Texas Employers' Insurance Ass'n v. Guerrero

800 S.W.2d 859, 1990 Tex. App. LEXIS 3172, 1990 WL 255577

• Court: Court of Appeals of Texas
• Decided: September 19, 1990
• Docket: 04-88-00400-CV
• Status: Published

Opinions

OPINION

PEEPLES, Justice.

Appellee’s motion for rehearing is denied. Our previous opinion is withdrawn and replaced by the following.

Texas Employers’ Insurance Association (TEIA) appeals from a judgment rendered on a jury verdict awarding plaintiff Roman Guerrero worker’s compensation benefits for total and permanent disability. TEIA’s complaints fall into three categories: (1) sufficiency of the evidence, (2) submission of issues regarding the adequacy and timeliness of Guerrero’s notice of injury and claim for compensation, and (3) jury argument. We reverse and remand for a new trial.

The evidence, considered favorably to the verdict, shows that on January 16, 1982, while working for TEIA’s insured, H.G. Farms, Guerrero fell from his tractor, landing on his rear and injuring his tailbone. The employer sent him to Dr. Kimmel, who diagnosed a chipped coccyx. For three months Dr. Kimmel treated Guerrero and TEIA paid workers’ compensation benefits and medical expenses. On April 15, 1982, Guerrero returned to work, and he continued to work for H.G. Farms until the company closed in October 1984. On January 19, 1985—three years after the January 1982 injury—Guerrero saw Dr. Rios, who diagnosed a herniated lumbar disc and operated four months later.

I. SUFFICIENCY OF THE EVIDENCE.

The jury found that Guerrero was injured on January 16, 1982 in the course of his employment for H.G. Farms, and that the injury caused total and permanent incapacity. TEIA challenges the legal and factual sufficiency of the evidence to support these findings. TEIA does not challenge the finding of total incapacity during the 30 months that Guerrero was fully employed at his original job, or the finding that his disability was total and permanent. It contends only that the evidence is legally and factually insufficient to link Guerrero’s herniated disc to the January 1982 injury. We review TEIA’s legal and factual sufficiency points under well-settled standards that need not be repeated here. See Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Prior to his January 1982 fall from the tractor, Guerrero was free of back pain. After the incident, he complained to Dr. Kimmel in lay language of back pain, not coccyx pain. When he returned to work three months after the injury, he still suffered back pain, which still existed when he saw Dr. Rios three years later. According to Dr. Rios, Guerrero complained of radiating pain in January 1985. A CT scan and myelogram showed a herniated disc, which was consistent with Guerrero’s history of falling from the tractor and landing on his rear. Dr. Kimmel’s records for January 19, 1982 showed “chief complaint: back.” He detected tenderness around the tailbone and a fractured coccyx at the tip. He found the lumbar spine normal and saw no evidence of a herniated disc. He opined that the fall could have weakened the disc, and that if there had been no intervening injury or trauma from 1982 to 1985, as Guerrero testified, it was possible that the 1982 injury had caused the herniated disc diagnosed in 1985. It is true that Dr. Rios admitted at two points that his opinions about causation were speculative, and that Guerrero made no complaint of back pain when he saw other doctors. But we conclude that the evidence, assessed under the appropriate standards, is both legally and factually sufficient.

II. NOTICE OF INJURY AND CLAIM FOR COMPENSATION.

TEIA complains of the trial court’s refusal to submit its tendered jury questions asking whether Guerrero gave his employer notice of injury within 30 days. TEIA does not dispute that Guerrero immediately told his employer he had injured himself, or that the employer promptly sent him to Dr. Kimmel for treatment. Furthermore, TEIA admitted in response to requests for admissions that Guerrero timely reported to the employer that he had sustained “an accidental injury while in the course of [his] employment.” On this record, timely notice was conclusively established and no jury question was necessary.

On appeal TEIA argues that notice of an injury to the disc was required. But TEIA did not urge that distinction in the trial court, and therefore the contention has been waived. TEX.R.APP.P. 52(a).

TEIA also contends that the trial court should have submitted various questions concerning whether Guerrero complied with article 8307 § 4a’s requirement that he file a worker’s compensation claim within six months of the injury.¹ The jury found that Guerrero’s supervisor assured him that a claim had been filed. Guerrero, who speaks no English and has little education, said he asked his supervisor to take care of the paperwork and was assured that it would be done. He relied on that assurance. The jury’s finding of good cause is supported by the evidence, and Guerrero’s failure to file a formal claim was therefore excused. See Standard Fire Ins. Co. v. Morgan, 745 S.W.2d 310, 311 (Tex.1987).

