Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00617-CV
IN RE Arturo PEREZ and Texas Materials Group, Inc.
Original Mandamus Proceeding 1
Opinion by: Lori I. Valenzuela, Justice
Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice
Delivered and Filed: June 24, 2026
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relators Arturo Perez (“Perez”) and Texas Materials Group, Inc. (“TMG”) seek mandamus
relief from the trial court’s July 2, 2025 order granting real party in interest Brandon C. Rios’s
(“Rios”) motion for new trial. The order set aside a unanimous twelve-member take-nothing
verdict for Relators following a two-week jury trial. It articulates two grounds for granting a new
trial: factual sufficiency and what the order labels as “empty chair” or section 33.004 2
gamesmanship in presenting evidence concerning an undesignated nonparty traffic control officer.
Our review is confined to whether the grounds set forth in the new trial order are legally
1 This proceeding arises out of Cause No. 2022-CI-19897, styled Brandon C. Rios v. Arturo Perez and Texas Materials Group, Inc. (D/B/A Texas Materials), pending in the 285th Judicial District Court, Bexar County, Texas, the Honorable Nadine Melissa Nieto presiding. 2 Section 33.004 of the Texas Civil Practice and Remedies Code describes procedures through which “[a] defendant may seek to designate a person as a responsible third party[.]” TEX. CIV. PRAC. & REM. CODE § 33.004. 04-25-00617-CV
appropriate and supported by the record. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d
746, 758 (Tex. 2013) (orig. proceeding) (“If, despite conformity with the procedural requirements
of our precedent, a trial court’s articulated reasons are not supported by the underlying record, the
new trial order cannot stand.”).
Relators filed their petition for writ of mandamus on September 26, 2025. The parties
jointly requested a stay of this original proceeding so that they could supplement the mandamus
record with the complete record of the trial and afford the real party in interest time to file their
response with the full trial record available. The mandamus record is now complete, the real party
in interest has filed his response, and the relators have filed a reply. Having considered the new
trial order, the arguments of the parties, and the record presented, we conclude that the trial court
abused its discretion in granting the new trial order and that relators do not possess an adequate
remedy at law. Accordingly, we conditionally grant the petition.
I. BACKGROUND
A. The Collision and Trial
The underlying suit arises from a May 2021 vehicle collision in a construction zone. Two
off-duty police officers were directing traffic at the work-zone exit. One was positioned at an
intersection controlling the flow of through traffic; the other served as a flagger, signaling vehicles
exiting the construction site onto the roadway. Rios was a passenger in a vehicle driven by
Domingo Zapata. Perez was operating a dump truck within the scope of his employment with
TMG. As Perez’s dump truck exited the construction zone and merged onto the roadway, it struck
Zapata’s vehicle.
The crash report taken that day indicated that Perez “stated he thought the flagman was
waving him through the intersection.” The crash report also indicated that Zapata “stated that he
was flagged through the intersection…by the flagman at the intersection.” The disputed testimony
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at trial centered on whether Perez had reasonably interpreted the flagger’s hand signals when
proceeding into the intersection.
Rios filed suit against Perez and TMG on October 6, 2022. Relators did not designate the
traffic control officer as a responsible third party. Trial was set for January 23, 2025.
On January 10, 2025, relators filed a stipulation conceding that Perez was within the course
and scope of his employment, that the accident occurred as Perez was exiting the construction
zone, that Rios’s vehicle had the right of way, and that TMG was vicariously responsible for any
negligence of Perez. The stipulation does not concede negligence, proximate cause, or causation
of any specific injury. It was incorporated into the jury charge.
Trial began on January 23, 2025 and concluded on February 3, 2025. A twelve-member
jury heard the case over this two-week period.
Rios introduced evidence and argument concerning the traffic control officer throughout
trial: in his opening statement; through the testimony of Officer Shane Huebner (his first witness,
presented by video deposition); through Perez’s testimony in Rios’s case-in-chief; through
Zachary Marshall’s testimony in Rios’s case-in-chief; through the TMG incident report (Plaintiff’s
Exhibit 54); and through the Crash Report (Plaintiff’s Exhibit 1). Relators also referenced the
traffic control officer at various points, including in their opening statement, in cross-examination
of Marshall, in the video deposition of Zapata, and in their closing argument.
Rios did not object on the basis of responsible third party or related substantive
admissibility grounds at any point during trial. At the pre-charge-conference colloquy, Rios’s
counsel raised “that issue with kind of a responsible third party” and asked whether the trial court
could instruct the jury on the flagger; defense counsel responded that the charge addressed the
matter, and the trial court agreed. Rios’s counsel then stated “No objections from Plaintiff” and
lodged no objection as the charge conference proceeded page by page.
