Opinion issued July 21, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00587-CV
JOHN R. “JACK” CHRISTIE, Appellant
V.
BEATRICE A. HEITMANN, Appellee
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 16-DCV-231515
MEMORANDUM OPINION
This case involves a contract dispute stemming from the sale of property by
Appellant John R. “Jack” Christie to Appellee Beatrice A. Heitmann and her
subsequent sale of the property to a third party. Christie sued Heitmann for breach
of contract and fraud, claiming Heitmann owed him money from the subsequent sale of the property. The case proceeded to trial and the jury returned a verdict in
favor of Heitmann, rejecting Christie’s claims.
In three issues, Christie argues (1) there is insufficient evidence to support
the jury’s finding that Heitmann did not breach her contract with him, (2) there is
insufficient evidence to support the jury’s finding that Heitmann did not commit
fraud, and (3) Heitmann’s counsel’s argument to the jury on how it should answer
the jury questions constituted reversible error.
We affirm the trial court’s judgment.
Background
In 2011, Heitmann purchased real property and a storage business on the
property (the “Property”) from Christie for $2.2 million. At Christie’s suggestion,
Heitmann and Christie executed two promissory notes for purchase of the
Property. The first note, signed on June 1, 2011, was for $1,641,000 (“First Note”)
and was secured by a deed of trust. It was filed in the Fort Bend County Real
Property Records. The second note, which was unsecured, was signed on June 15,
2011, and was for $289,000 (“Second Note”).1 The Second Note provided:
The full purchase price of the property is $2.2 million. The amount of
$150,000.00 was paid to the Lender [Christie] in cash as a down
payment plus $70,000.00 in checks in the Contract for Deed. This left
a balance of $289,000 as a personal loan plus $1,691,000.00 as a
1
As set forth in the text of the Second Note, the promissory notes plus $220,000 in
cash and checks remitted to Christie totaled $2.2 million.
2
Promissory Note which equals $1,980,000.00. This amount is shown
on the Loan Amortization Schedule.
The note shall be fully paid on 5/30/2031 or before, on the sale of the
property.
Upon the sale of the property, the lender of this note will receive an
additional amount up to $800,000.00 if sold for $3.8 million. If the
property sells for more than $3.8 million, the lender gets an extra 25%
of the profit for the first eight years; then the 25% will be reduced by
5% for each year thereafter.2
If the property sells for less than $3.8 million, the profit will be split
50-50%.
This note may be prepaid at any time without notice, in whole or in
part, and without incurring any penalty or bonus.
Heitmann testified that she paid interest at the rate of 6.7 percent on her loan from
Christie for the Property’s purchase.3
When Heitmann purchased the Property, she purchased both the real
property and a mini-storage business on it. Eventually, she and her husband added
a business called Trailer World and RV Park (“Trailer World”) to the Property.
In 2013, Heitmann decided to refinance the Property. She testified that she
decided to refinance partly because she was able to obtain a lower interest rate
2
Heitmann refers to this paragraph as the “bonus provision” and for consistency’s
sake, so do we.
3
The First Note identified an annual interest rate of 9.18 percent. The Second Note
did not identify an interest rate. Both notes were twenty-year notes that would
have matured on May 30, 2031.
3
from the bank, and partly so she could pay off Christie and eliminate the bonus
provision in the Second Note. At Heitmann’s request, Christie faxed her a payoff
amount for the two notes dated June 27, 2013. The handwritten, signed payoff
notice—which was on Christie’s chiropractic office letterhead—stated that the
“June 28th payoff balance” was $1,879,076.81 in principal and $10,516.52 in
interest. In 2013, Heitmann paid Christie the amount she owed according to his
handwritten note and he accepted the payment.
In 2014, Heitmann and her husband became interested in selling the
Property and Trailer World. During that time, she learned that Christie had placed
a lien on the Property, even though he had been paid the outstanding amounts on
the notes. Heitmann hired counsel and filed a lawsuit to secure removal of the lien
from the Property.
