2020 WL 3815926
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Texas, San Antonio.
Jerold GIVENS and Dinah Givens, Individually and as Representatives of the Estate of James Douglas Givens, Deceased; Beverly Brown, Johnny Scott Brown, and Andrew Brown, Individually and as Representatives of the Estate of Johnnie Lee Brown; Shannon Brown; and Wesley Brown, Appellants
ANDERSON COLUMBIA CO., INC., Appellee
Delivered and Filed: July 8, 2020
From the 293rd Judicial District Court, Maverick County, Texas, Trial Court No. 14-12-30420-MCV, Honorable Maribel Flores, Judge Presiding1
Attorneys and Law Firms
APPELLANT ATTORNEY: Jonathan Daniel Simon, Kevin Bush, Simon Law Firm, 5151 Katy Freeway, Suite 140, Houston, TX 77007, John D. Sloan Jr., Micah Satterwhite, Sloan, Hatcher, Perry, Runge, Robertson & Smith, P.O. Box 2909, Longview, TX 75606, Rachael Jones, P.O. Drawer 2909, Longview, TX 75606-2909, Rolando M. Jasso, Knickerbocker, Heredia, Jasso & Salinas, P.C., 468 East Main Street, Eagle Pass, TX 78852-4554, Brock C. Akers, Akers Law Firm, 3401 Allen Parkway, Suite 101, Houston, TX 77019.
APPELLEE ATTORNEY: Catherine M. Stone, Langley & Banack, Inc., 745 E. Mulberry Ave., Suite 900, San Antonio, TX 78212, Robinson C. Ramsey, 745 E. Mulberry Ave., Suite 900, San Antonio, TX 78212-3141, Heriberto Morales, Jr., Langley & Banack, Inc., 401 Quarry Street, Eagle Pass, TX 78852, Jennifer D. Aufricht, Thompson, Coe, Cousins & Irons, L.L.P., 700 N. Pearl St., 25th Floor, Dallas, TX 75201-2832, Jessica Z. Barger, Wright, Close & Barger, LLP, 1 Riverway, Suite 2200, Houston, TX 77056, Brian Cathey, Wright Close & Barger LLP, 1 Riverway, Suite 2200, Houston, TX 77056-1981.
Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice
Opinion by: Sandee Bryan Marion, Chief Justice
*1 The appellants appeal a take-nothing judgment entered in favor of Anderson Columbia Co., Inc. based on a jury’s verdict. The appellants challenge the factual sufficiency of the evidence to support the jury’s findings. The appellants also contend the trial court erred in: (1) vacating an order granting a mistrial; (2) denying their motion for new trial; and (3) applying an order entered by this court in a prior mandamus proceeding. We affirm the trial court’s judgment.
James Douglas Givens, Johnnie Lee Brown, and Melissa Trevino died from injuries they sustained in an automobile collision. The van driven by Trevino and the pickup truck driven by Givens, in which Brown was a passenger, were struck from behind by an 18-wheel tractor-trailer driven by Salatiel Polanco.
Givens was slowing to a stop at a road construction site immediately behind Trevino’s van when Polanco crashed into the rear of Givens’s pickup truck. Polanco, who was consistently traveling at a speed of approximately 60 mph prior to the crash, did not apply his brakes until two seconds before the collision. The collision forced Givens’s pickup truck into the rear of Trevino’s van. Trevino’s van was also struck by Polanco’s tractor-trailer when the initial impact caused Givens’s truck to move sideways, thereby allowing the tractor-trailer to also directly impact Trevino’s van. At the time of the collision, Trevino’s van was stopped immediately behind another 18-wheel tractor-trailer driven by Mark Patrick. Patrick’s tractor-trailer, which also was damaged in the collision, was stopped behind a few other cars and a third tractor-trailer which were not impacted by the collision.
The collision occurred on a two-lane highway which had been reduced to one lane to accommodate the road construction. Road construction employees called “flaggers” were situated on both sides of the construction zone and would alternately stop traffic in one direction while allowing traffic from the other direction to drive past the construction zone in the one open lane.
