In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00319-CV
ROYCE SIMMONS, Appellant
V.
RA EL-BEY, Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2022-003627-1
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Royce Simmons raises the following complaints in this appeal from a
jury’s verdict awarding his stepdaughter, appellee Ra El-Bey, damages for civil assault:
• The trial court lacked subject matter jurisdiction “ab initio” because El-Bey’s
initial petition sought damages “of $250,000, or less,” and her claims included
exemplary damages.
• The trial court erred by denying Simmons’s Motion for Judgment
Notwithstanding the Verdict (JNOV) based on the alleged jurisdictional defect.
• The trial court “abused its discretion and committed reversible error” by
denying Simmons’s motion for mistrial “after the jury was exposed, on two
separate occasions by two separate witnesses, to inadmissible extraneous
character evidence that [Simmons] had previously beaten” his ex-wives, “in
violation of Texas Rule of Evidence 404(b), after the trial court had already
admonished [El-Bey’s] counsel in chambers not to allow a repetition of such
testimony.”
We affirm.
Procedural Background
El-Bey sued Simmons and his son Jorden alleging that Simmons had assaulted
her when she went to pick up her son, A.B., at Jorden’s home. In this petition, she
alleged that the trial court had “jurisdiction over the controversy because the damages
[were] within the Court’s jurisdictional limits” and that she was seeking “monetary
relief of $250,000[] or less.”
The trial court granted Jorden a take-nothing summary judgment on El-Bey’s
premises-liability claim against him and severed that claim from El Bey’s civil assault
claim against Simmons. El-Bey then tried her assault claim against Simmons to a jury,
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which awarded her $100,000 for past physical pain and suffering and mental anguish;
$50,000 for future physical pain and suffering; $100,000 for past physical impairment;
$100,000 for physical impairment that in reasonable probability she will sustain in the
future; $100,000 for past disfigurement; and $50,000 for disfigurement that in
reasonable probability she will sustain in the future. The jury also awarded her
$50,000 in exemplary damages.
Two months after the trial ended, but before the trial court had signed a
judgment, El-Bey filed a motion seeking leave to amend her petition against Simmons
to change the amount-in-controversy allegation to seek “actual damages of $200,000,
any damages accrued due to the passage of time, exemplary damages, prejudgment
interest, post judgment interest and costs.” In response, Simmons filed the JNOV,
alleging for the first time that the county court at law did not have jurisdiction over
the case based on El-Bey’s pleadings and the proof at trial. Nevertheless, the trial
court granted El-Bey’s motions, and her first amended petition was file-stamped May
28, 2025––four months after the jury’s verdict. The trial court signed a judgment the
same day, awarding El-Bey $200,000 in actual damages and $50,000 in exemplary
damages, plus prejudgment and post-judgment interest.
Simmons filed a notice of appeal on July 1, 2025.
Jurisdiction Over Appeal
As a threshold matter, El-Bey contends that this court does not have
jurisdiction over the appeal because it was not timely filed and because Simmons’s
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counsel did not file a verified response to this court’s letter seeking an explanation for
the late filing. We disagree.
Simmons filed his notice of appeal within fifteen days after its due date,
impliedly seeking an extension of time to file an appeal. See Tex. R. App. P. 26.3;
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). His response to our inquiry about
the late filing––signed by his counsel––stated the following:
The late filing of the Notice of Appeal resulted from an inadvertent
calendaring miscalculation made during the coordination of multiple
litigation deadlines, including hearings and briefing in other matters
scheduled during the last two weeks of June 2025. Counsel believed,
based on an internal miscommunication and clerical entry error, that the
deadline to file the Notice of Appeal was July 1, 2025.
This response is sufficient to reasonably explain the late filing. See, e.g., Amegy
Bank of Tex., N.A. v. Titan Servs., LLC, No. 2-09-420-CV, 2010 WL 87095, at *1 (Tex.
App.—Fort Worth Jan. 7, 2010, no pet.) (mem. op.). Moreover, it did not need to be
verified because it was “within the personal knowledge of the attorney signing the
motion.” See Tex. R. App. P. 10.2(c).