In 2014, BJ Prendergast became interested in purchasing the Property and
Trailer World. A few years later, in 2017, BJ Prendergast negotiated with
Heitmann a purchase price of $1.8 million for the real property,4 $2.4 million for
the trailer business, and $800,000 for the storage business. The purchase closed in
2020. Although Heitmann believed her debt to Christie had been paid in full,
Christie claimed he was entitled to a bonus stemming from the sale to BJ
Prendergast because the total purchase price for the Property was for a sum greater 4
The Fort Bend County tax appraisal on the Property and improvements in 2017
was $1,768,200.
4
than $3.8 million. Christie filed a counterclaim against Heitman for breach of
contract claiming she failed to pay him the bonus contemplated in the Second Note
after selling the Property and Trailer World to BJ Prendergast.5 He also asserted a
claim for fraud alleging Heitmann had entered into the Second Note with the intent
to defraud Christie because she “had no intention of honoring the obligations of the
Second Note, despite her representations she would do so.”
Trial ensued on Christie’s breach of contract and fraud counterclaims.6
Heitmann, BJ Prendergast, and Christie testified live, and an appraisal expert
testified for Christie by deposition. The trial court granted a directed verdict on the
fraudulent inducement claim in Heitmann’s favor, leaving only the breach of
contract and common law fraud claims for the jury to decide.
Jury Charge
The jury charge gave the jury two instructions. First, it instructed the jury
that “The ‘Agreement’ at issue [was] the $289,000.00 Promissory Note dated June
15, 2011 between Plaintiff and Defendant.” Second, the jury was instructed that
‘“Misrepresentation’ means a false statement of fact.”
5
Christie testified at trial that he is entitled to $1.1 million as a result of Heitmann’s
sale of the Property. That sum comprises $800,000 because the sale price
exceeded $3.8 million, plus an additional $300,000 that represents 25 percent of
the $1.2 million by which the sale price exceeded the $3.8 million threshold
mentioned in the Second Note.
6
The counterclaims were for breach of contract, common law fraud, and fraudulent
inducement. Heitmann’s only claim pertained to the lien, which was resolved by
partial summary judgment.
5
The jury was asked to answer five questions: (1) Did Heitmann fail to
comply with the terms of the Agreement? (2) If yes, was Heitmann excused from
failure to comply with the Agreement? (3) If yes to question 1 and no to question
2, what sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Christie for his damages resulting from Heitmann’s failure to comply?
(4) Did Heitmann commit fraud against Christie? and (5) If yes, what sum of
money, if paid now in cash, would compensate Christie for his damages, if any,
resulting from such fraud? In a unanimous verdict, the jury found in favor of
Heitmann on Christie’s breach of contract and fraud claims. The trial court entered
judgment on the jury’s verdict. This appeal ensued.
Sufficiency of the Evidence
In his first two issues, Christie argues there is factually insufficient evidence
to support the jury’s finding that Heitmann did not breach the Second Note and
that Heitmann did not commit fraud.7
When reviewing a factual sufficiency challenge, we must consider and
weigh all of the evidence, both for and against the finding. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001). Our review of the evidence must be
7
In his stated issues, Christie argues there is “insufficient evidence” to support the
jury’s verdict on the contract and fraud claims. But in the section of his brief titled
“Arguments and Authority” he sets forth the standard of review for factual
sufficiency only. We thus limit our review to the factual sufficiency of the jury’s
verdict.
6
conducted in a neutral light. Altice v. Hernandez, 668 S.W.3d 399, 410 (Tex.
