Haryanto v. Saeed

OPINION ON MOTION FOR REHEARING EN BANC

J. CURTISS BROWN, Chief Justice.

Mohammad Saeed, appellee, brought suit against Soerono Haryanto, appellant, alleging false imprisonment, negligence, gross negligence, a terroristic threat, assault, reckless conduct, and intentional infliction of emotional distress. The jury found for ap-pellee on all causes of actions and awarded him total damages of $8,000,000.00 including $1,000,000.00 in actual damages and $2,000,-000.00 in punitive damages. The trial court entered judgment on the jury’s findings. In five points of error, appellant challenges the voir dire and jury argument of appellee’s counsel, the sufficiency of the evidence supporting the jury award, and certain eviden-tiary rulings by the trial court. We affirm.

Appellee worked as a night auditor for the Marriott Hotel located in the medical center in Houston, Harris County. On February 23, 1990, appellee was asked to deliver some blank credit card vouchers to a room. This room was assigned to an aide of a Saudi Arabian prince. When appellee delivered the vouchers, appellant asked him to enter the room to act as a witness for a business transaction. Appellee recognized appellant as a “V.I.P.” or “special” guest of the hotel. Appellee was frightened by him. The night before, appellee had come in contact with appellant who became agitated and “came at him.” Earlier that same night, appellee witnessed an incident in which appellant became extremely intoxicated and had to be escorted from the hotel’s restaurant. Once appellee entered the room, appellant again became belligerent. He cursed appellee and repeatedly threatened to kill him. Appellant pulled a gun and ordered appellee to kneel down in front of him and to kiss his feet. Appellant told appellee that he would be “no more than a servant” in his country. Appellant called to the front desk and demanded $1,000,000.00 to spare appellee’s life. Finally, hotel management and security were able to secure the release of appellee after approximately thirty-five minutes to an hour of this treatment. Appellant did not leave the hotel quietly. As he was being escorted to the hotel lobby, appellant went into a fighting stance and began to threaten a hotel security guard. The police were called, but before they arrived, appellant left the premises.

Appellee began to suffer physical problems from this experience. He was diagnosed as suffering from post-traumatic stress disorder. He continued to work at the Marriott but quit when he felt hotel management began to treat him differently. Appellee felt the hotel’s concern was in placating appellant, a V.I.P. guest, and not in rectifying the wrong that had occurred. Appellee was unable to find employment so he left the country and went back to his family in Pakistan. During the four months that appellee was out of the country, he continued to see a doctor. When he returned, appellee was able to secure employment as a night auditor at another hotel chain. Appellee continues to have difficulty sleeping and is in fear of his life.

Appellee filed suit against appellant and his father four months after the incident occurred. Appellee later nonsuited appellant’s father. Appellant completely ignored the judicial process. He did not engage in any pre-trial discovery and did not appear at trial even though counsel for both parties had agreed to the trial setting. Trial was in March 1992, and lasted three days. During trial, appellant’s counsel cross-examined ap-pellee’s witnesses, but because he did not designate witnesses, he could not present a case-in-chief.

In the first point of error, appellant contends that the trial court committed reversible error by allowing certain statements made by appellee’s counsel during voir dire and closing argument. Because the standards of review for determining error in voir *918dire and closing argument are different, we analyze each separately.

Voir Dire

During voir dire, counsel for appellee made light of appellant’s absence from the trial and the fact that appellant and his family were wealthy foreign nationals. He also commented on the fact that appellant wielded a gun during the incident in question and that appellant’s conduct, while criminal in nature, was subject to civil damages. Counsel further instructed jurors on the purpose of punitive damages and suggested that such damages were permissible to send a message to appellant and other visitors to this country that such conduct would not be tolerated. Appellant’s counsel made a single attempt at an objection during voir dire:

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One of the things that happens to be true at least in some circumstances in the United States, is that if you have money, you can do things easily. Some things you can do instead that people that don’t have money can’t do. That’s the way things are. If you have the money, you can drive a better car. If you don’t then you don’t drive a better car. Does anybody feel like that the fact that someone has comparable wealth at their disposal—
Mr. Jefferson: Your Honor, I’m going to object to the grounds that—
Mr. Pearce: That we are having a trial by wealth instead of trial by facts.
The Court: What rule of evidence?
Mr. Pearce: I don’t have a rule of evidence.
The Court: Then your objection is overruled. Please limit your argument to proper voir dire.