Accordingly, we conclude that we have jurisdiction over this appeal.
Amount-In-Controversy Jurisdiction
In his first through third issues, Simmons contends that the trial court lacked
subject matter jurisdiction “ab initio” because the amount-in-controversy allegation in
El-Bey’s original petition exceeded the county court at law’s jurisdiction; he also
contends that the amended petition did not cure this jurisdictional defect.
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Applicable Law
County courts at law are courts of limited jurisdiction. United Servs. Auto. Ass’n
v. Brite, 215 S.W.3d 400, 401 (Tex. 2007). Jurisdiction for Tarrant County’s three
statutory county courts is prescribed in Texas Government Code Sections
25.0003 and 25.2222. See Tex. Gov’t Code §§ 25.0003, .2222.
Section 25.0003 contains a general jurisdictional grant and provides, in part,
that a statutory county court has “jurisdiction over all causes and proceedings, civil
and criminal, original and appellate, prescribed by law for county courts.”
Id. § 25.0003(a). Under the version of this section applicable to this case, a statutory
county court exercising concurrent jurisdiction “with the constitutional jurisdiction of
the county court has concurrent jurisdiction with the district court” in (1) “civil cases
in which the matter in controversy exceeds $500 but does not exceed
$250,000 excluding interest, statutory or punitive damages and penalties, and
attorney’s fees and costs, as alleged on the face of the petition”; and (2) “appeals of
final rulings and decisions of the division of workers’ compensation of the Texas
Department of Insurance regarding workers’ compensation claims, regardless of the
amount in controversy.” Id. § 25.0003(c)(1).
But Section 25.2222’s specific amount-in-controversy jurisdictional grant to
Tarrant County courts at law has a lower maximum amount in controversy for general
civil cases, providing that those county courts at law have concurrent jurisdiction with
district courts in “civil cases in which the matter in controversy exceeds $500 and
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does not exceed $200,000, excluding mandatory damages and penalties,[1] attorney’s
fees, interest, and costs.”2 Id. § 25.2222(b)(1) (emphasis added). A specific
jurisdictional grant for a particular court or county controls over a general one to the
extent of any conflict. Id. § 25.0001(a). Accordingly, the maximum amount in
controversy for Tarrant County statutory courts at law is $200,000.
The value of the matter in controversy is determined by the amount of
damages alleged by the plaintiff, “not on the amount the plaintiff is likely to recover.”
United Servs. Auto. Ass’n, 215 S.W.3d at 402–03. A petition that does not state facts
affirmatively showing that the court in which the action is brought has jurisdiction is
deficient. Id. at 402. However, such a defect can be remedied by pleading amendment
1
This court has held that Section 25.2222(b)(1) “excludes all penalties from the amount in controversy.” Sears, Roebuck & Co. v. Big Bend Motor Inn, Inc., 818 S.W.2d 542, 545–46 (Tex. App.––Fort Worth 1991, writ denied) (holding that because DTPA treble damages are “punitive in nature,” they are properly excluded from Section 25.2222’s amount in controversy); see Tex. Civ. Prac. & Rem. Code
§ 41.001(5) (defining exemplary damages as “any damages awarded as a penalty or by way of punishment but not for compensatory purposes”). Accordingly, Simmons’s assertion in his second issue––that El-Bey’s request for exemplary damages should be included as part of the amount in controversy for jurisdictional purposes––is incorrect.
2
Section 25.2222’s amount-in-controversy maximum for general civil cases has not been amended since 2015. Contrast Act of June 29, 2011, 86th Leg., R.S., ch. 3, § 4.40, 2011 Tex. Gen. Laws 5206, 5219 (increasing Tarrant County courts at law maximum amount-in-controversy jurisdiction for general civil cases to $200,000), with Act effective December 4, 2025, 89th Leg., 2nd C.S., ch. 7, H.B. 16, §§ 2.02, 2.19 (increasing Section 25.0003’s maximum amount in controversy to $325,000 for cases filed on or after December 4, 2025), and Act effective September 1, 2020, 86th Leg., R.S., ch. 696, § 2, 2020 Tex. Gen. Laws 1994, 1995 (increasing same to $250,000).
