*1 JACKSON, Appellant, Ronald ARCHERY,
GOLDEN EAGLE
INC., al., Appellee. et 09-96-302
No. CV. Texas, Appeals
Court
Beaumont.
Submitted Jan. 1998. Sept.
Decided
953 OPINION STOVER, Justice. injury a suit. appeal personal involves injuries a result Jackson sustained
Ronald occurring on a October bow accident occurred while Jackson 1991. The accident compound bow. using newly purchased a back, bowstring the bow was drawn tip grip, and slipped from Jackson’s right eye. him the the cable struck eye, to Jackson’s initial trauma was face, area, nose, per- head. The socket misa- injuries of a manent resultant consisted eyes, pupil, problems lignment of the fixed a visual field defi- depth perception, and Inc., Eagle Archery, was named cit. Golden by jury Trial as a in the suit. defendant monetary dam- was awarded Jackson ages. of what he considers appeal award, damage raises inadequate Jackson eight points of error. error, point
In his seventh denying the trial erred claims on miscon- Motion for New based complains of can he duct. The misconduct (1) during voir grouped forms: into two dire, to reveal her bias towards failed (2) lawsuit, jury failed regarding the court’s instructions follow proper jury conduct. under an
We review Determining abuse of discretion standard. ques misconduct occurred is whether court; if there tion fact for the trial issue, conflicting on evidence finding upheld appeal. must Tex., County, Pharo v. Chambers (Tex.1996). 945, 948 misconduct,
To
establish
(1)
complaining party must show misconduct
(2)
(3)
material,
occurred,
based
it was
whole, probably
it
resulted
on the record as
Inc.,
Redinger
Living,
harm.
(Tex.1985); Tex.R. Civ. P.
Weber,
Gaultney, Mehaffy
Beau-
David
327(a). Determining
proba
the existence of
mont,
appellant.
Pharo,
injury
ble
of law.
Stroh, Benckenstein,
Jacqueline
Norvell &
injury,
probable
“To show
Beaumont,
Nathan,
appellee.
record
there must be some indication
likely
alleged misconduct most
WALKER,
differently than he
C.J.,
to vote
and BURGESS
caused a
Before
STOVER,
on one or more
otherwise have done
‘would
JJ.
” Id.,
judgment.’
quoting
precluded
issues vital to the
about which he would be
Redinger,
testifying
dissent from the verdict or indictment or To error miscon duct, concerning processes in complaining party present his mental connec- must therewith, except juror mаy proving hearing tion that a evidence the misconduct at a 327; testify any whether outside influence was on a motion for new trial. Tex.R. 324(b)(1). improperly brought upon any ju- to bear Tex.R. Civ. P. Jackson moved for may ror. Nor his affidavit or alleged evidence of a new trial based on Supporting statement him hearing matter and a was held. every right re- every right do were affidavits from Motion for New Trial jury. County quest of a Jefferson attesting to the occurrences of several Frederick, juror of misconduct. Darold right anyone panel on Is there case, hearing. Ea- testified Golden “Look, just say, I want to don’t now would objected testimony gle’s counsel jury. I out here. sit this kind of need arguing of Frederick the affidavits attached be fair. here. I can’t want to be don’t require were motion insufficient to things me. type of bother don’t These testimony was no hear because there stress,” much agree system, too affecting jurors’ outside influence con- whatever; Judge, want to tell testimony duct. The trial court allowed the [defense Judge tell Shuffield me challenge based on constitutional Jackson’s now, “I don’t want to counsel] 327(b). to Rule *4 do, please you you If I would ask here”? right that now because to be honest and do FAILURE TO BIAS DISCLOSE depends integrity of our system our on the DURING OR PREJUDICE jurors. integrity of Is system and the DIRE VOIR anyone says, that “I can’t do here there given by An erroneous or incorrect answer Anyone? this”? potential juror during a voir dire examination that he was panel One member did admit new trial. See grounds a can constitute for attorney against biased lawsuits. Jackson’s 327(a) forth in full above. set Tex.R. anyone if one then asked there was else. No that, dire, complains Jackson voir one Further, attorney responded. Jackson’s dis- jurors, Maxwell, not Barbara did dis- type monetary damages sought cussed against did close her bias lawsuits and following: asked previous disclose that she had been aon here, token, anybody Is the same wrongful there death in which award- case just “Look, just say, can’t do damages. juror’s who would ed zero He contends and, just material, I can’t —I don’t that. believe it. given misconduct was the rec- whole, that that give can’t a verdict