Carr v. Smith

OPINION

TERRIE LIVINGSTON, Justice.

Marion and Thomas Carr, appellants, sued Gregory H. Smith, D.O. and Scott Allen, M.D. for medical malpractice. The only issues appellants present for review after their two-week jury trial relate to the propriety of the jury shuffle granted by the trial court on Allen’s motion. We reverse.

Procedural Background

About a month before trial, one of the defendants, Scott Allen, M.D., filed a motion to use a confidential juror questionnaire form during voir dire. The proposed questionnaire contained 54 questions and included specific questions regarding juror personal information, education, employment, and beliefs. It also included inquiries into juror history or involvement with litigation and medical treatment. Appellants filed a response to Allen’s motion indicating their approval of the submission of the 54 questions so long as the questionnaire included an additional nine questions they proposed. Although there is no order showing the court granted Allen’s motion, the questionnaire, with all 63 questions, was submitted to the 60 panel members to fill out while they were in the central jury room.

The panel members were segregated in the central jury room, by jury numbers one through 60. Once segregated, they were sworn and all counsel had an opportunity to view the panel members in then-seated order. Counsel for appellants and paralegal for appellee viewed the panel. All counsel received the standard jury information cards. The panel members filled out the questionnaires and all counsel received copies to review overnight before starting trial the next day. The next morning Allen’s counsel requested a rule 223 jury shuffle. Appellants objected. They argued that the request came too late because voir dire had already begun when all counsel received and had the opportunity to review the extensive juror questionnaire. See Tex.R. Civ. P. 223. The court overruled their objection and shuffled the jury.

Sometime during the hotly contested trial, appellants non-suited Alien. The jury ultimately returned a verdict in favor of Smith, the appellee.¹ Appellants’ subsequent motion for mistrial was denied, and their motion for new trial claiming the trial court erred by granting Alen’s request for a jury shuffle was overruled by operation of law.

Issues Presented

Appellants present four issues for determination by this court. First, they ask whether a party may evaluate information in a detailed questionnaire before they decide to exercise their right to a jury shuffle and whether granting a shuffle, despite a timely objection, is error. Second, they ask us to decide the proper remedy for an erroneous or untimely shuffle and whether the granting of an untimely shuffle violates a party’s constitutional right to a trial by jury. In response, appellee claims appellants’ objection made at the time the shuffle was requested was insufficient to preserve error, and that appellants should have done more at three other stages of the proceeding: when their objection to the shuffle was overruled; after the shuffle was completed; and after voir dire, before exercising their peremptory challenges. Third, appellee contends that voir dire had not yet commenced when Alen requested the shuffle, even though all parties had reviewed the answers to the questionnaire and, even if granting the shuffle was error, appellants have failed to show harm. Lastly, appellee contends that it would be unjust and inequitable to require a retrial due to the action of a party who was non-suited and is no longer involved in the appeal or any further proceedings. First, we will address whether error has been properly preserved.

Preservation of Error

According to Texas Rule of Appellate Procedure 33.1(a)(1), to preserve ap-peUate review of error the record must show the party made a complaint to the trial court by a timely request, objection, or motion that clearly brings to the court’s attention the basis of the complaint and the trial court ruled on the request, objection, or motion or refused to do so. Tex. R.App. P. 33.1(a)(1). Appellants met this requirement.

When Allen moved for the shuffle appellants objected stating, “[T]he Plaintiff [appellants] would make its formal objection to the shuffling of the jury panel.” The court held a hearing on this issue on the record. The appellants pointed out that the court had given all parties the opportunity to view the panel the day before, that all panel members had completed and returned their questionnaires, that all counsel had received copies of their responses the afternoon before, and had an opportunity to review all their responses overnight, before Allen made his demand for shuffle. Specifically, counsel for appellants objected to the grant of the shuffle because review of the responses by counsel for all parties constituted the beginning of voir dire under the rules. Counsel for Allen argued that voir dire had not yet commenced and would not commence until the attorneys began their verbal questioning of jurors.

By their responses, it is quite clear that all counsel and the court understood the objection being made and its basis. We therefore conclude that error was preserved. We now address appellants’ issues one and two.

When Does Voir Dire Begin?

