1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-21-00087-CV 

________________

BRITTANY N. FRANKS, Appellant

V.

JANCIE R. HORTON, Appellee

________________________________________________________________________ 

On Appeal from the 457th District Court

Montgomery County, Texas

Trial Cause No. 18-11-15548-CV

________________________________________________________________________ 

MEMORANDUM OPINION

Brittany N. Franks sued Janice R. Horton for injuries she allegedly sustained 

as a result of a motor vehicle collision.1 After a jury trial, the jury found Horton was 

not negligent in the cause of the accident and the trial court entered a final judgment 

1

For the purpose of disclosing potential conflicts, we note that Justice Horton 

is not related to Janice Horton.
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that Franks recover nothing from Horton. Franks now appeals from the take-nothing 

judgment. Finding no reversible error, we affirm the trial court’s judgment.

I. Background

In addition to the summarized testimony below, portions of a doctor’s 

videotaped deposition were played for the jury. Those deposition excerpts are not 

included in the appellate record. However, because of our disposition of this appeal, 

such evidence was unnecessary for our consideration.

A. Brittany Franks’s Testimony

Plaintiff Franks testified that shortly before the accident, she and other 

vehicles were stopped at a red light. She stated that while she was stopped, she 

looked in her rear-view mirror and saw Defendant Horton’s vehicle “coming off 99 

really fast,” and that Horton caused a chain reaction collision by striking the vehicle 

behind Franks, which then struck Franks’s vehicle. As a result of the impact, 

Franks’s vehicle struck the vehicle in front of her. Franks stated that she spoke to 

Horton at the scene and that Horton apologized for the accident, stating that she had 

dropped her phone, and stooped to retrieve it, thus causing the accident.

Before the accident, Franks was uninjured; afterward, in contrast, she has 

experienced unremitting pain in her neck and low back. Franks testified that the 

effects of the accident have interfered with her ability to sleep. Franks further 
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mentioned depression and anxiety, indicating that she has a constant fear of being in 

another motor vehicle accident.

B. Ghada Badr’s Testimony

Badr was the driver of the front car in the collision. She indicated that the red 

light at the intersection had just turned green, and she therefore was about to begin 

moving forward when she was struck from behind by Franks’s vehicle. Neither she 

nor her passengers were injured in the collision.

C. Jose Montemayor’s Testimony

Montemayor, the Department of Public Safety officer who investigated the 

accident, described his responsibilities in that position, as well as his training, 

including training in the field of accident investigation. He further described his 

usual approach to the investigation of an accident, noting that it includes assuring 

everyone’s safety, interviewing the people involved in the collision, and forming an 

opinion regarding the cause or causes of the accident. In his opinion, Horton’s failure 

to control speed was a cause of the accident; he did, however, acknowledge that 

“failure to control speed[]” was not the same as exceeding the speed limit or driving 

at an unsafe speed, and further acknowledged that he did not investigate the speed 

of any of the vehicles involved in the collision.
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He described the damage to Franks’s vehicle as shown on the accident report, 

noting that on a scale of zero to seven, it had a damage rating of two and was not 

towed from the scene.

D. Keith Ross’s Testimony

Ross, Franks’s stepfather, testified that he went to the accident scene as soon 

as he learned of the collision. He indicated that although he did not speak directly 

with Horton, he overheard her say something about having dropped her phone; he 

consequently assumed that Horton was using her phone at the time of the accident. 

It was not until Defendant’s cross-examination of him that he heard that Horton’s 

phone had fallen to the floor of her vehicle, and she attempted to retrieve it so that it 

would not interfere with her driving; and he agreed that under those circumstances, 

it would be prudent to retrieve the fallen object.

E. Horton’s Testimony

Horton testified that before the accident, she had placed her phone on the 

center console of her car. When the phone unexpectedly fell to the driver’s side floor 

of the vehicle, she was concerned that it might become lodged under either the 

accelerator or the brake pedal, and she therefore reached down to retrieve it, 

accidentally causing the collision made the basis of this case. She acknowledged that 

she was using her phone shortly before the accident, and again shortly thereafter, but 

denied using her phone at the time the accident occurred.
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Although Horton conceded that she caused the accident in question, she did 

not admit to having done so through her negligence. 

II. Standard of Review

The essence of Franks’s appeal is that the evidence compelled a liability 

decision in her favor. More specifically, she argues that the evidence was legally and 

factually insufficient to support the jury’s finding that “Horton was not negligent.” 