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Rios filed a motion in limine on January 25, 2025, seeking to exclude sixty-six categories
of information. Relevant to the new trial order are Rios’s motions in limine number 23 and 49,
both of which were agreed upon by the parties. The first regarded the introduction of evidence that
was not produced or disclosed by the parties. The second precluded the introduction of the probable
testimony of a witness not testifying.
On February 3, 2025, the jury returned a unanimous take-nothing verdict, answering “No”
to Question 1, which asked whether the negligence, if any, of Perez proximately caused the injury
in question. The trial court signed a take-nothing final judgment on March 24, 2025.
Rios filed a motion for new trial on March 4, 2025, which preceded the signed judgment,
and refiled the motion on April 21, 2025. The trial court conducted hearings on May 22, 2025 and
June 30, 2025. On July 2, 2025, the trial court signed the order granting the motion that is the
subject of this original proceeding.
B. The New Trial Order
The new trial order articulates two grounds. The first ground is factual sufficiency. The
order states that “the jury’s determination that the negligence of Arturo Perez, did not proximately
cause the injury in question was error that cannot be reconciled or disregarded because this answer
completely ignores undisputed facts, and is contrary to the great weight and preponderance of the
totality of the evidence.” The order adds that the evidence was “overwhelming” and “undisputed”
in the form of “stipulations of the parties concerning ‘right of way.’” Apart from the stipulation,
the order does not identify any specific testimony or other evidence in the record to support its
description of the evidence as overwhelming or undisputed.
The second ground is what the order labels as defendants’ “purposeful gamesmanship” in
presenting an “empty chair” defense by blaming an undesignated traffic flagger. The order finds
that defense counsel, “Repeatedly throughout trial . . . referred to and blamed an unnamed,
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unidentified and undesignated responsible third party (sic) traffic officer,” and that defendants
introduced “evidence not produced in discovery . . . in violation of Plaintiff’s Motion in Limine
#23 and #49 and over objections by Rios.” The section of the reporter’s record that the order cites
in support of this assertion relates to completely different testimony. A careful review of the
reporter’s record does not indicate that any such evidence of this finding exists. The order also
finds that defendants “intentionally subverted or ignored the RTP designation requirements,”
“engaged in dilatory tactics intentionally to game the system and provided inadequate disclosure
responses,” and that defendants’ disclosure responses “every time” stated that “Defendants are not
currently aware of any potential responsible third parties.”
II. MANDAMUS STANDARD
To obtain mandamus relief, the relator must show that the trial court clearly abused its
discretion and that the relator has no adequate remedy at law, such as by an appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
“A trial court’s ‘error of law’ or ‘erroneous application of law to facts,’ … ‘is always an abuse of
discretion.’” In re Ill. Nat’l Ins. Co., 685 S.W.3d 826, 835 (Tex. 2024) (quoting In re Facebook,
Inc., 625 S.W.3d 80, 86 (Tex. 2021) (orig. proceeding). Whether the relator possesses an adequate
remedy at law requires balancing public and private interests in allowing mandamus to proceed or
reserving ruling until there is a final appeal. In re Prudential, 148 S.W.3d at 136–37. “The
operative word, ‘adequate’, has no comprehensive definition; it is simply a proxy for the careful
balance of jurisprudential considerations that determine when appellate courts will use original
mandamus proceedings to review the actions of lower courts.” In re Prudential, 148 S.W.3d at
136.
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III. ANALYSIS
Disregarding a jury’s verdict “is an unusually serious act that imperils a constitutional value
of immense importance—the authority of a jury.” In re Space Expl. Techs. Corp., 716 S.W.3d 576,
581-82 (Tex. 2025) (per curiam) (orig. proceeding) (quoting In re Rudolph Auto., LLC, 674
S.W.3d 289, 302 (Tex. 2023) (orig. proceeding)). Accordingly, trial courts must articulate
“understandable, reasonably specific, and legally appropriate” reasons when granting a motion for
new trial. Toyota, 407 S.W.3d at 759. However, “[s]imply articulating understandable, reasonably
specific, and legally appropriate reasons is not enough; the reasons must be valid and correct.” Id.
at 759. “The [new trial] order must indicate that the trial judge considered the specific facts and
circumstances of the case at hand and explain how the evidence (or lack of evidence) undermines
the jury’s findings.” In re United Scaffolding, Inc., 377 S.W.3d 685, 689 (Tex. 2012).
