                              NUMBER 13-17-00006-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

ROSA MENDEZ,                                                                     Appellant,

                                              v.

JAVIER SALINAS AND ANTARA
TRUCKING, L.L.C.,                                                               Appellees.


                    On appeal from the 398th District Court
                          of Hidalgo County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Contreras

       Appellant, Rosa Mendez, was injured in a vehicular accident and sued appellees

Javier Salinas and Antara Trucking, L.L.C. (Antara). Following a trial, the jury found no

liability on the part of either appellee, and the trial court rendered a take-nothing judgment.

On appeal, Mendez contends that the trial court should have granted her motion for new
trial because (1) defense counsel made improper comments relating to Mendez’s

ethnicity and immigration status, and (2) the evidence was factually insufficient to support

the jury’s findings. We reverse and remand.

                                      I. BACKGROUND

       The subject accident occurred before dawn on December 2, 2013, on westbound

Interstate 10 in Harris County. Mendez alleged in her live petition that Salinas, an Hidalgo

County resident, negligently made an unsafe lane change while driving a tractor-trailer as

an employee of Antara, striking Mendez’s vehicle and causing her to suffer injuries.

       Prior to trial, Mendez filed a “Motion to Exclude Evidence Regarding Plaintiff’s

Immigration Status,” noting that appellees had designated a private investigator to testify

that Mendez “is not qualified to earn wages legally in the United States.” At a pre-trial

hearing, the trial court granted the motion and instructed defense counsel to “make no

statement, offer no evidence or propose any testimony concerning [Mendez]’s

immigration standing.”

       Trial evidence established that the collision occurred when Salinas attempted to

change lanes and struck the left side of Mendez’s car. Salinas, who was called as an

adverse witness at trial by Mendez’s counsel, testified through an interpreter that when

the accident happened, he “felt the impact” and “saw that a car was braking, and then I

stopped.” He said that he and Mendez then pulled over to the side of the highway, and

Mendez told him that she was “fine.” He stated that no ambulance came and he observed

Mendez drive away.

       Salinas agreed that, in a deposition taken a year prior to trial, he testified that he

had apologized to Mendez and admitted his fault to her immediately after the accident.



                                             2
He acknowledged that, in his deposition testimony, he stated that he made an unsafe

lane change and was “100 percent to blame.”             At trial, Salinas conceded that he

apologized to Mendez but denied admitting that he was at fault for the accident. When

asked to explain why he changed his testimony from his deposition, Salinas stated that

he “now understand[s] how the accident happened” and he “realized that [Mendez] was

overtaking me from the right” but was in his blind spot. He speculated that Mendez was

speeding, noting that “if I’m driving at 60 and I look into my rearview mirror and I see

nobody, and then I start changing my lane, and I—and I—and all of a sudden she’s there,

she’s obviously going faster than I am.” He agreed, however, that he admitted at the

deposition that it is his job to determine if there is a car in his blind spot before he changes

lanes. He further agreed that, if Mendez had attempted to pass him on the left instead of

the right, the accident would not have happened.

       On cross-examination, appellees’ counsel asked Salinas whether he was an

American citizen. He replied that he is and that he first came to the United States in 1997.

       Mendez testified through an interpreter that, though she understands English, she

is more comfortable expressing herself in Spanish. She stated that, at the time of the

accident, she was on her way to work, which was to start at 6:00 a.m. She stated she

was not running late, and she was driving under the speed limit in the right-middle lane

of the four-lane freeway. She stated: “I saw that the trailer was next to me, [and] since I

don’t like being next to the trailers . . . I was ready to come ahead of him when I felt the

impact, when he hit me. . . . He switched lanes into my lane and hit me.” She later

clarified that she was “a little bit ahead of” Salinas when she decided to pull away from

him. Mendez testified that the impact caused her car to be “thrown to the right” and that



                                               3
she had to swerve back to the left to avoid hitting a car in the right-most lane. She stated

that Salinas continued to drive forward and she had to honk at him to get him to pull over.

According to Mendez, Salinas told her and the police at the scene that he was at fault,

that he had not seen her car, and that he did not turn to look in that direction.

