Full opinion text
OPINION Opinion by Justice BENAVIDES. This case involves the horrific and gruesome death of Gregorio de la Rosa, Jr. (“Gregorio”). Gregorio, an honorably discharged former National Guardsman, was serving a six-month sentence at a prison operated by Wackenhut Corrections Corporation for possession of less than 1/4 grams of cocaine. A few days before his expected release, Gregorio was beaten to death by two other inmates using a lock tied to a sock, while Wackenhut’s officers stood by and watched and Wackenhut’s wardens smirked and laughed. Gregorio’s estate and his family members (collectively “the family”) brought survival and wrongful death claims against Wackenhut and its warden, David Forrest, alleging that they negligently caused Gregorio’s death and acted with malice and gross negligence. Wackenhut also either lost or destroyed key evidence in this case, prompting the trial court to give a spoliation instruction. The jury found that Wackenhut and Warden Forrest were negligent and acted with gross negligence or malice, and it awarded actual damages to Gregorio’s parents and children and punitive damages to Gregorio’s estate. The trial court rendered judgment on the verdict, and it also awarded funeral and emergency medical services (“EMS”) expenses to Gregorio’s estate, though these were not awarded by the jury. On appeal, Wackenhut and Warden Forrest (collectively “Wackenhut”) raise twelve issues attacking nearly every facet of the judgment. We reverse and render judgment dismissing the claims of the estate of Gregorio’s father, Gregorio de la Rosa, Sr. (“Gregorio, Sr.”), for lack of subject-matter jurisdiction. We also reverse the trial court’s award of $7,000 for funeral expenses to Gregorio’s estate. However, we affirm the remainder of the judgment. I. BACKGROUND The family brought suit against Wacken-hut after Gregorio was brutally attacked by two other inmates, resulting in his death, at the Waekenhut facility in Willacy County on April 26, 2001. A. The Assault The inmates at Waekenhut live in separate dormitories or “housing” facilities. A “crash gate” guards the walkway leading away from the housing facilities. The crash gate is made out of cyclone fencing material and is closed unless prisoners are passing through the gate. A guard is posted at the crash gate to monitor the prisoners passing through the gate. On the crash gate’s other side, in between the housing unit and the support building, is a 100-yard-long walkway known as the “bowling alley.” It is a large sidewalk that is, for the most part, an open area with no buildings immediately adjacent to it. A chain-link fence runs along one side of the sidewalk. There are no guards posted along this walkway. Waekenhut contracts with the State of Texas to operate the prison, and it is required to follow the State’s policies in operating the prison. One such policy is the crash gate “post order,” which, according to Warden Forrest, is an order that “gives the officer general guidelines and duties to go by in that particular area.” Warden Forrest stated that the guard at the particular post should follow the post order. The crash gate post order stated, “The officer shall conduct pat-searches of inmates before permitting entrance or exit to or from any department within the area of responsibility.” (Emphasis added). Warden Forrest testified that the purpose for searching inmates was to discover contraband, including weapons. The procedures are in place to safeguard the inmates. Corrections Officer Raul Hernandez was stationed at the crash gate on April 26, 2001. Gregorio and several other inmates, including inmates Pedro Equia and Daniel Sanchez, passed out of their housing facility and through the crash gate on their way to the support building for “pill call.” Officer Hernandez testified that he checked the inmates’ “passes” to ensure they were allowed to leave the housing unit, but he admitted that he did not pat search Equia or Sanchez. Officer Hernandez stated that if he had searched the inmates, he would have found the lock. After traveling about half the distance to the support building, Equia and Sanchez attacked Gregorio from behind. At least one of the two inmates possessed a lock tied to a sock and used this as a weapon, striking Gregorio on the head. Officer Hernandez testified that he saw one of the inmates hit Gregorio on the head with the sock, and Gregorio fell to the ground and did not fight back — he “didn’t have a chance at all.” While Gregorio crouched on the ground, Equia and Sanchez were kicking him, and blood was splattering on the ground. Officer Juan Cortez, another Wackenhut corrections officer, testified that he was standing near the door next to Central Control waiting for inmates to arrive at the education department. He stated that he could see down the “bowling alley” all the way to the housing units through a glass window pane in the door. The officers inside Central Control could also see the “bowling alley” through glass windows. He stated that he saw inmates coming out of the housing unit and that he noticed that the crash gate officer did not pat-search them. He claimed that he knew something was “wrong” when he saw the inmates pass through the crash gate without being pat-searched. Officer Cortez testified that he saw Gregorio walking down the “bowling alley,” and two inmates came up from behind. He saw one inmate take out a sock, swing it, and hit Gregorio on the right side of his head. Gregorio then “bounce[d] down to the floor.” The inmate tried to hit Gregorio with the sock again while he was on the ground, and then both inmates began kicking him all over his body. Officer Cortez testified that Gregorio did not respond or fight back because the first hit with the sock knocked him out. Officer Cortez testified that the beating itself lasted fifteen to twenty minutes before officers arrived and halted the assault and that it took another hour and fifteen minutes for medical personnel to arrive, even though these medical personnel were employed by Wackenhut and were present at the facility at the time. Officer Cortez claimed that Warden Forrest and Assistant Warden Elberto Bravo first arrived approximately forty-five minutes later. He claimed that he saw Warden Forrest standing right inside the door next to Central Control laughing about the incident. Assistant Warden Bravo was also laughing, and another officer, Rodriguez, was smirking. Officer Cortez opined that many of Wackenhut’s officers were corrupt. He believed the assault was a “hit” on Gregorio and that Wackenhut’s employees knew it was going to happen. Maria Juanita Marroquin testified she was formerly employed at Wackenhut and was present at the facility on April 26, 2001. Upon hearing the “code black” over the radio about the fight, she went to the door by Central Control. She saw Gregorio on the ground in the “bowling alley,” and two inmates were beating him. One was swinging a sock at him. She also stated that the beating lasted fifteen to twenty minutes. She opined that the actions taken would have been different if a guard was being assaulted and that Wackenhut did not value the inmates’ lives. She also stated that she saw Assistant Warden Bravo smirking and laughing after the incident. She