Tiffany Gonzalez v. Blanca Hinojos Sanchez D/B/A E&G Sanchez Trucking

Opinion filed June 26, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00036-CV
__________

TIFFANY GONZALEZ, Appellant
V.
BLANCA HINOJOS SANCHEZ D/B/A E&G SANCHEZ
TRUCKING, Appellee

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV58809

OPINION
Motorists are encouraged not to operate a motor vehicle while using portable
wireless communication devices for electronic messaging purposes—to send and
receive text messages or other such communications—because those that do may
become distracted and less attentive than those that do not. In fact, the controlling
statute dictates that such conduct is prohibited and constitutes a punishable offense.
See TEX. TRANSP. CODE ANN. § 545.4251(b), (e), (f), (g) (West 2022).
The matter before us originates from a motor vehicle accident that involved
Appellant, Tiffany Gonzalez, the plaintiff in the underlying suit, and Eladio
Caballero Sanchez, the driver of the other vehicle (a truck-tractor) and the owner of
E&G Sanchez Trucking. Tiffany later filed a personal injury suit against Eladio and
E&G. 1 After a jury trial, the jury found Tiffany and Eladio negligent and, in the
comparative negligence findings, assessed 60% of the responsibility for the accident
to Tiffany and 40% to Eladio. In light of the jury’s findings, the trial court signed a
take-nothing judgment in favor of Eladio and E&G. See Nabors Well Services,
Ltd. v. Romero, 456 S.W.3d 553, 559–60 (Tex. 2015) (citing TEX. CIV. PRAC. &
REM. CODE ANN. §§ 33.001, .012 (West 2020)).
On appeal, Tiffany complains that: (1) the evidence presented at trial was
legally and factually insufficient to support the jury’s negligence findings; and
(2) the trial court abused its discretion when it admitted Tiffany’s cell phone records.
We affirm.
I. Factual Background
On October 16, 2020, Tiffany was driving her Dodge Durango when it
collided with a truck-tractor driven by Eladio and owned by E&G at the intersection
of F.M. 846 and U.S. Highway 87 near Big Spring. Eladio was towing a trailer of
caliche and headed east on F.M. 846; Tiffany’s vehicle was headed south on U.S.
Highway 87. Eladio’s vehicle stopped at the stop sign at the intersection. As her
vehicle approached this intersection, Tiffany saw the truck-tractor driven by Eladio
“enter the intersection”; she “swerved” her vehicle to the left but nevertheless
collided with Eladio’s vehicle.

1
Eladio is not a party to this appeal. Eladio passed away prior to being served with Tiffany’s
original petition. After Eladio passed, his wife, Blanca Sanchez, continued to own and operate E&G
Sanchez Trucking and was subsequently joined as a party to the underlying suit in that capacity. No party
argues that Eladio’s death affects the disposition of this appeal.

2
The image below is reproduced from the Texas Department of Public Safety
(DPS) Peace Officer’s Crash Report, which illustrates the accident scene; Tiffany’s
vehicle is depicted as Unit 3 and Eladio’s truck-tractor is depicted as Unit 1, Towing
Unit 2.

During pretrial proceedings, Tiffany filed a motion in limine and sought to
exclude, among other things, any reference to or discussion of her cell phone activity
on the accident date. The trial court denied Appellant’s motion. Tiffany also raised
certain evidentiary objections.
Tiffany’s trial counsel first objected to the admission of a Call Sheet Report
from Howard County, which was a record of all phone calls that were made to
emergency services in that area on October 16, 2020. In this regard, Tiffany’s trial
counsel made the following argument concerning the admissibility of the call sheet
and Tiffany’s cell phone records:
So the issue is that I argue because the cell phone expert that they’ve
hired offers no opinion about causation and cannot say that these
supposed [thirty] text messages that are, in our view, voice messages,
had any role in the last minute when this intersection was being
3
approached, that all of the exhibits from their cell phone expert,
including these [9-1-1] call records, are irrelevant, or at least it’s
outweighed by the unfair prejudice of the whole discussion about the
cell phone records.

The trial court overruled Tiffany’s objections and stated that Tiffany’s cell phone
records would be admitted at trial. In addition to these cell phone records and other
documentary evidence, the following testimony was presented to the jury.
A. Trooper Max Gouge
Trooper Max Gouge with DPS investigated the accident on October 16, 2020.
Trooper Gouge stated that, although he has been trained to perform accident
reconstruction analysis, he did not perform a complete “accident reconstruction” for
this collision. Instead, Trooper Gouge created a DPS crash report, which detailed
the findings of his investigation and included an illustration of his conclusions
regarding where the collision had occurred.
According to the crash report, Trooper Gouge was first notified of the
collision at 2:04 p.m. When asked about the accuracy of the times listed in his report,
Trooper Gouge confirmed that the “times listed on a crash report [are not]
necessarily accurate” because they are based on when an accident is reported to
dispatch. Approximately one hour after he was notified, Trooper Gouge arrived at
the accident scene. Trooper Gouge spoke to Howard County Sheriff’s deputies that
were present at the scene, surveyed the intersection, and assessed the condition of
the vehicles that were involved. Additionally, Trooper Gouge testified that he took
several photographs of the accident scene; these images were included with his crash
report.
Trooper Gouge noted the following observations in the crash report
concerning the accident scene: (1) the visibility at the intersection was “clear”;
(2) the speed limit for vehicles traveling on U.S. Highway 87 was seventy-five miles

