Glynn Walker and Melinda Dea Walker v. William Ralph Layne Walker A/K/A Layne Walker, Cynthia Walker, and Waltley Rentals, LLC

Affirmed and Memorandum Opinion filed March 5, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00549-CV

GLYNN WALKER AND MELINDA DEA WALKER, Appellants

V.
WILLIAM RALPH LAYNE WALKER A/K/A LAYNE WALKER,
CYNTHIA WALKER, AND WALTLEY RENTALS, LLC, Appellees

On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 15-CV-0354-A

MEMORANDUM OPINION

Appellants Glynn and Melinda Walker filed this action regarding ownership
of a beach property in Port Bolivar, Texas. Glynn and Melinda allege that Glynn’s
father, Ronald Walker, now deceased, orally gave or promised Glynn ownership of
the property on which Glynn and Melinda built a beach house, but then, after a
family dispute arose, wrongfully conveyed the property and beach house to
Glynn’s brother, appellee Layne Walker, who subsequently sold it to appellee
Waltley Rentals, LLC. Glynn and Melinda have brought several claims in their
lawsuit, including unjust enrichment and good faith improvements, and they have
sought relief that includes restitution of ownership rights in the property. Appellees
have raised several defenses, including the equitable defense of unclean hands.

This is the third appeal in this case. In our first opinion, we affirmed in part,
and reversed and remanded in part, the trial court’s grant of summary judgment
favoring Ronald and Layne. Walker v. Walker, No. 14-16-00357-CV, 2017 WL
1181359, at *13 (Tex. App.—Houston [14th Dist.] Mar. 30, 2017, no pet.) (mem.
op.). In our second opinion, we reversed and remanded another grant of summary
judgment favoring Ronald and Layne. Walker v. Walker, 631 S.W.3d 259, 269
(Tex. App.—Houston [14th Dist.] 2020, no pet.). The present appeal comes to us
after a jury trial and final judgment favoring appellees on all remaining claims.1

In four issues, Glynn and Melinda contend that (1) the jury’s finding of
unclean hands was unsupported by legally or factually sufficient evidence; (2) the
jury’s negative answer on the good faith improvements question was against the
great weight and preponderance of the evidence; (3) the jury’s failure to find that
Glynn and Melinda were entitled to restitution was against the great weight and
preponderance of the evidence; and (4) appellees’ counsel made improper and
incurable closing arguments to the jury. Finding no error, we affirm the trial
court’s judgment.

Background

In July 2013, Ronald bought several tracts of land near the beach in Port
Bolivar with the idea that his sons, Glynn and Layne, would build beach houses on

1
Ronald passed away during the course of this litigation and neither he nor his estate is a
party to this appeal. Although Layne’s wife, Cynthia, participated in the trial below and is listed
on appellees’ brief, Glynn and Melinda do not raise any issues in regard to Cynthia.

2
the tracts. Each brother did so, with Ronald providing them over $100,000 a piece
toward construction costs. Glynn asserted that he additionally took out a home
equity loan secured by his existing home to help pay for construction. It is
undisputed that during and after construction, legal title for the property on which
Glynn was constructing a beach house remained with Ronald. Glynn alleged,
however, that Ronald made representations that the property belonged to or would
belong to Glynn and title was only being kept in Ronald’s name because there was
an ongoing suit to quiet title involving the property and a third party. Ronald
insisted, however, that he never intended to gift the properties to Glynn and Layne
but instead intended to leave the properties to them in his will.

In March 2015, after construction was completed, a family dispute arose
with Glynn and Melinda on one side and Ronald and Layne on the other. As a
result of this dispute, Glynn and Melinda moved their belongings out of the beach
house that Glynn had constructed and Ronald conveyed the entirety of the property
to Layne.

Glynn and Melinda filed suit, alleging that they owned equitable title to two
of the lots that Ronald conveyed to Layne through an oral parol gift from Ronald.
They also asserted a theory of promissory estoppel against Ronald and theories of
unjust enrichment and breach of fiduciary duty against Layne. Over the course of
the litigation, Ronald died and was replaced by his estate in the proceedings and
Layne sold the property to Waltley Rentals, who was then named as a defendant by
Glynn and Melinda. At trial, Glynn and Melinda did not pursue their promissory
estoppel claim against Ronald’s estate but pursued equitable claims for unjust
enrichment and good faith improvements and sought restitution of ownership in the

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property.2 Appellees continued to assert their unclean hands defense.

