Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 298th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-13853.
Justices Burns, Whitehill, and Schenck.
sole issue in this case is whether the trial court abused its
discretion by denying a motion for new trial based on
allegedly incurable improper jury argument attacking opposing
counsel's honesty. Appellants, however, did not object or
move for an instruction to disregard the argument, but
rather, chose to address the comment during rebuttal. Because
the argument was not so inflammatory and prejudicial as to be
incurable, we conclude that the trial court did not abuse its
discretion by denying appellants' new trial motion and
affirm the trial court's judgment.
Phillips was involved in an automobile accident with
Katherine Hopkins and Christopher Gueta (together, Hopkins
unless otherwise indicated) who subsequently sued him for
negligence and negligence per se. Phillips accepted
liability, and damages were tried to a jury.
voir dire, Hopkins's counsel told the jury: "Because
one of the most important things I want to share with you is,
what I say is not evidence, and what defense counsel says is
not evidence. Only what the Judge allows and a document is
evidence or testimony is considered evidence. What we say is
Hopkins's counsel then added:
Despite that, I'll make a pledge to you, everything I
tell you will be 100-percent accurate and truthful. I have
been known to make a mistake. If I make that mistake,
I'll own it in closing argument at the end of the case.
during closing argument, Phillips's counsel argued:
Do you remember the pledge that Plaintiffs' counsel made
to you before this trial started? If there was a mistake, he
would own it.
Okay. So, let's look at that. He puts up on that overhead
what my client says, "I'm responsible for the
damages." For the accident, yes. But what he doesn't
remind you of, he also asked my client, "Do you know
what their injuries are, what their treatments are?" He
had no idea. So, to insinuate that my client is going to say,
"I accept all of this," is ridiculous. That's
counsel did not object or move the court for an instruction
to disregard. Instead, Hopkins's counsel addressed the
"dishonest" comment in his closing rebuttal.
Specifically, he suggested that Phillips's counsel was
engaging in a "head fake," by
"assassinating" him, calling Hopkins a liar and
calling Dr. Bartholomew (the treating physician) a creep.
Hopkins's counsel also suggested that Phillips's
counsel was not being honest, saying, "It's a spin.
It's not truthful. Trust your notepads. Trust your
memory." Finally, counsel said, I have not
misrepresented anything here to you today, and I resent
any-as an Officer of the Court I resent that
jury returned a verdict awarding $6, 000 to Gueta and $11,
000 to Hopkins and the ...