*1 ARCHERY, GOLDEN EAGLE
INC., Petitioner, JACKSON, Respondent.
Ronald
No. 98-1076.
Supreme of Texas. Court
Argued April 29, 2000.
Decided June *2 Crofts, Stroh, Callaway
Jacqueline M. & Jefferson, Antonio, Norvell, Lipscomb San Benckenstein Norvell & Jr., Nathan, defectively designed. Beau- bow was The mont, for Petitioner. negli- found that- also Jackson gent, and attributed to him 45% of the Smith, Gaultney, David B. Cash John responsibility injury. for his Beaumont, Weber, Mehaffy & Bar- George found damages approxi- Jackson’s to be ron, Orange, *3 Respondent. for care, $2,500 $25,000 mately for medical for Justice GONZALES delivered the $2,500 physical pain anguish, and mental Court, of the in which opinion Chief loss, for for physical impairment vision $0 PHILLIPS, HECHT, Justice Justice loss, $1,500 disfigure- other than vision for ENOCH, OWEN, Justice Justice Justice ment, $4,600 for past earnings. and lost BAKER, Justice HANKINSON and jurors Ten signed of the twelve the ver- joined. O’NEILL Justice dict. court ten if they The trial asked the main in this case is The issue whether verdict, agreed to the entire but neither evidentiary and rules con procedural jurors. party poll asked to the individual prohibit jurors from stitutionally testifying judgment The court then a trial rendered post-verdict during about statements made $20,000 damages for and approximately deliberations, con unless such statements $6,700 prejudgment interest. cern outside influences. See Tex.R. Civ. P. trial. Jackson moved a new He 327(b); Tex.R. Civ. Evid. Ronald legal challenged sufficiency the and factual a a products Jackson obtained verdict of several of the support the evidence case, a liability but moved for new trial on answers, trial contested the court’s grounds, including miscon several evidence, alleged and exclusion of certain bias, duct, juror the adequacy and of the that concealed juror Barbara Maxwell a After the hearing, verdict. trial court bias voir dire and that she and court appeals denied the motion. The of other jurors committed misconduct before trial, and for a reversed remanded new and formal The mo- deliberations. that of Civil holding Texas Rule Procedure tion from one of Jack- attached affidavits his denied Jackson constitutional jurors. and Two attorneys son’s three of impartial to a fair right and jurors were who affidavits from prohibited it him from proving because verdiqt, 974 did vote for the Donald Fred- during deliberations. we 954. Because conclude A erick and Janet Cline. third from constitutional, that the rule is we reverse juror, Lynch. presiding Shawn The appeals’s judgment the court of and re though motion asserted Texas even mand to that court to consider Jackson’s 327(b) prohibits Rule Procedure of Civil points error court impeach affidavits to consideration did not appeals reach. verdict, ignore the evidence mis- during deliberations would uncon- conduct right stitutionally deny his Jackson wife him a Golden Ea- bought Jackson’s Eagle responded fair trial. Golden compound bow from a Wal-Mart store. gle Rule of both and Texas Civil string Jackson drew back the When '606(b) court prohibit from Evidence slipped out his hand and a cable bow affidavits, considering causing inju- his guard eye, struck severe attorney’s primarily re- Jackson’s affidavit Inc., Eagle Archery, He sued Golden ries. about what hearsay statements counted Wal-Mart, Inc., Company, Coleman him, told and that Jackson some negligence products liability. Inc. for juror-bias because waived complaint claims The trial court dismissed the voir dire. he did not conduct sufficient Wal-Mart, leaving Coleman and against motion for new hearing At on his Eagle as sole defendant. The Golden trial, affidavits as offered the four Jackson defectively Eagle jury found Golden testimony. Frederick’s that well as failed find marketed bow but on both a civil testimony trial court and affi- swered that she had served admitted the and a criminal She said the civil case. davits without limitation “to the extent case death an accident. involved man’s they contain mat- appropriate evidentiary attorney Jackson’s asked: 827,” ters for consideration under Rule purposes Q you otherwise for the of Jack- reach a verdict you Did —did son’s bill of At the in that exceptions. hearing, case? attorney passages
Jackson’s read from the A No. questioning voir dire to dem- Q Anything about that case that onstrate that Maxwell had hidden her bias keep you being would fair against lawsuits of this kind. Jackson’s here? attorney began voir dire with a lengthy No, sir. *4 question jurors any about whether were Frederick testified in his affidavit and at lawsuits, fair, opposed or could not be a conversation he had hearing about simply jury.1 did not want to be on a A with a trial Maxwell recess. Ac- panel member raised his hand. Jackson’s Frederick, cording to Maxwell told him attorney told the he would him ask that served previously jury she had on later, questions more panel, then asked the that nothing wrongful awarded for death “Anyone responded. else?” one No Jack- claim, thought which Frederick contradict- attorney son’s continued: statements, ed her voir dire and further here, by Is there anybody the same told him she in “awarding did not believe token, “Look, just say, who just would I that,” money stuff and that like “we are can’t do that. I can’t—I don’t believe in the up paying ones who end for it.” just