Appellant did not object to any other statements and questions by appellee’s counsel and thus, failed to preserve error. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 707-08 (Tex.1989) (opinion on motion for rehearing) (plaintiffs in medical malpractice action preserved error in voir dire by timely objections); Tex.R.App.P. 52(a). Even if the grounds for appellant’s complaint do not require an objection because they are apparent from the record, we find that appellant’s complaint is without merit. See Babcock, 767 S.W.2d at 708.

The right to a fair and impartial trial is guaranteed by the Constitution and by statute. See Tex.Const. art. I, § 15; Tex. Gov’t Code Ann. § 62.105 (Vernon Supp. 1993). Counsel is permitted broad latitude on voir dire. Texas Employers Ins. Assoc. v. Loesch, 538 S.W.2d 435, 440 (Tex.Civ.App.— Waco 1976 writ ref'd n.r.e.). Voir dire examination is a matter within the sound discretion of the trial judge and his or her judgment will not be reversed absent a clear abuse of discretion. Babcock, 767 S.W.2d at 709 (citing Loesch, 538 S.W.2d at 440). A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges. Id. (citing Dickson v. Burlington N.R.R., 730 S.W.2d 82, 85 (Tex.App. — Fort Worth 1987, writ ref'd n.r.e.)). The purpose of many of counsel’s statements and questions was to ascertain whether prospective jurors had any connection or relationship with appellant or his family as well as whether jurors were biased or prejudiced in favor of, or against appellant because of his nationality, wealth, and status. Those matters are clearly within the scope of proper voir dire examination. See Tex.Gov’t Code Ann. § 62.105; Gonzales v. Texas Employers Insurance Association, 419 S.W.2d 203, 209 (Tex.Civ.App. — Austin 1967, no writ). In addition, we find that other statements and questions by counsel touching upon appellant’s absence from trial, the criminal versus civil nature of appellant’s conduct, and prospective jurors’ attitudes toward the purpose of punitive damages are all proper subjects of voir dire examination.

Appellant also accuses appellee’s counsel of falsely declaring that appellant was arrested and a fugitive from justice. The record reflects that appellant was not charged with a crime but was merely detained and released. Although counsel did state that “the evidence will be” that appellant was “arrested” and “taken downtown,” the trial judge cured any harm when he *919interjected immediately thereafter to instruct the jury that what the attorneys say during voir dire is not evidence.

This is simply not a case where on voir dire one party was prohibited from delving into a topic explored by the other party. Counsel for appellant had an equal opportunity to question prospective jurors about the subject matter touched upon by appellee’s counsel and more importantly, to inquire into the effect of comments by appellee’s counsel. Appellant’s counsel made the following inquiry:

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Do any of you feel that the comments that have been made by Mr. Steidley, or Steid-ley, having to do with his allegations and his statement that there was a gun, that Mr. Saeed was held for hours, and these people are Philippino [sic] and we need to send a message to the Philippines and do any of you know Imelda Marcos, would you be surprised to find that Mr. Haryanto is not Philippino [sic], but is Indonesian? And would you be surprised that he has no association or knowledge of Imelda Marcos?
The fact that these comments have been made by Mr. Steidley as a preclude [sic] to the presentation of what the real facts are in this case, has any of that prejudiced any of you to the extent that you can’t sit here and listen to the evidence from both sides in this case and make a just and fair decision based on the evidences [sic] presented from the stand and presented in this courtroom, and not what Mr. Steidley says? Do any of you have a problem with that?

Clearly, appellant’s counsel was not deterred from remedying any prejudice that might have occurred as a result of the remarks made by appellee’s counsel during voir dire. Thus, even if he had preserved error, appellant failed to show any harm. Accordingly, we find that appellant was not deprived of a fair and impartial jury.

