Affirmed and Majority and Dissenting Opinions filed March 29, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00148-CV

ROBERTO ALONZO AND NEW PRIME, INC., Appellants

V.

CHRISTINE JOHN AND CHRISTOPHER LEWIS, Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2014-44841

MAJORITY OPINION

Appellant Roberto Alonzo, while in the course and scope of employment for 

appellant New Prime, Inc., was driving a tractor-trailer on Interstate 45 when he rearended a sedan containing appellees Christine John and Christopher Lewis. 

Appellants conceded liability, and a jury awarded appellees more than $12 million 

in damages for physical pain and mental anguish. Appellants challenge the trial 

court’s judgment in twelve issues, complaining about errors during voir dire and 
2

closing argument, the admission of evidence, and the sufficiency of the evidence.1

We affirm.

I. SUFFICIENCY OF THE EVIDENCE

We address appellants’ complaints about the sufficiency of the evidence to 

support the damages awards before their other issues. See, e.g., Bradleys’ Elec., Inc. 

v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999). In their sixth through 

eleventh issues, appellants contend that the evidence is legally and factually 

insufficient to support the jury’s damages findings.

2

A. Procedural Background

Appellants stipulated to liability. The first two jury questions asked what sum 

of money would fairly and reasonably compensate each plaintiff for their injuries. 

The question for John listed four potential elements of damages: past physical pain, 

future physical pain, past mental anguish, and future mental anguish. The question 

for Lewis asked only about past physical pain and past mental anguish. The jury 

answered unanimously as follows:

Question 1 – Christine John

Past physical pain: $2,500,000

Future physical pain: $4,700,000

Past mental anguish: $1,700,000

Future mental anguish: $3,100,000

Question 2 – Christopher Lewis

Past physical pain: $150,000

Past mental anguish: $300,000

The charge instructed the jury to consider only the elements of damages listed above, 

to not award any sum of money on any element if the jury had otherwise awarded a 

1 Appellants have not numbered their issues, but the “issues presented” section of their 

brief includes three broad categories with bulleted questions. We identify their issues by number 

as they appear sequentially in the bulleted questions.

2 Although appellants refer to the different standards of review for legal and factual 

sufficiency, appellants do not analyze the legal and factual sufficiency points separately.
3

sum of money for the same loss under another element, and to not compensate the 

plaintiffs twice for the same loss.

The trial court signed a final judgment consistent with the jury’s verdict. 

Appellants’ motions for new trial and judgment notwithstanding the verdict were 

overruled by operation of law.

B. Standards of Review for Sufficiency Challenges

For a legal sufficiency challenge, we review the record in the light most 

favorable to the jury’s verdict, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable fact-finder 

could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We 

indulge every reasonable inference in support of the verdict. Id. at 822. We may not 

substitute our opinions on credibility for those of the fact-finder. See id. at 816–17, 

822. The ultimate test for legal sufficiency is whether the evidence at trial would 

enable reasonable and fair-minded people to reach the verdict under review. Id. at 

827.

In a factual sufficiency review, we will set aside the verdict and remand for a 

new trial if we conclude that the verdict is so against the great weight and 

preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery, 

Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing In re King’s Estate, 244 

S.W.2d 660, 661 (Tex. 1951)). We will weigh the evidence supporting the verdict 

along with evidence contrary to the verdict. See id. at 761–62. However, the factfinder remains the sole judge of the credibility of witnesses and the weight to be 

given their testimony. Id. at 761. We must defer to the fact-finder’s determinations 

so long as those determinations are reasonable. See Sw. Bell Tel. Co. v. Garza, 164 

S.W.3d 607, 625 (Tex. 2004). We may not merely substitute our judgment for that 

of the fact-finder. Golden Eagle Archery, 116 S.W.3d at 761. The amount of 
4

evidence necessary to affirm the judgment is far less than the amount necessary to 

reverse. Harris Cnty. v. Coats, 607 S.W.3d 359, 381 (Tex. App.—Houston [14th 

Dist.] 2020, no pet.).

C. General Principles for Pain and Mental Anguish Damages

Under Texas law, “whether to award damages and how much is uniquely 

within the factfinder’s discretion.” Golden Eagle Archery, 116 S.W.3d at 772. The 

jury has broad discretion to award damages within the range of the evidence 

presented at trial. Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 561 (Tex. 

App.—Houston [14th Dist.] 2018, pet. granted, judgm’t vacated w.r.m.). Damages 

associated with physical injuries are “not subject to precise mathematical 

calculation” because physical pain and mental anguish are inherently subjective.

Richards v. Tebbe, No. 14-13-00413-CV, 2014 WL 2936425, at *5 (Tex. App.—

Houston [14th Dist.] June 26, 2014, no pet.) (mem. op.) (quoting Weidner v. 

Sanchez, 14 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see 

also PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 518 (Tex. App.—Houston [14th 

Dist.] 2016, no pet.) (“The process of awarding damages for amorphous, 

discretionary injuries such as physical pain and mental anguish is inherently difficult 

because the alleged injury is a subjective, unliquidated, nonpecuniary loss.”).

“Pain and suffering may be inferred or presumed as a consequence of severe 

injuries.” Id. at 574. Although mental anguish cannot be inferred from any physical 

injury, it may be inferred as a natural consequence of severe physical injury. See 

Ontiveroas v. Lozano, No. 14-05-00294-CV, 2006 WL 1140374, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 27, 2006, no pet.) (mem. op.); see also Parkway Co v. 

Woodruff, 901 S.W.2d 434, 442, 445 (Tex. 1995) (noting that a threat to one’s 

physical safety may justify an inference of mental anguish, and historically, if there 

was physical injury resulting from physical impact, “recovery of mental anguish 
5

damages was not hard to justify”). “Although the fact of a physical injury does not 

alone support an award for mental anguish damages, we can consider the traumatic 

nature of an injury as a factor in deciding whether the award is supported by the 

evidence.” Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 595 (Tex. 

App.—Houston [14th Dist.] 2015, pet. denied). 

Mental anguish is only compensable if it causes a ‘substantial disruption in 

daily routine or a high degree of mental pain and distress. Hancock v. Variyam, 400 

S.W.3d 59, 68 (Tex. 2013). Thus, mental anguish damages cannot be awarded 

without either (1) direct evidence of the nature, duration, or severity of the plaintiff’s 

anguish, thus establishing a substantial disruption in the plaintiff’s daily routine; or 

(2) other evidence of a high degree of mental pain and distress that is more than mere 

worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fidelity & Guar. Ins. 

Underwriters, 925 S.W.2d 607, 614 (Tex.1996). The absence of direct evidence 

justifies close scrutiny of other evidence of mental anguish damages. Favalora, 476 

S.W.3d at 594 (citing Parkway, 901 S.W.2d at 444).

Damages for future physical pain are recoverable if a jury could reasonably 

infer that the plaintiff will feel physical pain in the future. PNS Stores, 484 S.W.3d 

at 517. Similarly, damages for future mental anguish are recoverable if there is a 

reasonable probability that the plaintiff will suffer compensable mental anguish in 

the future. Id.

D. Evidence and Analysis of Christine John’s Past and Future Physical Pain

In appellants’ seventh and eighth issues, they contend that the evidence is 

legally and factually insufficient to support the jury’s damages award to John for 

past and future physical pain, respectively $2.5 million and $4.7 million. Appellants 

concede that John suffered physical pain after the accident and still had pain at the 

time of trial. But appellants contend that the jury’s awards are excessive, and 
6

appellants ask this court to reverse and remand for a new trial or suggest a remittitur. 

Accordingly, we address their issues as a factual-sufficiency challenge. See Critical 

Path, 561 S.W.3d at 561 (“When a party argues on appeal that the damages awarded 

by the jury are excessive we review the evidence for factual sufficiency.”).