testified that Warden Forrest had a look on his face like “that’s one less Mexican he had to worry about.” B. Meaning of the Crash Gate Post Order Warden Forrest testified that the inmates have a right to a safe facility, and the inmates depend on the wardens to ensure that a safe living environment is provided. He stated that the State promulgates the post order policies and mandates that Wackenhut follow them, and the procedures are imposed to safeguard the inmates. Warden Forrest acknowledged that he owes a duty and obligation to the inmates to follow all policies and procedures. He admitted that breach of the policies and procedures will jeopardize the unit’s integrity and the inmates’ security. Furthermore, he agreed that if Wackenhut failed to follow the State’s procedures, the inmates can suffer serious injuries. He admitted that the best way to stop a beating is to prevent it from occurring in the first place. Nevertheless, Wackenhut disputed the meaning of the crash gate post order at trial. All the witnesses agreed that the post order’s plain language was mandatory — stating that the crash gate officer “shall” pat-search the inmates. However, Waekenhut’s witnesses testified that only random searches were required at the crash gate because the order only applied when inmates were entering or exiting from a “department” within the officer’s area of responsibility. Warden Forrest testified that neither the housing unit nor the “bowling alley” were “departments.” Thus, because Gregorio, Equia, and Sanchez were not entering or exiting a “department” within the crash gate officer’s area of responsibility, the crash gate officer was not required to search every inmate. Major Steve Sang-ster, the head of security at the Wacken-hut facility, testified that the officer working the crash gate was required to follow the crash gate post order. However, he also claimed that neither the housing unit nor the “bowling alley” were “departments,” so only random searches were required. Warden Forrest explained that it was impractical to search all the inmates passing through the crash gate because the officers must keep the inmates moving to avoid congestion at the gate. Warden Forrest was trained to send the inmates through the gate in a group, but he admitted that groups traveling together are dangerous. Nevertheless, he claimed that congestion at the gate could also be dangerous, and it would cause the inmates to be late to their appointments in education and elsewhere. Wackenhut’s expert, Gary Johnson, echoed these concerns. Major Sangster testified that locks ai'e available at the commissary for purchase so that the inmates can lock away their personal items. Major Sangster testified that pat-searches are not 100 percent accurate, and he claimed that even if a pat-search had been conducted, it is not certain that a lock and a sock would have been discovered. However, he agreed that if all the inmates had been searched, the lock probably would have been detected. Furthermore, he stated that even if the lock had been detected, it may not have been confiscated by the officers if the inmate provided a good explanation for possessing the lock. For example, Warden Forrest testified that if an inmate had purchased a lock and needed to return it to the commissary for some reason, he would be allowed to do so. On the other hand, Officer Cortez testified that the crash gate post order meant that “you had to search all, each and everybody, coming out of their housing before they got to crash gate....” He testified that every inmate had to be searched because “you don’t know within that time frame whether somebody was going to pass contraband or whatever.” He claimed that the proper procedure was to search the inmates and let them out of the gate one at a time, with time separating the exit of each inmate: Well, I think, start off with, when these people came out of the housing to go to education, okay, first they should have searched the first inmate, give him a little bit, two, three, four minutes, let him walk, then check the other one, give him another two, three minutes like that there’s a far walking distance between these people. If something is going to happen that gives time for the officer up front or whoever is in the back to get a glimpse of what’s going to happen. You don’t send two inmates after one another. You don’t do that. It s against policy. I mean, Wackenhut, the employees knew about it. They went against their own rules. Officer Cortez further testified that if a search had been conducted, the lock would have been discovered, and neither Equia nor Sanchez would have been permitted to pass through the gate at that time: Q: (By Mr. Rodriguez) You know how to do pat[-]searches, right? A: Yes. Q: You would have found — you would have found that lock if they would have tried— A: Oh, yes. Oh, yes. Q: And in your opinion, do you think that would have made a difference in the outcome of De La Rosa? Oh, yes. He’d be alive. i> And why is that? <o Because the simple reason that I would have taken out the contraband from the inmate. I would have dropped him right there. Tell him to drop himself or, you know, we do it. And I would call, you know, my supervisor, which was Warden Rodriguez at the time, let him know that I have a situation at [the] crash gate. I have an inmate with contraband, you know, a weapon. As to what he’s going to do with it, I don’t know. See, everything would have ceased right there. There would be nobody coming out, but we would have taken care of the situation right there before it led to where it led. In this case, that did not happen. i> Q: Had that happened, in your opinion, was that De La Rosa would be alive today? A: Yes, he would. Officer Hernandez, who was manning the crash gate on the day of the incident, further agreed that if he had pat-searched Equia and Sanchez, he would have discovered the lock, and Gregorio would likely be alive. Although Marroquin was working as a substitute teacher in education on the day of the incident, she later was trained and became a corrections officer at Wackenhut. Marroquin testified that the post order required every inmate leaving the housing units to be searched for contraband and weapons. She testified that had a proper search been conducted, she expected that the searching officer would have discovered the lock. If she discovered a lock during a pat-search and the lock was not broken, she stated that she would have considered it a weapon. The family introduced into evidence the State’s security audits of the Wackenhut facility. Major Sangster testified that, in 2002 and 2003, Wackenhut was cited for failing to conduct pat-searches as the inmates were leaving the housing facility. C. Previous Assaults at the Wackenhut Facility Both Warden Forrest and Major Sang-ster testified that other assaults had occurred in the “bowling alley” area, which was not manned by guards. The trial court admitted four reports offered by the family detailing other incidents at Wacken-hut where locks had been used in an assault on an inmate. Major Sangster admitted that he had knowledge of these reports prior to Gregorio’s assault. More importantly, Warden Forrest testified that Equia had assaulted another inmate just a few months