4
per hour; (3) there was a hill on U.S. Highway 87 in the direction that Tiffany had
traveled; (4) there was a stop sign that controlled eastbound traffic on F.M. 846
where the two highways intersected; (5) after the collision, the vehicles came to a
rest at the median of the roadway; and (6) there was “fluid all over the roadway.”
Trooper Gouge also noted that, while part of the truck-tractor operated by Eladio
was in the southbound turn lane of U.S. Highway 87, the “thru lanes” on the roadway
remained unobstructed.
Based on his investigation, Trooper Gouge opined that the damage he
observed to the vehicles was consistent with Tiffany “swerving to the left” before
the collision occurred, and her vehicle colliding with Eladio’s truck-tractor at a
“pretty significant” angle. Trooper Gouge did not determine either the point of
impact or the speed that the vehicles were traveling; however, he opined that, from
his experience and training, vehicles “sometimes move in the moments immediately
following [a] crash.” Trooper Gouge did not recall any evidence at the scene that
showed that Tiffany attempted to reduce the speed of her vehicle before the collision,
such as braking or “skid marks.” Further, the DPS crash report notes that “the only
skid marks on scene were when [Tiffany’s vehicle] collided with [Eladio’s vehicle].”
After surveying the accident scene, Trooper Gouge spoke to Tiffany and
Eladio about the circumstances of the accident. According to Trooper Gouge, Eladio
told him that he had stopped “either at the stop sign or near the stop sign [on F.M.
846]. He had started [to cross the intersection] and a car was coming, and then he
got hit.” In Trooper Gouge’s bodycam footage, Eladio can be heard telling Trooper
Gouge that he “stopped” at the intersection and waited for other vehicles to pass the
intersection on the north-side of U.S. Highway 87—the opposite direction that
Tiffany’s vehicle was traveling. Eladio then said that, after these other vehicles had
passed, he “started moving” across the intersection and—at some point while he was

5
crossing—he saw Tiffany’s vehicle traveling south on U.S. Highway 87 before it
collided with his truck-tractor.
Tiffany told Trooper Gouge that her vehicle was traveling south from
Lubbock on U.S. Highway 87. She stated that, at some point prior to the collision,
she passed a vehicle in the left, southbound-lane of U.S. Highway 87; she then
changed lanes into the right, southbound-lane. Then, “just after she passed the car,”
she saw a truck-tractor enter the intersection. Tiffany told Trooper Gouge that she
“guess[ed] [Eladio] passed the stop sign . . . [and she] had already saw that [Eladio]
was coming . . . so [she] swerved” to “miss” or “go around” the truck-tractor before
the collision. In Trooper Gouge’s bodycam video, Tiffany can be seen looking down
and using her cell phone during her conversation with Trooper Gouge and telling
him that she is “going to send a screenshot” to someone and that her “phone screen
is kind of cracked.” However, Tiffany did not make any statements to Trooper
Gouge concerning the use of her cell phone while she was driving, and he had no
knowledge as to whether she was using her cell phone when the accident occurred.
Trooper Gouge identified certain “contributing factors” in the crash report that
he associated with the collision. Trooper Gouge stated that, in his opinion, Eladio
failed to yield the right-of-way to other motorists. He also opined that, in general,
“18-wheelers” need to yield “more space” to oncoming vehicles because they are
longer and have a slower mode of acceleration in comparison to other vehicles.
Additionally, Trooper Gouge testified about the potential dangers of being distracted
while driving and stated that “bad things can happen” when a person is distracted—
such as when they are texting and driving—and that he recommends motorists
remain “one hundred percent” focused on the roadway when driving at a speed of
seventy-five miles per hour. Trooper Gouge also said that his conclusions about the
accident’s contributing factors “would not change” if he knew that Tiffany had sent
or received a text message “a minute prior” to the accident.
6
B. Blanca Sanchez
Blanca Sanchez testified about Eladio’s experience as a commercial truck
driver, his role with the company, and statements that he made to her about the
accident. She stated that Eladio first received a Texas commercial driver’s license
in 2019, and that he had operated “dumping trucks” in the 1980s prior to being
licensed in Texas. Thereafter, in 2019, she and Eladio formed E&G, a transportation
company. In addition to his role as owner of E&G, Eladio was a commercial truck
driver for the company.
Blanca believed that Eladio was a “cautious” driver. Blanca also testified that
she was aware of an incident that occurred on August 8, 2020, where Eladio was
“caught running a stop sign while driving a commercial motor vehicle.” Regarding
Eladio’s statements about the accident, Blanca testified that Eladio told her that “he
did stop at the stop sign, [and] that he had already crossed when [Tiffany] hit [him].”
She also stated that Eladio “knew a little English,” but that he did not know enough
to effectively communicate with police officers.
C. Tiffany Gonzalez
Tiffany testified that she left Lubbock around noon on October 16, 2020; she
intended to drive to San Antonio. She stated that the accident occurred around “an
hour” or “hour-and-a-half” after she left Lubbock. She was familiar with this route,
and she described the section of U.S. Highway 87 where the accident occurred as
being “flat.” Tiffany testified she could see “pretty far” and that there was nothing
that obstructed her vision or line of sight while she drove.
Tiffany admitted that due to “issues at work,” she “had to” send approximately
thirty text messages to various coworkers as she drove to San Antonio.2 However,
despite admitting to sending several text messages while she drove, Tiffany could