means some- ord as a resulted in a body going pay have lot of to to harm. again, if money”? Anybody here that — dire, attorney During voir Jackson’s triаl do, you now the time. You owe it to any jury panel asked if of them were you people yourself and it to owe these against type this of law biased suit: it to the to be honest about because Court [Wje’re in this lawsuit what we it, you we can is ask but we—all do unreasonably dangerous be an contend to you here Anybody have to us. that tell injured unknowing product con- could not do that? right sumer. And Mr. a to Jackson has jury panel. response a right here. He has to ask a Court this There was verdict; questioned panel county render him a fair Trial counsel member but reasоns, being that, biased. people many for of who had earlier admitted to there are own, he again, opposed panel to this member described how worked their are frequently They just people where grocery don’t that this store think lawsuit. done, they’re slip fall cases. ought opposed to sued the store for He to be ought he in lawsuits.” They they think stated that didn’t “believe lawsuits. don’t any preconceived he had they in The court asked if happen, that can’t render verdicts cases, ease, prevent him listen- types these et cetera. nоtions that would this course, answering specific ques- you’re ing the case and If enti- that is case—of you further “If tions. Trial counsel stated: opinions; fight and I would your tled to experiences] [your can’t earlier aside anybody you opinion. put But to have that case, indepen- separately you should not be on this consider case if that’s the eases], happened other dently [in from what operating we are within the— because law; that, us.” The you you need to tell parameters of and we if can’t do within the it.” panel responded: “I can’t do something that Mr. has member doing are proceeded ty damages. Lynch Trial counsel then to ask the also stated Maxwell panel any jury. if of them had served on a had stated this was a frivolous suit. person Counsel asked each had who indicat- Eagle argues questions Golden they ed had served on a if there was asked of Ms. Maxwell at voir dire did not anything about their service that would specificity requirements. meet To be enti affect their decision in this case. Ms. Max- tled to a new based false responded
well that she had served on both a examination, given during answеrs voir dire civil and criminal case. Trial counsel fol- there must be a concealment inquiry lowed to her service: response specific to a and direct Q. you What kind case were on? Saenz, calling for disclosure. Soliz v. A. Both civil and criminal. (Tex.App. Corpus Christi — Q. All denied). Viewing the voir dire A. Civil was wreck. A man was killed. whole, proceedings very as a it is clear that Q. you Did reach verdict in Jackson’s trial asking panel counsel was —did that case? prejudices to admit members bias or might prevent being them from fair. A. No. Questions posed panel were as a Q. Anything аbout that case that would whole, directly members, specific panel *5 keep being fair here? specifically to Ms. Maxwell. We find the No, A. sir. questions sufficiently specific were and di hearing At the on the Motion for New rect. Trial, Maxwell, prejudice the bias or of Ms. jury as well as other forms of misconduct directly The of bias was below, alleged ground discussed was aas posed to Ms. Maxwell. answered that She testimony a new trial. The affidavits and in she could fair prior experi and not let her support of the motion showed that Maxwell’s opinion. ences аffect her The affidavits and
bias toward this
clearly
of lawsuit was
testimony
jurors
of other
show that she con
jurors
exhibited to the
during
other
cealed her bias. Mrs. Maxwell was not a
jury
course of trial and
deliberations. Fred-
thus,
juror,
competent
panel
the whole
how, during
erick’s affidavit detailed
a recess
subject
tainted. Mrs. Maxwell was
to the
trial,
of the
Ms. Maxwell communicated her
bias, hence,
extraneous influence of
she was
bias towards the suit:
competent juror.
not a
Since she was not a
juror Barbara
[T]he
Maxwell told me that
competent juror,
jury
proper
was not a
previous jury
she had been on a
which
principal
constitutional tribunal. This
is co
family
suing
for the death of another
327(a)
provides
dified in Rule
which
that a
family member. Her comment was that
prejudice
bias or
can amount to mis
jury
nothing,
she was on awarded
conduct,
misconduct,
and such
if it is material
“awarding
that she did not believe in
mon-
harmed,
complaining party
and the
can be
said,
ey in stuff like that.” She also
“We
grounds for a new trial.
