NO. 12-22-00297-CV 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHERYL JACKSON AND 

JOHN HARMON, 

APPELLANTS 

V.

MEGAN JOHNSON, 

APPELLEE

§

§ 

§ 

APPEAL FROM THE 

COUNTY COURT AT LAW NO. 2 

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Cheryl Jackson and John Harmon appeal the trial court’s judgment entered in favor of 

Appellee Megan Johnson. Appellants raise five issues on appeal. We affirm in part and reverse 

and render in part. 

BACKGROUND

Johnson suffered injuries after she was attacked by two pit-bull dogs in rural Smith County, 

Texas. Appellants are the owners in joint tenancy of neighboring property, and the dogs were kept 

with Jackson’s permission on the property for a period of months prior to the attack. 

Jackson filed the instant suit against Appellants, in which she alleged that they were liable 

for her injuries under strict liability and negligence theories because they owned or possessed the 

dogs at issue. The matter proceeded to a jury trial, and, ultimately, the jury found that Jackson 

owned or possessed one or more of the dogs at issue but Harmon did not. The jury further found 

that both Jackson’s and Harmon’s negligence proximately caused Johnson’s injuries and that such 

injuries were ninety percent attributable to Jackson’s negligence and ten percent attributable to 

Harmon’s. The jury awarded Johnson damages for physical pain and suffering, mental anguish, 

physical impairment, and disfigurement. This appeal followed. 
MATERIALITY OF NEGLIGENCE FINDING - HARMON

 In their first issue, Appellants argue that the trial court erred in overruling their motion for 

judgment notwithstanding the verdict (JNOV) and motion for directed verdict because the jury’s 

finding in response to Question 1 that Harmon did not own or possess the dogs that attacked 

Johnson negates the jury’s negligence finding as to Harmon as a matter of law. In other words, 

they contend that such a finding rendered immaterial the jury’s finding in response to Question 5 

that Harmon’s negligence proximately caused Johnson’s injuries.1

 

Preservation of Error

Johnson initially responds that Harmon failed to preserve error regarding the trial court’s 

denial of his motion for directed verdict and cannot complain of the trial court’s denial of a motion 

JNOV in which he did not participate. Indeed, the record reflects that the motion JNOV only was 

filed on Jackson’s behalf and that Appellants failed to re-urge their motion for directed verdict 

after presenting evidence. See 1986 Dodge 150 Pickup Vin No. 1B7FD14T1GS006316 v. State, 

129 S.W.3d 180, 183 (Tex. App.–Texarkana 2004, no pet.) (if party proceeds to present evidence 

after that party moved for directed verdict, such party must re-urge motion for directed verdict at 

close of case or any error in its denial is waived). However, Appellants did raise this argument in 

their motion for new trial. Therefore, we conclude that Appellants preserved this issue for review. 

See TEX. R. APP. P. 38.1(f) (statement of an issue will be treated as covering every subsidiary 

question that is fairly included); BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 

(Tex. 2017) (error preserved on immateriality issue by raising matter post-verdict in motion for 

new trial). 

Immateriality of Jury Question

We review a trial court’s decision to overrule a motion for new trial for abuse of discretion. 

See Limestone Const., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 

(Tex. App.–Austin 2004, no pet.). Generally, the test for abuse of discretion is whether the trial 

court acted without reference to any guiding rules and principles or whether the trial court acted 

arbitrarily or unreasonably. Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.–Houston [14th 

Dist.] 2013, no pet.). 

1 Appellants do not couch their argument in terms of the “materiality” of the subsequent jury finding. But 

because we must construe liberally the briefing rules in the interest of justice, we address the issue in such terms as a 

reasonable interpretation of Appellants’ argument under this issue. See Liptak v. Richard E. Colgin I, Ltd, No. 

05-99-00583-CV, 2002 WL 1263981, at *5 (Tex. App.–Dallas June 7, 2002, pet. denied) (op. on rehearing).
A jury question is immaterial when (1) the question should not have been submitted; (2) the 

question calls for a finding beyond the province of the jury, such as a question of law; (3) the 

question was properly submitted but has been rendered immaterial by other findings; or (4) the 

answer to the question cannot alter the effect of the verdict. Se. Pipe Line Co. v. Tichacek, 997 

S.W.2d 166, 172 (Tex. 1999); City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995); 

Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291, 306 (Tex. App.–Houston [14th Dist.] 

2019, pet. denied). Because “immaterial answers cannot support a judgment,” the jury’s response 

to an immaterial question properly is disregarded. BP Am. Prod. Co., 526 S.W.3d at 402. 