At trial, Tiffany admitted that, when she was deposed, she had previously denied using her cell
2

phone while driving on the accident date.
7
not recall how much time elapsed between the last message that she received or sent
and when the accident occurred. Additionally, in clarifying the extent of her cell
phone activity, Tiffany stated that she did not manually use her cell phone while
driving that day; rather, her vehicle’s Bluetooth device would “read” the text
messages to her as she drove, and she would then respond to these messages through
voice commands. Tiffany stated that, although she was able to use her cell phone,
it was “messed up” and “the screen was shattered” so she was unable to manually
send text messages while driving “even if [she] had wanted to.” She also testified
that while she could not remember where her cell phone was located as she drove,
she believed that it was “either on the seat or on the floor” of her vehicle.
Tiffany’s statements concerning her perception of where Eladio’s vehicle was
located at the intersection prior to the collision were inconsistent. She stated that
she “knew” there was a “semi” approaching the stop sign at the intersection before
the collision occurred, and that she expected Eladio to “make a stop.” However,
Tiffany did not remember what her vehicle’s distance was from the intersection
when she first saw Eladio’s truck-tractor approaching the stop sign. Later, she stated
that she did not see Eladio’s truck-tractor until she was “pretty close” to the
intersection, which was after she had passed a vehicle and entered the southbound
right lane of U.S. Highway 87. Tiffany also said that the middle of Eladio’s truck-
tractor was past the stop sign when she first saw him and that “nothing prevent[ed]
[her] from seeing him coming.”
Tiffany also made several inconsistent statements concerning the distance
between when she had passed another vehicle traveling southbound on U.S.
Highway 87 and the intersection where the collision occurred. Tiffany initially
testified that her vehicle’s cruise control was activated when she passed a vehicle
before she entered the southbound, right-lane of U.S. Highway 87, and that she was
not speeding at that time. Later, she testified that she deactivated the cruise control
8
and accelerated to pass the vehicle and switch lanes. Tiffany also admitted that she
previously stated she “maintain[ed] [the] outside lane . . . for a couple of miles before
the accident happened,” and that she did not pass any vehicles before the accident
occurred. In clarifying her conflicting statements, she said that she passed a vehicle
before the accident, but she did not know “how far . . . in advance to the accident”
she passed the vehicle, or where the “other vehicle ended up” after the accident.
After noticing Eladio’s truck-tractor, Tiffany “stepped on” her brakes and
“swerved” her vehicle “significantly to the left” to avoid the collision. Tiffany stated
that she did not know how much time elapsed from the moment that she first saw
Eladio’s truck-tractor to when the collision occurred; however, she did state that she
was “probably” traveling less than seventy-five miles per hour when the collision
occurred. She testified that the collision occurred in the southbound, right lane of
U.S. Highway 87, and that the impact only damaged the passenger side of her
vehicle. When asked if she believed that she could have avoided the collision by
swerving to the right, Tiffany stated that “either way it was going to be an impact.”
Tiffany further testified that she did not believe that she could have avoided the
accident by “slamm[ing] on” her brakes.
Tiffany called her mother after the accident. While she was talking to her
mother, Eladio approached her vehicle. She stated that Eladio was visibly upset and
told her, in Spanish, that the accident “was [her] fault” and that she “should have
seen him.” Tiffany testified that after she finished the phone call with her mother, a
passerby stopped and told her that he had “already called [9-1-1]” to report the
accident. Trooper Gouge then arrived at the scene approximately an hour later.
D. Shanon Burgess
Shanon Burgess testified concerning the content of Tiffany’s cell phone
records. Burgess has experience in computer science and mathematics, he has
been trained in digital forensics, and he is a certified wireless analyst. He reviewed
9
Tiffany’s cell phone records that spanned a two-hour window—12:25 p.m. to
2:25 p.m.—on the accident date. Burgess testified about the different acronyms,
numbers, and columns listed on Tiffany’s cell phone records and explained their
meaning. He stated that Tiffany received more than thirty text messages on her cell
phone during the, approximately, thirty-minutes that preceded the accident.
Burgess testified that, based on the 9-1-1 Call Sheet Report and Tiffany’s cell
phone records, he determined that the accident occurred “just before” 1:23 p.m.
According to Burgess, Tiffany’s cell phone records indicated that she called her
mother after the accident at 1:23 p.m. and that the last text message Tiffany received
prior to the accident was at 1:18 p.m.; however, he could not ascertain from this data
the exact time that the accident occurred or how much time had elapsed from when
she last sent or received a text message and when the accident occurred.
Nevertheless, Burgess estimated that the last text message was sent to or received
by Tiffany approximately three to five minutes before Tiffany called her mother.
Burgess also testified that he could not determine whether Tiffany had listened to or
read the text messages that she received.
II. Standards of Review
A. Legal Sufficiency of the Evidence
The standard for legal sufficiency is whether the evidence in support of the
challenged finding rises to a level that would enable reasonable and fair-minded
people to arrive at the verdict under review. W & T Offshore, Inc. v. Fredieu, 610
S.W.3d 884, 897–98 (Tex. 2020); City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005). When a party challenges the legal sufficiency of the evidence
supporting an adverse finding on which that party did not have the burden of proof
at trial, the party must demonstrate that there is no evidence to support the adverse
finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex.
2011). Under a legal sufficiency review, we consider all the evidence in the light
10
most favorable to the prevailing party, make every reasonable inference in that
party’s favor, and disregard contrary evidence unless a reasonable factfinder could
not. City of Keller, 168 S.W.3d at 807, 822, 827. We may not substitute our
judgment for that of the factfinder if the evidence falls within the zone of reasonable
disagreement. Id. at 822. This standard also prevents a reviewing court from
substituting its judgment for the factfinder on matters of credibility. Id. at 816–17.
We will sustain a challenge to the legal sufficiency of the evidence if
(1) evidence of a vital fact is absent, (2) rules of law or evidence bar the court from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of the vital fact. Pike v. Tex. EMC Mgmt., LLC,
610 S.W.3d 763, 783 (Tex. 2020) (citing Volkswagen of Am., Inc. v. Ramirez, 159
S.W.3d 897, 903 (Tex. 2004)); City of Keller, 168 S.W.3d at 810. “Anything more
than a scintilla of evidence is legally sufficient to support the finding.” Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.
1998). “More than a scintilla exists when the evidence would enable reasonable and
fair-minded people to reach different conclusions.” Burbage v. Burbage, 447
S.W.3d 249, 259 (Tex. 2014). “However, if the evidence is so weak that it only
creates a mere surmise or suspicion of its existence, it is regarded as no evidence.”
Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156
(Tex. 2014).
B. Factual Sufficiency of the Evidence
When reviewing a factual sufficiency challenge, we “must consider and weigh
all of the evidence,” not just the evidence that supports the factfinder’s finding. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We must review the
evidence in a neutral light. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). If we set aside a judgment on the basis that a vital finding is not supported
11
by factually sufficient evidence, we must detail the evidence that is relevant to the
issue and specify how the contrary evidence greatly outweighs the evidence that
supports the finding. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
If a party challenges the factual sufficiency of an adverse finding on an issue
for which it had the burden of proof at trial, it must demonstrate on appeal “that the
adverse finding is against the great weight and preponderance of the evidence.” Dow
Chem., 46 S.W.3d at 242. However, when a party challenges the factual sufficiency
of the evidence supporting a finding on an issue for which it did not have the burden
of proof at trial, we will set aside the finding only if the evidence in support of the
finding is so weak or contrary to the great weight and preponderance of the evidence
as to be clearly wrong and manifestly unjust. Pool, 715 S.W.2d at 635; Cowan v.
Worrell, 638 S.W.3d 244, 253 (Tex. App.—Eastland 2022, no pet.).
C. Admissibility of Evidence
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (citing In re J.P.B.,
180 S.W.3d 570, 575 (Tex. 2005)). A trial court abuses its discretion if it acts
arbitrarily or unreasonably, without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985);
Abilene Reg. Med. Ctr. v. Pierce, 684 S.W.3d 564, 569 (Tex. App.—Eastland 2024,
pet. denied). 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). Further, an appellate court should not reverse based on
a trial court’s erroneous evidentiary ruling unless the error probably caused the
rendition of an improper judgment. TEX. R. APP. P. 44.1; Malone, 972 S.W.2d at
43; Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 421 (Tex. App.—Eastland 2006,
no pet.); see Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