The jury charge consisted of six questions and related instructions. In
response to Question 1, the jury found that Glynn and Melinda had “unclean
hands” in regard to ownership of the property. Language in the charge following
Question 1, but before Question 2, instructed the jury: “[i]f you answered “No” to
Question No. 1, then answer the following questions. Otherwise, do not answer the
following questions.” The jury therefore did not answer Question 2, regarding
unjust enrichment, or Question 3, regarding unjust enrichment damages. The jury,
however, answered Question 4, concerning good faith improvements to the
property.3 In response to Question 4, the jury found Glynn and Melinda did not
make improvements in the good faith belief that they owned the property. Question
5 inquired about the value of the improvements and was conditioned on a positive
answer to Question 4, so the jury did not answer Question 5. Question 6 asked
whether Glynn and Melinda should receive legal title to the property in restitution,
to which the jury responded “no.”

In accordance with the jury verdict, the trial court entered judgment favoring
appellees on all claims against them. The trial court further dismissed any
remaining claims against Ronald’s estate based on the fact that Glynn and Melinda
elected only to pursue claims against appellees Layne, Cynthia, and Waltley.

We will begin by addressing Glynn and Melinda’s claims against Layne
before turning to Waltley’s role in this appeal. Lastly, we will examine Glynn and

2
The trial court noted in the judgment that Ronald’s estate had not been properly served
and that Glynn and Melinda chose to proceed only against the other defendants.
3
Although we decline to speculate as to why the jury answered Question 4 despite the
instruction after Question 1 stating to not answer the questions that followed, we do note that the
charge included the following instruction before Question 3: “If you answered “Yes” to Question
No. 2, then answer the following question. Otherwise, do not answer the following question, but
go on to Question No. 4.”

4
Melinda’s contentions regarding closing argument. As stated, Glynn and Melinda
do not raise any issues concerning Cynthia.

Claims Against Layne

In their first issue, Glynn and Melinda challenge the sufficiency of the
evidence to support the jury’s “yes” answer to Question 1, which asked whether
Glynn and Melinda had unclean hands in regard to ownership of the property.
Specifically, regarding Layne, Glynn and Melinda contend that there was no
evidence that he suffered serious harm due to Glynn or Melinda’s conduct, or,
alternatively, that the jury’s answer was against the great weight and
preponderance of the evidence because the evidence established Layne was not
harmed but instead received a windfall.

The equitable doctrine of unclean hands may be applied only to one whose
own conduct in connection with the same matter or transaction has been
unconscientious, unjust, or marked by a want of good faith, or one who has
violated the principles of equity and righteous dealing. E.g., In re Jim Walter
Homes, Inc., 207 S.W.3d 888, 899 (Tex. App.—Houston [14th Dist.] 2006, no
pet.). The complaining party must also show that they were seriously harmed by
the alleged conduct and that the wrong complained of cannot be corrected without
applying the doctrine. Id.

Question 1 asked:

Did Glynn Walker and Melinda Walker have “unclean hands”
with regard to the alleged ownership of the property located at 1508
Galveston Avenue, Port Bolivar, Texas 77650?
“Unclean Hands” means one whose conduct in connection with
the same matter or transaction has been unconscientious, unjust, or
marked by a want of good faith, or one who has violated the principles
of equity and righteous dealing.

5
The jury answered the question “yes.”

As can readily be seen, the jury charge omitted the very element of the
unclean hands defense that Glynn and Melinda challenge, i.e., that the complaining
party must demonstrate serious harm. Pursuant to Texas Rule of Civil Procedure
279, when an incomplete ground of recovery or defense is submitted without
complaint, the parties are deemed to have waived a jury trial on any omitted
elements and to have agreed to submit any such elements to the trial court. Tex. R.
Civ. P. 279; Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 2002); Clouse
v. Levin, 339 S.W.3d 766, 770 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
The trial court may then make written findings on the omitted elements at a party’s
request, but when, as here, the court does not make such findings, the omitted
elements are deemed found by the court in a manner supporting the judgment if the
deemed findings are supported by some evidence. In re J.F.C., 96 S.W.3d 256,
262–63 (Tex. 2002); Clouse, 339 S.W.3d at 770. We interpret Glynn and
Melinda’s first issue as challenging the sufficiency of the evidence to support the
deemed finding on serious harm. See In re J.F.C., 96 S.W.3d at 273 (“an appellate
court will review . . . challenges to the legal and factual sufficiency of the evidence
supporting the omitted finding”).

