Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-17-00409-CV

Samuel DODSON,

Appellant

v.

Benito MUNOZ d/b/a B M Transport, Erik Munoz, and David Henry Owens,

Appellees

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 16-0367-CV

Honorable William Old, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Irene Rios, Justice

Delivered and Filed: August 8, 2018

AFFIRMED

Appellant Samuel Dodson appeals the trial court’s take nothing judgment against him in 

his personal injury suit against David Henry Owens, Benito Munoz d/b/a B M Transport (“BM 

Transport”), and Erik Munoz. In three issues on appeal, Dodson contends the trial court erred by 

including a sudden emergency instruction in the jury charge, denying his motion for new trial, and 

allowing a lay witness to testify as to who was responsible for causing the collision. We affirm. 
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BACKGROUND

On April 30, 2015, Dodson and Owens were both driving tractor trailers southbound on 

State Highway 46, a four-lane highway with a center turn lane. As Dodson was making a right turn

into a private driveway, Owens collided with the back of Dodson’s trailer. Thereafter, Dodson 

sued Owens, BM Transport, and Erik Munoz (“Erik”), asserting claims for negligence, negligence 

per se, respondeat superior, negligent entrustment, and negligent hiring, training, and retention.

The defendants filed a general denial and alleged that Dodson was contributorily negligent and 

that Owens’s conduct was reasonable based on a sudden emergency. 

During the five-day trial which began March 20, 2017 and ended March 24, 2017, the jury 

heard testimony from Department of Public Safety Trooper Samson Krueger, Dodson, Kevin 

Hubbard, Linda Riley, and Owens, among others.

1 Trooper Krueger responded to the scene and 

prepared a crash report based on his investigation of the collision. According to the findings of 

Trooper Krueger’s investigation, Dodson had moved into the left lane to make a right turn into a

driveway, and Owens, who was traveling behind Dodson and Riley, was unable to stop, drove onto 

the highway shoulder, and struck the back of Dodson’s trailer. Trooper Krueger explained his 

conclusion that Dodson made the turn from the left lane was based on his assessment that it would 

have been almost impossible to turn into the driveway from the right lane. Trooper Krueger further 

explained that because the stretch of highway where the collision occurred is straight, Owens 

should have had ample time to observe that other vehicles ahead of him had stopped to allow 

Dodson to turn into the driveway. Trooper Krueger thus concluded the collision was caused by 

Owens’s failure to control his speed. Trooper Krueger also read a witness statement he took at the 

scene from Kevin Hubbard, who was a passenger in a vehicle driven by his mother, Linda Riley, 

 1 Trooper Krueger, Kevin Hubbard, and Linda Riley all testified via video depositions. 
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that had stopped behind Dodson’s truck while Dodson was turning into the driveway. The 

statement read: “[Dodson’s] truck was turning right on 46 from the left-hand lane because the turn 

was too sharp. We were stopped in the right-hand lane. [Owens’s] truck was behind us, going the 

same way, tried to stop, and instead of hitting our car, hit [Dodson’s] truck instead. It could not be 

helped.”

Dodson testified that at the time the collision occurred, he was delivering a load of road 

base material to a job site—his third trip to the site that day. Dodson explained that to turn from 

the highway into the driveway, he had to slow down, almost to a stop, and veer to the left just prior 

to turning right. Dodson explained this was because if a tractor trailer turns too narrowly, the trailer 

tires could leave the roadway and go into the culvert. Dodson testified that about a quarter of a 

mile away from the driveway, he began tapping his brakes, shifted into a lower gear, and indicated 

with his turn signal that he was going to turn right. Dodson explained thirty to forty-five seconds 

passed from when he started slowing down to when he started to turn into the driveway, and 

another thirty seconds passed from when he started the turn to when the collision occurred. 

According to Dodson, he was almost all the way into the driveway when he felt the impact of 

Owens’s truck colliding into his trailer. Dodson further testified that immediately after the 

collision, Owens apologized to Dodson and told him that by the time he looked up and saw Dodson 

turning, he had no choice—he either had to hit the cars next to Dodson, or hit Dodson’s trailer. 

Dodson also testified he would never make a right-hand turn from the center turn lane because it 

would be unsafe. 

