cumulative error in Texas

2026“The cumulative-error doctrine does not apply unless the complained- of errors have been preserved for appeal and are actually errors.” Schmidt v. State, 612 S.W.3d 359 , 372 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.

2024“The cumulative-error doctrine does not apply unless the complained- of errors have been preserved for appeal and are actually errors.” Schmidt v. State, 612 S.W.3d 359 , 372 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.

2024However, the cumulative-error doctrine affords relief only when constitutional errors so “fatally infect the trial” that they violate the trial’s “fundamental fairness.” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004).

2024See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (quoting United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) (“The cumulative error doctrine provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s ‘fundamental fairness.’”)).

2022Specifically, Wyatt complains of (1) the trial court’s granting of Turbo’s protective order denying Wyatt the “right to show the jury the instrumentality that was the basis of the lawsuit”; (2) the introduction of two superseded petitions but the refusal of Wyatt’s request to introduce a superseded answer describing the dangerous condition as “open and obvious”; (3) the refusal to include a res ipsa loquitur definition in the jury charge; and (4) the trial court’s refusal to instruct the jury to disregard Turbo’s counsel’s representation that Turbo is a single restaurant and admonishment to Wy

2022Specifically, Wyatt complains of (1) the trial court’s granting of Turbo’s protective order denying Wyatt the “right to show the jury the instrumentality that was the basis of the lawsuit”; (2) the introduction of two superseded petitions but the refusal of Wyatt’s request to introduce a superseded answer describing the dangerous condition as “open and obvious”; (3) the refusal to include a res ipsa loquitur definition in the jury charge; and (4) the trial court’s refusal to instruct the jury to disregard Turbo’s counsel’s representation that Turbo is a single restaurant and admonishment to Wy

2017Page 16 “A reviewing court may reverse a lower-court judgment under the cumulative- error doctrine when the record shows a number of instances or error, no one instance being sufficient to call for reversal, yet all instances taken together may do so.” Rhey v. Redic, 408 S.W.3d 440, 462 (Tex. App.—El Paso 2013, no pet.) (citing Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494 , 168 S.W.2d 642, 645 (1943); Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex. App.— Austin 1991 , no writ)).

2017Page 16 “A reviewing court may reverse a lower-court judgment under the cumulative- error doctrine when the record shows a number of instances or error, no one instance being sufficient to call for reversal, yet all instances taken together may do so.” Rhey v. Redic, 408 S.W.3d 440, 462 (Tex. App.—El Paso 2013, no pet.) (citing Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494 , 168 S.W.2d 642, 645 (1943); Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex. App.— Austin 1991 , no writ)).

2021However, the Texas Court of Criminal Appeals has held that there is “no authority holding that non-errors may in their cumulative effect cause error.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009); see Jenkins, 493 S.W.3d at 613 ; Temple v. State, 342 S.W.3d 572, 612 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013) (providing that reviewing courts do not consider the effect of waived errors under the cumulative error doctrine); see also Escobedo v. State, No. 13-19-00205-CR, 2020 WL 6052549 , at *6 (Tex. App.—Corpus Christi–Edinburg Oct. 8, 2020

2019See Jenkins v. State, 493 S.W.3d 583 , 613 & n.82 (Tex. Crim. App. 2016) (citing Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009)); Gamboa, 296 S.W.3d at 585 (“Though it is possible for a number of errors to cumulatively rise to the point where they become harmful, we have never found that ‘non-errors may in their cumulative effect cause error.’”(footnotes omitted)); Priddy v. State, No. 02-13-00586-CR, 2014 WL 5307180 , at *1 (Tex. App.—Fort Worth Oct. 16, 2014, no pet.) (mem. op., not designated for publication) (citing Gamboa for the proposition that for the doctrine of cumulativ

2024See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (quoting United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) (“The cumulative error doctrine provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s ‘fundamental fairness.’”)).

2021“The cumulative error doctrine provides relief only when constitutional errors so fatally infect the trial that they violated the trial’s fundamental fairness.” Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (quotation omitted).

