## IN THE SUPREME COURT O F TEX AS

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O N P E T I T I O N F O R W R I T O F M A N D A M U S

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Argued January 8, 2013
C H I E F J U S T I C E J E F F E R S O N delivere d the opinion of the Court.
J U S T I C E L E H R M A N N filed a c oncurr ing opinion, in which J U S T I C E D E V I N E joined.
J U S T I C E B O Y D did not participate in the de cision.
We have rec ently held that a trial court must e x plain with r easona ble specific ity why it has

set aside a jury verdic t and g rante d a new trial. Wit hout such an explanation, parties in the case can 1 only specula te about why the court ostensibly circ umvented a criti cal constitutional rig ht. The parties—a

nd the public—are entitled to know why the trial court believes an injusti ce would occur
if the jury ’s verdic t wer e to stand. I n thi s ca s e, the jury returne d a verdic t, and the trial court
rende red a judgme nt in confor mity wi t h i t

. T h e trial court then order ed a new trial. The order is

rea sonably specific

. I ts stated rea sons are superf icially sound. The question is whether an appellate
court may , in a

n orig inal proce eding , deter mine whether

the re asonably

specific and leg ally

sound

I n r e C o l u m b i a M e d

. C t r
. o f L a s C o l i n a s , S u b s i d i a r y , L

. P

. , 2 9 0 S

. W

. 3 d 2 0 4 ( T e x
. 2 0 0 9 )

. 1rationale is actua lly true. And if it is not true, we must decide whether the t ri al co u rt ab u s es its

discretion by

g ranting a new

trial.
We hold that an appellate court may conduct a merits revie w of the bases for a new trial order
afte r a trial court has set aside a jury verdic t. I f the rec ord does not support the trial court’s rationale
for order ing a new trial, the appellate cour t m ay g rant mandamus relief

. We conditionally g rant
relief

. I. Background
A. F acts
R i ch ar d King was driving his Toy ota 4Runner along a highw ay when a commerc ial tr u ck
turned onto the road in front of him. King swerve d to av o i d t h e t ruck but lost control of his car , which rolled ove r seve ral times. King was e jected f rom the vehic le and died a few hours later

. B. P roce dural Hi story
1. Trial Court
Ki n g’s family sued Toy ota and the local Toy ota deale rship for strict products liability , neg lige nce, wrong ful death, and survivorship. The King s contende d that the 4Runner’s alleg edly 2
defe ctive sea t belt sy stem cause d his ejection fr om the car and his subsequent de ath. The family asser

ted t hat King was wea

ring his seat belt at the time of t he accident. But in a videotape d pretria l deposition, S tate Troope r Jus tin Coon, who responded t o the emerg ency call

T h e K i n g s s u e d t h e c o m m e r c i a l t r u c k d r i v e r a n d h i s e m p l o y e r s a s w e l l , b u t t h o s e d e f e n d a n t s a r e n o l o n g e r 2 p a r t i e s t o t h i s d i s p u t e
. 2and arr ived on the scene to investiga te, testified that he believed that King was not wea ring the belt
at the time of the r ollover. Specific ally , Offic er Coon testified: Q: . . . How do y ou know about the position of the sea t belt?
Of fi cer Coon : Well, if he was wea ring it o r i f i t b roke off, it would have been in a position wher e i t wasn’t in. Obviously , he wasn’t wea ring it, beca

use it was in a straig ht-up position, like it had been sitting there a while, a nd it hadn’t bee n pulled out. Q : So the seat belt wa s stowed?
Of fi cer Coon : Yes. Q : Did y ou insp ect the webbing, to see if there wer e any marks on it?
Of fi cer Coon : There was not any

. Q : And y ou did look at it?

Of fi cer Coon : I alway s look at the seat be lts, if they are not wear ing one

. Q : Did y ou pull the seat belt out?
Of fi cer Coon : No, I

did not.

The Kings filed a mot ion to prec lude at trial “[a]ny ref eren ce t o t h e p u rported opinions of
Offic er[] J ustin Coon

. . . since [he] ha[d] never been identified by De fe n d an t s as [an] expert witness[] in this case .” At a pretria l hear ing, the King s clar ified that they would not object to Offic er
Coon’s testify ing about his observa tions of the acc ident scene as long as he did not offe r his opinion

t h at King had not been wea ring a seat belt when the car rolled over. The King s lat er fi l ed an additional motion in limine to bar “[a]ny testimony from any purported fac t w itness inc luding law

3enfor ceme nt officia ls, investiga tors, emer g ency personne l, m ed ical personne l and by standers that

Richard King was not wea ring his seatbe lt

. . . befor e or during the [ac]cident.” The trial court
g rante d these motions.
The case proce eded to trial in May 2 0 0 9

. Despite the limine order s, Offic er Coon’s 3

statement found its way into the rec ord, in front of the jury , three times befor e the close of evidenc e.
Be cause the trial cou

r t’ s o r d e r c it e s T o y o ta ’ s “ p r e ju d icial,” “bra zen[ ],” and “inflammatory ” ref ere nce
to Offic er C o o n ’s s eat belt testimony as a basis for g ranting a new trial, it is important to detail

prec isely the manner

in which the informa

tion was conve y ed to the jury

. T h e i nitial instance occur red when Toy ota’s counsel introduced Offic er Coon’s vi d eo deposition. To comply with the court’s limine order s, Toy ota had reda cted portions of the office r’s testimony , and the r eleva nt passag e wa s edited and pla y ed into the re cord a s follows: Q : . . . How do y ou know about the position of the sea t belt?
Of fi cer Coon : W ell , if he was wea ring it or if it broke off, it wo u l d h av e been in a position wher e it wasn’t in. Obviously , he wasn’t wea ring it, beca

use it was in a straig ht-up position, like it had been sitting there a while, a nd it hadn’t bee n pulled out. Q : So the seat belt wa s stowed?
Of fi cer Coon : Yes. Q : Did y ou insp ect the webbing, to see if there wer e any marks on it?
Of fi cer Coon : There was not any

.

A n e a r l i e r t r i a l e n d e d i n a m i s t r i a l

. 3
4Q : And y ou did look at it?

Of fi cer Coon : I alway s look at the seat be lts, if they are not wear ing one

. Q : Did y ou pull the seat belt out?
Of fi cer Coon : No, I

did not. Q : How—tell—desc ribe to me how y ou look[ ed] at the seat belt.
Of fi cer Coon : I mean, it was on its side—
I mmediately afte r this testimony , in front of the jury , the King s’ attorney introduced the “if they are not wear ing one ” portion of the sta tement into the rec ord: Kings’ Counsel : Y o u r H o n o r , a f t er t h e an s we r, [ “] I al wa y s l o o k at t h e seatbe lts, if they are not wearing one .[”] And then there is—under the rule of optional completene ss—a question and answe r that wa s not rea d and I would like to publish that to the jury at this tim e. (Emphasis adde d.) Toy ota’s attorney was quick to ale rt the trial court that the plaintif fs’ counsel had just
introduced O ffice r Coon’s sug g estion that King was not we aring a sea t belt. Toyota’s Counsel: I f I understand it, Your Honor, he just said the question was,

[“] Did y ou look at it? [”] And the answe r, [“] I alway s look at the seat belts.[”] [To the King s’ attorney ] And y ou said what? Kings’ Counsel : And he f inishes the answe r. Toyota’s Counsel : Y

ou finish the answe r. Kings’ Counsel : Under the rule of optional c ompleteness, question at line 23,

[“] Did y ou pull the seat belt out? Answer : No, I did not.[ ”] That’s wha t I wanted r ead into the r ecor d.