The answer to this question is controlled by the application and interpretation of rule 223 of the Texas Rules of Civil Procedure. That rule states:

[T]he trial judge ... upon the demand prior to voir dire examination by any party or attorney in the case ... shall cause the names of all members of such assigned jury panel ... to be ... shuffled ....

Tex.R. Crv. P. 223 (emphasis added). Here, the trial court overruled appellants’ objection and granted Allen’s shuffle. Apparently, counsel for appellee made no objection and, although present at the hearing on the objection, made no comments and voiced no complaints. At the time Allen requested the shuffle, the venire panel had been sworn and segregated in the jury pool room, had completed juror information cards, and had turned in their responses to the questionnaire. Appellants argue the dissemination and subsequent review of the fact-specific questionnaire constitute the beginning of voir dire whereas appellee contends voir dire does not commence until the venire panel is brought into the court where they will be serving, is viewed there by counsel, and verbal questioning by counsel and the court has begun. Appellee also argues that the use of juror information cards and questionnaires that provide basic juror information does not constitute the beginning of voir dire. [Id.]

Appellee originally argued that this court’s opinion in Garza v. State was not controlling because it was a criminal case involving rules relating to shuffles under the Texas Rules of Criminal Procedure as opposed to rule 223 of the Texas Rules of Civil Procedure. Garza v. State, 988 S.W.2d 352 (Tex.App.—Fort Worth), rev’d, 7 S.W.3d 164 (Tex.Crim.App.1999). In Garza, this court held in a criminal case, the right to a shuffle under the code of criminal procedure article 35.11 must be exercised before voir dire begins — that is, before reviewing juror information cards or biographical questions. Tex.Code Crim. PROC. Ann. art. 35.11 (Vernon Supp.2000); Garza, 988 S.W.2d at 356. The court of criminal appeals reversed, holding voir due had not begun after a review of juror information cards or biographical questions. Appellee, and now the dissent, claim the court of criminal appeals’ Garza opinion applies and answers the question: when does voir dire begin? Garza, 7 S.W.3d at 165-66. We do not believe Garza is controlling.

First, Garza is a criminal case interpreting a provision in the code of criminal procedure that is silent on when voir dire begins or when the right to request a shuffle has expired. See Tex.Code Crim. ProC. Ann. art. 35.11. Neither it nor the cases interpreting it are binding precedent because the court of criminal appeals is not a reviewing court with jurisdiction over this issue. See Robbins v. HNG Oil Co., 878 S.W.2d 351, 361 (Tex.App.—Beaumont 1994, writ dism’d w.o.j.); see also Anheuser-Busch Cos., Inc., v. Summit Coffee Co., 934 S.W.2d 705, 708 (Tex.App.—Dallas 1996, no writ) (op. on remand). Second, the rules of civil procedure, not the code of criminal procedure, control in a civil matter. See Tex.R. Civ. P. 2; Tex.Code Crim. ProC. Ann. arts. 1.02, 1.03 (Vernon 1994). Third, rule 223 of the rules of civil procedure and code of criminal procedure article 35.11 are worded differently. Article 35.11 does not dictate when voir dire begins as does rule 223.Tex.R. Civ. P. 223; Tex. Code Crim. ProC. Ann. art. 35.11. Here, the rule of civil procedure clearly states that a right to a shuffle in a civil case must be requested “prior to voir dire examination by any party or attorney in the case. ” Tex.R. Civ. P. 223 (emphasis added). The civil rule specifically mandates the trial court to grant a shuffle if timely requested and even specifies how the shuffle is to be handled. Additionally, the civil rule clearly states only one shuffle is to be granted. See id.

Finally, the dissent focuses on the fact that the Garza jury had also completed a juror questionnaire, implying it was similar to the lengthy, fact-specific questionnaire used here. Actually, the Garza opinion does not identify the source of the questions, who drafted the questionnaire, whether it was approved by all parties, the number of questions asked or the depth or specifics of the questions.