it. I give can’t a verdict that means testimony The remaining con- that somebody going is to have to pay a occurring cerned events after the re- money”? lot of Anybody here that— deliberating tired to begin the evidence. do, again, you if now the time. You Frederick, Cline, Lynch and all recalled yourself you owe it to and owe it to on the bartered amounts to these people and to the Court to be vision, disfigurement award for and loss of honest about it we—all because we can although their accounts contradict each it, do is you you ask but about have to other in the Frederick specifics. said that tell Anybody us. that here could not do initially jurors agreed ten had to award that? $2,500 disfigurement for and had nine Again, no one responded. Finally, agreed $2,500 vision, Jack- to award for loss of $1,500 son’s attorney panel asked the if disfig- of but traded votes to for award them jury. $2,500 had served on a Maxwell an- urement and for loss of vision. [Wje're concerning something 1. doing this lawsuit what we and we are that Mr. Jackson unreasonably dangerous contend to be an every right every right has and do to re- product injured unknowing that consumer. quest Countyjury. aof Jefferson right And Mr. Jackson has a to be here. He anyone panel right Is there this that on now right county has to ask a Court in this “Look, say, just would I don’t want to sit on verdict; peo- render him a fair but there are jury. this kind of I need out of here. I don’t that, reasons, own, ple many for of their type want to be here. can’t be fair. These I again, opposed type are to this of lawsuit. things agree of don’t bother me. with the They just ought that don’t think this to be stress,” whatever; system, you too much that done, they’re opposed They that to lawsuits. Judge Judge, want to tell the tell Sheffield or they ought happen, they don’t think now, right me counsel] and "I don’t case, [defense types can’t render verdicts in these do, cases, you you want to be here”? If I would ask of course, et cetera. If that is the case—of please right to be do honest and now you’re your opinions; entitled to and system depends integrity you because our on fight anybody I would for to have that case, jury system integrity jurors. of our opinion. you and of But if that's should says, operating anyone Is there "I can’t do not be on this because we are here that law; parameters Anyone? within the—within the this”? awarded, however, damages
Lynch, initially claimed that ten amount of the $1,500 jurors agreed had on loss weight supporting the evidence $2,500 vision, eight and on for dis- agreed verdict, jury’s of certain and exclusion figurement, ultimately decided to court of addressed appeals evidence. The merely these switch amounts. Cline re- only points two Jackson’s last about jurors membered that the “traded off’ bias. divided these answers. appeals court of reversed the trial court’s Frederick also stated for a judgment and remanded the case damages, Maxwell told discussion expressed concern new trial. The court its that “there is too much of this veracity about increasing “the ever lack of on,” ” to mean going filing which he took at on voir dire.... that she aup of lawsuits. He said “held court held that because document which the name of Wal- showed only evidence denied Jackson the something Mart and said effect misconduct, it denied prove available to already gotten a plaintiff probably had him a fair trial. right impartial his big settlement from Wal-Mart and did It concluded that the evidence established money need more out this case.” misconduct, Maxwell’s mis- *5 Lynch additionally Frederick and testi- harm. conduct was material and caused jury room fied deliberations for re- Eagle petitioned Golden this Court speculated Maxwell whether Jackson had view, granted petition. we the drinking been alcoholic when beverages Finally, the accident occurred. all three
juror
strong-
that Maxwell
affidavits claim
II
ly argued
position
Jackson’s
against
whether,
This case turns on
and to
jury
throughout
room deliberations.
extent,
jurors’
what
and tes
affidavits
trial
mo-
The
court overruled Jackson’s
timony
juror
to
mis
are admissible
show
its
explaining
ruling
tion for a new trial
The
conduct such as undisclosed bias.
to the
The court
parties.
a letter
advised problem jury
pres
misconduct or bias
of
jury
it would not sustain Jackson’s
miscon-
best
to
ents difficult choices about how
jurors’
arguments
duct
affida-
because
promote
jury system’s “purity
and effi
jury
all
testimony
pertained
vits and
to
I,
Article
15 of the
ciency” under
Section
therefore incompe-
deliberations and were
hand, it
Texas
On the one
Constitution.
rejected
The
also
tent.
court
Jackson’s
particular
in a
case to
may be desirable
juror
undisclosed
bias.
complaints about
rectify
improperly decided be
a verdict
Acknowledging that the same evidence of-
A
fair
juror
cause of
bias misconduct.
to show
misconduct “would cer-
fered
a
impartial tribunal is basic
trial before an
juror
tainly support
conclusion that the
a
In re
process. See
requirement of due
product
against
lia-
question
was biased
Murchison,
133, 136,75
U.S.
