*1
ployee
fired,
ee,
by
employee being
or
an
or because of
employment.”
his
In
injury
cases,
job
the rule as stated in Williams
incurred at
site or while
Trinity
Universal Insurance Company,
leaving
job
subsequent
site
to the ter-
injury
mination is not an
in
(Tex.Civ.App. Amarillo,
sustained
—
1958, writ)
course of
no
employment,
meaning
within the
is that where
employee
one
solely
hatred,
assaults another
Compensa-
anger,
of Article 8309 of the Workers’
Act,
revenge
vindictiveness,
or
growing
tion
not
where the termination occurs in a
of or
employment,
incident to the
place
safety
employee
injury
is not
is to be attributed to
subject
voluntary
act of
arising
to the inherent hazards
assailant,
itself. Ellison v.
and not as an
employment
incident of the
from the
Means,
Trailite, Inc.,
Moore v.
employment.
See
(Tex.Civ.App.
between the two. The Waco Court Bryant, distinguished Ellison peals
stating truly that “Ellison was not a work Elli compensation (in
er’s case. That suit son) grew alleged out of an assault and battery by Langston upon one Ellison....” Mr. Martin and Mrs. Gloria Ellison opinion, the Waco Court’s PREZELSKI, Appellants, injury case of an not sustained scope employment course and rather CHRISTIANSEN, Mr. Robert L. too, than a termination case. Here D.D.S., Appellee. injuries alleged arose out of an assault and No. 04-88-00089-CV. battery occurring after Cecil had been fired. Texas, Appeals Court “injury term sustained the course San Antonio. employment” is defined Article July 1989. Act, Compensation sec. Worker’s as not Rehearing Sept. Denied injury to include caused an act of “[a]n person injure a third intended to the em
ployee personal because of reasons to him against employ
and not directed him as an *2 Kil- Vickery, Elizabeth
Arnold Anderson Houston, appellants. bride, Jr., Reser, Groce, Crofts, Jo Thomas H. Antonio, Hebdon, appel- & San Locke lee. REEVES, CHAPA and
Before PEEPLES, JJ. During trial, appellee present
OPINION behalf, ed two medical on his Dr. CHAPA, Justice. Galveston, Carl Schow of Texas and Dr. Cleveland, Daniel Verne of Ohio. How Appellants Prezelski Gloria and Martin ever, terminating before the examination of appellee, sued Doctor Robert L. Christian- appellee, appellee’s per counsel moved for sen, alleging malpractice in rela- *3 present appellee’s mission to medical ex tion to services rendered which culminated perts Although out of appellants order. performed surgery upon in oral maxiofacial agreed arrangement, they requested appellant, Appellants ap- Prezelski. Gloria 30 minutes appellee prior to cross-examine peal judgment from a rendered in favor of to the out of order testimony. The court as a result verdict. obj request appellant’s denied the and over dispositive ection,1 permitted appellee’s issue is whether the ac- medical ex perts presented to be out order and to be judge require tions of the trial reversal excused.2 81(b)(1) ap- under TEX.R.APP.P. because right pellants fairly were denied the to clearly The record reveals that all the 90(a). present their case. TEX.R.APP.P. agreed cephalometric experts medical x-rays properly perform the We reverse. were critical to further, deny any appellant parties argued 1. The dissent would relief to After the each assert- adequate agreement, appellant because did not make "an their version of the the court specific objection” testify and the court was "obvi- allowed Dr. to out of order with- Verne ously enforcing agreement parties. allowing ap- to some of the out cross-examine doing, ignores pellee prior In so the dissent Tex.R.Civ.P. for 30 minutes to Dr. Verne’s testi- writing, requiring agreements mony. Appellant’s objection be in which and the reason for support preserve from the error. is not the case here. Without it was sufficient to transcript, engages record the dissent in im- suggests pur- 2. The dissent that the trial court concluding proper presumptions so portedly permit had unbridled discretion to wit- "agreement” called verbal was witnessed and authority nesses out under the of TEX. of order disagree- endorsed the court. The obvious However, 611(a). ig- R.CIV.EVID. the dissent "agreement" ment as to what the was is vivid in merely nores that the rule authorizes a reason- record, nothing this