In their brief, Glynn and Melinda describe their relevant conduct as simply
building a beach house that is valued at more than the amount of money Ronald
expended for the project. They then suggest that Layne’s only assertions of harm
were based on his perception that Glynn had betrayed the family and showed a
lack of gratitude regarding the beach house project. They argue, without citation to
authority or analysis, that these supposed feelings did not constitute harm for
purposes of establishing an unclean hands defense. They emphasize that Glynn put
time, money, and effort in building a beach house that was then given to Layne and

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which Layne subsequently sold at a profit, thus receiving a windfall. They further
argue that any allegation Glynn misappropriated funds on the project was not
supported by the evidence.

In their brief, appellees contend that Glynn and Melinda are wrong to simply
view the question of harm in terms of a financial balance sheet, i.e., that so long as
Layne was unjustly enriched by receiving the property there could ultimately be no
serious harm to him. Appellees then point to Layne’s testimony at trial where he
discussed the expenses, difficulties, emotional stress, and damages caused by
Glynn and Melinda’s conduct regarding the beach house project. Layne explained
that when Glynn and Melinda abandoned the beach house, Layne incurred tens of
thousands of dollars in finishing, repairing, and replacing things at the house,
including replacing removed appliances as well as damaged flooring and windows,
and conducting sheetrock repairs and painting and caulking under the house. The
sheetrock was allegedly damaged when Glynn ripped down LED lighting near the
ceiling and because two-by-fours had been nailed to the wall as bedframes. Layne
recounted additional bills he was required to pay on the second beach house,
including utilities, taxes, and insurance, and he insisted he had not wanted the
obligations and responsibilities of owning a second beach house.

Layne further explained that Glynn’s conduct in abandoning the property
and making “vicious” allegations against Ronald and Layne had ruined any
enjoyment in what they had been trying to accomplish with the family compound
by the beach. He suggested that instead of being a place to relax and feel good on
visits, the very sight of the two houses began to immediately cause him “nothing
but anxiety” and the houses became a place they never wanted to visit. He
complained of mental anguish and damage to his reputation due to Glynn’s
defamatory allegations relating to the project. He spoke of anxiety and the loss of

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family relationships caused by Glynn’s “vicious” behavior. Cynthia, Layne’s wife,
also testified that the family had been “splintered.”

Layne further said that beyond Ronald’s prohibition on renting, he also did
not want to rent out the second house because they did not want their beach home
next to a rental house occupied by strangers. According to Layne, Ronald stopped
going to the beach compound because he could not take it emotionally, and the
dream Layne had of passing his beach house down to his “future grandkids” was
ruined. Layne stated that he finally sold both homes and took a loss on the sale of
the house that he had built. Lastly, he noted that his legal bills due to the dispute
Glynn caused were in excess of any amount Glynn had invested in building the
beach house.

Glynn and Melinda do not address any of these reported harms allegedly
caused by their conduct despite the fact that appellees list them in their brief with
supportive record citations. We find no support in the caselaw for Glynn and
Melinda’s suggestion that Layne could not have suffered serious harm because he
ultimately came out ahead financially. To the contrary, the unclean hands analysis
is typically part of a weighing or balancing of equities and not simply a
determination of whether a defendant ultimately gained financially. See, e.g., Bank
of Saipan v. CNG Fin. Corp., 380 F.3d 836, 841 (5th Cir. 2004) (explaining that
Texas courts often speak in terms of weighing or balancing the equities when
determining whether the doctrine of unclean hands was correctly applied in a
case); see also Sister Initiative, LLC v. Broughton Maint. Ass’n, No. 02-19-00102-
CV, 2020 WL 726785, at *29–30 (Tex. App.—Fort Worth Feb. 13, 2020, pet.
denied) (affirming trial court’s rejection of equitable claim where evidence
supported finding that party asserting claim had unclean hands despite the fact
opposing party may have received a windfall). We decline to make Glynn and

8
Melinda’s argument for them regarding whether Layne’s testimony constituted
sufficient evidence of serious harm. See Sister Initiative, 2020 WL 726785, at *29
(“It is not our job to make arguments for the parties.”).

Because the trial court’s deemed finding regarding serious harm as to Layne
was supported by evidence and Glynn and Melinda do not challenge the unclean
hands determination on any other basis, we overrule Glynn and Melinda’s first
issue to the extent that it challenged this deemed finding. See In re J.F.C., 96
S.W.3d at 262–63, 273.

