Gene Vickery and Mary Vickery v. Robert A. Behar, M.D.

Affirmed and Memorandum Opinion filed April 27, 2006

Affirmed and Memorandum Opinion filed April 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00788-CV

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GENE VICKERY AND MARY VICKERY, Appellants

V.

ROBERT A. BEHAR, M.D., Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 02-00540

M E M O R A N D U M  O P I N I O N

Challenging the jury=s verdict in favor of appellee Robert A. Behar, M.D. , appellants Gene Vickery and his wife, Mary Vickery assert, in two issues, that the judgment must be reversed because the trial court failed to disqualify an allegedly biased juror and because of alleged juror misconduct.  We affirm.

I.  Factual and Procedural Background

Mr. Vickery sought treatment from Dr. Behar for vocal cord cancer, which was initially diagnosed at the University of Texas M.D. Anderson Cancer Center. Dr. Behar stated that M.D. Anderson had misdiagnosed Mr. Vickery=s cancer as a stage one cancer when it actually had progressed to a stage three cancer.  Dr. Behar then treated Mr. Vickery with a combination of chemotherapy and radiation therapy.  The treatment was successful in curing  Mr. Vickery, but resulted in undesirable side effects, such as loss of his voice as well as difficulty in breathing and swallowing. The Vickerys brought a medical malpractice action against Dr. Behar for alleged overtreatment.

On April 12, 2004, this case was called to trial and voir dire commenced.  During voir dire, both sides asked the jury panel several questions about their experiences with the medical field and cancer. At the conclusion, both sides moved to strike several veniremembers for cause.  The trial court granted some of these motions and denied some.  Later in the trial, one of the jurors advised the court of a family medical issue and the court, after conferring with counsel for both sides, concluded trial proceedings early, allowing the jury to be dismissed for the day and return the following day for closing arguments and jury deliberations.

After thirtyBfive minutes of deliberation, the jury found unanimously that Dr. Behar was not negligent in his treatment of Mr. Vickery.  The Vickerys filed a motion for new trial that was overruled.          

II.  Issues Presented

The Vickerys assert two issues on appeal:

(1)     The trial court erred in denying their motion to strike veniremember number 13 for cause based on bias and prejudice; and

(2)     The trial court abused its discretion by denying their motion for new trial based on juror misconduct.

III.  Analysis

A.      Did the Vickerys preserve error as to their first issue?

In their first issue, the Vickerys assert that the trial court abused its discretion in denying their motion to strike veniremember number 13 for cause.  Obtaining an adverse ruling on a motion to strike a veniremember for cause and exercising a peremptory challenge against that veniremember is not enough to preserve error.   See Cortez ex rel. Estate of Puentes v. HCCI‑San Antonio, Inc., 159 S.W.3d 87, 90B91 (Tex. 2005).  Rather, to preserve error, the Vickerys also had to exhaust their remaining peremptory challenges and notify the trial court that (1) they have used all their peremptory challenges, (2) because they had to use a peremptory challenge against veniremember 13, they could not use a peremptory challenge against another veniremember, whom the Vickerys assert is objectionable, and (3) therefore, a veniremember the Vickerys assert is objectionable remains on the jury list.  See id. (discussing preservation-of-error requirements for motions to strike for cause and citing Hallett with approval); Hallett v. Houston Northwest Med. Center, 689 S.W.2d 888, 889B90 (Tex. 1985) (holding that objecting party must notify the trial court that she was using all of her peremptory challenges and that after exercising all of these challenges a specific veniremember who the objecting party asserts is objectionable remains on the jury list); Wolfe v. State, 178 S.W.2d 274, 281 (Tex. Crim. App. 1944) (op. on reh=g) (stating that objecting party must state that a remaining veniremember is objectionable, although the objecting party need not state why the remaining veniremember is objectionable). 