S.Ct.
349
did not resolve
bility suits” the court
(1955). However,
goal
99
942
L.Ed.
in fact
In-
whether Maxwell was
biased.
miscon
free from bias or
a
stead,
the court concluded
Jackson’s
against
legiti
duct must be balanced
attorney’s
questioning
voir
of Maxwell
dire
v. Mis
mate
See Maldonado
interests.
specific enough
pur-
not
to show she
(5th
798 F.2d
770
Ry.
did souri Pac.
any bias. Jackson
posefully concealed
Cir.1986).
any
trial court to make
request
not
and commentators have
Courts
findings
fact
of these issues.
about
why losing
policy
noted
reasons
several
to conduct
parties
not be allowed
should
points
appeal,
eight
On
Jackson asserted
investigations into the
unfettered
which,
sustained,
error,
if
one
prove
allega
try
to
to
such
deliberations
trial.
six
would result in a new
His first
tions,
jury on trial.
putting the
in essence
sufficiency
points challenged
First,
kept
charged jurors
yield
deliberations must be
must sometimes
to
private
encourage jurors
to
candidly
to
the state’s constitutional
in pro
interest
discuss the case. A verdict is a collabora
tecting
jury system by preventing
requiring
tive effort
harassment).
individuals from dif
juror
post-verdict
backgrounds
ferent
to reach a consensus.
authority explained,
As
ques-
one
“[t]he
juror
should feel free to raise and con
tion,
years,
which has vexed courts for
sider an unpopular viewpoint. To dis
they go
opening
how far can
verdicts to
charge
effectively, jurors
their duties
must
grounds
attack on such
before
cure
be able to discuss the evidence and issues
than
becomes worse
the disease.”
without fear that
their deliberations will
al„
Goode et
Guide
Texas Rules of
later
held up
public scrutiny.
be
Sec
§
606.02
Criminal,
Evidence:
Civil
ond,
recognized
there is a
protect
need to
(Texas
1993).
Practice
answer under
The
post-trial
from
harassment or tam
English common law was the doctrine that
pering.
losing party
every
The
has
incen
juror
impeach
not
the verdict. The
try
tive to
get
testify
to defects
doctrine’s roots are
early
traceable to an
in their deliberations.
winning party
The
Lord Mansfield common-law decision. See
would likewise want
investigate
in order
(K.B.
Delaval,
Eng. Rep.
Vaise
to protect
judgment.
Jury
service will
1785),
Comment,
Copeland,
discussed in
be less attractive if
litigants
can harass
Inquiries
Room Without a View:
into
trial,
after
call a
Jury Misconduct
the Adoption
After
deliberations,
about
and make
BayloR
606(b),
Texas Rule
Evidence
Third,
deliberations public.
disgruntled
(1986).
Early Texas deci-
L.Rev.
juror whose view did
prevail
in the
sions followed the Lord Mansfield rule and
jury room would have an avenue for vindi
flatly prohibited jurors
impeaching
*6
by
cation
overturning the verdict. This is
See,
the verdict.
e.g.,
Ry.
St. Louis S.W.
significant
trials,
concern in Texas civil
Ricketts,
68,
315,
v.Co.
96 Tex.
70 S.W.
which the verdict may be less than unani
(1902);
Skidmore,
317
Campbell v.
1 Tex.
mous. Fourth is the
finality.
need for
(1846).
475,
1905, however,
477
In
Litigation must end
point
at some
if the
Legislature
adopted
exception to this
public is to
any
have
in judg
confidence
jury-incompetency
common-law
rule. See
generally
ments. See
Tanner v. United
24,1905,
18,1905
Act of Feb.
ch.
Tex. Gen.
