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Perez v. Lopez3/7/2002
An "insufficient evidence" or factual insufficiency issue involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency issues is set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex. App.--El Paso 1981, no writ). The jury's finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. See id. Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained.
In Issues No. One and Two Appellant Alberto Perez Sr. complains that the jury's verdict of no damages for mental anguish in the past and future and no damages for loss of companionship and society was contrary to the overwhelming weight of the evidence or contrary to the uncontroverted evidence. Appellees argue that Appellant seeks to revive the "zero damages rule," which requires the jury to award something for every element of damages proven.
Appellant testified that after his son's death, he had trouble sleeping through the night. He admitted that he had some psychological problems prior to his son's death and had been seeing Dr. Ambrose Aboud. Dr. Aboud testified that Appellant complained that he was depressed after Albert's death. He stated that Appellant related symptoms such as sadness, crying, loss of appetite, difficulty sleeping, and early morning awakening. Dr. Aboud determined that Appellant was depressed and prescribed medication. The medication did not "cure" Appellant's depression and Dr. Aboud offered to refer him to a psychiatrist. Appellant indicated to Dr. Aboud that it would be a shame to go to a psychiatrist; that it was a sign of weakness or failure. Dr. Aboud stated that Appellant remained depressed until his last office visit with him in July, 1998.
Irene Perez, Appellant's daughter, testified that her father was distant and forgetful since her brother's death. She stated that he was very active prior to the death. Ms. Perez stated that he used to do yard work and work on cars but that he had "let most of that go." She stated that he looks very tired now, has aged a lot, and does not eat as much as he used to. Ms. Perez also testified that Appellant had an extremely hard time sleeping.
The jury is the sole judge of credibility and it is within their province to weigh the evidence and resolve any conflicts. The jury heard testimony from numerous witnesses and it was their function to accept or reject any, part, or all of the witnesses's testimony and the evidence. We cannot substitute our conclusions for those of the jury and it certainly is not within the province of this Court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witnesses's testimony. In considering all of the evidence, we do not find the verdict to be so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Issues No. One and Two are overruled.
B. Abuse
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