Opinion issued August 21, 2025.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00638-CV ——————————— BRANDON CHIV, Appellant V. RANFERI MONGE FIGUEROA, Appellee
On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2019-22689
MEMORANDUM OPINION
This appeal arises from a lawsuit filed by appellee Ranferi Monge Figueroa
against appellant Brandon Chiv, in which Figueroa claimed that a September 1,
2017 automobile accident involving the parties resulted from Chiv’s negligence.
After a two-day trial, a jury awarded Figueroa damages for injuries it found he had sustained or would sustain due to the accident, including awards for past medical
expenses, past mental anguish, and future physical pain.
In four issues on appeal, Chiv argues:
(1) the evidence is legally and factually insufficient to support the jury’s award of $40,001 for imaging and epidural steroid injections as past medical expenses and $50,000 in future pain because Figueroa did not provide any expert testimony that his complained-of back injuries were caused by the accident and the trial court limited Chiv’s defense;
(2) the evidence is legally and factually insufficient to support the jury’s award of $5,000 in past mental anguish because Figueroa’s testimony of past mental anguish did not meet the standard under Texas law;
(3) the trial court erred in striking Chiv’s counteraffidavit under section 18.001 of the Texas Civil Practice and Remedies Code, which denied Chiv the opportunity to cross-examine Figueroa’s experts on the reasonableness and necessity of his past medical expenses; and
(4) the trial court erred in preventing Chiv from refreshing Figueroa’s memory with his prior deposition testimony because the deposition transcript was not a certified Spanish translation even though there was a certified Spanish interpreter present at trial.
We reverse certain of the damages awards in the trial court’s judgment,
render a take-nothing judgment on Figueroa’s claim for past mental anguish
damages, and remand for a new trial on the claims underlying the remainder of
Figueroa’s reversed damages awards. See Nat. Gas Pipeline Co. of Am. v. Pool,
124 S.W.3d 188, 201-02 (Tex. 2003) (noting that, prior to ordering a remand,
points calling for rendition of judgment should be considered).
2 Background
On September 1, 2017, a car driven by Chiv collided with the rear end of a
truck driven by Figueroa. Figueroa had been waiting at an intersection’s yield sign
to turn right onto FM 1960, and the impact pushed his truck onto FM 1960. Soon
after the accident, Figueroa sought medical care for pain in his back and neck. On
September 5, 2017, a chiropractor at a physical rehabilitation clinic diagnosed
Figueroa as having injuries including cervical, thoracic, and lumbar strains or
sprains. Figueroa participated in physical therapy sessions at the clinic from
September 2017 to January 2018. The chiropractor also advised Figueroa to see a
physician.
A physician later diagnosed Figueroa as having sprained ligaments and
muscles in the area of his back, neck, and spine. An MRI showed a herniated
lumbar disc and a herniated cervical disc. When pain medicine and other
treatments did not fully control his pain, Figueroa sought out and received a series
of epidural steroid injections that provided him some additional pain relief.
In response to Figueroa’s service of section 18.001 affidavits, Chiv served
the counteraffidavit of chiropractor Ward Beecher. In his counteraffidavit, Dr.
Beecher stated that he is a chiropractor and addressed his qualifications to provide
an opinion in contravention of Figueroa’s affidavits regarding the cost and
3 necessity of certain medical services provided to Figueroa. Dr. Beecher listed those
of Figueroa’s medical records that he reviewed and opined that:
The chiropractic and diagnostics services rendered to Ranferi Figueroa, and those costs associated with them, for treatment he received in connection with an alleged motor vehicle accident which occurred on or about, September 1, 2017, were not entirely reasonable and necessary.
Figueroa moved to strike the counteraffidavit on multiple grounds, including
that Chiv’s counsel had informed Figueroa’s counsel that Dr. Beecher would not
testify at trial. See TEX. CIV. PRAC. & REM. CODE § 18.001(f) (“The
counteraffidavit must give reasonable notice of the basis on which the party
serving it intends at trial to controvert the claim reflected by the initial affidavit
and must be taken before a person authorized to administer oaths.”). Just before
trial began, the trial court granted the motion, noting that Chiv had not made any
expert witness designations and thus had “no intention of actually bringing an
expert to testify at trial.”
