Pharo v. Chambers County ( 1995 )

OPINION

HEDGES, Justice.

Ray Wayne and Mary Alice Pharo appeal from a take nothing judgment in favor of Chambers County. We affirm.

Statement of Facts

On October 10,1983, four young men were driving home to Nederland from a concert in Houston. At 3:00 a.m., they crashed into a van stopped at a roadblock that had been set up by the Chambers County Sheriffs Department and the Department of Public Safety (DPS). Bryan Pharo, who was asleep in the front seat, was killed. The authorities had set up the roadblock in an effort to capture an armed robber who had led them on a high-speed chase.

The Pharos, who are Bryan’s parents, sued the driver of the car, Chambers County, and DPS, asserting wrongful death and survival claims. The trial court directed a verdict in favor of DPS. In a 10 to two verdict, the jury found that Chambers County was not negligent.

Contact between a Juror and a Deputy Sheriff

In point of error one, the Pharos argue that the trial court erred in denying their motion for new trial because, during the trial, one of the jurors had lunch, dinner, and other social contacts with a deputy sheriff, an employee of Chambers County. The Pharos contend that this contact violated the court’s instruction to the jurors to not have contact with the parties to the lawsuit during trial and constituted reversible error. We disagree.

At the hearing on the motion for new trial, juror Loretta Pylant testified about her contacts with Ferris Collier, an employee of the Sheriff Department’s criminal investigation division. She testified that she dated Collier and that she generally saw him in the evening and on weekends. During trial, she lunched with him twice, dined with him once, and had coffee with him and four other Sheriffs Department employees in the Sheriffs office. She did not discuss the case with him or with the other Sheriffs Department employees. During trial, she understood the parties to be “Chuck Morris [the Sheriff], and the officers that were on duty at the time and that were employed by Chambers County at the time the accident took place.”

Collier testified that he was an employee of the county at the time of trial, but that he had not been employed by the county at the time of the accident. He confirmed ■ the lunch and dinner dates with Pylant. He stated that the employees, not the Sheriffs Department, paid for the coffee Pylant drank. He did not discuss the ease with Pylant, nor did he have anything to do with the investigation or trial.

Juror Susan Hudnall testified that she and other jurors saw Pylant and an employee of the Sheriffs Department having lunch together. She recognized Pylant’s companion as a deputy because he was wearing a gun. Hudnall was surprised to see them together at lunch. She testified that Pylant had mentioned her relationship with Collier a number of times in the jury room.

The right to a fair and impartial trial is guaranteed by the Texas Constitution. See Tex. Const, art. I, § 15; Babcock v. Northwest Mem. Hosp., 767 S.W.2d 705, 708 (Tex.1989). A person who has a bias or prejudice in favor of or against a party is statutorily disqualified from serving as a juror. Tex.Gov’t Code Ann. § 62.105(4) (VeR-non Supp.1995). A party is entitled to a trial by jury unaffected by bribes, promises of reward, or improper requests. Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 919 (1958).

To obtain a new trial on the ground of jury misconduct, the complaining party must show (1) that the misconduct occurred, (2) that it was material, and (3) that the misconduct resulted in harm. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.1985); Ramsey v. Lucky Stores Inc., 853 S.W.2d 623, 635 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Tex.R.Civ.P. 327. A trial court’s ruling on a motion for new trial based on jury misconduct will be reversed only upon a showing of abuse of discretion. Texas v. Wair, 163 Tex. 69, 351 S.W.2d 878, 878 (1961).

While the acts the Pharos complain of unquestionably occurred, we do not characterize them as misconduct. The evidence does not show that Collier was so intimately connected with Chambers County in its capacity as a party that his contacts with Py-lant violated the trial court’s instructions not to mingle with or talk to parties. Nor do we believe that this consortium rose to the level of being so inimical to fairness that it denied the Pharos a fair trial.

