*1 appellees that in Sand vents from Appellants recovering contend statutory Appeals held appellants ers the Fourth Court of remedies and because waived when it severability, the trial court erred failed to the issue of we need not clause even severability appellants’ enforce the when consider remaining arguments party the for severance in attacking appellees’ did not move other substantive un- the trial court. at 301. conscionability We procedural uncon- distinguishable find Sanders to be from seionability defenses. We overrule appel- the circumstances of this case. In Sand lants’ sole issue on appeal. ers, disagreed party the court the The judgment of trial the court is af- severability
waived the enforcement the firmed. clause because the court found that the party of the “sought enforcement entire
general agreement, spe arbitration which ...
cifically severability the include[d]
clause.” Id. The court concluded that the apply
“trial court did not the properly law
when it failed to the arbitration enforce
agreement absent the unenforceable attor Here,
ney’s fees provisions.” and costs while it is true that contract contains a COLYER, Jr., Appellant Wilkie Schell clause, severability neither arbitration agreement nor the arbitration rules do.
Thus, when appellants sought enforcement Texas, The STATE of State. of the arbitration agreement court, they seeking could not been No. 02-11-00473-CR. severability enforcement of the clause be Texas, Appeals Court of cause it was not included arbitration Fort Worth.
agreement or in Ap the arbitration rules. pellants argued trial that the court should Jan. 2013. separate agreement the arbitration from the remainder of contract and deter Rehearing Feb. Overruled 2013.
mine whether to enforce arbitration.
Therefore, enforceability of the terms
of the general, including contract clause,
severability before the trial
court. only portion contract
before the trial motion to
compel arbitration was arbitration itself,
agreement and the court found agreement to be unconscionable. We
hold that the trial court did not err when it
did not sever the unconscionable terms agreement.
Because we have held that
arbitration agreement substantively un
conscionable on ground pre- it *2 Kearney Wynn,
Justin Fort Sparks, Worth, TX, Appellant. Shannon, Jr.,
Joe Criminal District At- Mallín, torney, M. Chief Charles Gibson, Section, Appellate James K. James Luster, Deener, Benson Varghese, Ashlea Attorneys, Assistant Criminal District Tar- Worth, TX, rant County, Fort for the State. DAUPHINOT, WALKER,
Panel: GABRIEL, JJ. all
MEMORANDUM OPINION1 THE FOREMAN: took poll We and we voted Your unanimously, Honor. GABRIEL, LEE Justice. The trial court discharged jury and *3 Introduction each considered side’s recommendations Appellant Colyer, ap- Schell Jr. Wilkie punishment. Appellant’s counsel then peals driving his conviction for while intox- following: stated the point, In a he single icated. contends I approached the Court —I’m sure motion denying court erred part if that was on the record —but alleging juror for new trial misconduct. when the majori- said that it was a
We reverse. ty approached and then I the Court my about concern about wording Background and Facts Procedural body just and his I language, and want History put on the I record what noticed was appeared that he He upset. appeared The State’s at trial evidence consisted frustrated. He arresting eyes. officer’s and vid- was—He rolled his He eotape Appellant’s performance kind huffed when he was showing asked. sobriety field tests at the scene of the again, You then asked him and he offered, jail
arrest and at the where he was eyes just rolled his and—and sort of to, but refused to submit a breath test. abruptly said, very I’d also [“]hahh.[”] The offi- undisputed evidence was that the point like to out for just the rec- that — cer Appellant found unconscious in a car at ord, busy got we were we the note —that a Fort Worth intersection. The Defense’s dispute about police testimony, about — theory Appellant was that had been over- clarify then we asked them exactly worked and sleep-deprived and that after what it was. friends,
night asleep out with he had fallen gotWe a note about—then clarifi- waiting light wheel while for the cation came back was actually it change. testimony about the witness. In defense process trying pull us verdict, After the returned its them, testimony and get they it for came foreman, judge Angel asked the Aguilera, back pretty abruptly with verdict the verdict was unanimous. the testimony transcript being without was, Aguilera Appel- it replied that given transcript being given poll. lant’s counsel for a —the asked The them. asked, court turned to foreman body just language, So based on his your verdict?” re- Aguilera
“[W]as expressions his nonverbal and—and Yes, majority “It plied, was a was— —It I him say what watched when he—after Your Honor.” After each of the other majority, it was a which obvious- said jurors individually acknowledged the ver- unanimous, ly, legally it has to be I own, dict as their trial court asked would ask Court to withhold sen- clarify foreman to his earlier response: a later tencing until date. Okay. THE Mr. Aguilera, COURT: you majori- made it Appellant the statement was a The trial court later sentenced ty days jail it or— twenty verdict. Was unanimous to a fine and $550 you Would what explain you suspended meant his driver’s license six Appellant that? months. filed a motion new Tex.R.App. 1. See 47.4. P. Absolutely A. not.