The families of Givens, Brown, and Trevino sued Polanco and Anderson, the construction company engaged in the road construction, alleging their negligence caused the accident. Anderson was alleged to be negligent in failing to comply with the traffic control plan the Texas Department of Transportation prepared for the road construction project. Before trial, Trevino’s mother settled her claims against Anderson, and the Givens/Brown families settled their claims against Polanco. After a two-week trial, the jury found Polanco’s negligence caused the occurrence in question but Anderson was not negligent. The jury also found Anderson complied with the provisions of the traffic control plan that were “material to the condition or defect, if any, that was the proximate cause of the occurrence.”
After the jury’s verdict, the trial court granted a motion for mistrial filed by the Givens/Brown families. Anderson filed a petition for writ of mandamus in this court challenging the order granting the mistrial. Because a new trial judge assumed the trial court bench, this court abated the mandamus proceeding pursuant to rule 7.2 of the Texas Rules of Appellate Procedure and instructed Anderson to present to the successor trial judge “each issue made the subject of the pending petition for writ of mandamus and obtain a ruling on each.” After a hearing, the successor trial judge entered an order vacating the order granting the mistrial which effectively denied the motion for mistrial. The successor trial judge also denied the motion for new trial filed by the Givens/Brown families who appeal.
*2 In their first issue, the Givens/Brown families contend the evidence is factually insufficient to support the jury’s findings in favor of Anderson.
“When a party attacks the factual sufficiency of an adverse finding on an issue on which [the party] has the burden of proof, [the party] must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). “The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id.
“A factual sufficiency challenge concedes the existence of conflicting evidence, yet maintain[s] that the evidence against the jury’s findings is so great as to make the finding erroneous.” Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198, 209 (Tex. App.—San Antonio 2013, pet. denied) (internal quotation marks omitted). In conducting a factual sufficiency review, a reviewing court “must not merely substitute its judgment for that of the jury.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Instead, the reviewing court must remain mindful that “the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.” Id. Similarly, it is the jury’s role, not the reviewing court’s, “to resolve inconsistencies within or conflicts among the witnesses’ testimony.” Lamont, 421 S.W.3d at 209–10 (internal quotation marks omitted).
In their brief, the Givens/Brown families cite evidence that could have supported a jury finding that Anderson was negligent in failing to comply with the traffic control plan, including evidence that all required traffic control signs and rumble strips were not properly positioned at the time of the accident. The brief, however, ignores or attempts to discredit the conflicting evidence that the required traffic control signs and rumble strips were properly positioned. In doing so, the brief disregards it is the jury’s role, not this court’s, to assess the credibility of the witnesses and to resolve conflicts in the evidence. The Givens/Brown families also cite evidence that: (1) measurements of the distances between the required traffic control signs and rumble strips after the accident established a few variations from the distances required by the traffic control plan; and (2) flags were not attached to the first traffic control sign required by the traffic control plan which was the sign farthest away from the site of the collision. The jury, however, was asked whether Anderson was in compliance with the provisions of the plan “material to the condition of defect, if any, that was the proximate cause of the occurrence.” Based on its finding, the jury either believed the testimony that the traffic control signs and rumble strips were properly placed or that the variations in the required distances and missing flags were not material. Such a finding is supported by evidence that Polanco failed to slow his speed in response to any of the traffic control signs and rumble strips and failed to brake until two seconds before the collision. Having reviewed all of the evidence and deferring to the jury’s assessment of the credibility of the witnesses and the weight of the evidence, and further deferring to the jury’s resolution of the conflicts in the evidence, we hold the evidence is factually sufficient to support the jury’s findings.
*3 The Givens/Brown families’ first issue is overruled.
In their fourth issue, the Givens/Brown families assert the trial court erred in its application of this court’s abatement order in original proceeding cause number 04-18-00852-CV. Specifically, the Givens/Brown families contend the successor judge erred in independently ruling on the motion for mistrial as opposed to deferring to the prior judge’s ruling in reconsidering that ruling. We disagree.