 Johnson responds that ownership or possession need not always be proven to support the 

existence of a legal duty in a dog-bite case. In support of this proposition, she cites to cases in 

which the courts held that there exists a duty of care on behalf of an out-of-possession landlord 

who has (1) actual knowledge of a dog’s vicious propensity and (2) has the ability to control the 

premises. See, e.g., Bolton v. Fisher, 528 S.W.3d 770, 775 (Tex. App.–Texarkana 2017, pet. 

denied) (citing Batra v. Clark, 110 S.W.3d 126, 127 (Tex. App.–Houston [1st Dist.] 2003, no 

pet.)). In this case, the record reflects that Harmon and Jackson own the property as cotenants 

rather than Harmon’s being an out-of-possession landlord. Nonetheless, the question remains as 

to whether these cases are analogous enough to the facts in this case to create a duty as a matter of 

law on Harmon’s part. Therefore, with that question yet unresolved, we conclude that the jury’s 

finding that Harmon neither owned nor possessed the dogs at issue did not render immaterial the 

jury’s finding that his negligence proximately caused Jackson’s injuries. Accordingly, we hold 

that the trial court did not abuse its discretion in overruling Appellants’ motion for new trial on 

this ground. Appellants’ first issue is overruled. 

EVIDENTIARY SUFFICIENCY - NEGLIGENCE

In their second issue, Appellants argue that there is legally insufficient evidence2 to support 

the jury’s finding that either of them owned or possessed the dogs in question and, thus, there is 

insufficient evidence to support the jury’s negligence finding. 

2 Appellants also make reference to the factual sufficiency standard of review. However, their argument 

regarding the sufficiency of the evidence supporting their respective ownership or possessions of the dogs at issue 

continually and consistently is made in terms of “no evidence” or that the evidence of ownership or possession of the 

dogs conclusively is established to reside in another person. These are legal sufficiency arguments. See City of Keller 

v. Wilson, 168 S.W.3d 802, 809 (Tex. 2005). 
Standard of Review 

In determining the legal sufficiency of the evidence, we consider all the evidence in the 

light most favorable to the challenged finding, crediting favorable evidence if a reasonable 

factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. See 

City of Keller v. Wilson, 168 S.W.3d 802, 809 (Tex. 2005). We view the evidence in the light 

most favorable to a finding and indulge every reasonable inference to support it. Id. at 822. We 

may not sustain a legal sufficiency, or “no evidence,” point unless the record demonstrates (1) a 

complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of 

evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence 

offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively 

establishes the opposite of the vital fact. Id. at 810. We are mindful that the jury is the sole judge 

of the credibility of witnesses and the weight to be given to their testimony. See Gator Gone 

Safety Pilots v. Holt, 622 S.W.3d 524, 535 (Tex. App.–Houston [14th Dist.] 2021, no pet.). 

Ultimately, as long as the evidence at trial “would enable reasonable and fair-minded people to 

differ in their conclusions,” we will not substitute our judgment for that of the fact finder. City of 

Keller, 168 S.W.3d at 822. 

Circumstantial evidence often requires a factfinder to choose among opposing reasonable 

inferences. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001). The material fact must be 

reasonably inferred from the known circumstances. Id. “By its very nature, circumstantial 

evidence often involves linking what may be apparently insignificant and unrelated events to 

establish a pattern.” Id. Thus, each piece of circumstantial evidence must be viewed not in 

isolation, but in light of all the known circumstances. Id. We are mindful that the jury is “entitled 

to consider the circumstantial evidence, weigh witnesses’ credibility, and make reasonable 

inferences from the evidence it chooses to believe. See Primoris Energy Services Corp. v. Myers, 

569 S.W.3d 745, 757 (Tex. App.–Houston [1st Dist.] 2018, no pet.).

Evidence at Trial

In the instant case, the record reflects that Jackson and Harmon owned the property as joint 

tenants. Harmon used the property to park several 18-wheelers and trailers he owned; Jackson 

kept two horses there and fed them daily. In January 2019, two adult pit-bull dogs––a brown 

female named Hershey and a gray-and-white male named Benjamin––were placed on the property 

with Jackson’s permission. At trial, Jackson acknowledged that the timing of the dogs’ being 
placed on the property was not coincidental in light of recent vandalism to one of Harmon’s18-

wheeler tractors. 

On March 10, 2019, less than two months before the incident at issue, Benjamin attacked 

a neighboring property owner, Debbie Raulston, who was walking up Appellants’ driveway to 

speak to Jackson about a dog, which apparently roamed onto Raulston’s property and had puppies 

under her house. As Raulston approached, Benjamin and another dog charged her and attacked 

her. According to Jackson, she was feeding her horses when she heard the dogs barking and ran 

in the direction of the barking where she saw that Benjamin had Raulston’s pants leg in his teeth. 

But Jackson claimed she did not know until the next day that Benjamin actually bit Raulston during 

the attack. 