12
III. Analysis
A. Negligence and Causation Principles
In her first issue, Tiffany argues that the evidence is legally and factually
insufficient to support the jury’s proportionate responsibility findings—namely, that
her percentage of responsibility for causing the accident was 60%.3 Additionally,
Tiffany contends that, if we conclude that the evidence is legally or factually
insufficient to support the jury’s proportionate responsibility findings, the trial court
also erred when it submitted the proportionate responsibility question to the jury.
See CIV. PRAC. & REM. § 33.003(b). As such, we must first determine whether
the evidence is legally and factually sufficient to support the jury’s findings. See
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 210 (Tex. 2015).
“Accidents happen . . . but not all accidents are evidence of negligence.”
Losada v. Posada, No. 23-1015, 2025 WL 1717009, at *3 (Tex. June 20, 2025) (per
curiam) (citing Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986)). Thus,
simply because an automobile accident has occurred does not necessarily establish
negligence as a matter of law. Rankin v. Nash-Tex. Co., 105 S.W.2d 195, 199 (Tex.
1937); Gomez v. Adame, 940 S.W.2d 249, 252 (Tex. App.—San Antonio 1997, no
writ). The plaintiff has the burden to prove specific acts of negligence on the part of
the defendant and that such negligence was a proximate cause of the accident and
her claimed injuries. Gomez, 940 S.W.2d at 252. Whether the plaintiff succeeds in
proving these elements by a preponderance of the evidence is a matter for the
factfinder to determine. Id.

3
We note that Tiffany refers to proportionate responsibility as “contributory negligence” throughout
her appellate brief. See Dugger v. Arredondo, 408 S.W.3d 825, 832 (Tex. 2013) (The statutory scheme of
proportionate responsibility “indicates the Legislature’s desire to compare [the parties] responsibility for
injuries rather than [to] bar recovery, even if the claimant was partly at fault or violated some legal
standard.”); CIV. PRAC. & REM. §§ 33.001–.017 (West 2020 & Supp. 2024).
13
Proportionate responsibility applies when an injured person fails to use
ordinary care regarding his or her safety. Austin, 465 S.W.3d at 209–10; see Romero,
456 S.W.3d at 559. “Under proportionate responsibility, the fact-finder apportions
responsibility according to the relative fault of the actors, thus allowing a plaintiff to
recover while reducing that recovery by the percentage for which the plaintiff was
at fault.” Romero, 456 S.W.3d at 559–60. A plaintiff who is found to be no more
than 50% responsible for her claimed injuries is entitled to recover a corresponding
percentage of the damages awarded to her by the factfinder; however, such recovery
will be reduced by the percentage of responsibility assigned to her. See id. at 560
(citing CIV. PRAC. & REM. §§ 33.001, 33.012). As relevant here, the term
“percentage of responsibility” is defined, in part, as:
[T]hat percentage, . . . attributed by the trier of fact to each claimant,
[or] each defendant . . . with respect to causing or contributing to cause
in any way, whether by negligent act or omission, . . . by other conduct
or activity [that is] violative of the applicable legal standard, or by any
combination of the foregoing, the personal injury, . . . or other harm
for which [the] recovery of damages is sought.
CIV. PRAC. & REM. § 33.011(4) (emphasis added).
Section 33.011(4) instructs the factfinder to assign a percentage of
responsibility to a plaintiff who seeks a personal-injury damages recovery—such as
Tiffany did in this case—and who the factfinder finds has caused or contributed to
cause “in any way” the alleged personal injury, harm, or damages sought. Id. Thus,
personal-injury plaintiffs are accountable for “causing or contributing to cause in
any way the harm for which [the] recovery of damages is sought.” Id. § 33.003(a)
(emphasis added). The phrase “in any way” means “only what it says—there are no
restrictions on assigning responsibility to a plaintiff [provided] it can be shown [that]
the plaintiff’s conduct ‘caused or contributed to cause’ [her] personal injury.”
Romero, 456 S.W.3d at 562.

