Living Centers of Texas, Inc. v. Penalver

Dissenting opinion by

SARAH B. DUNCAN, Justice.

Ten years ago this Court adopted the test for incurable jury argument first enunciated by Chief Justice Ramey for the Tyler Court of Appeals in Boone v. Panola County, 880 S.W.2d 195, 198 (Tex.App.-Tyler 1994, no writ). See Macias v. Ramos, 917 S.W.2d 371, 375 (Tex.App.-San Antonio 1996, no writ). The test is two-pronged: “whether the argument, when viewed in light of the entire record was so inflammatory as to”: (1) “strike at the heart of the adversarial process or” (2) “appeal to fundamental prejudices.” Id. at 375. The second prong of the test…