Raulston reported the attack to Smith County Animal Control. In response, Animal Control 

Officer Cody Taylor investigated the incident and prepared a report. Raulston reported to Taylor 

that Benjamin bit her and broke the skin. According to Taylor’s report, Raulston stated that 

Jackson owned Benjamin, who was dragging a chain at the time of the attack. Thereafter, Taylor 

contacted Jackson and issued a warning to her for her failure to comply with the Smith County 

leash ordinance.3

 Taylor also requested that Jackson produce a photo of Benjamin along with any 

veterinary records of his rabies vaccinations. In response, Jackson sent a photo of Benjamin to 

Taylor. Further, Jackson and her daughter took Benjamin to a veterinarian for vaccinations and 

forwarded vaccination records to Taylor. 

Thereafter, in March 2019, Jackson purchased a collar and a heavy chain, which she used 

to chain Benjamin to one of Harmon’s 18-wheeler tractors parked on the property. Around that 

time, her son built an enclosure on the property for Hershey, because she was in heat and needed 

to be kept separate from male dogs. 

On May 5, Johnson was in Tyler, Texas to visit family with her two children––three-yearold Matthew and one-year-old Cora. Johnson, her two children, Johnson’s mother-in-law 

Elizabeth, and Elizabeth’s nine-year-old son, Austin, traveled to rural Smith County together to 

visit Johnson’s grandmother-in-law, Debra Reynolds, and great-grandmother-in-law, Joyce Jones, 

3 The ordinance in question, which was introduced into evidence, requires that (1) dogs be restrained by their 

owner, regardless of whether the dog or the owner resides in the neighborhood and regardless of the owner’s 

knowledge or mental state and (2) “a dangerous dog or a dog that is a danger to other animals must be restrained at 

all times by a secure leash or in a secure enclosure. “Owner” is defined under the ordinance as “a person, or persons, 

who harbor, shelter, keep, manage, possess, or has any interest in any dog.” 
who lived together in a home located across the road from Appellants’ property. During the visit, 

Austin asked if he could retrieve his iPad from the car parked outside. Johnson was concerned 

about Austin’s going outside in the country by himself, so she followed him to see if he needed 

any help. 

When Johnson stepped outside, she saw Austin standing motionless. She moved to stand 

next to Austin and heard a growling noise, at which point she saw a brown, adult pit bull stand up 

and, suddenly, charge at Austin. Johnson testified that of the three dogs she saw, the two that 

attacked her and Austin were the brown pit bull, later identified as Hershey, and a gray-and-white 

pit bull, later identified as Benjamin.4

 

Johnson testified that she pushed Austin out of the way, and Hershey latched onto her leg 

with her teeth and began pulling her. Johnson backed up against the house’s brick wall to brace 

herself as Benjamin bit into her other leg, as she attempted to ward off the attack. Ultimately, a 

neighbor observed the maelstrom and fired a gun, which distracted the dogs long enough for 

Johnson to retreat to the safety of the house. 

Smith County Animal Control Officer Erica Rooney responded to the incident and arrived 

just as Johnson was being taken by ambulance to the hospital. Rooney prepared a report based on 

her investigation. According to her testimony, when she arrived on the scene, she saw two dogs 

lying in the grass at the back of the house, one of which was Benjamin. Rooney and a Smith 

County Sheriff’s Deputy began to walk toward the dogs to attempt to capture them so they could 

conduct the necessary bite investigation; however, as soon as they moved toward the dogs, the 

dogs charged at them. As the dogs got closer to the officers, the deputy shot Benjamin in the leg, 

and both dogs ran away. Rooney called for backup to assist her in apprehending the dogs. 

 Taylor responded to the scene and assisted Rooney. According to Taylor, he recognized 

Benjamin as the same dog which attacked Raulston. Benjamin later was located on Appellants’ 

property hiding under Harmon’s 18-wheeler trailer with a gunshot injury and, eventually, was 

apprehended. 

Governing Law

The Texas Supreme Court has determined that negligence can be an appropriate theory of 

4 Because the dogs were identified as Hershey and Benjamin, for ease of reference, we refer to these two 

dogs by name, even though Johnson’s testimony refers to them by a general description. 
recovery in a personal injury action involving an animal.5

 See Marshall v. Ranne, 511 S.W.2d 

255, 258–59 (Tex. 1974); Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.–El Paso 2011, no 

pet.); see also Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 665 (Tex. App.–Waco 2002, no pet.). 

Ordinarily, to recover on a negligence claim arising from a dog bite, a plaintiff must prove: (1) the 

defendant owned or possessed an animal; (2) the defendant owed a duty to exercise reasonable 

care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the 

defendant’s breach proximately caused plaintiff’s injury. Gomez, 343 S.W.3d at 496; Allen, 97 

S.W.3d at 660. Unlike strict liability claims, to prevail in a negligence action the plaintiff does not 

have to prove that the animal was vicious or dangerous. Gomez, 343 S.W.3d at 496; Allen, 97 

S.W.3d at 660; Dunnings v. Castro, 881 S.W.2d 559, 562–63 (Tex. App.–Houston [1st Dist.] 