John was twenty-four years old in September 2012. She was driving a Nissan 

Sentra on Interstate 45 when appellants’ tractor-trailer rear-ended her and pushed 

her into another vehicle. She hit her head during the accident and was taken to a 

hospital where she complained of head and neck pain. An MRI showed bulging and 

herniated discs in her spine. Her treating neurosurgeon testified that these conditions 

caused pain and that a herniated disc “doesn’t go back in” and “doesn’t go back to 

normal,” which may cause lingering pain over time.

Within two weeks of the accident, she also started to feel sharp pain on the 

left side of her face that radiated from her ear to her lower jaw. She reported to one 

of her treating neurologists that the pain was a “10 out of 10,” or the worst possible 

pain. It is a sharp and severe pain that occurs in bursts throughout the day. It can be 

triggered by touching her face, a cool temperature, cold air hitting her face, brushing 

her teeth, or talking, among other things. Multiple doctors—neurologists and 

neurosurgeons—diagnosed John with an uncommon condition known as “trigeminal 

neuralgia,” meaning a damaged nerve in her face. The doctors opined that facial 

trauma from the accident caused the nerve damage.

The doctors described trigeminal neuralgia as a “very painful” syndrome: 

“probably the most excruciating pain you can imagine and—and that’s kind of 

running down your entire face.” It is one of the most painful conditions known to 

medicine, and it is “well known that it is a horrible pain.” The doctors were aware it 

had been called “the suicide disease” because “so many people couldn’t handle the—

the pain.”
7

Doctors attempted to treat John’s pain with medications, but the pain 

continued. Some medication had side effects, like making her vomit. She underwent 

a “gamma knife” radio surgery that involves using radiation to destroy part of the 

nerve. She noticed some improvement, but the pain merely “lagged,” i.e., instead of 

occurring immediately after a triggering event, the pain would come ten or fifteen 

minutes later. The doctors described other potential invasive surgeries that could 

lead to total loss of feeling in John’s face or implanting an electrode that is attached 

to a battery that sends electrical signals to the nerve.

John testified that her pain continued at trial: “I am in pain right now.” She 

described it as a “10 out of 10.” She lives with pain all day, every day. Although not 

constant, she has episodes throughout the day. She continued to have lower back 

pain depending on what she does, but “it’s not anything like the face.” A doctor 

testified that no treatments for trigeminal neuralgia are guaranteed to relieve the pain 

and prevent it from recurring. Episodes of pain often worsen over time with fewer 

and shorter pain-free periods before recurring. Eventually, pain-free intervals 

disappear. It is more likely than not that symptoms of trigeminal neuralgia may affect

the patient for the rest of her life. John had a life expectancy of fifty-one more years.

Appellants, contending that the jury’s damages awards are excessive, point to 

evidence that John did not request damages for medical expenses or lost wages, 

refused certain treatment such as medications, and continues to work and “live her 

life.” The jury, as the sole judge of the witnesses and their credibility, could have 

considered this evidence in exercising its broad discretion to determine the amount 

of compensation due to John for her past and future physical pain. The fact that John 

stopped taking medications that were not effective to reduce her pain or had side 

effects, or that future medical treatment was not guaranteed, does not negate the 
8

jury’s finding of future physical pain. See Primoris Energy Servs. Corp. v. Myers, 

569 S.W.3d 745, 761 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

Appellants point to other cases from Texas and outside Texas in which juries 

awarded lower damages for allegedly “worse pain and suffering” or comparable 

injuries.3 Many cases have distinguishing facts.4 Although we may review verdicts 

in other cases to determine the reasonableness of compensation, each case must be 

evaluated on its own facts, and often “comparison of injuries in different cases is 

virtually impossible.” Critical Path, 561 S.W.3d at 570 (quotation omitted); see also 

Primoris Energy, 569 S.W.3d at 760 (“[C]omparison with other cases or amounts of 

verdicts is generally of little or no help.” (quotation omitted)); Emerson Elec. Co. v. 

Johnson, 601 S.W.3d 813, 845 & n.19 (Tex. App.—Fort Worth 2018) (“Because the 

appropriateness of an award in a case turns on the specific facts of that case, 

referencing the amounts awarded in other cases is of limited help to a court 

reviewing the sufficiency of the evidence to support an award.”), aff’d, 627 S.W.3d 

197 (Tex. 2021). Moreover, comparison to other cases does not necessarily show 

that the jury’s award is excessive. See Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 

551–53 (Tex. App.—Fort Worth 2006, pet. dism’d) (upholding jury’s verdict for 

3

See, e.g., PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 517–18 (Tex. App.—Houston 

[14th Dist.] 2016, no pet.); Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, 

at *9–11 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.); Rentech Steel, L.L.C. 

v. Teel, 299 S.W.3d 155, 165–67 (Tex. App.—Eastland 2009, pet. dism’d).

4 For example, in Gulf Inland, the plaintiff suffered intense pain near the time of the 

accident but then had “on and off” pain that was “mild and occasional” following surgery. See

2012 WL 1454476, at *9. The evidence supported an award of $1.5 million in past and future 

physical pain and mental anguish. See id. In PNS Stores, the plaintiff suffered a concussion from 

being struck by several thirty-two-ounce bottles of deck wash that fell five feet from a shelf. See 

PNS Stores, 484 S.W.3d at 508–09. He suffered headaches, ringing in his ears, severe pain in an 

eye upon exposure to light, and soreness and stiffness in his neck and shoulder. Id. at 518. The 

evidence supported an award of $670,000 for past and future physical pain and mental anguish. 

See id. at 517–18. 
9

$15 million in damages for past and future physical pain and mental anguish when 

plaintiff suffered brain damage, had trouble walking, and was depressed).

Considering all of the evidence, we cannot conclude that the verdict is so 

against the great weight and preponderance of the evidence as to be manifestly

unjust. The evidence is factually sufficient. We overrule appellants’ seventh and 

eighth issues.

E. Evidence and Analysis of Christine John’s Past and Future Mental 

Anguish

In appellant’s ninth and tenth issues, they contend there is no evidence, or 

insufficient evidence, to support the jury’s damages award to John for past and future 

mental anguish, respectively $1.7 million and $3.1 million. Appellants contend that 

John presented no evidence about her mental anguish—only about her physical pain.

Appellants contend, and we agree, that because the jury was asked to award 

damages separately for pain and mental anguish, evidence of John’s physical pain 

alone cannot support the award for mental anguish. See Favalora, 476 S.W.3d at

595–96 (noting that a jury “cannot automatically infer mental anguish once any 

physical injury is sustained,” and that evidence related to the plaintiff’s physical pain 

was “not relevant to the jury’s award of mental anguish” damages because the jury 

provided separate awards for physical pain and mental anguish). But because John 

testified about her awareness and the extent of her physical pain, we cannot ignore 

that evidence when considering the nature of her injury and the mental anguish that 

may derive from a threat of physical pain. See id. (noting jury may consider the 

nature of an injury as a factor in deciding whether mental anguish damages are 

supported by the evidence); Ontiveroas v. Lozano, No. 14-05-00294-CV, 2006 WL 

1140374, at *2 (Tex. App.—Houston [14th Dist.] Apr. 27, 2006, no pet.) (mem. op.) 

(noting that fear of imminent serious injury “even for a matter of seconds, provides 
10

some evidence of mental anguish that is more than mere worry, anxiety, vexation or 

anger”); see also Golden Eagle Archery, 116 S.W.3d at 773 (“[I]n reviewing a 

challenge that an award [of damages] for a category is excessive because there is 

factually insufficient evidence to support it, a court of appeals should consider all 

the evidence that bears on that category of damages, even if the evidence also relates 

to another category of damages.”).