5Toyota’s Counsel : Your Honor, I want the full answe r to line 21 [j ust before the previous question and answe r] rea d into the evidenc e because he just stated it out l oud

.

. . . (B ench c onfer ence .)

. . . Toyota’s Counsel : Right. [To the King s’ at t o rn ey ] Yo u rea d, [“] If they are not

wearing one .[”] We all hear d it. T h at ’s the bigg est door opening I have e ver se en. Kings’ Counsel : J udg e, under the rule of optional c ompleteness I wanted [the next questi on and answ er] rea d and he c an’t g o back—
The Court : I understand tha t. Y ou read it. Y

ou just read it. Y

ou read it into the record and before the jury

. (End of be nch conf

ere nce.)

. . .

The Court :
. . . [To Toy ota’s attorney ] I thin k [ t h e Kings’ attorney ] has

read into the record what you wanted published

. Toyota’s Counsel : That’s corr ect. And rea d into the rec ord the complete a nswer to the prior question.
The Court : It was already read into the rec ord

. Toyota’s Counsel : Thank y ou.
The Court : You’re welcome

. (Emphase s added.)

6The King s’ attorney did not move to strike the testimony or seek a mistrial, nor did he reque st

a curative or limit ing instruction afte r quot ing the statement. He did not revisit the s eat belt issue during his subsequent tender of desig nated testimony

from Of fice r Coon’s deposition. During Toy ota’s direc t examination of expert witness L ee S. Car r, the statement was ag ain

rea d into the rec ord. Carr, an acc ident rec onstructionist, built a scale model of the acc ident scene
. Be fore trial, he survey ed the acc ident site, rea d available police repor ts, and revie wed Offic er Coon’s deposition. The re levant portion of Car r’s testimony

states: Toyota’s Counsel : All rig ht. And t h en y es t er d ay , s i r, T ro o p er C oon was

prese nted by deposition. You have rea d his deposition, have y ou not, sir?
Carr : Yes. Toyota’s Counsel : I want to revie w this deposition passag e which was read into

the r ecord , sir, y esterda

y
. This is pag e 26 beg inning on line 17—or 15, ra ther. Question: So the seat belt wa s stowed?
Answ er: Yes. Question: Did y ou inspect the webbing to see if there wer e any marks on it?
Answ er: There was not any

. Question: And did y ou look at it?
Answ er: I alway s look at the seat belt if they are not wearing
one. Question: Did y ou pull the seat belt out?
Answ er: No, I

did not.

7The Court: Hold on . . . [Kings’ attorney ] has an objection . . .

Kings’ Counsel: Your Honor , we ne ed the jury out. (Jury is not present.) Kings’ Counsel: Your Hon o r, l et m e s o rt o f gi v e y o u s o m e h i s t o ry here

. Yester day counsel show ed what he just showed to the witness, showed it to Your Honor, and said, I ’m not g oing to play this. T h i s i s within y our ruling wher e the office r said, [“] I f h e is not wea

ring it.[ ”]

. . . That that’s not testimony co n s i stent with Your Honor’s ruling that should be play ed with the jury

. Y esterday I ma de a mistake when I stood up on the rule of optional complete ness and I was trying to identif y w here I wanted to insert the tes timony. And I inadvertently referenc ed that subject. For tunately , Your Honor

. . . what a lawy er sa y s is not testi mony , rig ht?

. . . I take it under some sort of g uise that I opened t h e d o o r
. . . but that’s something

. . . that [Toy ota’s attorney ] should have soug ht a clar ification for. I think fra nkly that is sanctionable conduct

. . . I f he felt t h at t h ere had been a waiver

. . . he should have a

pproac hed.
The Court: [Toy ota’s counse l] ? Toyota’s Counsel: Your Honor , I did bring to ever y one’s attention that [Kings’ attorney ] had failed to even object to this p as s ag e prior to it being play ed. Your Honor will rec all and the rec ord ref lect we had a bench confe renc e s h o rt ly befor e this passag e was being offe red to the j ury
. [Kings’ attorney ] told m e an d told the C ourt that he was g oing to o ff er s omething for purposes of optional completene ss. I said, on the re co rd, [“] Well, if y ou do, be car eful of the motion in limine.[ ”] He said, [“] I ’ve g ot it.[ ”] He went back to counsel table

. . . we completed our video offe r, he stood up and he said, [“] For purposes of optional complete ness [”] —this wasn’t lawy er t alk, this was evide nce and he read, [“] If they are not wearing one. [”]

. . .

8We then had another bench confe rence
. . . At first [Kings’ attorney ] tri ed t o deny that he said that. Y our Honor had reminded him, [“] No, you just said that. It ’s in the record, it’s before the jury. [”] [Kings’ attorney ] said, [“] I f it’s in the rec ord, it’s in the re cord, w hat’s bef ore the jury

is before the jury .[”]

. . . I don’t need to seek a clar ification of wha t’s in evidenc e or what’s in b ef o re the jury when we had multipl e bench confe renc es about it. Mistake o r not—which I know does happen on occa sions despite it having been pointed out sever al times—as [Kings’ atto rn ey ] said y esterda y , [“] I t’s befor e t h e j u ry , it’s in the record and I ’m fre e to use what is in the evidenc e in fra

ming my questions.[ ”]
So there is nothing sanctionable about that. I k n ow the plainti ff s are disappointed that they did that, but there is nothing sa

nctionable[.]

. . . The Court:

. . . [ T ] h e re co rd i s go i ng to have to speak for itself. My

rec ollection

. . . is that it was a question that y ou wer e rea ding from the deposition f

or optional completene ss. I understand and re cog nize that that may have be en inadve rtent . . .

. . . I ’m not g oing to sanction any body , but

. . . [ T o y o t a’ s counsel], [do] not

. . . p u b l i sh that to the jury

. I t has been mentioned. You had alre ady ag ree d that that wou l d n ot g o befor e the jury

. The evidence is g oi n g t o be reflec ted i n the rec ord . . . Toyota’s Counsel:

. . . I understand the Court’ s ru l i n g
. . . ex ce p t for the

. . .

statement that I ag ree d that that would not be befor e the jury

. I ’m not the one that put it before the jury , y our Honor, and I don’t think I agreed that it would be after he put it before the jury. I agreed before t h ey p u t it before the jury that I wouldn’t do it. But after h e put it in the record and eve n conce ded to the Court, and I’m s u r e i t will appear in the record, [what’s] before the jury, is before the jury

. . . I will simply ask Mr. Car

r the follow-up question that I was going to ask him, but I will not publi sh that ag ain.
The Court: Thank y ou. I appre ciate it.