1994, writ dism’d). Thus, one who owns or possesses a dog may be liable for injuries caused by 

the dog even if the animal is not vicious, so long as the plaintiff can prove the owner’s negligent 

handling or keeping of the animal caused the injury. Gomez, 343 S.W.3d at 497. Liability also 

may arise for injuries the dog inflicts, as in the instant case, while off the owner’s property, if it is 

shown that the owner had actual or constructive knowledge that would “put a person of ordinary 

prudence on notice that permitting his dog to run at large might cause injury to another.” Id.

Jackson’s Ownership or Possession of Dogs at Issue

Appellants first argue that there is no evidence that Jackson owned or possessed the dogs 

at issue on the day of the incident. Instead, they argue that the evidence conclusively proves that 

Donnavon Reese, an acquaintance of Jackson’s, owned the dog. However, Jackson’s testimony 

supports that from January 2019 until approximately two weeks before the incident in question, 

she kept Benjamin and Hershey on her property. She specifically stated that Benjamin lived on 

the property and ate on the property. She testified that she took Benjamin to the veterinarian, 

purchased a collar for him, and chained him to the 18-wheeler tractor on the property. Moreover, 

she testified that her son built a fenced enclosure for Hershey to keep her away from male dogs 

and, at one point, when it was freezing outside, she set up an igloo-style enclosure to protect 

Hershey and her puppies from the cold. 

5 A person injured by a dog bite may sue the owner in strict liability or negligence. Muela v. Gomez, 343 

S.W.3d 491, 496 n.2 (Tex. App.–El Paso 2011, no pet.). An owner of a vicious animal may be strictly liable for 

damages while an owner of a non-vicious dog may be liable for negligent handling. Bushnell v. Mott, 254 S.W.3d 

451, 452 (Tex. 2008). Here, Johnson pleaded both theories of recovery. Appellants’ arguments on appeal are limited 

to the jury’s negligence finding.
On cross examination, however, Jackson testified that she never took dog food to the 

property, nor did she put water in the dogs’ bowls. She further testified that Benjamin went 

missing from her property approximately two weeks before the incident. Thus, Appellants contend 

that she did not possess him after that time. However, neither Jackson’s testimony nor any other 

evidence indicates that Hershey also went missing at this time, and Jackson testified that Hershey 

still lived on her property at the time of trial. 

In Question 1, the jury found that Jackson owned or possessed one or more of the dogs at 

issue in this case. In conjunction with this question, the jury was instructed that “possess” means 

“care, custody, control, or management.”6

 “Custody” means the “state of being detained.” 

Custody, THE AMERICAN HERITAGE DICTIONARY (2d College ed. 1982). Here, the record reflects 

that Benjamin went missing from the property approximately two weeks before the incident. There 

is no evidence that Hershey went missing at this same time. Jackson testified that she was the only 

person who regularly visited the property and that she did so daily to feed her horses. There is no 

evidence that Reese ever came to the property to check on the dogs or care for them in any way. 

Furthermore, the record is clear that Hershey was kept in a fenced enclosure on the property, a 

state of detention. See id. Furthermore, the jury was entitled to conclude, based on the testimony 

that Hershey resided in that fenced enclosure for months prior to the incident and remained on 

Jackson’s property following the incident up to the time of trial, that Jackson retained custody of 

Hershey even after Benjamin went missing.7

 See Lozano, 52 S.W.3d at 148; Myers, 569 S.W.3d 

at 757. Lastly, Jackson gave conflicting testimony about whether she provided food or water for 

Benjamin. The jury, as sole judge of the credibility of witnesses, was entitled to find that she did, 

in fact, feed Benjamin during the period of months he lived on the property and, reasonably could 

find, based on her testimony about the other ways she cared for Hershey, that she did not deprive 

6 Appellants do not challenge this definition of “possess” on appeal.

7 Appellants make no argument that Hershey was missing for any period of significance so that the jury only 

could find that she must be considered “dispossessed” by Jackson. Of course, there is evidence both dogs were not 

on the property and, thus, out of Jackson’s custody at some point in time on the date of the incident because it is 

undisputed that on that day, each participated in the attack on Johnson at Reynolds’s and Jones’s property. Appellants 

have not cited, nor is this court aware, of any authority upholding a finding that a dog, which has gone missing for a 

certain period of time before an off-premises attack, is found to have been “dispossessed.” And doubtlessly, a person 

who owns or possesses a dog, which eludes custody and attacks another away from the person’s property, still may be 

subject to liability for negligence. See, e.g., Turner v. Duggin, 532 S.W.3d 473, 486 (Tex. App.–Texarkana 2017, no 

pet.). But since “possession” was presented as a question of fact to the jury, we conclude that the matter of whether 

such possession is nullified after the animal goes missing for a certain period of time is part-and-parcel to the jury’s 

determination of the primary issue of “possession.”
Hershey of food and water while providing the same to Benjamin.8

