McDaniel v. Yarbrough

¶1dissenting.

¶2I respectfully dissent. Although I agree with the majority’s recitation of the law controlling our evaluation of the trial court’s actions, I do not agree with the majority’s analysis of that law as it applies to these particular facts.

¶3The trial court, itself, established guiding rules and principles when it recessed the trial one-half day to accommodate the schedule of juror Hogan. That same accommodation should have also been made for juror Seals. If juror Seals had not been able to return after a one-half day recess, then perhaps she could have reasonably been declared disabled.1 The court would have then followed its guiding rules and principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The age of the case or whether or not a motion for continuance had ever been granted should not be considered, particular*671ly when the record is silent as to whether the objecting party had any fault in the delay.

¶4I agree the decision to excuse a juror is left largely to the discretion of the judge. Southern Pacific Transp. Co. v. Peralez, 546 S.W.2d 88, 97 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). The judge’s discretion is not unbridled, however. Downer, 701 S.W.2d at 242. A trial judge should not be able to decide one juror is any more important or worthy of accommodation than another. That is dangerous practice.