As Glynn and Melinda appear to recognize, equitable claims are subject to
equitable defenses, such as unclean hands, and a trial court can refuse to grant
equitable relief upon a finding the party requesting such relief had unclean hands.
See Kroesche v. Wassar Logistics Holdings, LLC, No. 01-20-00047-CV, 2023 WL
1112002, at *25 (Tex. App.—Houston [1st Dist.] 2023, pet. denied); Stewart
Beach Condo. Homeowners Ass’n v. Gili N Prop Invs., LLC, 481 S.W.3d 336, 351
(Tex. App—Houston [1st Dist.] 2015, no pet.). Under their second and third
issues—respectively challenging the jury’s failure to find either that they made
good faith improvements or were entitled to restitution—Glynn and Melinda do
not suggest that their remaining claims survive against a finding of unclean hands.
Accordingly, we overrule these issues to the extent that they challenge the portion
of the judgment favoring Layne.

Claims Involving Waltley

In regard to Waltley, Glynn and Melinda argue that (1) there was no
evidence that it was seriously harmed by their conduct, thus, they did not have
unclean hands with respect to Waltley; (2) the jury’s negative answer on the good
faith improvements question was against the great weight and preponderance of the
evidence; and (3) the jury’s failure to find that Glynn and Melinda were entitled to
9
restitution of their rights in the property was against the great weight and
preponderance of the evidence. The question of whether Waltley was seriously
harmed by Glynn and Melinda’s conduct is a closer issue than whether Layne was
seriously harmed. But, even if we were to conclude that Waltley was not seriously
harmed, we would not reverse the take-nothing judgment favoring Waltley because
Glynn and Melinda have not established that the jury’s findings on good faith
improvements and restitution were against the great weight and preponderance of
the evidence.

As stated, in their second issue, Glynn and Melinda challenge the factual
sufficiency of the evidence to support the jury’s determination in response to
Question 4 that Glynn and Melinda did not make improvements to the property in
the good faith belief that they were the true owners of the property, i.e., that they
had good title to the property. See generally Wagner & Brown, Ltd. v. Sheppard,
282 S.W.3d 419, 425 (Tex. 2008) (“The principle is well established in equity that
a person who in good faith makes improvements upon property owned by another
is entitled to compensation therefor.”) (quoting Sharp v. Stacy, 535 S.W.2d 345,
351 (Tex. 1976), and citing Resol. Tr. Corp. v. Kemp, 951 F.2d 657, 665 (5th Cir.
1992) (“Under Texas law, a purchaser who makes improvements upon property in
the good faith belief that it has good title to the property is entitled to compensation
for the improvements.”)).4

4
Question 4 reads as follows:

Did Glynn Walker and Melinda Walker make improvements to the
property located at 1508 Galveston Avenue, Port Bolivar, Texas 77650 in the
good faith belief that they were the true owners of the property?

Answer “Yes” or “No.”

Under Texas law, one who makes improvements upon property in the
good faith belief that he has good title to the property is entitled to
10
In support of this assertion, Glynn and Melinda lean heavily on Glynn’s
testimony that Ronald was to transfer the deeds to the tracts of land to Glynn
whenever Glynn was ready after construction was completed and the quiet title
lawsuit was resolved. Contrary to Glynn and Melinda’s assertions, however, this
testimony appears to confirm that Glynn knew he did not have legal title to the
property at the time he constructed the beach house. Moreover, to the extent Glynn
and Melinda rely on this testimony to establish some form of equitable title, that
was not the theory submitted to the jury in Question 4, and, regardless, the jury
was free, as the sole judge of witness credibility, to reject Glynn’s testimony. See,
e.g., Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). In
his videotaped testimony, Ronald insisted that he always intended that the property
would be his homestead until he died and that Glynn had a copy of Ronald’s will
providing for transfer of the property upon Ronald’s death. The jury could have
reasonably concluded from Glynn and Ronald’s testimony that Glynn and Melinda
did not make improvements to the property in the good faith belief that they were
the true owners of the property, i.e., that they had good title to the property.5

compensation for the improvements.

The one making the improvements must show that the improvements were
made without actual or constructive notice of another party’s superior
rights in the property. Even constructive knowledge of superior claims
destroys a claim for improvements under the “good faith improver”
theory.

