Mann v. Ramirez

¶1dissenting.

¶2Appellants’ argument, and the majority’s decision, rest on only two facts: (1) at the time of trial the district clerk of Frio County was pregnant and living with the corporate representative of one of the litigants; and (2) prior to jury selection certain personnel in the district clerk’s office excused prospective jurors, accepted exemptions, and failed to file and preserve the jury list, all in violation of the civil statutes. See, e.g., Tex.Gov’t Code Ann. 51.303 (Vernon 1988). From these facts the majority infers that “the actions taken may have been intended to, and did, prejudice the rights of the appellants.” This inference is unwarranted. Indeed, after thoroughly reviewing the record and the applicable law, I find nothing to suggest that appellants preserved error, demonstrated harm, or have shown a systematic exclusion of any particular group of jurors. Furthermore, I fear that the majority, in allowing a post-verdict objection and challenge to the jury selection process, is setting a dangerous precedent. For these reasons, I dissent.

¶3The Texas Rules of Civil Procedure provide for only two objections to the makeup of the jury. First, a parly may challenge the array. Tex.R.Civ.P. 221. Generally, this objection alleges a defect in the juror selection and summons procedure or a violation of the jury-wheel statute. See Tex.Gov’t.Code Ann. §§ 62.001-021 (West 1988 & Supp.1995). If the movant is successful, the entire array is dismissed and a new array is summoned. Tex.R.Civ.P. 222. The challenge must be presented in a written motion supported by affidavit to the particular judge in charge of the local jury system. Tex.R.Civ.P. 221; State ex rel. Hightower v. Smith, 671 S.W.2d 32, 36 (Tex.1984); Martinez v. City of Austin, 852 S.W.2d 71, 73 (Tex.App.—Austin 1993, writ denied); Texas Employers’ Ins. Ass’n v. Burge, 610 S.W.2d 524, 525 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.). See also Tex.Gov’t.Code Ann. §§ 62.001-.021 (West 1988 & Supp.1995). Here no written motion was filed; no affidavits submitted; and no objection was made to the judge in charge of the local jury system.

¶4Second, a party may demand a “shuffle” of the panel. Tex.R.Civ.P. 223. The result is that the panel is randomly rearranged with the possibility that potential jurors at the end of the list may move up and be more likely to serve on the jury. Martinez, 852 S.W.2d at 73. This demand must be made before voir dire and is limited to one shuffle in a case. Tex.R.Civ.P. 223. Here no shuffle was requested.

¶5It is undisputed there were no such objections to the jury selection process in this *284case. It is too late to complain of the jury panel or errors in the selection of the jury when the complaint, as in this case, is made only after the verdict. See Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex.Civ.App.—Tyler 1981, writ ref'd n.r.e.); Sendejar v. Alice Physicians & Surgeons Hosp., Inc., 555 S.W.2d 879, 886 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.); Berner v. Southwestern Public Service Co., 517 S.W.2d 924, 925 (Tex.Civ.App.—Amarillo 1974, writ ref'd n.r.e.). See also McDonald Texas Civil PRACTICE § 21.43 (1992) (“It is the general rule that when a party or his or her attorney learns before verdict of an impropriety in the course of the trial, he or she must promptly complain or the matter will be waived.”). This rule applies not only when the party is aware of the irregularity but also when he or she might have discovered it by inquiry. Berner, 517 S.W.2d at 925. “This rule is, of course, designed to prevent a party from taking his chance on a favorable verdict and then obtaining a second trial by reason of the irregularity....” King v. Moberley, 301 S.W.2d 202, 205 (Tex.Civ.App.—Eastland 1957, no writ).

¶6The majority, however, relies largely on Mendoza v. Ranger Ins. Co., 753 S.W.2d 779 (Tex.App.—Fort Worth 1988, writ denied). In Mendoza, a large number of jurors had been excused from service. The array summoned for a jury trial during school vacation included an inordinate number of teachers. The local practice did not provide for juror information cards. Instead, some basic information was obtained by preliminary voir-dire. The lack of randomness on the panel was therefore not apparent until the time to challenge the array had passed. Appellants complained of a defect in the method used to select the array. The court of appeals held that, under these facts, a motion for mistrial made at the end of voir dire properly preserved error. The court found that the appellants were denied their right to a fair and impartial trial before an impartial jury, fairly representative of the community because “the jury was not a randomly selected cross section of the community.” Id. at 781.

¶7In this case, appellants have made absolutely no showing that the actions of the district clerk resulted in any systematic exclusion of a particular group of jurors, nor have they made any showing that the district clerk’s actions resulted in any lack of randomness in the impaneling jury.