The trial court’s articulated reasons must be supported by the underlying record; if they are
not, the order cannot stand. Id. at 758. Thus, our review extends to the underlying merits of the
articulated reasons, including whether the reason is a mistake of law or unsupported by the record.
Rudolph, 674 S.W.3d at 301–02.
Here, the new trial order asserts two primary grounds for disregarding the unanimous jury
verdict in defendants’ favor: (1) that the jury verdict “completely ignores undisputed facts” and is
contrary to the “great weight and preponderance of the totality of the evidence,” which the court
repeatedly describes as “overwhelmingly” establishing that Perez was negligent and that his
negligence was the proximate cause of Rios’s injuries; and (2) that defendants improperly sought
to attribute responsibility to an undisclosed, unnamed, and undesignated traffic flagger.
A. Factual Sufficiency
Ground 1 of the order’s rationale for granting a new trial relies on the right-of-way
stipulation as the foundation for its description of the evidence of Perez’s negligence and
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proximate cause as “overwhelming” and “undisputed.” The articulated factual predicate is not
“valid and correct.” Toyota, 407 S.W.3d at 759. It is contradicted by the record, and it rests on a
legal premise that is wrong: a concession of right-of-way does not establish negligence as a matter
of law. See III.A.1, infra. A new trial order whose articulated factual basis is refuted by the record,
and whose stated reason is legally invalid, is a clear abuse of discretion. Id. at 757–59; Rudolph,
674 S.W.3d at 301–02; United Scaffolding, 377 S.W.3d at 689. We do not reweigh the evidence;
we hold only that the order’s stated reason fails the merits-based review Toyota requires. Ground
1 fails for multiple reasons and serves as an independent basis for a conditional grant.
1. The stipulation did not establish negligence as a matter of law
“[T]he law recognizes . . . that some accidents occur without anyone’s negligence”.
Catholic Diocese of El Paso v. Porter, 622 S.W.3d 824, 833 (Tex. 2021) (quoting Dillard v. Tex.
Elec. Co-op., 157 S.W.3d 429, 433 (Tex. 2005)). The existence of a right-of-way and a collision
does not establish negligence per se. See Venegas v. Argueta, No. 01-20-00285-CV, 2021 WL
1679543, at *3 (Tex. App.—Houston [1st Dist.] Apr. 29, 2021, no pet.) (“A driver’s failure to
yield the right-of-way or the mere occurrence of a collision does not give rise to negligence as a
matter of law.”); Middleton v. Palmer, 601 S.W.2d 759, 765 (Tex. App.—Dallas 1980, writ ref’d
n.r.e.) (whether the failure to yield at a right-of-way constitutes negligence is a fact issue for the
jury); see also Williams v. Mutia, No. 01-19-00340-CV, 2021 WL 3729312, at *5–7 (Tex. App.—
Houston [1st Dist.] Aug. 24, 2021, no pet.) (failure to yield the right of way does not constitute
negligence per se because the statutory duties imposed contemplate a reasonably prudent person
standard); Melvin v. Jimenez, No. 04-00-00746-CV, 2002 WL 21963, at *1 (Tex. App.—San
Antonio Jan. 9, 2002, no pet.) (motorist possessing the right of way is not released from the duty
to exercise due care for their own safety or the safety of others).
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The stipulation, included in the jury charge, concedes that Perez was “in the course and
scope of his employment,” that “he was exiting an active construction zone and merging onto the
roadway,” that “the vehicle in which Rios was a passenger had the right-of-way when the incident
occurred, and that TMG “is responsible for any negligence of” Perez. It does not concede Perez’s
negligence, proximate cause, or causation of any specific injury. The term “negligence” is clearly
used in a non-determinative, conditional manner; not as an admission. This stipulation alone is
insufficient to establish that Perez was negligent or that any negligence of Perez caused the injuries
that Rios complained of. The order’s premise runs contrary to well established Texas law and is
not a legally valid reason for a new trial.
2. The evidence on negligence and proximate cause was sharply disputed.
The order’s characterization of the evidence as “overwhelming” and “undisputed” is
contradicted by the record. The evidence at trial on negligence and proximate cause was sharply
disputed, much of it through testimony Rios himself elicited.