       During cross-examination of Mendez, appellees’ counsel noted that, according to

a police report, the time of the accident was 5:50 a.m., and counsel asked: “So if that

crash time is correct, there is no way you could made it to work on time by 6:00 unless

you were speeding; isn’t that true?” Mendez replied that the collision actually occurred

between 5:25 and 5:30, and that after she called the police, it took about 25 to 30 minutes

for an officer to arrive. Appellees’ counsel further observed that, according to the police

report, the call reporting the accident was received by police at 6:05 a.m. and an officer

arrived at the scene at 6:08 a.m. Mendez did not know if the officer “got it wrong or not”;

she stated that “whatever he stated there, that is something that he is the only one that

can tell you about, not me.” She reiterated her testimony that it took almost a half an hour

for an officer to arrive after she called the police. She further acknowledged that she

previously stated at a deposition that the accident occurred between 5:20 and 6:00 a.m.

       Appellees’ counsel additionally noted that, according to the police report, Mendez’s

car was in the far right lane, not the right-middle lane, as Mendez had testified. Mendez

stated that she had always told the officer that she was in the right-middle lane. The

police report indicated that no one was injured as a result of the accident, and Mendez

conceded that she told the officer that she was not injured. Mendez also conceded that

she had been in a prior accident in 2007 in which her car was totaled.

       Mendez testified that she quit her job at a secondhand clothing store in 2015 due



                                             4
to the pain she was suffering as a result of the 2013 accident. She has undergone surgery

to alleviate her pain and, though she “felt very well for about seven or eight months” after

the procedure, the pain returned, and her only option now is additional surgery as

recommended by Zoran Cupic, M.D., an orthopedic surgeon.

       Cupic testified that Mendez has disc protrusions in her upper and lower back which

cause pain. He stated that the disc protrusions were, to a reasonable degree of medical

probability, the result of trauma she suffered in the accident, because imaging showed no

indication of any age-related degeneration.           Because treatments including anti-

inflammatory medication, physical therapy, and steroid injections were not effective,

Cupic stated that laminectomy, discectomy, and fusion surgery would be necessary. He

stated that lumbar fusion surgery customarily costs around $100,000, while cervical

fusion surgery customarily costs around $80,000.

       At the beginning of the penultimate day of trial, appellees’ counsel asked to confer

with the court outside the presence of the jury in regard to a dispute between the attorneys

that occurred the previous day, during which Mendez’s counsel suggested that appellees’

counsel was “lying” to the jury by redacting certain information from an exhibit. The trial

court stated: “Go ahead and ask for a mistrial. I’ll grant it, I promise.” Appellees’ counsel

did not ask for a mistrial but instead asked the trial court to instruct the jury that Mendez’s

counsel acted improperly and that they are not to infer any wrongdoing on the part of

appellees’ counsel. The trial court initially denied the instruction, at which point appellees’

counsel asked for a mistrial. Subsequently, following a lengthy exchange concerning

whether Mendez’s counsel had actually used the word “lie” in his earlier remarks, the trial

court reconsidered her ruling and granted the jury instruction.



                                              5
       The jury found that the negligence of Salinas and Mendez, if any, did not cause

the injuries in question, and appellees moved for judgment on the verdict. Mendez filed

a motion for new trial arguing that appellees “improperly inserted evidence and argument

concerning [Mendez]’s immigration status” and that the jury’s finding of no negligence on

the part of Salinas was against the overwhelming weight of the evidence. After a hearing,

the trial court denied the motion for new trial and rendered a take-nothing judgment in

favor of appellees. This appeal followed.

                                      II. DISCUSSION

       A trial court may grant a motion for new trial upon good cause shown. TEX. R. CIV.

P. 320. We review a ruling on a motion for new trial for abuse of discretion. Waffle House,

Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to any guiding rules or

principles. Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex. 2017).

       By her first issue, Mendez argues that the trial court erred in denying her motion

for new trial on grounds that appellees’ counsel made improper and prejudicial comments

on Mendez’s ethnicity and immigration status.

A.     Remarks

       First, Mendez points to the following exchange that took place when, during cross-

examination, appellees’ counsel invited Cupic to review a form that Mendez had filled out

during an office visit:

       Q.      And now she’s got pain at a 10 plus, and she’s telling you that—go
               up, please. She’s got pain and pressure in the back, correct?

       A.      Okay. Again, I don’t look at those because those are only for the
               medication. I hope I’m clear on that.

