Affirmed and Opinion filed December 31, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-01075-CV

MYRA LISA WELLONS, INDIVIDUALLY AND AS THE 

REPRESENTATIVE OF THE ESTATE OF JASON WELLONS, 

DECEASED, AND MEGAN WELLONS, Appellants

V.

VALERO REFINING—NEW ORLEANS, L.L.C., Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2015-36186

O P I N I O N

This case involves a conflict-of-laws dispute in a wrongful death action 

where the decedent, Jason Wellons, was covered by workers’ compensation 

insurance. Appellants Myra Lisa Wellons, Jason’s widow, and Megan Wellons, 

Jason’s daughter, appeal from the trial court’s determination that Louisiana law 

should apply to the claims against appellee Valero Refining—New Orleans, L.L.C.

(“VRNO”) and from the court’s final take-nothing judgment favoring VRNO.
2

Jason’s injuries occurred at VRNO’s refinery in St. Charles Parrish, Louisiana, and 

he later died in St. Charles Parish. However, Jason was domiciled and hired in 

Texas, and appellants received Texas workers’ compensation benefits.

In addition to asserting that the trial court erred in applying Louisiana law, 

appellants also assert that the trial court erred in prohibiting one of their expert 

witnesses from testifying as to the intent of VRNO’s personnel and that VRNO’s 

counsel made incurably improper statements during closing argument. We affirm.

Background

Jason was hired by J.V. Industrial Companies, Ltd. (“JVIC”), a Texas 

corporation, to work a turnaround at VRNO’s St. Charles Refinery in Norco, 

Louisiana. Jason was a Texas resident and was hired in Texas but specifically for 

the turnaround in Louisiana.

On March 17, 2015, Jason was working on a pipe rack at the refinery 

approximately 30 feet above the ground while wearing an impermeable chemical 

suit with the wrists and ankles taped. When Jason became overheated and 

collapsed, VRNO emergency personnel responded to the situation. Jason was 

lowered from the pipe rack and taken to a local hospital, where he died the next 

day. An autopsy concluded that Jason died as the result of heatstroke. Appellants 

contend that the delays in responding to the situation and failure to timely and 

properly treat Jason’s condition, including failing to quickly lower his body 

temperature, led to his death. VRNO asserts that its personnel worked as quickly 

and efficiently as possible under difficult circumstances. After Jason’s death, 

appellants received Texas workers’ compensation survivor benefits with JVIC 

listed as the insured employer on the claim documents.

Appellants sued VRNO, JVIC, Valero Services, Inc., and several other 
3

defendants in a Texas court, bringing a wrongful-death action and alleging

negligence and gross negligence. By the time the case reached the jury, only 

VRNO remained as a defendant. After extensive briefing and argument by the 

parties, the trial court determined that the claims against VRNO should be 

determined under the substantive laws of Louisiana—which permit recovery for 

wrongful death when a decedent is covered by workers’ compensation only when 

the defendant committed intentional conduct—and not the substantive laws of 

Texas, which permit recovery of exemplary damages in such cases for gross 

negligence.

During trial, after an objection by VRNO, the trial judge ruled that one of 

appellants’ expert witnesses, Dr. John McManus, would not be permitted to testify 

regarding the subjective intent of VRNO or its employees. During closing 

argument, VRNO’s counsel made arguments concerning the fact appellants had to 

prove intentional conduct. At one point, appellants’ counsel tried to object to the 

argument, but the trial judge overruled the objection and told counsel to sit down.

Question no. 1 in the jury charge asked:

Did the intentional conduct, if any, of Valero Refining—New

Orleans, LLC proximately cause Jason Wellons’ death?

In considering the conduct of Valero Refining—New Orleans, 

LLC, consider only Valero Refining-New Orleans, LLC ’s, conduct 

dealing with the rescue and providing emergency medical care after 

Mr[.] Wellons’ injury became known.

“Intentional conduct” means that one or more Valero 

Refining—New Orleans, LLC employee either (1) consciously 

desired the physical result of his actions or (2) knew that the result is 

substantially certain to follow from his actions. If a Valero Refining—

New Orleans, LLC employee knew that the consequences are certain,

or substantially certain, to result from his actions, and still goes [sic] 

ahead, it is treated by the law as if Valero had in fact desired to 

produce the result.
4

“Substantially certain” means virtually sure, inevitable and 

incapable of failing.