¶8The relevant facts are again worth noting. This case was called for trial on July 12, 1993. During the hearing on the motion for mistrial, Brenda Fudge recalled that she had summoned 250 potential jurors. Usually only 150 to 175 jurors would be summoned for a civil case. The reason for this larger number was, according to Fudge, the nature of the ease and the fact that all parties were well known in the community.

¶9The selection and summoning of the 250-member panel was handled not by the district clerk’s office, but by the Tax Collector and the Sheriff of Frio County. On June 29, 1993, the Tax Collector, using his computer, generated a randomly selected list of 250 jurors. This list was received by the deputy district clerk, Dawn McCormick. The district clerk’s office then certified that the list had been drawn and delivered it to the sheriffs office. The sheriffs office had the responsibility for preparing, sending out and monitoring any returned summons to the persons on the jury list. The sheriffs office delivered any envelopes returned as undeliverable to the district clerk’s office. When the district clerk’s office received these envelopes, a notation of “No Service” was made on the jury list beside each prospective juror’s name whose summons had been returned.

¶10Brenda Fudge was on sick leave from June 30,1993 through July 7,1993. Dawn McCormick was left in charge of handling juror excuses during Fudge’s absence. Fudge took no excuses while she was out on sick leave, and she testified that she was only available to take excuses on the Thursday and Friday before trial, and on the morning of the trial.

¶11It is undisputed that potential jurors were excused by personnel in the Clerk’s office before voir dire, and that some of these excuses were not cleared by the presiding judge. The record suggests this was a custom to which the local district judge acquiesced. In any event, the majority cor-*285reetly notes that most of the excuses were given for statutory exemptions, e.g., “kids” or “overage.” Eleven names bear notations of “No Service” on the Clerk’s working copy of the juror list. Fewer than twenty-five potential jurors were excused — without the approval of a district judge — for either no reason or a non-statutory excuse.1 Of these, fewer than five were handled by the district clerk. Most of the excuses, in fact, were handled by Fudge’s deputy, Dawn McCormick.

¶12The majority, however, says it analyzes the record “through the unique prism of the relationships of the interested parties,” a euphemism for the admitted intimate relationship between Brenda Fudge and David Mas-sengale, the corporate representative of Texas Dyno Chem, Inc. Noting the admitted statutory violations of the jury selection process, the majority concludes there was a “materially unfair trial as a matter of law,” and (noting it would reach the same decision under a harmful error analysis) holds the trial court abused its discretion. The implicit assumption is that Fudge was somehow manipulating the jury panel for the apparent benefit of her paramour, and that McCormick was in league with her.2 Indeed, the majority concludes by observing that there is “a strong inference that the actions taken may have been intended to, and did, prejudice the rights of the appellants.” (Emphasis added).

¶13This inference cannot sustain our holding. Reading the majority opinion, I am reminded of Justice Nathan Heeht’s observation that:

Several smoldering sticks, no one of them flaming, may together build a fire. But all the sticks there are, piled up without spark or heat, make neither smoke nor fire; they are nothing but a big pile of sticks, and one cannot infer from the pile that they must be afire.

¶14Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 234-35 (Tex.1990) (Hecht, J., dissenting). Such is the case here, except that appellants offer us only a small pile of sticks. We should not supply by inference what they have failed to show us in the record.

¶15Again, the issue is whether appellants knew or should have known there were irregularities in the jury selection. Only after suffering an adverse verdict did appellants complain of irregularities in jury selection. Prior to entry of judgment, appellants’ trial counsel filed a motion for mistrial. During the hearing on that motion Mr. Brock, appellant’s lead trial counsel, posed the following question to Dawn McCormick:

Ms. McCormick, do you recall during the voir dire process when we were at the bench and I raised the question about the number of jurors that showed up here and basically made an objection about that and that you responded that, yes, there had been excuses that had been granted but also talked about that people would go to Judge Strauss and seek those exemptions or Judge Saxon and would be granted exemptions? Do you recall that?

¶16(Emphasis added). This is the moment, during voir dire, when counsel should have objected to the court (not the clerk), requested an inquiry, and if not satisfied with the result *286of that inquiry, presented his motion for mistrial. One cannot “basically” object.

¶17Appellants’ counsel was provided the jury list prior to trial. This list showed 250 names. Fewer than 100 potential jurors were summoned. Counsel’s own question shows he asked the clerk about the number of prospective jurors that had been summoned. Yet, counsel apparently made no inquiry into the number of potential jurors who failed to appear for the panel. The record also shows counsel knew that some statutory exemptions had been granted. However, at no time did counsel attempt to check the method by which jurors were excused, such as asking for copies of the exemption certificates or asking the presiding judge about the excusing of jurors. It is this knowledge that makes the scenario more compelling than the facts of the Sendejarcase, a precedent the majority disregards. See id. at 886.

