INCURABLE JURY ARGUMENT - CASELAW SNIPPETS
Incurable jury argument is rare. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). For
an argument to be considered incurable, the complaining party must not have invited or provoked the
improper argument. Id. at 680. Incurable jury argument exists when the argument is so prejudicial or
inflammatory that an instruction to the jury to disregard cannot eliminate the harm. Clark v. Bres, 217 S.W.3d
501, 509 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). The party claiming incurable harm must
persuade the court that, based on the record as a whole, the offensive argument was 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." Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex.
Instances of incurable jury argument include appeals to racial prejudice; the use of inflammatory epithets
such as "liar," "fraud," "faker" "cheat," and "imposter"; and unsupported charges of perjury. See Standard
Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex. 1979). But a litigant is entitled to have his counsel argue
the facts of the case to the jury. Clark, 271 S.W.3d at 510. Trial counsel may properly discuss the
reasonableness of the evidence as well as the probative effect or lack thereof, of the evidence. Id. Trial
counsel should be allowed wide latitude in arguing the evidence and the reasonable inferences from the
evidence to the jury. Id.
To preserve for appellate review a complaint of improper jury argument, the complaining party must object
when the argument occurs, unless the conduct or comment cannot be rendered harmless by proper
instruction. See Jones v. Rep. Waste Servs. of Tex., Ltd., 236 S.W.3d 390, 402 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied) (citing Dow Chem. Co., 46 S.W.3d at 241). A jury argument is curable if the trial
court can eliminate the argument’s harmful effect by instructing the jury to disregard the statement. Id.
(citing Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968)). We examine the record to determine
whether an instruction to disregard would have sufficiently remedied the harm. Id. at 403. Rarely will an
improper argument so prejudicially influence the jury such that the trial court cannot cure the error. Id.
(citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)).
Incurable jury argument is rare. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008).
Incurable jury argument exists when an argument is so prejudicial or inflammatory that an instruction to the
jury to disregard cannot eliminate the harm. Clark v. Bres, 217 S.W.3d 501, 509 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied). “The party claiming incurable harm must persuade the court that, based on the
record as a whole, the offensive argument was 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.’” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009) (quoting Goforth v. Alvey, 153
Tex. 449, 271 S.W.2d 404, 404 (1954)). Incurable argument must strike at the very core of the judicial
process. Bramlett, 288 S.W.3d at 883. Appeals to racial prejudice and unsupported, extreme, and
personal attacks on opposing parties, counsel, and witnesses that compromise the basic premise that a trial
provides impartial, equal justice are examples of incurable argument. Living Ctrs. of Tex., 256 S.W.3d at
681; see e.g., In re W.G.W., 812 S.W.2d 409, 416 (Tex. App.—Houston [1st Dist.] 1991, no writ) (holding
attempt to link mother’s cervical cancer with immoral conduct in custody dispute was incurable where there
was no evidence to support such connection); Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 756–59 (Tex.
App.—Texarkana 1992, writ denied) (unsupported allegations that opposing counsel manufactured
evidence and suborned perjury are generally incurable); Texas Employers’ Ins. Ass’n v. Guerrero, 800 S.W.
2d 859, 862 (Tex. App.—San Antonio 1990, writ denied) (holding intentional appeal for verdict based on
parties’ race or ethnicity is incurable).
IMPROPER JURY ARGUMENT AS BASIS FOR REVERSAL
In Peñalver, the supreme court re-emphasized how serious a jury argument is that introduces race or other
extreme personal attacks. Id. at 681 (citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex.
1979)). Just as the horrible events of World War II still evoke deep passion and emotion, the ongoing War
on Terror colors the interpretation of the word “terrorism.” It is not a word to be used lightly in the context of
a formal proceeding in court. Furthermore, the description of the plaintiff in this case as having committed
extortion and “judicial terrorism” did not stand in isolation—these comments were merely the most egregious.
The lawyer for Mountain States stated, in a reference to Karna that is wholly unsupported by the record, that
a business associate of Karna’s felt “scared to death of this man” due to “cultural issues” and suggested
that he was not “somebody that you would entrust anything to,” including “the safety of your children.” The
subject matter of this case—a commercial lending dispute—does not support this inflammatory sort of
appeal to a jury.
The judiciary must at a minimum ensure that a trial is free from improper appeals to race or nationalism that
the introduction of the words “terrorism” and “extortion,” together with a wholly unsupported reference to
“cultural issues” brought into this case. As in Peñalver, this type of argument strikes at the heart of the jury
trial system and was incurable. Courts must guard against such conduct and correct it sua sponte. Tex. R.
Civ. P. 269(g); Peñalver, 256 S.W.3d at 681. Because the trial court did not, we sustain issue one.
Showbiz Multimedia LLLC v. Mountain States Mortgage Co.
(Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Sharp)
(incurable jury argument)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00810-CV Showbiz Multimedia, LLC; Showbiz Multimedia Entertainment, LLC; and Vinay Karna v.
Mountain States Mortgage Company; Remington Financial Group, Inc.; and Matthew McManus
Appeal from 387th District Court of Fort Bend County
Concurring Opinion by Justice Taft in Showbiz Multimedia v. Mountain States Mortgage Company
Hill v. Consolidated Concepts (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Fowler)
(workplace safety, fall from roof, negligence, gross negligence, admission of evidence, collateral source
doctrine, improper jury argument)
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Frost)
14-05-00345-CV John Earnest Hill Jr.; John Anthony Hill, Matthew David Hill, and Gracie Love Hill, Minor
Children by and through next friend John Earnest Hill. Jr.; and Christina Hill, Wife of John Earnest Hill, Jr., v.
Consolidated Concepts Inc.
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
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