Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 13-CV-0838
consists of Justices Christopher, Jamison, and Donovan.
a premises-liability negligence case in which a customer and
her husband brought suit against a Jack in the Box restaurant
for injuries sustained in a slip and fall and for loss of
consortium. The trial court, based on the jury's verdict,
rendered judgment against the customer and her husband. The
customer and her husband appeal with three issues. We affirm.
December 22, 2011, while appellant Laura Duke was a customer
in the Jack in the Box in Galveston, Texas, she slipped and
fell in front of the door to the women's restroom. The
incident was captured on the security camera video.
Dukes brought suit against appellee Jack in the Box Eastern
Division, L.P. Laura alleged she slipped on water on the
floor outside the women's restroom, causing her to break
her hip. Laura argues Jack in the Box was negligent for
failing to properly inspect for dangerous hazards and to
clean or promptly mark to alert patrons of a dangerous
situation, in violation of its obligations as a premises
owner to business invitees. Appellant Jack Duke brought
derivative claims for loss of consortium.
undisputed that Laura fell in the hallway immediately in
front of the women's restroom at the Jack in the Box
restaurant. She fell as she was opening the door to the
women's restroom. The incident was captured on a security
camera video. Immediately before the incident, a Jack in the
Box maintenance employee, Mariano Gaitan Rodriguez, walked
down the restroom hallway. A customer alerted the restaurant
that Laura had fallen. Immediately after the incident, the
restaurant manager, Eusebio Cedillo, and a restaurant cook,
Jorge Sagastume Martinez, were present in the restroom
hallway with Laura. Cedillo helped Laura up and to the
to trial, appellants took oral depositions of Gaitan,
Cedillo, and Sagastume. None of the three former employees
reported seeing any water or other hazardous conditions in
the location where Laura fell.
trial commenced on April 27, 2015. In appellants' opening
statement, their counsel suggested that Gaitan, Cedillo, and
Sagastume made admissions that would be heard by the jury if
they "stick to" their deposition testimony.
testified that she did not look at the floor as she walked
down the hallway to the restroom and did not look at the
floor as she approached the entrance to the women's
restroom. After falling, Laura did not observe any water on
the floor. She did not recall touching water with her hands
while on the floor immediately after the fall. She never saw
any hazard or unsafe conditions on the floor in the area
where she fell. Laura testified she "mopped it up with
called Gaitan, Cedillo, and Sagastume to testify as witnesses
in their case-in-chief. None of the three former employees
reported seeing any water or other hazardous conditions in
the area of the incident. Each testified that they saw no
water, mud, or other debris at the location in which the
appellants' counsel began to question Cedillo about
potentially inconsistent testimony, Cedillo told
appellants' counsel that any inconsistencies were because
appellants' counsel was asking hypothetical questions and
the questions went "round and round until I gave you
that answer." Cedillo stated that appellants'
counsel "went round in circles and found different ways
to ask the same questions." Cedillo repeated during
cross-examination by appellee that appellants' counsel
"kept going round and round and round until he got what
he was looking for." Appellants did not object to
Cedillo's testimony; thus it was admitted. Instead,
appellants' counsel sought to impeach Cedillo by reading
Cedillo's oral deposition transcript to the jury or go
through the oral deposition of Cedillo with the witness
"line by line." Appellants' counsel complained,
"this position that [Cedillo] has taken is specious,
self-serving and ridiculous and can be demonstrably
rebuked." The trial court denied the request.
closing arguments, both appellants' counsel and counsel
for appellee commented upon the evidence admitted at trial.
Appellants' counsel did not lodge any objections during
closing argument. The jury found that Jack in the Box was not
negligent. The trial court entered a final judgment on July
August 4, 2015, appellants timely filed a motion for new
trial arguing Jack in the Box's counsel committed
reversible error by "(1) engaging in incurable jury
argument and by (2) improper witness influencing involving
witnesses Cedillo and Gaitan." Appellants also argued
that witnesses Cedillo and Gaitan violated "the
Rule" while awaiting their turn to testify. On September
4, 2015, appellants filed their "Brief in Support of
Plaintiffs' Motion for New Trial, " attaching
transcripts of pretrial and post-trial depositions. The brief
addressed only the claim of improper jury argument.