“Proximate cause” means a cause that was a substantial factor 

in bringing about an event, and without which cause such event would 

not have occurred[.] In order to be a proximate cause, the act or 

omission complained of must be such that a person using the degree 

of care required of him would have foreseen that the event, or some 

similar event, might reasonably result therefrom. There may be more 

than one proximate cause of an event.

On a 10-2 vote, the jury found that the intentional conduct of VRNO’s employees

did not proximately cause Jason’s death. Because of that answer, the jury was not 

required to and did not answer any other questions.

Discussion

I. Conflict of Laws

In their first issue, appellants contend that the trial court erred in holding that 

Louisiana law governed the claims against VRNO. We will first explain the 

standards by which we determine which law to apply, and then we will apply those 

standards to the facts of this case.

A. Governing Law

We need not decide which state’s laws apply unless those laws conflict.

Sonat Expl. Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008).

The workers’ compensation laws of both Texas and Louisiana contain exclusive 

remedy provisions that limit the claims available in wrongful death actions when 

the decedent was covered by workers’ compensation. See Tex. Labor Code § 

408.001(a)-(b); La. Rev. Stat. § 23:1032. Under the Texas statute,

[r]ecovery of workers’ compensation benefits is the exclusive remedy 

of an employee covered by workers’ compensation insurance 

coverage or a legal beneficiary against the employer or an agent or 
5

employee of the employer for the death of or a work-related injury 

sustained by the employee [except for] the recovery of exemplary 

damages by the surviving spouse or heirs of the body of a deceased 

employee whose death was caused by an intentional act or omission 

of the employer or by the employer’s gross negligence.

Tex. Labor Code § 408.001(a)-(b). Under the Louisiana statute,

except for intentional acts . . . the rights and remedies herein granted 

to an employee or his dependent on account of an injury, or 

compensable sickness or disease for which he is entitled to 

compensation under this Chapter, shall be exclusive of all other rights, 

remedies, and claims for damages, including but not limited to 

punitive or exemplary damages.

La. Rev. Stat. § 23:1032A(1)(a). The parties agree, as do we, that these laws 

conflict in that, as applied to today’s case, the exception to the exclusive remedies 

provision of the Louisiana statute includes only liability resulting from an 

intentional act, whereas the exception to the exclusive remedies provision of the

Texas statute permits the recovery of exemplary damages if an employee’s death 

was caused by the employer’s intentional conduct or by the employer’s gross 

negligence. See Tex. Labor Code § 408.001(a)-(b); La. Rev. Stat. § 23:1032(A),

(B).

The issue of which state’s substantive law applies is a question of law for the 

court to decide. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000). 

Thus, we review de novo the trial court’s decision to apply Louisiana law. See Mn.

Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex. 1996); Greenberg

Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 70 (Tex. App.—Houston [14th 

Dist.] 2004, no pet.). We note, however, that determining the contacts to be 

considered in resolving the legal question may entail issues of fact. Sonat Expl., 

271 S.W.3d at 231.

When there is a conflict of laws, Texas courts use the Restatement’s “most 
6

significant relationship” test to determine which law to apply. See Restatement 

(Second) of Conflict of Laws §§ 6, 145 (1971); Hughes Wood Prods., Inc. v. 

Wagner, 18 S.W.3d 202, 205 (Tex. 2000). Section 6 of the Restatement sets out the 

relevant general factors to consider when determining which law to apply.1 Section 

145 sets forth the factual matters to be considered when applying the principles of 

section 6 in a tort case. Hughes Wood, 18 S.W.3d at 205.

2

The Texas Supreme Court has also instructed on numerous occasions that 

more specific Restatement provisions can apply in determining conflicts-of-laws

issues in particular contexts. See id. at 206 n.2 (listing cases and contexts). In

Hughes Wood, the court specifically stated that Restatement section 184 provides 

the standards by which a court is to determine immunity from a tort suit when an 

employee is covered by workers’ compensation insurance. Id. at 205-06. That 

1 The general factors listed in section 6 include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those 

states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2).

2 The factual matters listed in section 145 include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of 

business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) of Conflict of Laws § 145(2).
7

section provides:

Recovery for tort or wrongful death will not be permitted in any state 

if the defendant is declared immune from such liability by the 

workmen’s compensation statute of a state under which the defendant 

is required to provide insurance against the particular risk and under 

which

(a) the plaintiff has obtained an award for the injury, or

(b) the plaintiff could obtain an award for the injury, if this is the state

(1) where the injury occurred, or (2) where the employment is 

principally located, or (3) where the employer supervised the 

employee’s activities from a place of business in the state, or (4) 

whose local law governs the contract of employment under the rules 

of §§ 187–188 and 196.