When a party who had the burden of proof brings a legal sufficiency issue

complaining of an adverse finding, that party must demonstrate that the evidence

establishes conclusively, i.e., as a matter of law, all vital facts in support of the

finding sought by the party. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

When a party who had the burden of proof complains of the factual

insufficiency of an adverse finding, that party must demonstrate that the adverse

finding is contrary to the great weight and preponderance of the evidence. Dow

Chem., 46 S.W.3d at 241-42; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646,

651-53 (Tex. 1988). We weigh all the evidence and set aside the adverse finding

only if it is so against the great weight and preponderance of the evidence that it is

clearly wrong and unjust. Dow Chem., 46 S.W.3d at 242. In doing so, we must detail

the evidence and state in what regard the contrary evidence greatly outweighs the

evidence in support of the adverse finding. Id. We must also remember that it is
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within the province of the jury to determine the credibility of the witnesses and the

weight to be given their testimony. Brush v. Reata Oil & Gas Corp., 984 S.W.2d

720, 725-26 (Tex. App.—Waco 1998, pet. denied). We will not determine the

credibility of a witness or substitute our judgment for that of the jury, even if the

evidence could support a different result. Maritime Overseas Corp. v. Ellis, 971

S.W.2d 402, 407 (Tex. 1998) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634

(Tex. 1986)). O’Connor v. Miller, 127 S.W.3d 249, 254 (Tex. App.—Waco 2003,

pet. denied).

III. Analysis

At the outset, we note that the jury did not make an affirmative finding that 

Horton was not negligent; instead, it failed to find that Horton’s negligence, if any, 

proximately caused the collision. In other words, Franks, as the plaintiff, simply did 

not meet her burden of proof as to one or more of the elements of her case. See JLG 

Trucking, LLC v. Garza, 466 S.W.3d 157, 164-65 (Tex. 2015) (discussing the burden 

of proof).

A. Legal Insufficiency

The fact that Horton struck a vehicle from the rear does not establish her

liability to Franks. See Jowdy v. Rossi, No. 01-19-00715-CV, 2021 WL 2793474, at 

*3 (Tex. App.—Houston [1st Dist.] July 6, 2021, no pet.) (mem. op.). In order to 

prevail, Franks must demonstrate all elements of her negligence claim against 
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Horton. Id. Moreover, to prevail on a legal sufficiency challenge, Franks must prove 

these elements as a matter of law. Dow Chem., 46 S.W.3d at 241. 

Because the elements of duty, causation, and damages do not appear to be the 

subject of any appreciable controversy, we will focus on the requirement that Horton

had breached a legal duty to Franks by failing to operate her vehicle as a person of 

ordinary prudence under the circumstances then presented. See D. Houston, Inc. v. 

Love, 92 S.W.3d 450, 454 (Tex. 2002) (addressing the elements of actionable 

negligence). Franks contends that she has met the requisite burden by showing that 

Horton placed her phone in a location where it could become a hindrance, and that 

Horton then compounded her error by attempting to retrieve her phone after it had 

fallen to the floor beneath her feet. Although the undisputed evidence does, indeed, 

show that Horton placed her cell phone on her center console and that the accident 

occurred when she attempted to pick it up from the floor of the vehicle while exiting 

from a freeway, we disagree with Franks that either of these actions proves as a 

matter of law that Horton breached her duty of exercising ordinary care. 

Franks has placed great emphasis on Horton’s testimony that her phone was 

in an unsecured position and that she chose to try to pick it up after it fell to the floor; 

she claims that this evidence proves Horton’s negligence. What this argument 

overlooks, however, is the fact that the cited testimony reflects Horton’s realization 

of the risk after the fact and does not necessarily show that she then appreciated the 
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possibility of her cell phone falling off her console, since it had not previously done 

so. Horton’s choices, however, may not be judged in hindsight, but instead must be 

evaluated according to the situation as it appeared to Horton at the time it occurred. 

See Ft. Worth & D. C. Ry. Co. v. Alcorn, 178 S.W. 833, 836 (Tex. App.—Amarillo

1915, no writ) (addressing the imprudence of assessing a party’s actions in hindsight

or with reference to possible alternative decisions). Given this evidentiary posture

of the case, we cannot say that Franks has conclusively proven that Horton’s actions

were negligent, and we therefore overrule Franks’s initial point of error. 

B. Factual Insufficiency

In weighing the evidence supporting Franks against that supporting Horton, 

we agree with Franks that the evidence could have supported a jury verdict in 

Franks’s favor. Had the jury chosen to return such a verdict, we would not disturb 

it, for it is the province of the jury, not this court, to determine the credibility of 

witnesses and the weight to be accorded to their testimony. See Moore v. Altra

Energy Techs., Inc., 321 S.W.3d 727, 739 (Tex. App.—Houston [14th Dist.] 2010, 

pet. denied). The jury could have believed that Horton was negligent, as that term 

was defined in the court’s charge, yet it declined to do so. 

In reaching its decision, the jury may have decided that Horton did exercise 

ordinary care, and that her “split-second decision[]” to retrieve her phone was not 

negligent, since it may have represented less risk of harm than permitting the phone 
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to impede her use of the brake pedal. The jury also may have found that Franks 

simply did not meet her burden of proof to establish Horton’s alleged negligence. In

neither instance are we inclined to second-guess the jury, and we therefore overrule 

Franks’s second point of error. 

IV. Conclusion

Because the evidence does not mandate a decision that Horton’s alleged 

negligence proximately caused the accident in question, we affirm the trial court’s 

take nothing judgment in Horton’s favor. 

AFFIRMED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on July 5, 2022

Opinion Delivered November 3, 2022

Before Kreger, Horton and Johnson, JJ.