and we find from the court judge over the mode and able control of the trial any personal knowledge to indicate it had as to interrogating We order of witnesses. think it an agreement what the was. The need for Rule 11 prevents result unreasonable control when the here, ironically party’s is illustrated where one right party exercising from their to their agreement recollection of the was different why fairly. a trial case This case illustrates from the other. permitting very before court must be cautious ignores language the clear dissent testimony dependent experts, is so whose of the record: prior testimony party, of order of a to plain- MS. RESER: Your Honor I had told upon terminating testimony party of the bringing I was Dan Verne Mon- tiff’s counsel depend. testimony testimonies whose their morning my understanding day I and it was objection especially This is true in face of an him out of turn. And would be able to take up" permitted request “to clear some- to be proceed would I like to with him at this time. properly thing "to exam- with the adverse objection I have no MR. VICKERY: party’s experts, find here. as we ine” the adverse bringing I Dr. Verne out of turn in the case. judge not have known the The trial here could day object doing to her told her the other do testimony going change appellee ter, his la- finishing up prior Dr. Christiansen. it cross examination but the 30-minute horsey. The reason isn’t to be The reason is by appellants prior appellee requested to the out things up clear there is some that I need to appellee’s experts was a of order position that he has taken in based on request should have been reasonable properly Verne. court in order to examine Dr. granted. before lunch she had 2 And she had said dissent is also troubled that with him and she went the rest of the hours opinion might on fiiture have an adverse effect possibly have full afternoon. So she can’t judges. discretionary trial Certain- decisions of Dr. Christiansen. But I need much more with opinions appellate ly, purposes of one of the things my some to come back and clear instructive, judges. especially to trial to be own mind in order to— Nevertheless, as perceive issue before us long your we THE COURT: How redirect whether, is, being paramount; under more with him? minutes, circumstances, appellant received a these MR. VICKERY: 30 added) trial. fair right inquire appellee’s medi- of their surgery Appellee here contended involved. late-changed initial deposition experts appellee’s cal how cephalometric at that he had taken testimony, affected their medical critical lost. x-rays somehow were ap- opinion regarding the medical services who testified Appellee’s experts, Appel- pellee to Gloria Prezelski. rendered impres- under were also to “such a contend that amounted lants cephalometric x-rays had been sion that the rights appellants] as denial correctly appellee be- taken and viewed to cause and calculated surgery. Appellee’s experts how- fore the of an did cause rendition ever, prevented examining case.” x-rays they were cephalometric because 81(b)(1).3 supposedly according lost During clearly put appellants Therefore, appel- original testimony. since object- by properly on notice cephalometric lee’s considered the *4 ing prior appellee’s experts to medical be- critical, had x-rays appellee believed that requesting of presented out order and them, prevented were indeed taken and appellee 30 minutes examination of cross them, safely examining can as- we up” something “to clear associated with engaged in some they sume that have “proper” appellee’s the of examination ex- appellee in order presumptions favorable to Further, appellants pert reit- witnesses. per- surgery subsequent to conclude the in complaint their after a erated proper. formed on Prezelski was Gloria trial, proper timely and motion for a new Thereafter, appellee’s medical after which was likewise denied. excused, experts had testified and had been case, in that the actions We conclude appellee testimony changed his for the and refusing grant ap- in of the trial to first he time admitted had indeed not taken pellants 30 minutes of cephalometric x-rays appellant at cross-examination of the all. Thus, prior permitting appellee’s appellants