       Q.      And this appears to be in her own words, correct?

                                             6
       A.      I guess so. I don’t know.

       Q.      I mean, your office staff, they don’t write it in Spanish, do they?

       A.      My office may have done it, but you’re asking me. I wasn’t there
               when that happened.

No objection was made to the question or the response. Mendez argues on appeal that

the question regarding whether the form was in Spanish was an improper veiled reference

to her ethnicity.

       Second, Mendez points to a question asked by appellees’ counsel during cross-

examination of Angelo Romagosa, M.D., a physician specializing in physical medicine

and rehabilitation. Romagosa testified that he was retained by Mendez’s counsel’s law

firm to review medical records, examine Mendez, and give an opinion about her future

medical needs or “life care plan.” After asking several questions about whether Mendez

had been married, appellees’ counsel asked:          “And your opinions assume that Ms.

Mendez is going to continue living in the United States, right?” Romagosa replied, “Yes.”

At that point, Mendez’s counsel asked for a bench conference, and a discussion was had

off the record. Subsequently, the jury was excused from the courtroom and the following

conversation ensued:

       [Mendez’s counsel]:       Just to recap where we were, Your Honor, we
                                 approached and talked to you off the record about
                                 how I believe the defendant was trying to mistry this
                                 case by injecting—improperly injecting the plaintiff’s
                                 immigration status into this case, and I think your
                                 comment was you understood the reference, but
                                 you weren’t accusing them of intentionally doing
                                 anything, but you understood the clear reference,
                                 and the defendants disagreed they were doing
                                 anything improper or trying to interject immigration
                                 status into the case but thought it was a necessary
                                 part of their presentation.

                                 Is that a fair summary of what we’re doing?

                                              7
[Appellees’ counsel]:   The question did not involve immigration. The
                        plaintiff can voluntarily decide to move back to
                        Mexico and—or her home country. It was solely
                        whether or not she continues living in the United
                        States. There was nothing about immigration in
                        that question.

[Mendez’s counsel]:     It was pretty clear what skunk they were trying to
                        throw into the jury box I think to everybody in this
                        courtroom.

[Mendez’s counsel]:     I think the Court also noted that that was not the first
                        time that the indirect reference was being made,
                        and—and I think that’s—that’s something that the
                        Court should consider in any motion that we—we
                        might make here after consideration.

[Appellees’ counsel]:   I don’t know what the other indirect reference is.

[Appellees’ counsel]:   Or even in front of a jury.

THE COURT:              Two times.

[Mendez’s counsel]:     It’s been—we’ve been trying to not draw attention
                        to it, and there was the thing you were saying to Dr.
                        Cupic and saying, Oh, Dr. Cupic, can you read
                        Spanish, you know, and there are all these things
                        that—

[Appellees’ counsel]:   I think you’re sensitive.

[Appellees’ counsel]:   There are lots of records in Spanish that you’re
                        going to see.

[Mendez’s counsel]:     We didn’t complain about it, we didn’t object, but
                        this is something that’s really improper at this point.

[Appellees’ counsel]:   Your Honor, what’s manifestly wrong with this
                        whole scenario is that she has no work permit here
                        in this country, and they’re defrauding the Court
                        when they come forward here and she has falsified
                        records, made it impossible for us to do background
                        checks on her because of three different social
                        security numbers that she’s stolen from other
                        people, and they are trying to make a wage claim




                                      8
                                     when they could have dropped it, but instead they
                                     insist on going forward with it.[1]

                                     A person from a foreign country has an accident
                                     here, they have every right to be here, but they don’t
                                     have a work permit. Obviously, that is admissible
                                     to show that the standard used by the economic—
                                     the economic expert should be where she lives and
                                     not where the accident occurred.

                                     If a person is from Honduras, you’re not going to do
                                     earnings capacity if they only have a right to work
                                     in Honduras.

        [Mendez’s counsel]:          Fortunately, the Courts have—

        THE COURT:                   And she may be one of the thousands of people that
                                     have been here in the United States for so many,
                                     many years that are probably going to be seeking
                                     some path to legalization sometime soon, and, as
                                     much as—I don’t know whose social security
                                     numbers she was using. I don’t know if those
                                     people’s social security numbers are relatives or
                                     friends that have given her permission to use it,
                                     whether rightfully or wrongfully. I don’t know. You
                                     know, I don’t know any of those facts other than
                                     what I know from the case and the evidence as
                                     presented, but we all know what the United States
                                     Constitution says with regards to citizenship and
                                     even what the case law says.