We believe that the conduct complained about occurred because the trial court and the attorneys did not explain to the venire panel that current employees of the sheriffs department or the county could be considered to be improperly or inappropriately associated with a party merely because of their current employment status. Pylant answered on voir dire that she knew James Gallagher, one of the deputies appearing at trial who had been involved in the incident at issue. She was not questioned about her acquaintance with other sheriffs department employees apart from a general question about association with the sheriff himself. Before her own voir dire questioning, she observed that Mr. Nash, an employee of the county, was not challenged based on his employment. As we have previously stated, •Pylant testified on motion for new trial that she understood the defendants to be limited to the sheriff and any officers who were on duty at the time of the accident or who were employed by the county at the time of the accident.

Although an employee of the sheriffs office, Collier had no pecuniary interest in the suit, he was not a witness, he was not an attorney in the case, and he was not directing or managing this lawsuit. See Hunnicutt v. Clark, 428 S.W.2d 691, 694 (Tex.Civ.App.—Texarkana 1968, no writ). He had not been employed by the county at the time of Bryan Pharo’s death. He did not participate in the investigation of the accident, nor did he assist in preparation for trial. We find that the Pharos have not demonstrated juror misconduct. Collier’s connection to Chambers County is sufficiently remote in this context to remove him from the position of party to the suit or its representative.

We acknowledge a number of older cases in which contacts with jurors required reversal. Texas Employers’ Ins. Ass’n. v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958) (plaintiff went to juror’s office and asked her to “do all she could for her”); Texas Milk Products Co. v. Birtcher, 138 Tex. 178, 157 S.W.2d 633 (1941) (party purchased soft drink for juror); Texas Employers’ Ins. Ass’n. v. Brooks, 414 S.W.2d 945 (Tex.Civ. App.-Beaumont 1967, no writ) (juror requested ride home from party and his brother-in-law); Occidental Life Ins. Co. v. Duncan, 404 S.W.2d 52 (Tex.Civ.App.-San Antonio 1966, writ ref'd n.r.e.) (insured asked juror for an aspirin). Those cases do not control our disposition because they involved direct contact between the juror and a party or an attorney. Because of Collier’s remoteness to the lawsuit, we conclude that no improper influence on the jury was shown, and that the trial court did not abuse its discretion in refusing to grant a new trial based on Pylant’s contacts with Collier.¹

We overrule point of error one.

Bailiffs Comments

In point of error two, the Pharos argue that a comment the trial court’s bailiff made before the venire panel requires reversal. Specifically, they complain about his comment that “when we started talking about money, we needed to start talking about raising taxes.”

In the motion for new trial hearing, bailiff Harvey Simon testified as follows:

Pharos’ attorney: During or prior to the voir dire after the jury panel had been seated when you were passing out the cards to the jurors, a comment was made to you by a juror that the county needed to buy new cards or something similar to that and I think you made a statement that if you wanted to talk about — if you wanted to talk about the county spending money, you needed to talk about raising taxes. Did you make that statement?

Simon: Did not.

Pharos’ attorney: Is there something different about the wording that I said?

Simon: Quite a bit of difference.

Pharos’ attorney: Okay. How do you recall it being said?

Simon: The juror and I went to school together. We had — I guess all high school we went together and he told me that these were the same cards we use every time and we needed to get something done about these cards. I said for me to do something about the cards, I would have to raise the taxes.

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Pharos’ attorney: The remarks that you recall making to the jury or making to your friend on the jury, was that loud enough that everyone could have heal’d it? Simon: I think there were people still being seated, coming in the courtroom. I don’t know how loud I said it. I was busy and he got me off guard. It was a stupid, spontaneous remark.

The Pharos’ attorney, Kevin Dutton, testified that he heard Simon’s remark. He believed that the entire panel heard the remark because “a number of prospective jurors and pretty much all of the panel started laughing when [Simon] said that.”