States,
107, 119-20,
483 U.S.
107 S.Ct.
21,
15, 1939,
repealed by
May
Laws
Act of
2739,
(1987);
369 Jackson offered this case. Golden Ea- v. Mitchell Southern Pac. Trans. 955 300, gle argues that precludes (Tex.App. Rule S.W.2d 322 Antonio — San writ) 1997, proof jury (holding non-juror’s of all no except miscon- affidavit jury duct resulting from outside about what occurred deliberations influences. hearsay); Clancy Corp., Both v. Zale 705 Rule and Rule state 820, 1986, jurors may (Tex.App S.W.2d 828 not about state- . —Dallas n.r.e.); Tenngasco writ ref'd Gas Gather occurring during ments or matters deliber- Fischer, 301, ing 624 ations, Co. S.W.2d they may testify about outside 1981, (Tex.App. Corpus Christi writ ref'd 327(b); influences. See Tex.R. Civ. P. — n.r.e.). While we consider the record A number of Tex.R. Civ. Evid. dire, sug of the voir it alone contains no cases and commentators have concluded gestion jury misconduct. that the Texas rules all proof jury forbid misconduct unless it influ- involves outside turn We now testimo Many ences.3 rely these cases on a (1) ny. Here three testified as to statement Weaver v. Westchester Fire alleged matters to have occurred after the Company: Insurance jury begin retired to deliberating the evi (2) motion
[A] for new trial based on dence and a conversation alleged to ju- misconduct must be supported by have occurred break. We ror’s affidavit alleging “outside influ- jurors’ testimony consider first the about ences” were brought upon to bear occurring retiring begin events after jury. In support deliberations. of a motion for 327(a) trial, provides: new (Tex.1987). However, S.W.2d ground When the of a motion for new broad, our statement in overly Weaver was trial, affidavit, by supported is miscon- because the rules’ limitations on affidavits duct of the or of the officer in and testimony grounds as for a new trial them, charge or because of com- expressly do not apply non-jurors. munication made to the or that a course, court may, of competent admit evi juror gave an erroneous or incorrect dence of misconduct from examination, answer on voir dire See, State, source. e.g., Mayo v. court shall hear evidence thereof from (con 856 (Tex.Crim.App.1986) in open others court. sidering testimony of witness contacted juror); Fuller, 327(a). Fillinger v. argues S.W.2d Tex.R. Civ. P. Jackson 327(a) (Tex.App. no when we harmonize Rules — Texarkana writ) (holding 327(b), that rules do require not the latter does apply when the affidavits only); be from purpose affidavit is to show Goode, § supra, 606.2 & n. 42. There is another lied on dire and voir competent non-juror no Thus, prejudice. evidence of mis concealed bias and Jack- *8 here, 327(a) conduct however. Jackson’s attor son argues permits juror that Rule ney’s affidavit in part relates testimony statements about during statements made dire; made in open during court voir ju- the deliberations if offered to that a show remainder of the attorney’s testimony is ror an gave erroneous or incorrect answer objected-to hearsay But, concerning what the on voir dire examination. if Jackson’s jurors 327(a) him juror correct, told interpretation another said. See Rule is See, 177, Texaco, Co., e.g., writ); King, v. 932 S.W.2d Inc. v. 729 Sanchez Pennzoil 1996, writ); (Tex.App. 768, 183 Paso no Welsh (Tex.App. S.W.2d 849-50 [1st — El — Houston Robinson Elec. Welsh, 615, (Tex.App.— v. 905 S.W.2d 618 1987, n.r.e.); ref'd Dist.] writ 1995, denied); Perry [14th Houston writ Dist.] Supply Corp., Co. v. Cadillac Cable 706 Co., 279, (Tex. v. Ins. 821 S.W.2d 280 130, Safeco (Tex.App. 131-32 — Houston 1991, denied); App. [1st Dist.] writ 1986, Addison, — Houston n.r.e.); [14th writ ref'd Dist.] Inc., 751, Whataburger, Kendall v. 759 S.W.2d 50 Tex. Bar J. at 872. 1988, (Tex.App. 755 no [1st Dist.] — Houston 327(b), exception it falls within the scope ny the because exception to Rule then for “outside influences.” into deliberations le- the rules We inquiry not defined what kind “outside just include not incorrect an- have
gitimately In juror may testify a about. dire “misconduct of influence” swers on voir Weaver, subject, we only case on the occurring our jury”, including so, of what is not an outside gave examples If during formal deliberations. Fire influence. v. Westchester greatly amendments to Rule 327 ex- Weaver (Tex.1987). 23, 24 In jury’s Ins. 739 S.W.2d panded scope inquiry into the case, compensation claim- restricting than them. that a worker’s deliberations rather claiming a affidavit concluding for ant obtained Certainly, there is no basis had the failure of discussed expand the Court intended to testify and appear certain witnesses to inquiry jury’s into the delibera- scope of 327(a) the claimant lacked probability excep- Rule as an by adopting tions 327(b). insurance. See id. We hospitalization tion to Rule affidavit was not evi- concluded that the jurors operates prohibit Rule influence. See id. dence of an outside testifying matters and state- from about occurring during considering ques ments deliberations. Most Texas courts (b) sections, prevent the rules Harmonizing both subsection tion have held that jury dis grounds alleged juror testifying from applies regardless of suggests improper cussed matters delibera for a new trial. Jackson Saenz, 327(a)’s See, juror testimony e.g., tion. Soliz v. 779 S.W.2d provision Rule for 1989, 929, pre- (Tex.App. Corpus if Christi meaningless would be — denied); Bauer, King writ v. 767 S.W.2d juror testifying about state- cludes 1989, 197, (Tex.App —CorpusChristi We made deliberations. ments . Inc., Interests, denied); Baley v. preclude does not writ disagree. Rule W/W (Tex.App contacts 754 S.W.2d juror testimony improper about . —Houston denied); Robinson juror writ jury, Dist.] outside the nor [14th with individuals Corp., Cable Supply not Elec. Co. Cadillac testimony matters or statements about (Tex.App 706 S.W.2d during the course of the “occurring . —Houston n.r.e.); Clancy writ ref 'd testify Dist.] about juror may [14th deliberations.” (Tex. 820, 828-29 Corp., v. Zale provided it does not re- jury misconduct n.r.e.). 