they deprived appellee insist were to excused, change testimony deny appellant appellee dissent relief his would be- been partial had of facts filed admit the first time that he not cause a statement was and and for 5) appellants comply cephalometric x-rays appellant, the failed to of taken 53(d) cephalo- by point designating not in fact taken of error that whether had that critical, 6) upon x-rays appellants’ partied would be relied at the was that time metric However, trial, grounded complaint requested. of in the statement facts was motion for new denied, us, 7) appellants dissent concedes that the statement of facts be- and that before was volumes, plus ap- opportunity this court of five fore consists had the to cross-examine never ¿Eter arguments, testimony appellee’s and pellee expert final all the medical critical witnesses Most, rulings pertaining thereto. The dissent also if not all of these facts late admission. recognizes partial facts unchallenged, permits that statement of are this court to are encouraged 74(f). if there no real need for the accept them correct. TEX.R.APP.P. as appellee’s entire record. record shows that repeatedly attempted improperly to col- may presumption true While it in impeach appellants’ laterally lone medical ex- 53(d) favor of under TEX.R.APP.P. repeated pert violation of rul- witness in may failure available because a to ings. statutorily 53(d), comply with rule the record suppos- for The dissent chastises complaints before us sufficient to review the concluding erroneously speculating edly when made. in the of a was harmful absence that the error largely supported by It is uncontroverted However, complete at the 1) facts. prior that of order this record time, justification in en- dissent finds testimony appellee’s experts, ap- same two medical assuming speculation gaging pellee in its own and had so advised his medical contended experts appellee’s would not cephalometric x-rays experts that had he taken 2) they request been appellant, appellants’ confronted have been affected appellee pri- appellee's admissions. This record late critical 30 minutes of cross-examination unchallenged appel- made statements or the out of order examination of denied, 3) sufficiently expert brief establish lants in their medical witnesses deprived right objection, appellee’s appellants appellant’s medical ex- over case, permitted testify fairly present their and that under these pert out of witnesses were trial, excused, 4) new ap- were entitled to a after circumstances order and were denied. pellee's and had which was also witnesses had testified experts previously
medical
This court has
addressed
in
for new
error issue
Nix v. H.R.
denying appellants’
in
motion
the harmless
al,
right
S.W.2d 573
appellants
Management
their
denied
et
fairly.
requires
this denial
Antonio
writ ref’d
case
Whether
— San
reversal, however,
n.r.e.)
depends
stating:
on whether it
reasonably calculated to cause and
recognized
Supreme
the im-
Court
rendition of an
caused
possibility
prescribing
specific
test
in the case. TEX.R.APP.P.
determining
any error was
81(b)(1).
prob-
to cause and
reasonably calculated
improp-
ably did cause the rendition of an
malpractice
All
cases rest almost
medical
judgment.
er
v. Members Mu-
[Lorusso
expert medi-
entirely upon
Co., 603
tual
Insurance
Presumably, these medical
cal witnesses.
mind,
(Tex.1980).] With that
in
medically qualified
experts
impartial,
given,
Court has
on at least two occa-
provide guide
lay
for a
experts who will
sions,
example
useful
which we think
Thus,
findings.
it is ur-
jury to make its
Supreme
in the instant case. The
Court
defending
gent
prosecuting
has stated that
a case which
impeach
cases to be able to discredit
complaining party
prove
failed to
opinions
opposing
who
defense,
action of
an error could
lay
heavily
upon by
jury.
relied
are so
resulted in a material-
not be said
have
However,
accomplished with-
this should be
hand,
ly
the other
when
unfair trial. On
of evidence and
in the bounds of the rules
*5
and the evidence
the trial is contested
certainly
rulings of the court.
the
in
conflicting,
error results
a
sharply
the
Appellants presented one medical
showing
trial without
materially unfair
witness,
Dr. Helfrick’s
Dr. John Helfrick.