before the assault on Gregorio. On January 3, 2001, while at another facility, Equia and another inmate assaulted a fellow inmate by kicking and hitting him. Equia was transferred to the Waekenhut facility at the beginning of February 2001. Apparently, the TDCJ database was updated on February 8, 2001, after Equia was transferred to the Willacy County facility, to note the assault. Warden Forrest stated that he was not aware that the computer system had been updated because the system does not provide notice of updates. He admitted, however, that he had access to this information at any time after February 8, 2001, and before Gregorio was assaulted on April 26, 2001. D. Gregorio’s Injuries and Death Gregorio suffered severe injuries as a result of the beating. Officer Valentin Martinez testified that he escorted Gregorio to the medical department. He testified that Gregorio was “messed up,” with blood all over his face and bumps on his head. The medical department called an EMS team, and Gregorio was taken to the hospital. Foster Frank Edwards, a Willacy County EMS paramedic, testified that he was dispatched to the jail. He stated that Gregorio’s face was swollen and deformed. Gregorio was suffering pain in his abdomen, face, back, and neck. Gregorio refused to lie flat on the stretcher because of the pain he was suffering. He stated that Gregorio told him that he was about to be released from jail, that things were going to be good for him then, and that he was looking forward to seeing his family. Robert Sims, M.D., testified that he is an emergency room physician at Valley Baptist Medical Center and that he treated Gregorio. He is board certified in internal and emergency medicine. He testified that Gregorio was veiy seriously injured. Gregorio was talking, but his clarity was impaired. Gregorio’s blood pressure was low and was dropping, and he had facial bruising, black eyes, broken ribs, and a partially collapsed lung. Sims performed a quick bedside ultrasound and found blood inside Gregorio’s abdominal cavity, which indicated that an internal organ was damaged. By the time he examined Gregorio, between one-fifth and one-fourth of Gregorio’s blood had already spilled into his body cavity. Gregorio died during surgery. Sims testified that the beating caused Gregorio’s death, based on a reasonable degree of medical probability. He testified that the death resulted from multiple blows to the body and that all the blows were important. Ruben Lopez, M.D., who performed the surgery on Gregorio, testified he was 100 percent certain that the beating proximately caused Gregorio’s death, based on a reasonable degree of medical probability, and he opined that had Gregorio not received the beating, he would be alive. The autopsy report determined that the cause of death was “multiple vascular lacerations, due to: Beating.” E. The Spoliated Evidence Warden Forrest testified that there were video cameras along the facility’s perimeter, and the cameras were linked to video recording equipment in Central Control. He testified that the State of Texas required him to ensure that the cameras were in good working condition. These cameras, Warden Forrest explained, could pan and tilt, and they were mounted on perimeter posts to get a “bird’s eye view.” The cameras were adjustable from Central Control and were always on. At trial, the family contended that a videotape existed that showed the beating but that this video had been lost or destroyed by Waekenhut. Warden Forrest testified during his deposition that there was a video camera on one of the perimeter posts that was focused down on the beating. In his sworn testimony, he admitted to seeing a tape of the beating and described the video and the beating in detail. His stated that the video showed “that one inmate had beat another inmate with a sock filled with a lock,” and it showed an inmate kicking and punching Gregorio. After reviewing his deposition, however, Warden Forrest changed his testimony, claiming that the video never existed. At trial, he admitted to describing the video in his deposition testimony, but he claimed that his prior testimony describing the video was “based on all the information that I received regarding that incident over and over receiving information.” He explained that he had created his “own little movie” in his mind: I did that based on all the information that I received regarding that incident over and over receiving information. I put that picture — painted that picture in my head that I believed that’s what I saw, and that’s what I testified to, and I corrected it that day and at a later date.... I described what I thought I saw based on the information of everyone telling me what happened. I painted a picture of that incident in my mind, and I played it over in my mind many, many times since then. Officer Cortez testified that during his training, he learned that every department had a video camera that was constantly recording in Central Control, and there should have been a camera pointing to the crash gate area. He testified that at the end of the third shift every day, the videotapes were taken to the warden’s office, and the warden maintained custody of them. He opined that Wackenhut’s wardens destroyed the tapes of Gregorio’s beating. Warden Forrest also admitted that the facility owned and used several handheld cameras to record the use of force by officers when necessary. Officer Cortez testified that after the fight ended, Assistant Warden Bravo recorded Gregorio with a handheld camera and followed Gregorio all the way to the medical department. Officer Cortez testified that the videotape would have shown Gregorio’s injuries. Officer Cortez testified that he saw Warden Bravo leave the medical department with the tape in his hand and, later that day, take the video to his vehicle in the parking lot. When asked what he believed Warden Bravo intended to do with the tape, Officer Cortez testified, “I mean, the only thing I can think about what he did with the tape, you know, make sure nobody got a hold of it.” This videotape was never produced. Representatives from the Office of Inspector General of the Texas Department of Criminal Justice arrived at the Wacken-hut facility approximately six hours after the beating. Warden Forrest testified that he turned over all the evidence and videotapes to these representatives. Warden Forrest admitted that six hours was plenty of time to destroy, remove, or alter the videotapes, had he so desired. F. Pretrial Rulings on Spoliation The family filed its original petition on August 29, 2001. On August 16, 2004, the family filed the first of many motions for default judgment and sanctions based on the missing evidence. On September 12, 2005, the parties appeared for a hearing. The court gave Wackenhut thirty days to produce the missing videotapes. No videotapes were produced, so the family moved the court to render a default judgment, which the court granted on October 25, 2005. A hearing was set on damages for November 4, 2005. Before the hearing on damages, Wackenhut produced several videotapes and persuaded the court to reconsider the default judgment and, instead, give a spoliation instruction. G. The Trial Court’s Judgment The case was tried to a