Rule 7.2 of the Texas Rules of Appellate Procedure requires an appellate court to abate an original proceeding if a public officer ceases to hold office before the original proceeding is finally disposed. TEX. R. APP. P. 7.2. Pursuant to rule 7.2, the successor must “reconsider the original party’s decision.” Id. In this case, the “decision” to be reconsidered was the ruling on the motion for mistrial. Accordingly, the successor judge properly reconsidered whether the motion for mistrial should have been granted and effectively denied the motion by vacating the prior order.
Although the Givens/Brown families are critical of the successor judge making a decision based on a “cold record,” the Texas Supreme Court has recognized a successor judge may be “disadvantaged” in reconsidering rulings under rule 7.2. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009). However, the court noted “successor trial judges are disadvantaged in many, if not most, instances when they are called upon to step into pending cases.” Id. The court then concluded, “Part of being a trial judge is having to make difficult rulings in pending matters.” Id. at 214.
The Givens/Brown families’ fourth issue is overruled.
In their second issue, the Givens/Brown families contend the trial court erred in vacating the order granting the mistrial. The Givens/Brown families argue the mistrial was properly granted due to incurable jury argument, violations of motions in limine, and the consolidation of their lawsuit with the Trevino lawsuit. For the reasons previously stated, we consider whether the successor judge erred in effectively denying the motion for mistrial.
A. Standard of Review
“Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” In re E.O.E., 508 S.W.3d 613, 624 (Tex. App.—El Paso 2016, no pet.) (internal quotation marks omitted). “We will not disturb a ruling denying a motion for mistrial absent a showing of an abuse of discretion.” Bazan v. Munoz, 444 S.W.3d 110, 123 (Tex. App.—San Antonio 2014, no pet.). “A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the ruling is arbitrary or unreasonable.” Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019). “When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Stated differently, a trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. In re Estate of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no pet.).
B. Grounds for Ruling
*4 The parties disagree as to whether the Givens/Brown families are limited to the ground for mistrial asserted in their motion for mistrial, namely incurable jury argument. The argument arises from the Givens/Brown families’ assertion on appeal that the trial court erred not only in denying the mistrial based on incurable jury argument, but also based on violations of limine orders and the consolidation of the Givens/Brown and Trevino lawsuits for trial. The procedural history of this case makes the issue even more complex because the two additional grounds were asserted in the Givens/Brown families’ response to Anderson’s motion for reconsideration which were both filed after this court abated the original proceeding to allow the successor judge to reconsider the prior judge’s ruling.
The argument presented arises from a series of Texas Supreme Court decisions addressing the specificity required in a trial court’s order granting a new trial and the nature of the permissible review of such orders in mandamus proceedings. See In re Bent, 487 S.W.3d 170, 175–78 (Tex. 2016) (discussing the series of decisions). In one of the earliest opinions in this series of decisions, the court first noted trial courts are authorized to grant new trials for good cause on a party’s motion or on the trial court’s own motion. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 210 (quoting TEX. R. CIV. P. 320). The court also noted, however, that motions filed by a party “must be in such form that the bases for the motion can be clearly identified and understood by the trial court.” Id. (citing TEX. R. CIV. P. 322). Because the trial court’s order in that case failed to specify the reasons the trial court “refused to enter judgment on the jury verdict and ordered a new trial,” the court ordered the trial court to specify its reasons. Id. at 215. The court further admonished, “The reasons should be clearly identified and reasonably specific.” Id.
In reaching its holding, the majority rejected the dissenting justices’ argument that the trial court’s order was “presumably based on one of the grounds in the motion for new trial,” asserting “that presumption may not be correct.” Id. at 213. Instead, the majority reasoned the order could have been based “on other reasons not even urged by [the movant] and still unknown to both parties.” Id.; see also Steele v. Peurifoy, 585 S.W.2d 338, 340 (Tex. Civ. App.—Dallas 1979, no writ) (noting trial court could have granted mistrial “based on a ground not set out in plaintiff’s motion).