For one to qualify as a “good faith improver” under the rule of betterments
he must show not only that he believed that he was the true owner of the
land but also that he had reasonable grounds for that belief.[]

The “rule of betterments” or “good faith improver” theory includes a
requirement that the one making the improvements must have examined
the records to be in good faith.

As stated, the jury answered Question 4 “no.”
5
We additionally note that Glynn and Melinda spend a significant portion of their
11
Accordingly, we overrule Glynn and Melinda’s second issue.

In their third issue, Glynn and Melinda challenge the factual sufficiency of
the evidence to support the jury’s finding in response to Question 6 that Glynn and
Melinda were not entitled to the equitable remedy of restitution of their rights in
the property. This issue is rendered moot by the fact that Glynn and Melinda were
not successful in establishing any underlying equitable claim for which restitution
would be a proper remedy. Accordingly, we overrule their third issue.

Closing Argument

In their fourth issue, Glynn and Melinda contend that appellees’ counsel
made improper and incurable closing arguments to the jury. Trial counsel is
entitled to wide latitude in arguing the evidence, and reasonable inferences from
the evidence, to the jury. Wellons v. Valero Ref.-New Orleans, L.L.C., 616 S.W.3d
220, 231 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). Control over
counsel during closing argument is within the trial court’s sound discretion and
should not be disturbed absent clear abuse of that discretion. Id. If the probable
harm from an improper jury argument is curable, then the error must be preserved
by obtaining an adverse ruling on a timely objection, motion to instruct the jury, or
motion for mistrial. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680
(Tex. 2008) (per curiam). Only when argument is deemed so prejudicial and
inflammatory that its impact would not be curable by an instruction to disregard is
no objection necessary. Wellons, 616 S.W.3d at 231. And even then, the complaint
at least must be raised in a motion for new trial, as appellants did here. See Phillips
v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).

argument under the second issue discussing the elements of a basic unjust enrichment claim, but
they only pursued such a claim against Layne and not against Waltley. These arguments
therefore have no bearing on our analysis of the good faith improvements claim as it relates to
Waltley.

12
In order to show that Layne’s and Waltley’s counsel made incurable
arguments, Glynn and Melinda must prove: (1) an improper argument was made;
(2) it was not invited or provoked; (3) it was not curable by a prompt withdrawal of
the statement by counsel or a reprimand or instruction by the trial court; and (4) by
its nature, degree, and extent, the argument constituted harmful error based on an
examination of the entire record to determine the argument’s probable effect on a
material finding. Wellons, 616 S.W.3d at 231. The duration of the argument,
whether it was repeated or abandoned, and whether there was cumulative error are
factors for consideration. Id. Glynn and Melinda must also show that the
probability the improper argument caused harm is greater than the probability the
verdict was grounded on proper proceedings and evidence. Id. Instances of truly
incurable jury argument are rare. Phillips, 288 S.W.3d at 883. Glynn and Melinda
must demonstrate that “the offensive argument was so extreme that a ‘juror of
ordinary intelligence could have been persuaded by that argument to agree to a
verdict contrary to that to which he would have agreed but for such argument.’” Id.
(quoting Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404, 404 (1954)).

Glynn and Melinda first contend that Layne’s counsel accused their counsel
of suborning perjury based on three different arguments. They then allege that
Layne’s counsel argued outside the record and that Waltley’s counsel engaged in
improper bolstering of a witness and an oversimplification of the issues in the case.
Glynn and Melinda did not object to any of these arguments at trial. We will begin
with the suborning perjury allegations before moving on to the other arguments.

While the Texas Supreme Court and this court have never addressed the
issue, the Court of Criminal Appeals has concluded that accusing counsel of
suborning perjury can be incurable argument in a criminal trial. See Gomez v.
State, 704 S.W.2d 770, 772–73 (Tex. Crim. App. 1985). However, we need not

13
address the issue in this case because the arguments here did not rise to the level of
accusing counsel of suborning perjury.

To suborn perjury means to act with the intent to promote or assist a witness
in providing false testimony. See Rodriguez v. MumboJumbo, L.L.C., 347 S.W.3d
924, 927 (Tex. App.—Dallas 2011, no pet.); Hardy v. State, 246 S.W.3d 290, 296
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Glynn and Melinda first assert
that Layne’s counsel accused their counsel of suborning perjury by being critical of
the order in which their counsel called witnesses. Nothing about this argument
rises to the level of suborning perjury; instead, it appears that Layne’s counsel was
trying to argue that Glynn’s counsel made the case unnecessarily confusing by his
order of witnesses. This is not an allegation of suborning perjury, as it contains no
claim that any witness testified falsely.