We have reviewed the evidence in the light most favorable to the jury’s finding and have 

indulged every reasonable inference to support it. See City of Keller, 168 S.W.3d at 822. Based 

on our review, we conclude that because the evidence at trial as to Jackson’s possession of Hershey 

amounted to more than a mere scintilla, the jury reasonably could find Jackson “possessed” one or 

more of the dogs at issue in this case. See id. at 810. Therefore, we hold that the evidence is 

legally sufficient to support the jury’s finding in response to Question 1 as to Jackson. To the 

extent that it relates to Jackson’s liability for negligence, Appellants’ second issue is overruled. 

Harmon’s Liability for negligence

Turning to the question of Harmon’s negligence, as set forth above, the jury found that he 

did not own or possess the dogs at issue. But as we noted previously, such a finding is not, without 

further analysis, determinative of the issue of his negligence. As we discussed, Johnson argues 

that this case is analogous to that of an out-of-possession landlord, who neither owns nor possesses 

a dog, but who can be held liable for negligence resulting from a tenant’s dog, which attacks 

another, where the landlord (1) had actual knowledge of the dog’s vicious propensity and (2) has 

the ability to control the premises. See, e.g., Bolton, 528 S.W.3d at 775 (citing Batra, 110 S.W.3d 

127). 

In the case at hand, the record reflects that Harmon and Jackson own the property as 

cotenants. A cotenant neither is a partner with nor an agent of the other cotenant, and generally, 

in absence of express authority, cannot act for the other cotenant. Dearman v. Dutschmann, 739 

S.W.2d 454, 456 (Tex. App.–Corpus Christi 1987, writ denied). Moreover, a cotenant may not 

interfere with another cotenant’s ownership and enjoyment of the property. Id. Often, “control” 

8 In their brief, Appellants assert that the “evidence was clear and undisputed that at the time of the incident 

and for some time prior thereto, Reynolds and/or Jones were actually in possession of all the animals involved in the 

incident . . . [and] were actually feeding and caring for the animals on the Reynolds/Jones Property[.]” Appellants 

provide no citation to the record in support of this assertion. See TEX. R. APP. P. 38.1(i). Appellants appear to be 

referring to an exhibit they offered consisting of a medical record for Johnson, which states, “Patient was left feeling 

insignificant as a result [of a dog bite incident] because when the sheriff’s office came to get the dogs so the patient 

could be treated[,] all the grandmother in law could say was ‘don’t hurt my dogs’ even though they were not her dogs.” 

(emphasis added). Johnson testified that she did not hear her grandmother make any such statement, that her 

grandmother suffers from mental illness, and that she sometimes says things that do not make sense. She also testified 

that her grandmother has two dogs, which reside inside her house. There also is evidence that Reynolds and/or Jones 

put food outside their house, but Johnson testified that the food was for wild animals, such as racoons, and that the 

food was not intended for the dogs at issue. Assuming arguendo that this is, in fact, the evidence to which Appellants 

refer, we cannot conclude that it amounts to “clear and undisputed” proof that the dogs were possessed by Reynolds 

and Jones, which the jury could not disregard.
can be demonstrated by “ownership, occupation, management, or possession of property.” 

Holland v. Mem’l Hermann Health Sys., 570 S.W.3d 887, 897 (Tex. App.–Houston [1st Dist.] 

2018, no pet.). Control also means the “power or authority to guide or manage.” Bay, Inc. v. 

Ramos, 139 S.W.3d 322, 326 (Tex. App.–San Antonio 2004, pet. denied). Here, Harmon’s control 

was not exclusive, nor could it be exercised so as to interfere with Johnson’s use of the property, 

insomuch as her use did not interfere with his own. See Dearman, 739 S.W.2d at 456.

In sum, Harmon’s ability to control Jackson’s use of the property is not superior to her use 

and enjoyment of the property, and there is no evidence that her use of the property for keeping 

the two dogs at issue interfered with his use thereof. Thus, we conclude that even assuming 

arguendo that the instant case is analogous to the out-of-possession landlord cases Johnson cites, 

because Harmon lacked a superior ability to control the property on which the dogs were kept, the 

evidence is legally insufficient to support the jury’s finding that his negligence, if any, proximately 

caused Johnson’s injuries. To the extent that it relates to Harmon’s liability for negligence, 

Appellants’ second issue is sustained. 