Restatement (Second) of Conflict of Laws § 184.3

In Hughes Wood, the court considered, as we do here, whether the Texas or 

Louisiana workers’ compensation exclusivity provision applied. In doing so, the 

court noted that “there is no policy reason to refuse to apply Louisiana’s exclusive 

3 As the supreme court explained in Hughes Wood, section 184 applies the section 6 

factors in the workers’ compensation exclusive-remedy context. 18 S.W.3d at 206. Its 

application protects the parties’ justified expectations because “[i]t is thought unfair that a person

who is required to provide insurance against a risk under the workmen’s compensation statute of 

one state which gives him immunity from liability for tort or wrongful death should not enjoy

that immunity in a suit brought in other states.” Restatement (Second) of Conflict of Laws § 184

cmt. b (1971).

Section 184 further appreciates the relative interests of other states in providing an 

exclusive workers’ compensation remedy, because “to deny a person the immunity granted him 

by a workmen’s compensation statute of a given state would frustrate the efforts of that state to 

restrict the costs of industrial accidents.” Id. Moreover, “[a]ll states are sympathetic with the

policies underlying workmen’s compensation, and all states grant certain persons immunity from 

liability for tort or wrongful death . . . .” Id. Thus, applying section 184 (1) serves the needs of 

the interstate system, see id. § 6(2)(a); (2) applies the relevant policies of the forum, see id. § 

6(2)(b); (3) promotes the basic policies underlying the workers’ compensation system, see id. § 

6(2)(c); (4) protects justified expectations, see id. § 6(2)(d); (5) facilitates certainty, 

predictability, and uniformity of result, see id. § 6(2)(f); and (6) eases the determination and 

application of the law to be applied, see id. § 6(2)(g). Hughes Wood, 18 S.W.3d at 206.
8

workers’ compensation remedy.” Hughes Wood, 18 S.W.3d at 207.4

B. Application to the Facts

The key issues in this case for analysis under section 184 are (1) whether 

VRNO would have immunity under Louisiana law that it would not have under 

Texas law and (2) whether appellants have obtained or could obtain Louisiana 

workers’ compensation benefits. See id. If VRNO has greater immunity under 

Louisiana law and appellants have received or could receive Louisiana benefits, 

under section 184, Louisiana law applies to the claims against VRNO. See id. We

discuss each issue in turn and conclude that Louisiana law was properly applied in 

this case.

1. Immunity

Appellants do not dispute that given the facts of this case, VRNO would 

have immunity under Louisiana law that it would not have under Texas law.

Louisiana provides that in addition to an injured worker’s direct employer, a 

“statutory employer” also is immune from suit, except for liability resulting from 

an intentional act, when an injured worker is covered by workers’ compensation 

insurance. See La. Rev. Stat. §§ 23:1032(A)(1)(a); 23:1061; St. Angelo v. United 

Scaffolding, Inc./X-Serv., Inc., 40 So. 3d 365, 368-70 (La. App. 4 Cir. 2010); Lopez 

v. U.S. Sprint Commc’ns Co., 973 So. 2d 819, 823-25 (La. App. 4th Cir. 2007); see 

also Hughes Wood, 18 S.W.3d at 207.

5 A party qualifies as a statutory employer,

4 Appellants urge us to adopt their theory that if the employee was initially hired in the 

same state in which workers’ compensation benefits are paid, that state’s substantive law should

always apply over the laws of the state where the injury occurred. We decline to adopt this 

theory in light of the supreme court’s direction to apply Restatement section 184 in cases such as 

this.

5 Appellants conceded in the trial court that Jason was covered by workers’ compensation 

insurance in Louisiana and do not suggest otherwise on appeal. An insurance policy that appears 

to cover Jason in Louisiana appears several times in the record.
9

among other possibilities, if the party undertook “to execute any work which is a 

part of his trade, business, or occupation in which he was engaged at the time of 

the injury . . . and contracts with any person for the execution thereof.” La. Rev. 

Stat. §§ 23:1032(A)(2); see also id. § 23:1061(A)(1); St. Angelo, 40 So. 3d at 368-

70. When a contract between the injured worker’s direct employer and the party in 

question recognizes the existence of a statutory-employer relationship, it is 

presumed that the party is the worker’s statutory employer. See La. Rev. Stat. §

23:1061(A)(3); Johnson v. Motiva Enters. LLC, 128 So. 3d 483, 489 (La. App. 5 

Cir. 2013). This presumption can be rebutted by evidence that the work in question

was “not an integral part of or essential to the ability of the principal to generate 

that individual principal’s goods, products, or services.” La. Rev. Stat. §

23:1061(A)(3); see also Johnson, 128 So. 3d at 489.