App.—Houston [1st Dist.] 2022, no pet.). When a party attacks the factual
sufficiency of an adverse finding on an issue for which it had the burden of proof,
he must demonstrate on appeal that “the adverse finding is against the great weight
and preponderance of the evidence.” Dow Chem. Co., 46 S.W.3d at 242; Capcor at
KirbyMain, L.L.C. v. Moody Nat’l Kirby Houston S, L.L.C., 509 S.W.3d 379, 384
(Tex. App.—Houston [1st Dist.] 2014, no pet.). We will set aside the verdict only
if the evidence in support of the finding is so weak as to render the verdict clearly
wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);
Trimcos, LLC v. Aquatic Sols. of Tex., No. 01-23-00955-CV, 2025 WL 2393909, at
*2 (Tex. App.—Houston [1st Dist.] Aug. 19, 2025, no pet.) (mem. op.).
In conducting our review, we may not substitute our judgment for that of the
jury. The jury is the “sole judge of the credibility of witnesses and the weight to be
given to their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
761 (Tex. 2003). As the sole judge of witnesses’ credibility, the jury may give
credence to one witness and disbelieve another. City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005).
Breach of Contract
To prevail on his breach of contract claim, Christie had to establish (1) the
existence of a valid contract; (2) that he tendered performance or was excused from
7
doing so; (3) that Heitmann breached the terms of the contract; and (4) that he
sustained damages as a result. Foster v. Nat’l Collegiate Student Loan Tr. 2007-4,
No. 01-17-00253-CV, 2018 WL 1095760, at *9 (Tex. App.—Houston [1st Dist.]
Mar. 1, 2018, no pet.) (mem. op.) (citing West v. Triple B Servs., LLP, 264 S.W.3d
440, 446 (Tex. App.–Houston [14th Dist.] 2008, no pet.)).8
In response to Question No. 1, the jury found that Heitmann did not breach
the terms of the Second Note—the third element of a claim for breach of
contract—and it therefore did not reach Question No. 3 regarding damages.
Christie argues that “Heitmann agreed to pay [him] a portion of the sales price for
the property if it resold for over $2,200,000.000” [sic] and that he “did not release
Heitmann from her obligations under the Second Note when he released the first
note.” He argues that while the jury’s role as fact finder “certainly involves
weighing the credibility of the witnesses,” the issue of whether Heitmann breached
the Second Note was not one of credibility. He posits that Heitmann’s argument to
the jury was that the “payment-upon-sale requirement under the Second Note was
a ‘bonus’ payment that was no longer owed once the note was paid off” and that
8
The elements of a valid contract are: (1) an offer, (2) an acceptance, (3) a meeting
of the minds, (4) each party’s consent to the terms, and (5) execution and delivery
of the contract with the intent that it be mutual and binding. Foster v. Nat’l
Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 WL 1095760, at
*9 (Tex. App.—Houston [1st Dist.] Mar. 1, 2018, no pet.) (mem. op.) (citing
Beverick v. Koch Power, Inc., 186 S.W.3d 145, 150 (Tex. App.–Houston [1st
Dist.] 2005, pet. denied)).
8
this argument was not contemplated by Jury Question No. 1, which asked whether
Heitmann failed to comply with the Second Note’s requirements. We disagree.
In the context of contractual interpretation, the jury may resolve questions
regarding contract formation—that is, whether the parties agreed to the terms of an
agreement. See Foreca, S.A., v. GRD Dev. Co. Inc., 758 S.W.2d 744, 745–46 (Tex.
1988) (whether parties intended to execute binding contract often question for
factfinder) (citations omitted). “When a court determines that a contract is
ambiguous, the meaning becomes a fact issue for the jury and extraneous evidence
may be admitted to help determine the language’s meaning.” Barrow-Shaver Res.
Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 480 (Tex. 2019) (citing Italian
Cowboy Partners, Ltd. v. Prudential Ins. of Am., 341 S.W.3d 323, 333–34 (Tex.
2011)). A contract is ambiguous if it “contains two or more reasonable
interpretations.” Id. at 479 (citing El Paso Field Servs., L.P. v. MasTec N. Am.,
Inc., 389 S.W.3d 802, 806 (Tex. 2012)). While the trial court did not make an
express finding that the Second Note was ambiguous, the submission of questions
to the jury on the issue of breach and damages required the jury to determine which
of the parties’ competing interpretations of the Second Note the parties intended.
