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Conley v. Driver10/25/2005
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Conley's first point of error charges the evidence was legally and factually insufficient to sustain the jury's award of damages for assault. Conley concedes the sufficiency of the evidence to support a finding of assault, and challenges only the sufficiency of the evidence to support the damages for assault. Conley argues that Driver did not present evidence of mental anguish, and thus, there was no evidence to support the jury's award of damages.
Driver gave detailed and copious testimony. Driver testified that the first physical contact which she regarded as inappropriate involved Conley coming up from behind her in the kitchen of their home, hugging her, and rubbing her stomach; his hand gradually going "south" beneath her underwear. She also testified that Conley forced her to engage in sexual intercourse with him, that it was very painful, and that he inserted his finger in her anus. She testified it was common for the two to go to a Sonic restaurant, and on the way for Driver to perform oral sex on Conley. Conley made her engage in sexual contact at least one or two times a month.
There is a significant amount of evidence to support damages for assault. After the first time Conley touched Driver sexually, she felt betrayed and went to her room and cried. As a result, Driver attempted suicide twice---the first time at age thirteen or fourteen, by cutting her wrists, and again around age fifteen, by taking pills. She was distressed when her mother did not believe her about the sexual abuse by Conley. Driver believes her recovery from the sexual abuse will be a lifelong process. Driver testified, "It hurts me to think that my mom is still married to him today." This has affected how Driver relates to men---she is very distrusting and does not believe them. When Driver found that Conley was obtaining or trying to obtain custody of his granddaughters, she could not sleep at night knowing someone else might live through the nightmare she had been through. Though there were times she could not emotionally handle the abuse, she tried not to let that show on the outside. The first time Driver told school counselor, Donna Fleming, about the sexual abuse, Driver was "tearful and upset." There was a "lot of sadness and emotion [and it] seemed to really hurt" Driver that her mother did not believe her about the allegations of sexual abuse. In later counseling sessions, Driver began to divulge more details and was very upset. Driver said she was extremely upset, felt dirty, did not think she could ever have a normal sex life, and was taking it very hard because she was thinking of marrying her boyfriend. It took eight counseling sessions before Driver started talking about the sexual abuse, because there is "a lot of secrecy involved with incest, a lot of shame." In the counseling session with Driver's parents and Driver, Driver sat between her parents on the couch "like she was trying to make herself real small and invisible and didn't want to be there." Driver exhibited relief when Fleming told her "you can't be around" Conley.
As cited above, there is a tremendous amount of discretion given to the jury on the amount of damages. There is evidence of a probative nature, and thus legally sufficient evidence, to support the jury's award of damages.
While there is evidence to the contrary, Conley's evidence is essentially directed at challenging whether the sexual assault happened at all, not the damages for the assault. There is legally and factually sufficient evidence to support the jury's determination of damages for assault.
(2) Sufficient Evidence Supports the Damages for Intentional Infliction of Emotional Distress
Conley complains t
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