Appellants point to evidence that John continues to work and is successful in 

her career, has “the right attitude,” pushes through the pain, has not “given up,” is 

“still living life,” and is not on antidepressants. But, there is other direct evidence of 

John’s high degree of mental pain and distress and a substantial disruption of her 

daily life.

John testified that her injury is sometimes debilitating and she “can’t take it.” 

Sometimes she has to “ball up in a ball and just lay down and just wait” with the 

lights turned off. If she has an episode while driving, she has to pull over to wait 

until it subsides. She likes to sleep a lot because when she is asleep, she doesn’t feel 

the pain. She goes to bed as early as possible to make the pain stop. She is sad a lot 

because she cannot do all the things that she used to be able to do or that she wants 

to do. She does not go out like she used to before the accident. She has a less active 

intimate relationship with her husband, Lewis. He testified that they began to sleep 

in separate beds after the accident so there is no inadvertent contact that will trigger 

her pain. He testified similarly that, ever since the accident, they “really don’t do

anything”; they just stay at home, although they were active people before the 

accident.

John testified that she is angry and upset because she doesn’t know what to 

do or how to fix her injury, and she cannot avoid things that she must do that cause 

pain, such as talking, eating, or brushing her teeth. She is terrified by the prospect of 
11

future surgeries, the potential for becoming numb, having something drilled into her 

head, and a battery pack in her chest for the rest of her life. Lewis testified that John’s 

mood changes when she has an episode—she feels down. He testified, “She gets 

really emotional at times, and I think it’s just a buildup of the pain and just emotional 

anguish and things like that. And she can have an episode of crying just out of 

anywhere.” John testified that she contemplated suicide because “it hurts so much.”

Testimony from John and Lewis shows that John has suffered a high degree 

of mental pain and distress and a substantial disruption of her daily life. Cf. Serv. 

Corp. Int’l. v. Guerra, 348 S.W.3d 221, 233 (Tex. 2011) (holding that evidence was 

sufficient to support jury’s award of $2 million in past mental anguish damages 

although there was no evidence of a substantial disruption of daily routine, and there 

was evidence that the plaintiff volunteered at a nursing home, participated in 

visitation with her church, worked in the church kitchen, and traveled occasionally). 

Appellant’s reliance on Bentley v. Bunton, a defamation case in which the Texas 

Supreme Court held a public figure could recover mental anguish damages, is not 

persuasive. See 94 S.W.3d 561, 605 (Tex. 2002). The supreme court held there was 

legally sufficient evidence of some amount of compensable mental anguish 

damages, but the evidence did not support the $7 million award because it was 

“excessive and unreasonable.” Id. at 606–07. The policy implications relied upon by 

the court regarding defamation cases, and the nature of the case and particular 

evidence involved, distinguish it from the evidence here involving a significant 

physical injury. See id. at 605–07.

Evidence discussed above—including John’s testimony about her present 

condition and the doctors’ testimony about the lack of effective treatment and 

potential worsening of the condition over time—shows with reasonable probability 

that she will suffer compensable mental anguish in the future. See PNS Stores, 484 
12

S.W.3d at 517; see also Patel v. Hussain, 485 S.W.3d 153, 183 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (factually sufficient evidence of future mental 

anguish damages because “the circumstances that produced at least some of the 

previous mental anguish are likely to recur” (quotation omitted)).

The evidence is legally and factually sufficient to support the jury’s award of 

past and future mental anguish damages to John. We overrule appellants’ ninth and 

tenth issues.

F. Evidence and Analysis of Christopher Lewis’s Past Physical Pain

As part of their eleventh issue, appellants contend that the evidence is legally 

and factually insufficient to support the jury’s award of $150,000 to Lewis for his 

past physical pain. Appellants focus on Lewis’s testimony that he was “doing okay” 

and “fine” by the time of trial and that pain management has “helped a lot.” 

Other evidence, however, supports the jury’s finding of damages for past 

physical pain. Lewis was a passenger in the vehicle when it was struck. His airbag 

deployed, and he went to the hospital. His medical records indicated that he reported 

pain on the top of his head, back, and neck. He described his pain as continuous 

aching and rated it a five out of ten. Lewis’s treating neurosurgeon testified that 

Lewis came to him with lower back pain and neck pain. Lewis claimed that his back 

pain had started since the accident and was a “stabbing, tingling, dull, and constant” 

pain. Lewis rated it as a seven out of ten. Over the years, Lewis took medications

and underwent physical therapy and chiropractic treatments before seeing the 

neurosurgeon. Lewis was diagnosed with spinal stenosis in his neck and back and a 

bulging disc in the lumbar spine and radiculopathy in the lumbar and cervical 

region—meaning there was something pushing on a nerve root that runs down from 

the spine to Lewis’s arms and legs. Lewis underwent epidural steroid injections. 

Lewis testified that his back and neck were “really hurting” for the first couple of 
13

years following the accident, but he does “injections now, and that has helped me a 

lot.” The neurosurgeon testified that the types of injuries Lewis suffered are 

“absolutely” painful.

Considering all of the evidence, it is legally and factually sufficient to support 

the jury’s award of damages to Lewis for past physical pain. 

G. Evidence and Analysis of Christopher Lewis’s Past Mental Anguish

Also part of their eleventh issue, appellants contend that the evidence is 

legally and factually insufficient to support the jury’s award of $300,000 to Lewis 

for his past mental anguish. 

A damages award for mental anguish will survive a legal-sufficiency 

challenge when the record bears “direct evidence of the nature, duration, and severity 

of [the plaintiff’s] mental anguish, thus establishing a substantial disruption in the 

plaintiff[’s] daily routine,” or when the record demonstrates “evidence of a high 

degree of mental pain and distress that is more than mere worry, anxiety, vexation, 

embarrassment, or anger.” Anderson v. Durant, 550 S.W.3d 605, 619 (Tex. 2018) 

(quoting Parkway Co, 901 S.W.2d at 444). Mental anguish is a “relatively high 

degree of mental pain and distress” that is “more than mere disappointment, anger, 

resentment or embarrassment, although it may include all of these.” Parkway Co., 

901 S.W.2d at 444.

Appellants assert there is no evidence of the nature, duration, or severity of 

Lewis’s mental anguish, and there is no evidence that Lewis suffered from a high 

degree of mental pain and distress that is more than mere worry, anxiety, vexation, 

embarrassment, or anger to support the award of past mental anguish damages. 

We have determined that John’s mental anguish damages are supported by 

sufficient evidence in that John suffered from debilitating pain described by experts 
14

as “the suicide disease” because “so many people couldn’t handle the—the pain.” 

The record reflects that John has no way to predict when her extreme pain will occur, 

but that it can be triggered by the touching of her face, cool temperatures, brushing 

her teeth, or talking. Lewis testified that he and John frequently cannot sleep in the 

same bed or even the same room because Lewis is afraid that the temperature of the 

room will cause John severe pain, or he might accidentally touch John during the 

night causing her extreme pain. Lewis’s testimony about his life with John since the 

accident reflects a substantial disruption in Lewis’s daily routine coupled with 

mental pain and distress beyond mere worry, anxiety, vexation, embarrassment, or 

anger.

Before the accident John and Lewis enjoyed playing sports and attending 

active activities together such as basketball and swimming. After the accident John 

was unable to participate in any activity or exertion without pain. Lewis further 

testified that “this illness affects our intimacy” causing difficulty being “passionate 

and affectionate[.]” 

As to how the accident affected him directly, the record reflects that two 

weeks after the accident Lewis completed a “Symptoms and Functional Outcomes 

Assessment.” In that assessment, when asked whether his pain interfered with his 

ability to see the people who were important to him as much as he liked, Lewis 

circled “9” on a scale of one to ten with ten being described as “total interference.” 