Kevin Hubbard and his mother Linda Riley, who were traveling in the right lane between 

Dodson and Owens, witnessed the collision and the events leading up to it. Hubbard testified that 

when Dodson made the turn, Dodson came to a quick stop and very slowly made the turn from the 

left lane. Hubbard testified that when he first saw Dodson, he and his mother were about 600 yards 
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behind Dodson’s tractor trailer, which had already started crossing the right lane. Hubbard did not 

recall seeing Dodson use a turn signal. Hubbard explained his car and two cars in the left lane 

behind Dodson’s tractor trailer all came to a complete stop to allow Dodson to make the turn, and 

that the cars had been stopped for about thirty seconds when the crash occurred. Hubbard testified 

he suddenly heard the screeching of tires as Owens tried to stop while passing his car to the right. 

Hubbard testified he heard Owens say he drove onto the highway shoulder to avoid hitting the cars 

that were stopped on the road. Hubbard explained that when he wrote in his witness statement the 

crash “couldn’t be helped,” he meant Owens had to choose between hitting the cars stopped on the 

highway or going onto the shoulder and hitting Dodson’s trailer. 

Linda Riley testified she was driving in the right, southbound lane when Dodson’s truck, 

traveling in front of her, activated his left turn signal, went into the left lane, “nearly took out a 

white SUV” that was traveling in the left lane next to Dodson, entered the center turn lane, and 

made a wide right-hand turn. Riley related that while Dodson was turning, Dodson came to a 

complete stop, which caused Riley to slam on her brakes and come to a complete stop. Riley 

explained that after Dodson came to a stop with his trailer still on the highway, Dodson pulled 

further into the driveway and was then hit by Owens’s truck. Riley testified Dodson never activated 

his right turn signal, and thus she did not know Dodson was going to turn to the right until he did 

so. According to Riley, the collision occurred less than a minute after she came to a complete stop 

on the highway, and a minute to a minute and a half after Dodson began the turn. Riley opined that 

if Owens had sixty seconds to stop before the impact, Owens would not have been able to stop. 

Riley further testified that Dodson’s testimony that he was in the right lane and veered to the left 

to turn right was not accurate. Riley opined that Dodson was responsible for the collision because 

he was in the right lane, signaled left, moved to the left, and then proceeded to make a right turn, 

pulling out in front of the traffic behind him. 
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Owens testified he was traveling in the right lane when Dodson’s truck, which was also

traveling in the right lane, traversed the left lane and entered the center turn lane without using a 

turn signal. According to Owens, Dodson suddenly turned right from the center turn lane, cutting 

across both southbound lanes. Owens related the cars between him and Dodson slammed on their 

brakes and that he slammed on his brakes as well, but was unable to quickly slow down because 

his trailer was fully loaded. Owens explained he decided that rather than hit the car in front of him, 

he would drive onto the shoulder and hit Dodson’s trailer. Owens related he did not expect Dodson

to make a right turn from the center turn lane of the highway. Owens testified he was traveling the 

speed limit and was keeping a safe and clear distance, about a quarter of a mile, from the vehicles 

in front of him. Owens further testified about three seconds passed from the time he saw Dodson 

turning to when he crashed into Dodson’s trailer. Owens explained he apologized to Dodson after 

the collision because he had a choice of whom to hit and he was sorry it was Dodson, whom he 

had known for over a decade. Owens opined the collision was not his fault because he was simply 

doing his job—traveling at the speed limit and maintaining his lane—and was not the one who 

chose to turn out of the center turn lane without warning. 

The jury returned a verdict finding Dodson was solely responsible for the collision and 

awarding Dodson no damages. Dodson filed a motion for a judgment notwithstanding the verdict 

or, in the alternative, a new trial. The trial court denied the motion and signed a final judgment that 

Dodson take nothing. This appeal followed. 

ANALYSIS 

Sudden Emergency Instruction 

In his first issue, Dodson contends the trial court erred by including a sudden emergency 

instruction in the jury charge over Dodson’s objection.
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1. Standard of Review

We review a trial court’s decision to submit or refuse a particular jury instruction for abuse 

of discretion. Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 828 (Tex. App.—Houston [1st Dist.] 

2015, no pet.). “A trial court has wide discretion in submitting jury instructions and questions . . . 

subject only to the requirement that the questions submitted must: (1) control the disposition of 

the case; (2) be raised by the pleadings and the evidence; and (3) properly submit the disputed 

issues for the jury’s determination.” Id. “If an instruction might aid the jury in answering the issues 

presented to them, or if there is any support in the evidence for an instruction, the instruction is 

proper.” Louisiana-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam). An 

improperly included or excluded jury instruction constitutes reversible error only if it probably 

caused the rendition of an improper judgment. Ginn, 472 S.W.3d at 828; see also TEX. R. APP. P.

44.1(a).

2. Applicable Law 

“A sudden emergency instruction advises the jurors that 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, the jury does not have to place blame on a party.”

Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on 

reh’g). “For an instruction on sudden emergency to be proper, the evidence must support the 

elements of the sudden emergency defense, i.e., that (1) an emergency situation arose suddenly 

and unexpectedly; (2) the emergency situation was not proximately caused by the negligent act or 

omission of the person whose conduct is under inquiry; and (3) after an emergency situation arose 

that to a reasonable person would have required immediate action without time for deliberation, 

the person acted as a person of ordinary prudence would have acted under the same or similar 

circumstances.” Id.
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“An act of nature is not a prerequisite for a sudden emergency . . . [and] [a]ctions by other 

vehicles can cause a sudden emergency.” Morales v. Dougherty, No. 12-06-00416-CV, 2008 WL 

2930245, at *2 (Tex. App.—Tyler July 31, 2008, no pet.) (mem. op.); see also Jordan, 222 S.W.3d 

at 848 (noting an emergency condition may arise from a stopped car, a car slowing down, or an 

oncoming car in the same lane of traffic). “If there is conflicting evidence regarding whether there 

was a sudden emergency, the trial court should submit the requested instruction.” Jordan, 222 

S.W.3d at 847. “In fact, if there is any support in the evidence for a sudden emergency instruction, 

the instruction is properly given.” Benham v. Lynch, No. 04-09-00606-CV, 2011 WL 381665, at 

*6 (Tex. App.—San Antonio Feb. 2, 2011, no pet.) (mem. op.) (emphasis in original). 

3. Discussion 

Dodson argues the submission of a sudden emergency instruction was improper in this case 

because the evidence shows the emergency situation was caused by Owens’s negligent conduct. 

Specifically, Dodson argues Owens cannot benefit from a sudden emergency instruction where the 

emergency situation was caused by Owens’s failure to control his speed. 

An emergency situation may arise from a vehicle’s sudden and unexpected conduct. See

Knighten, 976 S.W.2d at 676 (holding trial court did not abuse its discretion by submitting sudden 

emergency instruction where it was raining and plaintiff abruptly applied her brakes after which 

defendant’s truck ran into her from behind); DeLeon v. Pickens, 933 S.W.2d 286, 294 (Tex. App.—

Corpus Christi 1996, writ denied) (holding sudden emergency instruction was proper where 

defendant presented evidence plaintiff and defendant were traveling in different lanes and plaintiff 

veered into defendant’s lane to avoid hitting another car). However, where the evidence 

unequivocally shows the emergency situation was caused by a defendant’s own negligence, a 

sudden emergency instruction is improper. See VIA Metro. Transit Auth. v. Barraza, No. 04-13-

00035-CV, 2013 WL 6255761, at *11 (Tex. App.—San Antonio Dec. 4, 2013, pet. denied) (mem. 
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op.) (holding trial court properly refused a sudden emergency instruction where bus driver 

unequivocally admitted fault, and thus defendant failed to raise a fact issue as to the second element 

of the defense). 

Dodson’s argument that the sudden emergency instruction is unavailable to Owens in this 

case mirrors the same argument considered and rejected by this court in Benham v. Lynch. See

Benham, 2011 WL 381665, at *7. In Benham, the plaintiff sued the defendant after the defendant’s 

vehicle ran into the plaintiff’s vehicle from behind. Id. at *1. This court stated that “[w]hile the 

law provides that a motorist driving behind another vehicle ‘must drive at a reasonable speed, keep 

back a reasonable distance, and keep his vehicle under reasonable control to provide for the 

contingency that a vehicle in front [may suddenly stop],’ the mere occurrence of a rear-end 

collision does not establish negligence as a matter of law.” Id. at *7. “Rather, whether a rear-end 

collision raises an issue of negligence or establishes negligence as a matter of law depends on all 

the facts and circumstances of the case.” Id. This court concluded that because the defendant raised 

a fact issue as to whether the collision was caused by the sudden, unexpected failure of the 

defendant’s brakes, the trial court erred by not including a sudden emergency instruction in the 

jury charge. Id.

Likewise, the mere fact that Owens crashed into Dodson’s trailer as Dodson was turning 

into the driveway does not conclusively establish Owens’s negligence. Although Trooper Krueger 

concluded the collision occurred because Owens failed to control his speed, Owens testified he 

was traveling the speed limit and was keeping a safe and clear distance of about a quarter of a mile 

from the vehicles in front of him. This conflicting testimony created a fact issue as to whether 

Owens’s negligence created the emergency condition, which the jury reasonably could have 

resolved in favor of Owens. See Benham, 2011 WL 381665, at *7; Gonzalez v. Cruz, No. 13-07-

351-CV, 2008 WL 2764565, at *5–*6 (Tex. App.—Corpus Christi July 17, 2008, no pet.) (mem. 
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op.) (holding sudden emergency instruction was proper in a rear-end collision case where fact 

issue existed as to whether defendant truck driver acted negligently by failing to control his speed, 

keep a proper lookout, and maintain proper distance). 

