ARSENIO CARLOS CLARKE v. THE STATE OF TEXAS (Original)

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State: Texas

Court: Criminal Court of Appeals

Docket No: PD-1454-07

Case Date: 09/24/2008

Plaintiff: ARSENIO CARLOS CLARKE

Defendant: THE STATE OF TEXAS (Original)

Preview:Ryan Webster Pope v. Michael James Gaffney--Appeal from 216th Judicial District Court of Bandera County
MEMORANDUM OPINION No. 04-03-00456-CV Ryan Webster POPE, Appellant v. Michael James GAFFNEY, Appellee From the 216th Judicial District Court, Bandera County, Texas Trial Court No. 7940-01 Honorable Stephen B. Ables, Judge Presiding Opinion by: Phylis J. Speedlin, Justice Sitting: Alma L. L pez, Chief Justice Sarah B. Duncan, Justice Phylis J. Speedlin, Justice Delivered and Filed: August 4, 2004 AFFIRMED Ryan Webster Pope ("Pope") appeals a judgment awarding him damages for personal injuries resulting from an automobile accident. At trial, Michael James Gaffney ("Gaffney") admitted liability for the accident, but contested the amount of damages. On appeal, Pope argues that the evidence is factually insufficient to support the jury's damage award and that Gaffney's attorney engaged in improper jury argument. We affirm. Background Pope was a passenger in a pick-up truck that Gaffney rear ended on March 10, 2000. Pope did not complain of any injuries at the time of the accident and told police that he did not think he was injured. No ambulance was called to the accident scene. Pope first sought medical attention for back pain in April 2000, from the Franklin Clinic in Kerrville, Texas. On May 23, 2000, Pope saw a different doctor in Kerrville for his back pain; the medical records also note a complaint regarding unintended weight loss. On August 22, 2000, Pope visited a doctor in Austin, complaining of neck pain, back pain, and muscle spasms. In September 2000, Pope started college and a new job in Houston, Texas. In preparation for a trip to Peru, Pope went to the Kelsey-Seybold Clinic in Houston during the months of October and November 2000, to receive immunizations necessary for the trip. Pope returned to the clinic on November 30, 2000, complaining of weight loss, stomach and back pain, difficulty sleeping and eating, headaches and other medical issues. Pope appeared for a follow-up physical on December 13, 2000. On March 6, 2001, Pope filed suit against Gaffney. On May 24, 2001, Pope visited Dr. Nancy Washburn, a neurologist, for lower back pain. Dr. Washburn sent Pope for MRI's in both June and November of 2001. Based on the MRI conducted in June, Dr. David Boyd concluded that Pope had a "bilateral L5 spondyloloysis defect with Grade 1 spondylolisthesis" and "degenerative disc desiccation and annular bulging at L4-5 and L5-S1 with a broad-based, posterocentral [disc] protrusion at L4-5 that at least mildly impinges the lateral recesses bilaterally at this level." On January 9, 2003, Pope was examined by his expert witness, Dr. John Toohey, an orthopedic spine surgeon, who