Closing Jury Argument

Counsel’s theory of the case was that the attack was motivated not only by appellant’s belief that he could do as he pleased because of his status as a wealthy foreign national and V.I.P. guest but also by his prejudice toward appellee. Counsel also sought to emphasize appellant’s disdain for this country’s legal system. As we read his argument, counsel attempted to make the following points to the jury: (1) that they should render a verdict that holds appellant accountable for his conduct and does not allow him to escape justice by virtue of his wealth and status as a foreign national; (2) that they should render a verdict that upholds the values of equality that America represents; (3) that they should render a verdict that sends a message to the absent appellant and other visitors to America that they cannot ignore our judicial system or impose their own country’s laws or values upon our citizens but must abide by our laws; and (4) that a stringent civil, as opposed to a criminal penalty, will have more of an effect on appellant. These points have their genesis in the record, as “nationality, wealth, and status” of the parties were more than mere incidental facts of this case.

To obtain reversal of a judgment on the basis of an improper jury argument, an appellant must prove: (1) error; (2) that was not invited or provoked; (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial; (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. Standard Fire Insurance Company v. Reese, 584 S.W.2d 835, 839 (Tex.1979). There are only rare instances of incurable harm from improper argument. Id. In those cases, appellant must show that the argument by its nature, degree, and extent constituted reversibly harmful error. Id. That is, “the probability that the improper argument caused harm” must be greater than “the probability that the verdict was based upon proper proceedings and evidence.” Id. In making that determination, an appellate court must examine the improper jury argument in light of the whole case, beginning with voir dire and ending with closing argument. Id. The court must look at the length of the argument, whether it was re*920peated or abandoned, whether there was cumulative error, and the probable effect of the argument on a material finding. Id.

Although he did not object to the complained of argument, appellant asserts that none was required because the argument was both improper and incurable. Appellant asserts that counsel’s argument was nothing more than an appeal to prejudice based on race, ethnicity, and nationality. In support of his position, appellant cites cases which hold that argument appealing to race, ethnicity or nationality is incurable. See Texas Employers’ Ins. Ass’n v. Hayward, 153 Tex. 242, 266 S.W.2d 856 (1954), Texas Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859 (Tex.App. — San Antonio 1990, writ denied); Texas Employers’ Ins. Ass’n v. Jones, 361 S.W.2d 725 (Tex.Civ.App. — Austin 1962, writ ref'd n.r.e.), Basanez v. Union Bus Lines, 132 S.W.2d 432 (Tex.App. — San Antonio 1939, no writ). However, in those cases the issues of race, ethnicity or nationality were injected into the case solely by counsel’s argument. See Carson v. Amberton, 148 S.W.2d 972, 975 (Tex.App. — San Antonio 1941, writ dism’d judgm. cor.) (emphasis added). None of those cases involved a situation where, as here, race, ethnicity or nationality existed by reason of the evidence necessarily relied upon by a party to establish his or her pleaded cause of action. See id. (in suit by administrator of Greek descent on behalf of deceased of Greek descent, opposing counsel’s references in closing argument to the veracity of his witnesses, also of Greek descent, held proper).

Here, appellee pled causes of action for false imprisonment, intentional infliction of emotional distress, and a “terroristic threat.” Appellant was an Indonesian national. His family was engaged in the international oil business and was wealthy. Because appellant’s father was being treated for an illness in the medical center, appellant and his family were frequent, long-term guests of the hotel. Appellee was a resident alien from Pakistan. He jumped ship several years earlier in an attempt to gain U.S. citizenship. Appellant’s counsel called attention to that fact during his own closing argument in an attempt to question appellee’s veracity. During the first couple of years, appellee stayed with a friend of his father but was eventually “turned out into the streets” when the friend “lost” the $4,200.00 in savings that appellee gave him. Appellee worked for years in low, hourly-wage jobs. Before the incident in question, appellant had been involved in “run-ins” with hotel staff, including appellee. During the incident, appellant detained appellee against his will and made threats and derogatory remarks to appellee based on appellee’s nationality and religion. As we described, appellant told appellee that he would be “no more than a servant” in his country. By forcing appellee at gunpoint to kneel before him, appellant’s conduct was particularly abhorrent to appellee because it was in direct contravention of his Islamic beliefs. Appellee, while not ordinarily prejudiced, became fearful and suspicious of Oriental people as a result of the incident. After appellee filed this lawsuit, appellant made his whereabouts unknown and ignored the judicial process. Appellant’s disdain for the legal system and the reality of the cultural and economic differences between the parties were raised by the evidence and cannot be ignored simply because it might be distasteful.