jury. The jury found that Wackenhut and Warden Forrest were negligent and acted with malice or gross negligence, assigning 75 percent of the responsibility to Wackenhut and 25 percent to Warden Forrest. The jury awarded $47.5 million in damages as follows: • Gregorio’s estate received zero damages for pain and suffering, disfigurement, and mental anguish; $20 million in punitive damages against Wacken-hut; and $500,000 in punitive damages against Warden Forrest. • Catalina, Sr. (Gi'egorio’s mother) received $2.5 million for past mental anguish, $2.5 million for future mental anguish, $2.5 million for past loss of companionship and society, and $2.5 million for future loss of companionship and society. • Gregorio, Sr.’s estate (Gregorio’s father) received $2.5 million for past mental anguish and $2.5 million for past loss of companionship and society. • Catalina, Jr. (Gregorio’s oldest daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society. • Cynthia, Jr. (Gregorio’s middle daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society. • Priscilla (Gregorio’s youngest daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society. After trial, the trial court rendered judgment on the verdict and also awarded Gregorio’s estate $7,511 for funeral and EMS expenses, finding that these damages were conclusively established by the evidence. This appeal ensued. II. Charge Errors in the Liability Questions By its sixth issue, Wackenhut argues that Questions 1, 2, and 3 in the jury charge — the liability questions — failed to submit the correct negligence standard applicable to prisons. Comparing the family’s negligence claim to a premises liability claim, Wackenhut argues that the family waived its negligence claim by failing to secure findings on all the necessary elements. See, e.g., Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528-29 (Tex.1997) (holding plaintiff waived premises defect claim by failing to submit Cor-bin elements). Thus, Wackenhut argues that we must reverse and render judgment that the family takes nothing. Id. We hold that Wackenhut waived this argument by failing to sufficiently make the arguments it now makes on appeal known to the trial court. A. The Charge Submitted to the Jury The charge presented three liability questions based on negligence. Question 1, the “general negligence question,” asked, “Did the negligence, if any, of any party named below proximately cause the injuries to and death of Gregorio de la Rosa Jr.?” The jury was presented with three lines to answer the question with respect to Wackenhut, Warden Forrest, and Gregorio. The jury answered “yes” to Wackenhut and Warden Forrest and “no” to Gregorio. Question 2, the “assumed duty question,” asked the same general negligence question as in Question 1 but then provided the following instructions: For this question a party named below was negligent if— a.A party named below undertook to perform services they knew or should have known were necessary for the protection of Gregorio de la Rosa Jr., and b. A party named below failed to exercise reasonable care in performing those services, and c. Performance of these services by a party named below increased the risk of harm to Gregorio de la Rosa Jr. Again, the jury answered “yes” to both Wackenhut and Warden Forrest and “no” to Gregorio. Finally, Question 3, the “failure to control question,” also asked the same general negligence question as in Questions 1 and 2 but provided the following instructions: For this question a party named below was negligent if— a. A party named below knew or should have known Equia or Sanchez were likely to cause bodily harm to others if not controlled; and b. A party named below failed to exercise reasonable care to control Eq-uia or Sanchez and such failure proximately caused the injuries to and death of Gregorio de la Rosa Jr. The jury answered this question the same way it answered the first two questions. B. Wackenhut’s Arguments On appeal, Wackenhut argues that these three liability questions submitted an incorrect duty or standard of care owed by a prison operator. Specifically, it argues that a prison operator’s standard of care is as follows: The general rule gathered from the cases which have considered the question as to liability of an officer in charge of the jail or prison for an injury inflicted by one prisoner upon another prisoner is that, in order to hold the officer liable for such injuries, there must be knowledge on the part of such officer that such injury will be inflicted or good reason to anticipate danger thereof, and negligence in failing to prevent the injury. Browning v. Graves, 152 S.W.2d 515, 519 (Tex.Civ.App.-Fort Worth 1941, writ ref'd). Wackenhut argues that the liability questions were inadequate or incomplete because they did not instruct the jury that to find the defendants liable, the defendants must know or have reason to believe that an injury will likely be inflicted on another prisoner and thereafter be negligent in failing to take steps to prevent the injury. Wackenhut argues it objected to these errors and requested an instruction containing the appropriate standard. Wackenhut argues that its proposed instruction comported with Browning, and the trial court erred when it refused the tendered instruction. Id. Likening this case to a premises liability claim, Wackenhut argues that the family waived its negligence claim by failing to submit all the necessary elements of that claim. With respect to Question 2, Wackenhut argues that the assumed duty theory has never been applied to a prison operator and is wholly inapplicable. It argues that there was no reason to create an assumed duty because the duty that applies is the Browning standard. With respect to Question 3, Wackenhut likewise argues that this “failure to control” theory has never been applied in these specific circumstances, and the Browning standard should have been applied. C. The Family’s Response In response, the family argues that Wackenhut waived these arguments by agreeing to the form of the charge. Specifically, the family argues that after a two-day charge conference during which the parties “horse-traded” their jury questions and instructions, Wackenhut agreed to the charge’s form and merely reserved its right to make no-evidence objections to the charge. Accordingly, the family contends that Wackenhut is estopped from claiming that the questions were erroneous. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex.2005) (holding that a party cannot seek a ruling from the trial court and then complain that trial court erred by making the ruling); Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993) (holding that a party cannot request submission of jury issue and then object to its submission); Am. Nat’l Petroleum Co. v. Transcon Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex.1990) (holding that a court may hold parties to charge agreements). The family further argues that Wacken-hut’s proposed instruction did not preserve error because it also included improper theories of liability, including a standard requiring proof of intentional, willful, or wanton conduct. The family argued that Wackenhut was commingling improper instructions. See Tex.R. Civ. P. 278. Furthermore, the trial court did not sign the instruction as refused. See id. at R. 276. In any event, the family argues that the applicable law supported each question. D. The Charge Conference Unfortunately, we cannot explain the basis of our holding without explaining, in detail, the proceedings and arguments made below. On September 14, 2006, the trial court began the arduous process of crafting the jury charge in this case. The parties had been working together to whittle down the remaining charge disagreements. At the beginning of the hearing, the parties presented the court with three documents, which the court reporter labeled “Court’s Charge Exhibits” numbers 1, 2, and 3. Charge Exhibit 1 was an e-mail between the parties discussing their ongoing negotiations, and attached to that email was a document titled, “Defendants’ Additions to Proposed Jury Charge.” Charge Exhibit 2 was a document titled, “The Parties’ Jointly Proposed Court’s Charge.” It became apparent, early in the hearing, that Charge Exhibit 2 did not contain language that both parties fully agreed to submit. Nevertheless, Charge Exhibit 2 became the basis for the parties’ discussion at that hearing. Initially, Wackenhut argued to the court that Questions 2 and 3, the assumed duty and failure to control questions, should not be submitted because the family should only “go to the jury on one negligence question and that’s it.” Wackenhut argued that the family would be getting multiple “bites at the apple” by submitting several negligence theories. A short time later, Wackenhut objected “to both the submission of a broad form negligence and the specific granulated form.” The trial court stated, “No. Do one or the other.” We note that neither of these objections pointed out the specific problem that Wackenhut now argues with respect to these questions, and in fact, created confusion as to what, exactly, Wackenhut believed was the proper form of the negligence submission. Up to this point, it appeared that the parties agreed that a general negligence question should be submitted. Later, Wackenhut reurged these objections with respect to Questions 2 and 3, arguing that the theories of liability were subsumed within Question l’s general negligence inquiry. When further pressed by the court, Wackenhut lodged the following objections to Question 1, the general negligence question: [Wackenhut]: I’m sorry, Your Honor. There is more. It includes within it— Of course, as we mentioned earlier, negligence requires evidence of the standard of care. It’s unquestioned in this case that the standard of care took place in a prison environment and it involves balancing the risks of a prison environment in a way that is outside the common experience of the average layperson. As such, as a black letter matter of law, it requires expert testimony as to the standard of care as well as the breach. Absent that testimony, that question simply isn’t proper for submission to the jury. I would object on that ground. The Court: Are you finished? [Wackenhut]: In the alternative, Your Honor, I would argue that the only evidence that there has been or will be, after Mr. Johnson testifies by deposition, is that the standard of care involves adherence to the TDCJ mandated policies that have been already presented as evidence in this case. In that event, I would ask that the jury simply be instructed that that is the standard of care because there isn’t any competing evidence in the case. At this point, Wackenhut asked the court to apply the State of Texas’s policies as the general standard of care. The court did not rule on the objection at that time. With respect to Questions 2 and 3, Wackenhut again argued that these theories of liability would be subsumed under Question 1 and would be redundant. As against Question 2, Wackenhut argued that the assumed duty question would allow the jury to find that Wackenhut committed “medical negligence,” which would be an impermissible ground of recovery. Furthermore, as against Question 3, Wackenhut argued that there was no evidence that Sanchez had a history of a predisposition to cause bodily harm. Wackenhut did not make any further objections to Questions 2 or 3 at that time. The parties then moved through the remaining charge issues and discussed various instructions. After addressing all the questions in Charge Exhibit 2, Wackenhut directed the court to Charge Exhibit 1, which contained several instructions that Wackenhut sought to include in the jury charge. First, Wackenhut requested an instruction it called “prison environment”: It is important that in your deliberations you be aware that this action arises in a penal institution. All inmates assigned to the Willacy County State Jail are convicted felons. In view of the unique nature of the jail environment, jail officials such as the Defendants are given broad discretion in the execution of policies and procedures that, in their judgment, are needed to maintain the internal security, order, and discipline of the jail, and broad deference must be given to their management decisions. You are further instructed that, because state jail facilities are occupied by convicted felons, who are either ineligible for or found to be unworthy of release into society, by its very nature, the operation of such a jail is a dangerous task. The reasonableness of Defendants’ actions, therefore, must be determined against the backdrop of the jail environment. You are further instructed that prison officials are not expected to prevent all inmate-on-inmate violence. Wackenhut argued that it wanted this instruction at the beginning of the charge to give the jury guidance about what ordinary care means in the circumstances of the case. At the time, the court did not rule on whether the “prison environment” instruction would be given or on Wacken-hut’s TDCJ policy arguments. Next, Wackenhut requested “an instruction under negligence that comes from Texas Government Code section 497.096.” It argued that the Government Code sets the appropriate burden of proof and the “standard that is required to impose civil liability in this case.” Wack-enhut’s counsel then read the complete instruction he was requesting: You are instructed that an employee of a private prison is not an insurer of the personal safety of the inmates under his supervision and control; the law requires only that the employees in actual charge of the prison exercise ordinary care to prevent prisoners in their custody from harming one another. In order for David Forrest or the Wackenhut Corrections Corporation to be liable under Texas law, the employees must know or have reason to believe that injury will likely be inflicted or he must have reason to anticipate the danger thereof and therafter be negligent in failing to take steps to prevent the injury. You are further instructed that a person is not required to anticipate the negligent or unlawful conduct of another. You are further instructed that Wack-enhut Corrections Corporation and David Forrest cannot be held liable if their act or failure to act was not intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. Wackenhut’s counsel did not orally state where in the charge the Government Code instruction should be placed. However, in Charge Exhibit 1, this