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concluded that Pope suffered from a pre-existing spine condition which was aggravated by the accident. The case was tried by a jury on May 27, 2003. Since Gaffney admitted liability, the only issue for the jury was the amount of damages Pope sustained. The jury awarded Pope $500 for past physical pain and mental anguish, and $646 for past medical care. No damages were awarded for Pope's future physical pain and mental anguish, or for future medical care. On August 29, 2003, the trial court entered judgment on the jury verdict for $1,677.76, which includes pre-judgment interest and court costs. Pope filed a motion for new trial, which was overruled. This appeal followed. Factual Sufficiency of Damage Award In his first two issues, Pope challenges the factual sufficiency of the jury's verdict, arguing that the damage award is manifestly too small in light of all the evidence and that a new trial on damages should have been granted. A trial court's ruling on a motion for new trial is reviewed for abuse of discretion. Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). In reviewing a factual sufficiency point, we must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). A jury finding on which the appellant had the burden of proof may be overturned only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id.; see also Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Therefore, the court of appeals must not merely substitute its judgment for that of the jury. Id. The trier of fact is given wide discretion to award damages anywhere within the range of evidence presented at trial. VingCard A. S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 865 (Tex. App.-Fort Worth 2001, pet. denied); see also Duggan v. Marshall, 7 S.W.3d 888, 893 (Tex. App.-Houston [1st Dist.] 1999, no pet.). On appeal, a reviewing court may not set aside a finding of damages merely because the jury's reasoning in arriving at the amount is unclear. Duggan, 7 S.W.3d at 893. In support of his claim for past and future damages, Pope testified about his physical condition before the accident and how it changed after the accident. He stated that he was physically active before the accident, engaging in motorcycle jumping and skateboarding activities. After the accident, Pope testified that he began having back pain which limited his ability to spend time with his friends and restricted his physical activity. Pope described the events surrounding the accident and testified that he was in pain "from the start," but thought it would pass. He recounted his visits to various doctors in search of medical treatment for his back pain in the months after the accident. Pope's father, Jack, testified that his son was very physically active before the accident, but that he lost weight and started having back problems and difficulty eating and sleeping after the accident. Pope's expert witness, Dr. Toohey testified that Pope suffers from a pre-existing condition identified as isthmic spondoylolisthesis which can cause back pain. He explained that this condition is a deformity of the spine that begins between the ages of nine and twelve during the first growth in the bones that form the back of the spine. He testified that the condition often goes unnoticed until later in life. Dr. Toohey opined that Pope's pre-existing condition was aggravated by the automobile accident, and the aggravation of his medical condition caused Pope's back pain. During cross-examination, Dr. Toohey admitted that the accident was the only traumatic event that Pope had discussed with him during his physical examination. Dr. Toohey stated he was not aware that Pope had been engaged in jumping motorcycles and skateboarding activities, and had suffered accidents related to both activities, prior to the automobile accident. Dr. Toohey conceded that both motorcycle jumping and skateboarding also could have aggravated Pope's pre-existing back condition. (1) In closing argument, Pope's counsel argued that it was within the jury's discretion to award Pope anywhere from $10,000 to $50,000 in damages. He argued that both past and future damages were within the jury's discretion. Gaffney's counsel argued that since there was no evidence of mental anguish, the damages should be limited to $500, which represented the approximate cost of Pope's medical expenses during the first few months after the accident. Gaffney's counsel argued that Pope was not entitled to any damages for future medical care because of his pre-existing condition.