Moreover, Hubbard, Riley, and Owens testified Dodson made the right-hand turn from 

either the left lane or the center turn lane without warning, which caused the vehicles behind 

Dodson to suddenly come to a stop on the highway. Riley and Owens testified Owens, driving a 

fully-loaded tractor trailer, did not have enough time to come to a complete stop and avoid hitting 

another vehicle on the roadway. This evidence was sufficient to support the trial court’s submission 

of a sudden emergency instruction to the jury because the jury, viewing this evidence, could 

reasonably conclude Dodson’s unexpected decision to turn right from the center turn lane

obstructed traffic on the highway and created an emergency situation for which Owens was not 

responsible. See Morales, 2008 WL 2930245, at *2–*3 (holding sudden emergency instruction 

was proper where witness testified defendant did everything he could to avoid a collision upon 

seeing vehicles stopped on the road after coming over a hill); DeLeon, 933 S.W.2d at 294.

Accordingly, the trial court did not abuse its discretion by including a sudden emergency 

instruction in the jury charge. We overrule Dodson’s first issue. 

Factual Sufficiency 

In his second issue, Dodson contends the trial court erred by denying his motion for new 

trial because the evidence is factually insufficient to support the jury’s finding that Dodson was 

solely responsible for the collision. 

1. Standard of Review 

In a factual-sufficiency review, we examine the evidence both supporting and contrary to 

the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Plas–

Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). A factual sufficiency attack on an 
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issue for which the appellant had the burden of proof requires the appellant to demonstrate the 

adverse finding “is against the great weight and preponderance of the evidence.” Dow Chem. Co.,

46 S.W.3d at 242. In reviewing a factual-sufficiency challenge, we consider and weigh all the 

evidence and will not reverse the judgment unless the jury’s finding is “so weak or if the finding 

is so against the great weight and preponderance of the evidence that it is clearly wrong and 

unjust.” Id. 

As an appellate court, we are mindful that we may not “pass on the credibility of witnesses 

or substitute our judgment for that of the jury.” Rowlett/2000, Ltd. v. City of Rowlett, 231 S.W.3d 

587, 590 (Tex. App.—Dallas 2007, no pet.). “Rather, we will sustain the challenged finding if 

there is competent evidence of probative force to support it.” St. Germain v. Carter, 478 S.W.3d 

97, 100 (Tex. App.—El Paso 2015, no pet.). “The fact that we may conclude that the evidence 

preponderates toward an affirmative answer based on our review of the record is not an appropriate 

ground for reversal.” Id.

2. Discussion 

In arguing the evidence was factually insufficient to support the jury’s verdict that none of 

the defendants were responsible for the collision, Dodson points to his own testimony that he was 

in the right lane and had to slow down significantly to make the turn and Trooper Krueger’s 

testimony that Owens should have had enough time to observe the stalled traffic ahead and come 

to a complete stop. Dodson also points to evidence that Dodson’s truck was almost all the way in 

the driveway when the impact occurred and that eyewitnesses agreed at least thirty seconds passed 

from the time Dodson began the turn to the time of impact. This evidence however, conflicted with 

the testimony of Hubbard, Riley, and Owens that Dodson made the right turn unexpectedly and 

without warning from either the left lane or the center turn lane, and that Owens did not have time 
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to come to a complete stop upon realizing Dodson’s tractor trailer was unexpectedly blocking 

traffic on the highway ahead of him. 

“A jury is entitled to blend evidence admitted before it and may believe all, some or none 

of a witness’[s] testimony.” Bufkin v. Bufkin, 259 S.W.3d 343, 355 (Tex. App.—Dallas 2008, pet. 

denied). “Appropriate deference must be given to the jury’s determination, especially concerning 

its judgment on the weight and credibility of witness testimony because it is the sole judge of the 

credibility of the witnesses and the weight to be given their testimony.” Hauschildt v. Cent. Freight 

Lines, Inc., No. 10-10-00185-CV, 2011 WL 455264, at *2 (Tex. App.—Waco Feb. 9, 2011, pet. 

denied) (mem. op.) (holding evidence was factually sufficient to support jury’s finding of nonegligence of defendant truck driver where there was conflicting evidence as to whether defendant 

acted negligently prior to colliding with plaintiffs’ vehicle). 