Here, the parties were of different nationalities and that difference was a motivating factor for appellant’s attack. None of the jurors was of the same nationality of the parties and counsel did not seek to align jurors with appellee or against appellant simply on the basis of race, ethnicity or nationality. Rather, the appeal to unity in the instant case was for all “citizens,” to stand against prejudice and disrespect of the legal system by any person, whatever their race, nationality or wealth. Based upon the particular facts of this case, we are not prepared to say that such an appeal was per se improper. Therefore, any alleged error during argument was not preserved by a proper objection. See Reese, 584 S.W.2d at 840-41.

Appellant also contends that counsel’s argument improperly cast him as a fugitive from criminal justice and inappropriately asked the jury to consider wealth in assessing actual damages. In support of the for*921mer contention, appellant refers to the following remark:

He was very close, I submit to pulling that trigger. If Mr. Tanguay hadn’t been there, I submit to you that he would have, and then been on a plane to Singapore. “The D.A. can’t get me here and I don’t know that because the courthouse is across the street, that Mr. Haryanto didn’t want to be around here.”

The trial court properly sustained an objection to this remark by appellant’s counsel because it was outside the record. Argument outside the record is ordinarily curable by a timely objection and prompt instruction to disregard. See id., 584 S.W.2d at 840-41. Although appellant’s counsel subsequently failed to request an instruction, argument along the lines complained of was discontinued. Thus, any error was cured. In support of the latter contention, appellant refers to the following remark:

... the only way you are going to be able to raise this man’s consciousness to teach him a lesson and punish him and deter him is to write down numbers in the actual damages and punitive damages in the blanks of these charges, is large numbers. And when I say large numbers, I mean large numbers to Mr. Soerono Haryanto. Put down half a million dollars on the actual damages’ blank. I’m not sure he will even bat an eye. He may.

References to a defendant’s financial ability is a proper subject of argument because it is relevant evidence and may be considered by the jury in its determination of the amount of punitive damages to be awarded. See Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988); see also Transmission Exchange Inc. v. Long, 821 S.W.2d 265, 273 (Tex.App. — Houston [1st Dist.] 1991, writ denied) (emphasis added). While appellee’s counsel alluded to appellant’s wealth at varying points in his argument, he never specifically requested the jury to award actual damages on that basis. Even if counsel’s remarks were error, it was waived because the objection at trial was only that counsel was suggesting a specific amount. An objection at trial which is not the same as the objection urged on appeal presents nothing for review. Exxon Corp. v. Allsup, 808 S.W.2d 648, 655 (Tex.App. — Corpus Christi 1991, writ denied). Because we find that error was not preserved in either voir dire or jury argument, we overrule appellant’s first point of error.

In his second point of error, appellant contends that the jury’s award of actual damages was not supported by sufficient evidence and excessive. Appellant requests a remittitur in the prayer for relief of his brief.

In determining whether damages are excessive, the standard of review is the same as for any factual insufficiency question. Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). That is, we must examine all the evidence in the record to determine whether sufficient evidence supports the damage award, remitting only if some portion is so factually insufficient, or so against the great weight and preponderance of the evidence as to be manifestly unjust. Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 905 (Tex.App. — Houston [14th Dist.] 1990, no writ) (citing Pope, 711 S.W.2d at 624). Question no. 8 was submitted in broad form. See 1 State BaR of Texas, Texas PatteRN JURY CHARGES PJC 7.02 (1991). The jury was first asked to determine what “sum of money” would “fairly and reasonably” compensate appellant for his injuries in the past and future. The jury was next instructed to consider the following elements of damages: (a) physical pain and mental anguish; (b) loss of earning capacity; (c) physical impairment; and (d) medical care. The jury was then asked to award a lump sum for both past and future damages. The jury awarded past damages of $500,000.00 and future damages of $500,000.00.

