Opinion issued August 31, 2012




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-10-01127-CV
                          ———————————
                          ROSA WARD, Appellant
                                      V.
                  MARK ANTHONY HARPER, Appellee



            On Appeal from the County Civil Court at Law No. 1
                          Harris County, Texas
                       Trial Court Case No. 946908



                        MEMORANDUM OPINION

     After Rosa Ward’s fourteen-year-old son, J.C., was injured in an automobile

accident, Ward sued appellee Mark Anthony Harper for J.C.’s personal injuries

and medical expenses.   The jury awarded $300 to Ward for J.C.’s medical
expenses and $3,500 to J.C. for his past physical pain, mental anguish, and

physical impairment. Ward appeals the jury’s verdict in her favor, arguing that the

jury’s award of $300 for medical expenses was against the great weight and

preponderance of the evidence and that Harper’s trial counsel made an improper

jury argument. We affirm.

                                    Background

      After drinking beer with Rosa Ward’s family at a Sunday afternoon

gathering, Mark Harper departed in his car, bringing J.C. along with him. Harper

lost control of the vehicle while speeding. The car rolled over, and J.C. was

injured and taken to a hospital by ambulance. After being released, he was treated

by his pediatrician and a chiropractor.

      Harper pleaded guilty to driving while intoxicated. He was sentenced to

serve two years in a state jail, but his sentence was probated to community

supervision for four years. As part of the conditions of community supervision,

Harper was ordered to pay restitution in the amount of $13,761.30, at the rate of

$362 per month, directly to J.C.’s health care providers for the medical expenses

incurred because of the accident. Specifically, Harper was ordered to pay:

           $ 11,147.80 to Memorial Hermann Hospital System

               1,169.00 to Humble Radiology Associates, PA

                 851.00 to ACS Primary Care Phys. SW PA

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                 547.50 to City of Houston EMS, and

                  46.00 to North Houston Pathology Assoc. LLP.

      Ward later sued Harper, both individually and on behalf of J.C. At trial, the

evidence showed that J.C.’s medical bills totaled $14,689.30. Specifically, bills

were admitted to show the following charges:

           $ 11,491.80 to Memorial Hermann Hospital System

               1,437.00 to Humble Radiology Associates, PA

                 851.00 to ACS Primary Care Phys. SW PA

                 547.50 to City of Houston EMS, and

                 362.00 to Dayton Chiropractic Center.

Two bills from Humble Radiology Associates were admitted into evidence. The

first bill showed a balance due of $1,169.00. Another bill dated one month later

added a $268.00 charge for a CAT scan performed in the emergency room on the

day of the accident, resulting in a cumulative past-due balance of $1,430.00. All of

the medical bills, except the one from Dayton Chiropractic Center, showed that the

date of service was the same as the date of the accident.

      Harper testified that he was ordered to pay restitution in the amount of

$13,761 for J.C.’s medical bills and that he had been making monthly payments.

He agreed that he had not paid any money directly to Ward, but he explained that




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the restitution payments are made through the Harris County Community

Supervision and Corrections Department.

      Ward testified that she was liable for the medical expenses and that she had

not received any payments from Harper or the State of Texas. She also testified

that she had not received notice from any hospital or health care provider that some

of the medical bills had already been paid. On cross-examination, she testified that

she had a conversation about medical bills with the attorney appointed to represent

her son, but she denied saying that she knew some of the medical bills had been

paid by someone else.

      In closing arguments, Ward’s attorney argued to the jury that the total

amount of medical bills was “$14,250, rounded off.” He said, “There is nothing in

the evidence that would justify you awarding one dime less than . . . $14,250.”

Ward’s attorney then argued for past and future noneconomic and exemplary

damages, urging the jury to award a total of $141,750.

      Harper’s attorney began his closing remarks by saying, “$125,000 to maybe

$135,000. That’s why we’re here. That’s what they’re asking for as a result of this

accident. At the very beginning, I told you why this case happened and why we’re

here, that’s for greed, plain and simple.” Ward’s counsel did not object to these

arguments. The jury ultimately found in favor of Ward, awarding her a total of




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$3,500 for J.C.’s past physical pain, mental anguish, and physical impairment, and

$300 for his medical expenses. Ward appealed.

   I.      Sufficiency of the evidence

        In her first issue, Ward argues that the jury’s award of $300 for medical

expenses was against the great weight and preponderance of the evidence, and it

should have been higher. This argument challenges the factual sufficiency of the

evidence to support the judgment.

        When a party attacks the factual sufficiency of an adverse finding on an

issue on which she has the burden of proof, she must demonstrate on appeal that

the adverse finding is against the great weight and preponderance of the evidence.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). A reviewing court

must consider and weigh all of the evidence, and it can set aside a verdict only if

the evidence is so weak, or the finding is so against the great weight and

preponderance of the evidence, as to be clearly wrong and unjust. Id. at 242;

Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). We may not merely substitute our judgment for that of the jury. Pool v.

Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). 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).




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      To recover medical expenses, a claimant must prove that the charges

incurred were reasonable and necessary. Doctor, 186 S.W.3d at 17. The jury has

discretion to award damages within the range of evidence presented at trial. Gulf

States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). We will not disregard

the jury’s damages finding merely because “the jury’s reasoning in arriving at its

figures may be unclear.” Henry v. Masson, 333 S.W.3d 825, 838 (Tex. App.—

Houston [1st Dist.] 2010, no pet.).

      On appeal, Ward contends that the award of $300 was too little, arguing that

there was no rational basis for the jury’s calculation of past medical care expenses.