The trial began in the afternoon of that same day and ended the next
morning. Figueroa and Chiv were the only testifying witnesses. At a charge
conference prior to closing arguments, the trial court overruled Chiv’s objection
that mental anguish should not be included in the charge because there was no
evidence of mental anguish. At trial, a jury awarded Figueroa the following
damages:
4 • $15,000 for past physical pain,
• $50,000 for future physical pain,
• $5,000 for past mental anguish,
• $0 for future mental anguish, and
• $57,000 for reasonable expenses of necessary past medical care.
This appeal followed.
Jury’s Damages Awards
In his first and second issues, Chiv challenges the legal and factual
sufficiency of the evidence supporting the jury’s awards of $40,001 for imaging
and epidural steroid injections as past medical expenses, $50,000 for future pain,
and $5,000 for past mental anguish. Chiv does not challenge the award of $15,000
for past physical pain.
A. Standard of Review
Legally sufficient evidence is that which “would enable reasonable and fair-
minded people to reach the verdict under review.” Regal Fin. Co., Ltd. v. Tex Star
Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010) (citing City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005)). In reviewing whether evidence is legally sufficient
to support a verdict, we “must view the evidence in the light favorable to the
verdict, crediting favorable evidence if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not.” Id. (quoting City of Keller,
5 168 S.W.3d at 807). Evidence is legally insufficient “when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact.” Id. (quoting
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Evidence that is less than a scintilla is “‘so weak as to do no more than create a
mere surmise or suspicion’ that the fact exists.” Id. (quoting Kroger Tex., Ltd.
P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)). For evidence to conclusively
establish the opposite of a vital fact, the evidence must be the type that could not
lead reasonable people to different conclusions. Id.
A party that attacks the factual sufficiency of an adverse finding on an issue
on which it did not have the burden of proof at trial must demonstrate that the
adverse finding is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In
conducting a factual-sufficiency review, we examine, consider, and weigh all
evidence that supports or contradicts the jury’s determination. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001). However, we defer to the jury as the
sole judge of the credibility of the witnesses and the weight to be given to their
testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
6 2003). If there was no objection to the jury charge, then the charge is the proper
measure of the sufficiency of the evidence. St. Joseph Hosp. v. Wolff, 94 S.W.3d
513, 530 (Tex. 2002); see also Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014)
(“Since neither party objected to the instruction, we are bound to review the
evidence in light of the instruction actually given.”).
B. Analysis
1. Awards for past medical expenses and for future pain
Chiv complains that the evidence supporting the jury’s award of $40,001 for
imaging and epidural steroid injections (ESIs) contained in the jury’s award for
past medical expenses and $50,000 for future pain was legally and factually
insufficient because Figueroa did not provide any expert testimony that his back
injuries were caused by the accident.
“The general rule has long been that expert testimony is necessary to
establish causation as to medical conditions outside the common knowledge and
experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). Only
in limited cases will lay testimony support a causation finding that links an event
with a person’s physical condition. Id. at 666. Non-expert evidence alone is
sufficient to support a finding of causation in limited circumstances where both the
occurrence and conditions complained of are such that the general experience and
7 common sense of laypersons are sufficient to evaluate the conditions and whether
they were probably caused by the occurrence. Id. at 668.
This court has previously held that the types of injuries with which Figueroa
was diagnosed are not the types of injury that fall into the exception carved out by
the Texas Supreme Court in Guevara. See Lara v. Bui, No. 01-21-00484-CV, 2023
WL 2249205, at *4 (Tex. App.—Houston [1st Dist.] Feb. 28, 2023, pet. denied)
(mem. op.) (holding that Guevara exception did not apply in case in which plaintiff
suffered injuries including cervicalgia, lumbalgia, lumbar radiculopathy, and two
herniated discs); Sanchez v. Leija, No. 01-19-00165-CV, 2020 WL 7349094, at *3
(Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.) (holding that
injuries including ligament sprain of thoracic spine and lumbar spine, back spasms,
and lumbar radiculopathy did not fall within Guevara exception).