Here, the contract governing the turnaround between JVIC, Jason’s direct

employer, and VRNO expressly recognized a statutory-employer relationship. 

Appellants offered no evidence to rebut the presumption that this contract created. 

See La. Rev. Stat. § 23:1061(A)(3); Johnson, 128 So. 3d at 489. Accordingly, as 

Jason’s statutory employer, VRNO possessed immunity under Louisiana law that it 

did not possess under Texas law. See La. Rev. Stat. §§ 23:1032(A)(1)(a); 23:1061;

St. Angelo, Inc., 40 So. 3d at 368-70; Lopez, 973 So. 2d at 823-25.

2. Louisiana benefits

We next turn to the question of whether appellants have obtained or could 

obtain Louisiana workers’ compensation benefits. See Hughes Wood, 18 S.W.3d at

207; Restatement (Second) of Conflict of Laws § 184(b). It is undisputed that 

appellants have only received benefits under the Texas workers’ compensation 

system and have not sought benefits under the Louisiana system. The fact that outof-state benefits are being received, however, is not a bar to the receipt of benefits 
10

under the Louisiana system. See La. Rev. Stat. §§ 23:1035.1(2). The out-of-state

benefits simply act as a credit against any Louisiana benefits. Id. § 23:1035.1(2)(c).

Appellants instead assert that they could not now obtain benefits in 

Louisiana because any such claim would be barred under Louisiana Revised 

Statutes section 23:1209(A)(1) as more than a year has passed since Jason’s death 

without a claim being filed in Louisiana. Section 1209(A)(a) specifically provides 

that

(1) [i]n case of personal injury, including death resulting therefrom, 

all claims for payments shall be forever barred unless within one year 

after the accident or death the parties have agreed upon the payments 

to be made under this Chapter, or unless within one year after the 

accident a formal claim has been filed . . . .

La. Rev. Stat. §§ 23:1209(A)(l).

As VRNO points out, however, prescription under section 1209(A)(1) may 

be interrupted in certain circumstances. One such tolling provision is set forth in 

section 1209(A)(2), which provides that “[w]here such payments have been made . 

. . , the limitation shall not take effect until the expiration of one year from the time 

of making the last payment . . . .” Louisiana courts have interpreted this provision 

as encompassing workers’ compensation payments made through another state’s 

system. See Lentz v. N. Am. Van Lines, Inc., 582 So. 2d 984, 986 (La. App. 1 Cir.

1991); Ryder v. Ins. Co. of N. Am., 282 So. 2d 771, 774–75 (La. App. 3 Cir. 1973); 

cf. Chance v. Fid. & Cas. Co. of N.Y., 509 So. 2d 593, 599–600 (La. App. 3 Cir. 

1987) (holding that payments under federal compensation system interrupted 

prescription under section 1209(A)(1)). It is established and undisputed in this case 

that payments to appellants under the Texas system are ongoing; thus, the 

prescription of the claim for Louisiana benefits is interrupted. See Lentz, 582 So. 
11

2d at 986; Chance, 509 So. 2d at 599–600; Ryder, 282 So. 2d at 774–75.

6

Appellants do not make any other arguments about whether they could still obtain 

Louisiana benefits.

3. Conclusion

Because appellants could still obtain Louisiana benefits and VRNO has 

greater immunity under Louisiana law than Texas law, Restatement section 184 

dictates that Louisiana law applies to the claims against VRNO. See Hughes Wood, 

18 S.W.3d at 207; Restatement (Second) of Conflict of Laws § 184. Accordingly,

the trial court did not err in applying Louisiana law to those claims and we overrule 

appellants’ first issue.

II. Expert Testimony on Intent

In their second issue, appellants contend that the trial court erred in refusing 

to permit one of their experts, Dr. John McManus, to testify as to whether certain 

conduct of VRNO personnel was intentional. McManus, one of several experts to 

6

It should be noted that it is something of an open question in Louisiana law as to 

whether out-of-state payments made by or on behalf of a direct employer would also serve to 

interrupt prescription on claims involving a statutory employer. Although we found no Louisiana 

case considering this exact issue, it would appear that the interruption of prescription due to outof-state payments would encompass both the direct employer and the statutory employer because 

under Louisiana law the liability of the two employers is considered solidary. See, e.g., Stewart 

v. Boh Bros. Const. Co., 128 So. 3d 398, 402 (La. App. 5 Cir. 2003); Isaac v. Lathan, 836 So. 2d 

191, 194–95 (La. App. 1 Cir. 2002); see also Glasgow v. PAR Minerals Corp., 70 So. 3d 765, 

769-70 (La. 2011) (explaining that when prescription is interrupted for one solidary obligor, it is

interrupted for all solidary obligors).