¶18As for Fudge’s relationship with Massen-gale, there is evidence suggesting that appellants’ trial counsel were aware of this relationship before the trial even started. During the hearing on the motion for mistrial, for example, Fudge testified:

Q Okay. Now, you’ve been the district clerk here in Frio County since 1989?

A Yes, ma’am.

Q Grady Roberts, one of the attorneys for plaintiff, and John Bull, one of the attorneys for plaintiff, you see them at least on a weekly basis, do you not?

A Yes, ma’am.

Q And for how many months or years before this trial have they been aware of your relationship with David Massengale of Texas Dyno Chem?

A Grady, I’m not real sure. I know that he knew it was going on at the time of the divorce. John, since he has been in Frio County.

Q So how long has John Bull been in Frio County?

A A few years. I don’t remember exactly how long he’s been here.

Q In essence though, let’s say, the entire year of 1993, your relationship with David Massengale could come as absolutely no surprise whatsoever to Grady Roberts or to John Bull, could it?

A No, ma’am.

Q And, in fact, since Burl Brock has been associated with this case have you also or are you also aware that he’s known of your relationship with David Massengale?

A If I’m not mistaken he has known.

¶19More importantly, the majority gives scant regard to the work of the trial judge, who thoroughly inquired into appellants’ allegations both at the hearing on the motion for mistrial and at the hearing on the motion for new trial. Not only was he the judge of the witnesses’ credibility, but he witnessed much of the selection process. He had an opportunity to observe the litigants, the advocates, and the court personnel. Further, he thoroughly reviewed the events following the jury’s verdict. He concluded the relationship between Fudge and Massengale, and the admitted irregularities in jury selection, did not result in the selection of an unfair jury. He also recognized that in many small Texas counties without resident judges, selection irregularities were inevitable. Given the record in this case, I see no reason to second-guess his decision.

¶20To presume from this record that there was an abuse of discretion ignores both the record and established caselaw. By sanctioning a post-verdict challenge to the jury selection process, the majority is setting a dangerous precedent. There was no suggestion during the trial, nor is there one now, of a pattern to exclude any classification of jurors, nor any allegation that this jury was not randomly selected.3 Essentially appellants complain that had they been able to select from more jurors, “there would have been at least forty-five more jurors in the room ...,” not that they identified any jurors that would otherwise have been stricken. By the major*287ity’s own reckoning, appellants must show the trial which resulted against them was “materially unfair.” They have not done so. To sustain their challenge now, given the record in this case, only encourages similar “discoveries” following adverse verdicts.

¶21I believe the record in this case sufficiently indicates that appellants either knew or should have known there were irregularities in the jury selection process. Yet, they failed to raise any objection until after the verdict was returned. This, in my view, is a sufficient basis for concluding they waived any complaints regarding jury selection. I would therefore hold that appellants waived any right to complain of errors in the selection of the jury panel. I would override appellants’ first and second points of error, and address their remaining points on their merits. I dissent.

¶25DISSENTING OPINION ON DENIAL OF EN BANC REVIEW1

¶26joined by

¶27The majority opinion in this case is more “dangerous” than is apparent from the dissent. The issue is not simply whether error was timely and properly preserved, the focus of the dissent, but whether this court is required to find trial court error at all— under the appropriate standard of review— before proceeding to a harm analysis. However much we may disagree on the substantive issues involved in this appeal, there is only one legitimate resolution of this procedural issue: All appellate courts are required in all cases to apply the appropriate standard of review and find trial court error before they proceed to a harm analysis. Because the majority has failed to adhere to this fundamental principle of appellate review in this case, I respectfully dissent from the majority’s denial of en banc review.

¶28The structure of the majority’s opinion reveals its fatal flaw. The majority holds that a district court’s failure to comply with statutes regulating the selection of petit jurors is not fundamental error; therefore, the error must be preserved by a timely objection and ruling. Mann v. Ramirez, 905 S.W.2d 275, 278 (Tex.App.—San Antonio 1995, n.w.h.) (“Fundamental Error”). The majority then holds that an objection to a district court’s failure to comply with the statutes regulating the selection of petit jurors is timely, despite the fact that it is not raised until a post-verdict motion for mistrial and a post-judgment motion for new trial. Id. at 278-280 (“Waiver”). Inexplicably, however, the majority then presumes trial court error in the fourth sentence of its “Analysis” and turns immediately to a determination of whether the presumed error was harmful: ‘We must therefore examine the totality of the circumstances to determine whether the aggregate of errors, when assessed in combination with the relationship involved, raises the error to the level that would require a reversal of the trial court’s judgment and the granting of a new trial.”2 Indeed, the majority does not even address the subject of trial court error until the concluding paragraph of its opinion. Even then, the subject is relegated to a single sentence, devoid of any legal authority or analysis: ‘We conclude the trial court abused its discretion in denying a mistrial and erred in failing to grant a new trial, in light of the totality of the record and the evidence adduced at the posttrial hearing.”