Rules
are the
that
paying
ones
end
for it.”
606(b), however, prevent testimony regarding
testimony
explained
Frederick’s
only
further
the evidence of misconduct if the
evi
Maxwell’s attitude. Her comments to
jury
Fred-
dence is that which emanates from
de
“boring,”
precon
erick were that the trial was
she
liberations. Here the misconduct of
this,”
didn’t “believe
lawsuits like
ceived bias and the failure to disclose under
up paying
present
are the ones that end
for it.”
“[w]e
law does not involve an outside influ
Lynch
The affidavit of Juror
testimony pertain
Shawn
shows
ence. The affidavits and
ing
that Ms. Maxwell’s bias towards the suit
to statements of Ms. Maxwell were made
affidavit, Lynch
jury
during
affected
verdict.
her
after
selection and made
strongly argued against
jury
present
stated Maxwell
course of
deliberations. Under
law,
plaintiff throughout the deliberations and her
to Jackson’s detriment and in violation
especially
rights,
view affected the
answers
of his constitutional
neither the affida
questions involving comparative responsibili-
testimony
vits nor the
are ad-
Motion for New
mony
support of the
under Rules
missible
her
communicated
Ms. Maxwell
showed
prove jury misconduct.
times.
numerous
COURT
FAILURE TO FOLLOW
specifically advised
instructions
The court’s
INSTRUCTIONS
support-
The
not trade answers.
required to
every jury
judge is
trial the
testimony for the Motion
ing affidavits
jury re-
admonitory
give
instructions
in-
clearly showed
New Trial
These admon-
garding proper
conduct.
blatantly
trading votes was
against
struction
jurors in writ-
are furnished to the
ishments
advised
Although the foreman
disregarded.
them
ing and read aloud to
it,
jurors traded votes
against
judge fur-
judge. Tex.R. Civ.
226a.
damage
issues.
answers
per-
that Texas law
ther instructs
ju-
also advised
instructions
The court
jury con-
proof
mits
violation of the
anything not
or discuss
to not consider
rors
juror may
called
rules and that a
duct
The affidavits
represented
the evidence.
testify
open
сourt about acts of
upon to
hearing
testimony from the new trial
misconduct.
of this rule also.
a violation
established
oc-
contends
Jackson
whether
speculated as to
jury improperly
the instruc-
curred when the
violated
from an-
a settlement
Jackson had received
given
tions
the court. The violations
named as a
may
who
have been
party
other
upon
Maxwell dis-
Jackson focuses
are: Ms.
speculated
also
in the case and
defendant
juror prior to
cussed the case with another
drinking
may have
alcohol
been
deliberations;
beginning
Ms.
prior to the accident.
against law-
Maxwell communicated her bias
deliberations;
reached
suits
admoni
Generally, a violation of the
compromise
damages
verdict on
and traded
*6
to
given under Rule 226a is
tory instructions
jury questions;
and the
votes on answers
requirements of Rule
the
be determined
jury
plain-
improperly speculated on whether
However,
Soliz,
at 934.
779 S.W.2d
already
money
tiff had
received
from another
327,
by prior
applying Rule
as determined
plaintiff
drink-
source and whether
had been
law,
jury to follow a
failure of a
case
the
ing.
admonitory
can never
instructions
given by
The instructions
admon-
trial because
grounds
for a new
amount
jurors
ished the
to not discuss the case
an “outside
does not involve
such misconduct
among themselves until deliberations: “Do
Chavis,
See,
at
e.g.,
924 S.W.2d
influence.”
among yourselves
not even discuss this case
Soliz,
76;
Wooten,
447;
928 S.W.2d
evidence,
you
until after
have heard all of the
at 932.
charge,
attorneys’ arguments,
the Court’s
jury
you
to the
room to
and until have sent
THE CONSTITUTIONALITY
Additionally,
your
consider
verdict.”