Here, however, we are dealing with a detailed thirteen-page questionnaire of 63 questions. And these questions go far beyond name, rank, and serial number. For example, question 30 asks each juror whether the juror or any family member has had any training or education in the legal field, the medical field, or specifically any X-Ray, MRI or CT training. Question 35 directs the jurors to disclose whether they have, or any family member has had, any of the back or disk surgeries listed. While all these questions are appropriate, they are detailed, specially-tailored inquiries into the jurors’ life experiences and prejudices directly related to the underlying claim. Because of these distinctions and because Garza is a criminal case dealing with a criminal statute, we are not bound by it and do not apply it to this case. Instead, we look to civil precedent to determine the propriety of a granted jury shuffle, whether harm need be shown, and what remedy, if any, may be appropriate.

As appellants note, there is no constitutional or fundamental right to a jury shuffle, it being a creature of statutory and common law. But, appellants continue, the right to trial by jury is a fundamental and constitutional right. See U.S. Const, amend VII; Tex. Const, art. I, § 15. And, they say this right assumes the right to a fair and impartial jury that has been selected in accord with the procedural rules and safeguards imposed by the legislature. See Jackson v. Golden Eagle Archery, Inc., 974 S.W.2d 952, 958 (Tex.App.—Beaumont 1998, pet. granted). Appellants argue that to allow a jury to proceed after an untimely shuffle has been granted destroys the randomness inherent in the original jury panel list and of the renumbered list after a timely requested shuffle. We agree.

To grant a shuffle after parties and counsel have had the opportunity to review substantive responses based upon written questions, as opposed to oral questions in the courtroom, makes no sense. The distinction between oral and written question-mg is virtually meaningless, especially where each party has already had the opportunity to view the panel. The distinction between the type of information solicited in a standard jury form card and that of a detailed, case specific questionnaire should be the focus of the inquiry, not whether the questions are asked verbally or in writing. After the venire panel has been sworn and once substantive inquiry begins and responses have been observed or made available to the parties or their counsel, whether verbally or in writing, voir dire has begun. Again, the critical focus is on whether substantive inquiry has begun with case specific questions, not necessarily the number of questions or who drafted them, as the dissent erroneously states. We therefore hold the trial court erred when it granted Allen’s untimely demand for a shuffle. We sustain appellants’ first and second issues and overrule appellee’s first reply issue.

Reversible Error

The resolution of appellants’ third issue-their remedy-necessarily focuses on the appropriate harm analysis to apply. According to appellants, they need not show harm. Appellee contends they must show harm under appellate rule 44.1(a) that provides in a civil matter:

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the case to the court of appeals.

Tex.R.App. P. 44.1(a). Appellee repeats that appellants waited too long to seek their remedy; that their motion for mistrial filed weeks after the trial was complete was simply too late and makes their burden of showing harm insurmountable.

The record shows appellants filed their motion for mistrial on February 10, 1999, within thirty days of the trial’s conclusion. The court held the hearing and denied appellants’ motion on April 21, 1999 by order dated July 13, 1999. The trial court signed the final judgment on May 3, 1999 and appellants filed a motion for new trial on May 28, 1999 that was subsequently overruled by operation of law without further hearing.

As we held above, appellants preserved error by objecting to the shuffle and making the basis of their complaint clear to the court. Thus, they were not required to move for a mistrial, but they did need some mechanism, like a motion for mistrial or new trial, to get evidence of the error and any resulting harm in the record. This is especially true since voir dire was not reported and that record is therefore unavailable to us. See Tex.R. Civ. P. 329; Tex.R.App. P. 33.1(b), 33.2. Appellants liken the grant of an untimely shuffle to the denial of the constitutionally-protected right to a fair and impartial jury, selected at random. See U.S. Const, amend. VII; Tex. Const, art. I, § 15; cf. Rivas v. Liberty Mut. Ins. Co., 480 S.W.2d 610, 612 (Tex.1972) (denying timely request for shuffle did not violate right to trial by jury because randomness of jurors’ selection was not impaired). They argue that because this is a fundamental right guaranteed by our constitutions, the improper grant of shuffle is tantamount to a denial of one’s right to a trial by jury. To the extent the statutorily created right to a shuffle is improperly granted, we agree.