In its appellate briefing, VRNO also identifies a second ground for holding that 

prescription was interrupted under the facts of this case: in Louisiana, the timely filing of a tort 

action against an employer in a court of competent jurisdiction interrupts prescription on a 

workers’ compensation claim based on the same occurrence. See, e.g., Torres v. La. Shrimp & 

Packing Co., 32 So. 3d 803, 803 (La. 2010); Isaac v. Lathan, 836 So. 2d 191, 194–95 (La. App. 

1 Cir. 2002). The present lawsuit was clearly timely filed against VRNO as it was filed less than 

a year after Jason’s injury and death; however, because VRNO did not raise this ground in the 

trial court, we will not consider this ground on appeal.
12

testify for appellants, was presented as an expert in emergency medicine. He

testified at length regarding the proper protocols, diagnosis, and treatment of 

heatstroke as well as the conditions first-responders encountered at the refinery and 

the perceived failings of VRNO personnel in responding to the emergency. 

McManus was quite critical of the St. Charles Refinery’s emergency system and 

protocols and of the decisions made and treatment undertaken. Among other 

critiques, he concluded that there was no justifiable explanation as to why VRNO 

personnel did not timely and effectively lower Jason’s body temperature or why 

there was a delay in calling 911. McManus further stated that by the time VRNO 

got Jason transferred to a St. Charles Parish ambulance, it was substantially certain 

that he was going to die because they had not sufficiently lowered his temperature.

Prior to trial, VRNO filed a motion to exclude testimony from McManus 

regarding intent. As mentioned in the motion, McManus discussed VRNO 

employees’ intent several times in his expert report.7 Although the trial court 

denied this motion after a brief hearing, VRNO urged the court to reconsider the 

7 Among McManus’s statements in his report about intent were the following:

The circulatory status was intentionally not documented or fully assessed 

according to medical statements. . . . The intentional choice not to treat Mr. 

Wellons during the “golden hour” time period made it substantially certain that he

would suffer morbidity and/or mortality. . . . There was deliberate absence of 

medical equipment immediately available to assess, monitor and treat Mr. 

Wellons. . . . During the medical extrication and treatment by the ERT for Mr.

Wellons there was intentionally no organized medical communication and 

treatment. There was intentionally no communication or coordination between the 

nurse on the ground and the medical personnel during the extrication on treatment 

or possible transportation to nearest hospital. . . . Once the patient was extricated, 

there was intentionally no continuous cooling performed while awaiting 911 

EMS. There was a deliberate lack of documented medical treatment provided 

other than legal statements for this case. Although the initial medical response by 

the ERT was swift, there was intentionally absence of a clear treatment plan

during extrication and while awaiting transport. The deliberate absence of

prehospital communication and medical treatment resulted in certain mortality for 

this patient.
13

ruling shortly before McManus testified during trial. In a conference held outside 

the jury’s presence, the trial court reconsidered its earlier ruling and held that 

McManus would not be “allowed to testify to what was the subjective intent of 

Valero and its employees.” The court further expounded, “I don’t think that he’s 

entitled to do that unless he has some evidence that they made statements or did 

other things that would lead him as a professional to conclude that they had a 

specific intent.”

8

A witness “qualified as an expert by knowledge, skill, experience, training, 

or education” may present opinion testimony if the expert’s scientific, technical, or 

other specialized knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue. Tex. R. Evid. 702; see also KMart Corp. v. Honeycutt, 

24 S.W.3d 357, 360 (Tex. 2000) (per curiam); GTE Sw., Inc. v. Bruce, 998 S.W.2d 

605, 620 (Tex. 1999). For expert testimony to be admissible, the proponent of the 

testimony must establish that the expert is qualified and that his testimony is 

relevant and based upon a reliable foundation. E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 556 (Tex. 1995). A trial court has broad discretion in 

deciding whether to admit expert testimony, and its decision will not be disturbed

on appeal absent an abuse of discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 

572, 578 (Tex. 2006).

Under Texas Rule of Evidence 103, a party complaining of the exclusion of 

evidence must inform the trial court of the substance of the excluded evidence by 

an offer of proof, unless the substance was apparent from the context. Tex. R. 