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Although a finding of contributory negligence may no longer bar a plaintiff’s
recovery, “the underlying concepts remain relevant under Texas’s proportionate-
responsibility statute.” Austin, 465 S.W.3d at 209–210. “To establish contributory
negligence, a defendant must prove [that] (1) the plaintiff was negligent, and (2) the
plaintiff’s negligence was a proximate cause of [her] injury.” Kay v. N. Tex. Rod &
Custom, 109 S.W.3d 924, 927 (Tex. App.—Dallas 2003, no pet.). “[C]ontributory
negligence is a plea in confession and avoidance because the defense allows a
negligent defendant to defeat the plaintiff’s recovery either partially or completely,
depending on the percentage of the plaintiff’s [assigned] responsibility.” Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015); see Austin, 465 S.W.3d at
209–10. Thus, “the burden of proof is on the defendant to present sufficient evidence
to establish [this] defense and obtain the requisite jury findings.” Zorrilla, 469
S.W.3d at 156.
Motorists have a common-law duty to exercise ordinary care and must act as
a reasonably prudent motorist would act toward other motorists under the same or
similar circumstances. See Lozada, 2025 WL 1717009, at *2 (citing Perry v. S.N.,
973 S.W.2d 301, 306 (Tex. 1998)); see also Douglas v. Aguilar, 599 S.W.3d 105,
108 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Hoffman v. Wright, No. 11-
12-00017-CV, 2014 WL 709557, at *3 (Tex. App.—Eastland Feb. 21, 2014, no pet.)
(mem. op.). Moreover, while motorists are not required to anticipate the negligent
conduct of another, they have a duty to use ordinary care to prevent injury to
themselves, including a duty to keep a proper lookout for their safety and the safety
of others. See Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex. App.—San
Antonio 2001, no pet.) (citing Lynch v. Ricketts, 314 S.W.2d 273, 275 (Tex. 1958));
see also Hoffman, 2014 WL 709557, at *3.
“The duty to keep a proper lookout encompasses the duty to observe, in a
careful and intelligent manner, traffic and the general situation in the vicinity,
15
including [the] speed and proximity of other vehicles as well as [the] rules of the
road and common experience.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210
(Tex. App.—Tyler 1992, writ denied); see Lynch, 314 S.W.2d at 275; Thornton v.
Campise, 459 S.W.2d 455, 458 (Tex. App.—Houston [14th Dist.] 1970, writ ref’d
n.r.e); Hatcher v. Mewbourn, 457 S.W.2d 151, 152 (Tex. App.—Texarkana 1970,
writ ref’d n.r.e.). In cases that involve intersectional collisions, like the one before
us, the motorist with the right-of-way ordinarily has a duty to keep a proper lookout
for other vehicles that enter an intersection, and their failure to do so constitutes
negligence. See Thornton, 459 S.W.2d at 458; Melvin v. Jimenez, No. 04-00-00746-
CV, 2002 WL 21963, at *1 (Tex. App.—San Antonio Jan. 9, 2002, no pet.) (not
designated for publication); see also Stanley v. S. Pac. Co., 466 S.W.2d 548, 553
(Tex. 1971).
Proximate cause is generally a question of fact. Boyd v. Fuel Distribs., Inc.,
795 S.W.2d 266, 272 (Tex. App.—Austin 1990, writ denied) (citing Mo. Pac. R.R.
Co. v. Am. Statesman, 552 S.W.2d 99, 104–05 (Tex. 1977)). It encompasses two
elements: cause in fact and foreseeability. IHS Cedars Treatment Ctr. of DeSoto,
Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)).
“Cause in fact” means that the act or omission was a substantial factor in
bringing about the injury, and without it the harm would not have occurred.
Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016); Travis, 830 S.W.2d at 98
(citing Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex. 1973)).
“‘Foreseeability’ means that the actor, as a person of ordinary intelligence, should
have anticipated the dangers that [her] negligent act created for others.” Travis, 830
S.W.2d at 98 (first citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549–50
(Tex. 1985); and then citing Mo. Pac. R.R. Co., 552 S.W.2d at 103). There may be
more than one proximate cause of an injury. Lear Siegler, Inc. v. Perez, 819 S.W.2d
16
470, 471 (Tex. 1991). Further, the failure to keep a proper lookout may constitute a
proximate cause of a collision if (1) the motorist should have observed the
circumstance in time to avoid the collision by taking appropriate evasive action, and
(2) but for such failure, the collision could have been avoided. Montes, 61 S.W.3d
at 510.
Thus, we must consider whether the record contains legally and factually
sufficient evidence to establish that Tiffany was negligent because she (1) failed to
keep a proper lookout, and/or (2) should have been alerted to the danger of a
potential collision in time to avoid it. See id.; Dallas Ry. & Terminal Co. v. Walsh,
156 S.W.2d 320, 324 (Tex. App.—Eastland 1941), aff’d, 167 S.W.2d 1018 (Tex.
1943); see also Melvin, 2002 WL 21963, at *1.
B. Admissibility of Tiffany’s Cell Phone Records
Tiffany argues that the evidence is legally and factually insufficient to support
the jury’s proportionate responsibility findings because (1) her cell phone records
were not legally sufficient evidence of her alleged negligence as a matter of law, and
(2) there is no evidence that she failed to keep a proper lookout or that her conduct
was a proximate cause of the collision and her claimed injuries. Tiffany further
argues that the trial court abused its discretion when it admitted her cell phone
records because this evidence was not relevant to the jury’s negligence and
proportionate responsibility determinations. Conversely, Appellee argues that
Tiffany’s cell phone records were highly relevant to the jury’s determinations and
thus constitute legally and factually sufficient evidence of her negligence, and that
the totality of evidence admitted at trial is legally and factually sufficient to support
the jury’s negligence and proportionate responsibility findings.
In her second issue, Tiffany argues that her cell phone records were not
relevant to the jury’s determinations and do not establish that she was negligent;
thus, the trial court abused its discretion when it admitted them. In her legal
17
sufficiency challenge, Tiffany specifically contends that “even when [irrelevant
evidence] is admitted into evidence, irrelevant evidence is still incompetent and
cannot support a judgment because it, by definition, does not tend to make the
existence of the fact at issue more or less probable.” See LaSalle Pipeline L.P. v.
Donnell Lands, L.P., 336 S.W.3d 306, 315 (Tex. App.—San Antonio 2010, pet.
denied) (citing Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470–71 (Tex.
2005)). However, “[f]or purposes of the proportionate-responsibility statute, the
Legislature both intends and requires fact-finders to consider relevant evidence of a
plaintiff’s pre-occurrence, injury-causing conduct.” See Romero, 456 S.W.3d at
563.
Tiffany relies on three mandamus opinions to support her argument that her
cell phone records do not legally or factually show that her alleged cell phone
activity constituted an act of negligence. See In re Kuraray Am., Inc., 656 S.W.3d
137, 142–45 (Tex. 2022) (orig. proceeding) (per curiam); In re Huang, No. 01-22-
00594-CV, 2023 WL 8262837, at *3 (Tex. App.—Houston [1st Dist.] Nov. 30,
2023, orig. proceeding) (mem. op.); In re UV Logistics, LLC, No. 12-20-00196-CV,
2021 WL 306205, at *1, *4–5 (Tex. App.—Tyler Jan. 29, 2021, orig. proceeding)
(mem. op.). Tiffany primarily relies on Kuraray for the proposition that, while her
cell phone records show that she sent a text message—the length and content of
which is unknown—approximately three to five minutes before the collision
occurred, this conduct alone was too remote to have contributed to her failure to
maintain a proper lookout. To the contrary, Appellee argues that the opinions upon
which Tiffany relies support the conclusion, and the trial court’s determination, that
her cell phone records were relevant evidence of her negligent conduct.
In Kuraray, the owner and operator of an ethylene plant was sued for
negligence arising from a chemical release from one of the plant’s reactors. 656
S.W.3d at 140–41. In response to a discovery request, the plant owner produced
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seventeen hours of cell phone records that pertained to company-issued cell phones
