Jackson v. Golden Eagle Archery, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: Before WALKER; STOVER; WALKER
• Citation: Jackson v. Golden Eagle Archery, Inc., 974 S.W.2d 952 (Tex. App. 1998)
• Decision Date: 17 September 1998
• Docket Number: No. 09-96-302,09-96-302
• Parties: Ronald JACKSON, Appellant, v. GOLDEN EAGLE ARCHERY, INC., et al., Appellee. CV.

Page 952

974 S.W.2d 952

Ronald JACKSON, Appellant, v. GOLDEN EAGLE ARCHERY, INC., et al., Appellee.

No. 09-96-302 CV.

Court of Appeals of Texas Beaumont.

Submitted Jan. 29, 1998.

Decided Sept. 17, 1998.

David Gaultney, Mehaffy Weber, Beaumont, for appellant.

Jacqueline Stroh, Benckenstein, Norvell & Nathan, Beaumont, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

This appeal involves a personal injury suit. Ronald Jackson sustained injuries as a result of a bow accident occurring on October 5, 1991. The accident occurred while Jackson was using a newly purchased compound bow. The bowstring was drawn back, the bow slipped from Jackson's grip, and the tip of the cable struck him in the right eye. The initial trauma was to Jackson's right eye, socket area, nose, face, and head. The permanent resultant injuries consisted of a misalignment of the eyes, fixed pupil, problems with depth perception, and a visual field deficit. Golden Eagle Archery, Inc., was named as a defendant in the suit. Trial was by jury and Jackson was awarded monetary damages. In his appeal of what he considers an inadequate damage award, Jackson raises eight points of error.

In his seventh point of error, Jackson claims the trial court erred in denying a Motion for New Trial based on jury misconduct. The misconduct he complains of can be grouped into two forms: (1) during voir dire, a juror failed to reveal her bias towards this type of lawsuit, and (2) the jury failed to follow the court's instructions regarding proper jury conduct.

We review jury misconduct under an abuse of discretion standard. Determining whether jury misconduct occurred is a question of fact for the trial court; if there is conflicting evidence on the issue, the trial court's finding must be upheld on appeal. Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex.1996).

To establish jury misconduct, the complaining party must show (1) misconduct occurred, (2) it was material, and (3) based on the record as a whole, it probably resulted in harm. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.1985); TEX.R. CIV. P. 327(a). Determining the existence of probable injury is a question of law. Pharo, 922 S.W.2d at 950. "To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he 'would otherwise have done on one or more issues vital to the judgment.' " Id., quoting Redinger, 689 S.W.2d at 419.

Review of jury misconduct is governed by Texas Rule of Civil Procedure 327 and Rule of Evidence 606(b). TEX.R. CIV. P. 327 provides:

a. When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.

b. A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

TEX.R. EVID. 606(b) is similar to Rule 327(b):

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Rules 327(b) and 606(b) both preclude jurors from testifying about their deliberations. Under both rules, all testimony, affidavits, and other evidence is excluded from consideration when an issue of jury misconduct is raised unless it is shown that an "outside influence was improperly brought to bear upon any juror." TEX.R. CIV. P. 327(b); TEX.R. EVID. 606(b); Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23 (Tex.1987). This is a significant change from prior review of jury misconduct cases. Under former Rule 327(b), a juror was permitted to testify as to matters and statements, or "overt acts," occurring during deliberations. See Flores v. Dosher, 622 S.W.2d 573, 575 (Tex.1981); Strange v. Treasure City, 608 S.W.2d 604, 606 (Tex.1980). Presently, however, the only inquiry that can be made is whether an "outside influence" affected the deliberations; all testimony, affidavits, and evidence are limited to this issue. TEX.R. CIV. P. 327(b); TEX.R. EVID. 606(b).

Neither the Rules of Civil Procedure or the Rules of Evidence define "outside influence." Case law, however, has defined the term narrowly. To constitute an outside influence, information must come from outside the jury, i.e., from a non-juror who introduces information to affect the verdict. Wooten v. S. Pacific Transp. Co., 928 S.W.2d 76, 79 (Tex.App.--Houston [14th Dist] 1995, no writ); Baley v. W/W Interests, Inc., 754 S.W.2d 313, 316 (Tex.App.--Houston [14th Dist.] 1988, writ denied). Since the amendments to Rule 327, comments and statements made by a juror to other jurors during deliberations are internal deliberations and do not amount to an "outside influence." Chavis v. Director, State Worker's Compensation Div., 924 S.W.2d 439, 447 (Tex.App.--Beaumont 1996, no writ).

To preserve error regarding jury misconduct, the complaining party must present evidence proving the misconduct at a hearing on a motion for new trial. TEX.R. CIV. P. 327; TEX.R. CIV. P. 324(b)(1). Jackson moved for a new trial based on alleged jury misconduct and a hearing was held. Supporting the Motion for New Trial were affidavits from several jurors attesting to the occurrences of misconduct. Darold Frederick, a juror of the case, testified at the hearing. Golden Eagle's trial counsel objected to the testimony of Frederick arguing the affidavits attached to the motion were insufficient to require the court to hear testimony because there was no outside influence affecting the jurors' conduct. The trial court allowed the testimony based on Jackson's constitutional challenge to Rule 327(b).

FAILURE TO DISCLOSE BIAS OR PREJUDICE DURING VOIR DIRE

An erroneous or incorrect answer given by a potential juror during voir dire examination can constitute grounds for a new trial. See TEX.R. CIV. P. 327(a) set forth in full above. Jackson complains that, during voir dire, one of the jurors, Barbara Maxwell, did not disclose her bias against lawsuits and did not disclose that she had been on a previous wrongful death case in which the jury awarded zero damages. He contends the juror's misconduct was material, and, given the record as a whole, the misconduct resulted in harm.

During voir dire, Jackson's trial attorney asked the jury panel if any of them were biased against this type of law suit:

[W]e're in this lawsuit concerning what we contend to be an unreasonably dangerous product that injured an unknowing consumer. And Mr. Jackson has a right to be here. He has a right to ask a Court in this county to render him a fair verdict; but there are people that, for many reasons, of their own, again, are opposed to this type of lawsuit. They just don't think that this ought to be done, that they're opposed to lawsuits. They don't think they ought to happen, that they can't render verdicts in this case, these types of cases, et cetera. If that is the case--of course, you're entitled to your opinions; and I would fight anybody for you to have that opinion. But if that's the case, you should not be on this jury because we are operating within the--within the parameters of the law; and we are doing something that Mr. Jackson has every right to do and every right to request of a Jefferson County jury.

Is there anyone on this panel that right now would say, "Look, I just don't want to sit on this kind of jury. I need out of here. I don't want to be here. I can't be fair. These type of things bother me. I don't agree with the system, too much stress," whatever; that you want to tell the Judge, tell Judge Shuffield or me and [defense counsel] right now, "I don't want to be here"? If you do, I would ask you please to be honest and do that right now because our system depends on the integrity of our jury system and the integrity of jurors. Is there anyone here that says, "I can't do this"? Anyone?

One panel member did admit that he was biased against lawsuits. Jackson's attorney then asked if there was anyone else. No one responded. Further, Jackson's attorney discussed the type of monetary damages sought and asked the following:

Is there anybody here, by the same token, who would just say, "Look, I just can't do that. I can't--I don't believe in it. I just can't give a verdict that means that somebody is going to have to pay a lot of money"? Anybody here that--again, if you do, now is the time. You owe it to yourself and you owe it to these people and to the...