When a damages issue is submitted in broad form, an appellate court cannot ascertain with certainty what amount of the damages award is attributable to each element.. Greater Houston Transp. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App. — Corpus Christi 1993, writ pending); see also Johnson v. King, 821 S.W.2d 425, 429 (Tex.App. — Fort Worth 1991, writ denied). “Furthermore, when the elements of actual damages consid*922ered by the jury include the more amorpho-rous, discretionary damages, e.g., mental anguish, pain and suffering, physical impairment, and disfigurement, any amount awarded above the more definite damages such as past medical expenses and lost wages will be shunted to the jury.” Id. “Thus, under the current practice, a meaningful review on appeal of damages questions in broad form is extremely difficult.” Id.

In Greater Houston Tmnsp., the damage issue was submitted in broad form and the jury awarded $175,000.00 for past damages and $25,000.00 for future damages. Greater Houston Tramp., 850 S.W.2d at 588 n. 9. On appeal, the defendant complained of the sufficiency of the evidence to support certain elements of damages but failed to address all elements. 850 S.W.2d at 588. The court stated that “the only way that a defendant can successfully attack a multi-element damages award on appeal is to address each and every element and show that not a single element is supported by sufficient evidence.” 850 S.W.2d at 589. The court explained that “if there is just one element that is supported by the evidence, the damages award will be affirmed if it is supported by the evidence.” Id. The court held that the defendant “waived any complaint about the sufficiency of the evidence regarding actual damages by failing to request findings on each element of damages, and by failing to address all of the elements of damages in its argument.” Id. Likewise, in the instant case appellant failed to request findings on each element of damages or address all elements of damages in its argument and, therefore, failed to preserve error. See id. However, even if we were to review the “aggregate evidence,” we would conclude that it supports the award of actual damages. See id.

While the record was not fully developed, there is no question that appellee suffered •damages as a direct result of severe emotional distress inflicted upon him by appellant’s extreme and outrageous conduct. See Wornick Co. v. Casas, 856 S.W.2d 782 (Tex.1993); see also Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). Appellee testified that: (1) he was very scared during the entire incident and even began his “last prayers” because he “knew” appellant was going to kill him; (2) he was still seared when he saw appellant being escorted by security and later, when he filled out the incident report; (3) he became frightened when his boss suggested several days later that he meet appellant and his wife for dinner and became so nervous and frightened when his boss failed to show up for the meeting, that he asked the bartender to call security; and (4) his girlfriend broke off their relationship because of his panic and nervousness. Appellee’s testimony regarding his fear and anxiety was supported by the testimony of his immediate supervisor, Margaret Heilers-Turpin, and coworker, John McKeehnie. It was also supported by the medical records and the testimony of psychiatrist, Dr. Donald L. Thomas-son.

Immediately after the incident, appellee suffered from chest pains and visited a heart specialist at MacGregor Medical Association, who then referred him to Dr. Thomasson. Exhibit No. 3 is a $323.00 bill from MacGre-gor. Appellee saw Dr. Thomasson three to four times. Dr. Thomasson testified that he first saw appellee on March 1, 1990. Appel-lee had been suffering from chest pains, was unable to sleep, and had stomach pains since the incident. Before the incident, appellee’s history was unremarkable. Dr. Thomasson found that appellee was suffering from post-traumatic stress syndrome and prescribed an anti-depressant. Appellee also made several visits to a psychiatrist in Pakistan when he was there visiting his family. The incident caused appellee to suffer from heart palpitations, sleeplessness, and vomiting. Appellee also developed an ulcer for which he is still taking medication. Appellee is addicted to over-the-counter sleeping püls and has quit playing tennis and jogging due to his “physical condition.” Appellee was forced to quit his job over this incident three months later because of the treatment he received from his supervisors. When he left his job, he could not immediately find work and could not afford a doctor’s care. Appellee missed six months of work as a result of the incident. Ms. Heilers-Turpin testified that ap-pellee made $6.00-$7.00 per hour.