The jury, as the judge of the witnesses’ credibility, reasonably could have disbelieved 

Dodson and resolved the conflict in the evidence in favor of Owens. Owens’s version of events—

that Dodson moved left out of the right lane and without signaling unexpectedly made a right-hand 

turn—was supported not only by his own testimony, but by two other witnesses who were present 

at the time of the collision. We therefore conclude the jury’s finding was not against the great 

weight and preponderance of the evidence. Accordingly, the trial court did not err by denying 

Dodson’s motion for new trial. See St. Germain, 478 S.W.3d at 103 (concluding evidence was 

factually sufficient and therefore trial court did not err by denying plaintiff’s motion for new trial). 

We overrule Dodson’s second issue. 

Evidentiary Objection 

In his third issue, Dodson contends the trial court erred by admitting, over Dodson’s 

objection, Riley’s lay opinion testimony regarding which party was responsible for the collision. 
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Dodson argues Riley’s lay opinion testimony was inadmissible because she did not see Owens’s 

tractor trailer before the collision and did not actually see the collision happen. 

1. Standard of Review and Applicable Law 

We review a trial court’s evidentiary ruling under the abuse of discretion standard. U-Haul 

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court abuses this discretion when 

it acts without regard for guiding rules or principles.” Id. “Even if the trial court abused its 

discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., 

it probably resulted in an improper judgment.” Id.

A lay witness may testify in the form of an opinion provided it is rationally based on the 

witness’s perception and helpful to clearly understanding the witness’s testimony or to determining 

a fact in issue. TEX. R. EVID. 701. “The requirement that an opinion be rationally based on the 

perceptions of the witness is composed of two parts: (1) the witness must establish personal 

knowledge of the events from which his opinion is drawn; and (2) the opinion drawn must be 

rationally based on that knowledge.” Lopez-Juarez v. Kelly, 348 S.W.3d 10, 19 (Tex. App.—

Texarkana 2011, pet. denied) (internal quotation marks omitted). “An opinion will satisfy the 

personal knowledge requirement if it is an interpretation of the witness’s objective perception of 

events.” Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 670 (Tex. App.—Houston [14th Dist.] 

2017, no pet.). “An opinion is rationally based on perception if a reasonable person could draw 

that opinion under the circumstances.” Id. “An opinion is not objectionable just because it 

embraces an ultimate issue.” TEX. R. EVID. 704.

2. Discussion 

The Fourteenth Court of Appeals recently addressed the issue of lay opinion testimony in 

a case with similar facts. See Merrill, 527 S.W.3d at 666. In Merrill, a tractor trailer struck a 

motorcyclist who attempted to pass the truck on the right when it veered wide into the center lane 
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to make a right-hand turn. Id. at 665–66. The trial court excluded an eyewitness’s deposition 

testimony that the truck driver and motorcyclist were equally at fault for the collision. Id. at 668. 

The court of appeals held that because the witness observed and perceived the incident, she could 

reasonably opine as to fault; therefore, the trial court abused its discretion by excluding her 

testimony. Id. at 672. As our sister court noted, “it is hard to see how the opinion of [an] eyewitness 

regarding fault would not be helpful” to the jury. Id. at 670. 

In this case, Riley, who was driving a vehicle behind Dodson’s tractor trailer, witnessed 

Dodson’s maneuverings that immediately preceded the collision. Riley testified Dodson activated 

his left turn signal, went into the left lane, “nearly took out a white SUV” that was traveling in the 

left lane next to Dodson, entered the center turn lane, and made a wide right-hand turn into the 

driveway. Riley further testified that Dodson’s wide turn across the highway caused Riley to slam 

on her brakes and come to a complete stop. Although Riley did not see the impact occur, she heard 

it as it happened next to her. 

A reasonable person in Riley’s position could have concluded that the collision would not 

have occurred but for Dodson’s decision to unexpectedly make a right-hand turn from the center 

turn lane, thereby blocking the highway. Thus, the trial court reasonably could have concluded 

that Riley’s opinion as to who was responsible for causing the collision was rationally based on 

her personal and objective perception of the events leading up to the collision and helpful to the 

jury in determining who was responsible for the collision. Accordingly, we conclude the trial court 

did not abuse its discretion by admitting Riley’s opinion testimony. We overrule Dodson’s third 

issue. 

CONCLUSION 

For the foregoing reasons, the judgment of the trial court is affirmed. 

Irene Rios, Justice