concurring and dissenting.
I join in the court’s opinion in every respect except for its conclusion that the submission of the “mental anguish” questions was harmless error. I understand the desire to uphold the jury’s verdict, especially since we have held that the record contains evidence of mental anguish, but, in my opinion, the wording of the questions was harmful because it imposed the wrong burden on the plaintiff. As I discuss below, this in turn created two fatal problems: (1) the error probably caused the rendition of an improper verdict, and (2) the jury’s findings on these issues do not support the mental anguish verdict. Consequently, I would affirm the trial judge’s decision to grant a judgment non obstante verdicto on this issue.
*381At trial, the charge, at Stevens’ request and over the objection of NEC, asked about damages in this way:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Donna Stevens for her injury damages, if any, resulting from the discharge or discrimination which you have found?
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Consider the following elements of damage, if any, and none other.
Answer in dollars and cents, if any.
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e. mental anxiety, humiliation, and embarrassment in the past $ 100,000
f. mental anxiety, humiliation, and embarrassment which, in reasonable probability, she will suffer in the future $ 25,000
As noted below, this question asked the jury to consider evidence below the level required for a person to recover mental anguish damages.
In 1995, the Texas Supreme Court unequivocally held that a plaintiff can recover mental anguish damages only if the record reveals direct evidence of the nature, duration, or severity of their anguish establishing a substantial disruption in the plaintiffs daily routine and/or evidence showing “‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995) (emphasis added). In spite of this direction from the supreme court, the jury here was told to give damages for “anxiety, humiliation, and embarrassment.” In short, the jury was given a lower burden than the law requires.
Courts have held that this type of error is reversible error. Specifically, they have held that an instruction that misleads the jury is improper. See Southwestern Bell Tel. Co. v. John Carlo ■ Texas, Inc., 843 S.W.2d 470, 472 (Tex.1992) (holding that it probably caused the rendition of an improper judgment when the jury was given an improper legal definition to the essential legal issue of the case); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-50 (Tex.1980) (holding that error in the submission of an issue was harmless except when the erroneously submitted issue confused or misled the jury); McReynolds v. First Office Management, 948 S.W.2d 342, 344 (Tex.App.—Dallas 1997, no writ) (holding that an instruction that misstates the law or misleads the jury is improper).
Courts also have found reversible error when the charge imposed a greater burden on the plaintiff than the law requires. See Dutton v. Southern Pacific Transp., 576 S.W.2d 782, 785-86 (Tex.1978); Line Enters., Inc. v. Hooks & Matteson Enters., Inc., 659 S.W.2d 113, 117 (Tex.App.—Amarillo 1983, no writ). In light of this line of cases, I fail to see why it also should not be reversible error to impose a lesser burden on the plaintiff, especially when the supreme court has held in prior case law that the evidence the jury was told to examine would not support damages. See Parkway, 901 S.W.2d at 444-45. When the jury is told to look only for evidence that does not meet the level required by law, how can we say that error probably did not cause the rendition of an improper judgment?
In addition to the above, I also am of the opinion that the judge properly struck the jury’s answers to the mental anguish question, because these findings are immaterial and will not support the judgment. See Southwestern Bell Tel. Co., 843 S.W.2d at 472 (holding that the charge did not ask a jury the ultimate issue in a tortious interference contract suit and therefore the jury findings did not support the judgment). It did not matter what the jury thought Stevens should receive for mental anxiety, humiliation, and embarrassment. An appropriate inquiry for mental anguish *382damages does not consider “mere” anxiety, humiliation, and embarrassment. An appropriate inquiry either looks for a substantial disruption in the plaintiffs daily routine, or looks for “ ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” See Parkway, 901 S.W.2d at 444. Thus, the jury’s finding of mental anxiety, humiliation and embarrassment has no legal significance and should be reversed for this reason. See id.
In reaching this conclusion, I recognize that the court did not have to define mental anguish for the jury. However, that does not change my opinion. Even though the court did not have to give a definition of mental anguish, once it chose to give one, it had to give an accurate definition. See, e.g., McReynolds, 948 S.W.2d at 344.
I also am aware of cases holding as the majority does in this case, that an error in the submission of an invalid legal theory in a question can be harmless if other valid legal theories are included within the same question. See Hart v. Berko, Inc., 881 S.W.2d 502, 510-11 (Tex.App.—El Paso 1994, writ denied) (holding that, while it was possible that the jury made an affirmative finding based on one improper theory of liability submitted along with several valid theories, a possibility is not a probability as required by Rule 44.1 of the Texas Rules of Appellate Procedure); see also Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998) (stating that the court would not reach the question of whether a trial court’s judgment may be affirmed if a liability question includes a theory that is not legally cognizable but other viable theories are included within the same question.) However, this case is distinguishable from that fine of cases. In those cases, the jury had several valid theories to pick from in deciding whether to impose damages. See Hart, 881 S.W.2d at 511. Here, the jury had only one option from which to choose, and that option was wrong. If the jury followed the charge’s direction, and we presume it did, see Tucker v. Terminix Int’l Co., L.P., 975 S.W.2d 797, 800 (Tex.App.— Corpus Christi 1998, pet. filed), it was not looking for the right quality of evidence. In this case, how can we say that is not reversible error?
In conclusion, unlike the majority, I would affirm the trial court’s decision to grant a judgment non obstante verdicto as to the mental anguish questions. In all other respects, I join in the majority’s opinion.