III. JURY ARGUMENT.

TEIA complains that Guerrero’s counsel made an appeal for ethnic unity in his closing jury argument. The record shows that eleven of the twelve jurors had Spanish surnames,² as did Guerrero, his trial attorney, and his treating doctor, Dr. Rios. The challenged argument reads as follows (emphasis added):

MR. BARRIENTOS (Guerrero’s counsel):

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.

MR. KURTH (TEIA’s counsel): Your Honor, this is getting a little inflammatory in asking the jury to take that position—

MR. BARRIENTOS: No, No. I didn’t ask them, sir, I said, We. I think that is proper.

THE COURT: Well, you have got two minutes.

MR. BARRIENTOS: Thank you, your Honor. 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.

TEIA contends that this argument was a subtle but nonetheless real request for the jury to be united and on Guerrero’s side for ethnic reasons. Guerrero’s appellate counsel defends the argument by characterizing it as a request that the jury view Guerrero’s case as more united by consistencies than divided by legal technicalities. Counsel’s brief then concludes that there is nothing inflammatory or incurable about the argument. The quoted remarks were made three minutes before counsel finished his closing argument and the jury retired to deliberate.

Appeals to racial prejudice are of course prohibited. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex.1979); Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). They are “universally condemned.” See Annotation, Statement by Counsel Relating to Race, Nationality, or Religion in Civil Action as Prejudicial, 99 A.L.R.2d 1249, 1254 (1965). No one suggests that appeals to ethnic prejudice should be treated differently from racial ones.

We think the argument was a request for ethnic solidarity that cannot be plausibly explained away as a suggestion that the jury simply remember the things that “unite” Guerrero’s case. Counsel said that the things that unite “us” exceed the things that divide “us,” and then said, “There is a time to be united. Right now is a time to be united.” The argument did more than simply say, “In this case the evidence for Mr. Guerrero is united,” which counsel now urges was his true meaning. Words such as “By golly, there comes a time when we have got to stick together as a community” cannot be excused as simply a declaration that Guerrero’s case was more unified than divided. A realistic assessment of the argument in context leads to the inescapable conclusion that an appeal for ethnic unity was made. We cannot accept any suggestion that such ethnic pleas are permissible when they are dressed up and mingled with advice that the jury should follow the evidence. The argument was a forbidden ethnic plea. We must therefore decide whether it constitutes reversible error.

While most improper jury arguments can be cured by objection and instruction to disregard, appeals to racial prejudice are one of the exceptional kinds of argument that are considered incurable. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d at 840. As we read Reese, an appeal to racial prejudice — as opposed to the mere incidental mention of race³ — constitutes reversible error even if no objection was made. While the court in 1954 in Haywood had evaluated a racial argument’s harmful impact after a review of the entire record, Reese held in 1979 that such arguments are “exceptional,” and unlike other arguments that require an objection and are curable by an instruction to disregard, they are incurable and reversibly harmful. In most situations, said the court, an instruction to disregard will cure the prejudice and make it harmless:

In [an earlier case], this court noted the strength of the rule requiring timely objection to improper argument even prior to 1941 and wrote that the supreme court had gone to some length in holding that even strong appeals to prejudice become harmless when a jury is instructed to disregard them, “for which reason it is logical to require an objection and instruction.”

Id. at 840 (emphasis added). But in rare instances — such as the injection of racial prejudice into the case — an instruction will not cure the harm:

The injection of new and inflammatory matters into the case through argument has in exceptional instances been regarded as incurable by an instruction. An appeal to racial prejudice falls into the category. [Citation omitted]. The use in argument of the epithets, “liar,” “fraud,” “faker,” “cheat,” and “imposter” in disregard of objections that were made was harmful. [Citation omitted]. The unsupported charge of perjury was incurable. [Citation omitted]. Those cases ... show that an affront to the court and the equality which it must portray will be dealt with harshly.

Id. (emphasis added).