See Exxon Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299, 302 (Tex. 1993)
(“While the trial court here never made an express finding that the contract was
ambiguous, such a determination was necessary to its submission of a jury question
9
inquiring into the amount of WTG’s take-or-pay liability, which required the jury
to determine on the basis of extrinsic evidence which of the interpretations of the
take-or-pay provision the parties intended.”) (emphasis in original) (citing Neece v.
A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 599 (1959) (holding that in
submitting issues to jury in order to ascertain parties’ agreement, “the trial judge
evidently considered that the written instrument was ambiguous”)); see also
Sifuentes v. Carrillo, 982 S.W.2d 500, 504 (Tex. App.—San Antonio 1998, pet.
denied) (“In the absence of an express finding of ambiguity, the trial judge’s
submission of a jury question on a contract raises the inference that the trial court
found the contract to be ambiguous.”) (citing Exxon Corp., 868 S.W.2d at 302). If
the trial court had not considered the contract ambiguous, it “could only have
interpreted it as a matter of law.” Exxon Corp., 868 S.W.2d at 302.9, 10
Contrary to Christie’s argument on appeal, there was a dispute as to whether
Heitmann had any remaining obligations to Christie under the Second Note after
9
“A contract is not ambiguous if it can be given a definite or certain meaning as a
matter of law.” Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940
S.W.2d 587, 589 (Tex. 1996) (citations omitted). If a contract is unambiguous,
“the courts will give effect to the intention of the parties as expressed or as is
apparent in the writing.” Exxon Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299,
302 (Tex. 1993) (emphasis in original) (quoting Sun Oil Co. (Delaware) v.
Madeley, 626 S.W.2d 726, 731 (Tex. 1981)).
10
It is not clear from the appellate record whether Heitmann’s motion for summary
judgment—which resulted in the trial court’s finding that there was not a lien on
the Property—sought relief on any of Christie’s counterclaims. The partial
summary judgment order indicates that the motion was granted in part and denied
in part, but the summary judgment pleadings are not in the appellate record.
10
repayment—indeed, that was the crux of the case. The jury was faced with two
competing theories as to the meaning of the bonus language in the Second Note
and the sentence about prepayment “without incurring any penalty or bonus.”
According to Christie, Heitmann did “not dispute that the Second Note required
her to pay Christie upon resale of the property.” Rather, she argued at trial that she
“should not have had to comply with that requirement because Christie’s
acceptance of the loan repayment somehow invalidated his right to recover
proceeds-based payment upon a subsequent sale.” But that is not what Heitmann
testified.
Heitmann testified that there was no language in the Second Note indicating
that Christie would be entitled to a bonus if a sale occurred after he was paid.
Heitmann testified that the only part of the Second Note that contemplated a bonus
referred to money Christie would get if she sold the Property before Christie was
repaid. According to Heitmann, when she negotiated the Second Note, she
understood that if she paid Christie off before the notes matured, she would not
owe him anything else—hence, the language in the Second Note about prepayment
“without incurring any penalty or bonus.” Heitmann testified there was nothing in
the Second Note that could have been construed as requiring a “bonus” beyond the
amount to be paid if the Property was sold for $3.8 million or more after the notes
were paid off. She testified she “definitely [would] not” have agreed to the Second
11
Note if she thought she would owe additional money to Christie after paying off
the notes.