instruction was labeled, “To be included with negligence Question A,” which ultimately became Question 1. Wackenhut never argued that this instruction should be included with Questions 2 and 3 or should be placed at the beginning of the charge, to be applicable to all the liability questions. The family objected that the Government Code instruction was erroneous in whole and in specific parts, particularly the instruction’s last two paragraphs, which appeared to require a showing of intentional or grossly negligent conduct. The family argued that the Government Code provision did not apply. In response, Wackenhut argued: Brief response, Your Honor. Just that what this does is redefine the standard under these circumstances. Anybody who is taking care of prisoners — This was passed before the legislature gave the executive branch the authority to contract with private enterprises like Wackenhut. We think that what it really does is immunize anybody performing those functions that are listed, in effect, taking care of prisoners. It changes the background law and provides a new standard. It kind of eliminates the negligence standard and puts this new standard in.... (Emphasis added). Thereafter, the court stated that it was refusing the additional Government Code instruction but agreed to take the “prison environment” instruction under advisement. The hearing, however, continued. Later, the court stated that it would refuse the “prison environment” instruction subject to “anything you bring me tomorrow.” At the end of the hearing that day, Wack-enhut’s counsel handed the judge a stack of papers containing all of its requested instructions. However, signed copies of these requests noting the judge’s refusal to incorporate the “prison environment” and Government Code instructions do not appear in the record. The next day, September 15, 2006, trial continued. After the last witness testified, the parties and the court continued the charge conference. Wackenhut informed the court that the parties had “come to an agreement on a number of issues on the charge,” but that there were a few unresolved issues. Wackenhut’s counsel informed the court that “we are still asking for the submission of some of the instructions we gave you yesterday. I’m not sure about the list, if we have them there, but we can go through what we have agreed upon.” Wackenhut’s counsel informed the court that he was still pursuing the prison environment instruction. In response, the family argued that the appropriate standard of care in a prison case was set out in Browning, which applied a “common law negligence standard” and which was submitted “on a negligence question.” The family argued that the Browning standard was merely an application of the general negligence standard to a prison case and that it was subsumed in ordinary negligence instructions. Wackenhut’s counsel then stated that the Government Code “established a different standard of care for the piúsons” and that “the standard of care should be what is set out under that provision of the Government Code.” He asserted that Wackenhut was entitled to the “higher, willful or wanton standard of care.” The court again stated it would not give the requested instructions. The family then noted that Wackenhut continued to “disagree with the applicability of these three theories. They are still reserving that objection.” Wackenhut’s counsel explained, Well, Your Honor, other than the objections we made yesterday to those, the only thing I would add is that in regards to Question No. 2-Question No. 1 is the general negligence question. Other than the argument we had about standard of care, we have no objection to the wording of that ... straight from the Pattern Jury Charge.... No. 2 is a products liability standard. It’s from a products liability case.... I just don’t think we have that, Your Honor. We would disagree that this is even a proper theory to submit to the jury on this issue. After more arguments about the rest of the charge, the court recessed for lunch. Upon return, the family’s counsel informed the court that the parties had almost completely agreed on the charge’s contents: We’ve been working on the charge all day. I spent the last two hours with [counsel for Wackenhut] on the charge. And of the seven issues, we are very- — I think we’ve only got maybe one or two issues that we haven’t agreed to, that this charge is the correct charge. The big hangup at this point is the instructions that they have requested the court to submit on prison environment. Okay. What I’ve done is I’ve offered to drop the conspiracy claim and to give them the new and independent cause instruction if they would submit to me some reasonable language on what they think the standard of care is, assuming that it’s different from a person of ordinary prudence, if they would just tell me in one sentence what they think the standard really ought to be instead of that, because that seems to be what they are saying. Wackenhut’s counsel did not disagree with the family’s assertion that the only issue in dispute was the “prison environment” instruction. Rather, he stated that the parties “attempted to see if we could come to a resolution on this,” but they “weren’t able to.” He further stated, “At this point, we are not willing to waive the objections that we’ve put in the record.” After a short break, Wackenhut was allowed to make its no-evidence objections to the charge. E. Analysis As noted above, the family first argues that Wackenhut agreed to the charge’s contents and cannot complain now. The record, however, does not show that Wackenhut agreed to the form of the liability questions. A stipulation is “ ‘an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys, respecting some matter incident thereto.’ ” Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 734 (Tex. App.-Corpus Christi 1994, writ denied) (quoting Nat’l Union Fire Ins. Co. v. Martinez, 800 S.W.2d 331, 334 (Tex.App.-El Paso 1990, no writ)). When construing a trial stipulation, we must determine the parties’ intent from the language used in the entire agreement “ ‘in the light of the surrounding circumstances, including the state of the pleadings, the allegations therein, and the attitude of the parties in respect of the issues.’ ” Id. (quoting Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886-87 (Tex.App.