1986, writ ref'd We App. For ex- delving into deliberations. quire — Dallas that an contemplate agree. another The rules testify could ample, from sources originates “outside influence” viewed the scene of the juror improperly jurors Accord Like- other than the themselves. litigation. rise to the giving events that some wise, ingly, here the accounts could about reasons involved alcohol was juror provided speculated whether disqualifying another may have accident and that Jackson juror’s knowledge was testifying settlement, or that the received a of deliberations. Ju- gained independent issues, are all on two Maxwell, traded answers had she been called to testi- ror occurring during matters statements about questioned have been about fy, could evidence They are not their deliberations. jury service without vio- prior facts of her of outside influences. lating Rule *9 should argues also that we Jackson prohibition rules’ Despite the influ an “outside consider Maxwell herself testimony about against juror delibera .606(b) 327(b) into brought prejudices she tions, and Rule ence” because both Rule have A number of cases jury influ room. testify about outside jurors allow holding rejected argument, we should also argues that ences. Jackson juror from a preclude evidence outside the rules exception for broadly interpret during bias juror exhibited jurors’ testimo- that another influences and consider
371 court, See, of during the deliberations jury e.g., deliberations. United States (5th Cir.1980) Duzac, other busi- jury, may proceed v. F.2d time, but (holding “proper or recess from time to time to discover ness for all prejudices jury being open purposes such is when the shall be deemed challenges jury. are with the case before the peremptory selected connected Soliz, attorneys”); available to the P. Clearly, Tex.R. here the rule Civ. at ema (holding evidence deliberations and not inci- refers to formal nating jury from inside deliberations not might occur be- dental discussions bias); admissible to show Baker Marine trial. during tween Corp. Weatherby Eng’g v. 710 S.W.2d rules use the term “deliberation” Other 690, 692-93 Christi (Tex.App.—Corpus process beginning to refer to the formal writ) (holding no testimo jury after the close of evidence and the ny that fellow seemed biased charge, jury weigh retires to when inadmissable). Moreover, deliberation was evidence to arrive at a verdict. For exam- while failure to form disclose bias is a ple, provides “jury may Rule that a justifies misconduct that a new trial or for either decide case court retire circumstances, appropriate proof under the the of- deliberation.” Rule 283 constrains aof failure to disclose bias must from charge jury revealing ficer come from some source other than a fellow If jury’s] “the state of deliberations.” [the juror’s testimony about deliberations. See polling the reveals a with the jury problem Corp., Durbin Dal-Briar verdict, it is or in- or otherwise defective 272 (Tex.App.—El Paso writ complete, provide Rules 294 denied). “further deliberations.” None of the rules vein, In the same Jackson contends delib- contemplate jury begin that Maxwell anwas outside influence be erating during a trial break. the con- On cause her statutorily disqualified bias her trary, approved jury direct instructions serving jury. on the See Tex. jury against courts to admonish the infor- Gov’t 62.105(4). However, § did Jackson Code mal discussions of the case: timely statutory disqualification raise among Do not even discuss this case as a basis for new trial. P. See Tex.R. Civ. yourselves you until after have heard all 329(b). if timely But even Jackson had evidence, charge, the court’s it, depend proof raised Jackson must attorneys’ arguments and until have prohibited by other than matters to consider you sent room statutory disqualifica to establish your verdict. tion. instructions) (approved P. 226a Tex.R. Civ. Finally, alleged we consider the ptll. conversation between Frederick and Max appeals adopted op court of argues well trial break. Jackson posing interpreting view the term “deliber that the conversation should not be consid ations” in Rules 606 and to include ered “deliberations” and therefore barred charge discussions before the was read by Rule and Rule We begun: and formal deliberations had agree. The Texas Rules of Proce Civil Any regarding dure use the term “deliberations” as mean conversation the case oc- ing among jurors formal is a curring deliberations—when the between jury weighs part regardless the evidence to arrive at a deliberations it To place verdict. In at least one rule the term is the time and where occurs. post- stage used to refer to the of trial after the hold otherwise would reinstate the prior court it under charged questioning has before law. provides: has returned verdict. Rule 287 *10 Interests, Inc., of its decision findings support all in 754 S.W.2d made