RULE 327
OF
“[YJou’re
court advised:
instructed
Owens-Corning Fiberglas
discussing this case
In Doucet
should refrain from even
Corp.,
yourselves during breaks or other
966 S.W.2d
among
. —Beaumont
denied),
1998,
expressed
con
Likewise,
we
our
the court’s instructions
times.”
increasing lack of veraci
bias,
prejudice,
cerns as to the ever
to not let
advised the
dire; however, the consti
ty
jurors on voir
play any part in their delibera-
of
sympathy
or
327(b)
presented.
above,
tutionality of Rule
the affidavit and
As discussed
tions.
327(b)
the conflict of Rule
hearing
now address
testimony Mr.
We
of
Frederick
jury
that the
mandate
that with our constitutional
Motion for New Trial revealed
on the
from
competent
free
cоmposed of
had a con- be
Frederick and Ms. Maxwell
Mr.
327(b) literally
Rule
versation,
prejudice.
bias and
during
prior
to delibera-
break
satisfy the constitu
impossible
it
tions,
her bias makes
Ms. Maxwell revealed
where
addition,
compo
purity
of the
tional mandate that
lawsuit.
this
of
towards
deliberations,
jury was maintained.
and testi-
sition of the
during
the affidavits
right guar-
by jury is a fundamental
hearing,
lodged a
At the
trial
new
Amend-
challenge
to Rule
the Sixth and Fourteenth
constitutional
anteed
question. The amended
to the
Constitution.
we now address this
ments
United States
designed
Additionally,
right
most of
in Article
to insulаte
is embodied
scrutiny
jury
process
§
deliberation
Texas
15 of the
Constitution:
promoting
of
full discussion
with the effect
right
by jury
trial
shall
15. The
Sec.
reducing
deliberations and
Legislature
shall
remain inviolate.
Supply
Elec.
Co. v.
harassment. Robinson
may
regu-
pass such laws as
be needed
Corp.,
Cadillac Cable
same,
purity
maintain its
late the
and to
(Tex.App.
[14th Dist.]
— Houston
efficiency.
n.r.e.).
however,
achieving
goal,
ref d
only
reference not
The constitution’s
goes
wrong
the rule
too far in the
direction.
right
by jury,
but also to the
rule,
intentioned,
although
The amended
well
jury,
embraces thе fundamental
purity of
“something
step in
represents
of a backward
impartiality and freedom from
principles of
pursuit
improved judicial
our continual
of an
jury,
purity
there
bias. Without
J.,
(Draughn,
system.”
at 133
concur
Id.
justice. The
no
can be
administration
or
ring).
If a
fails to reveal
says:
means what it
com
constitution
prejudice
a matter involved
towards
persons
posed
competent
unaffected
legal
suit or a bias towards lawsuits
prejudice.
If
misconduct—what
bias or
system
general,
though specifically
even
integ
may
present, the
form it
take —is
ever
dire,
opinion during
asked to reveal such
voir
system compromised, and a
rity
party against whom the bias is directed
imposi
cannot
had.
find the
fair trial
We
damage.
resulting
recourse to correct
has no
inquiry
prevents
into
tion of Rule
result occurs when a
fails
same
in this case. The
misconduct which occurred
follow court
instructions.
The amended
fair and
to a
rule denies Jackson
virtually
rules render the court’s instructions
in direct contraven
impartial
trial and is
Stores,
meaningless. See Baker v. Wal-Mart
such,
constitution, and,
un
tion of the
Inc.,
— Beaumont
oc
We find
constitutionаl.
(“The
writ)
J.,
(Burgess,
dissenting)
curred,
material,
on the
it was
and based
competent lawyers
judges to
efforts
whole, it resulted in harm. Jack
record as a
preconceived
seat a
with no
ideas
a fair trial. We cannot
son did not receive
only
a case and have it consider
evidence
*7
trial,
must be
always
perfect
have a
but there
under the rules are rendered mean
allowed
appellant’s point of
a fair trial. We sustain
jurors to
ingless
appellate
when
courts allow
therefore,
seven,
we do not address
error
inject
during the deliberа
other evidence
We,
appellant’s remaining points of error.
litigants
a fair
deprives
the
tions.
judgment
accordingly,
the
and re
reverse
mockery
judge’s
of the trial
trial and makes
(El
trial.
mand the cause for another
instructions.”); Baley, 754
at 321
S.W.2d
lis, J., dissenting) (“By defining outside in
AND REMANDED.
