                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-151-CV


GAIL SMITH                                                        APPELLANT

                                       V.

DR. ALAN HENSON, D.C.                                               APPELLEE

                                   ------------

        FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      Gail Smith appeals from a jury verdict in favor of Dr. Alan Henson, D.C.,

on Smith’s negligence claim against him. She argues that the trial court erred

by excluding evidence relating to workers’ compensation and by making an

improper comment on the weight of the evidence. Because we hold that Smith

has not preserved error on her complaints, we affirm.
      Smith brought a negligent treatment claim against Henson based on his

treatment of her work-related carpal tunnel syndrome and hip problems. She

claimed that when she saw Henson at an appointment to address her hip

problems, he performed a “high-velocity cervical manipulation” to which she

had not consented and which caused her injury.

      At trial, the parties disputed whether Henson had regularly performed the

same treatment on Smith with her consent. Smith claimed that he had not, and

Henson claimed that he had but had not noted the treatment on her charts

because doing so might cause the workers’ compensation carrier to cease

covering treatment for her work-related injuries.     The parties also offered

different explanations for why Smith had not reported any injury from Henson’s

treatment to doctors she saw after Henson performed the cervical manipulation.

Smith claimed that she did not do so because she saw the other doctors for her

work-related injuries, and she was under the impression that the pain from the

cervical manipulation was not covered by workers’ compensation. Henson

suggested that her failure to report the injury to other doctors was because she

had not been injured by his treatment.

      During closing arguments, Smith made the following argument to the jury:

           [Y]ou heard Dr. Heitkamp testify from the stand they paid her
      medical bills. They paid for the surgery.


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           Why would workers’ comp do that? If the only two
      compensable injuries are a hip and carpal tunnel, why in the world
      would workers’ comp pay for that medical?

           If you will notice in the charge, we are not requesting any
      payment for medical. Why? Because workers’ comp paid her
      medical.

            But it also lets you know something else. They found in the
      natural continuance of events that that on-the-job injury of June
      10th or June 1st—

Dr. Henson’s attorney objected and argued that “[i]t’s not in evidence

whatsoever that workers’ comp found any connection here.” The trial court

then instructed the jury,

      Well, the jury is going to disregard all testimony about workers’
      comp, including the testimony given by the last witness about his
      experiences with compensation.        That was far outside his
      expertise, and disregard the argument.

Smith did not object to this instruction by the trial court.

      In her first issue, Smith contends that the trial court’s instruction

improperly excluded material evidence. Henson counters that because Smith

did not object at trial, she has not preserved her complaint for appeal. Smith

argues that no objection was necessary because the trial court was excluding

previously admitted testimony, the substance of which was known to the court.

      The trial court’s instruction came during closing arguments after the jury

had been charged. A trial court may give additional instructions to the jury


                                        3
after the charge has been read.1        Any error with respect to additional jury

instructions may be waived. 2 Here, Smith did not object to the instructions by

the trial court to disregard all evidence relating to worker’s compensation.

Accordingly, if the trial court erred by instructing the jury as it did, Smith

waived the error by not objecting.3 We overrule Smith’s first issue.

      In her second issue, Smith argues that the trial court’s instruction

constituted an improper comment on the evidence. To preserve error on a trial

court’s improper comment, a party must object at the time of the comment

unless the comment is of a character that cannot be rendered harmless by

proper instruction.4   Thus, if the trial court’s instruction to the jury was an

improper comment on the evidence, Smith was required to object at the time




      1
      … See Tex. R. Civ. P. 286; Goode v. Ramey, 48 S.W.2d 719, 722 (Tex.
Civ. App.—El Paso 1932, writ ref’d).
      2
        … See Pate v. Texline Feed Mills, Inc., 689 S.W.2d 238, 245 (Tex.
App.—Amarillo 1985, writ ref’d n.r.e.) (holding that by not objecting, the
appellants had waived any error in the trial court’s correction of typographical
errors in the charge); see also Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768,
833–34 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.), cert. dism’d,
485 U.S. 994 (1988) (holding that the failure to object to a trial court’s
instruction constitutes waiver).
      3
          … See Tex. R. App. P. 33.1.
      4
       … State v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965); Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

                                          4
the comment was made to preserve the error unless the error could not be

cured by instruction.

      Smith argues that the trial court’s instruction was “a powerful indictment

of [Smith’s] case and arguments.” She claims that there was no way to cure

the effect of this instruction. We disagree. The trial court could have made

any error harmless by clarifying its instruction to allow the jury to consider the

evidence that Smith claims should not have been excluded. Smith therefore

had to object to preserve error on this ground, and she did not do so.

Accordingly, we overrule her second issue.

      Having overruled both of Smith’s issues, we affirm the trial court’s

judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.

         WALKER, J. filed a dissenting opinion.

DELIVERED: October 2, 2008




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                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                                NO. 2-07-151-CV


GAIL SMITH                                                        APPELLANT

                                        V.

DR. ALAN HENSON, D.C.                                               APPELLEE

                                    ------------

        FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                          DISSENTING OPINION

                                    ------------


      I respectfully dissent.   The majority holds that trial counsel failed to

preserve error during closing argument when the trial court ruled, in response

to an objection by Dr. Henson’s attorney, that the jury should disregard any

workers’ compensation testimony given by any witness. In her two issues on

appeal, Smith correctly characterizes the trial court’s action as a ruling. The

majority, however, mischaracterizes the trial court’s ruling as an improper

comment and relies on case law dealing with improper comments and conduct
by trial courts; these comment and conduct cases are inapplicable to the ruling

challenged here. The majority fails to cite any case law whatsoever holding

that an objection to a trial court’s ruling, which is adverse to the party

appealing, is required to preserve error. In fact, the rules of appellate procedure

expressly disavow the necessity of objecting or excepting to a trial court ruling

in order to preserve error. See Tex. R. App. P. 33.1(c) (providing that no formal

exception to a trial court ruling is required to preserve a complaint for appeal).

Once the trial court has made a ruling on the record, no authority exists for the

proposition that trial counsel must object to or note his exception to the trial

court’s ruling, i.e., essentially argue with the trial court about an already-made

ruling, to preserve error. I would address the merits of Smith’s complaints

concerning the trial court’s ruling. Because the majority does not, I respectfully

dissent.




                                                   SUE WALKER
                                                   JUSTICE

DELIVERED: October 2, 2008




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