Baley v. W/W trial. 313, the motion for new See id. (Tex.App. deny [14th Dist.] — Houston denied). 1988, A writ number courts had the burden Consequently, Jackson Baley holding have followed that Maxwell com- conclusively establish expansive This read misconduct, without discussion.4 a burden he did mitted however, by the lan ing, required is not discharge. Thus, guage disapprove of the rules. we juror Fred Jackson contends that of the definition of the term “delibera erick’s accounts of a casual conversation contrary to the tions” in these cases. And prevari Maxwell established that she with in suggestion Baley, appeals’s court of voir dire and concealed her bias. cated on 327(b) in and Rule were not in of Jack support Frederick’s affidavit post-trial questioning tended to eliminate part: in son’s motion stated per is still altogether. testimony Juror At the trial after the during a recess misconduct,
mitted on the issues of Mulaney, witness -the testimony of the communications jury, and erroneous juror Barbara Maxwell told me that she dire, such testi provided answers on voir jury which a previous had been on a delving into deliber mony require does not of anoth- family suing for the death (b). 327(a), P. ations. Tex.R. Civ. family member. Her comment was er that Rules Consequently, we conclude noth- she was on awarded Frederick’s and do not bar and that she did not believe ing, testimony about his conversation money in like that”. “awarding stuff However, a trial break. Maxwell said, ones that end also are the She “We conclusively because this evidence does not it.” I reminded her up paying for prevaricated that Maxwell establish by [Jack- had been asked about she dire, we do not concealed bias voir gave no answer. attorney] son’s and she the trial court abused its discre- agree that as a elaborated on this incident Frederick trial. failing grant a new tion hearing at the witness called Jackson To warrant a new on the motion: (1) misconduct, establish the movant must Q [your refers] affidavit believe (2) occurred, it was the misconduct while something place that took (3) material, injury. caused probably and tried; that cor- being case was still that a trial court: provides Rule 327 rect? trial if ... the errone may grant new Yes, sir, A it is. on voir dire ous or incorrect answer examination, material, if it rea be Q place take break Did that from the evidence both sonably appears jury? hearing of the motion and on the Yes, sir, right outside the court- A and from the record as trial of the case room. injury resulted to probably whole that Now, believe that Q this this—I party. complaining you and a female told me that you 327(a).
Tex.R. Civ. P.
“Whether
you-all
like to drink coffee
both
injury
question
is a
occurred and caused
coffee drinkers?
only
were the
Pharo v.
the trial court. See
fact for
Yes,
A
sir.
945, County, 922 S.W.2d
Chambers
Q
right?
Is that
(Tex.1996).
to the con-
findings
Absent
correct.
trial court
That’s
must assume that the
trary, we
denied);
v. Texas
See,
Wilson
Transp.
Paso
writ
e.g.,
v. Southern Pac.
Mitchell
825, 831
Dept.,
(Tex.App.—San to
Parks
Wildlife
An
1993),
(Tex.App.
rev’d. on other
writ);
Dal-Briar
Durbin v.
nio
no
— Austin
1994).
(Tex.
grounds,
A Right, right, I reminded her. action, referring wrongful to the death said—I think Mr. Smith had asked that she did not believe in “lawsuits like very dire, question on voir anybody if this”, case, referring present did she so; did not say believe it to and she mean that she lawsuits considered to be made no comment about that. lacking personal injury merit or all ac
Q Now, tions? The latter there was one other is reasonable infer state- ence, ment in this affidavit so the former. Frederick’s attributed credible, is, testimony, and that if “We are the ones that inconclusive. end up paying for it”? But the trial court not have consid- Yes, sir, A she said that. ered testimony Frederick’s to have been
Q She made that comment at the certainly hearsay, credible. It was same time? objection while no was made to its admis- preclude sion to the trial court from con- Right. it, sidering the trial court was nevertheless Jackson contends that Frederick’s testi- disregard testimony. free its own to mony prevaricat- established that Maxwell ed on voir dire. attorney When Jackson’s conclude that We the evidence about service, panel asked the prior jury about prior discussions to formal deliberations here, Maxwell volunteered she had served on does not establish juries in a criminal prohibit matter and a civil and Rules con- involving matter a death. attorney sidering testimony about matters and if asked had occurring reached a verdict statements in the course of the *12 and jury’s juror testimony deprive formal turn now did not the deliberations. We arguments. meaningful opportunity to Jackson’s constitutional of a to be litigant process. not Id.
heard and did
violate due
recognized
at 934-35. The court
IV
adopted
attempt
pro
were
in
rules
327(b)
Rule
argues
Jackson'
that
“
‘purity
efficiency’
mote the
and
the
the
right
conflicts with
guarantees
system,” and
did not de
jury
therefore
impartial
in Article
jury
to a fair and
trial
impartial
the
of a fair
prive
appellants
I,
V,
15 and
10 of
Section
Article
Section
Likewise,
by jury.