*923Appellee continues to have sleeping problems. He is still shaken by the incident and continues to live in fear of his life. Although appellee’s last visit was some twenty-two months before trial, Dr. Thomas-son testified that appellee would require three years of one-on-one counseling, once a week at $150.00/hr. and three years of group counseling, once a week at $75.00/hr. He also stated that appellee’s problems would continue in the future if left untreated. In a case involving egregious facts such as this one, where appellee has alleged, among other causes of action, false imprisonment, intentional infliction of emotional distress, and a “terroristic threat,” intangible or discretionary damages such as pain and mental anguish are going to constitute the majority of the injury. To recover damages for mental anguish, a plaintiff must prove more than mere worry, anxiety, vexation, embarrassment or anger. See Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 803 (Tex.App. — Dallas 1987, no writ) (opinion on motion for rehearing). Translating those damages into dollars is necessarily an arbitrary process. See Skaggs Alpha Beta, Inc. v. Nabhan, 808 S.W.2d 198, 202 (Tex.App. — El Paso 1991, writ pending). In the absence of any objective guidelines, we must ordinarily defer to the jury’s discretion in determining damages for pain and mental anguish. See LaCoure v. LaCoure, 820 S.W.2d 228, 234 (Tex.App. — El Paso 1991, writ denied). Based on the record before us, we cannot say the evidence is so against the great weight and preponderance of evidence as to be manifestly unjust. Because we find that jury’s award of actual damages is supported by the evidence, we overrule appellant’s second point of error.

In his third point of error, appellant contends that the jury’s award of punitive damages is not supported by sufficient evidence and excessive.

Question no. 9 asked the jury to award exemplary damages. The jury was instructed that “exemplary damages” meant “an amount that you may in your discretion award as example to others and as a penalty or by way of punishment, in addition to any amount you may have found as actual damages.” Appellant does not specifically attack the evidence supporting the jury’s finding of gross negligence in question no. 2, but asserts only that the punitive damages are not rationally related to the actual damages. See Wright v. Gifford Hill & Co., 725 S.W.2d 712, 714 (Tex.1987). An award of punitive damages rests upon the jury’s discretion and will not be set aside unless the amount is so large as to indicate that it is the result of passion and prejudice, or that the evidence was disregarded. Aetna Casualty and Sur. Co. v. Joseph, 769 S.W.2d 603, 607 (Tex.App. — Dallas 1989, no writ). To determine whether an award of exemplary damages is reasonable, we must consider the following factors:

(1) the nature of the wrong;
(2) the character of the conduct involved;
(3) the degree of culpability of the wrongdoer;
(4) the situation and sensibilities of the party concerned;
(5) the extent to which conduct offends a public sense of justice and propriety;
(6) the frequency of the wrongs committed; and
(7) the size of the award needed to deter similar wrongs in the future.

Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981); State Farm Mutual Ins. v. Zubiate, 808 S.W.2d 590, 599 (Tex.App. — El Paso 1991, writ denied).

The extreme and outrageous nature of appellant’s conduct is uncontroverted. See Wornick Co., 856 S.W.2d at 733; See also Twyman, 855 S.W.2d at 620-22. In addition, the ratio of actual to punitive damages is only 2 to 1 and well within the statutory cap. Tex.Civ.Prac. & Rem.Code Ann. § 41.007 (Vernon Supp.1993). We have thoroughly reviewed the record in light of the above factors and find that the jury’s award of punitive damages was reasonable. We overrule appellant’s third point of error.

In his fourth and fifth points of error, appellant contends the trial court erred in admitting billing records from the Marriott Hotel (Exhibit No. 2) and the testimony of appellee’s expert, Dr. Thomasson.