HEARSAY - JACKSON’S TESTIMONY

In their third issue, Appellants argue that the trial court abused its discretion in sustaining 

Johnson’s hearsay objection to Jackson’s proffered testimony that when she noticed Benjamin was 

missing, she contacted Reese to ask if he knew the dog’s whereabouts, and Reese told her he took 

care of it and gave the dog away.

Standard of Review

Evidentiary rulings are committed to the trial court’s sound discretion. Bay Area 

Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). We review a trial court’s 

decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180 S.W.3d 

570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without reference to any 

guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must 

uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens–

Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

Hearsay, Harm, and Hershey

Hearsay is a statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). The 
proponent of hearsay has the burden of showing that the testimony fits within an exception to the 

general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 

159 S.W.3d 897, 908 n.5 (Tex. 2004).

In the instant case, while Jackson was under direct examination, the following exchange 

took place:

Q. Did you call Donnavon Reese and tell him the dog was missing?

A. I called him and asked him --

. . . . 

Q. Did you tell Donnavon Reese that the dog was no longer there and asked him 

where it was?

[Johnson’s Counsel]: Objection, Your Honor. Hearsay.

[Appellants’ Counsel]: Well, her calling and asking him what it was is not hearsay.

THE COURT: I will sustain the objection.

[Appellants’ Counsel]: So you’re saying her saying she called Donnavon Reese is 

hearsay?

THE COURT: She is not a party opponent. What’s the exception to the hearsay rule?

[Appellants’ Counsel]: She has personal knowledge she called Donnavon Reese.

THE COURT: That doesn’t make it an exception to the hearsay rule. Sustained.

[Appellants’ Counsel]: Well, it’s not an exception, Judge, because it’s not hearsay because 

she was actually the one that called and said --

THE COURT: I sustained the objection . . . .

Later, Appellants made the following bill of exception:

Q. Ms. Jackson, after you noticed that Benjamin was missing, what did you do?

A. I went to Donnavon and asked him did he know where the dog was.

[Johnson’s Counsel]: Objection. Hearsay.

THE COURT: For purposes of making a Bill of --

[Appellants’ Counsel]: What she says is not hearsay. She’s here in court. It’s not a 

statement by somebody else made out of court for --
THE COURT: I sustain the objection because I have not heard an exception to the hearsay 

rule. Made by your client. She’s not a party opponent. It’s offered for the truth of the matter 

asserted. What exception is there?

[Appellants’ Counsel]: There is not an exception because it’s not hearsay. I went outside 

and I saw the sun rise. That’s not hearsay. I went to Joe Jackson and said, Hey. Your dog bit me. 

That’s not hearsay. That’s me talking.

THE COURT: Go ahead. Make your exception.

Q. (By [Appellants’ Counsel]) Did you have a conversation with Donnavon Reese after 

the dog was missing?

A. Yes.

Q. What did you say? 

A. I told him that the dog wasn’t there, did he know where the dog was.

[Appellants’ Counsel]: All right. That’s not hearsay, Your Honor. That’s a direct 

statement of a witness that was there that made the statement. That’s not a statement that somebody 

made out of court for proving the truth of the matter stated therein. She made that statement in 

court. She made the statement. She told you she made the statement. Under no stretch of the 

imagination is that hearsay.

THE COURT: Your Bill of Exception has been recorded into the record.

[Appellants’ Counsel]: All right. I would like to go further.

THE COURT: Go ahead.

Q. (By [Appellants’ Counsel]) What did Donnavon tell you?

A. That he will take care of it.

Q. Did Donnavon -- when you told him the dog was missing, did he tell you that he knew 

the dog was missing?

A. He said he had given the dog way.

[Appellants’ Counsel]: Now, the fact that they’re going to object to -- You’re objecting to 

Donnavon saying he gave the dog away as hearsay, correct?

[Johnson’s Counsel]: I am very confused on what is going on now. If that was ever elicited, 

yes, I would object to hearsay because it is.

THE COURT: I don’t think that was offered in front of the jury. The Court did not 

make a ruling with regard to that, but I believe that would be hearsay.

[Appellants’ Counsel]: Then when the jury comes back, we will offer it. I will say that we 

are offering it not for the truth of the matter stated therein, but that the words were spoken, making 

it not hearsay.

. . . . 

[Appellants’ Counsel]: Your Honor, can we just have a ruling that that’s not admissible, 

that he told her --

THE COURT: I will rule that that’s hearsay. You may make a bill of exception --

[Appellants’ Counsel]: May I have that as part of my bill?
THE COURT: Yes.

In sum, Jackson’s testimony consists of two out-of-court statements: (1) her statement to Reese 

that the dog no longer was on her property and (2) Reese’s response to her inquiry about whether 

he knew of the dog’s whereabouts that he took care of it by giving the dog away. 