Heitmann testified that she told Christie by text that she was going to pay
him in full on both notes. He called her afterward and asked, “Is the paragraph still
in effect?” And when she said “no,” he hung up on her. Heitmann testified that
there is no language in the Second Note that states the bonus survives the payoff of
the note: “If I pay him off, it’s paid.” Heitmann testified that she declined to sign a
document prepared by Christie that would have expressly required her to agree that
the bonus provision of the Second Note would remain in effect after the Second
Note was paid.11
The jury thus heard conflicting testimony from Heitmann and Christie and
examined the Second Note and the exhibit regarding Christie’s failed attempt to
have Heitmann execute an acknowledgement about the bonus surviving any
prepayment. The jury was free to make a credibility finding as to whether to
believe Heitmann or Christie, whose theories as to the meaning of the prepayment
language were mutually exclusive. See Allstate Tex. Lloyds v. Mason, 123 S.W.3d
11
Christie argues in his appellate brief that the exhibit reflecting his attempt to have
Heitmann sign a document acknowledging the bonus provision would “remain[] in
full force and effect after the payment” of the Second Note was “not proper for the
jury’s consideration under the parol evidence rule.” However, Christie did not
object to the admission of the exhibit during trial. As such, he is precluded from
objecting to the evidence on appeal. Eaves v. Unifund CCR Partners, 301 S.W.3d
402, 405 (Tex. App.—El Paso 2009, no pet.) (citing cases holding parol evidence
objection not preserved when raised for first time on appeal).
12
690, 703 (Tex. App.—Fort Worth 2003, no pet.) (“With competing contentions
supported by expert witnesses on both sides, the burden fell on the jury to
determine which contention was more credible.”) (citing Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000) (“Under established Texas
jurisprudence, a reviewing court must defer to the fact-finder’s credibility
determinations because the jury is the exclusive judge of the facts, the witnesses’
credibility, and the weight given to their testimony.”) (Baker, J., concurring in part
and dissenting in part).
Having reviewed the evidence in support of both theories in a neutral light,
we conclude that the evidence supporting the jury’s determination that Heitmann
did not breach the Second Note—presumably because they concluded her
prepayment extinguished the bonus language—was not so weak or the evidence to
the contrary so overwhelming as to require the jury’s answer as to breach of
contract to be set aside. Given the parties’ testimony and the language of the
Second Note, coupled with the other exhibits, we hold there was factually
sufficient evidence for the jury to conclude that Heitmann did not breach the terms
of the Second Note. We overrule Christie’s first issue.
Fraud
Christie argues in his second issue that Heitmann “acted fraudulently both in
her initial execution of the Second Note as well as her subsequent blatant attempts
13
to sidestep her obligations thereunder.” He argues that Heitmann knew the Second
Note “was designed to protect Christie’s investment in the Property, yet Heitmann
argued at trial that a simple refinance of the Property was sufficient to erase the
Second Note.” He argues that to avoid her contractual obligations, Heitmann
valued the Property at $1.8 million in her resale despite its actual value of $4.61
million. Thus, he argues, “Heitmann committed a fraudulent breach of contract
upon Christie by entering into the Second Note with an escape plan in mind and
subsequently manipulating the resale in 2020 in such a way as to ensure she would
not have to pay Christie under [the] Second Note.”
To prevail on his fraud claim, Christie had to establish that Heitmann made
(1) a material misrepresentation, (2) that was either known to be false when made
or was asserted without knowledge of its truth, (3) that was intended to be acted
upon, (4) that was relied upon, and (5) that caused injury. Boeing Co. v. Sw.
Airlines Pilots Ass’n, 716 S.W.3d 140, 150 n. 19 (Tex. 2025) (citation omitted).12
The jury found that Heitmann did not breach the Second Note by failing to
pay Christie a bonus after the sale of the Property to BJ Prendergast. And we have
concluded there is factually sufficient evidence supporting the jury’s finding on
that issue. The fact that the jury found Christie was not entitled to a payment after
the sale of the Property negates the injury element of Christie’s fraud claim. That 12
The jury charge combined the fourth and fifth fraud elements into a single
element.
