Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc.

• Decision Date: 11 March 2005
• Docket Number: No. 04-0181.,04-0181.
• Citation: 159 S.W.3d 87
• Parties: Jesus M. CORTEZ on Behalf of the ESTATE OF Carmen PUENTES, Deceased, Petitioner, v. HCCI-SAN ANTONIO, INC. d/b/a Alta Vista Nursing Center, Respondent.
• Court: Texas Supreme Court

159 S.W.3d 87

Jesus M. CORTEZ on Behalf of the ESTATE OF Carmen PUENTES, Deceased, Petitioner, v. HCCI-SAN ANTONIO, INC. d/b/a Alta Vista Nursing Center, Respondent.

No. 04-0181.

Supreme Court of Texas.

Argued December 2, 2004.

Decided March 11, 2005.

Thomas S. Hornbuckle, Stephen S. Hornbuckle, Hornbuckle Firm, Houston, Jesse Thomas Rhodes, Lyons & Rhodes, San Antonio, Keith C. Livesay, McAllen, for petitioner.

Lori D. Proctor, Proctor & Nagorny, P.C., Houston, for respondent HCCI-San Antonio, Inc.

Alvin Laser, Boston & Hughes, Houston, for respondent Jerry Tristan.

Misty Ann Farris, Baron & Budd, P.C., Dallas, for amicus curiae Tex-Abota, Inc.

Justice MEDINA delivered the opinion of the Court.

This case presents two issues: whether the trial court abused its discretion in denying a challenge to an equivocating veniremember for cause, and whether an objection to the denial was timely to preserve error. The court of appeals held that error was preserved and that the trial court did not abuse its discretion. 131 S.W.3d 113. We affirm the judgment of the court of appeals.

I

Carmen Puentes, a nursing home resident, sued HCCI-San Antonio ("HCCI"), Altman Nursing, and Jerry Tristan for negligence, gross negligence, assault, penal code violations, and intentional infliction of emotional distress related to a fall and allegations of mistreatment at the Alta Vista Nursing Center, a nursing home HCCI had purchased from Altman four months earlier. Puentes died while the suit was pending, and her heir Jesus Cortez pursued the claim.

During voir dire, counsel questioned veniremember Snider, who had handled automobile claims as an insurance adjuster. Snider said that his experience might give him "preconceived notions." "I would feel bias," he said, "but I mean, I can't answer anything for certain." When the trial judge asked him to explain his bias, he said that he had seen "lawsuit abuse... so many times." He said that "in a way," the defendant was "starting out ahead," and explained:

Basically — and I mean nothing against their case, it's just that we see so many of those. It's just like, well, I don't know if it's real or not. And this type [of] case I'm not familiar with whatsoever, so that's not a bias I should have. It's just there.

Upon further questioning, he agreed that at times when he evaluated automobile claims, he found that they had merit, and that he was "willing to try" to listen to the case and decide it on the law and the evidence. Cortez challenged Snider, arguing that he had demonstrated bias, but the trial court denied the challenge. Cortez therefore had to use his last peremptory challenge to strike Snider, and veniremember 7 was empaneled. Cortez never challenged veniremember 7 for cause, and never stated why he found 7 objectionable, but maintains that he would have struck 7 had he been able.

The jury returned a $9 million verdict against the defendants, but after reduction for settlement credits and the jury's apportionment of fault, the trial court rendered judgment against HCCI and Tristan for $87,869.36 in actual damages, and against Tristan for $250,000 in exemplary damages. Cortez, unsatisfied with the judgment, refused tender from HCCI and filed a motion for a new trial, which was denied.

Cortez appealed the judgments against HCCI and Tristan, on the ground that veniremember Snider should have been dismissed for cause. The court of appeals affirmed. 131 S.W.3d 113. We granted Cortez's petition for review, and we affirm the judgment of the court of appeals.

II

HCCI and Tristan claim that Cortez failed to preserve error by timely notifying the trial court that he would be harmed by having to use his last peremptory strike on Snider. In civil suits in Texas district courts, each side has six peremptory challenges — more than litigants in most other states.¹ Tex.R. Civ. P. 233. When a challenge for cause is denied, that error can be corrected by striking the veniremember peremptorily. Thus, the error is only harmful if this peremptory challenge would have been used on another objectionable veniremember.