According to the dissent, “incurable” simply means “no objection necessary,” and incurable arguments will not require reversal if the appellate court considers them harmless. Clearly an incurable argument does not require an objection, but to go further and hold that an argument can be incurable and yet harmless is a contradiction in terms. The dissent’s view cannot be squared with the passage quoted above, in which the Reese court used the terms “incurable” and “harmful” almost interchangeably. Other language in Reese makes clear that “cure” refers to harm and not only to preservation of error, as the dissent urges. The Reese court said there are “rare instances of incurable harm from improper argument,” id. at 839 (emphasis added), and a later passage refers to an argument that was considered “harmless and curable.” Id. at 840. The portion of the Reese opinion that discusses how a court should assess harmfulness applies to the “unexceptional” mass of cases in which harm must be shown based on the entire record.

Reese ’s equation of “incurable” with “harmful” is consistent with the supreme court’s earlier statements that the notion of “cure” refers to removing the argument’s harmful effect. The court said so at great length in Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex.1968) (emphasis added):

Improper jury arguments are usually referred to as one of two types: “curable” or “incurable.” A jury argument is “curable” when the harmful effect of the argument can be eliminated by a trial judge’s instruction to the jury to disregard what they have just heard. The error is “cured” and rendered harmless by the instruction. On the other hand, an argument may be so inflammatory that its harmfulness could not be eliminated by an instruction to the jury to disregard it. The prejudicial nature of the argument is so acute that it is “incurable.”

If the argument is of a “curable” nature, an objection to it must be promptly made and an instruction requested or the error is waived. But if the argument is “incurable,” the failure to object does not result in a waiver....

We have concluded that the argument complained of was improper, but that its prejudicial effect was curable by an instruction to disregard.

Later cases have continued to equate the terms “incurable” and “harmful,” holding that the evil that cannot be “cured” is the harmful, prejudicial nature of the argument. See, e.g., Gannett Outdoor Co. v. Kubeczka, 710 S.W.2d 79, 86 (Tex.App.—Houston [14th Dist.] 1986, no writ); American Home Assur. Co. v. Coronado, 628 S.W.2d 818, 823-24 (Tex.App.—Amarillo 1981, writ ref’d n.r.e.); Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682, 685 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.).⁴ We hold that incurable does not mean simply that no objection need be made; it also means that the argument’s harmfulness, its reversible impact, cannot be cured or corrected by an instruction.

It is true that the veiled and subtle ethnic references in this case are not nearly so explicit and brazen as those in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954),⁵ but we cannot affirm the judgment on that basis. “The statement, to be objectionable, may be indirect or implied, as well as direct or express .... ” Annotation, Statement by Counsel Relating to Race, Nationality, or Religion in Civil Action as Prejudicial, 99 A.L.R.2d 1249, 1254-55 (1965). 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.

The Reese court condemned such appeals to prejudice as “exceptional” and as “an affront to the court and the equality which it must portray.” Such arguments, the court said, “will be dealt with harshly.” 584 S.W.2d at 840. We think there are compelling reasons for Reese’s harsh, incurable-error approach. When a racial or ethnic appeal is made, the dispute is no longer confined to the litigants; there has been an attack on the social glue that helps bind society together. Reese characterized it as an affront to the court. The offense is against society, and it makes no difference whether the victimized-litigant has shown harm. Lawyers have no right to undermine the ethnic harmony of society simply to win a lawsuit.

The dissent’s reversible-error approach would do nothing to discourage the well-packaged ethnic argument. It would unwittingly permit lawyers to craft subtle ethnic arguments, thereby putting the burden on the opposing attorney to object and seek an instruction to disregard.⁶ Because an instruction could cure the harm — and failure to seek an instruction would waive any error — the offending lawyer would have almost nothing to lose. Ethnic arguments would not cause reversal unless the victimized attorney made an objection, sought an instruction to disregard, and obtained an appellate ruling that the argument was reasonably calculated to cause and probably did cause rendition of an improper judgment. Presumably, under the dissent’s view, the victimized attorney would also have to make a post-verdict record to establish the actual ethnic makeup of the jury in order to establish harm.

