Pierson v. Noon, A14-90-00073-CV

• Citation: 814 S.W.2d 506
• Decision Date: 01 August 1991
• Docket Number: No. A14-90-00073-CV,A14-90-00073-CV
• Parties: Charline PIERSON, Ruby Lee Johnson, Morris Kemp, Johnny Lee Johnson, Ruben D. Johnson, Dave H. Johnson, Otis Johnson and O.D. Johnson, Appellants, v. George NOON, M.D., Bobby J. Stinebaugh, M.D., and The Methodist Hospital, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 506

814 S.W.2d 506

Charline PIERSON, Ruby Lee Johnson, Morris Kemp, Johnny Lee

Johnson, Ruben D. Johnson, Dave H. Johnson, Otis

Johnson and O.D. Johnson, Appellants, v. George NOON, M.D., Bobby J. Stinebaugh, M.D., and The

Methodist Hospital, Appellees.

No. A14-90-00073-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 1, 1991.

Rehearing Overruled Sept. 5, 1991.

Charles R. Houssiere, III, Robert K. Schaffer, Houston, for appellants.

Barbara Radnofsky, Robert J. Swift, Pamela A. Hunter, Rebecca Woodward, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and MURPHY and CANNON, JJ.

OPINION

MURPHY, Justice.

This medical malpractice action arises from circumstances surrounding the death of Alberta Johnson. Appellants, the husband and children of the deceased, brought suit against Drs. Noon and Stinebaugh, who were the deceased's treating physicians, and Methodist Hospital. Following a two-week trial, the jury returned a verdict finding no negligence on the part of any defendant. The trial court entered judgment for appellees on October 2, 1989, and appellants' motion for new trial was denied on January 4, 1990. In four points of error, appellants complain of appellees' peremptory strikes during jury selection and the trial court's admission of certain testimonial evidence at trial. We affirm.

In their first point of error, appellants contend that appellees used their peremptory strikes during the jury selection process to engage in purposeful racial discrimination violative of the principles announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although originally applicable only to a prosecutor's exercise of peremptory challenges in a criminal setting, the Supreme Court recently extended Batson to civil cases by holding that "courts must entertain a challenge to a private litigant's racially discriminatory use of peremptory challenges in a civil trial." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 2088, 114 L.Ed.2d 660 (1991). In entertaining such a challenge, however, courts should follow the "same approach" utilized in evaluating a Batson challenge in a criminal context. See id. 111 S.Ct. at 2088-89. Applying the established rules regarding preservation of error relating to a Batson challenge to the facts of this case, we conclude that appellants have failed to preserve the issue for appeal.

It is well settled that to preserve a Batson issue for appellate review, a party must lodge his objection regarding the use of peremptory strikes before the jury is sworn and the remainder of the venire is discharged. E.g., Henry v. State, 729 S.W.2d 732, 737 (Tex.Crim.App.1987); Catley v. State, 726 S.W.2d 595, 597 (Tex.App.--Houston [14th Dist.] 1987, no pet.); United States v. Erwin, 793 F.2d 656, 667 (5th Cir.), cert. denied, 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986). As the Court of Criminal Appeals declared in Henry:

[A] defendant may make a timely objection within the Batson lines if such objection is made after the composition of the jury is made known but before the jury is sworn and the venire panel is discharged. It is at this time that the trial court has a number of options to correct any error discovered in a Batson hearing.

Henry, 729 S.W.2d at 737. In this case, appellants made their Batson motion after the composition of the jury was made known and after the jury was sworn and the remainder of the venire dismissed. This motion was not timely. Accordingly, we hold that appellants have failed to preserve any error resulting from the trial court's action on their Batson challenge. Appellants' first point of error is overruled.

In their second point of error, appellants again assert a Batson-type complaint, but they base their complaint on alternative grounds. Specifically, they contend that appellees' use of peremptory strikes violated their rights under U.S. Const. amend. VII, XIV and Tex. Const. art. 1, § 15. It is fundamental that in order to preserve a complaint for appellate review, a party must have presented to the trial court a timely objection stating the specific grounds for the ruling desired. See, e.g., TEX.R.APP.P. 52(a). Appellants did not object to appellees' use of peremptory strikes under U.S. Const. amend. VII, XIV and Tex. Const. art. 1, § 15 in their Batson motion. Rather, appellants first raised these grounds of objection in their motion for new trial. In view of these facts, we hold that appellants' objections under U.S. Const. amend. VII, XIV and Tex. Const. art. 1, § 15 were not presented to the trial court in a timely manner so as to preserve the complaints for review by this court. Appellants' second point of error is overruled.

In their third and fourth points of error, appellants contend the trial court erred in refusing to strike the testimony of Bobby J. Stinebaugh, M.D. and Mary Ann McDonald, M.D. for violations of TEX.R.CIV.P. 267 and TEX.R.CIV.EVID. 614. Dr. Stinebaugh, an appellee in this case, and Dr. McDonald were both designated and tendered as mixed fact and expert witnesses prior to trial. Dr....