This court has previously addressed the issue of how to preserve error and what type of harm, if any, must be shown to challenge the randomness of a jury panel. In Mendoza v. Ranger Ins. Co., the appellant contended she was denied her right to a fair and impartial jury due to the lack of randomness in the impaneling process when ten of the original twenty-seven panelists were teachers. See Mendoza v. Ranger Ins. Co., 753 S.W.2d 779, 780 (Tex.App.—Fort Worth 1988, writ denied). Out of the remaining twenty panelists not struck for cause, half were still teachers. See id. at 780. Evidence adduced at the hearing on her motion for new trial showed that instead of using the random list of jurors generated by data processing, the administrative judge used a jury list comprised of jurors who had previously postponed their service. See id. Apparently, teachers are often granted postponements in the months of March, April and May. And, instead of mixing the postponement list with the regular list, the panel of prospective jurors assigned to that trial court that day was comprised of a disproportionate number of teachers. At the time, no juror information cards were used in Tarrant County and the judge of that court usually began voir dire by asking the panel members their occupations before taming over voir dire to counsel. As soon as counsel for appellant realized most of the venire members were teachers, he objected to the panel and moved for a mistrial. The trial court denied his motion. This court reversed and remanded for a new trial noting that counsel had objected as soon as reasonably practicable under the facts of the case, i.e., he could not have objected to the administrative judge in charge of impaneling because he could not have known of the limited list at that time. See id. Further, this court noted that the appellant had actively asserted her rights and moved for a mistrial on those grounds, and that she had sufficiently developed a record to establish her jury was impermis-sibly assembled and was not an impartial group fairly representative of the community — one that was randomly selected. See id. at 780-81. “The necessity to prevent the subtle erosion of the standards of the jury system does not require a showing by appellant of injury.” Id. at 781 (citing Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1942)). The Mendoza case appears to answer two questions: when do you have to object and what harm or injury do you have to show — the precise questions raised in this case albeit in a different factual setting.

A later case also addressed these two issues. In Mann v. Ramirez, the San Antonio Court held that errors occurring in the jury selection process are not fundamental error and can be waived. 905 S.W.2d 275, 278-79 (Tex.App.—San Antonio 1995, writ denied). In analyzing supreme court precedent dealing with errors in the jury selection process, as well as this court’s Mendoza opinion, the San Antonio Court concluded appellate courts should review these types of error by seeing if the trial of the case resulted in a “materially unfair trial.” Id. at 280 (citing Mendoza, 753 S.W.2d at 781); e.g., Rivas, 480 S.W.2d at 611-12. The San Antonio Court held that requiring strict compliance with a rule 44.1 harm analysis would result in the “subtle erosion of the standards of the jury system” and should therefore not require a showing of injury. Id. at 280 (quoting Mendoza, 753 S.W.2d at 781). The court noted that parties have a constitutional right to trial by a jury selected in substantial compliance with law and that this right is guaranteed by both the federal and state constitutions. See id. at 281 (quoting Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965)).

We adopt the “relaxed” harmless error standard of review otherwise applied in the jury selection context. This standard requires the complaining party to show that the trial was materially unfair, without having to show more. See Lopez v. Foremost Paving, Inc., 709 S.W.2d 643, 644 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex.1979); Mann, 905 S.W.2d at 281. It also requires the appellate court to examine the entire record. See Lopez, 709 S.W.2d at 644; Patterson, 592 S.W.2d at 921.

While it would be unreasonable to require a complaining party to show specific harm like that required to preserve error for failing to grant a challenge for cause, we should at least review the factors noted by the supreme court in Patterson that will help us assess whether the trial was hotly contested. Patterson, 592 S.W.2d at 921. When a trial is so hotly contested and the evidence sharply conflicting, “the error results in a materially unfair trial without showing more.” Id. We should consider the number of special issues submitted, the count of the verdict, and the absence of summary judgment motions or motions for instructed verdicts. See Mann, 905 S.W.2d at 281, (citing Patterson, 592 S.W.2d at 921). Other factors should also be reviewed: the pleadings and the jury findings; whether the record shows how the parties used their strikes and whether they exercised all their strikes; and, whether there were any double strikes. See id. at 281, (citing Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 822 (Tex.1980)).

Another supreme court case noted by the Mann court is Lopez, 709 S.W.2d at 644. In Lopez, the supreme court applied the relaxed harmless error standard after looking at the conflicting testimony of both the plaintiffs and defendant’s witnesses and experts, the fact that the jury had been deadlocked at one point, and the fact that the final verdict was a 10-2 vote. The court also observed the methods of cross-examination and the level of cooperation between counsel to avoid double strikes. See id.