*924Appellant asserts that the Marriott Hotel bills were incurred by appellant’s family during their stay in late 1989, and were not relevant to any issue in the ease. Some of the documents included in Exhibit No. 2 appear to reflect several previous stays at the Marriott by appellant’s family and show numerous charges that were not incurred by appellant himself. To reverse the trial court’s judgment based upon error in the admission or exclusion of evidence, appellant must show that the trial court in fact committed error and that, based upon the entire record, the error was reasonably calculated to cause and did cause rendition of an improper judgment. Gee v. Liberty Fire Mutual Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). There is ordinarily no reversible error for erroneous rulings on the admissibility of evidence where the evidence in question is cumulative and not controlling on a material issue dispositive of the case. Id.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R.Civ.Evid. 401. In an attempt to explain some of his actions after the incident, appel-lee sought to establish at trial that the hotel showed favoritism toward appellant and pressured him (appellee) into those acts. Specifically, appellee contended that he was pressured to omit facts from an incident report, including the fact that appellant possessed a weapon, prompted to meet with appellant and his wife shortly after the incident, and ultimately forced to resign his job all because the hotel wanted to insulate appellant and his family from any negative ramifications of the incident. Exhibit No. 2, while not by itself material to the outcome of the case, was relevant and admissible because it helped demonstrate the hotel’s motive for pressuring appellee by showing that appellant and his family were regular guests of the hotel and provided substantial revenue. Moreover, the charges incurred by appellant’s family as represented in Exhibit No. 2 and the fact that appellant and his family were frequent hotel guests were subjects repeatedly mentioned throughout the trial without objection by appellant’s counsel. Thus, any error in admitting Exhibit No. 2 was harmless because it was cumulative of other similar evidence in the record. See id.; see also Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984).

Appellant also contends that Dr. Thomasson should not have been allowed to testify because he was not properly designated as an expert thirty days before trial as required by the discovery rules. See Tex. R.Civ.P. 166b(6)(b) In August 1991, pursuant to the court’s docket control order, appel-lee designated a “Dr. Donald L. Thompson, 6575 West Loop South, Houston, Texas, 660-9944.” As we described earlier, Dr. Donald L. Thomasson treated appellee for his psychological problems at the Hauser Clinic. As best we can discern from his trial objection, appellant’s counsel explained that he was furnished with Dr. Thomasson’s reports from the Hauser Clinic but, based on appellant’s designation, was expecting trial testimony by a “Dr. Thompson” from another health care facility. The court overruled appellant’s objection finding that appellee established good cause for admitting Dr. Thomasson’s testimony. The court stated that the telephone number and address were properly identified and that the name, while incorrect, was the result of a typographical error. The court noted that “any amount of inquiry would have located the proper name of the witness.”

Failure of a party to supplement discovery results in the automatic exclusion of testimony of an unidentified witness. See Gee, 765 S.W.2d at 395 (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986)); Tex.R.Civ.P. 215(5). The testimony of an unidentified witness is admissible if the trial court finds that good cause exists for allowing the witness to testify. Gee, 765 S.W.2d at 395 (citing Yeldell v. Holiday Hills Retirement & Nursing Ctr., Inc., 701 S.W.2d 243, 246 (Tex.1985)). It is within the trial court’s discretion to determine whether good cause exists. Gee, 765 S.W.2d at 396.

We are not convinced that this is a case of an “unidentified witness.” Clearly, appellee’s counsel knew at the time of trial that Dr. Thomasson had treated appellee at the Hau-*925ser Clinic. The name listed on the designation was substantially correct. It merely replaced an “a” with a “p” and omitted an “s.” The telephone number listed on the designation correctly identified the number to the Hauser Clinic. The address listed on the designation, however, incorrectly identified the address for the Hauser Clinic. Although Dr. Thomasson had not practiced at the clinic since December 1990, appellant made no attempt to depose appellee’s expert or to conduct discovery of any kind regarding the identity of the expert or the substance of his proposed testimony. Hence, we find no error by the trial court in ruling that good cause existed to admit Dr. Thomasson’s testimony.

Even if it was error to admit that testimony, such error was harmless because it was merely cumulative of other properly admitted evidence. See Gee, 765 S.W.2d at 296. At the time of Dr. Thomasson’s testimony, medical records from MacGregor and the Hauser Clinic were before the jury. Those records detailed appellee’s symptoms. The clinic records specifically included the diagnosis of post-traumatic stress disorder. The jury also heard testimony regarding ap-pellee’s symptoms from appellee, Ms. Heil-ers-Turpin, and Mr. McKechnie. Thus, even without Dr. Thomasson’s testimony there was evidence that substantiated appellee’s damages claim. Accordingly, we overrule appellant’s fourth and fifth points of error and affirm the judgment of the trial court.