Opinion issued October 8, 2009
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00810-CV
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SHOWBIZ MULTIMEDIA, LLC; SHOWBIZ MULTIMEDIA ENTERTAINMENT, LLC; AND VINAY KARNA, Appellants
V.
MOUNTAIN STATES MORTGAGE CENTERS, INC.; REMINGTON FINANCIAL GROUP, INC; AND MATTHEW McMANUS, Appellees
On Appeal from the 387th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 04-CV-135299
CONCURRING OPINION
The Majority Opinion is understandable in its dutiful obeisance to the per curiam opinion of the Texas Supreme Court in Living Centers of Texas, Inc. v. Peñalver, 256 S.W.3d 678 (Tex. 2008). Because I find the approach of the majority opinion of the Fourth Court of Appeals in Living Centers of Texas, Inc. v. Peñalver, 217 S.W.3d 44 (Tex. App.—San Antonio 2006), rev’d, 256 S.W.3d 678 (Tex. 2008) to be more sound, I respectfully concur.
The majority opinion of the Fourth Court of Appeals followed the prevailing standard of review and analyzed the claim of incurable error in jury argument by viewing the argument in light of the entire record. Id. at 51. The per curiam opinion of the Texas Supreme Court relied on the leading case of Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835 (Tex. 1979) for several propositions. See Peñalver, 256 S.W.2d at 680–81. When it came to the standard of review, however, it ignored the standard of looking at the whole record and chose instead, without citing any authority, to expressly reject the general harmless error analysis. Id. at 681.
The problem that I see in rejecting a general harmless error analysis that includes viewing the complained-of argument in the context of the record of the trial as a whole is that it devolves into a question of whether the argument in isolation shocks the particular panel of justices making the call. Accordingly, I urge the Texas Supreme Court to reconsider its per curiam opinion in Peñalver with a view toward returning this area of the law to its more objective precedent.
Tim Taft
Justice
Panel consists of Justices Bland, Sharp, and Taft.
Justice Taft, concurring.