This case was hotly contested and the evidence sharply conflicting. See Patterson, 592 S.W.2d at 921 (hotly contested trial and conflicting evidence, without more, supports finding that trial was materially unfair). The pleadings that the parties went to trial on show the parties contested virtually every issue. The trial lasted two weeks during which time both sides presented experts who gave testimony that was diametrically opposed. The plaintiffs offered 42 exhibits during the trial and the only pre-trial motion for summary judgment that was granted was a partial motion in appellee’s favor as to mental anguish and emotional distress damages. The case was never mediated pre-trial and one of the two alternate jurors found in favor of the appellants in the amount of $2.5 million dollars. The clerk’s record also shows that both parties filed extensive motions in limine and appellee filed extensive charging requests. The record only shows that appellants used three strikes; the partial record does not show how many strikes the sides had or used, or whether there were any double strikes. Although appellants requested only a partial record under rule 34.6(c) of the rules of appellate procedure and they are bound by that record, we must presume the partial record constitutes the entire record for purposes of reviewing their issues. Tex.R.App. P. 34.6(c)(4).

Even though this relaxed harmless error standard does not require a specific showing of prejudice or harm, it requires some showing that the randomness of the jury has suffered. Here, this was accomplished at the hearing on appellants’ motion for mistrial where they showed jurors who originally were assigned high numbers were moved within the strike zone after the shuffle, i.e., fourteen jurors who would not have been reached in the original configuration were shuffled into the strike zone.

Because appellants’ trial was materially unfair under this relaxed harmless error standard and the randomness of the jury selection suffered, the trial court erred by granting the jury shuffle and should have granted appellants a new trial. We therefore sustain a portion of appellants’ third issue to the extent it complains of the untimely shuffle and the court’s failure to grant the mistrial, but overrule it to the extent it requires a showing of prejudice. We also sustain appellants’ fourth issue asserting that granting a jury shuffle after the beginning of voir dire violates the constitutional right to a fair and impartial jury. We overrule appellee’s second and third reply issues. We must, however, address appellee’s reply issue number four.

Appellee’s Equitable Argument

Appellee also raises a very compelling equitable argument. Appellee points out that defendant Allen, not appel-lee, requested the untimely shuffle. Additionally, appellee was not the party who requested the juror questionnaire. And Allen, who requested the shuffle, was later non-suited during the trial and would not therefore suffer the harm or expense of going through a new trial should this court order one. We note, however, that appel-lee has cited us to no authority compelling the application of any equitable principles to a situation such as this and appellants have provided no response to this issue. See Tex.R.App. P. 38.1(h). Should appellee now be entitled to assert an equitable remedy when he raised no objection to Allen’s non-suit or to the improper shuffle? We think not. The rules require the complaining party to object to a court’s action to preserve appellate review of the complaint even when there are multiple parties. See Tex.R.App. P. 33.1; see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex.App.—Houston [1st Dist.] 1996), affd on other grounds, 972 S.W.2d 35 (Tex.1998); General Motors Acceptance Corp. v. Harris County Mun. Utility Dist. No. 130, 899 S.W.2d 821, 825 (Tex.App.—Houston [14 th Dist.] 1995, no writ). At the time appellants objected to Allen’s requested shuffle, appellee lodged no complaint. And additionally, it appears, based on the record before us, that appellee agreed with or at least did not file any pretrial motions objecting to the use of the questionnaire, the source of the issues raised by this appeal. See Tex.R.App. P. 34.6(c)(2). We cannot agree that appellee preserved its equitable complaint for review and overrule its fourth reply issue.

Conclusion

Because we have determined that appellants properly preserved their objection to the shuffle, the shuffle was untimely granted, and the trial court should have either granted appellants’ motion for mistrial or new trial, we reverse the judgment of the trial court and remand the case to the trial court for a new trial.

LEE ANN DAUPHINOT, J. filed a dissenting opinion.

1 . Appellants and intervenor, American Home Assurance Company, also non-suited Open MRI Of Dallas, L.C. post-trial.