Lewis further stated that he needed help all the time to complete everyday tasks and 

that he felt more depressed, tense, or anxious than before his pain began. Lewis 

stated that he had severe emotional problems caused by his pain that interfered with 

family, social, and/or work activities. 

Appellants assert that John frequently “does things with his friends,” plays in 

a band, and is doing well in his career. To be sure, Lewis began his testimony 
15

explaining that he was “doing fine” and was not asking for future damages. Lewis’s 

coping mechanisms since the accident do not detract from the fact that he lived daily 

with his spouse’s extreme pain and mental distress. He testified that he “has to live 

with [John’s] injuries and everything that she has to go through.” Lewis testified that 

while he considered John to be a “modest, very humble lady,” in watching her endure 

severe pain, he also “[felt] some of the pain.” 

The record reflects sufficient evidence that the accident created a substantial 

disruption of Lewis’s daily routine and a high degree of mental distress. See 

Favalora, 476 S.W.3d at 597 (“The jury could have inferred from Favalora’s 

attitudinal changes and the attendant hardships that Favalora had suffered a high 

degree of mental pain and distress beyond mere worry, vexation, embarrassment, or 

anger.”). Not only did Lewis experience mental anguish as a result of his own 

injuries, but he also experienced mental anguish living with John and doing 

everything he could to help her avoid severe physical and emotional pain.

Considering all of the evidence, it is legally and factually sufficient to support 

the jury’s award of damages to Lewis for past mental anguish. We overrule 

appellants’ eleventh issue.

H. Cumulative Awards

In their sixth issue, appellants contend the jury’s awards are “far greater than 

any award ever sustained in Texas for comparable injuries and without supporting 

evidence.” Appellants do not brief this issue separately from their sufficiency 

challenges, but they contend in their briefing that John’s cumulative awards for 

physical pain and mental anguish “are excessive, are a result of the jury’s passion 

and prejudice spurred by counsel’s comments, and are entirely disproportionate to 

the economic damages she allegedly sustained.” Appellants ask this court to consider

appellees’ responses to requests for disclosures in the Clerk’s Record, in which 
16

appellees alleged John’s past and future medical expenses would amount to only 

$493,938.73 on the high end.5 Appellants contend that the ratio of about 24:1 

between noneconomic and economic damages shows that the jury’s award is 

excessive.

Appellants cite no case from this court endorsing the ratio analysis, and as 

another court of appeals has suggested, the ratio analysis is typically used for 

evaluating constitutional limitations imposed on punitive damages and defamation 

claims. See Emerson Elec. Co, 601 S.W.3d at 844 n.18. That court concluded it need 

not consider the proportionality of economic and noneconomic awards when some 

evidence supports the award. See id. at 844; see also PNS Stores, 484 S.W.3d at 

519–20 (rejecting claim that noneconomic damages were excessive because they 

were fifty-eight times the amount of medical expenses).

In the only personal injury case relied upon by appellants that reversed a jury’s 

verdict based in part on the ratio of economic and noneconomic damages, the 

evidence of pain and mental anguish was far weaker than here; and improper 

arguments also undermined the verdict. See FTS Int’l Servs., LLC v. Patterson, No. 

12-19-00040-CV, 2020 WL 5047913, at *13–26 (Tex. App.—Tyler Aug. 26, 2020, 

pet. filed) (mem. op.) (considering the car accident was a minor impact collision that 

caused only cervical herniation, the plaintiff presented inconsistent, equivocal, 

contested, and sparse evidence to support $24 million in noneconomic damages, and 

counsel engaged in misconduct, made improper accusations of spoliation, and told 

the jury to punish the defendant and send a message).

Even if the proportionality of economic and noneconomic damages suggests 

the verdict could be excessive, the specific evidence presented in this case regarding 

5 Appellants omit from this number John’s alleged lost future wages of $595,290 to $2.3 

million.
17

John’s physical pain and mental anguish, discussed above, supports the jury’s 

verdict. See PNS Stores, 484 S.W.3d at 519–20 (“Moreover, because there was 

evidence to account for the jury’s large verdict, we cannot say that the verdict was 

so flagrantly excessive that it cannot be accounted for on any other ground.”)

(quotation omitted)). Even if some of counsel’s comments to the jury were improper, 

as discussed below, they were not such to impact the jury’s award. Finally, we note 

that the jury awarded “different claimants different amounts for different categories 

of non-economic damages,” which “demonstrates careful consideration of what 

amounts to assess.” See Gregory, 615 S.W.3d at 277; cf. Critical Path, 561 S.W.3d 

at 577 (suggesting remittitur for excessive noneconomic damages when the jury 

“picked a final amount of $10,000,000 for each parent’s damages, divided that total 

by the number of damage blanks in the jury charge, and then filled in the same 

amount of damages in each blank.”).

We will not substitute our judgment for that of the jury’s when the evidence 

supports an award for significant physical pain and mental anguish. We overrule 

appellant’s sixth issue.

II. CONDUCT OF COUNSEL

In their first five issues, appellants complain of individualized and cumulative 

error related to the conduct of appellees’ counsel during voir dire and closing 

arguments.

A. Jury Selection

In their first issue, appellants contend that the trial court erroneously allowed 

appellees to ask improper commitment questions about whether the venirepersons 

could award $10 to $12 million in damages. In their second issue, appellants contend 
18

that the trial court erroneously struck two potential jurors for cause because they 

could not commit to award damages within that range.

1. Background

Early during voir dire, appellees’ counsel informed the venirepersons that 

appellees were suing for $10 to $12 million in damages for mental anguish and pain 

and suffering. While questioning venirepersons about their potential biases, counsel 

sometimes asked the venirepersons if they had biases against awarding “millions of 

dollars” based on intangible personal injuries. Sometimes, however, counsel referred 

to the more specific range of $10 to $12 million. For example:

And so, here’s what I’m getting at. A concern—and I’m not going to 

tell you about any evidence. I am asking you, hypothetically speaking, 

can you consider a situation where you could award someone 10 to 12 

million dollars in mental anguish and pain and suffering?

When a venireperson said they could not consider awarding millions of dollars 

in pain and suffering and mental anguish, regardless of the law and regardless of 

whether it was supported by the evidence, the trial court interrupted “to just clarify 

a couple of things.” The court explained:

So, we’re talking about if you are—obviously, you haven’t heard 

any evidence. So—and you’re not being asked to make that decision 

here. And at the end of this case, the Court is going to give you a jury 

charge where I’m going to ask you some questions; and some of those 

questions might ask you to provide for a dollar amount for certain types 

of damages.

But the primary concern is not having heard any evidence, have 

you already decided that you’ve already set a limit? You categorically 

will not award such-and-such amount because you don’t believe there 

can ever be a case where such an amount can be proved to you and so 

that you’re—you’re not the right person for this jury.

And so, I just want to kind of reframe it a little bit, because I 

don’t want there to be any misunderstanding that you’re not being asked 
19

to decide right here and now whether or not you can award any sum of 

money, because you’re not. You’re just being asked whether or not 

you’ve decided before you’ve heard any evidence what you can and 

can’t do.

Appellants “object[ed] to this continuing line of questioning as a commitment to the 

jury, even though it’s a range.”

Many of the venirepersons expressed a bias against awarding “millions of 

dollars” for pain and suffering and mental anguish. When one venireperson

expressed this bias, appellees’ counsel asked if anyone felt similar. Juror No. 14 

answered:

Venireperson: Right. I think corporations can be big targets sometimes; 

and I think there’s a broad line between physically debilitating injuries, 

loss of life, can’t work a job, and mental anguish. I just—I can’t see 

how you could award that much money for mental anguish.