Accordingly, we can focus our analysis on the low end of the range of damages

supported by the evidence, as the only basis for reversal would be if the award of

$300 was below the minimum amount supported by the evidence.               The bills

introduced into evidence totaled $14,689.30. These bills include services rendered

on the date of the accident, and also a $362 bill for chiropractic services rendered

after the accident. But Ward does not suggest in her briefing a particular number

to represent the minimum amount of medical expenses supported by the evidence.

      Harper does not dispute the reasonableness or necessity of the expenses

incurred on the day of the accident.      He does argue that J.C.’s visits to the

chiropractor were not related to this accident, and thus he challenges the

reasonableness and necessity of the $362 bill from the chiropractor. With respect

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to all medical treatment not challenged on the basis of reasonableness or necessity,

Harper argued that he had already been ordered to satisfy all such medical bills by

way of restitution. At trial, Harper testified that through the conditions of his

probation, he had agreed to reimburse the Wards for J.C.’s medical bills.

      Although Harper’s judgment of conviction did not include an order of

restitution, the subsequent conditions of community supervision did. The initial

conditions required the district attorney to determine the amount of restitution to be

paid by Harper. Subsequent orders specified that Ward would pay $13,761.30 in

restitution, itemized to show amounts owed to specific service providers. The

conditions of community supervision required payments to be made to each

provider that rendered medical care on the day of the accident. These orders were

admitted into evidence at trial, and Harper testified that he was making monthly

payments toward restitution.

      A comparison of the restitution order and Ward’s evidence of the bills for

services rendered on the date of the accident shows that some charges were omitted

from the amount specified in the restitution order. In particular, the Memorial

Hermann bill admitted at trial was $344 higher than the restitution ordered to be

paid to Memorial Hermann, and it shows a $344 charge incurred on the date of the

accident for medical-surgical supplies. The Humble Radiology bill admitted at




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trial was $268 higher than the restitution ordered to be paid to Humble Radiology,

including $268 billed for a CAT scan of J.C.’s chest on the date of the accident.

      The only provider included among the bills offered into evidence by Ward

and excluded from the restitution order was the chiropractor, who treated J.C. after

the accident. At trial, Harper disputed the reasonableness and necessity of that

treatment. The first visit to the chiropractor came a month after the accident, and a

subsequent visit occurred nearly a year after the accident.

      There was no evidence presented at trial to suggest that the service providers

receiving payments pursuant to Harper’s conditions of community supervision

were seeking to collect from Ward the difference between the amounts being paid

by Harper and the total amounts reflected on the bills. Accordingly, a rational jury

could have concluded that the restitution order accounted for all charges actually

incurred and owing for reasonable and necessary medical services rendered to J.C.

as a result of the accident. The restitution order was entered after all the medical

expenses incurred on the date of the accident were invoiced, and under these

circumstances the jury could have concluded that the restitution order correctly

identified the amounts necessary to fully satisfy the providers.

      Based on the evidence presented at trial, a jury could have rationally

concluded that all reasonable and necessary medical expenses were incurred on the

day of the accident, and that those expenses were being paid by Harper such that

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no payment was being sought from Ward. Thus, we conclude that the minimum

end of the range of damages supported by the evidence is $0.

         The jury awarded $300 for medical expenses. Because this award is greater

than the low end of the range of damages supported by the evidence, we conclude

that the jury’s verdict and the trial court’s judgment awarding damages in that

amount were was not against the great weight and preponderance of the evidence.

See Gulf States Utils., 79 S.W.3d at 566. We overrule Ward’s first issue.

   II.      Jury argument

         In her second issue, Ward argues that Harper’s counsel made an improper

and incurable jury argument by saying that the case was about “greed.” Ward did

not contemporaneously object to the argument, but raises her complaint for the first

time on appeal.

         Ordinarily, error as to improper jury argument must be preserved by a timely

objection that is overruled. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678,

680 (Tex. 2008). A complaint of incurable jury argument, however, may be

asserted and preserved in a motion for new trial, even in the absence of a timely

objection during trial. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).

When an argument is so inflammatory that its harmfulness could not be eliminated

by an instruction to the jury to disregard it, the prejudicial nature of the argument is




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so acute that it is “incurable.” Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333

(Tex. 1968).

      Incurable argument is rare. Penalver, 256 S.W.3d at 681. The test for

incurable jury argument 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 that it resulted in an improper verdict.” Id. at 681.

      In this case, Ward complains that Harper’s counsel’s single reference to

“greed” in his closing argument constituted an incurable jury argument.          We

disagree.    Harper’s counsel characterized Ward’s request for noneconomic

damages in an amount approximately ten times the economic damages as “greed.”

The word was used once during closing argument in reference to the amount of

noneconomic damages sought, the only instance that Ward challenges on appeal.

Even to the extent the reference to “greed” was objectionable, the trial court had no

occasion to mitigate any harm because Ward never objected.

      The nature of this remark was not so inflammatory as to “strike[] at the

appearance of and the actual impartiality, equality, and fairness of justice rendered

by courts.” Compare Penalver, 256 S.W.3d at 681 (holding that final argument

comparing actions of nursing home to Nazi medical experimentation was

incurable), with Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ.

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App.—Austin 1980, writ ref’d n.r.e.) (holding that lawyer’s use of word “greed”

was not incurable). We conclude that the challenged jury argument in this case

was not incurable, and that Ward’s complaint about it was waived because she

failed to make a timely objection at trial. See First Nat’l Bank of Bellaire v. David

W. Showalter, P.C., No. 14-95-01532-CV, 1998 WL 350518, at *8 (Tex. App.—

Houston [14th Dist.] June 25, 1998, no pet.) (mem. op., not designated for

publication) (holding that appellate complaint that jury argument calling bank’s

action in accelerating note “pure greed” was waived because comments were not

so inflammatory as to be incurable and appellant did not object or request

instruction to disregard). We overrule Ward’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Bland, Massengale, and Brown.




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