trial, things other that the among alleging other in manner verdict decided not cross-examine the wit- State did jurors’ opin- expression than a fair ness or offer evidence. The trial court ions. new denied the motion for trial. called only witness
Aguilera was the
motion for new trial.
Discussion
hearing on the
was not
fair
testified that his verdict
He
review a trial court’s denial
We
opinion:
of his
for new trial under an abuse of
of motion
*4
(BY
Appellant])
for
Was
Q.
[Counsel
State,
McQuarrie v.
discretion standard.
verdict,
verdict,
your
specifically
a
your
145,
(Tex.Crim.App.2012);
380 S.W.3d
your opinion
of
fair—a fair
(Tex.Crim.App.),
State,
141, Salazar v.
38 S.W.3d
proven [Appellant]
had
that
the State
denied, 534
t.
U.S.
cer
a reasonable doubt?
guilty beyond
(2001).
S.Ct.
you have outside
affected
his mo-
by denying
abused its discretion
your verdict—
tion for new
because there is undis-
A. Yes.
puted
evidence that
foreman
Q.
Aguilera?
—Mr.
And did those
changed
guilty
his
from not
to
you
affect
to the ex-
outside influences
to
influence. The
due
an outside
State
your
you changed
tent
verdict in
responds that
whatever caused
fore-
some fashion?
change
man to
his vote was not an “outside
has
influence” as
term
been defined in
Absolutely.
A.
juror
that,
the context of
misconduct and
Q.
how is
And
that?
event,
any
prohibited
was
severity
knowing
A. Due to
606(b).
by rule of evidence
my
just came down with
daughter
past,
it
MRSA and that I had
I
606(b) provides:
having
responsible
felt I
her
it
was
validity
Upon
inquiry
an
into
I
and she’s innocent.
needed
be
indictment,
juror may
or
verdict
immediately.
I had
with her
So
home
testify
any
as
matter or statement
get
people
to the other
concede
jury’s
occurring during the
delibera-
immediately.
my daughter
home
tions,
anything
any
or to
effect of
did,
Q.
you
Aguilera?
Mr.
that what
Is
juror’s
pro-
mind or emotions or mental
A. Yes.
cesses,
any juror’s
influencing
assent
or
from
or
Q.
you
proved
feel that the State
dissent
the verdict
indict-
Do
juror’s
or
beyond
their
a reasonable doubt?
ment. Nor
affidavit
case
any
by juror concerning any
McQuarrie,
statement
selves.”