14
is, the only “injury” which Christie could have suffered with respect to his fraud
claim is Heitmann’s failure to pay him a bonus after the sale of the Property to BJ
Prendergast. But in finding that Heitmann did not breach the Second Note—even
though she did not pay the bonus after the sale of the Property—the jury
necessarily found Christie was not entitled to the bonus payment. Thus, the jury
implicitly determined that Christie was not injured, negating his fraud claim.
Given the absence of an injury, we conclude there is factually sufficient
evidence supporting the jury’s finding that Heitmann did not commit fraud. See
Smitherman v. Bank of Am., N.A., No. 14-14-00550-CV, 2015 WL 1622180, at *3
n.3 (Tex. App.—Houston [14th Dist.] Apr. 7, 2015, pet. denied) (mem. op.)
(“[L]ack of damages or injury would vitiate any claim of fraud.”); Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143, 154 (Tex. 2015) (stating that if damages
were not recoverable, “fraud claim would fail for want of an appropriate damages
finding”). Christie did not establish that the adverse finding was against the great
weight and preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at
242.13
We overrule Christie’s second issue.
13
We need not address Christie’s argument about the appraisal of the Property
because it is based on his theory that he was entitled to the bonus payment.
Because the jury found there was no breach, it necessarily found Christie was not
entitled to the bonus. Thus, any argument about the amount to which he was
entitled—based on his expert’s appraisal testimony—is not relevant to our
analysis.
15
Improper Jury Argument
In his third issue, Christie argues that Heitmann’s counsel “improperly and
incurably advised the jury of the effect of answering ‘no’” to questions on the jury
charge. Specifically, Christie complains of the following comments during
Heitmann’s counsel’s closing argument:
• “You write no in there [to Question No. 1] and you’re done. That’s all
you have to do. No, done. You don’t have to answer anything else.”
• “But remember, if you say no to Question 1, you don’t even have to
answer this one. Just write no, and we’re out of here[.]”
• “Two no’s and you’re done. You’re absolutely done. Ms. Heitmann is
done. This case is done. We can all be done.”
• “We are done. We are done. As soon as you finish your deliberations and
bring back a ‘no’ to Question 1, and a ‘no’ to Question 4.”
Christie contends these remarks were an attempt “to have the jury decide the
case not based on its merits, but based on their own convenience.” Christie did not
object to any of these remarks during closing. Heitmann argues that Christie thus
failed to preserve this issue for appeal. Christie argues it was not necessary for him
to object in the trial court because “the conduct or comment [could not have been]
rendered harmless by proper instruction.”
“[A] party waives an objection to improper jury argument if he does not
object immediately after the contested statement is made or preserve the issue in a
motion for new trial.” In re C.H., No. 02-13-00312-CV, 2014 WL 3891636, at *1
16
(Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem. op.) (citing TEX. R. CIV. P.
324(b)(5)). “To preserve [their] improper-jury-argument complaint for appeal, [the
appellants] were required to interpose the same objection in the trial court that they
raise here.” Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d 627, 650
(Tex. App.—Houston [1st Dist.] 2021, pet. denied) (citing TEX. R. APP. P. 33.1(a)).
The Texas Supreme Court established a four-pronged analysis regarding the
preservation of appeal for improper jury argument. See Standard Fire Ins. Co. v.
Reese, 584 S.W.2d 835, 839 (Tex. 1979) (stating that to preserve appeal of
improper jury argument, appellant must prove “(1) an error (2) that was not invited
or provoked, (3) that was preserved by the proper trial predicate, such as an
objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by
an instruction, a prompt withdrawal of the statement, or a reprimand by the judge”)
(citing 3 MCDONALD, TEXAS CIVIL PRACTICE § 13.17.2 (1970)).
The only exception to the preservation requirement for jury argument is in
those “rare instances [where] the probable harm or prejudice [from the jury
argument] cannot be cured.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d
678, 680 (Tex. 2008). The test to determine whether improper jury argument is
curable is “whether the argument, considered in its proper setting, was reasonably
calculated to cause such prejudice to the opposing litigant that a withdrawal by
counsel or an instruction by the court, or both, could not eliminate the probability
17
that it resulted in an improper verdict.” Alonzo v. John, 689 S.W.3d 911, 913 (Tex.
