence. The no-negligence finding is not 

against the great weight and preponderance of the evidence. We overrule 

Roberson’s first issue. 

Exclusion of Evidence 

Next, Roberson contends the trial court erred in excluding evidence of 

Johnson’s “driver’s logs, the hours-of-service 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 that 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). 
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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, Exhibit 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 evidence was irrelevant because the trial court 

had dismissed Roberson’s negligence per se claims and thus Roberson did not have 

a claim based on any violation of laws regulating maximum driving hours. Roberson 

argued the logs were still relevant to her ordinary negligence claims. The trial court 

sustained Johnson’s objection. 

Roberson’s brief does not direct this Court to where in the large record we can 

find the logs excluded by the trial court, and we have been unable to locate them. 

This Court does not have a duty to review a voluminous record without guidance 

from the appellant to determine whether an assertion of reversible error is valid. 

Keyes Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—

Dallas 2012, no pet.). Roberson has not preserved any error in the exclusion of these 

exhibits for our review. See id.; TEX. R. APP. P. 38.1(i) (brief must contain 

appropriate citations to record). 

In addition, even if Roberson had preserved error and the trial court erred in 

excluding Exhibits 30 and 73, any error was harmless. See TEX. R. APP. P. 

44.1(a)(1). As detailed earlier in this opinion, Johnson testified about the specific 
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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 cumulative of similar evidence 

showing how much Johnson drove in the days 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 the exclusion of “hours-of-service 

regulations” and Sunoco’s company policies. It is unclear what hours-of-service 

regulations Roberson complains were excluded. She directs us to two offers of 

proof, but they both involved Sunoco’s policies. To the extent the hours-of-service 

regulations are something other than these policies, Roberson has waived any error 

in their exclusion by failing to adequately brief this issue. See TEX.R. APP. P. 38.1(i) 

(brief must contain clear and concise argument for contentions made, with 

appropriate citations to authorities and record). 

The offers of proof regarding Sunoco company policy were made near the end 

of trial through Johnson’s visual perception witness Jeffrey 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 any 7 consecutive days 
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or 70 hours in any 8 consecutive days.3

 Johnson was required to abide by the manual 

when driving for Sunoco. Andre stated he did not analyze 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 from a distance greater than 50 feet. 

Johnson objected to the offer of proof as irrelevant. He argued the time issues 

had been addressed with the 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 policies, 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, pet. 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 those found in the code of federal regulations and formed the basis 

for one of Roberson’s negligence per se claims dismissed on summary judgment. See 49 C.F. R. § 395.3(b). 
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relevant to the case. Under these circumstances, the trial court 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 present evidence or make an offer of proof to 

show Johnson was in violation of the policy. There was uncontroverted testimony 

from Johnson that he took a 35-hour break during 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 TEX.R. APP. P. 44.1(a)(1). We overrule Roberson’s second 

issue. 

Jury Charge 

Finally, in her third issue, Roberson contends the trial court “abused its 

discretion by submitting multiple inferential rebuttal instructions—each 

unsupported by the evidence—and the error 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 Roberson proximately caused the 

injury in question. In connection with this question, the jury was given instructions 

on emergency, unavoidable accident, and new and independent cause. Roberson 

contends that because each of these inferential rebuttal defenses was predicated on 

the same thing—the cows on the highway—the trial court erred in giving all three 
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instructions. In addition, although the phrasing of Roberson’s third issue asserts all 

three inferential rebuttal instructions were improper, she argues there was no 

evidence in the record to support only the instruction on new and independent cause. 

An inferential rebuttal defense 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 instructions 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 party’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 “negligence,” the trial court gave the 

following instruction on “emergency”: 

A person is not negligent if confronted by an “emergency.” An 

emergency is circumstances arising suddenly and unexpectedly, which 

was not proximately caused by any negligence on his/her part and 

which, to a reasonable person, requires immediate action without time 

for deliberation. When confronted by an emergency, his/her conduct 

in such an emergency is not negligence or failure to use ordinary care 

if, after such emergency arises, s/he acts as a person of ordinary 

prudence would have acted under the same or similar circumstances. 