An accident victim who seeks to recover medical expenses must both
identify all the conditions that generated the expenses and show that all the
conditions were caused by the accident. Lara, 2023 WL 2249205, at *7 (citing
JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015)). Here, because
Figueroa offered no expert testimony at trial that his diagnosed back injuries were
caused by the accident, Chiv argues that Figueroa cannot make the showing
necessary to recover related medical expenses such as the cost of his MRI and
ESIs. See id., 2023 WL 2249205, at *7-*8 (holding that evidence was legally
8 insufficient to support jury award for cost of two ESIs where testimony from
plaintiff’s expert witness did not establish that plaintiff’s injuries and need for ESIs
were proximately caused by automobile accident at issue).
Some non-lay evidence of causation did go to the jury because the trial court
admitted into evidence at trial medical records that include multiple reports from
Dr. Shahid Syed, who appears to have concluded that at least some of Figueroa’s
injuries and pain were caused by the September 1, 2017 accident. The medical
records were admitted as Plaintiff’s Exhibit 2. See infra note 4. Dr. Syed’s reports
were admitted as attachments to an affidavit that Figueroa submitted under section
18.001 of the Texas Civil Practice and Remedies Code, even though the affidavit
was removed from the exhibit at the time it was admitted. Id.
We hold below that the trial court erred in admitting Figueroa’s section
18.001 affidavits and, as noted below, the remedy for the improper admission of a
section 18.001 affidavit is a new trial on the claim underlying the award of medical
expenses encompassed by the affidavit. Because the trial court’s erroneous
admission of the section 18.001 affidavits also impacted Figueroa’s presentation of
his case at trial,1 that result better serves the interests of justice than a take-nothing
1 See TEX. CIV. PRAC. & REM. CODE § 18.001(b) (“Unless a controverting affidavit is served . . . , an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury 9 judgment in Chiv’s favor. TEX. R. APP. P. 43.3 (noting exceptions to general rule
requiring, upon reversal, rendition of judgment trial court should have rendered—
including where required by interests of justice); see also FieldTurf USA, Inc. v.
Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 836 (Tex. 2022) (stating that,
when trial court error prevented full development and presentation of evidence,
remand in interest of justice is warranted); Ramirez v. Sanchez, No. 01-21-00417-
CV, 2023 WL 2919545, at *10 (Tex. App.—Houston [1st Dist.] Apr. 13, 2023, no
pet.) (mem. op.) (holding that, where trial court’s erroneous ruling necessarily
impacted presentation of evidence at trial, remand best comported with interests of
justice); Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263,
281 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“As the entire trial
proceedings were premised on erroneous summary judgment orders, the more
prudent course of action is to restore the parties to the status quo at the time of the
summary judgment rulings and begin anew.”).
As support for his argument that the evidence was insufficient to support the
jury’s award for future pain and suffering, Chiv relies primarily on this Court’s
decision in Sanchez v. Leija and the decision in Strahan v. Davis, 872 S.W.2d 828
(Tex. App.—Waco 1994, no writ). In Sanchez, we affirmed the trial court’s order
granting a no-evidence partial summary judgment on the ground that the plaintiff
that the amount charged was reasonable or that the service was necessary.” (emphasis added)). 10 had failed to present more than a scintilla of competent evidence on the element of
causation of his medical injuries. 2020 WL 7349094, at *4. We did not review the
trial court’s summary judgment against the plaintiff on its claim for future pain and
suffering. See McGee v. Tatum, No. 05-21-00303-CV, 2022 WL 17248174, at *8
(Tex. App.—Dallas Nov. 28, 2022, no pet.) (mem. op.) (rejecting argument that, in
Sanchez, this Court affirmed trial court’s summary judgment on plaintiff’s claim
for future pain and suffering).
In Strahan, the Waco court of appeals ruled that a jury’s award of future
pain and suffering should be disregarded given a complete absence of evidence to
support that award. Strahan, 872 S.W.2d at 834 (rejecting appellee’s argument that
award was supported by his testimony that his knee was “popping” and his eye was
itching while he testified at trial). The court of appeals did not hold that an award
of future pain and suffering must be supported by expert testimony.