9(Emphase s added.) The jury retu rn ed , an d Toy ota’s counsel resumed questioning Carr, without

publishing Coon’s statement a g ain. L a t e r , t h e s t a t e m e n t r e s u r f a c e d d u r i n g T o y o t a ’ s d i r e c t
examination of Wil liam Van Arsdell, Ph.D., another of Toy ota’s expert witnesses. Dr. Van Arsdell
testified that he had been reta ined to evalua te t he seat belt’s desig n and perf ormanc e, and to investiga te whether King ’s seat belt functioned proper ly and whether h e was wea ring it when the

acc ident occur

red. Dr. Van Arsdell revie wed the depositions of all witnesses, includin g Officer
Coon. The re levant portion of Dr . Van Ar sdell’s direc t examination by Toy ota’s attorne y

states: Toyota’s Counsel :
. . . During the course of y our work in the case , y ou obviously ,

thoroug hly inspected the driver’ s and passeng ers’ seat belt of the Toy ota 4 Runner.
Dr. Van Ar sdell : Yes. Toyota’s Counsel : You also re ad depositions?
Dr. Van Ar sdell : Yes. Toyota’s Counsel : Did y ou rea d the deposition of Off icer Coon?
Dr. Van Ar sdell : Yes, I did. Toyota’s Counsel : And based on y our rea ding of his deposition, did he examine

the driver ’s sea t belt of the Toy ota 4 Runner?
Dr. Van Ar sdell : Ye s , h e s ai d h e al wa y s wo u l d ex am i n e t h e s ea t b e l t s , i f
someone was not w earing their seat belt

. (Emphasis adde d.) The K ings’ attorney did not object to Dr. Va

n Arsdell’s state ment.
After the close of evidenc e, but befor e arg uments commence d, the King s’ attorney asked the
trial court f

or g uidance on the point with respec t to Office r Coon’s testimony :

1 0Kings’ Counsel : [R ]emem b er t h er e wa s t h at i s s u e wh er e I was try ing to identify a point for opt i onal completene ss and I misread or should not have read that. I want to make sure t hat counsel is not g oing to use that during their [closing] arg ument beca use y ou ruled on that point four or five times.
The Court : J ust make y our objections and we will prese rve the rec ord and

appropr iate sanctions wil l be issued to either party if they argue outside the rec ord

. Toyota’s Counsel : And just on that point, Your Honor, we do intend to

. . . share

that with the jury

. I t’s befor e the jury , it was read into the record , didn’t allow us to publish, but as [t he King s’ own attorney ] himself stated, What is befor e the jury , is befor e the jury

. . .

. . . The Court : [To the King s’ attorney ] An d y ou make y our objec tion, and

I will sanction people acc ording ly

. My rec ollections of it was that . .

. [Officer

Coon’s conclusions] are outside the r ecor d. Toyota’s Counsel : His statement that [King] was unbelted is outside the re cord.

What is in the rec ord and was rea d in by [t he King s’] counsel, Your Honor, is the testimony that, [“] I chec ked the seat belt. And did y ou l o ok at it? Answer : I alway s look at the seat belts if they are not wearing one .[”] That is what was rea d into the rec ord.
The Court : I don’t believ e that was read into the record at all. Toyota’s Counsel : Well, we do, Your Honor, and we know it was , s o we will

just arg ue ac cording ly

. The Court : [To the King s’ attorney ] Make y our ob j ec t i o n s an d as k for y our sanc tions. Kings’ Counsel : I will make the objec tion if that is done. (Emphase s added.)

1 1During Toy ota’s closing arg ument, Toy ota’s counsel quoted the previously admitted line of

questioning f

rom Off icer Coon’s deposition: Toyota’s Counsel : Dr. Wrig ht and Mr. F ly nn also ag ree d with Mr. Coon’s testimony

about the condition of the se at belt. Question: So is t he sea t be lt stowed? [Aside] This was re ad into the rec ord.
Answ er: Yes. Question: Did y ou inspect the webbing to see if there wer e any marks on it? Ans[w]er: There was not any

. Question: And y ou did look at it?
Answ er: I alway s look at the seat belts if they are not wearing
one
. (Emphasis adde d.)
The King s’ attorney objected, arg uing that Toy ota violated the trial court’s limine order

. The trial judg e sustained the obje ction. But despite the obj ection, the King s’ attorney did not move to
strike and did not reque st a cura tive or limit ing instruction. Toy ota’s attorney responde d, “You hear d that, and it was rea d into the rec ord by [t he King s’ own attorney ] when Mr. Coon’s deposition testimony was off ere d,” and c ontinued with closing a rg ument.
The jury returned a verdic t in Toy ota’s favor , and the trial court signe d a corr esponding judgme nt. A few wee ks later, the King s moved for new trial, al l egi n g that Toy ota’s counsel had

1 2violated the trial court’s limine ruling s by rea ding, during closing arg ument, the disputed portion of

Offic er Coon’s de position. 4 Toy ota responde d that the King s’ lawy er violated the limine ruling s by offe ring the evidenc e first. Toy ota elabor ated:
The Court acknow ledg ed on t h e re cord that [ the Kings’ own attorney ] had read Of f i ce r Coon’s statement into the record. Be cause [he] rea d this testimony i n t o ev idence , [ Toyota ] had eve ry ri ght to make closing arguments r egarding evi den ce already in the record

. Plaintiffs ca n n o t introduce evidenc e, and then alleg e the prejudice from this evidenc e justifies a ne w trial. (Emphasis adde d.)
Neve rtheless, the trial court g rante d the King s’ motion on two g rounds. First, the trial court
stated that Toy ota had violated the limine order and “purpor ted to prese nt evidenc e outside the

rec ord.” The court explained that its decision was based on Toy ota’s ref erence during closing to Coon’s testimony : Specifi cally , during closing arg ument, [Toy ota] rea d from the [d] eposition of witness J ustin Coon conce rning his lay opinion, and conclusion th at Mr. King was not wea ring a seat belt at the time of the commence ment of the rollover. The Court had previously excluded these lay opinions and conclusory rema rks by witness Coon on the g rounds that they wer e not based on his persona l knowledg e and wer e, there fore , conclusory and incompetent to be prese nted to the jury and beca use witness Coon did

B e f o r e t h e t r i a l c o u r t r u l e d o n t h e n e w t r i a l m o t i o n , b u t m o r e t h a n t h i r t y d a y s a f t e r t h e j u d g m e n t w a s s i g n e d , 4 t h e K i n g s f

i l e d a n a m e n d e d m o t i o n f o r n e w t r i a l a l l e g i n g “ n e w l y d i s c o v e r e d e v i d e n c e ” a b o u t a f o r m e r T o y o t a e m p l o y e e ’ s u n r e l a t e d a l l e g a t i o n s a g a i n s t T o y o t a f o r “ c a l c u l a t e d c o n s p i r a c y
. ” T o y o t a c o n t e n d e d t h a t t h e a m e n d e d m o t i o n w a s u n t i m e l y
. S e e T E X

. R

. C IV

. P

. 3 2 9 b ( b ) ( “ O n e o r m o r e a m e n d e d m o t i o n s f o r n e w t r i a l m a y b e f

i l e d w i t h o u t l e a v e o f c o u r t b e f o r e a n y p r e c e d i n g m o t i o n f o r n e w t r i a l