        [Appellees’ counsel]:        And we’re not bringing it up.

        THE COURT:                   You should not be bringing it up. And all I’m
                                     interested in doing is trying this case as fairly as we
                                     can, but if you’re going to try to interject and going—
                                     trying to elbow in and do kind of stuff, well I have no
                                     choice if motions are made.

                                     None of them are being made right now. You made
                                     one a while back for a mistrial.

        [Appellees’ counsel]:        Right.


        1 Mendez was later asked, outside the presence of the jury, whether she is legally permitted to work
in the United States or whether she used other persons’ social security numbers in order to do so. On her
attorney’s advice, she declined to answer and invoked her Fifth Amendment right not to testify.

                                                     9
       THE COURT:               And if you want a mistrial and will agree to a mistrial,
                                we’ll grant a mistrial.

Mendez’s attorneys did not ask for an instruction to disregard, nor did they move for

mistrial. However, after the jury returned its verdict, Mendez moved for a new trial arguing

in part that appellees’ counsel “improperly injected [her] immigration status into the case.”

B.     Applicable Law

       Ordinarily, appellate complaints of improper jury argument must be preserved by

timely objection and request for an instruction that the jury disregard the improper remark.

TEX. R. APP. P. 33.1; see Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839–41 (Tex.

1979). However, certain improper arguments may be 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 v. Bramlett, 288

S.W.3d 876, 883 (Tex. 2009) (citing Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)).

In such cases, the argument is considered incurable by an instruction to disregard, and

the issue may be asserted and preserved in a motion for new trial, even without a

complaint and ruling during the trial. See id. (citing TEX. R. CIV. P. 324(b)(5)). The

reasoning is that “counsel making the argument is the offender so the law will not require

opposing counsel to take a chance on prejudicing his cause with the jury by making the

objection.” Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968) (citing Smerke

v. Office Equip. Co., 158 S.W.2d 302 (Tex. 1941)).

       Incurable jury argument is rare because “[t]ypically, retraction of the argument or

instruction from the court can cure any probable harm.” Living Ctrs. of Tex., Inc. v.

Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per curiam). “But jury argument that strikes

at the appearance of and the actual impartiality, equality, and fairness of justice rendered


                                             10
by courts is incurably harmful not only because of its harm to the litigants involved, but

also because of its capacity to damage the judicial system.” Id. at 681. Examples of such

incurably improper arguments including appeals to racial prejudice and unsupported,

extreme personal attacks on opposing parties and witnesses. Id.

        Appeals to racial and ethnic prejudice “adversely affect the fairness and equality

of justice rendered by courts because they improperly induce consideration of a party’s

race to be used as a factor in the jury’s decision.” Id.; see Reliance Steel & Aluminum

Co. v. Sevcik, 267 S.W.3d 867, 874–75 (Tex. 2008) (“[W]hen issues like race, religion,

gender, and wealth are injected into a case unnecessarily, there is the potential for

damage not just to a litigant but to the civil justice system. Courts must provide equal

justice to all, regardless of their circumstances, and efforts to suggest that jurors should

do otherwise cannot be lightly disregarded.”). Therefore, such appeals are considered

incurable by jury instruction.        Reese, 584 S.W.2d at 840; Tex. Emps. Ins. Ass’n v.

Haywood, 266 S.W.2d 856 (Tex. 1954).

C.      Analysis

        Mendez did not ask for an instruction to disregard or move for mistrial at the time

the challenged comments were made. Accordingly, she is entitled to a new trial only if

the comments were incurably prejudicial.2 See Penalver, 256 S.W.3d at 681.




         2 Appellees contend on appeal that Mendez waived the issue by failing to request a jury instruction

or a mistrial when the allegedly prejudicial comments were made. See TEX. R. APP. P. 33.1(a). But as
noted, a complaint regarding an incurably prejudicial argument may be made for the first time in a motion
for new trial. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Appellees also contend that Mendez
waived the issue because her counsel opposed appellees’ motion for mistrial on the penultimate day of
trial. But the grounds for mistrial alleged by appellees’ counsel at that point were wholly unrelated to the
grounds raised by Mendez in her motion for new trial and on appeal. Her issue, therefore, has not been
waived.