A closer call is Layne’s counsel’s argument about why Glynn was called last
in the case:

[T]he last witness, of course, is Glynn. Why did he come last? That
was purposeful. Glynn got to sit there and tell you—he got to sit and
watch everything transpire before he got to take the stand. And I’m
saying it’s purposeful, because he got to change his testimony in a
form it was presented.

I’ll give you an example. Thursday evening he testified about the
amount of money that he contributed to the home: I have no idea[]. It
would be a pure guess and speculation. Friday morning he comes up
with a straight figure. This was it. Very next day changes his
testimony, and it wasn’t on cross. Why? Oh, I computed it two days
ago. Remember that? Two days ago I made that calculation.

This argument, however, was permissible because counsel followed up his
statement with a factual rendition of how Glynn was able to adjust his testimony;
the argument did not accuse Glynn’s counsel of knowingly promoting false
testimony. See Magna v. State, 177 S.W.3d 670, 675 (Tex. App.—Houston [1st
14
Dist.] 2005, no pet.); Tilbury v. State, 890 S.W.2d 219, 223–24 (Tex. App.—Fort
Worth 1994, no pet.).

Glynn and Melinda also assert that the following argument was an
accusation of suborning perjury:

I’ll give you one other example. Remember when Melinda was on the
stand, she was asked questions by her attorney and she couldn’t
remember what the answer was supposed to be. And [her attorney]
said: Don’t you remember what we talked about? Don’t you
remember what we talked about?
We disagree. This was not an accusation of suborning perjury; it was simply a
factual recitation of how a witness had to be reminded of her previous deposition
testimony—a permissible argument.

Next, Glynn and Melinda accuse Layne’s counsel of arguing outside the
record and stating that Glynn and Melinda’s son, Ky, had been “shacked up with
his whore.” This, however, appears to be a misunderstanding as to what Layne’s
counsel was referring. During her testimony, Cynthia recounted a conversation that
she allegedly had with Melinda in which Melinda stated that Ronald had at one-
time been “shacked up with his whore.”6 In his closing remarks, it is clear that
Layne’s counsel was recalling that testimony and not suggesting that Ky had been
engaging in such conduct.

Regarding Waltley’s counsel’s closing argument, Glynn and Melinda first
assert that he engaged in improper bolstering of Ronald’s videotaped testimony. In
the cited portion of his argument, counsel recounted a personal kindness that
Ronald had shown him when counsel was a child, and counsel listed the judgeships
to which Ronald had been elected in his lifetime. Secondly, Glynn and Melinda
complain that Waltley’s counsel reduced the entire case to Glynn having assumed
6
In context, the phrase appears to refer simply to unmarried people living together.

15
the risk when he built a beach house on property that he did not own.

We begin our analysis by noting that while Glynn and Melinda cite to
boilerplate law on incurable jury argument, they do not offer any citations to
authority addressing similar assertions of incurable argument as they raise here.
Additionally, apart from generic statements that the arguments were improper or
suborned perjury, Glynn and Melinda do not provide specific analysis as to why
these statements by counsel constituted incurable argument. Although some of the
highlighted statements could be considered improper—we specifically note here
Waltley’s counsel’s recounting of a decades-old, personal kindness done to him by
Ronald—we are unconvinced that any improper argument could not have been
resolved by prompt withdrawal of the statement by counsel or a reprimand or
instruction by the trial court. See Wellons, 616 S.W.3d at 231. Ultimately, Glynn
and Melinda have failed to demonstrate that “the offensive argument was so
extreme that a ‘juror of ordinary intelligence could have been persuaded by that
argument to agree to a verdict contrary to that to which he would have agreed but
for such argument.’” Phillips, 288 S.W.3d at 883. Considering the record as a
whole, we conclude that the probability the allegedly improper jury argument
caused harm is not greater than the probability that the verdict was grounded on
proper proceedings and evidence. See Wellons, 616 S.W.3d at 231, 233.
Accordingly, we overrule the fourth issue.

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Conclusion

Having overruled all of Glynn and Melinda’s issues, we affirm the trial
court’s judgment.

/s/ Frances Bourliot
Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Zimmerer.

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