The crash report, which was Rios’ exhibit 1, indicated that both Perez and Zapata believed
the flagman to be waving them through. Perez testified that he had his signal on, checked his
mirror, saw no vehicles, then turned and saw the traffic officer “doing some hand signals” and
“thought he was allowing me to pass,” and that “I misinterpreted his hand signals, and I thought I
could leave.” Marshall, TMG’s corporate representative whom Rios called in his case-in-chief,
described the officer as “very far out in the intersection” and no longer “an active traffic control
officer at that point,” testified that the hand signals were “very confusing,” characterized the
collision as “an unfortunate accident,” and concluded that, in TMG’s assessment, “there wasn’t a
lot” Perez “could have done.” Officer Huebner, Rios’s first witness, described the two-officer
protocol and the operational role assigned to the flaggers at the work-zone exit. Zapata, the driver
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of the vehicle in which Rios was a passenger, testified that the flagger “was like waving us
through.”
The jury is “the sole judge of the credibility of witnesses and the weight to be given to their
testimony,” and its role is “to resolve inconsistencies within or conflicts among the witnesses’
testimony.” In re Ellis, No. 04-25-00052-CV, 2025 WL 1949741, at *5 (Tex. App.—San Antonio
July 16, 2025, no pet.) (quoting Givens v. Anderson Columbia Co., 608 S.W.3d 65, 70 (Tex. App.–
San Antonio 2020, pet. denied)). The jury was free to credit Perez’s account over the testimony of
the investigating officer and the testimony Rios offered through his own witnesses. The Texas
Supreme Court has recently reaffirmed: “Accidents happen when something has gone wrong, but
not all accidents are evidence of negligence.” Lozada v. Posada, 718 S.W.3d 262, 267 (Tex. 2025)
(per curiam). And sufficiency is measured against the charge as submitted, not against the
testimony of an investigating officer or an expert. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000); Ellis, 2025 WL 1949741, at *6. A take-nothing verdict in a case of this character is within
the jury’s province. The order’s substitution of its own evaluation of the evidence for that of the
jury is the precise conduct Rudolph and our recent application in Ellis held insufficient to support
a new trial. Rudolph, 674 S.W.3d at 307; Ellis, 2025 WL 1949741, at *7; see also In re Spotted
Lakes, LLC, No. 04-23-00815-CV, 2024 WL 463348, at *4 (Tex. App.—San Antonio Feb. 7,
2024, orig. proceeding).
B. Legally Appropriate
1. A new trial order may not rest on grounds that were not preserved.
A new trial order cannot rest on error that was not preserved. Toyota, 407 S.W.3d at 760–
61; Space Expl., 716 S.W.3d at 583–84. If evidence is admitted at trial without objection, any error
is waived and is not a valid basis for a new trial. Space Expl., 716 S.W.3d at 584 (“If evidence is
thereafter admitted at trial without objection, any error is waived and is not a valid basis for a new
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trial.”) (citing Toyota, 407 S.W.3d at 760–61). A motion in limine, standing alone, generally does
not preserve error. Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986); GTE Sw., Inc. v.
Bruce, 998 S.W.2d 605, 619 (Tex. 1999). To preserve error from a violation of a sustained limine
ruling, the complaining party must object contemporaneously, secure a ruling, and request a
curative instruction or move for mistrial. Pool, 715 S.W.2d at 637; Toyota, 407 S.W.3d at 760–61.
Rios did not object to the flagger evidence on responsible third party or related substantive
admissibility grounds at any stage of the trial. The order cannot rest on a complaint that was not
preserved.
2. Rios introduced and developed the traffic-officer narrative
Texas law forecloses a party from complaining of evidence the party itself introduced. Sw.
Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (“A party on appeal
should not be heard to complain of the admission of improper evidence offered by the other side,
when he, himself, introduced the same evidence or evidence of a similar character.”)
(quoting McInnes v. Yamaha Motor Corp., 673 S.W.2d 185, 188 (Tex. 1984)). The same-or-
similar-evidence rule extends to invited error: “error in the admission of testimony is deemed
harmless and is waived if the objecting party subsequently permits the same or similar evidence to
be introduced without objection.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.
2004). Once evidence comes in without objection, it is “in for all purposes and a proper subject of
closing argument.” Toyota, 407 S.W.3d at 760.
The record establishes that Rios was the affirmative source of the traffic-officer narrative
at every stage of trial.
Opening statement. Rios’s counsel previewed the traffic-officer narrative in opening,
telling the jury they would hear Perez’s testimony that he “thought the flagman, the officer . . . was
signaling me . . . to go through” and the body-camera audio of an officer saying “Stop. Stop.”
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Rios’s counsel also posed the rhetorical question, “Why would a driver be so confused to disregard
an off-duty traffic control officer?”