As to Jackson’s statement to Reese that the dog was missing, Appellants argued that it was 

not hearsay because she was a testifying witness and subject to cross examination. However, that 

a person is available to testify does not, by itself, render that person’s out-of-court statement not 

hearsay. See TEX. R. EVID. 801(d). And, as Johnson noted at trial, Jackson’s statement is not a 

statement by a party opponent. See id. 801(e)(2); Williams v. State, 402 S.W.3d 425, 438 (Tex. 

App.–Houston [14th Dist.] 2013, pet. ref’d) (party cannot offer his own out-of-court statements 

under Rule 801(e)(2)).9

 Because Jackson’s out-of-court statement to Reese that the dog was 

missing was offered to show the truth of that statement, i.e., the dog was missing, it is hearsay. 

See TEX. R. EVID. 801(d). Given that Appellants failed to articulate a valid, legal reason to the 

trial court to show how the statement was not hearsay or falls within an exception to the hearsay 

rule, we hold that the trial court did not abuse its discretion in sustaining Johnson’s objection to 

this statement. See Ramirez, 159 S.W.3d at 908 n.5.

Turning to Jackson’s testimony about Reese’s response, under Rule 801, an out-of-court 

statement is not hearsay if it has relevance apart from the truth of the matter that it asserts or 

implies. See Case Corp. v. Hi-Class Bus. Sys., Inc., 184 S.W.3d 760, 782 (Tex. App.–Dallas 

2005, pet. denied). However, a party cannot turn hearsay into non-hearsay merely by asserting 

that the out-of-court statement is being offered only to show that it was made. See DuBose v. 

State, 774 S.W.2d 328, 329 (Tex. App.–Beaumont 1989, pet. ref’d). The proponent must articulate 

a legitimate, non-hearsay purpose for offering the statement and demonstrate that the statement is 

relevant apart from the truth of its content. See id. (legitimate purpose for otherwise inadmissible 

hearsay evidence must be established; if proponent of such evidence only needs to argue that 

evidence was being offered “only to show that the statement was made[,] . . . the hearsay rule 

might just as well be abolished for such an argument is pure sophistry”).

9 Although criminal caselaw is not binding precedent in civil matters, we may rely on it as persuasive 

authority, particularly since civil and criminal cases are bound by the same rules of evidence. See Merrill v. Sprint 

Waste Servs. LP, 527 S.W.3d 663, 670 n.5 (Tex. App.–Houston [14th Dist.] 2017, no pet.).
In the instant case, Appellants argued to the trial court that Reese’s statement that he took 

care of the matter by giving the dog away is not hearsay because it was offered to demonstrate 

“that the words were spoken.” Appellants repeat this argument on appeal. As set forth above, an 

out-of-court statement offered to demonstrate only that a statement was made or that “the words 

were spoken” does not render the statement non-hearsay. See id. Thus, we conclude that 

Appellants failed to meet their burden of demonstrating to the trial court that Reese’s statement 

either was not hearsay or fell within an exception to the hearsay rule. See Ramirez, 159 S.W.3d 

at 908 n.5. Therefore, we hold that the trial court did not abuse its discretion in sustaining 

Johnson’s hearsay objection as to Jackson’s testimony about what Reese said to her.

Even assuming arguendo that the trial court abused its discretion in sustaining Johnson’s 

objection since, arguably, Reese’s statement might have been relevant, apart from its truth, to 

demonstrate that Jackson relied on it in concluding she no longer had any responsibility with regard 

to Benjamin, the outcome would not change. “To obtain reversal of a judgment based on error in 

the admission or exclusion of evidence, an appellant must show that the trial court’s ruling was 

erroneous and that the error was calculated to cause, and probably did cause, ‘rendition of an 

improper judgment.’” Benavides v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex. App.–Houston 

[1st Dist.] 2006, no pet.) (quoting TEX. R. APP. P. 44.1(a)(1); Malone, 972 S.W.2d at 43). In 

conducting this harm analysis, we review the entire record. Tex. Dep’t of Transp. v. Able, 35 

S.W.3d 608, 617 (Tex. 2000); Benavides, 189 S.W.3d at 879. Evidentiary rulings do not usually 

cause reversible error unless an appellant can demonstrate that the judgment turns on the particular

evidence that was admitted or excluded. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–

54 (Tex. 1995); Benavides, 189 S.W.3d at 879. An error in the exclusion of evidence requires 

reversal if it is both controlling on a material issue and not cumulative. Mentis v. Barnard, 870 

S.W.2d 14, 16 (Tex. 1994). 