-El Paso 1993, orig. proceeding)). Stipulations that are ambiguous and uncertain in their terms should be disregarded. Id. For a stipulation made in open court to be binding, the parties must dictate all material terms into the record and express their assent to those terms. Id. Throughout the hearing, on both days, Wackenhut repeatedly argued against the form of the liability questions. At the end of the two-day hearing, Wackenhut explicitly informed the trial court that it was not willing to waive the objections it had placed into the record. Thus, we hold that the record does not support the family’s assertion that the charge’s liability questions were submitted by agreement. See id. (holding counsel’s remarks were insufficient to constitute binding stipulation because they were uncertain and did not recite the terms of any stipulation). Nevertheless, Wackenhut’s arguments below were not sufficiently clear that we can conclude with confidence that the trial court understood its arguments, and its complaints on appeal do not comport with the arguments that it made in the trial court. To preserve error for appeal, an appellant must have made a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure. Tex.R.App. P. 33.1(a)(l)(A)-(B) (emphasis added). Texas Rule of Civil Procedure 274 further explains the requirements for preserving an objection to the jury charge: A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. When the complaining party’s objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessai'y requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only. Tex.R. Civ. P. 274 (emphasis added). With respect to instructions, rule 278 provides that the “[fjailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instmction has been requested in writing and tendered by the party complaining of the judgment.” Tex.R. Civ. P. 278 (emphasis added). Thus, in every manner of pointing out errors in the charge, the appellant is required to make the trial court sufficiently aware of its complaints. Furthermore, objections to the charge and requests for instructions must comport with the arguments made on appeal. See Isaacs v. Bishop, 249 S.W.3d 100, 113 n. 13 (Tex.App.-Texarkana 2008, pet. denied); Coke v. Coke, 802 S.W.2d 270, 275 (Tex.App.Dallas 1990, writ denied). In the trial court, Wackenhut argued different standards of care at different times. First, it argued that the TDCJ policies should dictate the standard of care. Second, it proposed the Government Code instruction. The Government Code instruction, however, contained conflicting standards. Initially, the instruction appeared to define ordinary care in a prison environment in accordance with Browning. See 152 S.W.2d at 519. However, a completely inconsistent standard of care was included at the end of the instruction, which the Brouming decision does not require. See id. The instruction included an admonition to the jury that it could not find the defendants liable unless their acts or failure to act were “intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.” This part of the instruction was drawn from the government code and used language that would have required the jury to find that Wackenhut acted intentionally or was grossly negligent, which would have been improper. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(10) (Vernon 2008) (defining gross negligence as an act or omission “of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others”); see also Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916-20 (Tex.1981) (examining history of gross negligence and the historical use of these terms in gross negligence definitions); Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 50 n. 25 (Tex.App.-Houston [1st Dist.] 1993, no writ) (stating that the terms “heedless and reckless disregard,” “willful act or omission,” or “willful and wanton disregard” are synonymous with gross negligence). Importantly, Wackenhut never argued the instruction’s two parts in the alternative. In fact, Wackenhut never emphasized the instruction’s Browning portion, even though the family’s counsel pointed to the Browning standard as merely a restatement of general negligence principles. Rather, Wackenhut adamantly emphasized the intent and gross negligence standard on both days of the charge conference. In contrast, on appeal, Wackenhut ignores its gross negligence arguments and now asserts that it only intended to include the Browning portion of the instruction. Wackenhut argues that because its proposed instruction included the Browning standard, the trial court should have recognized that all the charge questions were erroneous. Wackenhut argues that a trial court is not entitled to refuse all of an appellant’s requested instructions just because they are included in one document with other possibly incorrect instructions. See Lester v. Logan, 907 S.W.2d 452, 453 (Tex.1995). In Lester, the supreme court, in denying an application for writ of error, disapproved of the court of appeals’ holding that the trial court was not required to sort through a multitude of requests to determine which requests were proper and improper. Id. Wackenhut cites several other cases that it claims rejected the argument that a request for an instruction is waived if it is buried in a multitude of requests. See Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451 (Tex.1995); Samedan Oil Corp. v. Intrastate Gas Gathering, Inc., 78 S.W.3d 425, 453 (Tex.App.-Tyler 2001, pet. granted, judgm’t vacated w.r.m.); Tex. Natural Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex.App.-Austin 1996, no writ). In Lester, the supreme court relied on its decision in State Department of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). In Payne, the court made it clear that the ultimate test for preservation of charge error is not necessarily whether the appellant strictly complied with the Texas Rules of Civil Procedure’s complex procedures for objecting to and requesting items in the charge; rather, the test should be “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” Payne, 838 S.W.2d at 241. For example, in Alaniz, the supreme court held that the plaintiff preserved his request for a question on future lost profits even though the requested instruction was presented as part of the plaintiffs complete proposed charge, which contained numerous other requests. 907 S.W.2d at 451. The trial court submitted a page from the plaintiffs proposed charge that had included the references to future lost profits, but it had redacted the future lost profits references. Id. The plaintiff objected to the omission during the charge conference. Id. The court of appeals held that the plaintiff failed to comply with the rules because he (1) included his request as part of a complete charge instead of separately, (2) submitted the request before trial and not after the charge was submitted to the parties, and (3) failed to make his request separate from his objections. Id. The court of appeals acknowledged that under Payne, the plaintiffs error was likely preserved because the trial court was obviously aware of the complaint. Id. Nevertheless, the court of appeals held the objection was waived. Id. The supreme court reversed. Id,. It held that the rules must be applied in a common sense manner and must be interpreted with an eye towards preserving errors in the charge as long as it appears that the appellant made the trial court sufficiently aware of the issue and obtained a ruling. Id. We believe that Alaniz and the other cases cited by Wackenhut do not support its arguments. We agree that under Lester and Alaniz, a submission of instructions en masse or in a complete proposed charge may be sufficient in a given case to alert the trial court to a potential problem in the charge ultimately given. However, in the cases relied on by Wackenhut, there was no indication that the appellant submitted multiple, inconsistent theories to the trial court without arguing them in the alternative or clearly specifying to the trial court which of the theories it believed was correct. See id. (holding that the trial court was sufficiently made aware of the complaint); see