Opinion
07-23-00426-CV
08-02-2024
JOSE SALOMON DAVILA, APPELLANT v. DEVIN LEE WELLS AND GIGOT AGRA PRODUCTS, INC., APPELLEES
On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CV05565, Honorable Curt Brancheau, Presiding
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
BRIAN QUINN, CHIEF JUSTICE
This appeal arises from a vehicle collision between Jose Saloman Davila and Devin Lee Wells. The latter was hauling equipment for his employer, Gigot Agra Products, Inc., when he struck the John Deere tractor Davila drove on the side of rural Highway 207 at under 10 mph. As Wells drove between 60 to 65 mph while he attempted to pass Davila from behind, Davila turned left while neither signaling nor "look[ing] back." Turning left not only placed the tractor in front of the truck and trailer Wells drove but also resulted in the two vehicles colliding. The jury found all parties negligent but deemed Davila 90% responsible for the incident. Ultimately, the trial court entered judgment upon the verdict denying Davila recovery. He appealed. His two issues concern purported jury misconduct and the inappropriate admission of expert testimony. We affirm.
Issue One-Jury Misconduct
Davila moved for a new trial on the basis of jury misconduct. The misconduct purportedly consisted of a juror's "concealment of requested facts during voir dire examination." That juror was Yanke. Allegedly, he failed to correctly reveal a past employer/employee relationship with Davila's wife, Karla Ortega, (whom Yanke fired for supposed theft); a business relationship with the farmer who employed Davila; and prior knowledge of the incident. Upon conducting an evidentiary hearing on the matter, the trial court denied the motion and allegedly erred in so ruling. We overrule the issue.
The standard of review is one of abused discretion. In re J.H.M., No. 07-07-00109-CV, 2009 Tex.App. LEXIS 9886, at *18 (Tex. App.-Amarillo Dec. 29, 2009, no pet.) (mem. op.). We apply it here.
Obtaining a new trial because of juror misconduct obligates the movant to show that misconduct occurred, it was material, and it resulted in probable harm. In re Whataburger Rests. LP, 429 S.W.3d 597, 598-99 (Tex. 2014) (orig. proceeding) (per curiam); Williams v. Viswanathan, 64 S.W.3d 624, 637 (Tex. App.-Amarillo 2001, no pet.). While the first two elements encompass questions of fact, In re Whataburger, 429 S.W.3d at 599, harm is a question of law. Pharo v. Chambers Cnty., 922 S.W.2d 945, 950 (Tex. 1996). Moreover, no probable harm exists "when the evidence is such that, even without the misconduct, the jury would in all probability have rendered the same verdict that it rendered with the misconduct." In re Whataburger, 429 S.W.3d at 599. Assuming arguendo that the aforementioned omissions by Yanke satisfied the first two elements of Whataburger, we conclude that the record fails to satisfy the third.
First, Yanke revealed, during voir dire, he knew "everyone" involved. Davila's trial counsel interpreted that to mean he knew "people on both sides of this." Having heard the comment, counsel then asked: 1) "would you, because of any of those relationships you just talked about, would you favor them one way or the other?" and 2) "no matter what, you would be able to objectively look at the evidence, follow the law, and apply that evidence and answer questions however you see fit; right?" Yanke replied "no" and "yes," respectively. And, aside from invitations to surmise or speculate, our review of the record encountered nothing from which a rational person could reasonably infer that Yanke disregarded his commitment to be unbiased, be objective, and follow the law.
Furthermore, evidence reasonably indicates that Davila should have known Ortega and Yanke had a prior employer/employee relationship when voir dire began. After all, Ortega and Davila were married. Arguably, not all married couples speak to each other. Nevertheless, Davila's counsel attested that "Ms. Ortega told me that she had previously worked at a grocery store co-owned by Mr. Yanke and Mr. Logsdon." So, even if we were to assume Ortega hid her employment with Yanke from Davila, the latter's attorney knew of it. But, the more rational inference is that Davila knew of it as well, given the marriage, and that it ended adversely to Ortega in October 2018. This seems especially so when Davila cites us to nothing of record indicating that he and his wife lacked knowledge of their respective employment situations or employers while living in their small community. Nor does he cite us to evidence suggesting that he knew not that Yanke sat on the venire. So, the circumstances can be viewed somewhat analogously to one common in Brady situations. While a prosecutor is obligated to reveal exculpatory material to a defendant, the latter is not entitled to relief from the failure to disclose when the defendant already knew of the information supposedly withheld. White v. State, No. 07-00-0242-CR, 2002 Tex.App. LEXIS 2123, at *19 (Tex. App.-Amarillo Mar. 20, 2002, pet. denied) (mem. op., not designated for publication). In other words, we are hard-pressed to find harm arising from Yanke's withholding particular information about which Davila most likely knew. While Yanke may not have revealed it, there is little reason to reward Davila for withholding the same data from his own attorney. Onus falls on the parties to communicate with their counsel and, thereby, further counsel's representation of them. See Ex parte Ewing, 570 S.W.2d 941, 947 (Tex. Crim. App. 1978) (viewing it improper to "reward those who frustrate the attempts to render them assistance, and discourage the open and honest communication that is necessary if counsel is to have the information necessary to defend").