821;
Lorusso, 603
at
Pat-
more.
considerably by
was undermined
Dunn,
592 S.W.2d
terson Dental Co.
repeated
efforts of
the
(Tex.1979).
in those cases
While
impeach him in
collaterally
violation
strikes,
speaking
juror
the Court was
rulings. The trial court correct
the court’s
in
it
made clear
Lorusso that
Court
appellant’s repeated objections
ly sustained
by
errors of law the
speaking
was
all
jury
and counsel accord
and instructed
Lorusso,
821.
603 S.W.2d at
trial court.
ingly. While these actions cannot form
Nix, supra, at 576.4
point
error since the
for a valid
basis
Co.,
In
Members Mut. Ins.
Lorusso v.
objection,
judge properly
trial
sustained
Supreme
of Texas stated:
supra, the
Court
appel
jury,
and never denied
instructed
rule is clear and
language
The
requested,
can be con
lant
relief
[5]recognizes
a liti
that
direct. The rule
application
in the
of TEX.R.APP.P.
sidered
for,
perfect trial
gant
to a
81(b)(1).
is not entitled
4.
Lorusso, supra
Although
at 820.
the dissent has concluded there wets
here,
necessary
auAority
nevertheless finds it
which sets one
no error
it
We
of no
know
holding in Nix v.
improperly
be critical of this court’s
allocat-
harmless error standard
Co.,
Management
tions have contributed in a substantial bring errors involved reversal. draws no distinction as [*] about omitted] applies [*] to all errors adverse [*] in its rule [*] judgment, requirement [*] in its type way to [cita [*] very it unfair trial which foregoing dition of an We therefore remanded errors improper judgment in this for a new trial. 81(b)(1). is reversed and the must resulted in a probably caused conclude, materially the ren- case. recognized .... expressly [W]e Justice, PEEPLES, dissenting. com requirement Tamburello6 has respectfully dissent. The party plaining show that ruling reversed on basis trial judgment against in the him resulted discretion, court’s even was within the “materially considering unfair.” how partial though only a we have met, this is we said: facts, any error was harmless. any such error resulted in [W]hether permit Discretion witnesses materially however, unfair order. The trial within was well decided from an examination allowing her the defense discretion of the entire record. For exam- Tri order. call two witnesses out of ple, complaining in a case in which the judges given in determin al discretion prove failed his cause of ac- testify. ing the order which witnesses defense, allocating tion or an error Co., Ochoa v. Motor Sales Winerich equalizing strikes could not be said Baker (1936); Tex. to have resulted in a unfair (Tex.Civ. Sturgeon, hand, trial. On the other when the *6 Travelers 1962, writ); App. no contested and the evidence is — Texarkana Hurst, 883, v. the error results in Insurance Co. sharply conflicting, 1962, (Tex.Civ.App. unfair trial without 886 show- — Texarkana Summers, Hemsell n.r.e.); more.... ref’d 153 (Tex.Civ.App. S.W.2d Lorusso, supra at 819, 820, — Amarillo Simmons, Plunkett v. writ); no contested, vigorously This case was and (Tex.Civ.App. S.W.2d — Waco sharply conflicting involved evidence. Fur- 611(a) (tri dism’d); TEX.R.CIV.EVID. ther, prevented unwittingly control al court shall exercise reasonable exercising appellants right from their to interrogating order of wit over mode and crucial from elicit the late admission nesses). Under TEX.R.CIV.P. prior to the out of order explicitly her rea court should have stated experts. appellee’s prevented This deviating sons for usual se fairly appellants opportunity ques- to to quence. plaintiffs did not ask her But experts appellee’s equipped tion medical complain do so in this court that and do not appellees pertinent with late admission good not explicitly cause stated. changed very which could have well or at im- experts’ amply support court’s least weakened facts exer- opinions. plied finding good failed cor- and her the court to had by granting Although rect the situation a new trial. cise of discretion.1 the case Welch, specific objection, court com- 6. Tamburello 1965). error, following during mitted reversible sequence It is