*****

[Counsel]: Right. And could you think of a hypothetical situation not 

in this case but hypothetically where you could consider awarding 10 

to 12 million dollars?

Venireperson: Not that much.

[Counsel]: Regardless of the evidence?

Venireperson: Yeah.

*****

[Counsel]: Is anything changed? This is—as we discussed, this is 

probably not the best case for you?

Venireperson: Just I have trouble with the dollar amount and the pain 

and suffering.

[Counsel]: Right.

Venireperson: I know it can be that she has valid concerns, but the 

dollar amount just bothers me.
20

[Counsel]: And even setting aside the dollar amount—I think you 

shared that the noneconomic, the mental anguish and pain and 

suffering, is something that you struggle with? 

Venireperson: To a degree, yes.

[Counsel]: Right. Such that you would have a bias in the case?

Venireperson: Right. Maybe I would keep an open mind; but I would 

always have that seed, you know, what’s the goal here.

Appellants’ counsel returned to Juror No. 14 during voir dire and asked several 

follow-up questions:

[Counsel]: Can you listen to the evidence that is from the witness stand 

or the evidence that’s admitted and consider the evidence and award 

damages as proved?

Venireperson: If the facts prove it, then yes.

[Counsel]: Whether or not it’s a hundred dollars or $12 million, you 

can do that?

Venireperson: Yes.

When several other jurors expressed their biases “in a case like this where one 

side is suing another side for millions of dollars in mental anguish and pain and 

suffering,” appellees’ counsel asked, “Anybody else?” Juror No. 48 spoke up:

Venireperson: I can’t imagine any case, pain and suffering inside, that 

would go up to 10 and 12 million dollars, minus your fee of maybe 5 

million. I think something 5 million would support somebody with

psychiatrist, medication, everything for the hospital. It’s just a little bit 

too much, even if they couldn’t work for the rest of their life.

[Counsel]: Okay. All right. Would you have—is that a cap you have in 

your mind?

Venireperson: Yes, because I’m retired; and I know what it cost to live 

on your own moneys without any help. And I think that’s a little too 

far.

[Counsel]: Sure. Would you have a bias in a case like this that you 

could not consider more than the cap in your predetermined mind?
21

Venireperson: More than what?

[Counsel]: Than the 5 million, even if the evidence supports it, 

regardless of the Court’s instructions?

Venireperson: She’s sitting out in the hallway, right?

[Counsel]: Yes.

Venireperson: I can’t go along with that.

[Counsel]: Okay. And may I dot my Is and cross my Ts? Would you 

have a bias in a case like this where one side is suing another side for 

millions of dollars in mental anguish—

Venireperson: Millions, no. If you have like 1 million or 2 million, 3 

million; but when you’re getting up to 5 million for somebody who is 

physically fine now with pain and injury and—that’s a little too much.

[Counsel]: Okay.

Venireperson: I know the cost of living with pain and injury.

[Counsel]: Okay. And I’m expressing to you that it has nothing to do 

with the cost of living, whether she works or not. It’s just internally,

putting a value on—

Venireperson: Even internally.

Appellants’ counsel moved to strike for cause twelve venirepersons, and the 

court struck all of them.6 Appellees’ counsel moved to strike for cause Jurors No. 14 

and 48, among others, and the court struck them. Appellants’ counsel complained 

that Jurors No. 14 and 48 and two others “didn’t even come close to reaching a level 

which would be grounds for striking for cause,” and that by striking those 

venirepersons, the court was “giving [appellees] four extra peremptory challenges.” 

As a “way to preserve” error, appellants’ counsel asked for four additional 

peremptory challenges. The court denied the request, explaining:

Based on the Court’s review of their demeanor, of the totality of the 

circumstances over the record, having visually observed each of these 

folks and the way they answered their questions and based on their

6 One of the venirepersons, Juror No. 22, was excused for a reason other than for cause.
22

responses, the Court believes that the ones that are relieved for strikes 

for cause were—exhibited bias or prejudice.

When the court announced the names of the twelve jurors, plus an alternate, 

the court asked if there were any objections before swearing in the jury. Appellants’ 

counsel answered, “No.”

2. Legal Principles

Voir dire protects the right to an impartial jury by exposing possible improper 

juror biases that form the basis for statutory disqualification. Hyundai Motor Co. v. 

Vasquez, 189 S.W.3d 743, 749 (Tex. 2006). “Thus, the primary purpose of voir dire 

is to inquire about specific views that would prevent or substantially impair jurors 

from performing their duty in accordance with their instructions and oath.” Id.

Inquiry into potential jurors’ bias and prejudice is proper to determine not only 

whether jurors are disqualified by statute, but also to seek information that allows 

counsel to intelligently exercise their peremptory strikes. Id. at 750.

However, most types of “commitment” questions are improper. A 

commitment question is one that commits a prospective juror to resolve, or refrain 

from resolving, an issue a certain way after learning of a particular fact. K.J. v. USA 

Water Polo Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012, pet. 

denied). “Questions that are not intended to discover bias against the law or prejudice 

for or against the defendant, but rather seek only to determine how jurors would 

respond to the anticipated evidence and commit them to a specific verdict based on 

that evidence are not proper.” Id. (citing Vasquez, 189 S.W.3d at 753).

Trial courts should allow “broad latitude” for counsel to discover any bias or 

prejudice. Vasquez, 189 S.W.3d at 749. And trial courts have “broad discretion” in 

conducting voir dire. Id. at 753. Generally, we review a trial court’s decision 

regarding what questions may be asked and the court’s striking a juror for cause 
23

under an abuse-of-discretion standard. See K.J., 383 S.W.3d at (trial court’s refusal

to allow certain question reviewed for abuse of discretion); Taber v. Roush, 316 

S.W.3d 139, 163–64 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (trial court’s 

refusal to strike a juror for cause reviewed for abuse of discretion). Even if a juror’s 

bias or prejudice is not established as a matter of law, the trial court may make a 

factual determination about whether the venireperson should be disqualified. See 

Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998) (citing Swap Shop v. Fortune, 

365 S.W.2d 151, 154 (Tex. 1963) (noting that the trial court is in a better position 

than an appellate court to evaluate a juror’s sincerity and capacity for fairness and 

impartiality)).

3. No Error

Appellants cite no case in which the trial court erred by allowing certain 

questions or striking a juror for cause. Appellants rely on K.J. v. USA Water Polo, 

Inc., in which this court affirmed the trial court’s refusal to allow the question of 

whether the venirepersons “would be willing to award damages to [the plaintiff] of 

$2 million if the law and credible evidence justified such an award.” 383 S.W.3d at 

601. This court relied on the considerable discretion afforded trial courts in 

conducting voir dire to hold that the court did not abuse its discretion in disallowing

the question because it was “framed as a preview of the claims involved,” regardless 

of “[w]hether appellants’ question exactly fits the definition of a commitment 

question.” Id. at 602.

Here, appellees’ counsel’s questions to the jury regarding their willingness or 

ability to award “millions of dollars” or “10 to 12 million dollars” in non-economic 

damages did not preview any specific fact or evidence for the jury. The questions 

were phrased repeatedly as hypothetical questions. As the trial court clarified to the 

jury, the questions were not intended to have the venirepersons make decisions 
24

before hearing evidence, but to determine whether any jurors had “set a limit” in 

their minds so they couldn’t ever award such an amount: “You’re just being asked

whether or not you’ve decided before you’ve heard any evidence what you can and 

can’t do.” Under these circumstances, appellees’ counsel’s questions do not “exactly 

fit[] the definition of a commitment question,” and we cannot hold that the trial court 

abused its considerable discretion in the area of voir dire. Cf. K.J., 383 S.W.3d at 

601–02.