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or proof at trial if it does not affirmatively demonstrate a lack of jurisdiction. See Peek
v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989); French v. Moore,
169 S.W.3d 1, 8–10 (Tex. App.––Houston [1st Dist.] 2004, no pet.); Smith Detective
Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex.
App.—Dallas 1996, writ denied) (“A party may freely reduce its unliquidated claim if
the party pleads in good faith.”). Such an amendment can even be made after trial. See
Failing v. Equity Mgmt. Corp., 674 S.W.2d 906, 908–09 (Tex. App.—Houston [1st Dist.]
1984, no writ) (“Judicial economy, as well as the avoidance of multiple or repetit[i]ous
suits over the same subject matter between the same parties, favors the conclusion
that incremental attorney’s fees on appeal are a severable item of a plaintiff’s claim for
jurisdictional purposes.”). Although in amending her petition, a plaintiff may not
arbitrarily reduce a claim’s amount to confer jurisdiction on a trial court, a “plaintiff
with unliquidated claims [that] are not severable may nevertheless reduce those claims
and make them for a sum within the court’s jurisdiction.” Lucey v. Se. Tex. Emergency
Physicians Assocs., 802 S.W.2d 300, 304 (Tex. App.—El Paso 1990, writ denied).
Rule of Civil Procedure 66 provides that the trial court may allow pleadings to
be amended “if during the trial any defect, fault or omission in a pleading, either of
form or substance, is called to the attention of the court” and that it must do so
“when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the allowance of such amendment would
prejudice him in maintaining his action or defense upon the merits.” Tex. R. Civ. P.
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66; see also Tex. R. Civ. P. 63. Under Rules 63 and 66, the trial court has no discretion
to refuse an amendment unless the opposing party presents evidence of surprise or
prejudice or the amendment asserts a new cause of action or defense––and thus is
prejudicial on its face––and the opposing party objects to the amendment. Greenhalgh
v. Serv. Lloyds Ins., 787 S.W.2d 938, 939 (Tex. 1990). The party resisting the
amendment has the burden to show prejudice or surprise. Id. These rules and
principles apply even to post-verdict, prejudgment motions for leave to amend. See id.
Application
Here, Simmons raised the amount-in-controversy complaint for the first time
in his JNOV motion. He never responded directly to El-Bey’s motion for leave to
amend her petition, and he never alleged or provided proof of surprise or prejudice,
arguing only that her suit was void ab initio. Likewise, he makes no prejudice or
surprise argument in his brief. Because El-Bey sought and obtained leave to file an
amended pleading seeking damages within the trial court’s maximum amount in
controversy for general civil cases and reduced the total amount of damages sought so
as not to exceed that maximum, we conclude that the trial court had subject matter
jurisdiction to render its judgment.3 See, e.g., Smith, 938 S.W.2d at 747; Lucey,
3
The facts of this case are thus distinguishable from others in which the proof of unliquidated damages at trial exceeded the amount in controversy and the plaintiffs failed to amend their petitions to reduce the damages sought. See, e.g., United Servs. Auto. Ass’n, 215 S.W.3d at 402–03; H & S Supply Co. v. Oscar Renda Contracting, Inc., No. 2-02-093-CV, 2003 WL 1897584, at *3 & n.2 (Tex. App.—Fort Worth Apr. 17,
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802 S.W.2d at 304; Failing, 674 S.W.2d at 908–09. We therefore overrule his first,
second, and third issues.
Motion for Mistrial
In his fourth issue, Simmons contends that the trial court abused its discretion
by denying his motion for mistrial.
Applicable Facts
While A.B. was testifying about the assault of El-Bey on the first day of trial, he
stated, “At the time I called my grandmother, and I said, poppy, you won’t hit my
mom like you hit your other wives or ex wives.” Simmons’s counsel objected and
moved to strike the testimony. Although the trial court stated that it had not heard the
testimony, it sent the jury out of the courtroom and discussed the matter with the
attorneys. The trial court then admonished El-Bey’s counsel that allowing witnesses to
testify in “extended narratives” was creating a problem and warned, “We’re not going
to hear about that.”