. . . i s o v e r r u l e d a n d w i t h i n t h i r t y d a y s a f t e r t h e j u d g m e n t

. . . i s s i g n e d

. ” ) ; s e e a l s o M o r i t

z v
. P r e i s s , 1 2 1 S

. W

. 3 d 7 1 5 , 7 2 0 ( T e x
. 2 0 0 3 ) ( h o l d i n g t h a t “ a n a m e n d e d m o t i o n f o r n e w t r i a l f

i l e d m o r e t h a n t h i r t y d a y s a f

t e r t h e t r i a l c o u r t s i g n s a f i n a l j u d g m e n t i s u n t i m e l y ” a n d d o e s n o t p r e s e r v e i s s u e s f o r a p p e l l a t e r e v i e w b u t t h a t “ t h e t r i a l c o u r t m a y , a t i t s d i s c r e t i o n , c o n s i d e r t h e g r o u n d s r a i s e d i n a n u n t i m e l y m o t i o n a n d g r a n t a n e w t r i a l u n d e r i t s i n h e r e n t a u t h o r i t y b e f o r e t h e c o u r t l o s e s p l e n a r y p o w e r ” )

. R e g a r d l e s s , a l t h o u g h t h e t r i a l c o u r t c o n s i d e r e d t h e A m e n d e d M o t i o n f o r N e w T r i a l , i t s o r d e r r e l i e d s o l e l y o n a r g u m e n t s a l r e a d y i n t h e o r i g i n a l m o t i o n
. A c c o r d i n g l y , w e n e e d n o t a d d r e s s t h e t i m e l i n e s s o f t h e a m e n d e d m o t i o n
. 1 3not have the requisite training , education, schooling , or experience to opine whether

or not Mr. King had bee n belted at the sta rt of the r ollover.
The c ourt thus gr anted a

new tria l “in the intere st of justice.” Second, the trial court rea soned th at a n ew t ri al was war rante d to sanction Toy ota for violating the limine order , beca use a limit ing instruction could not eliminate the harm. See T E X

. R.
C I V

. P. 320 (“N ew trials may be g rante d and judgme nt set aside for g ood cause , on motion or on the
court’s ow n motion on such terms as the cour t shall direct.”)

. 2. Court of Appeals Toy ota soug ht a writ of mandamus from the court of appea ls, which denied relief

. 327
S.W .3d 302. The court evalua ted the trial court’s order in light of In r e C o l u mbia

. The court of

appea ls rec og nized that afte r Columbia , a new trial order must include the basis for the trial court’s
decision. Id. at 305. But afte r considering the trial court’s order —repr oduced in its e ntirety in the

court of appea ls’ opinion—the court conclude d that “t h er e i s n o q u estion that the trial court

. . . specified the reasons for its decision to g rant the King s’ motion [for new trial], and there by satisfied
the specific ity require ments of Columbia .” Id. (empha sis added)

. The court of appea ls reje cted the
notion that “ Columbia supports furth er revie w of the merits of the g rounds specifie d,” and was “unper suaded that the lang uag e Toy ota relie[d] upon [i n reque sting mandamus relief ] supports such an expansion of Columbia .” Id. at 305-06 (e mphasis added)

.

1 43. Thi s Court

Toy ota then filed an orig inal proce eding in this Court. We set the matter for arg ument, 55 5
Tex. S up. Ct. J . 1212 (Tex. Aug . 31, 2012), and nowconditionally g rant re lief.
II. Discussion
A. An appellate court m a y co n duct m erit s-based m andamus revie w of a trial court’ s articulate d reasons f or granting new trial.
I n the deca des leading up to Columbia , our jurisprudenc e g ave trial courts broad defe renc e
in g ranting new trials and, specific ally , “appr oved the pract i ce o f trial courts failing to specify

rea sons for setting aside jury verdic ts. ” Columbia , 290 S.W .3d at 208. We g ener ally prec luded
revie w of new trial order s, except in two narrow instances. Id. ; see also Johnson v . Court of C ivil Appeals , 350 S.W .2d 330, 331 (Tex. 1961) (re cog nizi ng that “[t] here are only two instances wher e
any appellate court of this state has ever direc ted the trial judge to set aside its order g ranting motion
for new trial”: when the order was void or when the trial court err oneously conclude d that the jury ’s

answe rs to specia l issues conflicted irr econc ilably ).
But in Columbia , we e mphasized that the discretion g iven trial courts was “not limit less.”
Columbia , 290 S.W .3d at 210. I n that case , the jury returne d a verdict in favor of the hospitaldefe ndants afte r a four- wee k trial. Id. at 206. The trial judge g rante d the plaintiffs’ new trial motion
“in the interests of justice and fairne ss,” without further elabor ation. Id. We held th at t h i s was inadequa te, noting that “such a vag ue explanation [whe]n setting aside a jury verdic t does not
enhanc e respe ct for the judiciary or the rule of law, detra cts from transpar ency we strive to achie ve

T h e T e x a s C i v i l J u s t i c e L e a g u e a n d t h e T e x a s A s s o c i a t i o n o f D e f e n s e C o u n s e l s u b m i t t e d b r i e f s a s a m i c i c u r i a e 5 i n s u p p o r t o f t h e p e t i t i o n f o r w r i t o f m a n d a m u s
. 1 5in our leg al sy stem, and does not sufficie ntly respe ct the rea sonable expectations of parties and the

public when a

lawsuit is tried to a jury .” Id. at 213.
We disapproved of our prior approa ch under Johnson v. Fourth Court of Appeals , 700
S

. W

. 2 d 9 1 6 (T ex. 1985), and held that “just as appellate courts that set aside jury verdic ts are require d to detail rea sons for doing so, trial courts must g ive more explanation than ‘in the interest
of justice’ for setting aside a jury verdic t.” Columbia , 290 S.W .3d at 205. We held that “the parties
and public are entitled to an understandable, reasonably specific ex planation [of] why their expectations are frustrated by a jury verdic t being disreg arde d or set aside, the trial proce ss being nullified, and the case having to be retrie d.” Id

. at 213 (empha sis added)

. We did not detail exactly
what such an explanation would require , althoug h it would have to be more than a bare asser tion of
“in the intere sts of justice and fa irness.” Id.
More r e c e n tl y , we decide d In re United Scaffolding, Inc. , 377 S.W .3d 685 (Tex. 2012), which

prese nted a rela ted, but narr ower , question. There , we wer e asked to decide whether a trial court that

g ave four rea sons for g ranting a new trial, including “in the i n t er es t o f j u s tice and fairne ss,” and linked them by

“and/or ” satisfied Columbia

. Id. at 689.
I n concluding that it did not, we noted that Columbia ’s purpose “w[ould] be satisfied so long

as the order provides a cogent and reasonably specific explanation of the rea soning that led the court

to c onclude that a new trial was war rante d.” Id. at 688 (empha ses added)

. We a cknowledg ed that
Columbia focuse d “not o n t he leng th or detail of the rea sons a trial court g ives, but on how well
those rea sons serve the g ener al purpose of assuring the parties that the jury ’s decision was set aside only afte r car eful thought and for valid reasons .” Id. at 688 (citing Columbia , 290 S.W .3d at 213)).