Like the appellant in McGee, Chiv has cited no authority for his position that
an award of future pain and suffering must be supported by expert testimony. See
2022 WL 17248174, at *8 (overruling argument that evidence was legally
insufficient to support jury award for future pain and suffering because it did not
include expert testimony). We thus overrule Chiv’s first issue to the extent it
extends to the jury’s award of future pain and suffering. Like the court of appeals
in McGee, we do not hold that expert medical evidence is not required to prove
11 future pain and suffering—just that Chiv failed to present sufficient argument and
authority that expert medical evidence is required. See id., 2022 WL 17248174, at
*8 n.4.
2. Award for past mental anguish
Chiv also complains that the evidence supporting the jury’s award of $5,000
to Figueroa for past mental anguish does not meet the standard required by Texas
law for an award of such damages. The jury was instructed that “mental anguish”
is “defined as intense pain of body or mind or high degree of mental suffering,
involving more than mere worry, anxiety, vexation, or anger.” See Hicks v.
Ricardo, 834 S.W.2d 587, 590 (Tex. App.—Houston [1st Dist.] 1992, no writ)
(defining mental anguish as intense pain of body or mind or a high degree of
mental suffering, and something more than mere worry, anxiety, vexation, or
anger).
Mental anguish is compensable only if it causes a substantial disruption in
daily routine or a high degree of mental pain and distress. Hancock v. Variyam,
400 S.W.3d 59, 68 (Tex. 2013). Establishing a substantial disruption in daily
routine requires direct evidence of the nature, duration, and severity of the
plaintiff’s mental anguish. SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d
539, 544 (Tex. 2018). The impossibility of any exact evaluation of mental anguish
requires that juries be given a measure of discretion in finding damages, but that
12 discretion is limited. Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002); Saenz v.
Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). The jury
cannot simply pick a number and must instead—as instructed in the standard jury
charge—find an amount that would fairly and reasonably compensate for the loss.
Bentley, 94 S.W.3d at 606; Saenz, 925 S.W.2d at 614.
Chiv argues on appeal that Figueroa testified only that his pain was
“stressful” and that he was “maybe suffering from trauma,” and that such
testimony is insufficient to support the jury’s award of past mental anguish
damages. He cites as support the Texas Supreme Court’s decision in Parkway Co.
v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (holding that mental anguish
claimant must introduce direct evidence of nature, duration, and severity of alleged
anguish, establishing substantial disruption in daily routine, or evidence of high
degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or anger). Chiv argues further that Figueroa failed to present
sufficient evidence to support the amount of mental anguish damages awarded by
the jury.
Figueroa did not present evidence at trial of a high degree of mental pain and
distress. In addition, while he did testify to ways in which his physical pain had
disrupted his daily routine, he did not describe any substantial disruption in his
13 daily routine due to mental anguish. We thus conclude that the evidence was
legally insufficient to support the jury’s award for past mental anguish.
Counteraffidavit
In his third issue, Chiv claims that the trial court erred in striking his
counteraffidavit under section 18.001 of the Texas Civil Practice and Remedies
Code because Chiv had not designated any expert witnesses. We agree that the trial
court erred in striking the counteraffidavit on that basis.
As stated in section 18.001(f), Chiv’s counteraffidavit was required to
provide reasonable notice of the basis on which Chiv intended to controvert the
claim reflected by Figueroa’s section 18.001 affidavits. While section 18.001(f)
requires that the counteraffidavit be made by a person who is qualified to testify in
contravention of all or part of any of the matters contained in the claimant’s
affidavit, it does not require that such person be a designated expert. See Hong v.
Bennett, 209 S.W.3d 795, 798, 802-04 (Tex. App.—Fort Worth 2006, no pet.)
(holding that trial court abused its discretion in permitting claimant to rely at trial
on affidavit rather than live expert testimony regarding medical expenses because
respondent had submitted counteraffidavit that met requirements of section
18.001(f), rejecting claimant’s argument that counteraffidavit was insufficient for
reasons including that respondent had not designated affiant as an expert).