Simmons’s counsel asked for a mistrial, but the trial court did not rule on the
motion; instead, it urged the attorneys to come to an agreement. On the record, the
attorneys agreed, “in lieu of a mistrial,” that El-Bey would dismiss her bystander claim
on behalf of A.B.4 and her claim for intentional infliction of emotional distress.
2003, no pet.) (mem. op.); Kitchen Designs, Inc. v. Wood, 584 S.W.2d 305, 306–07 (Tex. App.––Texarkana 1979, writ ref’d n.r.e.).
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El-Bey had initially brought her suit individually and as next friend for A.B.
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Later that day, El-Bey made the following statement when testifying about
what happened after she had been hit:
Q. . . . Was there blood on the ground?
A. There was blood on the ground. Can I testify to the statement that
[A.B.] made when he saw the blood on the ground?
Q. What did he say?
A. My mom is bleeding. You’re not going to hit my mom –
Q. Stop.
At the beginning of the second day of trial, Simmons’s counsel again moved
for a mistrial “[b]ecause there [had been] a repeat and a violation of the prior issue
during Ms. El-Bey’s testimony.” He argued that El-Bey had been about to make the
same statement that A.B. had:
And counsel caught her in mid-statement, and he motioned for her to
stop. I saw the motion. I heard what she said, and I’m sure the jury did
as well.
That by itself might not be grounds for a mistrial, but
compounded with what we already heard from the first time, I don’t see
how Mr. Simmons is going to get a fair trial now.
Counsel further argued that what El-Bey had started to say, and her counsel’s
subsequent motion and verbal instruction to her to stop, constituted fundamental
error that could not be cured with a motion to disregard.
The court refused to grant a mistrial.
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Complaint Not Preserved
Generally, to preserve error for appellate review, a motion for mistrial must be
made when an improper question is asked or an improper answer is given. Tisdall v.
Varebrook, No. 04-19-00538-CV, 2021 WL 3173914, at *9 (Tex. App.—San Antonio
July 28, 2021, no pet.) (mem. op.) (citing Rosewood Prop. Co. v. Hardy,
No. 05-94-01227-CV, 1995 WL 479656, at *13 (Tex. App.—Dallas Aug. 10, 1995, no
writ) (not designated for publication), as “recognizing that a slight delay in moving for
mistrial to avoid drawing attention to the error may be acceptable, but that a delay of
twenty-five questions and answers was unacceptable and the motion for mistrial was
untimely and any error was waived”).
Here, El-Bey was the last witness on the first day of trial; her truncated answer
about which Simmons complains occurred during her counsel’s direct examination.
Although El-Bey’s counsel rested after her testimony, Simmons made no complaint to
the trial court on the record at that time.5 The second day of trial did not take place
until eight days later. In making its ruling at that time, the trial court stated that it
could not remember such an exchange between El-Bey and her counsel. On these
facts, we conclude that Simmons’s motion for mistrial was not timely enough to
preserve error. See id.
5
A bench hearing was not recorded.
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However, even if Simmons’s motion had been timely, we would conclude that
the trial court did not abuse its discretion. Incurable harm from a witness’s testimony
is rare. Khan v. Chai Rd., Inc., No. 05-16-00346-CV, 2017 WL 3015727, at *2 (Tex.
App.—Dallas July 17, 2017, no pet.) (mem. op.). Here, even if the jury had perceived
El-Bey to be attempting to restate what A.B. had said, her counsel’s admonition to
stop––coupled with the trial judge’s sending the jury out of the courtroom after A.B.
made the statement––signaled to the jury that such testimony would be improper.
Based on the record as a whole, we hold that El-Bey’s reference was not so extreme
that a “juror of ordinary intelligence could have been persuaded . . . to agree to a
verdict contrary to that to which he would have agreed but for” that reference. See id.
(quoting Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009)).
We overrule Simmons’s fourth issue.
Conclusion
Having overruled Simmons’s four issues, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: August 13, 2026
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