Volkswagen of America, Inc. v. Ramirez

• Decision Date: 09 May 2002
• Docket Number: No. 13-01-196-CV.,13-01-196-CV.
• Citation: 79 S.W.3d 113
• Parties: VOLKSWAGEN OF AMERICA, INC., Appellant, v. Andrew RAMIREZ, Sr., Appellee.
• Court: Texas Court of Appeals

79 S.W.3d 113

VOLKSWAGEN OF AMERICA, INC., Appellant, v. Andrew RAMIREZ, Sr., Appellee.

No. 13-01-196-CV.

Court of Appeals of Texas, Corpus Christi.

May 9, 2002.

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Alene R. Levy, Kent Geoffrey Rutter, Lynne Liberato, Haynes & Boone, L.L.P., Timothy R. Bersch, Paxon & Associates, Houston, C. Thomas Schweizer, Ian Ceresney, Herzfeld & Rubin, P.C., New York, NY, Eduardo R. Rodriguez, Rodriguez, Colvin & Chaney, Brownsville, for appellant.

Roger Reed, David H. Hockema, Edinburg, David M. Gunn, Bellaire, Kevin Dubose, Houston, for appellee

BEFORE: Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION

ROGELIO VALDEZ, Chief Justice.

This is a product liability case. A Volkswagen Passat driven by Haley Sperling crossed the median of U.S. Highway 83 and collided with a vehicle driven by Diana Alice Ramirez-Garza and occupied by her fourteen year old daughter, Jacquelyn Renee Guerra. Diana Alice Ramirez-Garza was killed in the collision and her daughter suffered severe injuries. Andrew Ramirez, Sr., Ester Ramirez, and Andrew Ramirez, Jr., as next friend of Jacquelyn Renee Guerra and as administrator of the estate of Diana Alice Ramirez-Garza, sued Volkswagen of America, Inc., alleging that the accident was caused by a defective wheel assembly on Sperling's Passat.

The initial trial of this matter ended with a jury verdict in favor of Volkswagen; however, the trial court granted appellees a new trial "in the interest of justice." Upon retrial, the jury found that the Volkswagen Passat involved in the collision was defective and Volkswagen's negligence proximately caused the automobile accident resulting in appellees' injuries. The trial court entered judgment on the verdict, awarding appellees $17,237,664.38. Volkswagen appeals this judgment by seven issues. We affirm.

Qualification of Juror

In its first issue, Volkswagen contends that the jury's verdict cannot support the judgment because one of the ten jurors was disqualified from serving on the jury. Almost thirty years before the trial of the instant case, the juror had pleaded guilty to a felony, successfully completed probation, and obtained a dismissal of the charges against him. In the instant case, this juror failed to indicate on his questionnaire that he had been an accused in a felony criminal case. Volkswagen discovered the juror's conviction after trial and made it one basis for its motion for new trial. Volkswagen argues that the juror was unqualified to serve on the jury. Volkswagen further argues that the statute authorizing dismissal of the charges against the juror is unconstitutional because it effectively "authorizes Texas courts to grant pardons" despite the fact that the Texas Constitution reserves that right to the Governor.

The trial court's ruling on a motion for new trial will not be disturbed on appeal in the absence of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles, or to rule without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Under the government code, a prospective juror must not have been convicted of a felony. See TEX.GOV'T CODE ANN § 62.102(7) (Vernon 1998). However, in the instant case, the juror in question had received a probation order providing that:

his plea of guilty in this cause is hereby ordered withdrawn, and the indictment is ordered dismissed. It is the further order of this Court that the defendant ... is hereby discharged from the terms, penalties, and disabilities of the said offense for which he was convicted in this cause and from the Probation which was heretofore granted him, and that the defendant be in all things discharged and released from the jurisdiction of this court for the offense for which he was convicted in this cause.

This order was entered under the authority of article 42.12, section 20, of the code of criminal procedure, under which a court may set aside a guilty verdict or permit the defendant to withdraw his plea of guilt, and thereafter "shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he had pleaded guilty." TEX.CODE CRIM.PROC ANN. 42.12, § 20 (Vernon Supp.2002).¹