also Samedan Oil Corp., 78 S.W.3d at 453 (holding that error was preserved on a specific theory of damages without indicating that a contrary or inconsistent theory had been proposed by appellants); McDill, 914 S.W.2d at 724 (holding that eleven requests were not too many to conclude that trial court was not alerted to complaint because of en masse submission). Given the apparent initial agreement that a general negligence question was proper, Wackenhut’s vacillating and inconsistent definitions of the standards of care, and its repeated emphasis of the incorrect intentional or gross negligence standard, we cannot conclude that Wack-enhut sufficiently alerted the trial court to the complaints that it now makes on appeal. See Payne, 838 S.W.2d at 241; see also Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex.1986). With respect to Questions 2 and 3, Wackenhut never objected that these questions did not include the Browning standard. Wackenhut’s written request indicated that the Government Code instruction was intended to accompany Question 1, and Wackenhut never asked that the instruction be included at the beginning of the charge with the generally applicable instructions. Additionally, Wackenhut never argued that Questions 2 or 3 relied on standards that had never been applied in the circumstances of this case, as it now argues on appeal. Thus, with respect to all the liability questions, Wackenhut’s arguments on appeal do not comport with the issue it raised in the trial court. See Isaacs, 249 S.W.3d at 113 n. 13; Coke, 802 S.W.2d at 275. Accordingly, Wackenhut’s arguments with respect to the liability questions are not preserved for our review, and we overrule its sixth issue. III. Charge Errors in the Apportionment Question In its eighth issue, Wackenhut argues that at least one of the liability questions was improper because the questions submitted incorrect theories of liability or were not supported by the evidence. It argues that even if one of the questions was properly submitted, the judgment cannot be affirmed based on the jury’s answer to a proper question because the apportionment of liability question was conditioned on an affirmative finding in any one of the liability questions. Thus, it argues that we must reverse because the jury’s answers to the apportionment question could have been influenced by an improper theory. See Romero v. KPH Consol., Inc., 166 S.W.3d 212 (Tex.2005). We have already determined that Wack-enhut waived its challenges to the form of the liability questions. Wackenhut did, however, assert no-evidence objections to all three liability questions. Assuming that at least one liability question was not supported by the evidence, Wackenhut must show that the error in the apportionment question was preserved and that it was harmed by the submission. Texas Rule of Appellate Procedure 44.1(a) provides that a properly preserved error in the trial court merits reversal of the judgment on appeal if it “(1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.” Tex.R.App. P. 44.1(a). We disagree that Wackenhut’s argument has been preserved or that it has shown harm. On the last day of the charge conference, the following exchange occurred: [The family]: Question No. 4 is the comparative question. [Wackenhut’s counsel] and I have agreed to move it from Question No. 7 and move it up to Question No. 4. The Court: If you have agreed upon it, that’s fine. [Wackenhut]: Okay. [The family]: We’ve agreed to hook it on question — to an affirmative answer to Question 1, 2, or 3, because those are negligence questions and so we are comparing negligence in this question. This is where the comparative question is going to go. The Court: Okay. [The family]: We agree to that. When the court stated it was approving the agreement if Wackenhut agreed, Wackenhut’s counsel responded, “Okay.” Wackenhut never objected or asked for separate comparative questions at the charge conference, and it never alerted the trial court that the apportionment question commingled valid and invalid theories. See In re B.L.D., 113 S.W.3d 340, 349-50 (Tex.2003) (“This Court has recently emphasized that complaints of error in broad-form submission must be preserved by objection at trial.”); In re A.V., 113 S.W.3d 355, 363 (Tex.2003) (“Because Puig did not make a specific and timely objection to the broad-form charge, he did not preserve a claim of harmful charge error.”); Gerdes v. Kennamer, 155 S.W.3d 523, 534 (Tex.App.Corpus Christi 2004, pet. denied) (holding that appellant waived objection to trial court’s failure to include proper conditioning instruction by failing to either object or tender proper conditioning instruction). Wackenhut does not dispute that it did not raise this specific issue with the trial court. Rather, it argues that in Romero, the supreme court held that an objection to the form of an apportionment question is not necessary if the appellant properly objects that one of the liability questions is not legally tenable. See Romero, 166 S.W.3d at 229. We disagree with Wackenhut’s reading of Romero. In Romero, the trial court submitted a negligence claim and a malicious credentialing claim. Id. at 219. The jury was then instructed that if it found liability under either theory, it should answer a single apportionment of damages question. Id. The jury found both negligence and malicious credentialing and then assigned percentages of responsibility. Id. On appeal, the defendant argued that there was no evidence to support the malicious credentialing claim, and the supreme court agreed. Id. at 224-25. Thus, the court then considered whether the judgment could be sustained on the jury’s negligence finding — in other words, whether the defendant was harmed by the submission of the malicious credentialing claim. Id. at 225. The court held that it was possible that the jury considered the improper malicious credentialing claim in apportioning responsibility. Id. It likened the case to Crown Life Insurance Co. v. Casteel and Harris County v. Smith, holding that the error prevented the defendant from demonstrating harm. Id. at 226. The plaintiffs in Romero argued that, despite the above analysis, the defendant did not preserve its complaint in the trial court. Id. at 228. The supreme court reviewed the record to determine whether the trial court was sufficiently aware of the issues being raised on appeal. Id. The court noted that during the first day of the charge conference, the trial judge pointed out the problem with submitting a single apportionment question and suggested multiple apportionment questions. Id. Then, on the second day of the conference, the defendant specifically objected to the submission of a single apportionment question and argued that it would prevent the defendant from showing harm. Id. However, the defendant also argued that submitting two apportionment questions would constitute a comment on the weight of the evidence, so it objected to submitting two separate questions. Id. Thus, the plaintiff argued that the defendant did not make it clear to the trial court that it wanted two apportionment questions, which would have corrected the problem in the charge. Id. at 229. The supreme court held that the error was preserved. Id. The court