1 6We held that the trial court’s “use of ‘and/or’ le[ft] open the possibili ty that ‘in the interest of justice

and fairne ss’ [could be] the sole rationale .” Id. at 689. That possibili ty , if true, would have violated

our Columbia standard.
We held that “a trial court d o es n o t ab u s e its discretion so long as its stated rea son for 6

g ranting a new trial (1) is a rea son for which a new trial is legally appropriate (such as a we lldefine d leg al standard or a defe ct that probably resulted in an improper verdic t); and (2) is specific enough to indicate that the trial court did not simply parr ot a pro forma template, but rathe r derive d
the articula ted rea sons from the particula r fac t s an d ci rcumstances of the case at hand.” Id. at
688–89 (empha ses added). Apply ing this new standard to the ne w t ri al order, we conclude d that
beca use, under Columbia, “in the interests of justice or fa i rness” or simil ar lang uag e “is never an
in d e p e n d e n

tl y s u f f icient rea son for g ranting new trial,” the “and/or ” order failed the test’s first pro n g
. Id. at 689–90.
This case repr esents the nex t s t ep i n t h at p ro gre s s i o n
. W e m u s t d ec i d e whe ther, on
mandamus revie w, an appellate court may evalua te the merits of a new trial order that states a clea r, leg ally appropr iate, and r easona bly specific rea son for g ranting a new trial. Stated differ ently , if a
trial court’s order fac ially comports with Columbia and United Scaffolding , may an appellate court
revie w the corr ectne ss of the stated rea sons for g ranting a new trial? Absent further g uidance from

W e a l s o p r o v i d e d a n o n - e x h a u s t i v e l i s t o f e x a m p l e s o f n e w t r i a l o r d e r s t h a t w o u l d b e c l e a r a b u s e s o f 6 d i s c r e t i o n , i n c l u d i n g : g i v i n g a r e a s o n ( s p e c i f i c o r n o t ) t h a t w a s n o t a l e g a l l y v a l i d r e a s o n ; p l a i n s t a t e m e n t s t h a t t h e t r i a l
c o u r t m e r e l y s u b s t i t u t e d i t s o w n j u d g m e n t f o r t h e j u r y ’ s ; s t a t e m e n t s t h a t t h e t r i a l c o u r t s i m p l y d i s l i k e d o n e p a r t y ’ s l a w y e r ; i n v i d i o u s d i s c r i m i n a t i o n ; a n e x p l a n a t i o n t h a t p r o v i d e s l i t t l e o r n o i n s i g h t i n t o t h e t r i a l j u d g e ’ s r e a s o n i n g ; a n d p r o f o r m a t e m p l a t e l a n g u a g e a b s e n t a t r i a l j u d g e ’ s a n a l y s i s
. U n i t e d S c a f f o l d i n g , 3 7 7 S

. W

. 3 d a t 6 8 9

. 1 7this Court, our courts of appea ls have g ener ally been reluc tant to eng ag e in merits-base d revie w of

new tria l orders. 7
* * *
To answe r this question, we consider Columbia and United Scaffolding toge ther. A new trial
order must be “under standable,” “re asonably specific ,” see Columbia , 290 S.W .3d at 213, “cog ent,” “leg ally appropr iate,” “spec ific enoug h to indicate that the trial court di d n o t s i m ply parr ot a pro forma template,” and issued “only afte r ca re fu l t houg ht and for valid reasons ,” see United Scaffolding , 377 S.W .3d at 688 (empha sis added)

. An order that does not satisfy these require ments
may be cor rec ted by mandamus.

S e e , e
. g
. , I

n r e H e a l t h C a r e U n l i m i t e d , I n c
. , N o
. 0 4

– 1 2

– 0 0 1 9 2

– C V , 2 0 1 2 W L 1 1 4 2 3 0 2 ( T e x
. A p p
. — S a n 7 A n t o n i o A p r
. 4 , 2 0 1 2 , o r i g
. p r o c e e d i n g [ m a n d

. p e n d i n g ] ) ( m e m
. o p
. ) ( d e n y i n g m a n d a m u s w i t h n o a d d i t i o n a l e x p l a n a t i o n o t h e r t h a n s i m p l y b e i n g “ o f t h e o p i n i o n t h a t r e l a t o r i s n o t e n t i t l e d t o t h e r e l i e f s o u g h t ” ) ; I n r e O l i v e r , N o
. 0 9

– 1 1

– 0 0 5 4 6

– C V , 2 0 1 1 W L 5 5 9 4 6 0 6 ( T e x
. A p p
. — B e a u m o n t N o v
. 1 7 , 2 0 1 1 , o r i g
. p r o c e e d i n g [ m a n d

. p e n d i n g ] ) ( m e m
. o p
. ) ( d e n y i n g m a n d a m u s r e l i e f a f t e r c o n c l u d i n g t h a t r e l a t o r h a d “ n o t s h o w n t h a t t h e t r i a l c o u r t ’ s r e a s o n s p r o v i d e n o v a l i d b a s i s i n t h [ e ] c a s e , o r t h a t t h e t r i a l c o u r t c l e a r l y a b u s e d i t s d i s c r e t i o n ” ) ; I n r e S t a t e F a r m M u t

. A u t o
. I n s
. C o
. , N o
. 0 4

– 1 1

– 0 0 7 0 8

– C V , 2 0 1 1 W L 4 8 3 0 1 7 7 ( T e x
. A p p
. — S a n A n t o n i o O c t

. 1 2 , 2 0 1 1 , o r i g
. p r o c e e d i n g [ m a n d

. p e n d i n g ] ) ( m e m
. o p
. ) ( d e n y i n g m a n d a m u s r e l i e f a n d c o n c l u d i n g m a n d a m u s r e v i e w i s n o t a v a i l a b l e w h e n r e l a t o r s a r e s i m p l y a s k i n g a p p e l l a t e c o u r t t o “ r e v i e w t h e t r i a l c o u r t ’ s r e a s o n s f o r n o t g r a n t i n g a n e w t r i a l ” ) ; I n r e C a m p M

y s t i c , I n c
. , N o
. 0 4

– 1 1

– 0 0 6 9 4

– C V , 2 0 1 1 W L 4 5 9 1 1 9 4 ( T e x
. A p p
. — S a n A n t o n i o O c t

. 5 , 2 0 1 1 , o r i g
. p r o c e e d i n g ) ( m e m
. o p
. ) ( d e n y i n g m a n d a m u s r e l i e f a n d r e a d i n g C o l u m b i a t o “ p r o v i d e m a n d a m u s r e l i e f w h e n t h e t r i a l c o u r t f

a i l s t o s p e c i f

y t h e r e a s o n s f

o r g r a n t i n g a n e w t r i a l , n o t t o p r o v i d e a m e r i t

- b a s e d r e v i e w o n m a n d a m u s ” ) ; I n r e J a z z e r c i z e , I

n c
. , N o
. 0 5

– 1 1

– 0 1 0 3 4

– C V , 2 0 1 1 W L 3 8 0 5 5 4 5 ( T e x
. A p p
. — D a l l a s A u g
. 3 0 , 2 0 1 1 , o r i g
. p r o c e e d i n g [ m a n d