Accordingly, in Hallett v. Houston Northwest Medical Center, we held that to preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the veniremember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list. 689 S.W.2d 888, 890 (Tex.1985). This ensures that "the court is made aware that objectionable jurors will be chosen" while there is still time "to determine if the party was in fact forced to take objectionable jurors." Id. Our sister court applies the same test, adding that a trial court may cure the objection by granting an extra peremptory challenge. Escamilla v. State, 143 S.W.3d 814, 821 (Tex.Crim.App.2004) (holding error in denying challenge for cause is harmful only if party (1) strikes that veniremember peremptorily, (2) exhausts peremptory strikes, (3) requests additional strikes, and if refused (4) identifies objectionable juror remaining on venire).

Cortez's notice served this purpose, if barely. While it is unclear whether Cortez gave his notice to the trial court before or after he delivered his strike list, it does appear that the two events were roughly contemporaneous. More importantly, notice was given before the jury was seated, and the trial court stated on the record "it's preserved." We therefore hold that error was preserved.

Nor do we find Cortez waived error by failing to state why veniremember 7 was objectionable. See Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274, 281 (1944) (holding that if a challenge for cause is improperly denied, the accused need not state why the identified juror left on venire was objectionable). Peremptory challenges normally require no reason. Tex.R. Civ. P. 232. While an "objectionable" veniremember could be picked at random, the objecting party must do so before knowing who the opposing party will strike or who the actual jurors will be. If it "guesses" wrong, any error is harmless; as our sister court recently noted, if the opposing party or the court agree to remove this veniremember, the objecting party does not get to object again to the veniremember who will be seated instead. Escamilla, 143 S.W.3d at 821.

HCCI and Tristan also contend that any error was harmless. We disagree. The fact the Cortez prevailed at trial is not relevant, because we held in Hallett that "harm occurs" when "the party uses all of his peremptory challenges and is thus prevented from striking other objectionable jurors from the list because he has no additional peremptory challenges." 689 S.W.2d at 890. No one except the jurors themselves knows exactly what transpires in the jury room; we know only the verdict. We held in Crown Life Insurance Company v. Casteel that when a jury bases its finding on an instruction that "commingles invalid theories of liability with valid theories," we do not hold the error harmless because the most that a reviewing court can say is that the verdict might have been reached on a valid theory. 22 S.W.3d 378, 388 (Tex.2000). Here, we do not know why veniremember 7 was objectionable. But as in Casteel, we cannot know for certain that his inclusion did not affect the verdict, so we presume harm. See Hallett, 689 S.W.2d at 890. In Excel Corp. v. Apodaca, the court of appeals held that error was harmless when an objectionable juror did not sign the verdict because the verdict still had the required number of signatories. To the extent this holding is inconsistent with our conclusions today, we disapprove it. 51 S.W.3d 686, 693 (Tex.App.-Amarillo 2001), rev'd on other grounds, 81 S.W.3d 817 (Tex.2002).

III

Cortez next argues, citing several court of appeals opinions, that veniremembers cannot be "rehabilitated" — that once a veniremember has expressed "bias," further questioning is not permitted and the veniremember must be excused.² We disagree that there is such a rule, and to the extent these decisions conflict with our opinion here, we disapprove those cases.

As a preliminary matter, we must define what we mean by "rehabilitation." We agree that if the record, taken as a whole, clearly shows that a veniremember was materially biased, his or her ultimate recantation of that bias at the prodding of counsel will normally be insufficient to prevent the veniremember's disqualification. But what courts most often mean by "rehabilitation" is further questioning of a veniremember who expressed an apparent bias. And there is no special rule that applies to this type of "rehabilitation" but not to other forms of voir dire examination. This Court has used the term only once in connection with voir dire and then with apparent approval. See Goode v. Shoukfeh, 943 S.W.2d 441, 452 n. 4, 453 (Tex.1997)

(noting defense counsel "attempted to rehabilitate" veniremember and affirming trial court's denial of challenge for cause). Similarly, our sister court has shown no special disapproval of rehabilitated veniremembers. Thus, the length and effect of efforts to rehabilitate veniremembers are governed by the same rules that apply to all of voir dire.

Of course, the rules of civil procedure contain no rule on voir dire, but a few can be gathered from case law. Among these are that voir dire examination is largely within the sound discretion of the trial judge and that broad latitude is allowed for examination. Babcock v. N.W. Memorial Hosp., 767 S.W.2d 705, 709 (Tex.1989). Both of these principles are completely inconsistent with the assertion that voir dire must stop at the moment a veniremember gives any answer that might be disqualifying. Certainly, just as trial judges may exclude "needless presentation of cumulative evidence," Tex.R. Evid. 403, they may place reasonable limits on questioning that is duplicative or a waste of time.³ But whether further questioning would be a waste of time...