14 When a defendant’s counteraffidavit is improperly stricken and the basis of
an appeal, the court must determine whether the error was harmful. In re Brown,
No. 12-18-00295-CV, 2019 WL 1032458, at *6 (Tex. App.—Tyler Mar. 5, 2019,
no pet.) (mem. op.) (citing TEX. R. APP. P. 44.1). The error is harmful if it probably
caused the rendition of an improper judgment. Romero v. KPH Consolidation, Inc.,
166 S.W.3d 212, 225 (Tex. 2005) (citing TEX. R. APP. P. 44.1(a)). If erroneously
admitted or excluded evidence was crucial to a key issue, the error was likely
harmful. JLG Trucking, 466 S.W.3d at 165. The erroneous admission or exclusion
of evidence is likely harmless if the evidence was cumulative, or if the rest of the
evidence was so one-sided that the error likely made no difference. Id.
Figueroa argues that any error in the trial court’s ruling striking the
counteraffidavit was harmless because it did not prevent Chiv from challenging at
trial the reasonableness and necessity of Figueroa’s medical expenses. Section
18.001 is a purely procedural statute designed to streamline proof of the
reasonableness and necessity of medical expenses. In re Allstate Indem. Co., 622
S.W.3d 870, 881 (Tex. 2021). Section 18.001 permits a claimant, in the absence of
a counteraffidavit, to rely at trial on an affidavit setting forth the necessity and
reasonableness of medical expenses and avoid adducing expert testimony on those
issues. Id. “[N]othing in section 18.001 even suggests an uncontroverted affidavit
may be conclusive on reasonableness and necessity.” Id. (emphasis in original). As
15 such, in the absence of a counter-affidavit, the respondent is still able to challenge
at trial the reasonableness and necessity of the claimant’s medical expenses. Id.
(“There is no textual support for the assertion that the absence of a proper
counteraffidavit constitutes a basis to constrain the defendant’s ability to
challenge—through evidence or argument—the claimant’s assertion that her
medical expenses are reasonable and necessary. The claimant’s decision to file
initial affidavits may relieve her of the burden to adduce expert trial testimony on
reasonableness and necessity, but the opposing party’s failure to serve a compliant
counteraffidavit has no impact on its ability to challenge reasonableness or
necessity at trial.” (emphasis in original)).
Chiv argues that he was nevertheless harmed by the trial court’s ruling
striking Dr. Beecher’s counteraffidavit because the ruling permitted Figueroa to
rely at trial on his section 18.001 affidavits rather than live testimony to prove the
reasonableness and necessity of his medical expenses. Chiv argues that the trial
court thus deprived Chiv of the opportunity to cross-examine Figueroa’s expert
witnesses.
We agree with Chiv that the trial court’s striking his counteraffidavit was not
harmless error. As noted above, the only non-lay evidence of causation was
medical reports that were admitted as attachments to one of Figueroa’s section
18.001 affidavits. In addition, Figueroa was required to establish the
16 reasonableness of his medical expenses through the section 18.001 procedure or
expert testimony. See In re Allstate Indem. Co., 622 S.W.3d at 876 (claimants who
do not avail themselves of the procedure set forth in section 18.001 must present
expert testimony to establish reasonableness of their medical expenses). The only
non-lay medical necessity testimony Figueroa presented to the jury was affidavits
from billing records custodians for medical providers stating that certain medical
services provided to Figueroa were necessary and that the amounts charged for
those services were reasonable. And while at least some of Figueroa’s section
18.001 affidavits do not appear to have been read or shown to the jury, the medical
records attached to those affidavits were admitted as trial exhibits.2 Those records
include assertions by medical professionals regarding the cause of Figueroa’s
injuries and the medical necessity of certain treatments received by Figueroa. See
JLG Trucking, 466 S.W.3d at 165 (erroneous admission of evidence crucial to key
issue was likely harmful).
Figueroa does not argue that the admitted evidence of causation and medical
necessity was cumulative and, from the record, it does not appear to have been. See
JLG Trucking, 466 S.W.3d at 165 (erroneous admission of evidence is likely
2 The section 18.001 affidavits for Plaintiff’s Exhibits 2, 6, 8, 10, 12, and 14 were removed from the medical records before the medical records were given to the jury. Figueroa’s counsel did not object to their removal and, on appeal, does not argue that the trial court’s striking Chiv’s counteraffidavit was harmless given the affidavits were not entered into evidence. 17 harmless if evidence was cumulative). We thus cannot hold that the trial court’s
error in striking Chiv’s counteraffidavit was harmless. See Liang v. Edwards, No.