. p e n d i n g ] ) ( m e m
. o p
. ) ( d e n y i n g m a n d a m u s r e l i e f d e s p i t e r e l a t o r s ’ c h a l l e n g e t h a t t r i a l c o u r t o r d e r g r a n t i n g n e w t r i a l w a s “ o n e r r o n e o u s a n d p r e t e x t u a l
r e a s o n s ” ) ; I

n r e W h a t a b u r g e r R e s t s
. , L P , 2 0 1 0 W L 4 9 8 3 5 6 3 ( T e x
. A p p
. — E l P a s o 2 0 1 0 , o r i g
. p r o c e e d i n g [ m a n d

. p e n d i n g ] ) ( d e n y i n g m a n d a m u s r e l i e f a n d i n t e r p r e t i n g I n r e C o l u m b i a t o m e a n m a n d a m u s r e v i e w i s a v a i l a b l e o n l y “ i f t h e t r i a l c o u r t f

a i l s t o s p e c i f

y t h e r e a s o n s f

o r o r d e r i n g t h e n e w t r i a l , ” s i n c e t h e “ m e r i t s o f t h e g r o u n d s s t a t e d

. . . a r e n o t
r e v i e w a b l e b y m a n d a m u s ” )

. B u t s e e I n r e L u f k i n I n d u s
. , I n c
. , 3 1 7 S

. W

. 3 d 5 1 6 , 5 1 8 ( T e x
. A p p
. — T e x a r k a n a 2 0 1 0 , o r i g
. p r o c e e d i n g [ m a n d

. d e n i e d ] ) ( d e n y i n g m a n d a m u s r e l i e f b e c a u s e i t f o u n d t r i a l c o u r t w a s w i t h i n i t s d i s c r e t i o n o n a t l e a s t o n e g r o u n d , b u t h o l d i n g t h a t a t r i a l c o u r t ’ s r e a s o n s f o r g r a n t i n g n e w t r i a l a r e r e v i e w a b l e o n a p p e a l )

. N o t a b l y , a f

t e r I n r e L u f k i n , t h e T e x a r k a n a c o u r t o f a p p e a l s c l a r i f i e d i t s p o s i t i o n i n I

n r e S m i t h , 3 3 2 S

. W

. 3 d 7 0 4 , 7 0 8

– 0 9 ( T e x
. A p p
. — T e x a r k a n a 2 0 1 1 , o r i g
. p r o c e e d i n g ) ( d e n y i n g m a n d a m u s r e l i e f a n d c l a r i f y i n g i t s e a r l i e r d e c i s i o n i n I n r e L u f k i n t h a t “ [ n ] e v e r
. . . d i d w e s t a t e t h e p r o p o s i t i o n
. . . t h a t t h e a p p e l l a t e c o u r t s h o u l d r e v i e w t h e e n t i r e r e c o r d , a s i n a n o r d i n a r y a p p e a l , i n o u r m a n d a m u s r e v i e w ” )

. 1 8Having alre ady decide d that n ew t ri al o rders must meet these require ments and that noncompliant order s will be subj ect to manda mus review, it would make littl e sense to conclude now
that the corr ectne ss or validity of the order s’ articula ted rea sons cannot also be evalua ted. To deny

m er its-based revie w would mean that a trial court could set aside a verdic t for rea sons that are unsupported by the law or the evidenc e, as long as those rea sons are fac ially valid. Columbia’s require ments would b e m er e formalities, lacking any substantive “che cks” by appellate courts to

ensure that the discretion to g rant new trials has been exercised appropr iately

. Transpa renc y without

acc ountability is meaning less. Whil e we reiter ate our “fa ith in the integ rity of our trial bench as well

as that of the appellate bench,” Columbia , 290 S.W .3d at 214, we decline to hold that their decisions

are immune from substantive re view.
We ha ve rec og nized two narr ow instances in which new trial order s are revie wable, on the merits, by mandamus: when the trial court’s order was v o i d o r wh en the trial court err oneously
conclude d that the j ury ’s answers t o specia l issues wer e irreconc ilably in conflict. See Columbia , 290 S.W .3d at 208 (citing W ilkins v. Methodist Health Care Sys. , 160 S.W .3d 559, 563 (Tex. 2005)). As to the latter, since at least 1926, we h av e g rante d mandamus relief to corr ect a trial

8
court’s err oneous ruling

. See Gulf, C. & S.F. Ry. Co. v

. Canty , 285 S.W

. 296, 302 (Tex. 1926). I n such case s, merits-base d mandamus revie w is rela tively straig htforwa

rd— an appellate court may
compar e the jury char g e ag ainst the jur y ’s an swers, and decide whether the trial court corr ectly
conclude d that they

conflicte d irrec oncilably

.

S e e a l s o A n g e l i n a C a s
. C o
. v
. F i s h e r , 3 1 9 S

. W

. 2 d 3 8 7 , 3 8 8 ( T e x
. 1 9 6 2 ) ( n o t i n g t h a t i f a t r i a l c o u r t i s 8

“ m i s t a k e n ” a b o u t w h e t h e r j u r y a n s w e r s w e r e i n i r r e c o n c i l a b l e c o n f l i c t , m a n d a m u s w o u l d i s s u e t o c o m p e l e n t r y o f j u d g m e n t )

. 1 9This case is analog ous. Appellate courts must be able to conduct merits-base d revie w of new

trial order s. I f, despite confor mity with the proce dural require ments of our prec edent, a trial court’s
articula ted re asons ar e not supported by the under ly ing r ecor d, the new tr ial order cannot stand.
Whil e this re view is new to us, it is old hat to our colleag ues on the fede ral bench. Fe dera l appellate courts reg

ularly conduct rec ord-bound, merits-base d revie w of new trial order s to evalua te
their validi ty

. For instance, in Peterson v. W ilson , 141 F.3d 573, 580 (5t h Cir. 1998), t he United 9
States Court of Appea ls for the Fifth Ci rcuit reverse d a dis trict court’s ruling gr anting a new trial,

vacated the judgme nt rende red afte r a jury verdic t in a second trial, and reinstated t h e fi rst trial’s
results. The Fifth Circuit observe d that the trial court had g rante d the defe ndant’s “bar e-bone s” new
trial motion despite an orig inal verdic t for the plaintiff, afte r the court “met with and interrog ated the jurors afte r the verdic t (conc ededly , outside the prese nce of the parties and counsel), and then acte d

on the comments of some of the jurors as though their rema rks wer e newly discovere d evidenc e.”
Id. at 575. Af

t er ex amining the district court’s stated rea son and “conduc t[ ing] the obliga tory
‘cumbe rsome review’ of the m ulti-volume trial rec ord,” the court concluded from its “meticulous
revi ew o f t h e rec ord of the first trial” that “[t] he instant rec ord [could not] support any such conclusion [that the evidence was insufficient to suppor t the orig inal jury

verdic t] .” Id. at 575–79 (interna l citations omit ted). 1 0

S e e , e
. g
. , V

a n S t e e n b u r

g h v
. R i v a l C o
. , 1 7 1 F

. 3 d 1 1 5 5 , 1 1 6 0 ( 8 t h C i r
. 1 9 9 9 ) ( n o t i n g t h a t “ [ a ] d i s t r i c t c o u r t 9

m u s t a d e q u a t e l y a r t i c u l a t e i t s r e a s o n s f o r o v e r t u r n i n g a j u r y v e r d i c t