matter about which the would be Applying this definition to the facts in that case, precluded testifying from be admitted in the court held that internet research any evidence for purposes. these juror conducted at her home during (1) However, a juror may testify: overnight an break from deliberations was any outside influence was im- an “outside influence” that the trial court properly brought to upon any ju- bear could explored at a hearing on a ror; (2) or to rebut a claim that the motion for new trial without delving into not qualified to serve. deliberations thereby running afoul of 606(b). Id.; see also 606(b). Ellison v. Tex.R. Evid. appel- rules of 03-98-00602-CR, No. 2000 WL at *4 procedure late provide that a defendant Jan.6, (Tex.App.-Austin ref\d) granted must be a new trial or a new trial (not (“Rule designated for publication) on punishment when the verdict has been 606(b) does not purport redefine decided lot or in manner other than misconduct, nor does it alter *5 grounds the expression a fair jurors’ opinion. of the for obtaining a new trial 21.3(c). criminal Tex.R.App. P. cases.”). 606(b)
Rule purport does not misconduct, redefine not does it brief, alter In original its the State first grounds the obtaining a new trial in argued Aguilera’s that testimony did not State, criminal cases. See Sanders v. 1 identify any “outside influences” that af 885, 1999, S.W.3d 887 (Tex.App.-Austin no fected his verdict. After the court of 606(b) 21.3(c) pet.). Rules work to criminal appeals McQuarrie, decided the gether jury to define misconduct and how State adapted position its argue that a may prove defendant the existence of the issue is not whether the information State, such conduct. Hines v. Aguilera acquired came from “outside” but 618, 622 (Tex.App.-Texarkana pet. whether it amounted to an “influence” at ref'd). defines what evidence all. In support, the State relies on dicta misconduct, admissible in proving jury from a civil case handed by down one of is, evidence of outside im influences our sister courts more than twenty years properly brought to bear on juror, while before the court of criminal appeals decid 21.3(c) limits permissible McQuarrie. evi ed See Kirby Forest Indus. dence to that which Kirkland, is relevant to whether Inc. v. 772 S.W.2d the verdict expression was fair (Tex.App.-Houston [14th Dist.] writ jurors’ opinion. denied) Tex.R. Evid. Tex. (affirming denial of motion for new 21.3(c). Thus, R.App. P. if a defendant trial on juror’s the basis of contradictory has evidence that is admissible under rule affidavits but observing in dicta that “nor 21.3(c) 606(b), rule play, comes into pressures” mal such as those exerted the issue becomes whether the trial employers, family court juror’s and a per own grant must Hines, new trial. See preferences sonal would not be considered S.W.3d at 622. influences”). “outside Even if this case recent, were more criminal and from this In post-submission brief, letter court, dicta has no binding effect. See McQuarrie State, State advised us of v. Aguirre-Mata which the court of criminal appeals defined (Tex.Crim.App.2003). “outside influence” as “something originat ing from a source jury outside of the room The State argued next that Aguilera’s and other than from jurors them testimony related to events that were unanimous, raises a in not influenced which reasonable could his
“neutral” and ference that he was lone holdout For way or other. this verdict one that an out acquittal. Aguilera testified civil State relied on another argument, change him his side influence caused Stages, case, West Motor v. Central Rosell he testified that Specifically, verdict. Inc., (Tex.App.-Dallas talking other were on their jurors while denied). case, jurors’ three In phones jury cell room as the had in- the bailiff reported affidavits requested testimony, he reporter prepared that even if it considered formed the to his and learned spoke daughter’s doctor deadlocked, judge would itself daughter that his had serious illness. for anoth- to continue require deliberations He further conversation testified his result, As a day. according at 660. er him change with the doctor caused affidavits, jurors votes traded on reporter before provided the court apportionment issues and negligence and requested testimony, change that his agreement the ver- thereby reached an vote to not a was fair of appeals dict. Id. The court concluded opinion had of his the State testimony trading about vote that the guilt Appellant, and that proven and was not evidence about deliberations “absolutely” believe State did not that the 661; Id. at evidence of outside influences. beyond proven had its case a reasonable (“a Evid. see Tex.R. All unchal doubt. this went matter testify or statement oc- lenged there was *6 jury’s the curring during deliberations conflicting for the to evidence trial court Thus, against