that the court of events. obvious judges lawyers surprised 1. Trial bewill agreement simply enforcing felt that she was plaintiffs adequate learn that counsel made Moreover, plaintiffs’ specially (by agreement, set six from out of town. been already called defendant as an earlier) counsel had Monday, months October party, examined him for several adverse sought given plaintiffs and were hours, passed and then the witness. Wednesday. until Defendant’s continuance words, other at the time of the court’s out-of-town had been scheduled at ruling asking in- plaintiff’s counsel was Monday certain times reliance on the terrupt defense counsel’s examination special setting. plaintiffs’ When the attor- her own client for further cross-examina- continuance, ney sought two-day he tion. Dr. had testified for one Christiansen expressly agreed to let the defendant day. full witnesses out of days they originally had been sched- judges might if other have ruled Even doubt, obviously uled. The court was concerned I it is differently, which inconceiva- accommodating expert ruling that her was an abuse of discre- about witnesses ble plaintiffs presence prefer just proceed I had made in her when MS. RESER: would why seeking two-day I see with Dr. Christiansen don’t [sic]. continuance. opportunity he’s taken —he’s had an to take MS. RESER: Your [defendant’s counsel] deposition. Dr. Verne’s Mrs. Kilbride [co- plaintiffs I was Honor I had told bringing plaintiffs] counsel for for an hour on the Monday morning Dan Verne and it phone him. I see reason talked to don’t understanding my I would be able to take why they do a recross Dr. should be able to proceed him out turn. And I would like to my I Christiansen in the middle before finish with him at this time. my cross-examination own client. mean I [plaintiffs’counsel]: MR. I have VICKERY: just put want to on Dr. Verne out turn and objection bringing Dr. Verne out turn agreed begin- that was what we had to at the day object in the case. I told her the other I do going ning your this Honor. I was doing finishing up prior Dr. to her it to— Christiansen. take, long would he Dr. THE COURT: How horsey. The reason isn’t to be The reason is Verne? things up there are some that I need to clear MS. RESER: I think he will take this morn- position based on the that he has taken in ing. properly court in order to examine Dr. Verne. Okay. you THE COURT: I’ll allow to call And she said before lunch she had 2 him out of order. horn's with him and she the rest of the went added). Okay, MS. RESER: possibly full afternoon. So she can’t have point At the discussion shifted to other much more with Dr. Christiansen. But I need (1) subjects: lawyers to have the court told things my to come back and clear some louder, (2) exhibits their witnesses talk were own mind in order to— admitted, marked, discussed, (3) the law- long your THE COURT: How redirect posi- yers established where each would be with him? Next, tioned the use of a television. MR. VICKERY: 30 minutes. in; jurors brought the court welcomed THE COURT: Or recross. them and then made this statement: Honor, going MS. RESER: Your I’m agreed plaintiffs The Court: The have have much with Dr. Christiansen. It’s may call a she witness [defense counsel] *7 they’ve going to take because voir turn, calling so the defendant is a witness time, practically every piece evi- dired us on added). (emphasis at this out turn complaining about dence. And I’m not that. reading A fair of this record convinces me that right. original made, our That’s their But that was objection certainly counsel no agreement. objection, ground any not state a They’re going bring Dr. Helfrick obviously thought carrying she again just through lawyer’s agreement turn and I would ask the court’s to allow permission put busy Dr. Verne on. He is a Verne be called out of order. I cannot under- my arrangement surgeon any judicial and this was can be stand how of this action course, had made with him to come this morn- called an abuse of discretion. Of partial ing. plaintiffs of facts filed does agreement