The Vickerys obtained an adverse ruling on their motion to strike veniremember number 13 for cause, and they exercised a peremptory challenge against this veniremember.  Before tendering her list of peremptory challenges to the trial court, the Vickerys= counsel stated that AJuror No. 13 who was not stricken for cause, we are having to exercise a peremptory strike, which we will not be able to exercise a strike [sic] on Juror No. 11.@  Other than counsel=s statement that the Vickerys were exercising a peremptory challenge against veniremember 13, the appellate record does not reflect either the number of peremptory challenges the Vickerys used or the veniremembers against whom they exercised peremptory challenges.  Even if the record showed that the Vickerys had exhausted all of their peremptory challenges,  the Vickerys did not notify the trial court that (1) they had used all their peremptory challenges, (2) because they had to use a peremptory challenge against veniremember 13, they could not use a peremptory challenge against another veniremember, whom the Vickerys assert was objectionable, and (3) therefore, a veniremember the Vickerys assert was objectionable remains on the jury list.  The Vickerys did not assert that any veniremember remaining on the jury list was objectionable.  The Vickerys did not preserve error as to their first issue. See Cortez, 159 S.W.3d at 90B91 (holding appellant Abarely@ preserved error in case in which appellant informed the trial court he was prevented from striking another objectionable veniremember because he had no additional peremptory challenges and stating that appellant did not have to explain why he found the other veniremember objectionable); Allen v. State, 108 S.W.3d 281, 282B83 (Tex. Crim. App. 2003) (holding appellant failed to preserve error because he did not identify any remaining veniremember as objectionable in the trial court); Pharo v. Chambers County, 893 S.W.2d 264, 268 (Tex. App.CHouston [1st Dist.] 1995) (holding that objecting parties failed to preserve error because they did not identify any remaining veniremember they considered to be objectionable), aff=d 922 S.W.2d 945 (Tex. 1996).  Accordingly, we overrule the Vickerys= first issue.^[1]

B.      Did the trial court abuse its discretion in denying the Vickerys= motion for new trial based on alleged juror misconduct?

In their second issue, the Vickerys assert the trial court abused its discretion in denying their motion for new trial based on alleged juror misconduct.  More specifically, they contend that juror number 9, Diana Campos committed juror misconduct during the trial by being untruthful.  During voir dire, Campos stated that her mother had been previously diagnosed with lymphoma:

[Vickerys= counsel]:          Is there anyone else who=s had experience with cancer? I do thank you for your candor, absolutely.

Campos:      My mom was just diagnosed with lymphoma, and it=s a type of cancer in the throat.

The Vickerys contend Campos lied on the third day of trial when she informed the bailiff over lunch that she had just learned that her mother had been diagnosed with lymphoma.  The Vickerys assert this  alleged untruthfulness is shown by the following excerpt from the record:

The Court:                       We=re back on the record outside the presence and hearing of most of the jury.  The record reflects now that Juror No. 9, Ms. Diana Campos, is present in the courtroom with counsel for both parties.

Ms. Campos, Mr. Herrera shared with me and I hope that=s okay with you what you shared with him. I have not told them.

God bless you. I=m so sorry. And so my first question of you, is [it] okay for me to tell them? Okay. I=ll tell them in a short while.

Now, the witness, the last witness we=re waiting on is on the way. There is some chance, albeit small, we could finish that witness today, have closing arguments today but I don=t know how long it=s going to take y=all to deliberate.

Y=all might be able to get a verdict in five minutes, you might not. Sometimes you know, I don=t know.

I have some thoughts about trying to finish today, including closing arguments and deliberations so you don=t have to come back tomorrow. But given what you learned today, I don=t know whether you would rather leave here sooner today to go to take care of that and come back tomorrow or stay today and get it all done and not have to come back.

What is your preference?

Campos:      I would rather leave now and come back tomorrow.

The Court:    Okay. Do the little we have today and do the arguments tomorrow? Can I get you to stay through this witness?

Campos:      Okay.

The Court:    Okay. We=re still on the record outside the presence and hearing of the entire jury. This is Harris County, Texas. I don=t know what the medical literature is, I don=t know, you know, but to cut to the chase, over our extended lunch break, Juror No. 9, Ms. Campos, learned that her mother has been diagnosed with lymphoma. So she had expressed to Mr. Herrera that she had an interest in concluding our proceedings for today sooner rather than later so she could go back to help her mother.

I don=t think that meets the definition of disability under the statute, under the law. I can=t force either of you to do anything. You might consider by agreement excusing her and proceeding with 11 and seeing if you can=t reach agreement on what a verdict will require. I have my own thoughts and observations but I will get out of the way, so to speak, to let you y=all craft your own agreement.

The Court:             We=re back on the record outside the presence and hearing of most of the jury except for Ms. Campos.

Ms. Campos, we have had some discussion and what I am required to do, well, I can=t excuse you for the entire case. I think what we will do in order to let you take care of the matters that are important to you and all of us is we=ll finish this witness today and then let you tend to those matters and then come back tomorrow morning for closing arguments.

Campos:      Thank you.

(emphasis added).  The Vickerys argue that juror misconduct occurred when Campos allegedly lied to the court during trial as to when her mother was diagnosed with cancer, thereby delaying deliberations and wasting the time of another juror, Mr. French.  During voir dire questioning, Mr. French had stated, in response to a general question regarding whether there was anything that might cause any potential juror to be biased for or against a particular party,  that he Adid not like to have his time wasted.@  The Vickerys argue that  the delay caused by Ms. Campos= alleged lie, adversely affected Mr. French.