In 1996, the Waco court of appeals observed that, "[u]ntil recently," Texas courts had "unanimously" held that article 42.12, section 20, operated to restore to a convicted felon his ability to sit on a jury once he successfully completed the terms of his probation. Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.-Waco 1996, pet. ref'd) (citing Walker v. State, 645 S.W.2d 294, 295 (Tex.Crim.App.1983); Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Crim.App.1978) (on reh'g), overruled on other grounds, Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998); Smith v. State, 859 S.W.2d 463, 464 (Tex.App. — Fort Worth 1993, pet. ref'd); Day v. State, 784 S.W.2d 955, 956 (Tex.App. — Fort Worth 1990, no pet.)). The Waco court recognized, but refused to follow, R.R.E. v Glenn, 884 S.W.2d 189 (Tex.App. — Fort Worth 1994, writ denied), which held that article 42.12, section 20, unconstitutionally infringed upon the executive branch's exclusive authority to restore a convicted felon's civil rights. Hoffman, 922 S.W.2d at 668; R.R.E., 884 S.W.2d at 192-93; see also Dempsey v. Beaumont Hosp., Inc., 38 S.W.3d 287, 289-90 (Tex.App. — Beaumont 2001, pet. dism'd by agr.) (citing Glenn in holding that convicted felon was constitutionally disqualified from jury service).²

As an initial matter, we conclude that Volkswagen's argument that article 42.12, section 20 is unconstitutional lacks merit. Article IV, section 11(b) of the Texas Constitution grants the exclusive power to grant a pardon to the executive branch of the government; however, the district courts of Texas have the constitutional and statutory authority to dismiss charges against a defendant from the moment of indictment until the time the defendant completes the terms of his probation. Hoffman, 922 S.W.2d at 668. This authority differs from the constitutional authority of the executive branch to pardon a criminal defendant after conviction. See id. Article 42.12, section 20 does not grant the judiciary and legislature greater authority than allowed by the Texas Constitution. Id.; see Ex parte Giles, 502 S.W.2d 774, 785 (Tex.Crim.App.1973) (earlier version of art. 42.12, § 20 enacted pursuant to TEX. CONST. art. IV, § 11A); Baker v. State, 70 Tex.Crim. 618, 158 S.W. 998, 1003 (1913) (affirming constitutionality of earlier version of art. 42.12, § 20). We conclude that article 42.12, section 20 does not violate the Texas Constitution as an infringement on the executive right to grant a pardon. We refuse to follow Glenn or Dempsey to the extent that these cases may hold otherwise.

Having concluded that article 42.12 of the Texas Code of Criminal Procedure is constitutional, we next determine whether a dismissal under this provision operates to allow an individual with a prior felony conviction to serve on a jury. Both the Texas Supreme Court and the Texas Court of Criminal Appeals have recently considered the extent to which a dismissal under article 42.12 can relieve the penalties and disabilities associated with a felony conviction.

The Texas Supreme Court addressed the effect of article 42.12, section 20 with regard to the right of a convicted felon to carry a concealed handgun. See Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358 (Tex.2000). In Tune, although Tune's prior felony conviction had been dismissed under article 42.12, the court nevertheless concluded that this conviction prevented Tune from obtaining a permit to carry a concealed handgun. Id. at 363-64. In reaching this conclusion, the court noted that the Concealed Handgun Act (the "Act") provided an explicit definition of the term "convicted." Under the Act, a person is "convicted" after an adjudication of guilt is entered against him whether or not his sentence is subsequently probated and he is discharged from community supervision. Id. at 363. Tune had been "convicted" according to this definition. The court thus stated that:

If the Handgun Act didn't include a specific definition of the term "convicted," then the inability to obtain a concealed-handgun license might be one of the penalties and disabilities removed when the district court dismissed Tune's indictment. But the Act does include a specific definition. And, for obvious reasons, the Legislature may wish to keep concealed handguns out of the hands of persons who have been convicted of a felony, even if those persons satisfactorily complete community supervision.

Id. at 364 (footnote omitted). In reaching its conclusion, the Texas Supreme Court reasoned that the Legislature could expressly provide in article 42.12 that any general penalties and disabilities resulting from a conviction are lifted when a person is discharged from community supervision and the indictment is dismissed, and yet retain certain specific restrictions on those who have previously been convicted of felonies. Id. In the instant case, we note that the government code contains no such restrictive language governing the meaning of a "conviction" for the purposes of jury service. See TEX.GOV'T CODE ANN § 62.102(7) (Vernon 1998).

Recently, the Texas Court of Criminal Appeals held that a felony conviction set aside under article 42.12 is not a felony conviction for purposes of enhancement under section 46.04(a) of the Texas Penal Code, making it an offense for a convicted felon to possess a firearm. See Cuellar v. State, 70 S.W.3d 815, 820 (2002). According to Cuellar, "a person whose conviction...