REVERSED
terms, thereby
in the narrowest of
fluence
judicial inquiry into
precluding
blatant
WALKER,
Justice, dissenting.
Chief
conduct,
majority
jury
the
de
impermissible
portion of the
respectfully
I
dissent. The
and,
appellants their
to a fair trial
nies
I take issue be-
majority opinion with which
in
unwittingly, condones similar violations
following
gins
the
statement:
with
The admonitions of the
the future.
Owens-Corning Fiberglas
In
v.
Doucet
provided in Rule 226a are rendered
Corp., A
is not a
meaningless.
rule not enforced
. —Beau
denied),
rule.”).
misconduct,
expressed our
mont
writ
we
the
The result is that
increasing lack of
to the ever
severity
the effect on the
concerns as
regardless of the
however,
dire;
jurors
veracity of
on voir
verdict,
complain
unchecked. The
remains
327(b) was not
constitutionality of Rule
accruing
the
correct
the
ing party can never
the conflict
remedy.
presented. We now address
absolutely no
with
harm аnd is left
327(b)
man-
Rule
with our constitutional
injustice.
grave
end result is a
Darold
composed
compe-
testimony
date
of Juror
Frederick
that the
jurors
tent
from
evidence of Maxwell’s
prejudice.
free
could be considered as
327(a),
Rule
literally
impossible
Rule
makes it
to
I read
voir dire misconduct. As
satisfy
following portion
the constitutional mandate that the
the
of Juror Frederick’s
purity
composition
properly
of the
the
was
affidavit
have been
considered
could
court, notwithstanding
maintained.
the trial
Rule
327(b):
subsequently holding
In
Rule
un-
trial after the
during
At a
the
testi-
recess
constitutional,
majority
“burns the house
Mulaney,
mony of
the witness
attempt
pig.”
explain
to roast
I
will
Barbara
told me that she had
Maxwell
why,
properly
light
construed
in
when
family
previous
on a
in which
been
327(a),
in
Rule
Rule
is not
con-
fatal
suing
family
another
was
for the death of
doing
flict with the Texas Constitution.
was that
member. Her comment
so, I will also show that the trial court did
nothing,
and that she
she
on awarded
overruling
appellant’s
not err in
motion
money
“awarding
did not believe
stuff
appreciate
majority’s
for new
I
trial. As
that”,
said,
like
also
“We are the
She
[sic]
opinion,
quarrel with
it had no
paying
for it.”
ones
end
remind-
14,1996,
August
ruling
in a
contained
ed her that
had been asked about that
she
party.
letter sent to each
The letter stated
gave
Mr.
and she
Smith
answer.
part:
grounds
The plaintiffs first
[sic] for new
Clearly,
colloquy
ju
between
two
alleged jury
trial stems from
misconduct.
place
testimony
while
rors took
at a recess
this,
In support
plaintiff
offered
my
trial.
being
was still
taken
jurors
of several
affidavits
well as live opinion, this
not and never
could
testimony
juror.
of a
All of the matters
“during
considered
have occurred
pertained
revealed
this evidence
of the
course
deliberations.” Further
such,
more,
deliberations. As
this evidence was
quoted
Juror Frederick’s affidavit
incompetent
to establish
misconduct.
hint
“the
above does
even
effect of
327(b) T.R.C.P.;
Durbin
Dal-
v.
anything upon
any other
his or
mind
(Tex.Civ.[sic]
Corp.,
Briar
S.W.2d
— San
ourt,
1997, writ);
recognized
v.
in Durbin:1
no
Wilson
Texas Parks
also
(Tex.
825,
Dept., 853 S.W.2d
831
Wildlife
circumstances,
In
failure to dis
certain
1993),
grounds,
App.
rev’d on other
— Austin
prejudices
voir dire
close biases and
(Tex.1994).
amount to
examination can
miscon
has
no
My humble research
turned
327(b)
duct
Rules
not affected
opinion
Supreme
interpreting
Court
Texas
instance,
For
606(b).