2024See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.”). 44 a reasonable investigation with respect to the claim,” or (iii) “Denying coverage for a claim in part or in full if TWIA’s liability has become reasonably clear as a result of its investigation with respect to the denied claim,” and (b) included an improper instruction implying that “TWIA i

2024See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.”). 44 a reasonable investigation with respect to the claim,” or (iii) “Denying coverage for a claim in part or in full if TWIA’s liability has become reasonably clear as a result of its investigation with respect to the denied claim,” and (b) included an improper instruction implying that “TWIA i

2022See, e.g., Rhey, 408 S.W.3d at 462 (recognizing that a reviewing court may reverse a lower-court judgment under the cumulative-error doctrine when the record shows many instances of error, no one instance being sufficient to call for reversal, yet all the instances taken together may do so); see also Lakeside Vill.

2020The cumulative error doctrine allows an appellate court to reverse a judgment if the trial court committed numerous errors that individually do not support reversal but “taken together may do so.” Rhey v. Redic, 408 S.W.3d 440, 462 (Tex. App.—El Paso 2013, no pet.).

2019“The cumulative error doctrine provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s ‘fundamental fairness.’” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) (quoting Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc)).

2019“The cumulative error doctrine provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s ‘fundamental fairness.’” United States 23 v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) (quoting Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc)).

2013See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (stating, in dicta, that cumulative error could constitute reversible error).

2013See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (stating, in dicta, that cumulative error could constitute reversible error).

2024See Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim.

2024P. 44.2(b); see also Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988) (considering whether harm in the aggregate was reversible under former 9 In an unpublished opinion that did not apply the cumulative error doctrine because the issues raised by the appellant were either not error or not preserved, this Court cited Estrada as holding that the cumulative error doctrine provides relief only when constitutional errors violate the trial’s fundamental fairness.

2024See Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App. 2016); Lewis v. State, 693 S.W.3d 453 , 473 (Tex. App.—Houston [14th Dist.] Aug. 1, 2023, pet. ref’d) (“The cumulative-error doctrine does not apply unless the appellant preserved his complaints in the trial court and demonstrates on appeal that the trial court erred.”).

2024See Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App. 2016) (stating that “appellant has failed to prove error concerning each of these claims separately, and so we find no cumulative harm”); Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) (“Because we have found little or no error in the above-alleged points, there is no harm or not enough to accumulate.”); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of errors may be found harmful in their cumulative effect,” but “we are aware of no authority holding that non-errors may in

2024See Washington v. State, No. 05-22-00479-CR, 2023 WL 8733057 , at *6 (Tex. App.— Dallas Dec. 18, 2023, no pet.) (mem. op., not designated for publication); see also Lumsden v. State, 564 S.W.3d 858, 899 (Tex. App.—Fort Worth 2018, pet. ref’d).

2023See Bleimeyer v. State, 616 S.W.3d 234 , 258-59 (Tex. App.—Houston [14th Dist.] 2021, no pet.); Lumsden v. State, 564 S.W.3d 858, 899 (Tex. App.—Fort Worth 2018, pet. ref’d).

2021However, the Texas Court of Criminal Appeals has held that there is “no authority holding that non-errors may in their cumulative effect cause error.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009); see Jenkins, 493 S.W.3d at 613 ; Temple v. State, 342 S.W.3d 572, 612 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013) (providing that reviewing courts do not consider the effect of waived errors under the cumulative error doctrine); see also Escobedo v. State, No. 13-19-00205-CR, 2020 WL 6052549 , at *6 (Tex. App.—Corpus Christi–Edinburg Oct. 8, 2020

2019See Jenkins v. State, 493 S.W.3d 583 , 613 & n.82 (Tex. Crim. App. 2016) (citing Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009)); Gamboa, 296 S.W.3d at 585 (“Though it is possible for a number of errors to cumulatively rise to the point where they become harmful, we have never found that ‘non-errors may in their cumulative effect cause error.’”(footnotes omitted)); Priddy v. State, No. 02-13-00586-CR, 2014 WL 5307180 , at *1 (Tex. App.—Fort Worth Oct. 16, 2014, no pet.) (mem. op., not designated for publication) (citing Gamboa for the proposition that for the doctrine of cumulativ

2009Ed. 2d 705 (1967).” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002).

2009Ed. 2d 705 (1967).” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002).

2003Crescendo Inves., Inc. v. Brice , 61 S.W.3d 465, 481 , 481 n.16 (Tex. App.--San Antonio 2001, pet. denied).