In this case, we are reviewing the successor judge’s order granting Anderson’s motion for reconsideration which effectively denied the motion for mistrial filed by the Givens/Brown families. Although the Texas Supreme Court’s decisions require specificity in an order granting a new trial, no similar specificity is required in an order denying a new trial. Although we see efficiencies could be gained by limiting appellate review of an order denying a mistrial to the grounds raised in the motion for mistrial, the trial court’s discretion in granting a mistrial is not so constrained. And, because the Givens/Brown families’ response to Anderson’s motion for reconsideration expressly presented their two alternative arguments to the successor judge, we conclude we must review each of the arguments challenging the successor judge’s order that the Givens/Brown families present on appeal.
C. Incurable Jury Argument
It is undisputed that no objection was made during trial to the jury argument the Givens/Brown families complain about on appeal. “Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). “In rare cases, an improper argument is considered incurable, and a contemporaneous objection is not required.” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 WL 5558585, at *2 (Tex. App.—Dallas Oct. 29, 2019, pet. denied) (mem. op.). Instead, “[a] complaint of incurable jury argument may be asserted and preserved in a motion for new trial [or post-judgment motion for mistrial], even without a complaint and ruling during the trial.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).
*5 As previously noted, however, incurable argument is rare. Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. The seminal case setting forth the test for determining whether jury argument is incurable is Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979). In Reese, the court explained:
In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.
584 S.W.2d at 839–40. Although the Givens/Brown families argue in their brief that incurable jury argument cannot be invited, this argument is contrary to the holding in Reese explaining a complainant asserting incurable jury argument has the burden to first establish improper jury argument by establishing the argument “was not invited or provoked.” Id. at 839; see also Zurita v. Lombana, 322 S.W.3d 463, 482 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“For an argument to be considered incurable, the complaining party must not have invited or provoked the improper argument.”).
To rise to the level of incurable jury argument, therefore, the argument must “strike[ ] at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. “In Reese, [the Texas Supreme] Court discussed different types of jury argument that constitute incurable error.” Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. “For example, appeals to racial prejudice adversely affect the fairness and equality of justice rendered by courts because they improperly induce consideration of a party’s race to be used as a factor in the jury’s decision.” Id. “Unsupported, extreme, and personal attacks on opposing parties and witnesses can similarly compromise the basic premise that a trial provides impartial, equal justice.” Id. “Further, accusing the opposing party of manipulating a witness, without evidence of witness tampering, can be incurable, harmful argument.” Id. Finally, inflammatory epithets such as “liar,” “fraud,” “faker,” “cheat,” and “imposter” can constitute incurable argument. Ramirez v. Welch, No. 05-16-00681-CV, 2018 WL 3725254, at *16 (Tex. App.—Dallas Aug. 6, 2018, no pet.) (mem. op.).
*6 On the other hand, hyperbole is “generally a permissible rhetorical technique in closing argument.” PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied); see also Reese, 584 S.W.2d at 838 (“Hyperbole has long been one of the figurative techniques of oral advocacy.”). Similarly, commenting on a statement made by opposing counsel during trial, as opposed to an unsupported accusation of wrongdoing, is also permissible. Ramirez, 2018 WL 3725254, at *17; Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 855–56 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (making reference to opposing counsel and asking “what kind of snake oil is he selling you” held not to be incurable jury argument); Rebel Drilling Co., L.P. v. Nabors Drilling USA, Inc., 14-02-00841-CV, 2004 WL 2058260, at *10 (Tex. App.—Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op.) (holding reference to “smoke and mirrors” was not incurable argument).
1. Ethnic Prejudice
In arguing Anderson’s counsel made an “incurable appeal to ethnic prejudice or solidarity during closing argument, the Givens/Brown families primarily rely on this court’s decision in Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859 (Tex. App.—San Antonio 1990, writ denied). Accordingly, we first examine the Guerrero opinion.