                                                    11
       First, we find that appellees’ counsel’s question to Cupic as to whether his office

documentation was available in Spanish was not by itself prejudicial. Mendez’s counsel

mentioned in his opening argument at trial that English is not Mendez’s first language and

that she prefers to communicate in Spanish, and Mendez herself confirmed that in her

trial testimony. The trial court’s pre-trial order did not prohibit the attorneys from asking

questions about Mendez’s preferred language—it only prohibited questions regarding her

immigration status. Further, it is noteworthy that both Mendez and Salinas testified at trial

through interpreters. Therefore, although references to a party’s native language may be

prejudicial in certain circumstances, we find it unlikely that appellees’ counsel sought to

sway the jury on that basis by asking this particular question in this case.

       On the other hand, the question posed by appellees’ counsel to Romagosa—

regarding whether his opinions assumed Mendez would continue to live in the United

States—is highly problematic. Romagosa’s testimony principally concerned the nature

and cost of Mendez’s future medical needs. He testified briefly regarding Mendez’s future

need for vocational training, but he did not otherwise address her earning capacity or

employment prospects. The question posed by appellees’ counsel was arguably relevant

to the issue of how much Mendez’s future treatments and medications would cost, since

she would only be entitled to those expenses that are customary in the place where she

lives. Further, appellees argue that the question was relevant as to Mendez’s claim for

future lost wages, since she would only be entitled to compensation if she were legally

able to work in the place where she lives. But, as Mendez notes, a plaintiff need not show

citizenship or the possession of immigration work authorization permits as a prerequisite

to recover damages for lost earning capacity under Texas law. See Tyson Foods, Inc. v.



                                             12
Guzman, 116 S.W.3d 233, 247 (Tex. App.—Tyler 2003, no pet.). In any event, in light of

the court’s pre-trial order, it is difficult to understand counsel’s question as anything other

than a veiled reference to Mendez’s status as an undocumented immigrant. The question

is whether this reference so prejudiced the jury as to amount to an incurable error.

       Mendez cites TXI Transportation Corp. v. Hughes, another truck accident case, in

which the Texas Supreme Court held the trial court erred by admitting evidence of the

defendant’s immigration status. 306 S.W.3d 230, 242–43 (Tex. 2010). The evidence

included testimony showing that the defendant was an undocumented immigrant, had

used a false social security number, had falsely affirmed in his employment application

that he had the right to work in the United States, and had previously been deported. Id.

at 243. The Court found that plaintiff’s counsel’s “repeated injection into the case of [the

defendant’s] nationality, ethnicity, and illegal-immigrant status, including his conviction

and deportation, was plainly calculated to inflame the jury against him” and was therefore

more prejudicial than probative. Id. at 244 (applying TEX. R. EVID. 403).

       At oral argument, Mendez’s counsel argued that this case is “almost identical” to

Hughes. But the cases are different in two crucial respects. In Hughes, the trial court

permitted the attorney to continue to refer to the defendant’s immigration status on over

forty occasions, see 306 S.W.3d at 243, whereas here, the trial court was aware of the

inflammatory nature of such remarks and ruled prior to trial that they would not be

permitted. As a result, Mendez’s immigration status was explicitly referenced before the

jury only once throughout the entire trial. Second, the questions presented in Hughes

were (1) whether the trial court abused its discretion in determining that the probative

value of evidence concerning defendant’s immigration status outweighed its prejudicial



                                              13
potential, and (2) whether that error probably caused the rendition of an improper

judgment. See id. at 242 (citing TEX. R. EVID. 403, TEX. R. APP. P. 44.1). Those questions

are related, but not identical, to the question presented here, which is whether a single

veiled reference to immigration status constitutes an error so prejudicial that it could not

be cured by a jury instruction. See Penalver, 256 S.W.3d at 681.

        Even so, Mendez contends that a single remark oriented toward a party’s

immigration status can cause incurable harm.3 In Texas Employers’ Insurance Ass’n v.

Guerrero, the San Antonio Court of Appeals ordered a new trial where plaintiff’s counsel

stated as follows in his closing argument:

        I am tickled to death to be here and I will represent him and any man like
        him in Zavala, Maverick, Dimmit, Cameron, any county in the State of Texas
        any time.

        Octavio Paz, a well-known author said one time, and I will quote him and I
        already translated it. He said, “Things that unite us far exceed those things
        that divide us.”