In Taber v. Roush, also relied upon by appellants, the plaintiff’s counsel asked, 

“Who feels . . . that under no circumstances, no matter what the evidence is, could 

you ever award a million dollars or more for mental anguish in a case?” 316 S.W.3d 

at 164. A venireperson raised his hand in response to the question. Id. But, the 

plaintiff’s counsel asked no follow-up questions, and the venireperson had already 

indicated that he could award mental anguish damages, follow the instructions of the 

court, and consider the evidence in determining whether to award mental anguish 

damages. Id. at 164–65. This court noted, “Bias is not established as a matter of law 

merely because venire members raise their hands in response to a general question 

addressed to the entire panel.” Id. at 165. This court held that the trial court did not 

abuse its discretion by denying a challenge for cause. Id. Here, on the other hand, 

the record shows detailed questioning of Jurors No. 14 and 48 to discover potential 

bias.

An apt precedent is this court’s holding in Cavnar v. Quality Control Parking, 

Inc., 678 S.W.2d 548, 555–56 (Tex. App.—Houston [14th Dist.] 1984), rev’d in part 

on other grounds, 696 S.W.2d 549 (Tex. 1985). This court held that the trial court 

did not abuse its discretion by striking a venireperson for cause when he “indicated 

that he could not consider $1,000,000 as damages for loss of companionship and 

mental anguish.” Id. at 555–56. This court reasoned that the venireperson “expressed 
25

a bias against awarding nonpecuniary damages supported by the evidence.” Id. at 

555.

Here, Juror No. 14, before being rehabilitated by appellants’ counsel, said he 

could not award $10 to $12 million in mental anguish and pain and suffering 

“regardless of the evidence,” and he couldn’t think of any hypothetical situation in 

which to award that much money. He agreed that he had “a bias in the case.”

Similarly, Juror No. 48 said she couldn’t “imagine any case” in which to award more 

than $5 million in pain and suffering. She agreed that $5 million was a “cap” in her 

mind.

Even if the record does not show that these venirepersons were disqualified 

as a matter of law, we must defer to the trial court’s factual determinations based on 

personal assessment of the venirepersons’ sincerity and capacity for fairness and 

impartiality. See Malone, 977 S.W.2d at 564; see also Greenwood Motor Lines, Inc. 

v. Bush, No. 05-14-01148-CV, 2017 WL 1550035, at *3 (Tex. App.—Dallas Apr. 

28, 2017, pet. denied) (mem. op.) (holding that trial court did not abuse its discretion 

striking jurors for cause who said they would place their own “cap” on damages 

“regardless of the evidence”). As the trial court orally announced, the court based its 

determination on visually observing the venirepersons and their demeanors.

In sum, the trial court did not abuse its discretion in allowing appellees’ 

counsel to ask the venirepersons about their ability or willingness to award $10 to 

$12 million in damages and in striking two venirepersons who expressed bias against 

awarding damages regardless of the evidence.

4. No Harm Regarding Strikes

Even if we assume the trial court erred by striking Jurors No. 14 and 48, to 

show harm from the erroneous striking of venirepersons for cause, appellants must 
26

show that an objectionable juror was impaneled. Cavnar, 678 S.W.2d at 556; see 

also Greenwood Motor Lines, 2017 WL 1550035, at *3 (“Even if challenges for 

cause are improperly sustained, no reversible error is presented unless appellant can 

show he or she was denied a trial by a fair and impartial jury.”). Because the trial 

court did not seat on the jury any of the venirepersons to which appellants objected, 

and appellants had no objection to the jurors actually impaneled, appellants have not 

shown that any error from striking Jurors No. 14 and 48 caused harm warranting a 

new trial. See Greenwood Motor Lines, 2017 WL 1550035, at *3; Cavnar, 678 

S.W.2d at 556. We overrule appellants’ first and second issues.

B. Arguments of Counsel

In their third through fifth issues, appellants contend they are entitled to a new 

trial because the trial court permitted improper and incurable arguments from 

appellees’ counsel. After reviewing legal principles related to arguments of counsel, 

we address each issue in turn.

1. Legal Principles

Error regarding improper jury argument ordinarily must be preserved by a 

timely objection that is overruled. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 

678, 680 (Tex. 2008). A party waives error by not following up a sustained objection 

with a request for an instruction to disregard. Barras v. Monsanto Co., 831 S.W.2d 

859, 865 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (citing Standard Fire 

Ins. Co. v. Reese, 584 S.W.2d 835, 840–41 (Tex. 1979)). Typically, retraction of the 

argument or an instruction from the court can cure any probable harm. Penalver, 256 

S.W.3d at 680.

However, in “rare instances,” the probable harm or prejudice cannot be cured, 

and a complaint may be made even though no objection was timely made. Id. “To 
27

prevail on a claim that improper argument was incurable, the complaining party 

generally must show that the argument by its nature, degree, and extent constituted 

such error that an instruction from the court or retraction of the argument could not 

remove its effects.” Id. at 680–81. The party must show 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) (quotation omitted). We consider the argument in light 

of the whole case. Haryanto v. Saeed, 860 S.W.2d 913, 919 (Tex. App.—Houston 

[14th Dist.] 1993, writ denied) (citing Reese, 584 S.W.2d at 839).

An argument that strikes at the appearance of and the actual impartiality, 

equality, and fairness of justice rendered by courts is incurably harmful. Penalver, 

256 S.W.3d at 681. Examples of incurable arguments include (1) appeals to racial 

prejudice; (2) unsupported, extreme, and personal attacks on opposing parties and 

witnesses; and (3) unsupported accusations of the opposing party manipulating a 

witness. See id.

2. Race and Gender

In their third issue, appellants contend that appellees’ counsel made “improper 

and prejudicial jury arguments [that] clearly accuse Appellants and their counsel of 

race and gender prejudice.”

During voir dire, one of the venirepersons referred to her prior experience in 

a lawsuit when she trained a man for a job who “ended up making three times more” 

than her. Appellees’ counsel responded, “Well, it’s funny you bring that up because 

on my fear list—on my fear list that I write before I talk to every jury panel, I have 

on here there are studies where woman are awarded for the same injuries less money 

than men.” Later, counsel asked a venireperson, “I mean, because it goes back to 
28

what we talked about, you know, like a woman—there’s studies that show a 

woman—her damages are usually less than a man for the same injuries, and 

sometimes it’s like if someone is—does it matter if my client is African-American?”

Appellees’ counsel circled back to this topic during closing arguments: “We 

don’t want their 4 or 5 million dollars. That’s not fair. Because it’s a woman, she 

should get less money? Because she’s African American, she should get less money? 

No. We’re going to fight because we believe in the jury system.” After a little more 

argument about how appellants’ “cherrypicked certain depo clips and want to fool 

you,” appellants objected and claimed that appellees’ counsel was “misrepresenting 

that I am misrepresenting the evidence.” The trial court overruled the objection but 

told appellees’ counsel, “[M]y bigger issue is that you interjected the fact that she 

was African-American and she’s a woman; and I didn’t hear anything on the other 

side referring to that as a basis for denying them recovery.” The court asked counsel 

to limit his argument to the admitted evidence. Then, appellants moved for a mistrial 

“based upon the racial bias” identified by the trial court. The court overruled the 

motion. Appellants did not request a retraction of counsel’s statement or an 

instruction to disregard.

Viewed in context of the discussion during voir dire about juries awarding 

smaller damage awards to women, we agree with appellees that their argument was 

not a suggestion that appellants were racist or sexist, but a request of the jurors to 

not let implicit racial or gender bias impact their deliberations. It was not an “appeal 

to racial prejudice in language clear and strong,” but rather an appeal to impartiality.