05-15-01038-CV, 2016 WL 7163841, at *6 (Tex. App.—Dallas Nov. 23, 2016, no
pet.) (mem. op.) (holding that, where full award of past medical expenses was not
supported without improperly admitted section 18.001 affidavits, trial court’s error
in admitting those affidavits was harmful); Hong, 209 S.W.3d at 805 (holding that
appellant was harmed by erroneous admission of section 18.001 affidavits
presumed to be only evidence of reasonableness and necessity of medical costs that
were element of broad-form damages submission to jury because court of appeals
could not be reasonably certain that issue erroneously submitted to jury did not
significantly influence jury).3 Moreover, as Chiv notes, the court’s ruling striking
his counteraffidavit effectively shielded Figueroa’s experts from cross-
examination. Cf. In re Allstate Indem. Co., 622 S.W.3d at 883 (holding that
respondent had no adequate remedy by appeal where trial court order striking
counteraffidavit prevented respondent from challenging claimant’s evidence in any
way, including through cross-examination).
We thus sustain Chiv’s third issue on appeal, reverse the portion of the trial
court’s judgment awarding expenses for past medical care, and remand to the trial
3 Cf. Gulf Coast Ctr. v. Curry, 644 S.W.3d 370, 381 (Tex. App.—Houston [1st Dist.] 2020) (holding that erroneous admission of medical expense affidavits was harmless because they were cumulative of live expert testimony, distinguishing holding in Liang), rev’d on other grounds, 658 S.W.3d 281 (Tex. 2022). 18 court for a new trial on that damages claim. See Liang, 2016 WL 7163841, at *6
(holding that, where full award of past medical expenses was not supported
without improperly admitted section 18.001 affidavits, proper remedy was to
reverse and remand for new trial); Hong, 209 S.W.3d at 805 (reversing trial court’s
judgment and remanding for new trial based on erroneous admission of section
18.001 affidavits).
Improper Impeachment
We overrule Chiv’s fourth issue, in which he claims that the trial court
improperly prohibited his counsel, during his cross-examination of Figueroa at
trial, from showing Figueroa a copy of his deposition transcript to refresh his
recollection. First, the reporter’s record does not support Chiv’s characterization of
the trial court’s rulings as being based on the fact that the deposition transcript was
not a certified Spanish-language copy. The first ruling followed Chiv’s counsel’s
asking Figueroa on cross-examination whether it was true that, at the time of his
deposition, Figueroa did not remember the date of the accident. Figueroa
responded: “Because I started pointing three years went by and I was never shown
records, records or evidence.” Chiv’s counsel then asked to approach the witness to
refresh his memory. The trial court sustained Figueroa’s “improper impeachment”
objection, and only after sustaining the objection asked: “Also, is that deposition
transcript in English or Spanish?” and “Do you have a certified copy in Spanish for
19 him to use?” A few minutes later, Chiv’s counsel asked Figueroa whether, for a
period during his work history, Figueroa had to lift heavy pieces of granite without
any special machinery. When Figueroa responded that there is always machinery
to move material, Chiv’s counsel asked to “approach the witness and have the
certified court translator translate a portion of plaintiff's official deposition to
refresh his memory.” The trial court responded “no,” and Chiv’s counsel
proceeded with his cross-examination.
Second, the reporter’s record does not show, and Chiv does not argue, that
Chiv’s counsel preserved any error in the trial court’s rulings for our review. See
Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018) (noting that, to preserve error in
court’s exclusion of evidence, party must make offer of proof informing court of
substance of excluded evidence (citing TEX. R. EVID. 103)).
Conclusion
We conclude that the evidence supporting the award of $5,000 for past
mental anguish was legally insufficient. Therefore, we reverse that portion of the
trial court’s judgment and render a take-nothing judgment as to that damages
claim. Further, because the trial court erred in striking Chiv’s counteraffidavit, we
also reverse the portion of the trial court’s judgment awarding Figueroa expenses
for past medical care, and remand to the trial court for a new trial on Figueroa’s
underlying damages claim.
20 Amparo “Amy” Guerra Justice
Panel consists of Justices Guerra, Gunn, and Dokupil.