NO. 07-01-0252 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D NOVEM BER 27, 2001

______________________________ JOH N S AN CH EZ a nd C ONN IE SA NC HE Z, in divid ually and as nex

t friend of REHNA E LEAN N SANC HEZ, a child, Appellants
v. SYLVIA GARZA ESPINOZ A, Appellee

_________________________________ FROM THE 72 nd DISTRI CT COURT OF LUBBOCK COUN TY; NO. 98-504,362; HON. J. BLAIR CHERRY , JR., PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. John and Connie Sanchez, individuall y and as nex t friend of Rehnae Leann Sanchez, a child, (collectively referred to as San chez) appeal from a final judgm ent denying them recovery against Sylvia Garza E spinoza. Through one point, they conten d thatthe trial court erred in overruling their objection to aspects of the closing argum ent of Espinoza’s attorney. W e overrule the point and affirm the judgm ent.1 Attorneys Ne lson and Lanehart re presen ted Espinoza and Sanche z, respectively. 2 Backgr ound Sanchezsued Espinoza for negligence. The cau se o f action arose from an autom obilecol lision in w hich thelitig ants were invo lved . Tr ial w as to a j ury . While counsel for Espinoza m ade his final argument, S anchez obj ected, con tending t hat the ir opponentwas as king the jury t o stand in the shoes o f and assess liability from the perspecti ve of Espinoza. The trial cou rtinitial ly sustained the objec tion but later permitted her to conti nue with th e allegedly improper argum ent. The following is the colloquy depicting the utterances in dispute: 1 Nelson:

. . . Let’s talk about the i nstruction s and defini tions, and we have

touched on that brief ly. But n egli gence means the failu re to use ordinary care. It is not j ust carelessness. A nd ordinary care m eans thatdegree of care th at would be used by a perso n o f ordinary prudence unde r the same or similar cir cumstances. Let’s put yoursel f in Sylvia’s place. Sylvia is m aking the left-hand turn. Sylvia . . . Lanehart: Your

Honor, I am going to object to putting or

placing the jury in the Plaintiffs’ shoes. That is an im proper argum ent. Court: Sustained. Rew ord it a little bit, Mr. Nelson. Nelson: Well, you put yoursel f in the part ies’ place. You put you rse lf in his place, and you put yourself in Sylvia’s place, and you put you rse lf behind S ylvia’s w heel of he r car. Lanehart: Sam e obj ection, Y our Hon or. Court: I am going to overrule. I will let him m ake the argum ent. Nelson: Or dinary

care m eans that degree of care used by a person o r ordinary prudence under

the same or similar circumstances. Let’sput yourself i

n these same ci

rcumstances

.3 You ar e co min g a ro un d t o mak e t he tu rn . Yo u se e a gr ee n a rr ow. Lanehart: May I have a running o bje ction to this, yo ur Hono r? Court: Yes, sir, you may. Nelson: The last thing you see is a green arrow , before you start your turn,

and then you look into the intersection, and you s ee there is nobody in theinte rse ctio n. We ha ve a ll be en through that intersection before. And you go ahead and start you r turn, and you are halfwa y through your turn. And all of a sudden, you see the Plaintiffs’ vehicle com ing. You turn to the left to avoid — hopefully to avoid this collision. W hen you get to that intersection, there isn’t anybody in it. The last thing you saw was the green light. W hat are you to do? You feel as though you have every right in the world to ent er t hat intersection. You feel as though you have every right in the world to com plete your turn. Is that negli

gence? Is that fa ili

ng to use ordi

nary care?

I m aintain thatit isnot . Le t’s

put you rse lf in thePla intif

fs’ pos ition . P ut your

self in John’s position. John is d rivin g a vehic le, t he w hiteSu bur ban . B y his own testimon y and con firm atio n by

his w ife, the y c am e totheinte rse ctio n, goi ng south. They were in the m iddle laneof t raf fic. The y s top ped in observance of the red light. Everybody

that has ever driven a vehicle know s that w hen you stop, in observance of a red light, you have to stay there until you can move intothein tersection without danger of causing a wreck . And thatputs on us a bur

den t hat we have g ot to w atch w here w

e are going be fo re we st ar t u p a ga in . T ha t p ut s a b ur de n o n u s be fo re we start up. And if wetake h is testim ony at its word, tha t ‘[i]t wasa gre en ligh t, an d I started up,’ we hav e an obl iga tio n as a c

areful driver, as a n ordinary prudent driver, to watch where we are going an [sic]. And it is undisputed where his head w as turned when he pulled out in that intersection. It is undisputed that he w as turned to the right,4 and he was talking to his wife. His w ife confirms that th ey w ere talking. He confirmsthat they w ere talking. There is no doubt that w hen he pulled out, he was looking thi s way, and there is no doubt that he had an obligation to be watching whe re he wasgoing, to be pa ying atte ntion. H ad he be en watching w here he was g oing, what could he havedone? He could have exercised o rdinary ca re and stopped or not gone out, to b eg in wi th. An d if tha t ha d be en t he case , M s. E spin ozaw ould have been able to finish her tur n, t her

e would have been no accident, and we wouldn’t be here today. Ordi nary care is judged by what other people wou ld do i n the same or simi lar circ umstances. Let’s take the lady th at was to John’s right

. . . . The tes tim ony

tha t yo u ha ve h ear

d ab out w hat shedid i s very telling. If the light turned green for John, then it turned green for her. Did she pull out into the intersection? Did she have a w reck? No. Did she pull out in the intersection? No. And the reason she didn’t, certainly a logical i nference from t he evidence is that she saw Sylvia, and because shesaw the m [si c] i n the intersection m aking the turn, she didn’t pull out. What would a n ord

inary prudent person have done i n the same or simi lar ci rc um stances ? They wou ld have stopped until the intersection cleared. Is there negligence ? Yes. The negli gence is on the Plaintiff, not the Defendant .