See Tex. Empl. Ins. Ass’n v. Haywood, 153 Tex. 242, 245 (1954) (incurable argument 

that witnesses shouldn’t have been believed because of their race); see also TXI 

Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010) (harmful error when 

counsel repeatedly called attention to a driver’s status as an illegal immigrant; “Such 
29

appeals to racial and ethnic prejudices, whether explicit and brazen or veiled and 

subtle, cannot be tolerated because they undermine the very basis of our judicial 

process.”). To the extent there was confusion about counsel’s meaning of the brief 

and isolated statement during closing argument, it could have been cured with a 

retraction or instruction to disregard. We overrule appellants’ third issue. 

3. “Irrelevant Facts and Personal Attacks”

In their fourth issue, appellants contend that appellees’ counsel’s closing 

arguments injected irrelevant facts and personal attacks on appellants. In particular, 

appellants complain about counsel’s arguments that appellants (1) wanted a 

“discount” on damages; and (2) would not pay the verdict awarded by the jury 

because the trial was “just the beginning of a long legal battle.”

During closing arguments, appellees’ counsel used the word “discount” to 

apparently suggest that appellants did not want to adequately compensate John for 

her damages:

[Appellees’ Counsel]: But I represent to you in 2019, the pain and 

suffering and mental anguish of what she’s experienced and is about to 

experience is worth 10 to 12 million dollars; and I ask you to consider 

it. When I sit down, they’re going to get up there and talk about how, 

number one, she doesn’t have it; and, number two, if you do award 

money, award like 4 or 5 million dollars. You might as well award zero, 

because that’s the cost of doing business for them. Partial justice is no 

justice. They just want a discount.

*****

Because it’s lawyer talk. And I understand that. I respect that. I respect 

what they have to do. Because they want a discount, and I don’t think 

you have to discount a human being’s life. And I ask you to award full 

damages.

Counsel also suggested that appellants would not pay the jury’s verdict:
30

[Appellees’ Counsel]: And so, we ask you, as the Harris County jurors, 

to judge her today and in the future and award full compensation. His 

Honor—His Honor will take care of the rest.

All we’re trying to do is move the money from here (indicating) to here 

(indicating). Do you think—do you think they’re going to pay your 

verdict like that (indicating)? This is just the beginning of a long legal 

battle. Just the beginning.

[Appellants’ Counsel]: Your Honor, I object. This is improper in 

closing argument.

The Court: We can move on, Counselor.

Appellants contend that these statements strike at the appearance of and the actual 

impartiality, equality, and fairness of justice rendered by courts. See Penalver, 256 

S.W.3d at 681.

Counsel’s statements regarding the “discount” on damages were mere 

hyperbole and based on the facts and issues raised by the evidence—that is, 

appellants believed the amount of their damages was $10 to $12 million while 

appellees believed the amount of damages was less. Wal-Mart Stores Tex., LLC v. 

Bishop, 553 S.W.3d 648, 677–78 (Tex. App.—Dallas 2018, pet. granted, aff’d as 

modified) (no incurable argument in case involving falling box in store when counsel 

used the term “Walmart treatment,” referred to the opposing party’s witness as a “hit 

man,” and characterized the plaintiff as a “victim”). “Hyperbole has long been one 

of the figurative techniques of oral advocacy. Such arguments are a part of our legal 

heritage and language.” Reese, 584 S.W.2d at 836, 838 (Tex. 1979) (mere hyperbole 

that the plaintiff “drove by a thousand doctors between the Astrodome and Spring 

Branch”). The argument was not improper; but even if improper, it was not incurably 

so. See Bishop, 553 S.W.3d at 677–78; see also Reese, 584 S.W.3d at 836, 840–41 

(no incurable argument when counsel argued that the plaintiff sought out doctors 

who would “build those medical bills up real high” because it would “look good in 

front of a jury,” and “Does not a sham or a plot evolve out of all of this?”).
31

Assuming for the sake of argument that counsel’s suggestion that appellants 

would not pay the jury’s verdict without a “long battle” was improper, it was not the 

type of argument that has been held incurable. Compare Circle Y of Yoakum v. 

Blevins, 826 S.W.2d 753, 759 (Tex. App.—Texarkana 1992, writ denied) (incurable 

argument claiming that defense counsel manufactured evidence), and In re Munsch, 

614 S.W.3d 397, 402 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) 

(“The use of epithets such as ‘liar,’ ‘fraud,’ ‘faker,’ ‘cheat,’ and ‘imposter’ are 

recognized as incurable.”), with Metro Transit Auth. v. McChristian, 449 S.W.3d 

846, 855–56 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (no incurable 

argument by referring to opposing counsel’s argument with question, “What kind of 

snake oil is he selling you?”). Counsel’s argument was not an unsubstantiated attack 

on the integrity or veracity of a party or counsel, but rather, it was derived from the 

ordinary course of proceedings in many cases when, as here, a defendant appeals 

and supersedes the judgment. See Tex. R. App. 24.1. Retraction of the argument or 

an instruction to disregard could have cured any probable harm. We overrule

appellant’s fourth issue.

4. Attorney’s Fees

In their fifth issue, appellants contend that appellees’ counsel improperly 

“referenced attorneys’ fees as part of the damages, or as something the jurors could 

(and should) consider in determining the amount of any damage awards.” 

During voir dire, a venireperson asked appellees’ counsel, “But are—y’all 

have a contingency on the amount awarded that the lawyers get?” Counsel answered, 

“Yes. . . . And I rise and fall with—if I lose, I get zero.” Appellants moved for a 

mistrial, contending that counsel tainted the jury, and the potential jurors would want 

to award more money knowing that part of the recovery would go to the lawyers. 

The trial court denied the motion.
32

Later during voir dire, another venireperson asked about attorney’s fees: “If 

you win, how much money are you going to make?” Before counsel could answer, 

the court gave a lengthy instruction to the venire, in relevant part:

So, the only thing you’re—I’m not going to ask you any questions about 

attorney’s fees. . . . You’re not going to be asked to consider anything 

about attorney’s fees in this case. I’m going to ask you—like I said 

before, I don’t—I’m going to ask you some questions; and I’m going 

to ask you to answer those fact questions, usually about who—what 

happened, who caused it, and what the damages are. And you’re going 

to have to come to a reasonable amount based on the evidence about 

what the appropriate answers are in concert with all the other jurors. 

You should only be guided by the evidence admitted in this court. If 

you’re considering other things other than the evidence in court, then 

we should know that because it wouldn’t be fair to the people in trial, I 

mean, here today—either party. And so, that’s the purpose of asking 

these questions.

Later during the same day, appellants again moved for a mistrial, which the trial 

court denied. The court told appellants they were entitled to examine the venire on 

the issue of attorney’s fees to discover any bias or prejudice. Appellants did not do 

so. 

During closing argument, appellees’ counsel said, “But in our legal system 

you equate pain and suffering and mental anguish with dollars, with money. And I 

know people get cynical. How much are the lawyers going to make? You know, this 

is just a free for all. I get that. I have heard it all.” About ten minutes later, appellants 

moved for a mistrial. The court denied the motion, explaining, “The Court provides 

instructions that they’re not to consider attorney fees. I don’t think that he asked 

them to consider attorney’s fees. I think you said not to consider it, although I know 

the context was a little bit different.”

Appellants cite no analogous case to support their argument on appeal, and 

we have found none. A review of the whole record, including voir dire and closing 
33

arguments, does not support appellants’ argument that appellees’ counsel’s 

responses to venirepersons’ questions or his rhetorical question during closing 

arguments—“How much are the lawyer’s going to make?”—amounted to an 

invitation to the jury to consider attorney’s fees as part of damages. The trial court 

understood the argument as one to not consider fees, i.e., counsel asked the jury to 

not be “cynical” and consider fees when determining how much to compensate 

appellees for their injuries. The topic had been raised during voir dire because 

venirepersons asked, unprompted, about fees. The trial court instructed the venire 

that they would not consider fees, allowed appellees’ counsel to conduct voir dire 

on the topic, and expressed the intention during closing argument to inform the jury 

again that they should not consider fees when assessing damages.