Then, after the definition of “proximate cause,” the charge instructed 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 proximately caused by the negligence 

of any party to the occurrence. 
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“New and independent cause” means the act or omission of a 

separate and independent 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 party has preserved a complaint of jurycharge error for appellate review is whether the party (1) timely and plainly made 

the trial judge aware of the complaint, 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 proposals 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 made the following objection to Question 

1: 

[T]here’s no evidence of sudden emergency. Mr. Johnson 

confirmed that he was not confronted with an emergency. The 

instruction’s, therefore, improper. The instruction is also improper 

when combined with the unavoidable 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 conference did not plainly make the trial 

judge aware of the complaints Roberson now raises. The objections involved only 

the instruction on “emergency.” Although Roberson included an identical 
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emergency instruction in her proposed charge, she argued the evidence did not raise 

the issue of emergency. She also argued that an instruction on emergency was 

improper in connection with the instructions on unavoidable accident and new and 

independent cause. The implication was 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 appeal in which Roberson contends the trial 

court should not have given all three instructions because they were all based on the 

same thing, the cows on the road. Nor did Roberson object on grounds that new and 

independent cause was not raised by the evidence. Also, Roberson’s appellate brief 

contains two just sentences regarding why it was improper to give a new-andindependent-cause instruction, and the argument is not supported by any legal 

authority. See TEX. R. APP. 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 Roberson’s arguments, there is no error. A 

trial court has broad discretion in constructing the charge, 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) accurately 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. TEX. R. APP. P. 38.1(i); St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 

211, 215 (Tex. 2020). 
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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-independent-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 independent agent, not reasonably foreseeable, 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 independently of the defendant’s allegedly 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 independent cause that produced results that would not otherwise 

have occurred. It was undisputed that the accident would not have occurred if the 

cow Johnson hit was not there. 
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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 inverse 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 encountered cows on the highway at night. 157 S.W.3d at 

430. Unable to stop without losing control of his vehicle, the 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 another vehicle, killing one of its occupants, 

Dillard. Id. In a suit brought by Dillard against TEC and its driver, TEC asked for 

two inferential rebuttal instructions, unavoidable accident and sole proximate cause. 

Id. at 431. The trial court instructed only on unavoidable accident. Id. 

TEC argued on appeal that it was entitled to both instructions because there 

was evidence the accidents may have been caused by a condition 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 Court 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 
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multiple instructions on every possible rebuttal 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 instructions. Given the discretion afforded to 

trial courts in preparing the jury charge, we cannot conclude the trial court erred in 

giving multiple inferential rebuttal instructions. 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 conference, Roberson only expressed a problem 

with giving the emergency instruction in addition to the other two. 

Roberson argues that because multiple inferential rebuttal instructions 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 submission rules, jurors need not agree on 

every detail of what occurred so long as they 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 result in an improper judgment. See TEX. R. APP. P. 

44.1(a)(1). There was ample evidence that Johnson did not drive in a negligent 

manner, even without consideration of the inferential rebuttal defenses. Even though 

he had no reason to believe Roberson had been in an accident, he cautiously moved 

to the left lane when he saw her to give her cushion. Evidence showed Johnson 
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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 counsel asserted that even if none of the 

issues presented amounts to reversible error, together they present cumulative error. 

Roberson did not make a cumulative error argument in her brief, therefore it has 

been waived. TEX. R. APP. 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 cumulative error here. Under the 

doctrine of cumulative error, where no one instance 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 support 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 rendered 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 for 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– 

S 

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 SUNOCO PARTNERS LEASE 

ACQUISITION & MARKETING, LLC, AND ROBERT LEE JOHNSON recover 

their costs of this appeal from appellants SHAMELL ROBERSON AND JOEL 

ROBERSON. 

Judgment entered this 30th day of August, 2024.