        You apply that to evidence. The things, the preponderance of the evidence,
        that unite in favor of Mr. Guerrero, far exceed those inconsistencies, the
        legal problems. He is not a perfect man, neither is his medical. But heck,
        he went back to work after he got cut, things of this nature. The things that
        unite us, exceed those that divide us. There is a time to be united. Right
        now is a time to be united.

        An example is politics. We don’t have to agree with all the candidates, with
        the same ones. But by golly there comes a time when we have got to stick
        together as a community. We have to stick together as a jury of peers of a
        man to pass judgment and help that person if he is entitled to [sic] under the
        evidence . . . .

        Because if one is united, one has hope. And with hope, one can live. He
        still has a lot of years to live. And it is all going to depend on you.



        3The trial court seemed to indicate that an “indirect reference” to Mendez’s immigration status had
been made twice prior to the question at issue. However, the parties do not direct us to any point in the
record where any such indirect reference was made in front of the jury, and we find none.

                                                   14
800 S.W.2d 859, 862 (Tex. App.—San Antonio 1990, writ denied). The court rejected the

plaintiff’s contention on appeal that the argument was merely “a request that the jury view

Guerrero’s case as more united by consistencies than divided by legal technicalities.” Id.

Noting that eleven of the twelve jurors had Spanish surnames, the court instead found

that the argument was a “forbidden ethnic plea” and was incurable. Id. at 866. The court

emphasized that it does not make a difference whether the improper reference is brazen

or subtle:

        The law should not stoop to evaluating subtle distinctions such as whether
        an argument was too crude and revolting, or on the other hand sufficiently
        slick and artful to pass muster. To permit the sophisticated ethnic plea while
        condemning those that are open and unabashed would simply reward
        counsel for ingenuity in packaging. Inevitably, lawyers representing their
        clients zealously within the bounds of the law would test the limits and fine-
        tune their arguments to avoid being too explicit. Courts would be asked to
        label some arguments permissible and uphold them with a wink when
        everyone knew that an ethnic appeal had been made. That course would
        demean the law and perhaps deepen the divisions from which society
        already suffers.

Id. at 865. Instead, “incurable reversible error occurs whenever any attorney suggests,

either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward

a litigant or a witness because of race or ethnicity.” Id. at 866.

        Guerrero demonstrates that a single racially or ethnically prejudicial remark,

whether implicit or explicit, may give rise to incurable error.4 And “the probative value of

evidence concerning a plaintiff’s illegal immigrant status is low, while the prejudicial effect



         4 Mendez also cites Penate v. Berry, a 1961 case in which the El Paso Court of Civil Appeals

reversed for a new trial where the defendant’s counsel stated in closing: “[Y]ou see, it just so happens that
in this country you can’t come into court and reach your hands into the pockets of an American citizen and
take his property from him—not for an alien—they may take away . . . .” 348 S.W.2d 167, 168 (Tex. Civ.
App.—El Paso 1961, writ ref’d n.r.e.). But the El Paso court explained that the foregoing statement was
merely the “most inflammatory” of “numerous remarks” made by defendant’s counsel which were “directed
to the citizenship of [the plaintiff].” Id. Therefore, the case does not support Mendez’s assertion that a
single prejudicial remark can result in incurable error.

                                                    15
of this evidence is high.” Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 409

(Tex. App.—Houston [1st Dist.] 2011, no pet.); see Hughes, 306 S.W.3d at 244 (citing

TEX. R. EVID. 403). Under the circumstances of this case, we agree with Mendez that

appellees’ counsel’s veiled reference to her immigration status was so prejudicial as to

be incurable by an instruction to disregard. We reach this conclusion after considering

the entire record, including appellees’ counsel’s comments at the bench conference

following the challenged question, which strongly indicate that counsel believed, contrary

to the trial court’s pre-trial ruling, that evidence of Mendez’s immigration status was

relevant and admissible.

        Because appellees’ counsel’s question was incurably prejudicial, the trial court

abused its discretion by denying Mendez’s motion for new trial. We sustain Mendez’s

first issue on appeal.5

                                             III. CONCLUSION

        The trial court’s judgment is reversed, and the cause is remanded for a new trial

consistent with this opinion.

                                                                    DORI CONTRERAS
                                                                    Justice


Delivered and filed the
14th day of June, 2018.




        5 In light of our conclusion, we need not address Mendez’s second issue, by which she argues that

the evidence was factually insufficient to support the jury’s finding of no liability. See TEX. R. APP. P. 47.1.

                                                      16