2024) (quoting Living Ctrs., 256 S.W.3d at 681); see Phillips v. Bramlett, 288
S.W.3d 876, 883 (Tex. 2009) (“A complaint of incurable argument may be
asserted and preserved in a motion for new trial, even without a complaint and
ruling during the trial.”) (citing TEX. R. CIV. P. 324(b)(5)).14
Christie stated in his motion for new trial that Heitmann’s counsel’s
argument “was incurable when he informed the jury of the effect of their answers
by arguing that If you answer no to questions 1 and 2, you can go home.”
(Emphasis in original.) Our sister court has addressed and rejected this very issue
argument. In Chatman v. Ferd Staffel Co., the appellant objected to a similar jury
argument:
Appellee’s counsel, in argument to the jury, stated that since all other
issues were conditioned on a negative answer to the first, if the first
issue was answered in the affirmative it would not be necessary to
answer the rest, “and we can go home.” Appellant objected neither to
the argument nor the conditional submission. He now says this
14
The Texas Supreme Court has identified examples of the “rare instances” when
probable harm or prejudice cannot be cured. For example, “appeals to racial
prejudice adversely affect the fairness and equality of justice rendered by courts
because they improperly induce consideration of a party’s race to be used as a
factor in the jury’s decision.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d
678, 680 (Tex. 2008) (citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840
(1979)). In addition, “[u]nsupported, extreme, and personal attacks on opposing
parties and witnesses can similarly compromise the basic premise that a trial
provides impartial, equal justice.” Id. (citing Reese, 584 S.W.3d at 840). And
“accusing the opposing party of manipulating a witness, without evidence of
witness tampering, can be incurable, harmful argument.” Id. (citing Howsley &
Jacobs v. Kendall, 376 S.W.2d 562, 565–66 (Tex. 1964)).
18
argument was erroneous as improperly informing the jury of the effect
of its answers. It told the jury little more than did the court’s charge
with appellant’s acquiescence, and hence was not reversible error.
362 S.W.2d 173, 174 (Tex. App.—Waco 1962, writ ref’d n.r.e.) (citing Grieger v.
Vega, 153 Tex. 498, 271 S.W.2d 85, 87 (1954)).15
As in Chatman, not only did Christie’s counsel fail to object during the
argument, he also acquiesced to the conditional questions in the jury charge. Jury
Questions No. 2, No. 3, and No. 5 were predicated on affirmative answers to
Questions No. 1 and No. 4. The jury charge also provided the following
admonition:
Do not decide who you think should win before you answer the
questions, and then just answer the questions to match your decision.
Answer each question carefully without considering who will win. Do
not discuss or consider the effect that your answers will have.
15
The Texas Supreme Court has “recognized that a strict rule against telling the jury
the effect of its answers ignores reality in most cases” and limited the rule
regarding telling juries the results of their decisions to cases where the effect of
answers is not obvious:
The spirit of our practice of submitting cases on special issues would
be violated if jurors were informed either by the court or by counsel
of the effect of their answers, but where the effect is so obvious that
any juror with ordinary intelligence would know its effect, neither
the letter nor the spirit of the rule is violated by a charge which
assumes such knowledge.
H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 26 (Tex. 1998) (quoting Grieger
v. Vega, 153 Tex. 498, 271 S.W.2d 85, 87 (1954)).
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Given this directive and the instructions given in answering Questions No. 2, No.
3, and No. 5, the argument at issue “told the jury little more than did the court’s
charge[.]” See Chatman, 362 S.W.2d at 174.
Assuming without deciding that Christie preserved his issue with respect to
the jury argument, we hold that the remarks were not harmful. We overrule
Christie’s third issue.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
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