law-jury-charge-error | erroneous jury instructions | failure to submit issue to the jury |
JURY CHARGE ERRORS, INCORRECT INSTRUCTIONS TO THE JURY, OTHER
Rule 274 of the Texas Rules of Civil Procedure addresses objections and requests related to the jury charge. It
provides as follows:
A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the
objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission,
or fault in pleading, is waived unless specifically included in the objections. When the complaining party's
objection, or requested question, definition, or instruction is, in the opinion of the appellate court,
obscured or concealed by voluminous unfounded objections, minute differentiations or numerous
unnecessary requests, such objection or request shall be untenable. No objection to one part of the
charge may be adopted and applied to any other part of the charge by reference only.
TEX.R. CIV. P. 274. To preserve error, the complaining party must specifically object, clearly identify the error,
and explain the grounds for the objection. In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003). The primary purpose
served by objections to a court charge is to apprise the trial court of error, thus affording the court the
opportunity to correct the error. See Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987); Carr v. Weiss, 984 S.W.
2d 753, 766 (Tex. App.-Amarillo 1999, pet. denied). Where a party's objections are too general and too
profuse it cannot be said that the trial court was fully cognizant of the grounds of the objection and deliberately
chose to overrule it. See Monsanto Co. v. Milam, 494 S.W.2d 534, 536-37 (Tex.1973). Thus, where a party's
objection is obscured or concealed among voluminous, general, unfounded objections, it will not preserve
error. See TEX.R. CIV. P. 274.
To preserve a charge-error complaint for appellate review, the objecting party must point out distinctly the
objectionable matter and the grounds of the objection. Tex. R. Civ. P. 274; Chambers v. Equity Bank, SSB,
319 S.W.3d 892, 898 (Tex. App.—Texarkana 2010, no pet.). Any complaint as to a question or instruction on
account of any defect is waived unless specifically included in the objections. Tex. R. Civ. P. 274. “The
cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity
to correct it.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008).
Further, the complaints on appeal must comport with the arguments made in the trial court. See In re A.V., 113
S.W.3d 355, 362 (Tex. 2003); see also Wackenhut Corrections Corp. v. De La Rosa, 305 S.W.3d 594, 616
(Tex. App.—Corpus Christi 2009, no pet.). Accordingly, an objection made during trial which is different from
the argument urged on appeal presents nothing for appellate review. Chambers, 319 S.W.3d at 898.
The trial court is sufficiently aware of the complaint if the objection clearly designates the alleged error and
specifically explains the basis for the complaint such that a reviewing court may conclude the trial court
understood the ground of the complaint and deliberately chose to overrule it. Carousel’s Creamery, L.L.C. v.
Marble Slab Creamery, Inc., 134 S.W.3d 385, 404–05 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d).
JURY CHARGE AND CHARGING ERROR - ERRONEOUS INSTRUCTIONS
The court of appeals reviews charge error under an abuse of discretion standard. See Shupe v. Lingafelter,
192 S.W.3d 577, 579 (Tex. 2006); Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). To
obtain reversal of a judgment based on charge error, appellants must show the claimed errors probably
caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1).
A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Tex.
R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). The goal of the jury charge
is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely.
Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex. 1999). Toward that end, the trial court enjoys
broad discretion so long as the charge is legally correct. See id.
A judgment will not be reversed for charge error unless the error was harmful because it probably caused the
rendition of an improper verdict or probably prevented the party from properly presenting the case to the
appellate courts. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). Charge
error is generally considered harmful if it relates to a contested, critical issue. Id.
In a jury trial, the trial court shall submit “such instructions and definitions as shall be proper to enable the jury
to render a verdict.” TEX. R. CIV. P. 277. A valid instruction (1) assists the jury, (2) accurately states the law,
and (3) finds support in the pleadings and evidence. Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex.
2002). The trial court has considerable discretion in deciding whether a proposed instruction is necessary and
proper to submit to the jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997); City of The
Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth 2008, pet. dism’d) (“Indeed,
a trial court is afforded even more discretion when submitting instructions than when submitting questions.”
(citing Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex. App.—San Antonio 1998, pet. denied))).
We will not disturb the trial court’s decision on which instructions to submit to the jury absent an abuse of
discretion. McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 584 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied). If the trial court submits an incorrect jury instruction, we reverse only if the record shows that the
given instruction was reasonably calculated to, and probably did, cause the rendition of an improper judgment.
Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) (citing Reinhart v. Young, 906 S.W.2d
471, 473 (Tex. 1995), and TEX. R. APP. P. 61.1(a)).
We review a trial court’s decision to refuse an instruction in its charge for an abuse of discretion. Dew v.
Crown Derrick Erectors, Inc., 208 S.W.3d 448, 456 (Tex. 2006). “If an instruction might aid the jury in
answering the issues presented to them, or if there is any support in the evidence for an instruction, the
instruction is proper.” Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam); see
also TEX. R. CIV. P. 278 (addressing submission of questions, definitions, and instructions to jury); Dew, 208 S.
W.3d at 456 (“A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise
an issue.”). A trial court’s error in refusing an instruction is reversible, however, only if it “probably caused the
rendition of an improper judgment.” Dew, 208 S.W.3d at 456; see also TEX. R. APP. P. 44.1(a) (addressing
reversible error in civil cases).
