Hong Luo and Zheng Chen v. Robert L. Levy, M.D. and Robert L. Levy, M.D. & Associates, P.A. ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00418-CV
___________________________
HONG LUO AND ZHENG CHEN, Appellants
V.
ROBERT L. LEVY, M.D. AND ROBERT L. LEVY, M.D. & ASSOCIATES, P.A.,
Appellees
On Appeal from the 442nd District Court
Denton County, Texas
Trial Court No. 14-03331-362
Before Sudderth, C.J.; Meier and Kerr, JJ.
Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellants Hong Luo and Zheng Chen appeal from the trial court’s judgment
in favor of Appellees Robert L. Levy, M.D. and Robert L. Levy, M.D. & Associates,
P.A., arguing in a single issue that the trial court abused its discretion by refusing to
strike two potential jurors.
After ruling on challenges for cause, the trial court adjourned to provide the
attorneys a period of time in which to exercise their peremptory strikes. Immediately
after the court reconvened, Appellants’ counsel stated,
I just want to make an objection for the record as to No. -- Juror Nos. 7
and 9 not being struck for cause and that I had to use my peremptory
challenges that I would not have otherwise had to use on those two
individuals. And I would request an additional strike for cause.
The trial court denied the request, and Appellants’ counsel answered, “No,” when the
trial court asked, “Anything else?”
When a proper challenge for cause is denied, harm occurs only if the party has
used one of its peremptory strikes on the venire member involved and is prevented
from striking other objectionable jurors from the list because it has no additional
peremptory strikes remaining. Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 890
(Tex. 1985). Part of the process of preserving error when a challenge for cause is
improperly denied involves a party making the trial court aware that this harm has
occurred, thus providing the trial court the opportunity to cure the harm caused by
the improper denial of the challenge for cause. See id.
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To preserve error, a party must inform the trial court—either prior to or
contemporaneously with the tendering of peremptory strikes—that it has used its
peremptory strike against the venire member involved and that it has exhausted its
remaining strikes. Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d
87, 90–91 (Tex. 2005) (citing Hallett, 689 S.W.2d at 890). The party must then identify
to the trial court a specific objectionable venire member who will remain on the jury
list because the party has no more strikes available. Id.; Peery v. Stanley Mech. Tools, Inc.,
No. 02-05-00154-CV, 2006 WL 417183, at *1 (Tex. App.—Fort Worth Feb. 23, 2006,
no pet.) (mem. op.); see also In re T.N., 142 S.W.3d 522, 525 (Tex. App.—Fort Worth
2004, no pet.) (holding that appellant failed to preserve her complaint when she did
not specifically identify an objectionable juror who would serve on the jury because of
the trial court’s failure to grant the challenges for cause or to allow her additional
peremptory strikes). Only when the trial court is made aware that an objectionable
juror will be chosen is the trial court then able to determine if the party was in fact
forced to take an objectionable juror.1 Hallett, 689 S.W.2d at 890.
Because Appellants’ counsel did not notify the trial court which specific
objectionable venire member or members remained on the jury list, he has failed to
preserve this complaint for our review. See Cortez, 159 S.W.3d at 90–91; Peery, 2006
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Traditionally, the party will also make a request for relief, i.e., a request for the
granting of an additional peremptory strike, and secure a ruling on that request. Cf.
Sullemon v. U.S. Fidelity & Guar. Co., 734 S.W.2d 10, 13–14 (Tex. App.—Dallas 1987,
no writ) (holding that “[t]he Hallett decision does not require an objecting party to
request additional challenges”).
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WL 417183, at *1; cf. In re Commitment of Talley, 522 S.W.3d 742, 747 (Tex. App.—
Houston [1st Dist.] 2017, no pet.) (observing that Talley preserved his complaint
because after the trial court denied his challenges for cause to certain venire members,
he used his peremptory strikes to strike those members from the jury and then
identified venire members 7, 12, 17, 25, 27, 30, 32, 35, 36, and 37 as objectionable
jurors whom he would have struck from the panel had the trial court granted his
challenges for cause and several of those objectionable venire members served on the
jury). Accordingly, we overrule Appellants’ sole issue without reaching the merits and
affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: September 20, 2018
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