Evid. 103(a)(2); In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th 

Dist.] 2002, pet. denied). During the conference on McManus’s testimony, 

8 VRNO’s motion also sought to prevent McManus from testifying about Jason’s cause 

of death or the question of timing as it related to the cause of death. The trial court denied these 

portions of the motion and did not reconsider them during trial.
14

although appellants’ counsel argued McManus should be allowed to testify 

regarding intent, counsel did not provide any specifics regarding McManus’s 

proposed testimony, not whose intent he planned to testify to or how the testimony 

would aid the jury. Near the end of the conference, appellants’ counsel stated his 

intention to make a bill of exception or offer of proof with McManus, to which the 

judge replied, “Absolutely. No problem.” It does not appear, however, that any 

such bill or offer was made. Later, during appellants’ counsel’s examination of 

McManus, the following exchange occurred:

Q. [D]oes their policy and procedure say that EMS should be called 

immediately and there should be a transport?

A. Yes.

Q. And so with regard to both Charles Adams and Nurse Rulapaugh 

saying they wanted to wait until Jason Wellons got on the ground 

before they did their evaluation to call 911, what is your evaluation of 

that?

A. That would be a [sic] intentional delay and it resulted in the death 

of Mr. Wellons.

VRNO’s counsel: Excuse me. Judge, object to this witness giving

opinions on intent of the Valero people.

THE COURT: Okay. That’s sustained.

Appellants’ counsel: We can restrain. [sic]

VRNO’s counsel: Can we instruct the jury?

THE COURT: Instruct the jury . . . to disregard the witness’[s]

characterization.

Q. Okay. So let’s just say this:

Can you think of any reason whatsoever to wait until Jason Wellons 

hit the ground if he has shown signs of heatstroke when he’s up in the 

rack?
15

A. I cannot. And they—that would be a violation of their own 

protocol.

In their briefing to this court, appellants point to this exchange as “[a]n example of

the type of testimony that would have been offered.” We presume without deciding 

that appellants have preserved this issue for our review. See Tex. R. Evid.

103(a)(2); In re N.R.C., 94 S.W.3d at 806.

Appellants argue at length that experts are allowed to testify as to ultimate 

issues of fact. While this is true under appropriate circumstances, see, e.g., Helena 

Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (“Otherwise admissible

opinion testimony is not objectionable because it embraces an ultimate issue of 

fact.”), the proponent of such evidence is still required to show that such expert 

testimony is necessary to “assist the trier of fact to understand the evidence or to 

determine a fact in issue.” Tex. R. Evid. 702; see also Honeycutt, 24 S.W.3d at

360; Bruce, 998 S.W.2d at 620.

When the jury is equally competent to form an opinion about an ultimate 

fact issue or an expert’s testimony is within the common knowledge of the jury, the 

trial court should exclude the expert’s testimony. Honeycutt, 24 S.W.3d at 360. In

other words, if the issue involves only general knowledge and experience rather 

than expertise, it is within the province of the jury to decide. See Bruce, 998 

S.W.2d at 620.

Appellants do not offer any explanation in their briefing as to why the jury 

needed McManus to tell them that the VRNO employees wanting to wait until 

Jason was brought down from the pipe rack to evaluate him and decide whether to 

call 911 was intentional. Appellants likewise do not explain why the jury needed 

McManus’s expert opinion on any other matter of subjective intent.9 The trial court 

9 See, for example, the statements regarding intent in McManus’s expert report. See n.8
16

could have reasonably concluded that the question of whether the actions and 

inactions in question were intentional was not so complex as to require expert 

testimony to help jurors draw their own conclusions. See, e.g., Mega Child Care, 

Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 310 (Tex. 

App.—Houston [14th Dist.] 2000, no pet.) As discussed above, McManus gave a 

full-throated critique of VRNO’s policies and protocols at the St. Charles Refinery 

as well as of the actions VRNO personnel took and failed to take. Appellants have 

not established that the trial court abused its discretion in refusing to permit 

McManus to testify regarding the subjective intent of VRNO or its employees. See

Honeycutt, 24 S.W.3d at 360-61 (holding testimony of human factors and safety 

expert was not necessary to help the jury determine whether conditions at store 

created an unreasonable risk of injury). Accordingly, we overrule appellants’

second issue.

