Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53

Baker v. Wal-Mart Stores, Inc.

727 S.W.2d 53

Tex. App.

1987

Check Treatment

*1 53 trial have been different. We totality representation look at of the counsel, acts or omis

trial isolated Washington, v. 466

sions. See Strickland 2052, 80 L.Ed.2d

U.S. 104 S.Ct. 674 193, 195

(1984); State, v. 700 Moore S.W.2d State,

(Tex.Crim.App.1985); v. Hernandez (not (Tex.Crim.App.1986) yet 53 S.W.2d object

reported). An failure isolated

improper evidence does not constitute inef Ingham

fective assistance counsel. (Tex.Crim.App.1984).

State, 679 S.W.2d whole,

Viewing evidence as a the prejudicial impact

also find that testimony of

admission of the Sanborn and degree

Spivey a sufficient Therefore, appellant’s

render trial unfair.

appellant’s point error fifth is overruled. judgment of court is af-

firmed. BAKER, vir, Appellants,

Patricia STORES, INC., Appellee.

WAL-MART

No. 09-86-145 CV. Appeals of

Beaumont. *2 being

tial tak- side effects medication by appellant. jury en the While deliberating liability, the re- issue marks made medi- were the taking appellant cation at the time Stores, Inc. incident Wal-Mart jury Mrs. these Dalton informed the that particular could have caused medicines drowsy dizzy, appellant to become causing her to the thus fall from ladder.” jurors, Two other Oliver Mitchell and Steve such comments believed that influenced the made Dalton have Waldman, Waldman, Carl Smallwood & jury’s decision. Grossman, Beaumont, appellants. carefully We have considered the affida- Close, Tucker, Orgain, L. Bell & Howard vits of Oliver Mitchell and Steve Strahan. Beaumont, appellee. Mitchell, find: From the affidavit during “The remarks made delibera- OPINION tion, feel, I of which have some one PER CURIAM. bearing the statement that ... made Tri- Denying New Appeal from an Order her Emprin and Motrin not effect original Trial was al. The fall the way in a to cause her to off principally jury on misconduct. based (Nurse) ladder. of the other One negligence ac- The drugs said these effect different that inju- personal the against Appellee tion people ways. She then added different resulting ries Patricia Baker’s fall that medicines could have caused these prem- from a stock ladder on the Wal-Mart dizzy, drowsy Mrs. Baker to become juried jury found proceeding, ises. In a the causing her to off the ladder. thus fall Inc., Stores, negli- that Wal-Mart was 40% jurors may several believe that neg- contributory gent also found that and re- influenced these have [been] Baker, ligence, part of Patricia on ours) marks.” amounted 60%. perceive that the affidavit does Motion, In the thrust; strong its is weak. main thrust that clearly shows that But the affidavit decision. came to bear during the nurse made remarks of were alleged “outside” influence nurse “one this deliberations alleged opinion expert form of jurors”. of the other jurors. given by one of She has a somewhat of Strahan registered Her were nurse. statements Part reads: of it different tenor. during jury room made in the deliberation Appellants argue deliberations. the nurse “During delibrations [sic] alleged had influences she in which said made a statement outcome of the case. material effect and it would shingles painful were to climb extremely unconfortable [sic] reg- Vickey Dalton was a reach, she made statements also [sic] profession was made istered nurse. Her drugs Baker Mrs. about the jury. members of the known to the other drowsy her are make brief, argued: [sic] been on would Appellants, in their very easily. I think balance become off ju- misconduct occurred when “Jury an influence had that her statements expert testimo- medical rors received her advan- to Wal-Marts [sic] room ny the court and while tage. relating poten- ...” to the jury deliberations Nevertheless, shows, Strahan’s affidavit liberations which involved discussions of unequivocally, that the statements were matters that not in were the record before made deliberations. jury. exception, We hold that un- 327b, der apply does not TEX.R.CIV.P. 327b reads as follows: juror Vickey Dalton’s assertions. The ex- “A as to ception: *3 “[Ejxcept juror may of a testify course deliberations or to wheth- anything upon any the effect of any his or improperly er influence juror’s mind brought other or emotions as influ- juror.” (Em- to bear upon any encing him to assent to or dissent from phasis concerning pro- verdict his mental of affidavits Mitchell and Strahan therewith, cesses connection except show “inside influence”. juror may testify any that a whether Furthermore, of affidavits improperly influence conclude, Mitchell and we could upon to brought juror. bear any Nor upon not inquiry be considered into the any his or evidence of validity by plain, concerning

statement him verdict because of the matter which precluded language about he would be affirmative of TEX.R.EVID. testifying be received 606(b). clearly allege These two affidavits from for added) purposes.” an inside influence—not an “outside” one. We overrule Point of Error Moreover, 606(b) TEX.R.EVID. states: One. “Inquiry into validity verdict or of indictment. We Appellants simply hold “Upon an inquiry into the aof timely did not file their Amended Motion indictment, or verdict signed for judg New Trial. court as any to April ment 1986. The occurring during the course of filed their Motion for New Trial on jury’s deliberations or to the of effect 28, 1986, April timely, being days within 80 anything upon any juror’s his or other signed. judgment after the TEX.R. or influencing mind emotions as to him 329b(b). CIV.P. to assent or dissent from the verdict or concerning indictment pro- his mental Appellants filed Amended therewith, cesses connection except 15, 1986, May brought Trial on which juror may testify any that a grounds forward several new newa improperly influence trial. juror. to bear any Nor 329b(b) provides: may his any affidavit or evidence of “(b) One or more amended motions for statement him a matter of new filed without leave precluded about which he would be any preceding court before motion testifying be pur- received for these new trial filed the movant is overruled poses.” added) thirty days judg- within after rules, conclude that these two complained order of is ment 606(b), 327b and determine the issue ad signed.” versely Appellants. These rules certain rule, Under the clear of this ly meaningful change worked from the definitely feel constrained to hold that prior rules, Texas law. prior Under the it Appellants’ Amended Motion since the permissible testimony to elicit con days filed than 30 New Trial was more jurors’ cerning processes mental at ar Judgment signing verdict, after the riving but the rules old did permit empowered we are not consider as certain overt acts or Two, misconduct and Four. All jury's de- of Error Three Points Error, therefore, fore, I Points of are over- reverse remand for a new trial. judgment and the below affirmed. ruled

We, course, pass upon efficacy of the rules.

justice, wisdom lengthy experience

Trial that, juries, some

observed

fraternity and camaraderie exists. This is probable sits