[Tex.R.
Evid]
327(b), and
scope of Rule
cases like
the
with
juror
that a
party
when a
discovers
lied
books, it
Baley in the
is clear to see how use
juror
that
which reveals
a matter
327(b)
wag
has resulted in
tail
Rule
“the
prejudiced,
clearly
biased or
this could
327(a).
my
ging
dog”
a vis Rule
vis
See
amount to
misconduct.
General
view, they
separate
are
rules and should be
Corp.
Assurance
v.
Accident Fire
Life
harmony
possible,
read in
whenever
not
(Tex.Civ.App.
Coffman,
291-92
326 S.W.2d
Illinois, Inc. v. Chat
conflict. See Owens —
n.r.e.).
ref 'd
—W aco
ham,
899 S.W.2d
. —Hous
dism’d).
Dist.],
Durbin,
Soliz,
Rule
ton 1995
at 933. See also
[14th
mine).
327(a) explicitly mandates
(emphasis
that a trial
S.W.2d at
”
thereof
“shall hear evidence
Durbin,
af-
In both
courts
Soliz&nd
juror giving
on
of a
incorrect or
the issue
rulings
trial courts’
respective
firmed the
327(a)
answer on voir
Rule
erroneous
dire.
trial
denying
for new
as the lies
the motions
327(b),
by any
is
modified
reference to
not
jurors were
or
discov-
misstatements
by any
nor is
modified
reference
juries’
from inside the
having
ered
emanated
327(a).
quarrel
Again, I have
deliberations.
case,
aрpar-
In the instant
trial court
“sanctity”
rule
protects
that
ently recognized a clear distinction between
deliberations,
long as it is indeed
so
ruling on
rules as is evident in his
the two
after the
limited in
a time
scope to
regarding
issue
Max-
the misconduct
Juror
given its
and commences to de-
instructions
responses:
voir dire
well’s
Raieyapply a con-
liberate.
such as
Cases
complains
next
a certain
Plaintiff
that
is strained to
struction
Rule
which
law
failed to disclose bias towards
herniating proportions.
during the course of
Dur
suits
voir dire.
ing
proceeding,
dire
counsel for
the voir
enough,
if
the above were
And
all of
jury panel
the entire
wheth
plaintiff asked
face of
majority
flying in the
the law
them,
(identifying
any of
reason
er
challenge
provides
in order
which
potential
including
reasons
several
on
legislative
judicial enactment
constitu-
lawsuits),
on
against
would not want to sit
grounds,
must have
party
suffered
tional
jury.
While
evidence submitted
restriction under
threatened
some actual or
plaintiffs Motion
New
support of
must
question, and
contend
the statute in
cer
the basis of
misconduct would
on
unconstitutionally restricts
the statute
conclusion
tainly support a
rights.
rights,
else’s
See
not someone
product
had a bias towards
question
Compensation Comm’n v.
Texas Workers’
lawsuits,
question
liability
posed
(Tex.1995).
Garcia,
“catch-all”
which has
general
case,
ruling
the instant
purposes
to be insufficient for
been held
dire misconduct
the issue
voir
Maxwell’s
Durbin, supra;
trial. See
Soliz
new
all as
did not
involve
*9
(Tex.
Saenz,
Civ.[sic]
certain evi-
did consider
apparently
den’d)
Christi
writ
App. Corpus
appellant’s motion
accompanying
dence
—
therein).
(and
cited
cases
ruling was based
new trial.
trial court’s
specifiсity
lack of
upon
apparent
place
on two
ruling relies
cases
appellant’s
coun-
questions
voir dire
proper
apply
context
them
rules in their
Saenz,
(Tex.App.—
Corp., 871 S.W.2d
Dal-Briar
1.
satisfaction, under record before in the trial implicated was even on the
court’s decision voir dire would, therefore, points of overrule
issue. eight, the re- seven and and address
error favorably plain- majority Maxwell voted fails to verdict and that note that Jackson, favoring plaintiff case was 10—2 in this