Another attorney, who had no connection with this ease, testified on motion for new trial that she had a conversation with the bailiff while waiting to see the judge. The bailiff told her that the case involved a roadblock and plaintiffs from outside the county. He opined that the jury would not find for the plaintiffs because they knew that the money would come out of their own pockets. There is no suggestion that any member of the jury heard these remarks.

Juror Pylant testified that she remembered Simon’s making a remark as the panel was leaving the room. His remark had something to do with “juror cards and the numbers that we had.” She did not recall whether he had referred to raising taxes.

Contending that the comment poisoned the panel by suggesting that if the jury awarded damages to the plaintiffs, county taxes would have to be raised to pay them, the Pharos seek reversal on two grounds. First, they assert that the comment by the officer in charge of the jury was so egregious that it was error as a matter of law, citing McCaslin, 317 S.W.2d at 919; see Tex. R.CivP. 327(a). We disagree that error, if any, rose to that level.

Alternatively, the Pharos argue that the bailiffs comment constituted reversible error because it violated the strictures of Tex.R.Civ.P. 283 and was an improper outside influence on the jury. Rule 283 governs the relationship between the officer in charge of the jury and members of the jury and with certain limited exceptions provides that he or she “shall not make nor permit any communication to be made to them....”

We conclude that the bailiffs comment was nothing more than a harmless, casual comment about raising taxes in general in response to a question about the jury cards. Where there is no evidence that jurors related remarks to the case that would shortly come before them, such casual remarks, although improper, are harmless. Kansas City S. Ry. v. Chaffin, 658 S.W.2d 186, 189 (Tex.App.—Texarkana 1983, writ ref'd n.r.e.); Gulf Coast Sailboats, Inc. v. McGuire, 616 S.W.2d 385, 386 (Tex.App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.). Because there is no evidence that any juror related the bailiffs remark about raising taxes to the case before them, the remark was, at most, harmless error.

We overrule point of error two.

Juror Employed by the County

In point of error three, the Pharos contend that the trial court erred in refusing their challenge to a veniremember for cause based on his employment as a Chambers County Deputy Sheriff. Ezell L. Brown, a member of the venire panel, stated that he was a jailer for Chambers County and that the sheriff was his boss. The trial court denied the Pharos’ motion to strike Brown for cause on the basis that he was an employee of the sheriff.

At the close of voir dire, before the jury was empaneled, counsel for the Pharos made the following objection:

Mr. Dutton: Your Honor, the plaintiff comes and again urges its motion for challenging for cause Juror No. 9, Mr. Brown, because he initially stated that he did have a bias in this case although he was—there was an attempt made to rehabilitate him and when it is shown that a bias is made, he cannot be rehabilitated.

Plaintiffs would once again assert its motion to strike Mr. Brown for cause.

The Court: Anything else, counsel?

Mr. Dutton: No, sir.

The Court: Denied.

Mr. Dutton: I object to that denial. I state that since I have used my six strikes and due to the refusal to strike Mr. Brown for cause, I object to his juror as being objectionable.

The Court: Thank you.

In order to preserve error in a trial court’s refusal to strike a prospective juror for cause, the aggrieved party must inform the trial court before exercising its peremptory challenges that it would exhaust all peremptory challenges and that after exercising all peremptory challenges, specific objectionable jurors would remain on the jury list that it would otherwise have struck. Hallett v. Houston Northwest Medical Ctr., 689 S.W.2d 888, 890 (Tex.1985).

We find that the Pharos did not fully comply with these requirements and therefore did not preserve their complaint concerning Brown. His statement that “I object to this juror as being objectionable” does not identify the juror he considers as objectionable. The identification of the objectionable juror for the first time in their brief does not preserve their error.

We overrule point of error three.

We affirm the judgment of the trial court.

1 . Contrary to the dissent’s characterization of the majority view, we do not “reject” authority holding that "contacts between jurors and a party or a party’s representative involving favors given, requested, or received, are so inimical to a fair trial, that no proof of harm is necessary.” To the contrary, we hold that such authority does not apply because of Collier’s remoteness to the County or its representative.