¶29In short, the flaw in the majority opinion is that it contains no analysis of trial court error under the appropriate standard of review. And it is this structural flaw in the majority’s opinion that, in my view, obscures the fatal defect in the Manns’ complaint regarding the selection of the jury.

¶30As the majority recognizes, a challenge to the array is governed by Rule 221, Tex.R.Civ.P. The complaining party must therefore show that “the officer summoning the jury has acted corruptly, and wilfully summoned jurors known to be prejudiced against the party challenging or biased in favor of *288the adverse party.” Id. at 278. The issue, of course, is the randomness of the jurors summoned or, in this case, not improperly excused.3 The trial court’s action in sustaining or overruling a challenge to the array is governed by an abuse of discretion standard. Id. at 283.

¶31To establish an abuse of discretion, the complaining party must demonstrate that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex.1985). Therefore, in the context of factual matters — such as whether the summoning officer “acted corruptly” or “wilfully summoned jurors known to be prejudiced against the party challenging or biased in favor of the adverse party”— the record must establish that the trial court could reasonably have reached only one conclusion, and it reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

¶32In this ease, the trial judge made “a sincere effort to reach an appropriate decision, made a thorough inquiry into the [Manns’] allegations at both the hearing on the Motion for Mistrial and at the hearing on the Motion for New Trial. Moreover, the trial judge’s comments from the bench reflected his understanding, gained from observation and personal experience, of unsanetioned procedural shortcuts which may be employed at times in the implementation of our justice system.” Id. at 282-283. This court has also made a similar observation and, in fact, has refused to condone precisely the statutory violations that occurred in this case. See Biegajski v. State, 653 S.W.2d 624, 629 (Tex.App.—San Antonio 1983, pet. ref'd). But merely refusing to condone a statutory violation does not establish trial court error, as this court recognized in Biegajskiin holding that the appellant in that case failed to demonstrate error because he made no effort to attach the absent jurors in compliance with the Texas Code of Criminal Procedure. Id.

¶33The question in this case therefore remains whether the trial judge erred — abused his discretion — because the record before him required a finding that the personnel in the clerk’s office “acted corruptly” or “wilfully summoned jurors known to be prejudiced against the party challenging or biased in favor of the adverse party.” If so, and presuming the error was timely and properly preserved, then the trial court abused its discretion by denying the motions for mistrial and new trial. If not, the Manns have not borne their burden of bringing forward a record demonstrating error, harmful or not.

¶34In my view, the record in this case does not begin to establish an abuse of discretion. For instance, the trial court could easily have believed the office personnel’s unequivocal and consistent testimony that the unauthorized excuses were standard procedure, however wrong they may have been, and that they were not intended “to affect any part of this process.” If so, the fact of Dawn McCormick’s relationship with the Manns’ attorney was as irrelevant as Brenda Fudge’s relationship with David Massengale, since neither relationship affected the jury selection process for or against the Manns. In short, the record before the trial court, in my view, easily permitted a finding that the office personnel did not, through their unauthorized excuses, “act[ ] corruptly” or “wilfully summon] ] jurors known to be prejudiced against the [Manns] or biased in favor of [Ramirez or Dyno Chem].”

¶35The majority concludes, however, that the evidence before the trial court raised “a strong inference” that “the actions taken may have been intended to, and did, prejudice the rights of the [Manns].” Id. at 283 (emphasis added).4 However, “[t]he mere *289fact that a trial court may decide a matter ■within its discretionary authority differently from a reviewing court does not demonstrate that an abuse of discretion has occurred.” Downer, 701 S.W.2d at 242. The mere fact that the majority finds a “strong inference” of an intent to corrupt the jury selection process is simply not dispositive of error analysis under an abuse of discretion standard.

¶36In conclusion, I dissent from the majority’s denial of en banc review because the analysis employed by the panel majority completely fails to comport with the most fundamental principles of appellate review. Some may view this as promoting form over substance. I do not. How many times do we, as judges, observe that if a litigant would honestly confront the applicable standard of review, she would realize the futility of her challenge? And how can we ask that practitioners do so when we are unwilling to lead the way? At the very least, this court should recognize and attempt to apply the appropriate standard of review to the record before the trial court before conducting harmful error analysis under either the Tamburello or Rule 81(b)(1) standard.