that were used by several employees on the date of the chemical release. Id. After
receiving this document production, the plaintiffs requested the disclosure of
additional employee cell phone records that predated this incident, which the
plaintiffs alleged were relevant to show that cell phone use by plant employees was
a contributing factor to the chemical release. Id. In support of this discovery request,
the plaintiffs cited (1) deposition testimony that the plant had encountered problems
in the past with employee cell phone use in the plant control room, and (2) an
anonymous e-mail expressing concerns about “cell phone abuse” by plant
employees. Id. The trial court ultimately ordered the production of several months
of employee cell phone records—spanning from the date of the chemical release to
the date of the anonymous e-mail’s receipt. Id.
The Texas Supreme Court, in addressing this scenario, established guidelines
for courts to follow in determining the scope of permissible discovery with regard to
the production of cell phone data in negligence cases, namely that: (1) the party
seeking the production of cell phone data must “allege or provide some evidence of
cell-phone use by the person whose data is sought at a time when it could have been
a contributing cause of the incident on which the claim is based”; (2) once this
burden is met, the trial court may then order the production of relevant cell phone
data “provided its temporal scope is tailored to encompass only the period in which
cell-phone use could have contributed to the incident”; and (3) only if the initial
production indicates that cell phone use could have contributed to the incident, “may
a trial court [then] consider whether additional discovery regarding cell-phone use
beyond that timeframe may be relevant.” See id. at 142–43.
The court in Kuraray noted that, while there was some evidence that two plant
employees had used their cell phones during the relevant timeframe, the party
seeking discovery (the plaintiffs) did not meet their burden to show that the nature,
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duration, and frequency of the employees’ cell phone activity occurred before the
chemical release and could have contributed to the plaintiffs’ injuries. Id. at 145.
Thus, the court concluded that the trial court abused its discretion when it ordered
the production of the additional “earlier” cell phone records. Id.; but see In re
Huang, 2023 WL 8262837, at *4 (granting mandamus relief where a plaintiff
demonstrated that the production of cell phone data—which was limited to one hour
before and one hour after the collision—may have been a contributing factor to the
accident, but the trial court’s discovery order failed to provide reasonable guidelines
for the protection of sensitive data); UV Logistics, 2021 WL 306205, at *4–5
(granting mandamus relief where, even though the plaintiff demonstrated a
“reasonable need” for cell phone data to prove whether a truck driver was using his
cell phone at the time of the accident, the trial court ordered the production of social
media records and cell phone data without a subject matter limitation).
Importantly, the opinions upon which Tiffany relies to support her
argument—Kuraray, Huang, and UV Logistics—only concerned whether cell phone
records and data, based on the circumstances in each case, were discoverable.
Indeed, although relevant evidence, subject to certain exceptions, is generally
admissible, evidence that is deemed to be discoverable may not necessarily be
admissible at trial. See TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 401–403. In this
case, Tiffany’s complaint centers on the admissibility of her cell phone records and
we note that neither party to this appeal has cited to any Texas authority on this
point—admissibility. However, in the context of admissibility, we believe that the
guidelines set forth in Kuraray—even though the court’s holdings focused only on
the parties’ discovery dispute—are instructive and shape our analysis.
We conclude that to be admissible, the proffered evidence of cell phone
activity must be tethered in temporal proximity to a defined period of time in which
the cell phone usage could have caused or contributed to cause in any way the
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complained-of negligent conduct. The standard that we have announced today was
met in this case. Unlike the “earlier” cell phone records that were sought in
Kuraray—which spanned a period of seventeen hours—Tiffany’s cell phone records
that the trial court admitted were limited to her cell phone activity that spanned a
much narrower window (approximately forty minutes immediately before and sixty
minutes after the collision occurred—12:43 p.m. through 2:23 p.m.). As such,
Tiffany’s cell phone records encompassed a temporally relevant period that were
related to her pre-occurrence, injury-causing conduct. See Romero, 456 S.W.3d at
563-64; In re Huang, 2023 WL 8262837, at *4; see also CIV. PRAC. & REM.
§§ 33.001, .003, .011, .012.
In many cases, we recognize that conflicting testimony is presented at trial.
This case is no exception. Despite this, we conclude that the record before us
contains legally and factually sufficient evidence that Tiffany’s cell phone activity
could have caused or contributed to cause the accident and her claimed injuries.
Tiffany testified that the accident occurred around “an hour” or “hour-and-a-half”
after she left Lubbock; she also stated that she called her mother after the accident.
Trooper Gouge confirmed that, although the crash report stated that the accident
occurred at 2:04 p.m., the “times listed on a crash report [are not] necessarily
accurate.” Moreover, Tiffany testified that (1) she sent and received multiple text
messages because of “an issue at work” while driving seventy-five miles-per-hour
in route to San Antonio, (2) she could not remember when she last sent or received
a text message on her cell phone before the collision occurred, and (3) she could not
recall where her cell phone was located inside her vehicle before the collision.
Further, when deposed, she also denied using her cell phone while driving that day.
Based on this record, we conclude that Tiffany’s cell phone records were
relevant and admissible to show whether her cell phone activity caused or
contributed to cause in any way this accident and her claimed injuries—i.e., that her
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cell phone activity while driving prevented her from being attentive and keeping a
proper lookout and caused or contributed to cause in any way this collision and her
resulting injuries. See Kuraray, 656 S.W.3d 143–45; Huang, 2023 WL 8262837, at
*4; Greater San Antonio Transp. Co. v. Polito, No. 04-10-00330-CV, 2011 WL
2893080, at *4 (Tex. App.—San Antonio July 20, 2011, pet. denied) (mem. op.)
(holding that a layperson may be able to determine whether activity inside a vehicle
is a distraction). Therefore, we conclude that the trial court did not abuse its
discretion when it admitted Tiffany’s cell phone records.
Accordingly, we overrule Tiffany’s second issue.
C. Other Sufficiency Challenges
Tiffany cites to multiple opinions to support her contention that the jury’s
negligence findings cannot be supported by legally or factually sufficient evidence
unless there is evidence of either (1) the time that elapsed between her recognition
of the danger and when the accident occurred, or (2) the physical distance between
her vehicle and Eladio’s truck-tractor once she became aware that a collision was
possible. See Ciguero v. Lara, 455 S.W.3d 744, 749 (Tex. App.—El Paso 2015, no
pet.); see also Vicknair v. Peters, No. 12-13-00034-CV, 2014 WL 357082, at *4
(Tex. App.—Tyler Jan. 31, 2014, no pet.) (mem. op.); Turner v. Cruz, No. 04-10-
00313-CV, 2010 WL 5545392, at *4 (Tex. App.—San Antonio Dec. 29, 2010, no
pet.) (mem. op.); Kahng v. Verity, No. 01-07-00695-CV, 2008 WL 2930195, at *5
(Tex. App.—Houston [1st Dist.] July 31, 2008, no pet.) (mem. op). To this point,
Tiffany primarily argues that Ciguero is controlling because the only evidence of
causation in that case consisted of the appellant’s testimony that a collision occurred
concurrently with or immediately preceding his recognition of a road hazard;
therefore, such evidence would be insufficient to establish proximate cause. 455
S.W.3d at 749.