If we were to affirm the judgment before us, we would establish a precedent permitting calculated, subtle racial or ethnic arguments by all litigants in all types of cases — personal injury, family law, commercial — provided the arguments were properly dressed up and disguised. Such a decision would insulate appeals for “unity” when minority litigants found themselves in court before juries in other parts of this state. That is a real and frightening prospect in this nation of immigrants. All litigants — anglo, black, hispanic, native American, oriental, and all others, including governmental and business entities — should feel free to litigate their cases before juries in all 254 counties without facing state-of-the-art ethnic pleas in closing argument. Such arguments are forbidden, and it matters not whether counsel suggests — depending upon the venue — that the jury reward or penalize a litigant for belonging or not belonging to a racial or ethnic group. Angelina Casualty Co. v. Ryan, 282 5.W.2d 310, 313 (Tex.Civ.App.—Galveston 1955, writ ref’d n.r.e.); Cooke-Teague Motor Co. v. Johnson, 50 S.W.2d 399, 401 (Tex.Civ.App.—Fort Worth 1932, no writ); Annotation, supra, 99 A.L.R.2d at 1255 (“a statement calculated to create bias in favor of a litigant may be as prejudicial as one calculated to create prejudice against him”) (emphasis added).

The Texas courts have consistently condemned jury arguments based on grounds of race, ethnicity, religion, and national origin.⁷ In the last twenty-five years such tactics have almost vanished, at least in the reported decisions. We think the scarcity of such arguments in recent years, and the consistent condemnation of them by our appellate courts, indicates that society considers them utterly beyond the pale. Recently adopted Canon 3A(9) of the Code of Judicial Conduct further demonstrates our legal system’s commitment to prejudice-free trials:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, manifest bias or prejudice by words or conduct and shall not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so. A judge shall require lawyers in 'proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion or national origin against parties, counsel or others.⁸

We hold that 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.⁹ Because such a jury argument was made in the court below, we reverse the judgment and remand the cause for a new trial. We stress that our holding does not encompass incidental references to the race of parties and witnesses; instead, we deal here with an intentional appeal for a verdict on the basis of ethnicity.

TEIA also complains that plaintiffs counsel argued that defense counsel had “lied” to the jury. Such an argument is clearly improper; Reese arguably placed the epithets “liar,” “fraud,” “faker,” “cheat,” and “imposter” in the same category of rare incurable arguments as appeals to racial prejudice. See 584 S.W.2d at 840. Because this case must be retried for other reasons, we simply call attention to the supreme court’s strong and express disapproval of such terminology.

IV. TRIAL COURT’S DUTY TO SUPPRESS IMPROPER JURY ARGUMENT.

We also take this opportunity to emphasize the responsibilities of trial judges when improper jury argument occurs. Under Reese many arguments are considered curable and harmless. But that does not mean that they are proper or that the trial court should permit them. Reese did not suggest in the slightest that trial courts should adopt a passive “anything goes” attitude toward improper jury argument. Reese simply outlined the reversible error burden that appellants face in the appellate court when they complain of jury argument.

Rule 269 commands courts to correct improper argument sua sponte:

Rule 269. Argument

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(e)Arguments on the facts should be addressed to the jury, when one is impaneled in a case that is being tried, under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, and when indulged in shall be promptly corrected as a contempt of court.

(f) Side-bar remarks, and remarks by counsel of one side, not addressed to the court, while the counsel on the other side is examining a witness or arguing any question to the court, or addressing the jury, will be rigidly repressed by the court.

(g) The court will not be required to wait for objections to be made when the rules as to arguments are violated; but should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection. But the court shall protect counsel from any unnecessary interruption made on frivolous and unimportant grounds.

TEX.R.CIV.P. 269 (emphasis added). These portions of rule 269 have been the law in Texas since 1892 with no change in wording.¹⁰

Three years before the above-quoted rules were adopted, the supreme court underscored the duty of trial judges to police jury argument. In an 1889 ease, in which counsel flagrantly criticized the adverse parties for being Jewish, the supreme court condemned the argument and reminded trial judges of their responsibilities in the strongest language:

Cases ought to be tried in a court of justice upon the facts proved; and whether a party be Jew or gentile, white or black, is a matter of indifference. The course pursued in this case was one that no court of justice ought for a moment to tolerate; and it certainly must be true that the judge who tried this cause did not fully understand the language of counsel, or he would not have permitted it, — would have rebuked it, and ought to have punished its author.

Moss v. Sanger, 75 Tex. 321, 12 S.W. 619, 620 (1889) (emphasis added).