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The jury awarded Pope $500 in damages for past physical pain and mental anguish, and zero damages for future physical pain and mental anguish. The jury heard the testimony by Pope and his father regarding his prior physical activities and his back pain and other symptoms after the accident, as well as Dr. Toohey's testimony about his preexisting back condition. During Pope's cross-examination, the jury learned that Pope had been able to work chopping cedar after the accident. Pope also traveled to Peru, South America, after the accident. In support of his claim for mental anguish damages, Pope cites his testimony and the testimony of his father that he suffered weight loss, and difficulty eating and sleeping after the accident. However, the testimony did not attribute these symptoms directly to the accident, but instead attributed them to stress and the medications that Pope was taking for his back pain. Pope argues the medical records from the Kelsey-Seybold Clinic show that he had complained of "weight loss, stomach pains, back problems, difficulty falling asleep, no appetite, no energy, arm numbness, and headaches." Again, these complaints are not attributed to the accident, rather to Pope's pre-existing condition and the medications. Pope also argues that a doctor at the Kelsey-Seybold Clinic considered whether he might be suffering from anxiety or depression. However, no evidence was presented to the jury regarding Pope's alleged anxiety or depression, other than the referenced problems with sleeping and eating. Based on the evidence, the jury could have reasonably concluded that Pope's past pain and mental anguish was largely due to his pre-existing condition and not to the accident; similarly, the jury could have reasonably concluded that any future pain and mental anguish would be due to Pope's pre-existing condition, rather than the accident. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (discussing the kind of evidence necessary to recover mental anguish damages). The jury's findings of $500 for past physical pain and mental anguish, and zero damages for future pain and mental anguish, are within the range of evidence, and are supported by factually sufficient evidence. See VingCard A. S., 59 S.W.3d at 865. The jury awarded Pope $646 in damages for past medical care, and zero damages for future medical care. At trial, the jury was presented with billing records covering Pope's medical expenses from April 5, 2000, to January 9, 2003, which totaled approximately $8,700. The jury, however, was free to attribute most of the medical expenses to Pope's pre-existing condition and not the accident. Because the jury's award of $646 for past medical care is within the range of evidence, we may not set aside the award. Id. With regard to Pope's future medical expenses, the evidence centered on Pope's treatment options for his back pain and the potential need for future back surgery. Dr. Toohey testified that the typical non-surgical treatment for Pope's type of back condition includes medications such as aspirin and anti-inflammatories, physical therapy to strengthen the back muscles, and wearing a brace. Dr. Toohey testified that it is "within reasonable medical probability" that Pope will need back surgery at some point in the future, at an estimated cost of $50,000. Dr. Toohey further testified, however, that surgery is "not ever a necessity" and only becomes needed "when the patient has enough pain in his activities of daily living that make it impossible to function." Finally, Dr. Toohey testified that Pope could have developed the need for back surgery with or without an intervening event like a car accident. Given the evidence presented at trial, the jury could have reasonably concluded that Pope's future medical care, including potential back surgery, will be due to his pre-existing condition and not the accident. Based on our review of the entire record, we hold there is factually sufficient evidence to support the jury's damage award, and the trial court did not abuse its discretion in declining to grant a new trial on damages. Pope's first and second issues are overruled. Improper Jury Argument In his third issue, Pope contends that Gaffney's attorney engaged in improper jury argument by misstating the evidence regarding the number and timing of Pope's doctor's appointments after the accident. In response, Gaffney asserts that Pope did not preserve this issue for appeal, and that no portion of his attorney's closing argument was improper or incurable. Generally, in order to obtain a reversal on the basis of improper jury argument, an appellant must prove that: (1) an error was made in argument; (2) the argument was not invited or provoked; (3) the error was preserved by the proper objection, motion to instruct, or motion for mistrial; and (4) the argument was not curable by an instruction, prompt
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withdrawal, or reprimand. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); Macias v. Ramos, 917 S.W.2d 371, 375 (Tex. App.-San Antonio 1996, no writ). The appellant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence. Reese, 584 S.W.2d at 840. Here, Pope did not object to the argument at trial, nor did he request a jury instruction to disregard the argument, or move for a mistrial. Pope argues that he did not have to object because the argument was incurable. An objection is not required in order to preserve error if the error is deemed to be incurable. Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968); Macias, 917 S.W.2d at 375. However, there are only rare instances of incurable harm arising from improper jury argument. Reese, 584 S.W.2d at 839; Macias, 917 S.W.2d at 375. The test for incurable error in the jury argument is whether the argument, when viewed in light of the entire record, was so inflammatory as to strike at the heart of the adversarial process or appeal to fundamental prejudices. Macias, 917 S.W.2d at 375. In such a case, a jury instruction to disregard the argument would not eliminate the probability that an improper verdict resulted from the error. Id. Moreover, if the complainant believes the argument is improper and incurable, "then it is [i]ncumbent upon him to explain the basis for his belief or, at least, why the tenor of the arguments excuse one from timely objecting." Dunn v. Bank-Tec South, 134 S.W.3d 315, 323 (Tex. App.-Amarillo 2003, no pet.) (citing Dow Chemical, 46 S.W.3d at 241). Pope asserts that Gaffney's counsel made knowingly untrue statements in his closing argument because the evidence shows that Pope saw Dr. Washburn in May 2001 and had an MRI with Dr. Boyd in June 2001 (2) . Pope contends that counsel's argument was "so inflammatory that it struck at the heart of the adversarial process because it appealed to the jurors' fundamental prejudices." Pope fails to explain, however, how a jury instruction to disregard the argument would not have cured the alleged error. See Dunn, 134 S.W.3d at 323. Moreover, in his closing argument, Pope's attorney reminded the jury about Pope's testimony and the medical records admitted into evidence, which he argued proved that Pope visited the doctor during the months of May, November, and December of 2000, and May and June of 2001. Having reviewed the entire record, we conclude that the purported error in the closing argument does not rise to the level of incurable error; thus, any error was waived by Pope's failure to make a contemporaneous objection and request for an instruction to disregard or motion for mistrial. Reese, 584 S.W.2d at 840-41; Macias, 917 S.W.2d at 375. Pope's third issue is overruled. Based on the foregoing reasons, the judgment of the trial court is affirmed. Phylis J. Speedlin, Justice 1. Evidence was also presented that Pope had fallen from a roof prior to the automobile accident. 2. The challenged argument contains the following statements: "This lawsuit was filed March 6, 2001. It's amazing that the majority of the medical bills associated with this case do not take place until there is a suit on file ... He then goes to the doctor two times, April 5th, 2000 and April 6th, 2000. ... He doesn't go to the doctor again in June, July until August 22nd[.] August 22nd, he goes to the doctor one time, and then the amazing thing is he doesn't go to the doctor for his back [in] September, October, November, December, January [2001,] ... February ... March, April, May, June, July, August, [or] September. Now he starts going to the doctor. Now he starts getting therapy. Now he starts racking up bills."

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