. . . (Em phasis ad ded). Discussion Ruleof procedure obligates counsel to confine his argum ent “strictly to the e vi dence and to the argum ents of op posing couns el.” T EX
. R. C IV
. P ROC
. 269(e). This does not
mean tha t sa m e m ust

be s ter ile or nondescript. The opposite is quite true for great latitude is allowed him in discussing the f acts and issues. Ra mir ez v. Acker

, 138 S.W.2d 1054,5

1055 (Tex. 1940). For instance , he ma y discuss the “environm ents” or circums tances of the case, the reasonab leness or un reasonabl eness of the evid ence, and the pro bative effect (or l ackthereof) of the evidence. Id. So too does he have the leeway to “present his case as to m ake the law co ntained in the charge applicable to the facts of the case.” Devine y v. McLendon , 496 S.W.2d 161, 166 (Tex. Civ. A pp.--Beaum ont 1973, w rit ref’d. n.r.e.)

. This leeway also includes the opportunity to encourage the j ury to we igh, evaluate, and test the evidence before it. Gorman v. Li fe Ins. Co. , 859 S.W.2d 382, 38 9 (Tex . App.
-- Houston [1st D ist.] 199 3, no w rit). An d, w hether counsel’sarg ument exceeded these expansive bou nda riesis a decision lying within the discretion of the trial court. Mandril v. Kasishke , 620 S.W.2d 238, 247 (Tex. Civ. App. --Am arillo 1981, writ ref’d. n.r.e. ). As long as the decision com ports with guiding rules and principles, we m ust uphold it. Here, Sanchez contends tha t E spinoza’s attorney ex ceeded the bounds of p ropriety when he invi ted the jurors to put themse lves in the place of his client when determ ining liab ili ty. Adm ittedly, courts have held as im proper arg um ent

tha t as ks thej ury

to s tan d in the shoes of a party. See e.g., Fambrough v. Wagley , 140 Tex. 57 7, 169 S.W.2d 478, 481-82 (Tex. 1943); World Wide Tire Co. v. Brown , 644 S.W.2d 144, 14 5-46 (Tex . App.
-- Houston [14 th D ist. ] 19 82, w rit r ef’ d. n .r. e.) . Th is is so because the jurors are being asked to consider the case froman improper view point, Fambrough v. Wagley, 169 S.W.2d at 482, that is, from the perspective of an interested party as opposed to a neutral fact-f inder. Moreo ver, if one were to f ocus sim ply upon the sugge stion at bar that the jurors pl ace them selves in the position of Espinoza, there m ay be a problem

.6

Yet, the trial co urtwas not entitled to isolate the comm ent from its context . Rath er, itmu st be analyzed in light of the entire argum ent. Will iams v. State , 826 S.W.2d 783, 785-86 (Tex. Ap p.--Houston [14th Dist.] 1992, pet ref’d). In other words , one looks at the
co nt ext of the utterances to determ ine their propriety. Id. And, the context at bar is most telling. For instance, imm ediately before first inviting the jury to place them selves in the shoes of Sylvia he had told them that “ negli gence m eans th e failure to use ordina ry care

. . . not j ust carelessness” and “ordinary care m ea ns that deg ree of care that w ould be used by a person o f ordinary prudence under the same or si milar ci rcumstances .” (Em pha sis added). That is, he first told the jury tha t liabil ity was dependen t upon wha t a reasonable personwould have done u nder the same circ umstances and then he invited the jurors to place them selves within the car to ex perience those all important circumstances. That this is what h e intended is exem plified by 1) his stating “[l]et’s put you rse lf in these same circumstances, ” 2) then describing for the jury those circum stances
as they unfolded, and then 3) ask ing “[i]s tha t negli gence” and “[i ]s that fail ing to use ordinary care?” The sam e is true when he later urged t he jury to “[p]ut yourself in John’s position,” that is, the position of the driver of the other vehicle. After d escribing the circumstances encountered by Joh n and th e obligations impo sed on a n ordinary pru dent person, he opined that John’s resp onse did not evince ordinary prudence. Sim ply put, he was aga in asking the jurors, who in his view mu st devine what

an ordinary

prudent perso n would have done under th e circum stance s, to v iew th ose circ umstance s and decide whe ther the response ex hibited by John com ported with ordinary prudence.7

In sum and when viewed i n context , counsel was asking the jurors not to assess liabil ity as a litigant with an interest in the outcom e but as a reasonable person w itnessing the events unf

old . That was

permissible since final argumen t m ay consist of attem pt to struct ure the evidence in a way “mak [ing] the law contained in the charge applicable to the facts of the case.” Devine y v. McLendon , supra . Consequently, the trial court’s dec ision
com ported with controlling authority and evinced a legitimate ex ercise of discretion. Accordingly, we af

firm the j udgme nt.

Brian Quinn Justice
Publish.