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In Ciguero, a motorist struck a pedestrian who was running along a highway
while being pursued by United States Customs and Border Protection (CBP)
officers. Id. at 746. The pedestrian later died, and his estate brought a negligence
suit against the motorist. Id. The motorist filed a no-evidence motion for summary
judgment, which the trial court granted. Id. The court noted that the only competent
summary judgment evidence presented was the motorist’s deposition testimony, in
which he stated that: (1) he did not see the CBP vehicles until after the collision;
(2) he did not remember how fast his vehicle was traveling (but he later stated that
he was “driving at or under 55 miles per hour”); (3) he did not know if he applied
the brakes to his vehicle before the collision; and (4) that “the collision happened so
quickly that he did not have a chance to do anything to avoid it.” Id. In affirming
the trial court’s grant of the motorist’s no-evidence motion, the court held that “[a
motorist’s] testimony that a collision occurred concurrent with or immediately
preceding his recognition of a road hazard, standing alone, constitutes no evidence
on the issue of proximate cause because it does not raise a fact issue on whether the
accident could have been avoided.” Id. at 749 (emphasis added).
The facts before us are distinguishable from Ciguero, and the other opinions
cited by Tiffany on this point, because there are additional facts in the record to
consider—such as Tiffany’s use of her cell phone while driving that day and her cell
phone records—which, as we have already discussed, constitutes legally and
factually sufficient evidence of her failure to be attentive and maintain a proper
lookout under the circumstances. See id. at 746–49. Moreover, the opinions cited
by Tiffany concern summary judgment proceedings, where a limited record was
considered, whereas the case before us was a trial on the merits, which allowed
Tiffany to fully develop the record. Here, there is legally and factually sufficient
evidence of probative value to support the jury’s findings that Tiffany failed to keep
a proper lookout and that such failure was a proximate cause of or contributed to
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cause the accident and her resulting injuries. See Montes, 61 S.W.3d at 510;
Morriss v. Centex Paving Co., 348 S.W.2d 790, 792 (Tex. App.—Eastland 1961,
writ ref’d n.r.e.).
Despite this, Tiffany also contends that the evidence shows that she did not
fail to keep a proper lookout because (1) she was “within her rights” to expect Eladio
to stop at the intersection and yield-the-right-of-way to her vehicle, (2) she testified
that she could not have avoided the accident based on the speed that her vehicle was
traveling and how close her vehicle was to Eladio’s truck-tractor when she
recognized the danger—that a collision could occur, and (3) Eladio’s statements do
not controvert her testimony or further explain how much “time or space” she had
to take appropriate evasive action.
As we have said, the record contains conflicting evidence of Tiffany’s
awareness of Eladio’s truck-tractor at the intersection. She testified that she had a
clear, unimpeded, and unobstructed view of the intersection and that “nothing was
preventing her” from perceiving Eladio’s truck-tractor approaching or stopping at
the intersection before the accident occurred. Although she had a clear line of sight
of the intersection, Tiffany testified that: (1) she did not see Eladio’s truck-tractor
pass the stop sign at the intersection before the collision; (2) she noticed that “half”
of the truck-tractor had passed the stop sign when she first saw it; (3) she “knew”
before the collision that Eladio’s truck-tractor had stopped at the intersection, and
that she “expected” him to stop as she approached the intersection; (4) she did not
see Eladio’s truck-tractor as she approached the intersection, and that was “pretty
close” to when she first saw the truck-tractor “coming” and she “swerved” to avoid
a collision; (5) her vehicle was traveling at a speed of seventy-five miles per hour
before the collision, and that she first applied her vehicle’s brakes when she reached
the intersection, which “probably” reduced her speed before impact; and (6) she did