In Guerrero, Roman Guerrero was injured in January of 1982 when he fell from a tractor and injured his tailbone while working for H.G. Farms. 800 S.W.2d at 860. For three months Guerrero was treated by a doctor, and H.G. Farms’s insurance company, Texas Employers’ Insurance Association, paid Guerrero workers’ compensation benefits and also paid his medical expenses. Id. “On April 15, 1982, Guerrero returned to work, and he continued to work for H.G. Farms until the company closed in October 1984.” Id. at 860–61. “On January 19, 1985—three years after the January 1982 injury—Guerrero saw [another doctor], who diagnosed a herniated lumbar disc and operated four months later.” Id. at 861. At the conclusion of a subsequent trial, a jury found Guerrero’s January 1982 injury occurred “in the course of his employment for H.G. Farms, and that the injury caused total and permanent incapacity.” Id.
One of the issues TEIA raised on appeal was incurable jury argument, asserting “Guerrero’s counsel made an appeal for ethnic unity in his closing jury argument.” Id. at 862. This court first noted, “The record shows that eleven of the twelve jurors had Spanish surnames, as did Guerrero, his trial attorney, and his treating doctor.”2 Id. The court next noted the challenged argument read as follows:
MR. BARRIENTOS (Guerrero’s counsel): I am tickled to death to be here and I will represent him and any man like him in Zavala, Maverick, Dimmit, Cameron, any county in the State of Texas any time.
Octavio Paz, a well-known author said one time, and I will quote him and I already translated it. He said, “Things that unite us far exceed those things that divide us.”
You apply that to evidence. The things, the preponderance of the evidence, that unite in favor of Mr. Guerrero, far exceed those inconsistencies, the legal problems. He is not a perfect man, neither is his medical. But heck, he went back to work after he got cut, things of this nature. The things that unite us, exceed those that divide us. There is a time to be united. Right now is a time to be united.
An example is politics. We don’t have to agree with all the candidates, with the same ones. But by golly there comes a time when we have got to stick together as a community. We have to stick together as a jury of peers of a man to pass judgment and help that person if he is entitled to [sic] under the evidence.
*7 MR. KURTH (TEIA’s counsel): Your Honor, this is getting a little inflammatory in asking the jury to take that position—
MR. BARRIENTOS: No, No. I didn’t ask them, sir, I said, We. I think that is proper.
THE COURT: Well, you have got two minutes.
MR. BARRIENTOS: Thank you, your Honor. Because if one is united, one has hope. And with hope, one can live. He still has a lot of years to live. And it is all going to depend on you.
Id. (emphasis added in original). TEIA asserted the argument “was a subtle but nonetheless real request for the jury to be united and on Guerrero’s side for ethnic reasons.” Id. The court agreed, asserting, “We think the argument was a request for ethnic solidarity that cannot be plausibly explained away as a suggestion that the jury simply remember the things that ‘unite’ Guerrero’s case.” Id. The court acknowledged the ethnic references were “veiled and subtle” but asserted:
The law should not stoop to evaluating subtle distinctions such as whether an argument was too crude and revolting, or on the other hand sufficiently slick and artful to pass muster. To permit the sophisticated ethnic plea while condemning those that are open and unabashed would simply reward counsel for ingenuity in packaging. Inevitably, lawyers representing their clients zealously within the bounds of the law would test the limits and fine-tune their arguments to avoid being too explicit. Courts would be asked to label some arguments permissible and uphold them with a wink when everyone knew that an ethnic appeal had been made. That course would demean the law and perhaps deepen the divisions from which society already suffers.
Id. at 864–65. The court then held “reversible error occurs whenever any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity.” Id. at 866.
Having examined the holding in Guerrero, we turn our attention to the argument in the instant case. Although the Givens/Brown families’ brief expressly quotes the comments they contend were incurable in making their personal attack and inflammatory language arguments, their brief is less precise in arguing that the closing argument by Anderson’s counsel was an “incurable appeal to ethnic prejudice or solidarity.” The only citation to the alleged “appeal to ethnic prejudice” in the brief is a global citation to thirty-seven pages of argument by one of the two attorneys who presented closing argument on behalf of Anderson, noting that attorney “had a Hispanic surname.”