suggest not everyone terms of the MR. VICKERY: Let me this. If include the got saying admits was she’s to the court that she’s a lot made. Christiansen, Concerning expert, go why Dr. Dr. don’t I the second defense more to with Schow, way plaintiffs object any on the matters she’s crossed on now? did not recross my the stand. As Dr. Schow I’ll minutes there so I’m clear and when he was called to take 30 stand, objection proceed either And took the no was voiced then she can with Dr. Verne. said, my put after the court "It’s under- if she needs to him back for more before or then later, know, calling standing you [Dr. it. the defendant is a witness have at turn, agreeable? is that correct?" Schow] THE COURT: Is that
771 comply- of facts tion, partial statement without concept as that has been defined. See 53(d) [formerly Hosp., ing TEX.R.APP.P. Northwest Memorial with Babcock v. view, 706, (Tex.1989) (test my the ma- is TEX.R.CIV.P. 767 7096r S.W.2d 377]. faithfully applied rule or jority has not court “acted without reference whether 50(d), says, “The TEX.R.APP.P. bur- any guiding principles rules and or whether unreasonable”); appellant, or other arbitrary and den is on the the act was 297, review, H.E.B., Inc., seeking see that a sufficient Morrow v. S.W.2d (test requiring (Tex.1986) presented to show error the court record is “whether guiding acted without reference to reversal.” principles”); rules and Johnson v. Fourth undisputed that we have a It is 916, Appeals, 700 S.W.2d Court of The court re- partial statement of facts. (Tex.1986) (test is “the facts and porter’s says amended certificate permit[ted] law the trial court to make but statement of facts “contains a true decision”). Nothing one in the record or transcription parts correct plaintiffs’
the briefs indicates that
proceedings requested
to be
ever asked the court to have either witness
added).
Two
transcribed....”
questions.
return for further
volumes of the statement of facts conclude
majority says
agreement
“Whereupon,
this con-
did not with these words:
comply
course,
testimony requested
with rule 11. Of
we do not
cludes
to be tran-
agreement
“Whereupon,
know whether the
on
on 11-4-87” and
this
was made
scribed
only partial
transcription
requested
the record
because we have
concludes the
added).
testimony.” (emphasis
statement of facts. For the reasons stated
dissent,
part
two
this
that should end
undisputed
plaintiff
It
did not
is also
clearly gener-
the matter. But there was
points
relying
state the
she
on.
would
agreement
al
experts testify
to let defense
so,
presume that
Had she done
we would
expressly
out of order. Plaintiffs’ counsel
bearing
the omitted
has no
on
Obviously,
admits that there was.
appeal.
Producer’s Constr. Co. v.
attorneys
court was
when the
(Tex.1984);
Muegge, 669 S.W.2d
agreed
post-
because
was when she
53(d).
appellant
An
poned
days
the trial two
to accommodate
53(d)
comply
either
with rule
or file a com-
plaintiffs’
anticipa-
counsel. Even if no one
facts;
plete statement of
it will
otherwise
events,
ted precisely the ultimate turn of
presumed
portions sup-
that the omitted
appellate
how can this
court hold that the
port
judgment. Englander
v. Ken
Co.
abused her discretion in follow-
(Tex.1968);
nedy, 428
Prather
S.W.2d
agreement
pres-
made
her
McNally,
125-26
ence and
her consent?
1988, writ);
App.
Ball v. Farm
— Dallas
Ass’n,
especially
message
I am
Savings
troubled
& Home
judges,
this
sends to trial
de
decision
who 425
Worth
— Fort
struggle daily
push
nied);
Group,
City
cases to trial while
Texas
Inc. v.
Constr.
being
Pasadena,
at the same time
flexible and reason-
(Tex.App.—Houston 1983,
dism’d).
accommodating
able in
the schedules of
[14th Dist.]
lawyers
Devco, Ltd.,
Murray
and witnesses.
Intimidated
also
See
decision,
may
rigidly deny
557-58
some courts
now
plaintiff’s request
postpone-
for a short
bringing
An
has
burden of
*8
ground
ment on the
they
appellate
prove
court a record “to
meaningful
have
to let witnesses
discretion
error and that it was harmful.” Escontri
order,
testify
.plain-
out of
even when the
697,
Apodaca,
as v.