III. Closing Argument

In their third issue, appellants assert that VRNO’s counsel made improper 

and incurable statements to the jury during closing arguments. Specifically, 

appellants complain that VRNO’s counsel suggested in his argument that 

appellants were asserting and had to prove that VRNO personnel intended to kill or 

murder Jason in order to be successful on their claims. As will be discussed below, 

appellants really make two different complaints under this issue—a complaint

about the references to an intent to kill, which was not preserved by an objection, 

and a complaint about a reference to murder, which arguably was preserved by 

objection.

A litigant is entitled to have his counsel argue the facts of the case to the 

jury. Zurita v. Lombana, 322 S.W.3d 463, 482 (Tex. App.—Houston [14th Dist.]

supra.
17

2010, pet. denied). Trial counsel may properly discuss the reasonableness of the 

evidence as well as the probative effect, or lack thereof, of the evidence. Id.

Counsel should be allowed wide latitude in arguing the evidence and the 

reasonable inferences from the evidence to the jury. Id. at 483. Control over 

counsel during closing argument is within the sound discretion of the trial court 

and will not be disturbed absent clear abuse of that discretion. Duke v. Jack in the 

Box E. Div., L.P., No. 14-15-00798-CV, 2017 WL 2561245, at *2 (Tex. App.—

Houston [14th Dist.] June 13, 2017, pet. denied) (mem. op.).

A. Counsel’s Remarks

To understand VRNO’s counsel’s closing remarks, we must first recall that 

Question no. 1 in the jury charge asked whether the intentional conduct of VRNO

proximately caused Jason’s death, and the accompanying two-part definition

defined “intentional conduct” as meaning “that one or more [VRNO] employee 

either (1) consciously desired the physical result of his actions or (2) knew that the 

result is substantially certain to follow from his actions.” In his remarks, defense 

counsel stated generally that appellants’ claim was that VRNO “intentionally 

caused [Jason’s] death,” “intentionally killed” Jason, and were “trying to kill” 

Jason, but counsel insisted, contrary to that claim, VRNO personnel were actively 

trying to help Jason, not kill him.

In specifically discussing the first part of the charge definition of intentional 

conduct— “consciously desired the physical result of his actions”—counsel 

likened the requirement to the Texas penal statute for murder, stating that it 

required evidence that a VRNO employee consciously wanted to cause Jason’s 

death. At this point, appellants’ counsel stated his first and only objection to this 

line of argument. Appellants’ counsel, however, did not state the complete grounds 

for his objection before the judge overruled the objection and instructed him to sit 
18

down. Counsel stated: “Excuse me, Your Honor. [H]e’s arguing the murder 

that’s—.”

10 This was also VRNO’s counsel’s only use of the word “murder” in his 

argument.

In discussing the second part of the definition— “knew that the result is 

substantially certain to follow from his actions”—VRNO’s counsel acknowledged 

that this was the section on which appellants were relying. He also emphasized the 

high bar set by the requirement of substantial certainty and urged the jury to

confine its consideration to the time period after Jason’s injury became known.

In his closing remarks, appellants’ counsel reiterated that appellants were not

claiming any VRNO personnel “consciously desired the physical result,” i.e., 

Jason’s death, but they knew untreated heatstroke is deadly and yet failed to timely 

and properly treat Jason. Appellants’ counsel also insisted that VRNO failed to 

follow its own procedures and that bad company policies and inadequate training 

and supervision equaled intent as defined in the second part of the definition. In 

direct response to defense counsel’s argument, appellants’ counsel stated, “don’t 

think because we didn’t prove they murdered him, that we didn’t prove that it was

substantially certain” that VRNO personnel’s inaction would lead to Jason’s death.

B. References to Intent to Kill

We begin our analysis with appellants’ complaint about VRNO’s counsel’s 

references to an intent to kill. Appellants state that VRNO’s counsel asserted

appellants claimed and had to prove VRNO personnel possessed an intent to kill 

Jason in order for appellants to be successful in the lawsuit. As set forth above, 

VRNO’s counsel did make several references to an intent to kill, but at no point 

did appellants object to those references. If the probable harm from an improper 

10 The judge had also earlier instructed VRNO’s counsel to sit down when he had made 

an objection during appellants’ counsel’s closing remarks.
19

jury argument is curable, then the error must be preserved by obtaining an adverse 

ruling on a timely objection, motion to instruct the jury, or motion for mistrial. 

Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per 

curiam); DeWolf v. Kohler, 452 S.W.3d 373, 396 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.). Only when argument is deemed so prejudicial and 

inflammatory that its impact would not be curable by an instruction to disregard by 

the trial court is no objection necessary. Clark v. Bres, 217 S.W.3d 501, 509 (Tex.