resolve it. testi Aguilera’s holding the in Ro- Beyond court’s mony dispute established without that an sell, however, its discussion of the relevant outside influence caused him to vote differ actually supports Appellant’s position law ently than he otherwise have. See would Pharo, the today. before us As mov- case 922 at 950. S.W.2d trial, ant for bore Appellant a new the finally argued Aguilera’s The State pointed And as burden of the court proof. testimony ev- was inadmissible. In almost “[wjhether Rosell, in out misconduct oc the an ery instance where State raised curred is of the question fact for trial objection Aguilera’s testimony court, conflicting if there is and evidence hearing, the objec- record shows that those finding on this issue the trial court’s must were example, tions sustained. For 660; be at upheld appeal.” on 89 S.W.3d objections trial court sustained on Jackson, Archery, Eagle see Golden Inc. v. deliberations, of grounds delving into ex- (Tex.2000); 372 see also ceeding the rele- scope hearing, of and Tex., Cnty., 922 Pharo v. Chambers However, vancy. Aguilera testified with- (Tex.1996). S.W.2d 948 Juror miscon cross-examination, objection, out no with a new trial if it reasonably duct warrants against controverting no evidence the record appears from that misconduct change outside influences caused him to juror likely most caused to vote differ guilty despite his verdict to his belief that ently have. than he otherwise would Ro beyond State proven had not its case sell, Pharo, at 661 (citing doubt, S.W.3d reasonable in order to allow him to 950). “Determining S.W.2d immediately. at exis leave the room Con- jury injury probable question tence of is a trary position, to the State’s we will not Here, law.” Id. applies the record shows that once hold that vote, by Aguilera unopposed objection. his that comes in changed the verdict was 606(b). appellate procedure Evid. Accordingly, rules Aguilera’s tes- trial specific grounds timony concerning list for which a court the telephone call and Tex.R.App. new trial. P. grant must effect its on his emotions or its influence 21.3(c). include “when the verdict These him to assent to the so that verdict by lot has been decided or in manner could leave go the courthouse be with expression jurors’ other than a his daughter were not admissible under fair added). opinion.” (emphasis When 606(b), rule of evidence trial court unequivocally the record demonstrates by did abuse its discretion denying proof grounds of one of listed rule Appellant Schell Colyer, Wilkie Jr.’s mo- 21.3(c), abuses its discretion tion for new trial based on miscon- Id.; grant a new refusing to trial. see duct. See id. Salazar, 148; Jennings provides (Tex.App.-San not testify “any about matter or statement pet.). Antonio no occurring deliberations, during jury’s
Because the uncontroverted evidence toor anything any juror’s effect of this foreman in case established that the mind or or processes, emotions mental Appellant’s changed vote influencing any juror’s assent or dissent contrary and that his to a fair from the or verdict indictment.” Id. But opinion, of his we hold that the provides the rule an exception permitting a trial court its denying abused discretion testify “whether any outside influ- Appellant’s motion for new trial. Tex. ence was bear improperly brought upon Salazar, 21.3(c); R.App. see 38 S.W.3d at any juror.” Id. 148; 90; Jennings, 107 see S.W.3d at also Under Rule the telephone call 13-03-00656-CR, Perez v. No. not, by juror Aguilera received as a 2092907, at *1 (Tex.App.-Corpus WL law, matter of an outside influence that (mem. 30, 2005, Aug. pet.) Christi op., verdict; validity affected the it was *7 designated publication) not (reversing a personal pressure juror Aguilera on of a court’s denial motion for new trial end the deliberations so that could he be when “the uncontroverted evidence estab- not daughter, with his information or evi- misconduct.”). juror lished] jury dence obtained from outside the room juror Aguil- or courtroom that influenced Conclusion Appellant era’s belief of or not Because the trial court abused its discre- Compare McQuarrie v. guilty. was Appellant’s tion denying motion for new 145, 154 (Tex.Crim.App.2012) trial, we judgment reverse court’s (holding, allegedly in case where defendant and remand this cause for a new trial. rape drugs rape used date to effectuate of complainant, juror’s internet that at-home J., WALKER, dissenting opinion. filed a rape drugs research on date that was re- WALKER, Justice, dissenting. SUE layed morning jury to the next was I respectfully jurors’ testimony dissent. I hold so that would outside influence telephone juror Angel Aguil- call and affidavits were admissible motion era during hearing alleging jury received from his doctor’s office new trial miscon- duct), the jury’s informing Aguilera Jennings deliberations v. and S.W.3d 85, 2003, daughter pet.) had was not an (Tex.App.