699
attorney
tiff’s
he did in
initially agrees, as
50(d).
1982);
appellate
An
Tex.R.App.P.
this case.
error is
court cannot determine whether
complete
2. Partial statement
The ma- harmless or reversible without a
offacts.
308,
Hulse,
jority has found
record.
362 S.W.2d
reversible error even
Dennis v.
(Tex.1962);
though plaintiff brought
Casualty
only
forward
a 310
Gordon v. Aetna
Co.,
602,
mony
approach, ap-
Surety
603-604
we need. Under that
&
1961,
ref’d);
(Tex.Civ.App.
pellate
apparently
courts would
decide ad
— Eastland
Co.,
53(d)
DeLeon v. Otis Elevator
610 S.W.2d hoc when to enforce rule
and when
179,
(Tex.Civ.App.
181-82
Antonio not to.
— San
n.r.e.).
ref 'd
This rule
has been
consequences
failing
to follow
applied when a court allowed a rebuttal
53(d)
presume
rule
are clear. We must
only
out of
and
witness
parts
support
that the omitted
of the trial
partial
of facts
filed.
Flora
ruling,
plaintiffs
the court’s
and that
have
Scott,
(Tex.Civ.App.
not shown reversible error.
n.r.e.).
—Dallas
writ ref’d
Improper
3.
reversible error standard.
suggest
I do not
that we have a short
The majority’s
analysis
reversible error
facts;
statement of
it consists
five vol-
incorrect, perpetuating
began
error
plus
arguments.
umes
the final
But we do
Co.,
Management
in Nix. v. H.R.
eight-
testified in
not know who else
(Tex.App.
Antonio
S.W.2d 573
— San
they
about,
day
issues
testified
n.r.e.).
majority
on
writ ref'd
relies
The statement
or what
said.
of facts
language
says
appellant
from Nix that
entirely
testimony
consists
of the
of four
showing
error
establishes reversible
(plain-
Doctors Helfrick
witnesses:
“materially
that the trial was
unfair....
(defen-
expert),
tiffs’
Schow
Verne
the trial is contested and the evi
[W]hen
(defen-
experts),
dant’s
and Christiansen
sharply conflicting,
dence is
the error re
dant).
days
testimony (Thursday
Two
sults in a
unfair trial without
6)
Friday,
November 5 and
miss-
(emphasis add
showing more.” Id. at 576
ing completely. The record does not even
ed).
adopted
Not one Texas court has
plaintiff,
contain the
If
reinterpretation
Nix
of harmless error.
Three
Mrs. Prezelski.
other witnesses—
law,
majority’s analysis
any
were sound
Morales,
Kinsey,
Ms.
Mrs.
and Dr. John-
Texaco,
trial errors in Pennzoil v.
2—which
mentioned
name in the final
son—were
qualifies
surely
as a “contested” trial
arguments,
but their
is not be-
“sharply
which the evidence was
conflict
fore us. We cannot be sure that we are
ing”
have been reversible “without
—would
privy
everything
that bears on the harm-
showing more.”
testifying
fulness of the witnesses’
speculate
order. We can
about wheth-
in-
cite two cases
Nix
er,
81(b)(1),
under TEX.R.APP.P.
this se- volving
strikes.
erroneous allocation
quence of
“reasonably
Co.,
events was
calculat-
Ins.
See Lorusso v. Members Mut.
probably
ed to cause and
did
rendi-
(Tex.1980);
cause
S.W.2d 818
Patterson Dental
improper judgment.”
tion of an
Dunn,
rights as was reasons, respectfully dis- For all these calculated to cause and did cause majority’s opinion judg- sent from the improper judgment.” rendition of an That reversing ment for a new trial. requires faithfully standard us to assess record, the entire onerous and time-con-
suming may as that task be.
Recently supreme applied court has 81(b)(1)
rule and evaluated the entire