In the case at hand, Jackson’s testimony about what Reese told her refers only to a single 

dog, which it is apparent from Appellants’ brief, is Benjamin.10 Yet, as set forth previously, 

Johnson testified that she was bitten by both Benjamin and Hershey. Thus, even had the jury been 

able to consider Jackson’s testimony about Reese’s statement and Jackson’s potential reliance on 

that statement as it relates to the issue of possession or duty, because the statement related only to 

Benjamin, the jury still could have determined that Jackson was negligent as Hershey’s possessor. 

10 At the outset of their statement of facts, Appellants refer to Benjamin as the “subject animal for this case.”
Thus, we conclude that even if the trial court abused its discretion in sustaining Johnson’s hearsay 

objections, Jackson was not harmed because she cannot demonstrate that the judgment turned on 

that particular evidence. See Alvarado, 897 S.W.2d at 753–54; Benavides, 189 S.W.3d at 879. 

Appellants’ third issue is overruled. 

HEARSAY - TAYLOR’S TESTIMONY

In their fourth issue, Appellants argue that the trial court abused its discretion in overruling 

their objection to Taylor’s testimony from his report about “what another witness told him 

regarding a previous dog bite incident” and “what the victim/complainant told him about that 

incident.” When an objection to evidence is properly made, the subsequent presentation of 

essentially the same evidence without objection waives any complaint regarding the admission of 

the evidence. See Breof BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex. 

App.–Houston [14th Dist.] 2012, no pet.). Here, although Appellants objected to the admission of 

Taylor’s report on hearsay grounds, on appeal, they only challenge the testimony he gave based 

on his report and make no argument the trial court’s admissibility of the report itself constituted 

an abuse of discretion. Thus, we conclude that Appellants cannot demonstrate harm resulting from 

the trial court’s permitting Taylor’s live testimony on this subject.

 Furthermore, Appellants identify the harm stemming from Taylor’s testimony as follows:

This error by the Court constitutes reversable error because it was particularly egregious

and harmful, as it was in direct contradiction on several points to the testimony of Cheryl Jackson,

damaging her credibility. The hearsay statement was that the victim/complainant was bitten on her 

own property adjacent to the Appellants’ Property and that the dog came on her property “dragging 

a chain.” In contrast, Cheryl Jackson testified that she had the dog chained after the

victim/complainant was bitten.

We cannot conclude, without more, that the judgment “turns on” the admission of this testimony 

and the manner in which it contradicts Jackson’s testimony. See Alvarado, 897 S.W.2d at 753–

54. In considering Jackson’s testimony, the jury was subjected to other contradictions, including 

one she made during her direct examination versus later, cross examination regarding whether she 

even fed the dogs she kept on her property for a period of months. Thus, if the jury determined 

that Jackson lacked credibility, it did not do so as a result of Taylor’s testimony alone. Therefore, 

we hold that assuming the trial court abused its discretion in allowing this portion of Taylor’s 

testimony, Appellants were not harmed by its admission. Appellants’ fourth issue is overruled. 
MOTION FOR MISTRIAL

In their fifth issue, Appellants argue that the trial court abused its discretion in overruling 

their motion for mistrial made after a juror took a vacation in the midst of jury deliberations. At 

oral argument of this case, Appellants conceded that the issue is without merit. See Interest of 

J.G., 592 S.W.3d 506, 507 (Tex. App.–Waco 2019, no pet.) (sustaining appellate issue without 

analyzing issue; court of appeals treated party’s concession as waiver of issue on appeal). 

Accordingly, because Appellants have withdrawn their fifth issue, it is overruled.

DISPOSITION

We have sustained Appellants’ second issue in part to the extent that it relates to Harmon’s 

liability for negligence. Having done so, we reverse the trial court’s judgment as to Harmon’s 

liability for negligence and render a take-nothing judgment against Johnson on that cause of action 

as to Harmon. Having overruled the remainder of Appellants’ second issue, as well as their first, 

third, fourth, and fifth issues, we affirm the trial court’s judgment. 

BRIAN HOYLE

Justice

Opinion delivered March 13, 2024. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

MARCH 13, 2024 

NO. 12-22-00297-CV

CHERYL JACKSON AND JOHN HARMON, 

Appellants 

V.

MEGAN JOHNSON, 

Appellee

Appeal from the County Court at Law No. 2 

of Smith County, Texas (Tr.Ct.No. 71235-A) 

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and 

the same being considered, it is the opinion of this Court that there was error in the judgment as 

entered by the court below and that same should be affirmed in part and reversed and rendered in 

part. 

 It is ORDERED, ADJUDGED, and DECREED by this court that the trial court’s 

judgment be reversed as to John Harmon’s liability for negligence and judgment rendered that 

Megan Johnson take nothing on her negligence cause of action against John Harmon. 

It is further ORDERED, ADJUDGED, and DECREED that the judgment of the court 

below is affirmed in all other respects.
It is further ORDERED that each party bear their own costs in this cause expended in this 

court; and that this decision be certified to the court below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.