-San MRSA Antonio “outside improperly (finding juror juror influence” that was misconduct when brought Aguilera. changed guilty” “guilty” to bear See Tex.R. vote “not from pressures on his mind and personal to be bound to jurors’ agreement of because of longer in accordance with two not concern- persuaded emotions—he was making defendant and facts lists of guilt Appellant or ing innocence Caballero, Editorial S.A. with guilty), not by information received from outside he Enters., Inc., Playboy v. de C.V. jury room and the courtroom. Con- 318, (Tex.App.-Corpus Christi sequently, juror Aguilera’s because testi- denied) (“Personal pressures felt mony did not fall the “outside in- within wrap the deliberations up do by jurors 606(b), it exception fluence” to rule was influences.”), outside Rosell not constitute and not have inadmissible could been Inc., 89 S.W.3d Stages, Motor v. Cent. W. proof misconduct.2 To hold oth- pet. de- (Tex.App.-Dallas 660-61 erwise, does, Opinion as the Majority nied) informing (reasoning jury that bailiff pressures to transform the normal another it would to deliberate experienced degree service to some reached day unless decision was jurors all influences into outside con- per- would not neutral information that stituting jury Kirby See misconduct. in any the case suade a decide Indus., Inc., 772 S.W.2d at Forest 234. manner), Kirby Forest In- particular As the Houston Fourteenth ex- dus., Kirkland, Inc. Industries, plained Kirby in re- Forest (Tex.App.-Houston writ [14th Dist.] garding pressures jurors to return to denied) (holding testimony jurors of two work, they changed their votes because of return was inadmissi- pressures to to work aspect seems be an unfortunate [T]his pressures such not out- because were ble jury system little about which can meaning of influences within the rule side always pressures be done. There are 327).1 rule of procedure civil only family, from but also employers recreation and personal preferences of Although juror Aguilera changed his do jurors. We not consider these nor- “guilty” order to end the delib- vote to pressures mal to be an outside influence after he the call from erations received office, merely within the of the rules. meaning his doctor’s succumbed Were nature, Although majority civil in 1. these cases inter- 2. The holds that rule does not pret apply appli- which is juror's testimony apply hearing to the cable in both criminal and civil cases. The on the motion for new trial because the State *8 Appeals Court of Criminal has Texas relied it; object to did did not but the State assert Supreme interpreta- upon the Texas Court's 606(b) objections through rule times several 606(b), likewise, rely rule we will tion of hearing began hearing out and even persua- interpretations courts’ as on our sister voicing having any opposition its hear McQuarrie, See, authority e.g., here. sive 606(b) ing prohibited at all because rule (“In 1998, when the civil S.W.3d at sought evidence that defense counsel intro evidentiary merged, criminal rules were Thus, applicability duce. [rr4:5-6] rule 606(b), promulgated by Supreme the Texas as testimony Aguilera's was be Court, applicable became to criminal cases as us. fore court and is before Cf. interpretation cases. well as civil Our (Tex. Brantley v. application of should follow that [rule ] ref'd) (refusing App.-Waco pet. apply court.”) (Cochran, J., supreme of our state noting although Jeffery dissenting); rule, been would have inadmissible under ref'd) (Tex.App.-Texarkana when State—unlike the State here—failed (noting appellate other decisions of objection to raise on that basis upon persuasive, courts be relied but level). binding, authority). an they to be considered outside influ-
ence, stand. few verdicts would hold that trial court did not
I would by denying Appellant’s its discretion
abuse majori- for new trial. Because the
motion not, I
ty respectfully does dissent. A.Q.W.
In the Interest of
No. 04-12-00060-CV. Texas, Appeals
Court of
San Antonio.
Jan. 2013.