Id.
trial
at 935.
suggests
the Texas
He also
Constitution.
(Tex.
Bauer,
King v.
767
197
327(b)
pro
that Rule
due
violates federal
1989,
denied),
Christi
writ
App. Corpus
disagree
cess. We
with both contentions.
—
the
held that
violate
court
the rules did not
does not
The United States Constitution
open
the
courts and due course of law
The
guarantee
jury
a
trial in state courts.
guarantees
by
afforded
the Texas Consti
jury
Amendment
of a
trial
guarantee
Sixth
tution,
that
that
holding
mere fact
states,
applies
by
its terms
procedural
prove
pose
rules
difficulties
applies only
prosecutions.
to criminal
did
the liti
jury
deprive
not
right to a
trial in civil cases
federal
remedy by
a
of law.
gant of
due course
Amend
courts is found in the Seventh
at
King, 767 S.W.2d
ment, but it has
extended to
never been
See, e.g., Mayer Gary
the states.
v.
Part
has
Supreme
The United States
Court
(7th
Cir.1994);
330,
29
ners &
F.3d
333
constitutionality
extensively discussed the
1093,
Fugate,
v.
1094
Letendre
701 F.2d
606(b) in only
Rule of
of Federal
Evidence
(4th Cir.1983); Olesen v. Trust Co. Chi
case,
States,
one
Tanner v.
United
(7th Cir.1957).
522,
cago, 245 F.2d
107,
2739,
107 S.Ct.
Northwest Mem’l 767 S.W.2d (Tex.1989). only write to comment on scope the 708-09 327(b) of the Texas Rules of Civil 327(b) 606(b) expressly Rules apply 606(b) Procedure and Rule of the Texas only to post-verdict juror testimony. If a Rules of Evidence. I agree with the Court trial, problem develops during the court phrase, jury’s the “the delibera- may question jury by the voir dire and tions”, the rules refer to the time after the take corrective measures such as instruct case to is submitted the and not be- ing jury, dismissing particular jurors, fore. I agree cannot with Justice Abbott See, or declaring e.g., mistrial. Doucet v. deliberations, jury begins that a its within Owens-Corning Fiberglas Corp., 966 rules, meaning of these from the mo- 165 (Tex.App. — Beaumont any ment the venire is sworn or at time denied). pet. When the returns Hence, charged. join before it is verdict, the court may poll also Court’s conclusion that pre- neither rule jurors. Brown, individual See Branham v. juror’s cludes consideration of one testimo- 925 S.W.2d 368 (Tex.App. — Houston ny concerning his conversation with anoth- writ). 1996, no Finally, [1st Dist.] Texas juror during er a break in before rules concerning attorneys’ post-trial juror jury. the case was submitted to the But I contact are more permissive than federal believe, for reasons this case illus- court rules. Lawyer See Commission For trates, that the Advisory Court’s Commit- Benton, Discipline tee should consider whether the rules (Tex.1998) (noting permit that Texas law apply just should be amended to not to attorneys respectfully contact deliberations, does, as Rule or trial). post deliberations”, “the course of which should We conclude that Rules include intermissions those delibera- 606(b) do deprive litigants not of a fair tions, does, post- as Rule but to all Constitution, trial under the Texas nor do intra-jury submission evidence of state- they fail litigants process. to afford due (not influences) ments and actions outside designed The rules are to balance concerns after the occurred was seated about the threat of jury misconduct with and sworn. the threat from post-verdict juror investi- gation impeachment thing permit of verdicts. It is one to call juror’s another misconduct to the court’s
V prior attention to submission of the case The trial court jury. may did not abuse its discre- The trial court be able to mistrial, by denying grounds tion a new trial on per- resolve the matter without a or dissent encing him to assent to jury, by an admonition to the haps by concerning pro- his mental juror, by replacing the verdict excusing a or therewith, except an alternate. But if the assertion cesses in connection juror may testify come until after the whether misconduct does not that a submitted, opportunity improperly ease is reme- influence was outside juror. to allow dy gone. importantly, upon any it is More to bear brought juror’s pre- one to attack another added). 327(b) (emphasis P. Tex.R. Civ. an encour- great submission conduct is too 606(b) is virtual- Texas Rule of Evidence jury. agement post-trial trials of the provides: identical. It ly motives be more accusing juror may as [A] they than would have been suspect occurring matter statement case, example, In Fred- the trial. deliberations, or to the join verdict. If he erick did not effect any juror’s mind or anything *14 hallway comment thought Maxwell’s of emotions processes, or mental as was biased or that she influ- showed she juror’s to or dissent encing any assent dire, voir forthcoming during had not been Nor the verdict or indictment. call the matter to the why did he not from any or statement may juror’s affidavit of attention at the time instead court’s juror concerning any matter about by that he and she waiting until he knew from juror precluded would be which the in the case? Has disagreed on the result in evidence for be admitted testifying with the verdict colored disagreement his However, ju- any purposes. of these him Maxwell said to over his view of what (1) any outside may testify: ror whether answer, doubt, could no coffee? Frederick brought to improperly influence was it, I of give Maxwell could her side and (2) juror; to rebut a upon any or bear jurors put on whether should be question to qualified was not claim that the begun. To trial after deliberations have serve. during jurors examine and cross-examine a verdict is rendered deliberations or after added). 