In keeping with these rules, court decisions have consistently urged trial judges not to take a laissez-faire approach. We note the following words of a unanimous supreme court in 1954:

We realize that in the course of a hotly contested trial lawyers are apt, even prone, to “pull off the gloves”; but lawyers are officers of the court and proper and ethical conduct requires that there be limitations on the extent to which counsel may go in the injection of prejudicial and inadmissible matters, whether by way of cross-examination of witnesses or by way of jury argument. When these limits are transgressed a trial ceases to be a test of right and wrong by standards of law in a court of justice and becomes a “catch-as-catch-can, no-holds-barred” spectacle not unlike a modern wrestling match. It is not only the province but the duty of the trial judge, acting on his own volition if necessary, to prevent any such deterioration of judicial dignity.

Texas Employers’ Ins. Ass’n v. Haywood, 266 S.W.2d at 859-60 (emphasis added). In view of these authorities, it cannot be said that this decision imposes a new responsibility on trial judges. The trial court’s duty to police jury argument sua sponte has existed in Texas for 100 years.

We wholeheartedly reaffirm the words of our own court in Motley v. Lawrence, 283 S.W. 699, 702-703 (Tex.Civ.App.—San Antonio 1926, writ dism’d):

We copy these rules [the predecessors to present rule 269] for the purpose, too, of emphasizing to the trial courts their duty to protect litigants and witnesses and parties who are forced against their will in court trials from unnecessary abuse at the hands of enthusiastic and too energetic counsel. There are many, yes, the great majority of trial judges, who control their courts and rebuke counsel who indulge in such practices, as the rules of court require, without waiting for opposite counsel to arise and stop the proceedings to present his objections. So it is the duty of a watchful trial judge to quickly act in such cases.

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District courts are charged with a high duty in respect to trials before them. It is their duty to protect their courts from the contempt of counsel who flagrantly violate the rules of court, and, if necessary, to do so they have the full power to punish for contempt.

The time is ripe for the enforcement of law and order and due respect for constituted authority. Trials in courts must proceed in an orderly way and command respect, so that they shall mean something, not only to those litigating in the courts, but to mankind.¹¹

The judgment is reversed and the cause is remanded for a new trial.

1 . In 1983 the six-month period in section 4a was changed to one year.

2 . The twelfth was named Francisca Alday.

3 . The court in Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 676 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.), cert. dism'd, 481 U.S. 1073, 107 S.Ct. 2471, 96 L.Ed.2d 364 (1987), dealt with an incidental mention of race. There plaintiffs counsel referred to defense witnesses as "two black people.” The majority opinion does not indicate the context in which the remark was made, but obviously the majority considered the remark to be an isolated, incidental remark and not an appeal to racial prejudice. Because defense counsel did not object, the majority held the complaint had been waived.

According to the dissent in Altus, the racial references pervaded the entire trial and were not merely incidental. Because the supreme court denied review, we conclude that it agreed with the majority’s assessment of the record.

4 . Ford Motor Co. v. Durrill, 714 S.W.2d 329, 342 (Tex.App.—Corpus Christi 1986), judgment vacated by agr., 754 S.W.2d 646 (Tex.1988), did not involve a racial or other incurable argument, and its suggestion that an argument can be incurable yet not harmful is inconsistent with Reese, Otis Elevator, Kubeczka, Coronado, and Fisher, and with the same court’s earlier statement in Hartford Acc. & Indem. Co. v. Thurmond, 527 S.W.2d 180, 192 (Tex.Civ.App.—Corpus Christi 1975, writ refd n.r.e.) (explaining curable and incurable in terms of whether the argument's harmful, prejudicial effect can be removed by an instruction to disregard).

5 . In Haywood the defendant presented two black witnesses who had worked with the plaintiff at a garage after his on-the-job injury. They testified that he did not complain of injury while they worked with him. Addressing plaintiffs counsel’s attack on the two witnesses, the court said:

The particular part of the argument deemed by us to be most inflammatory is that in which it was implied that the Reynolds brothers were not to be believed because they were Negroes: " * * * why then didn’t they bring the superintendent [of Shaw’s garage] or bring some white fellow that you could see and know was telling the truth? * * * It looks to me like it would have been awful easy to have brought some white fellows that had their cars worked on or somebody that you could believe. Is that the way you would do it? That’s common sense. I wouldn’t fly a couple of those yellow nigs in here and expect the fury to believe that kind of stuff."

Texas Employers’ Ins. Ass'n v. Haywood, 266 S.W.2d at 858 (ellipsis, brackets, and emphasis by the supreme court).