. . . s o t h a t t h e r e v i e w i n g c o u r t c a n e x e r c i s e a m e a n i n g f

u l d e g r e e o f s c r u t i n y a n d s a f e g u a r d p a r t i e s ’ r i g h t t o a j u r y t r i a l ” )

.
T o y o t a a c t u a l l y a r g u e s t h a t P e t e r s o n a n d t h e f e d e r a l m o d e l “ r u n [ ] h e a d l o n g i n t o e s t a b l i s h e d T e x a s l a w t h a t 10 [ g e n e r a l l y ] p r e c l u d e s a p p e l l a t e r e v i e w o f a n e w - t r i a l o r d e r [ o r a f i n a l j u d g m e n t ] a f

t e r a s u b s e q u e n t r e t r i a l , ” s e e C u m m i n s v
. P a i s a n C o n s t r
. C o
. , 6 8 2 S

. W

. 2 d 2 3 5 , 2 3 6 ( T e x
. 1 9 8 4 ) , b u t c o n c e d e s t h a t “ [ e ] v e n u n d e r t h e f e d e r a l m o d e l , t h e r e a r e c a s e s i n w h i c h t h e c o u r t o f a p p e a l s g r a n t e d m a n d a m u s t o r e v i e w a n e w - t r i a l o r d e r b e f o r e a s u b s e q u e n t r e t r i a l c o u l d
2 0Simi larly , in Cruthir ds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas , 624 F.2d 632, 635, 636 (5th Cir. 1980), the Fifth Circuit “re view[ed] the rec ord car efully to make cer tain that the
d i s t ri ct court [di d] not mere ly substitut e[] its own judgme nt for that of the jury ” when th at co u rt “disreg ard[ed] the verdic t and g rant[ed] a new trial.” The court consulted the rec ord to evalua te the
district court’s two s tated g rounds for g ranting new trial—the first, an err oneous jury char g e on
compar ative neg lige nce, and the second, an “ag ains t t h e gre at weig ht and preponde ranc e” and “pre vent[ion of] a miscarr iag e of justice” ty pe rationale

. Id. Relevant for our purposes is the fac t 1 1
that the Fifth Ci rc u it has long eng ag ed in merits-base d revie w of new trial order s, looking to the

rec ords available on a case -by -ca se basis. Thoug h not binding on this Court, this approa ch supports

our decision today that the rea sons articula ted in a new trial order are su b ject to merits-base d
mandamus re view.
B. Under this standard, the trial court abus ed its discretion in granting a new trial.
1. Mer its-Based Review of T his O rder
Havi n g conclude d that the rea sons articula ted in a new trial order are revie wable on the
merits by mandamus, we now evalua te the trial court’s g rant of new trial ag ainst the underlying

rec ord.

o c c u r
. ” W e r e f

e r e n c e t h e s e f

e d e r a l c a s e s o n l y t o d e m o n s t r a t e t h a t w e a r e n o t t h e f i r s t n o r t h e o n l y c o u r t t o c o n c l u d e t h a t , i n c e r t a i n i n s t a n c e s , r e v i e w o f t h e r e c o r d t o e v a l u a t e a n e w t r i a l o r d e r m a y b e w a r r a n t e d

.

T h e c o u r t n o t e d t h a t “ t h e r e c o r d i n t h i s c a s e d o e s n o t c l e a r l y r e v e a l w h a t e r r o r i n t h e i n s t r u c t i o n s t o t h e j u r y 11

w a s s o t r o u b l i n g t o t h e d i s t r i c t c o u r t , ” b u t u l t i m a t e l y c o n c l u d e d t h a t t h e d i s t r i c t c o u r t h a d c o m m i t t e d a f u n d a m e n t a l e r r o r i n t h e j u r y i n s t r u c t i o n s w h i c h , t h o u g h u n o b j e c t e d t o b y p l a i n t i f f ’ s c o u n s e l , w a s s e v e r e e n o u g h t o w a r r a n t s u a s p o n t e c o r r e c t i o n b y n e w t r i a l

. C r u t h i r d s v
. R C I , I n c
. , d / b / a R e d C a r

p e t I n n o f B e a u m o n t

, T e x a s , 6 2 4 F

. 2 d 6 3 2 , 6 3 5

– 3 6 ( 5 t h C i r
. 1 9 8 0 )

. 2 1The new trial order complies wi t h C o l u mbia ’s proce dural “for m” require ments. The trial judge ’s three -pag e order , which pinp o in te d T o y o ta ’ s r e f e r e n c e to O f

f ic er Coon’s testimony in closing

arg ument as the basis for g ranting new trial, is distinguishable from the Co l u mb i a order ’s bare

asse rt i o n o f “i n the interests of justice and fairne ss.” This order , on its fac e, comports with
Columbia

. Simi larly , the trial court’s explanation of and ref ere nce to the specific g rounds for new trial
from Toy ota’s closing arg ument satisfy , fac ially , United Scaffolding ’s require ments that the rea sons listed (if acc urate ) would have been “leg ally appropr iate” g rounds for new trial, an d are “spec ific

enoug h” that they

are not simpl y

pro for ma. 377 S.W.3d at 688–89.
The trouble is that the rec ord square ly conflicts with the trial judge ’s expressed rea sons for

g ranting new trial. Simpl y articula ting understanda ble, rea sonably specific , and leg ally appropr iate

rea sons is not enoug h; the rea sons must be valid and corr ect

. Ha v i n g u n derta ken our own
“‘c umbersome revie w’ of the multi-volum e trial rec ord,” Peterson , 141 F.3d at 579 (interna l
citations omitt ed), w e conc lude that the re cord doe s not support the new trial or der.
The trial court initially g rante d the King s’ motion in limine t o p re cl u de Offic er Coon’s
d ep o s i t i o n t estimony reg arding King ’s seat belt usag e at the time of the cra sh. But a protec ti v e limine order alone does not prese rve err or. See Pool v. Ford Motor Co. , 715 S.W .2d 629, 637 (Tex. 1986) (noting that “to prese rve err or as to an improper question asked in contra vention of a sustained
motion in limine, a timely o b j ec t i o n is nece ssary ”). Fur thermore , wher e, as here , the party that

reque sted the limine order itself introduces the ev ide nce into the rec ord, and then fails to immediately object, ask for a cura tive or limit ing instruction or, alterna tively , move for mistrial, the party waives

2 2any subsequent allege d err or on the poi nt. See, e.g. , Bay Area Healthcare Grp., Ltd. v. McShane ,

239 S.W .3d 231, 235 (Tex. 2007) (“Er ror is waived if the complaining party allows the evidenc e to
be introduced without objection.”) ; State Bar of Tex. v. Evans , 774 S.W .2d 656, 659 n.6 (Tex. 1989) (“F ailure to re quest the cour t to inst ruct the jury to disreg ard the inadmissible testimony results in
waiver of the alleg ed err or wher e the instruction would have cure d the err or.”) ; see also T E X