The Givens/Brown families’ brief contends Anderson’s attorney with the Hispanic surname “began his closing argument by immediately attempting to rally the jury’s support for ‘our people,’ and seeking to create and encourage division between ‘our people’ on one side and the Givens-Brown Parties and their counsel on the other.” Just as the Guerrero court considered the specific argument made within its proper context, we also must examine the specific argument made in this case within its proper context. 800 S.W.2d at 863 (basing conclusion on a “realistic assessment of the argument in context”).
*8 First, we note the attorney whose argument is globally cited in the Givens/Brown families’ brief began his argument asserting Anderson’s position throughout the litigation was that the traffic control signs and rumble strips were properly in place at the time of the collision. We do not see any reference to any comment analogous to “our people” until about ten pages into the argument when the attorney stated he was “disappointed by certain comments made about our town and what they implied about our people, our troopers, our EMS” and then asserted:
But I know our town is not perfect, but it’s still our town. And I know that there is room for improvement, but it’s our town.
What saddened me the most was to hear those attorneys get up in voir dire and ask for $200 million from the 60-plus of you that were here.
To think of all the progress we have made as a community and for out-of-towners to still see us as naive, gullible, or easily fooled, and to be easily fooled and persuaded to give millions and millions of dollars, it’s beyond me.
The attorney then returned to arguing the traffic control signs were properly placed and referring to the evidence. Approximately twenty pages later, in referring to the effort by the Givens/Brown families’ attorney to discredit a trooper’s testimony based on his inexperience, the attorney asserted:
This is a veteran that they are now trying to malign and painting a picture of being young and incompetent and not knowing what they were doing. That’s what these out-of-towners are trying to say about our people.
The attorney then again returned to arguing what the evidence showed. Approximately seven pages later at the conclusion of his argument, the attorney argued, “In conclusion, our town needs to let corporations in Texas and throughout the country know that they will be treated fairly and will be given a fair shake in the community.” Referring to the evidence introduced by the plaintiffs that one of Anderson’s employees had served a prison sentence for a prior felony, the attorney argued corporations giving young kids a second chance should be welcomed “in this community with open arms.” The attorney further argued a corporation willing to defend its employees in litigation is “the type of corporation that we need here in this community.” Finally, the attorney asserted the jury should reject the Givens/Brown families’ conspiracy theory that the witnesses conspired to testify the traffic control signs and rumble strips were properly in place to show:
That we are not the Maverick County of the past. That we are intelligent, thoughtful, and thorough in our deliberations. And we will not be fooled by multiple conspiracy theories. And that we can distinguish between those that are seeking rightful justice against the empty-chair defendant that couldn’t even come, Defendant Polanco.
Having reviewed the argument about which the Givens/Brown families complain in its proper context, we disagree that the argument was an appeal to ethnic prejudice or solidarity. Although phrased in terms of “community,” the argument was directed at preventing “out-of-towners” from discrediting the local community, not in racial or ethnic terms but in terms of defending the people who work in the community and whose testimony the Givens/Brown families sought to discredit.
During the closing argument by the Givens/Brown families’ attorney, which preceded the argument by Anderson’s attorney, the attorney suggested one trooper changed the testimony he gave in his deposition after meeting with Anderson’s attorneys despite evidence that the trooper’s change in testimony was based on a crucial portion of his report that was missing during his deposition. The attorney also suggested that the testimony of the inspector from the Texas Department of Transportation “should be given no credibility whatsoever” because, with three people dead, “he’s going to say he did his job even though he didn’t.” The attorney further argued the testimony by Anderson’s employees was “false, false, false.” Finally, the attorney asserted, “The company that thinks this way is going to continue to think this way until one voice stands up…. There is 12 of you, one voice.”