2003Crescendo Inves., Inc. v. Brice , 61 S.W.3d 465, 481 , 481 n.16 (Tex. App.--San Antonio 2001, pet. denied).

2024See Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.—San Antonio 1996, writ denied).

2020Reversal on this basis is not appropriate unless the record as a whole demonstrates that “but for the alleged errors, the jury would have rendered a verdict favorable to [the appellant].” Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.—San Antonio 1996, writ denied).

2025In re BCH Dev., LLC, 525 S.W.3d 920, 930 (Tex. App.—Dallas 2017, orig. proceeding) (when no errors exist, the appellate court can reject cumulative error arguments). 14 While it is true that pro se pleadings and briefs are generally construed liberally, a pro se litigant is still required to comply with the law and rules of procedure.

2024See In re BCH Dev., 525 S.W.3d at 930 .

2021Temple v. State, 342 S.W.3d 572, 612 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013); see also Schmidt v. State, No. 01-18-00239-CR, 2019 WL 5432049 , at *10 (Tex. App.—Houston [1st Dist.] Oct. 24, 2019, pet. ref’d) (“In a cumulative-error analysis, we consider only errors that were preserved for appeal.

2021However, the Texas Court of Criminal Appeals has held that there is “no authority holding that non-errors may in their cumulative effect cause error.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009); see Jenkins, 493 S.W.3d at 613 ; Temple v. State, 342 S.W.3d 572, 612 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013) (providing that reviewing courts do not consider the effect of waived errors under the cumulative error doctrine); see also Escobedo v. State, No. 13-19-00205-CR, 2020 WL 6052549 , at *6 (Tex. App.—Corpus Christi–Edinburg Oct. 8, 2020

2007Co. v. Reese, 584 S.W.2d 835, 840 (Tex.1979); Smerke v. Office Equip.

2007Co. v. Reese, 584 S.W.2d 835, 840 (Tex.1979); Smerke v. Office Equip.

2001See Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim.

2001See Wright v. State , 28 S.W.3d 526, 537 (Tex. Crim.

1993Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 810 (Tex.App.—Dallas 1987, no writ).

1992Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 809-10 (Tex.App.—Dallas 1987, no writ).

2024See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.”). 44 a reasonable investigation with respect to the claim,” or (iii) “Denying coverage for a claim in part or in full if TWIA’s liability has become reasonably clear as a result of its investigation with respect to the denied claim,” and (b) included an improper instruction implying that “TWIA i

2024See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.”). 44 a reasonable investigation with respect to the claim,” or (iii) “Denying coverage for a claim in part or in full if TWIA’s liability has become reasonably clear as a result of its investigation with respect to the denied claim,” and (b) included an improper instruction implying that “TWIA i

2023To prevail on this ground, an appellant must establish that multiple errors “synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the verdict.” Id. (internal quotation marks omitted). 17 Appellant, relying in essence on the same arguments raised in his briefing on his first two issues, has failed to establish his entitlement to relief based on the cumulative-error doctrine.

2023To prevail on this ground, an appellant must establish that multiple errors “synergistically achieve the critical mass necessary to cast a shadow upon the integrity of the verdict.” Id. (internal quotation marks omitted). 17 Appellant, relying in essence on the same arguments raised in his briefing on his first two issues, has failed to establish his entitlement to relief based on the cumulative-error doctrine.

2015Under this doctrine, “[a] reviewing court may reverse a lower-court judgment under the cumulative-error doctrine when the record shows a number of instances of error, no one instance being sufficient to call for a reversal, yet all the instances taken together may do so.” Id. (internal quotations omitted). 45 In this case, even if the Court determines that some of the errors discussed above were harmless, their combined effect requires reversal.

1957Smerke v. Office Equipment Co., 138 Tex. 236 , 158 S.W.2d 302 , dealing with the cumulative error doctrine, to the contrary notwithstanding.

2014See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082 , 120 S.Ct. 805 , 145 L.Ed.2d 678 (2000).

2014See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082 , 120 S.Ct. 805 , 145 L.Ed.2d 678 (2000).

1993Sendejar v. Alice Physicians and Surgeons Hospital, 555 S.W.2d 879, 888 .

1987Sendejar v. Alice Physicians and Surgeons Hospital, Inc., 555 S.W.2d 879, 888 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r. e.).