6 . Although we do not rest our decision on the making of an objection, we note that TEIA’s counsel made a partial objection to the argument but was interrupted and did not continue.

7 . During the last hundred years, the Texas appellate courts have almost uniformly condemned arguments that invoked prejudice based on race, ethnicity, religion, or national origin.

Race has been an especially risky subject. See, e.g., Texas Employers' Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954) (reversal required because plaintiff criticized defendant for calling two "yellow nigs” instead of white witnesses to testify); Dallas Ry. & Terminal Co. v. Garner, 63 S.W.2d 542 (Tex.Comm’n App.1933, judgment adopted) (condemning counsel’s observation that jury didn't know whether deposition witness was Negro or China-man, but reversing judgment on other grounds); Panhandle & S.F. Ry. v. Sedberry, 46 S.W.2d 719, 722 (Tex.Civ.App.—Eastland 1932, no writ) (condemning argument that defendant forced plaintiff to work on crew that included Negroes and Mexicans).

Equally forbidden are criticisms that litigants or witnesses are Jewish. See Moss v. Sanger, 75 Tex. 321, 12 S.W. 619 (1889) (reversing for argument that the suit was concocted by a Jew, a Dutchman, and a lawyer, including "the old he-Jew of all, who nq,doubt planned the whole thing. All Jews, or Dutch Jews, and that is worse."); Texas Employers’ Ins. Ass'n v. Jones, 361 S.W.2d 725 (Tex.Civ.App.—Waco 1962, writ ref’d n.r.e.) (derogatory reference to witness as "that Jew” was an incurable "appeal to racial and religious prejudice in language clear and strong’’); Motley v. Lawrence, 283 S.W. 699, 701-703 (Tex.Civ.App.—San Antonio 1926, writ dism’d) (condemning argument that something improper occurred when witness Dr. Freedman, "a Hebrew," had dinner with Gentile litigants; "Hebrews do not as a rule make such social visits with Gentiles. They just don’t do it.’’).

Arguments characterizing the case as a contest between an alien and an American have received similar condemnation. See Penate v. Berry, 348 S.W.2d 167 (Tex.Civ.App.—El Paso 1961, writ refd n.r.e.) (reversible error to argue that an alien "can’t come into court and reach [his] hands into the pockets of an American citizen and take his property from him"); Basanez v. Union Bus Lines, 132 S.W.2d 432 (Tex.Civ.App.—San Antonio 1939, no writ) (reversing defense verdict because counsel stressed that plaintiff was not an American citizen and stated, “I don’t know whether he waded that river or swam. But ... when you gentlemen bring in the verdict he will swim that river again.... I think he is all wet in this lawsuit.”) See also Trachtenberg v. Castillo, 257 S.W. 657 (Tex.Civ.App.—El Paso 1923, writ dism’d) (condemning reference to defendants as “these birds from Russia” and "these sweet-scented apple blossoms from Russia”).

8 . Order of December 19, 1989, 779-80 S.W.2d XXX, effective December 19, 1989.

9 . Our decision does not require a mistrial whenever a racial or ethnic argument is made. On the contrary, we think the better course would be to await the jury's verdict. If the offending party does not obtain a favorable verdict, a second trial might be avoided.

Nor does our decision rest on the actual ethnic makeup of the jury. Guerrero’s motion for rehearing argues that a Hispanic surname might be used by an anglo female who has married a Hispanic male and taken the name of a Hispanic male. That is true, just as it is also possible that in this case the twelfth juror, Francisca Alday, may have been a Hispanic who married an anglo male. But we do not rest our decision on the actual ethnic heritage of the jurors or the other participants in the trial. The important thing is that the attorney who made the intentional ethnic appeal thought it would have an impact on the jury.'

10 . See Rules 39-41, Rules for the Courts of Texas, 84 Tex. 695, 714-15, 19-20 S.W. v, xiv (adopted by order of the Supreme Court of Texas, October 8, 1892).

11 . The viability of the quoted language from Moss v. Sanger and Motley v. Lawrence was not weakened by the Reese court's disapproval of pre-1941 cases concerning reversible error. Reese concerned appellate review- and whether error is harmless or reversible; Moss and Motley concerned the duty of the trial judge and dealt with racial arguments, which Reese condemned as incurable. 584 S.W.2d at 840.