*9 Therefore, considering the argument in its proper context, we hold the trial court did not abuse its discretion in concluding the argument by Anderson’s counsel was not an appeal to ethnic prejudice. Even if, however, it could be construed as such, we hold the argument was not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883.
2. Personal Attacks/Inflammatory Language
In asserting Anderson’s counsel engaged in personal attacks or used inflammatory language, the Givens/Brown families first cite to references Anderson’s counsel made to greed and money and to distinctions between Trevino’s approach to her case and the Givens/Brown families’ approach to their case. Specifically, the Givens/Brown families’ brief cites five specific comments made during Anderson’s closing argument referring to: (1) greed starting and being the downfall of the Givens/Brown litigation; (2) distinguishing between seeking rightful justice for the Trevino family and those in it for greed and money; (3) referring to a reference to the value of a Picasso by the Givens/Brown families’ attorney during his closing argument in suggesting a damage amount and stating the attorney was planning to spend his legal money on a Picasso; (4) referring to the Givens/Brown families starting with money in voir dire and ending with talking about money; and (5) referring to Trevino not including any questions in the jury charge about gross negligence because she is not greedy. Having reviewed the record as a whole, the trial court could have believed the comments were references back to comments and remarks made throughout trial during voir dire, opening argument, and by Polanco’s attorney during his closing argument.
Beginning with voir dire, Trevino’s attorney first addressed the possibility of “astronomically” high requests for damages with the venire, commenting:
You can probably figure out that there, because of the enormous losses that everybody has suffered, that there will be requests at the end of the case for you to consider significant amounts of money for compensation. It’s going to happen.
Moving beyond that, does anybody believe that in lawsuits like this you’ve heard of money damages that are just so astronomically high, that you just wonder how in the world that happened and I would never do something like that if I get a chance?
Okay. Does anybody have a belief, because of anything you have heard or experienced in the past in lawsuits like this, that the numbers that jurors in Maverick County or any other county have awarded are just astronomical, out of sight, crazy, whatever words you want to use, if you believe that, would you please tell me?
The Givens/Brown families’ attorney continued along this same theme and was the first to actually use the word “greed” during voir dire, commenting:
And I always have a hard time standing in front of a jury and saying here is what I believe you should do as a result of this, because it kind of makes me feel like a greedy lawyer. It makes me feel like you look at me and say this is one of those ambulance-chasing, greedy lawyers. But that’s my job.
And I believe that for these lives, the jury in this case should find compensation in the amount of $200 million. And I want to know right now how you feel about that. Anyone?
The second day of voir dire, questioning by the attorney for the Givens/Brown families returned to questions regarding damages, and one of the venire members commented,
*10 I believe I think the 200 million they are asking for is exorbitant. I don’t believe, like, in a person’s lifetime they would make that money. So I don’t know exactly what their professions were, but I don’t believe that that would be — I think it’s just too much money.
Trevino’s attorney began distinguishing Trevino’s approach to the case from the Givens/Brown families’ approach during opening argument, commenting:
It’s important, given what has happened in the last couple [of] days, for me to make sure you understand this. Folks, there is only one team that speaks for Ms. Trevino, and that’s these folks here with me. Nobody else speaks for her other than us.
And I’m telling you now, based upon that, we are not part of that $200 million number that you were given earlier; we are not.
We believe that the injuries and damages are substantial. But we are not part of that. So please don’t bump us into that category.
Anderson’s attorney continued drawing the same distinction between the plaintiffs’ cases during her opening statement, asserting:
Apparently, you’re not going to meet Mr. Polanco.3 But is it odd that the Brown and Givens families accept Mr. Polanco’s testimony?
They are defending the man who killed their families. Ms. Trevino is not doing that.
And isn’t it odd, after voir dire by the Brown-Givens families, not the Trevinos, but the Brown and Givens family where there was all this talk about money, money, and big figures, that they are defending Mr. Polanco and suing Anderson Columbia?
Interesting, because it’s about money.