App.—Houston [14th Dist.] 2006, pet. denied). And even then, the complaint at 

least must be raised in a motion for new trial, as appellants did here. See Phillips v. 

Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); Clark, 217 S.W.3d at 509 n.1.

In order to show that VRNO’s counsel made an incurable argument, 

appellants must prove: (1) an improper argument was made; (2) it was not invited

or provoked; (3) it was not curable by a prompt withdrawal of the statement by 

counsel or a reprimand or instruction by the trial court; and (4) by its nature, 

degree, and extent, the argument constituted harmful error based on an 

examination of the entire record to determine the argument’s probable effect on a 

material finding. Clark, 217 S.W.3d at 509. The duration of the argument, whether 

it was repeated or abandoned, and whether there was cumulative error are factors 

for consideration. Id. Appellants must also show that the probability the improper 

argument caused harm is greater than the probability the verdict was grounded on 

proper proceedings and evidence. Id. Instances of truly incurable jury argument are 

rare. Phillips, 288 S.W.3d at 883. Appellants must demonstrate that “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.’” Id. (quoting Goforth v. Alvey, 153 Tex. 449, 

271 S.W.2d 404, 404 (1954)).
20

As stated above, VRNO’s counsel’s remarks must be viewed in light of the

definition of “intentional conduct” provided in the charge as meaning a VRNO 

employee either “consciously desired the physical result of his actions” or “knew 

that the result [wa]s substantially certain to follow from his actions.” In this light, it 

is clear that counsel’s remarks regarding an intent to kill were either a shorthand 

way to refer to the fact that appellants had to prove “intentional conduct” that 

resulted in Jason’s death or referenced the first part of the charge definition—

“consciously desired the physical result of his actions.” It appears from context 

that, at different points, defense counsel meant the remarks in each of these ways.

Regardless, VRNO’s counsel also made it clear that he understood that appellants 

were not basing their claim on the first part of the definition but instead were 

basing their claim on the second part— “knew that the result [wa]s substantially 

certain to follow from his actions.” While VRNO’s counsel suggested that to be 

successful under the first part of the definition, appellants would have to prove an 

intent to kill, he made a different argument in regards to the second part of the 

definition, emphasizing the high level of proof required to show substantial 

certainty and urging the jury to confine its consideration to the time period after 

Jason’s injury became known. Appellants’ trial counsel reiterated this dichotomy 

in his own remarks to the jury, explaining that they were not seeking a finding 

under the first part and thus did not have to prove an intent to kill.

Considering the entirety of the closing arguments and the record as a whole, 

VRNO’s counsel’s references to an intent to kill was not “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, 288 S.W.3d at 883. The probability that the improper jury argument 

caused harm is not greater than the probability that the verdict was grounded on 
21

proper proceedings and evidence. See Clark, 217 S.W.3d at 509. Even assuming 

the argument was improper, it was not incurable in nature. 

C. Reference to Murder

As explained above, the only reference VRNO’s counsel made to murder 

came when he stated that the first part of the court’s “intentional conduct”

definition was “similar to the Texas statute on murder” in that it required a VRNO 

employee to consciously desire Jason’s death. Even assuming that appellants’

counsel objected sufficiently to this argument and such argument was improper, 

based on the entire record of this case, we cannot say the argument, either alone or 

in combination with the other complained-of argument, probably caused the 

rendition of an improper judgment. See Tex. R. App. P. 44.1(a) (providing that no 

judgment may be reversed for error unless the error probably caused the rendition 

of an improper judgment or prevented the proper presentation of the case to the 

court of appeals); Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839–40 (Tex.

1979) (explaining that complainant must show that the probability an improper 

argument caused harm is greater than the probability that the verdict was grounded

on proper proceedings and evidence); Dallas Cty. v. Crestview Corners Car Wash, 

370 S.W.3d 25, 48 (Tex. App.—Dallas 2012, pet. denied) (holding arguments, 

although improper, did not either alone or in combination with other arguments

probably cause the rendition of an improper judgment.). Counsel’s comment was a 

clear attempt to explain the first part of the charge definition of “intentional 

conduct,” the part that both VRNO’s counsel and appellants’ counsel agreed was 

inapplicable to the case. In the absence of demonstrable harm from any of the 

closing remarks appellants complain about, we overrule appellants’ third issue.
22

Conclusion

Finding no merit in any of appellants’ issues, we affirm the trial court’s 

judgment.

/s/ Frances Bourliot

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.