A trial court has wide discretion in denying a motion for new trial, and its action will not be disturbed on appeal absent a showing of an abuse of discretion.  Sanchez v. King, 932 S.W.2d 177, 180 (Tex. App.BEl Paso 1996, no writ).  To warrant a new trial for juror misconduct, the movant must establish (1) that the misconduct occurred, (2) it was material, and (3) from the record as whole that injury probably resulted.  See Tex .R. Civ. P. 327(a) (stating that trial court may grant new trial if Asuch misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party);  Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369B72 (Tex.  2000) (citing to Texas Rule 327(a) which states that the entire record must be reviewed); Fountain v. Ferguson, 441 S.W.2d 506, 507B09 (Tex. 1969) (stating that the Awhole@ record includes matters disclosed by the evidence at trial as well as the motion for new trial).  The Vickerys have the burden to conclusively establish from the record as a whole that any alleged juror misconduct resulted in harm to them. 

First, we are unable to determine whether any alleged juror misconduct resulted in harm to the Vickerys because we do not have the entire record.  The only portions of the record that we have before us are the proceedings at voir dire and a three-page excerpt of the trial proceedings that includes the above exchange between Campos, counsel for both parties, and the trial judge.  The Vickerys have not followed the procedures under the Texas Rules of Appellate Procedure for an appeal based on a partial reporter=s record.  See Tex. R. App. P.  34.6(c).  Although the Vickerys requested a partial reporter=s record, they did not submit a statement of points or issues to be presented on appeal, as required by Rule 34.6(c)(1).   Id.   Therefore, this is not a Rule 34.6(c) case.  See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (stating that A[t]here is no question that, had [Bennett] completely failed to submit his statement of points of issues, Rule 34.6 would require the appellate court to affirm the trial court=s judgment@); see also Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 818B20 (Tex. App.BHouston [14 Dist.] 2005, no pet.) (distinguishing Bennett and holding that [appellant] who requested a partial reporter=s record was not entitled to have her late statement of issues included in appellate record since appellant did not seek leave to file her statement of issues until almost nine  months after it was due and her request came four  months after appellees= briefing had been completed and shortly before case was set for oral argument). 

Because the Vickerys did not comply with Rule 34.6(c), if our appellate record does not contain a complete record of the trial, we must presume the omitted portions are relevant to the disposition of this appeal and that they support the denial of the Vickerys= motion for new trial.  See Bennett, 96 S.W.2d at 229; Mason, 154 S.W.3d at 818B20. For this reason alone, we overrule the Vickerys= second issue.

We note, however, that notwithstanding the Vickerys=  noncompliance with Rule 34.6 (c), this court still could find no merit in their second issue.  If a lie by Campos, as asserted by the Vickerys, constitutes juror misconduct, the record excerpts on which the Vickerys rely do not show that Campos lied to the court.   Although Campos stated during voir dire that her mother had lymphoma, and later made this same statement during trial, we cannot conclude that Campos was necessarily untruthful. The trial judge=s statement  Ayou know, but to cut to the chase, over our extended lunch break, Juror No. 9, Campos, learned that her mother has been diagnosed with lymphoma.   So she had expressed to Mr. Herrera that she had an interest in concluding our proceedings for today sooner rather than later so she could go back to help her mother,@ is not enough to show that Campos said she had just learned that her mother had lymphoma. The trial judge=s statements are abbreviated, and the trial judge may have meant that the issue of whether the trial could be adjourned early occurred during the lunch break rather than that Campos learned of the cancer diagnosis over the lunch break. Further,  even if the trial judge meant to say that Campos had learned of this diagnosis on that day, the trial judge simply may have been mistaken or misinformed by the bailiff or someone else.  The trial judge=s statement does not show that Campos lied about when she learned that her mother had been diagnosed with cancer.  Accordingly, we cannot conclude, as the Vickerys urge, that Campos was untruthful. But even if Campos were untruthful, there is nothing in the record excerpts on which the Vickerys rely to suggest that the rest of the jury heard her make the allegedly untruthful statements to the court.  The entire exchange between Campos, counsel for both parties, and the trial judge occurred outside the presence of the jury. Thus, even if the jurors somehow remembered that Campos stated, during voir dire questioning, that her mother had been diagnosed with lymphoma, there is no evidence to suggest that juror French or any other juror heard her tell Herrera or anyone else that she just learned this same information during the lunch break at trial.  There is nothing in the record excerpts on which the Vickerys rely to suggest that any of the jurors knew why they were being dismissed early on the day in question. 

We conclude the trial court did not abuse its discretion in denying the Vickerys= motion for new trial based on alleged juror misconduct. We overrule the Vickerys= second issue.

Having overruled all of the Vickerys= issues on appeal, we affirm the trial court=s judgment.  

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 27, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

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^[1]  Even if error had been preserved and we could reach the merits of the Vickerys= first issue, we still would overrule it.