Finally, during closing argument, Polanco’s attorney made the first reference to “justice” in comparing Polanco’s testimony that the road construction signs were not present with the other evidence, asserting:
They want to defend themselves by making up things about Mr. Polanco to get you to believe that, well, it doesn’t matter that we didn’t comply with the traffic control plan. Mr. Polanco should have stopped anyway. That’s the purpose.
And, ladies and gentlemen, I’m going to suggest to you, that’s not justice, and that’s not right.
Therefore, having reviewed the record as a whole, even if we assume the comments were improper, we hold the references to greed and money and the comments made distinguishing between Trevino’s case and the Givens/Brown case were not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883; see also Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) (holding counsel’s use of the term “greed,” while improper, “was curable by instruction”).
D. Violations of Orders on Motions in Limine
The Givens/Brown families also contend the trial court erred in not granting a mistrial because Anderson’s counsel repeatedly violated the trial court’s orders on Trevino’s and Polanco’s motions in limine. The purpose of a motion in limine “is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury without seeking the trial court’s permission.” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015) (internal quotation marks omitted). “[A] protective limine order alone does not preserve error.” In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013). Stated differently, a violation of a limine order does not preserve error for appellate review absent further objection. Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986) (noting “to preserve error as to an improper question asked in contravention of a sustained motion in limine, a timely objection is necessary”). The record does not show any objections were made to the alleged violations the Givens/Brown families cite in their brief.
*11 More importantly, the citations to the record in support of the Givens/Brown families’ argument are to Anderson’s closing argument, which we already held did not constitute incurable jury argument. We do not evaluate those arguments differently based on an assertion that they also violated a ruling on a motion in limine. See UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 617 (Tex. App.—Corpus Christi 2005, pet. denied) (evaluating contention that argument violated motion in limine under incurable jury argument standard).
The only exception to the record citations referencing closing argument is the record citation to a portion of the record in which the parties were discussing the admissibility of a redacted version of a mug shot of Polanco taken the day of the collision when he was arrested for criminally negligent homicide. The redacted version showed only Polanco’s face. From the discussions, it appears the mug shot was on a power point slide shown by Anderson during opening argument.4 The motion in limine the Givens/Brown families assert Anderson violated precluded Anderson from mentioning any of Polanco’s arrests or convictions. The parties argued extensively at trial regarding the admissibility of the redacted mug shot, which the trial court ultimately excluded. During those arguments, counsel for the Givens/Brown families conceded “[y]ou really can’t see very much” on the power point slide. Given the foregoing, even if the complaint had been preserved, we would overrule the Givens/Brown families’ argument that a mistrial should have been granted based on the alleged violation of the limine order precluding Anderson from mentioning any of Polanco’s arrests or convictions.
E. Consolidation of Trials
The Givens/Brown families finally make a one sentence reference to the consolidation of their lawsuit and the Trevino’s lawsuit for trial purposes as a proper basis for granting a mistrial. As Anderson notes in its brief, however, the Givens/Brown families filed the motion to consolidate the trials. “[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as ‘the invited error’ doctrine.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005).
The Givens/Brown families’ second issue is overruled.
MOTION FOR NEW TRIAL
In their third issue, the Givens/Brown families assert the trial court abused its discretion in denying their motion for new trial because the evidence is factually insufficient to support the jury’s verdict and the mistrial order should not have been vacated. Having previously addressed and rejected these arguments, we overrule this issue.
The trial court’s judgment is affirmed.
— S.W.3d —-, 2020 WL 3815926
The Honorable Cynthia L. Muniz signed the order consolidating the two underlying lawsuits. The Honorable Gloria Saldaña presided over the jury trial and signed the order granting a mistrial. The Honorable Maribel Flores signed the order vacating the order granting the mistrial and entered the final judgment.
We note a Spanish surname does not equate to a juror being of Hispanic origin. For example, an Anglo female could acquire a Spanish surname by marriage.
Polanco was not present during trial. His testimony was presented through a video deposition.
The record is unclear whether or not the mug shot on the power point slide was redacted.