HARMFUL ERROR ANALYSIS, PRESERVATION OR ERROR - WAIVER OF COMPLAINT
When an incomplete theory is submitted without complaint, the parties are deemed to have waived a jury trial
on the omitted elements and to have agreed to submit the elements to the trial court. Tex. R. Civ. P. 279; Gulf
States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 2002). Rule 279 provides that the trial judge may make
written findings on the omitted elements at a party’s request. Tex. R. Civ. P. 279. However, when, as here, the
trial court does not make written findings, the omitted elements are deemed found by the court in a manner
supporting the judgment if the deemed findings are supported by some evidence. In re J.F.C., 96 S.W.3d 256,
262–63 (Tex. 2002).
A trial court has broad discretion in submitting its jury charge, and we review a complaint regarding the
submission of jury questions for an abuse of discretion. In re D.R., 177 S.W.3d 574, 581 (Tex. App.--Houston
[1st Dist.] 2005, pet. denied).
On appeal, we reverse for error in the jury charge only, if after considering the record as a whole, including the
pleadings, the evidence presented at trial, and the charge in its entirety, we conclude the error probably
caused rendition of an improper verdict or probably prevented the appellant from presenting the case to the
appellate court. See Tex. R. App. P. 44.1; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003);
Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App.--Houston [1st Dist.] 2007, no pet.). "Submission of an
improper jury question can be harmless error if the jury's answers to other questions render the improper
question immaterial." City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). "A jury question is
considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter
the effect of the verdict." Id. "Submission of an immaterial issue is not harmful error unless the submission
confused or misled the jury." Id. "When determining whether a particular question could have confused or
misled the jury, we consider its probable effect on the minds of the jury in the light of the charge as a whole."
Id. (citations omitted).
Air Products & Chemicals Inc. v. Odfjell Seachem (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(jury charge error claim overruled, harmful error analysis, negligence per se claim, amending pleadings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00591-CV Air Products & Chemicals Inc. v. Odfjell Seachem A/S, Odfjell Asia Pte. Ltd., and Odfjell
Singapore Pte., Ltd Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
During the charge conference, AP generally objected to questions one and two of the jury charge on the
ground that there should be "no apportionment." AP requested that the trial court modify these questions so
that "the jury not be allowed to apportion liability between [OTH] and [Seachem]." The trial court overruled this
objection, and, as set out above, submitted question number one, which asked the jury,
Did the negligence, if any, of those named below proximately cause the contamination in question?
WPS, Inc. v. Enervest Operating, LLC (pdf) (Tex.App.- Houston [1st. Dist.] Nov. 23, 2009)(Taft)
(jury charge error claim rejected, juror misconduct affidavit properly struck as inadmissible)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00759-CV WPS, Inc. v. Enervest Operating, LLC
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood
Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges)(probate law: mental capacity of testator
to convey real estate property, undue influence, void deed, claim of ,jury charge error)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00589-CV Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns, Individually and as
Administrator of the Estate of Karen Dean Burns, Deceased
Appeal from 12th District Court of Madison County
Daniels v. Richardson (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(product liability, claims against seller vs. manufacturer, warranty, DTPA, issue of jury charge error)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
Jack Daniels d/b/a Daniel's Rentals v. Edward Richardson d/b/a Blue Saphire Lawn Care
Appeal from County Court at Law No 1 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Jerri Lee Mills
Further, Daniel complains that the trial court failed to submit a question asking the jury to assess the
proportional responsibility of Ferris under Chapter 33 of the Texas Civil Practice and Remedies Code. We
conclude that Daniel has waived this argument on appeal because he failed to object to the court's charge on
these grounds at trial. See Tex. R. App. P. 33.1(a)(1) (to preserve complaint for appellate review, the complaint
must be made to the trial court by "a timely request"); Tex. R. Civ. P. 278; Lopez v. S. Pac. Transp. Co., 847 S.
W.2d 330, 333 (Tex. App.-El Paso 1993, no writ) (stating under Rule 278 "purported error regarding an
omitted jury instruction is deemed waived absent the request and tender, in writing, of an instruction in
substantially correct form").
Faulty jury instruction subject to harmless error test on appeal
Bed, Bath and Beyond v. Urista No. 04-0332 (Tex. Dec. 29, 2006)(Green)
[personal injury law, PI, workplace injury, jury instruction, unavoidable accident, charge error, harmless error]
BED, BATH & BEYOND, INC. v. RAFAEL URISTA; from Harris County; 1st district (01-02-00150-CV, 132 S.W3.
d 517, 02 19 04)
The Court reverses the court of appeals' judgment and remands the case to that court.
In this case we decide whether an unavoidable accident instruction given to the jury caused reversible error
and requires a new trial. We conclude that because the record does not support a finding that the trial court’s
submission of the instruction probably caused the rendition of an improper judgment, Tex. R. App. P. 61.1(a),
any error in including the instruction in the jury charge was harmless. Accordingly, we reverse the court of
appeals’ judgment and remand the case to that court for consideration of the remaining issues.
Turner v. Precision Surgical, LLC (Tex.App.- Houston [1st Dist.] Oct. 17, 2008)(Taft)
Sabine Pilot claim, employment discharge
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-07-01113-CV Paul Turner v. Precision Surgical, LLC
Appeal from 280th District Court of Harris County
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