24
not “put a full amount of force on the brakes”; rather, she “stepped on [the brakes]
like a normal person would.”
Tiffany also made various inconsistent statements concerning the time or
distance that elapsed between her passing the vehicle in the left, southbound lane on
U.S. Highway 87 before the collision and when the accident occurred. She initially
stated that she did not know how much time had elapsed or the distance that her
vehicle had traveled from the point when she had passed that vehicle. However, at
trial Tiffany admitted that she had previously stated she had “maintain[ed] [the]
outside lane . . . for a couple of miles before the accident happened,” and that she
did not pass any vehicles before the accident occurred.
Thus, evidence that Tiffany was driving in the right southbound lane with
nothing to obstruct her view for a significant distance (approximately two miles)
before her vehicle reached the intersection, and that she “knew” before the collision
that Eladio’s truck-tractor had stopped at the intersection—in combination with
evidence of her cell phone usage—constitutes legally and factually sufficient
evidence that Tiffany’s negligent conduct was a proximate or contributing cause of
the accident and her resulting injuries. See Morriss, 348 S.W.2d at 792–93; see also
Whitehead v. Tobias, 7 S.W.3d 658, 663 (Tex. App.—Texarkana 1999, no pet.)
(finding that the testimony of a motorist who recognized another vehicle’s failure to
yield-the-right-of-way approximately 200 yards before merging was a fact issue for
the jury to determine as to whether the motorist’s action could have prevented the
accident from occurring); Golleher v. Herrera, 651 S.W.2d 329, 333 (Tex. App.—
Amarillo 1983, no writ) (holding that the failure to see an automobile approaching
tends to establish the absence of a proper lookout).
In this case, as in all cases, the jury is the sole judge of the credibility of the
witnesses and may reconcile any inconsistencies in the evidence. See Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Tiffany’s credibility
25
and the weight to be afforded her testimony were matters for the jury to determine
and we may not substitute our judgment for theirs. See City of Keller, 168 S.W.3d
at 807, 822, 827. Here, while there is some evidence from which the jury may have
inferred that Eladio’s negligence was the sole or primary cause of the accident and
Tiffany’s resulting injuries, the jury was presented with conflicting evidence
concerning which party’s negligence caused or contributed to cause, in any way, the
injuries and harm for which Tiffany sought a damage recovery in this case. When,
as in this case, disputed evidence exists on the issues to be decided, the jury’s
findings should not be disturbed. Id.; see Pilgrim’s Pride Corp. v. Smoak, 134
S.W.3d 880, 892–95 (Tex. App.—Texarkana 2004, pet. denied).
We conclude that the evidence before us supports the jury’s negligence and
proportionate responsibility findings, and that this evidence was not so weak or
against the great weight and preponderance of the evidence as to be clearly wrong
and manifestly unjust. See Pool, 715 S.W.2d at 635; Arcides v. Rojas, 677 S.W.3d
154, 163–64 (Tex. App.—El Paso 2023, no pet.).
Accordingly, we overrule Tiffany’s first issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

June 26, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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