606(b) (emphasis Evid. Tex.R. allegedly concerning any misconduct that two only declare that provisions These trial, to except as occurred subject are to of information categories influences, burden significant is a outside (1) influ- whether an outside disclosure: their time to serve give on citizens who of juror, and brought to bear on ence was process. to the as with little benefit (2) unqualified to whether a not to be disputes, come to decide
Jurors rules is to intent of the' serve. The evident drawn into them. all other from disclosure compelled exclude decision-making influences on a ABBOTT, concurring. Justice scope of the rules’ disclosure process. The I judgment. I concur with Court’s nonexclusive; aat prohibition is broad I disagree because separately write any- minimum, it includes “the effect the conversa- conclusion that the Court’s or emotions or any juror’s mind thing on is not Frederick and Maxwell tion between any ju- influencing processes, as mental by Texas Rule of protected from disclosure the ver- assent to or dissent ror’s Rule of and Texas Civil Procedure in- would the extent this ’’...except dict 606(b). Evidence pre- Maxwell’s influence. volve an outside 327(b) provides: juror to to another jury-charge comments not believe that she did the effect as to matter juror may not like that” and money in stuff “awarding occurring during or statement paying up the ones who end to that “we are jury’s deliberations or course of the mind, what is on her clearly it” reflect his or anything upon effect emotions, processes. and her mental her or emotions as juror’s mind influ- comments, applies and the feel- to each of thoughts Her same conclusion reflect, they may have ings by or had other rules cited the Court...Texas 282, 283, impact on her decision...or on Freder- Procedure Rules Civil they ick’s deeision...in case. Whether Court, agree I with the Contrary to the something did is that should never be Baley appeal’s court of statement into, looked as mandated Texas Rule of Interests, “[a]ny conversa Inc. that W/W Civil Procedure and Texas Rule of regarding occurring tion the case between Evidence among jurors part is a delibera reasons, disagree For similar I with the place the túne and regardless tions interpretation Court’s narrow of the word where it occurs.” 754 S.W.2d reality It “deliberations.” blinks believe 1988, writ (Tex.App [14th Dist.] — Houston only deliberations after begin denied). is To the extent that statement is charge read to them. The law, jurors not the who sacrifice time at human process normal reaction is to infor- just jobs their and with their families mation it as is received the course spend sitting through it sometimes seem of a trial. From the moment that voir dire subject trials will be ingly endless begins through the that a final time verdict post-trial inquiry by losing party reached, about...and, thinking is are just juror may if one have said find out hence, deliberating they about...all that something prior about the case have heard and seen. it un- Similarly, charge. opening court’s believe that *15 realistic to believe that who must inquiries spirit door to such violates the spend eight day to ten hours a together, jury system our and the letter of Texas months, sometimes for weeks or will not Rule of Civil Procedure and Texas brief, make a passing comment to one 606(b). Accordingly, I Rule of Evidence another about the case on trial. Such disagree with the Court’s conclusion part pro- comments are of the deliberative this issue. cess and pro- should be cloaked with the tection provided by from disclosure Texas
Rule of Civil Procedure and Texas 606(b).
Rule of Evidence admonitory
The Court notes the instruc-
tion, Court, approved by pro-
vides: among
Do not even discuss this case yourselves you until after have heard all G.C., In a Minor the Interest of Child. evidence, charge, court’s No. 2-99-003-CV. attorneys’ arguments and until I have you sent room to consider Texas, Appeals of Court of your verdict. Fort Worth. the Supreme Order of Court of Texas of 20, 1996, Aug. 1999. July January amended 1, 1973, 5, 1983; February December see Rehearing Aug. Overruled This, course, also Tex.R. P. 226a. Civ. jurors about what they
instructs should do, it establishing is not a directive pur- what constitutes “deliberations” for Worth, Gonzalez, Ap- Simon C. Fort poses of rules The pellant. certainly defining falls short of instruction Wilson, Atty., only County “deliberations” as those discussions Parker Che- Glen McNair, ryl County Atty. Parker charged. after the Asst. occur