Officer Huebner. Rios then called Officer Huebner as his first witness, presented by video
deposition. Before playback, the parties presented page-and-line objections to the trial court for
ruling. The objections at that hearing were principally defense objections seeking to exclude
portions of Huebner’s testimony related to the flagger and to Huebner’s fault opinions. Rios
opposed exclusion. The trial court sustained two defense objections outright, partially sustained
one, and overruled nine others. The flagger-related testimony, including Huebner’s explanation of
the two-officer protocol and his fault opinion, was elicited by Rios’s counsel on direct.
Perez. Rios called Perez as an adverse witness in Rios’s case-in-chief. Rios’s counsel
elicited from Perez that he “misunderstood [the flagger’s] hand signals” and “thought that he was
yielding for me to pass” testimony on direct. Rios did not make any objections during this
testimony.
Plaintiff’s Exhibit 54. Rios offered Plaintiff’s Exhibit 54, the TMG incident report
describing the flagger’s role at the scene, twice. Both offers were made by Rios’s counsel; the first
was an agreed pre-admission, with the defense stating the exhibit was “agreed”, and the second
drew a “no objection” from the defense; both times the trial court admitted the exhibit without
limitation on use. Plaintiff’s Exhibit 1, the Crash Report, was also offered by Rios and contains
the flagger-confusion narrative on its face.
Marshall. Rios called Marshall, TMG’s corporate representative, as an adverse witness in
Rios’s case-in-chief. Rios’s counsel elicited the testimony that Perez was “thoroughly confused
about what the traffic control officer was signaling,” that the officer was “very far out in the
intersection” and was no longer “an active traffic control officer at that point,” that the signals
were “very confusing,” that the collision was “an unfortunate accident,” and that, in TMG’s
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assessment, “there wasn’t a lot” Perez “could have done.” The only objections Rios lodged during
Marshall’s cross-examination were form objections: speculation, leading, and counsel testifying.
They were directed at the form of the defense’s questioning, not at the substance or admissibility
of the traffic-officer evidence. The order’s finding that the evidence came in “over objections by
Rios” is therefore unsupported: Rios made no substantive admissibility objection at any stage of
trial.
Plaintiff’s initial closing. Rios’s counsel referenced the traffic officer in plaintiff’s initial
closing, arguing that Perez had told inconsistent stories about the cause of the accident.
Across opening, three plaintiff-called witnesses, two plaintiff-offered exhibits, and
plaintiff’s initial closing, Rios was the affirmative source of the traffic-officer narrative. Rios
cannot now obtain a new trial on the basis of evidence he himself introduced and developed. The
order’s premise that defendants injected an undesignated-RTP narrative over Rios’s resistance is
contradicted by the record. The invited-error doctrine forecloses Rios from complaining of the
evidence that he introduced. Sw. Elec. Power Co., 966 S.W.2d at 473.
3. The right-of-way stipulation did not establish negligence as a matter of law.
As discussed supra, the right-of-way stipulation did not establish that Perez was negligent
as a matter of law. The new trial order characterizes the evidence contradicting the jury’s
unanimous verdict as overwhelming, undisputed, and stipulated. The only evidence that the order
points to is the January 10, 2025, stipulation regarding the right-of-way. The stipulation did not
concede liability and did not constitute negligence per se. The trial court’s misapplication of Texas
law to construe the right-of-way stipulation as per se negligence was an abuse of discretion.
C. No Adequate Remedy by Appeal
A 12-person jury considered the testimony and evidence of the parties over the course of a
two-week trial. Upon the conclusion of that trial, they rendered a unanimous verdict in favor of
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the defendants. This court and the Texas Supreme Court have recognized that there may not be an
adequate remedy by appeal when a district court issues an erroneous new-trial order. Rudolph, 674
S.W.3d at 298 n.5; see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d
204, 209–10 (Tex. 2009) (orig. proceeding); Ellis, 2025 WL 1949741, at *7. Direct appeal from a
final judgment in a second trial would not remedy the harm of having the unanimous take-nothing
verdict set aside on impermissible grounds. Relators have satisfied the second prong of the
mandamus test.
IV. CONCLUSION
The trial court abused its discretion when it granted Brandon C. Rios’s motion for new trial
on July 2, 2025. We conditionally grant the petition for writ of mandamus. The trial court is
directed to vacate the July 2, 2025 order granting a new trial and sign a final judgment based on
the jury’s unanimous verdict. We are confident the court will comply, and the writ will issue only
if we are advised that it has not within fifteen (15) days of this order.
Lori I. Valenzuela, Justice
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