Under these circumstances, we cannot conclude that the “casual and incidental 

reference” to attorney’s fees during closing argument rises to the rare level of 

incurable argument that probably caused an improper judgment. See Isern v. Watson, 

942 S.W.2d 186, 199 (Tex. App.—Beaumont 1997, writ denied) (no incurable error 

when the plaintiff’s counsel referenced insurance during closing argument); see also 

Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 200–01 (Tex. App.—Austin 

1991, no writ) (no incurable error during voir dire when the plaintiff’s counsel said, 

in response to questions and concerns from venirepersons, that the plaintiff had 

insurance at the time of the accident but would be required to repay the insurance 

company for amounts recovered from the defendant); St. Louis. Sw. Ry. Co. v. 

Gregory, 387 S.W.2d 27, 33 (Tex. 1965) (no incurable error during voir dire when 

the defendant’s counsel said, “There is no insurance here,” as a spontaneous reaction 

to the venireperson’s answer, even if the statement was interpreted by venirepersons 

that the defendant did not have liability insurance). We overrule appellants’ fifth 

issue.
34

C. Cumulative Error

As part of their issues regarding appellees’ counsel’s allegedly improper 

arguments, appellants contend that the statements cumulatively, if not singularly, 

warrant a new trial.

In cases involving improper arguments, we consider the cumulative effect of 

all the statements to determine if they are so prejudicial that they are incurable. See 

S. Pac. Co. v. Hubbard, 156 Tex. 525, 532 (Tex. 1956). The only potentially 

erroneous arguments—implying that appellants would challenge the jury’s verdict

and referring to attorney’s fees—were mild, brief, and isolated. Appellants’

authorities involved more frequent and prejudicial comments. Cf., e.g., Nat’l Union 

Fire. Ins. Co. of Pittsburgh, Penn. v. Kwiatkowski, 915 S.W.2d 662, 665 (Tex. 

App.—Houston [14th Dist.] 1996, no writ) (harmful error from many comments 

about irrelevant and unsubstantiated bad behavior, such as intimidating witnesses, 

occurring during one-day trial). Although the jury awarded damages consistent with 

appellees’ request, the jury also rejected appellees’ request to find New Prime 

grossly negligent and award punitive damages. Considering the whole record, the 

state of the evidence, the strengths and weaknesses of the case, and the verdict, we 

conclude that the jury “carefully considered its verdict and the evidence.” See Reese, 

584 S.W.2d at 841.

Appellees’ counsel’s statements, considered cumulatively, do not warrant a 

new trial.

III. NEGLIGENT ENTRUSTMENT

In their twelfth issue, appellants contend that the evidence is legally 

insufficient to support the jury’s finding of negligent entrustment and that the trial 

court erred by admitting evidence of Alonzo’s driving record.
35

A. Sufficiency Challenge

Appellants contend that the evidence is legally insufficient to support the 

jury’s affirmative answer to a question about New Prime’s liability for negligent 

entrustment. New Prime, however, stipulated to its vicarious liability for Alonzo’s 

negligence.7 The jury did not find New Prime grossly negligent and did not award 

punitive damages. Thus, the trial court’s judgment is fully supported by the 

stipulated vicarious liability theory, independent of the negligent-entrustment 

finding. Under these circumstances, we do not address the sufficiency of the 

evidence to support the negligent-entrustment finding. See Townley v. Lanier, No. 

14-19-00447-CV, 2021 WL 2325082, at *4 (Tex. App.—Houston [14th Dist.] June 

8, 2021, pet. filed) (mem. op.) (“If we conclude that the judgment may be upheld on 

either one of the independent theories of recovery, we need not address any alleged 

error pertaining to the other claim.”) (citing Boatland of Hous., Inc. v. Bailey, 609 

S.W.2d 743, 750 (Tex. 1980); see also White v. Zhou Pei, 452 S.W.3d 527, 541 (Tex. 

App.—Houston [14th Dist.] 2014, no pet.).

B. Evidentiary Matters

Appellants contend that the trial court erred by admitting evidence of (1) 

Alonzo’s traffic collisions and citations that occurred more than six years before the 

accident in this case and (2) irrelevant accidents and citations related to, among other 

things, administrative violations, parking tickets, minor parking lot and loading dock 

collisions, collisions related to wildlife, and collisions caused by others. Appellants 

7 The negligent-entrustment question was submitted to support appellees’ claim of gross 

negligence to justify an award of punitive damages. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 

917, 921 (Tex. 1998) (“A corporation may be liable in punitive damages for gross negligence only 

if the corporation itself commits gross negligence.”). 
36

contend, without substantive analysis, that the evidence “clearly impacted the 

damages awarded in this case and caused the rendition of an improper judgment.” 

The erroneous admission of evidence requires reversal only if the error 

probably, though not necessarily, resulted in an improper judgment. Nissan Motor 

Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). We will consider the entire 

record, but the complaining party must demonstrate that “the judgment turns on the 

particular evidence admitted.” Id. The erroneous admission of evidence is harmless 

if it is merely cumulative. Id.; see also Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 

617 (Tex. 2000) (“This court ordinarily will not reverse a judgment for erroneous 

ruling on admissibility of evidence when the evidence in question is cumulative and 

not controlling on a material issue dispositive to the case.”). “But beyond that, 

whether erroneous admission is harmful is more a matter of judgment than precise 

measurement.” Armstrong, 145 S.W.3d at 144.

Assuming without deciding that the evidence was inadmissible, we begin the 

harm analysis by reviewing the jury’s verdict. See Reliance Steel & Aluminum Co. 

v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008). Although the jury could have used this 

evidence to find that New Prime negligently entrusted the vehicle to Alonzo, the jury 

did not subsequently find that New Prime was grossly negligent. New Prime 

admitted to liability, as discussed above, so the jury’s finding about negligent 

entrustment was immaterial to the trial court’s judgment because the jury’s answer 

could not alter the effect of the verdict. Cf. City of Brownsville v. Alvarado, 897 

S.W.2d 750, 752 (Tex. 1995) (improper submission of issue is generally harmless if 

jury’s answer cannot alter the effect of the verdict).

Although one of appellees’ lawyers referred to this evidence when urging the 

jury to find New Prime negligent, another of appellee’s lawyers who addressed 

John’s pain and suffering and mental anguish did not discuss Alonzo’s driving 
37

history. That is, no connection was made between Alonzo’s driving history and 

appellees’ damages.

Finally, the complained-of evidence was not particularly prejudicial: some old 

speeding tickets, more recent non-vehicular collisions, logging discrepancies, and 

the like. In light of the significant evidence of appellees’ pain and suffering and 

mental anguish, discussed above, we cannot conclude that the judgment turns on the 

evidence of Alonzo’s driving history. Cf. Reliance Steel & Aluminum Co. v. Sevcik, 

267 S.W.3d 867, 873 (2008) (evidence that the defendant had $1.9 billion in sales 

carried “a very real potential for prejudice” in a case where the defendant admitted 

liability and the “biggest issue” concerned damages (quotation omitted)).

Admission of this evidence did not probably result in the rendition of an

improper judgment. We overrule appellants’ twelfth issue.

IV. CONCLUSION

Having overruled each of appellants’ issues we affirm the trial court’s 

judgment.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Wise, Bourliot, and Zimmerer (Wise, J., dissenting).