Appellee's filed a response to the motion for new trial.
An oral hearing was held on September 9, 2015. Appellee
objected to appellants' brief in support as being
untimely. The trial court denied appellants' motion for
new trial on September 10, 2015. Appellants timely filed this
three related issues, appellants assert that the trial court
erroneously denied their motion for new trial. Appellants
primarily allege improper jury argument by appellee's
trial counsel, asserting he made personal attacks on
appellants' counsel that created incurable, reversible,
and harmful error. Appellants also contend that a new trial
was warranted because the trial court erred by excluding from
evidence the pretrial deposition testimony of a testifying
witness. Finally, appellants assert that post-trial
deposition testimony demonstrating false statements by a
trial witness warranted a new trial.
A. Standard of review
review a trial court's denial of a motion for new trial
for an abuse of discretion. In re R.R., 209 S.W.3d
112, 114 (Tex. 2006) (per curiam). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable
manner, or if it acts without reference to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).
Incurable jury argument
their first issue, appellants maintain that the trial court
erred in denying their motion for new trial because
appellee's counsel made incurable jury arguments.
Specifically, appellants argue:
The jury argument and repeated comments made by Jack in the
Box's counsel, consisting of unsupported accusations of
"tricking" "unsophisticated" witnesses
into giving the "bad" testimony that would prove
inconsistent with their trial testimony was prejudicial and
incurable and requires a new trial.
over counsel during closing argument is within the sound
discretion of the trial court and will not be disturbed
without a clear showing of abuse of that discretion.
Mandril v. Kasishke, 620 S.W.2d 238, 247 (Tex. Civ.
App.-Amarillo 1981, writ ref'd n.r.e.). A jury argument
is "incurable" when it is so prejudicial or
inflammatory that an instruction to disregard cannot
eliminate the harm. Otis Elevator Co. v. Wood, 436
S.W.2d 324, 333 (Tex. 1968); Clark v. Bres, 217
S.W.3d 501, 509 (Tex. App.-Houston [14th Dist.] 2006, pet
denied). "There are only rare instances of incurable
harm from improper argument." Id. (citing
Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840
(Tex. 1979)); accord Living Ctrs. of Tex., Inc. v.
Penalver, 256 S.W.3d 678, 681 (Tex. 2008).
jury argument encompasses appeals to racial prejudice;
unsupported charges of perjury; unsupported, extreme, and
personal attacks on opposing parties and witnesses; or
baseless allegations of witness tampering." Metro.
Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex.
App.-Houston [14th Dist.] 2014, no pet.) (citing
Penalver, 256 S.W.3d at 681); see also Katy
Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579,
609 (Tex. App.-Houston [14th Dist.] 2015, no pet.). For
instance, a jury argument comparing the defendant's
nursing home's conduct to medical experimentation on the
elderly in Nazi Germany was incurable. Penalver, 256
S.W.3d at 681-82. A jury argument stating that the plaintiff,
a naturalized United States citizen born in India, had
committed "judicial terrorism" was incurable when
coupled with an unsupported reference to "cultural
issues" in the case. Showbiz Multimedia, LLC v.
Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769,
771-72 (Tex. App.-Houston [1st Dist.] 2009, no pet.). On the
other hand, a jury argument making a reference to opposing
counsel and asking "What kind of snake oil is he selling
you" was not incurable. McChristian, 449 S.W.3d
at 855-56. Additionally, a jury argument comparing the
defendants in a negligence case to onlookers who did nothing
during the savage beating of a slave was not incurable.
4Front Engineered Solutions, Inc. v. Rosales, 512
S.W.3d 357, 390-91 (Tex. App.-Corpus Christi 2015),
rev'd on other grounds, 505 S.W.3d 905 (Tex.
complaint of incurable argument may be asserted and preserved
in a motion for new trial, even without a complaint and
ruling during the trial. Phillips, v.
Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). To show an
argument is incurable appellants must prove: (1) an improper
argument was made; (2) that was not invited or provoked; (3)
that was not curable by an instruction, a prompt withdrawal
of the statement, or a reprimand by the trial; and (4) that
by its nature, degree, and extent, constituted reversibly
harmful error based on an examination of the entire record to
determine the argument's probable effect on a ...