. R. A P P

. P. 33.1(a) (deta iling require men ts for prese rvation of appellate complaints); T E X

. R. E V I D

. 103(a) (desc rib i n g ef

fe cts of err oneous admission or exclusion of evidentiar y ruling s); J O H N H E N R Y
W I G M O R E , W I G M O R E ’ S C O D E O F T H E R U L E S O F E V I D E N C E I N T R I A L S A T L A W § 140 (3d ed. 1942) (“The objector waives an objection when he himself subsequently introduces evidence which is
direc ted to prove or

disprove the sa me matter a nd is liable to the same objec tion.”).
Even if the attorney ’s actions wer e inadver tent, the King s introduced the point into evidenc e and waived the point of err or. The trial court acknow ledg ed the introduction of the evidenc e, stating
three times that the King s’ attorney had “re ad it into the rec ord.” The King s arg ue that beca use the

statemen t ca me from their attorney , and not direc tly from Officer Coon’s deposition, it cannot be
considere d a tender or proff er of testimony

. The rec ord ref lects, howeve r, that the King s’ attorney quoted the rele vant deposition t es t i m o n y when making an offe r under the rule of optional completene ss and that the trial court repe atedly acknow ledg ed that the evidenc e had been rea d into
the record. See T E X

. R. E V I D

. 107 (“When part of a[ ]

. . . rec orded statement is g iven i n evidenc e by one party , the whole on the same subject may be inquired i n to by the other, and any other

. . .

rec orded statement which is ne cessa ry to make it f

ully understood or to e x plain the same may also
be g iven in evidenc e.”) Surely , the King s would not arg ue that their intended quotation for optional

2 3completene ss was a tender of tes t i mony , while their inadvertent quotation was not. Once the

evidenc e was in the rec ord—without objection or a reque st that it be stricken or that t h e j u ry be instructed to disreg ard—it wa s in for all purpose s and a pr oper subjec t of closing arg ument. Toy ota’s counse l fairly

ref ere nced the previous day ’s proce eding s during L ee Carr’ s direct examination, by

noting that he “wa

nted t o revie w [ Offic er Coon’s] deposition passag e which was

rea d into the rec ord . . . y esterda y .” Thoug h the King s’ attorney objected to T oy ota’s questioning , he ag ain neg lected to ask the trial court for any sort of ruling , or for a limit ing or cura tive instruction.
The colloquy ended with the trial court’s noting her rec ollection that King s’ counsel had previously
“re ad[] from the deposition for optional completene ss” and that his disclosure m ay have been
“inadve rtent.” She stated that she wa s not going to sanction any one, that “[ t] he record is g oing to
have to speak for itself,” and that “[t] he evidenc e is g oing to be ref lected in the rec ord.” See
discussion supra , ___ S.W .3d at ___.
On the third instance, during Dr. Van Arsdell’s direc t examination, the King s’ attorney ag ain

rema ined silent. The King s’ attorney ’s objection during closin g arg ument was too late. The

statement was in evidenc e. Attorney s in closing must “conf ine the arg ument s t ri ct ly to the
evidenc e”; any evidenc e in t he record is fair ga me. See T E X

. R. C I V

. P. 269(e) (“Counsel shall be require d to confine the arg ument strictly to the evidenc e and to the arg uments of opposing counsel.” ).
The trial court’s pretria l limine ruling s preve nted Toy ota from introducing the evidenc e, and
the rec ord—spec ifically , th e r e d a c te d d e p o s ition Toy ota offe red—r efle cts Toy ota’s compliance with
those ruling s. After the King s’ attorney rea d the testimony into evidenc e, and afte r Toy ota’s counsel

repe ated the excerpt subsequently , the parties soug ht clar ification from the tr ia l c o u r t, w h o r e p eate dly

2 4stated that the rec ord would ref lect what was in evidenc e. The trial court did not instruct Toy ota not

to mention Coon’s statement during closing ; rathe r, she war ned that “appr opriate sanctions [would]
be issued to either party if they argue outside the record .” (Emphasis added.) We ag ree with Toy ota
that it did not vi olate the tria l court’s ruling s by ref ere ncing Offic er Coon’s de position i n closing

. We acknow ledg e that appellate courts benef it fr o m t he hindsight that a complete rec ord provides. Trial courts, on the other hand, must make difficult, often dispositi ve, decisions based on their rec ollection and best judgme nt alone, fre quently without the aid of full rec ords, transcr ipts, or briefing

. Neve rtheless, having thoroug hly revie wed the rec ord here , we conclude that the trial
court’s articula ted rea son for g ranting new trial—that Toy ota’s co u n sel “willfully disreg arde d,
b razenly and intentionally violated” the limine order s in closing —is unsupported. The rec ord
direc tly contra venes the order , including th e tr ia l c o u rt’s acknow ledg ment during trial that the King s’
attorney “ha[d] read into the re cord w hat [Toy ota] wanted published.”
Be cause the rec ord does not support the articula ted rea son, the tr ia l c o u rt abused its discretion by g ranting a new

trial on that g round.
2. New Trial as a S anction
The trial court further explained that i t wa s o rd ering a new trial pursuant to its inhere nt authority to issue sanctions, irrespe ctive of or in addition to Texas Rule of C i v i l P ro ce dure 320,
beca use of Toy ota’s ref

ere nce to Offic er Coon’s testimony during closing arg ument. The court held
that the ref

ere nce was s o p re

j u d i ci al and inflammatory that an instruction to disreg ard could not
eliminate the har

m.

2 5A new trial on that basis presuppose s sanctionab l e conduct, and we have just held that

Toy ota’s statements during closing arg ument wer e appropr iate. The rec ord ref lects that Toy ota and
its counsel complied wit h the l imine orders r eg arding Offic er Coon’s de position, as demonstrated by the play

back of mecha

nically reda cted portions of the videotaped testimony

. There is nothing to

sug g est that either T oy ota or its counsel intende d, prior to the stateme nt’s first introduction by the King s’ attorney , to introduce the statement reg arding King ’s seat belt usag e to the jury

. I n fac t, Toy ota made clea

r prior to Offic er Coon’s deposition play back that it had voluntarily deleted the “if they are not wea

ring one” excerpt, even though there had been no objection or ruling on that portion specific ally

. Once the statement wa s i n evidenc e, howeve r, and in light of subsequent bench
confe renc es, Toy ota’s ref ere nce to it during closing arg ument was appropr iate. Given that, the trial

court a bused its discretion in sanctioning Toy ota for tha t conduct.

III. Conclusion

On mandamus revie w, an appellate court may conduct a merits-base d revie w of the rea sons

g iven for g ranting a new trial. That review co m p els us to conclude that the trial court abused its
discretion in g ranting a new trial here

. The stated rea sons, though comply ing in form with the require ments of Columbia and United Scaffolding , lacke d substantive merit. Fur ther, a new trial was an improper

sanction.

2 6We conditio n al ly g rant relief and order the trial court to withdraw its order and rende r

judgme nt on the verdic t. We are confide nt the trial court will comply , and the writ will issue only
if it does not.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Wallace B . J eff

erson Chief J ustice

OP INION DELIVERED : Aug ust 30, 2013

2 7