Pharo v. Chambers County

893 S.W.2d 264, 1995 Tex. App. LEXIS 193, 1995 WL 49486
CourtCourt of Appeals of Texas
DecidedFebruary 9, 1995
DocketNo. 01-92-01113-CV
StatusPublished
Cited by7 cases

This text of 893 S.W.2d 264 (Pharo v. Chambers County) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pharo v. Chambers County, 893 S.W.2d 264, 1995 Tex. App. LEXIS 193, 1995 WL 49486 (Tex. Ct. App. 1995).

Opinions

OPINION

HEDGES, Justice.

Ray Wayne and Mary Alice Pharo appeal from a take nothing judgment in favor of Chambers County. We affirm.

Statement of Facts

On October 10,1983, four young men were driving home to Nederland from a concert in Houston. At 3:00 a.m., they crashed into a van stopped at a roadblock that had been set up by the Chambers County Sheriffs Department and the Department of Public Safety (DPS). Bryan Pharo, who was asleep in the front seat, was killed. The authorities had set up the roadblock in an effort to capture an armed robber who had led them on a high-speed chase.

The Pharos, who are Bryan’s parents, sued the driver of the car, Chambers County, and DPS, asserting wrongful death and survival claims. The trial court directed a verdict in favor of DPS. In a 10 to two verdict, the jury found that Chambers County was not negligent.

Contact between a Juror and a Deputy Sheriff

In point of error one, the Pharos argue that the trial court erred in denying their motion for new trial because, during the trial, one of the jurors had lunch, dinner, and other social contacts with a deputy sheriff, an employee of Chambers County. The Pharos contend that this contact violated the court’s instruction to the jurors to not have contact with the parties to the lawsuit during trial and constituted reversible error. We disagree.

At the hearing on the motion for new trial, juror Loretta Pylant testified about her contacts with Ferris Collier, an employee of the Sheriff Department’s criminal investigation division. She testified that she dated Collier and that she generally saw him in the evening and on weekends. During trial, she lunched with him twice, dined with him once, and had coffee with him and four other Sheriffs Department employees in the Sheriffs office. She did not discuss the case with him or with the other Sheriffs Department employees. During trial, she understood the parties to be “Chuck Morris [the Sheriff], and the officers that were on duty at the time and that were employed by Chambers County at the time the accident took place.”

Collier testified that he was an employee of the county at the time of trial, but that he had not been employed by the county at the time of the accident. He confirmed ■ the lunch and dinner dates with Pylant. He stated that the employees, not the Sheriffs Department, paid for the coffee Pylant drank. He did not discuss the ease with Pylant, nor did he have anything to do with the investigation or trial.

[266]*266Juror Susan Hudnall testified that she and other jurors saw Pylant and an employee of the Sheriffs Department having lunch together. She recognized Pylant’s companion as a deputy because he was wearing a gun. Hudnall was surprised to see them together at lunch. She testified that Pylant had mentioned her relationship with Collier a number of times in the jury room.

The right to a fair and impartial trial is guaranteed by the Texas Constitution. See Tex. Const, art. I, § 15; Babcock v. Northwest Mem. Hosp., 767 S.W.2d 705, 708 (Tex.1989). A person who has a bias or prejudice in favor of or against a party is statutorily disqualified from serving as a juror. Tex.Gov’t Code Ann. § 62.105(4) (VeR-non Supp.1995). A party is entitled to a trial by jury unaffected by bribes, promises of reward, or improper requests. Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 919 (1958).

To obtain a new trial on the ground of jury misconduct, the complaining party must show (1) that the misconduct occurred, (2) that it was material, and (3) that the misconduct resulted in harm. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.1985); Ramsey v. Lucky Stores Inc., 853 S.W.2d 623, 635 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Tex.R.Civ.P. 327. A trial court’s ruling on a motion for new trial based on jury misconduct will be reversed only upon a showing of abuse of discretion. Texas v. Wair, 163 Tex. 69, 351 S.W.2d 878, 878 (1961).

While the acts the Pharos complain of unquestionably occurred, we do not characterize them as misconduct. The evidence does not show that Collier was so intimately connected with Chambers County in its capacity as a party that his contacts with Py-lant violated the trial court’s instructions not to mingle with or talk to parties. Nor do we believe that this consortium rose to the level of being so inimical to fairness that it denied the Pharos a fair trial.

We believe that the conduct complained about occurred because the trial court and the attorneys did not explain to the venire panel that current employees of the sheriffs department or the county could be considered to be improperly or inappropriately associated with a party merely because of their current employment status. Pylant answered on voir dire that she knew James Gallagher, one of the deputies appearing at trial who had been involved in the incident at issue. She was not questioned about her acquaintance with other sheriffs department employees apart from a general question about association with the sheriff himself. Before her own voir dire questioning, she observed that Mr. Nash, an employee of the county, was not challenged based on his employment. As we have previously stated, •Pylant testified on motion for new trial that she understood the defendants to be limited to the sheriff and any officers who were on duty at the time of the accident or who were employed by the county at the time of the accident.

Although an employee of the sheriffs office, Collier had no pecuniary interest in the suit, he was not a witness, he was not an attorney in the case, and he was not directing or managing this lawsuit. See Hunnicutt v. Clark, 428 S.W.2d 691, 694 (Tex.Civ.App.—Texarkana 1968, no writ). He had not been employed by the county at the time of Bryan Pharo’s death. He did not participate in the investigation of the accident, nor did he assist in preparation for trial. We find that the Pharos have not demonstrated juror misconduct. Collier’s connection to Chambers County is sufficiently remote in this context to remove him from the position of party to the suit or its representative.

We acknowledge a number of older cases in which contacts with jurors required reversal. Texas Employers’ Ins. Ass’n. v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958) (plaintiff went to juror’s office and asked her to “do all she could for her”); Texas Milk Products Co. v. Birtcher, 138 Tex. 178, 157 S.W.2d 633 (1941) (party purchased soft drink for juror); Texas Employers’ Ins. Ass’n. v. Brooks, 414 S.W.2d 945 (Tex.Civ. App.-Beaumont 1967, no writ) (juror requested ride home from party and his brother-in-law); Occidental Life Ins. Co. v. Duncan,

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Bluebook (online)
893 S.W.2d 264, 1995 Tex. App. LEXIS 193, 1995 WL 49486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pharo-v-chambers-county-texapp-1995.