That Davila and his wife had opportunity to see the venire and gain knowledge about its composition is rather certain. Both were introduced to that body during voir dire. And, since Davila himself worked with Yanke in the same grocery store as Ortega at one point, it strains credulity to think he could not recognize Yanke sitting in the venire pool.
The same can be said of Yanke's business relationship with the farmer (Logsdon) who employed and eventually discharged Davila. Each owned the very grocery business from which Ortega was discharged and at which Davila periodically worked. Moreover, their wives co-owned and operated the store. Thus, one again can reasonably doubt that Davila knew not of Yanke's business connection to Logsdon at the time of voir dire and, consequently, was impeded in his jury selection. Indeed, evidence again illustrates that the connection was known. As noted above, "Ms. Ortega told [Davila's attorney] that she had previously worked at a grocery store co-owned by Mr. Yanke and Mr. Logsdon." (Emphasis added). And, Ortega revealed that, "[i]n October 2018, I was called in to meet with Mike Yanke, who was one of the store's owners. Chad Logsdon was the other owner." (Emphasis added). Statements from plaintiff's counsel also buttress the likelihood of pre-existing knowledge about the business relationship in question. His words reflect the reality of small-town country long sung about when observing that "the reality of life in a - in a tight-knit community" is that everyone knew everyone; "I mean, like, let's just be real about it. It's just the reality of life." So, again, we are left wondering how failing to disclose that which was likely known by Davila portends harm. This is especially so when Davila cited us to nothing illustrating that he lacked pre-existing inklings of the relationships in question and Yanke's presence in the venire.
"Whether you're late for church / Or you're stuck in jail / Hey, word's gonna get around / Everybody dies famous in a small town." MIRANDA LAMBERT, Famous in a Small Town, on CRAZY EX-GIRLFRIEND (Columbia Nashville 2007).
We further note that though Yanke was foreman of the jury, he was but one of twelve jurors. The other eleven also found the absence of damages and assigned 90% of the accident's cause to Davila. As said in Williams, "[r]eversal is not required by jury misconduct when the verdict would be supported by the [otherwise] required ten jurors." Williams, 64 S.W.3d at 624. Here, eleven jurors supported the verdict, in addition to Yanke.
That the jury attributed 90% of the responsibility to Davila is also telling. That alone prevented him from recovering anything. TEX. CIV. PRAC. &REM. CODE ANN. § 33.001 (stating that "[i]n an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent"). And, Davila made little effort in his appellate brief to explain how that finding would have differed had the supposed jury misconduct not occurred. Indeed, Davila actually admitted that he neither signaled nor looked behind him before turning left as Wells attempted to pass.
As for the suggestion that Yanke somehow poisoned the well by informing fellow jurors of Davila's 1) purported status as an illegal immigrant and 2) receipt of compensation for his injuries from alternate sources, Davila cites us to no evidence illustrating that occurred. Instead, we are invited to surmise it did from his argument that "[i]t takes no leap of logic to presume that Mr. [Yanke] shared these improper opinions with his fellow jurors." "It takes no leap of logic to presume that" Yanke did not, as well. And, more importantly, mere surmise is not competent evidence of a supposed fact's existence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
As for pre-existing knowledge of the incident, we once again turn to the truth of small towns. Everyone knows everyone. Because Yanke denied discussing the incident with Logsdon or had more than general knowledge about the incident, little suggests he knew more about the circumstances than anyone else living in the "tight-knit" community.
In sum, our review of the record coupled with Davila's own rather damning admissions leads us to conclude that even without the supposed misconduct and with the absence of Yanke from the jury, the verdict would have remained the same in all probability. We find little to support a reasonable inference otherwise.
Issue Two-Expert Testimony
Next, we address the contention that "the trial court abused its discretion by allowing Defendants' expert, Thomas Truss, to testify about a critical matter that he researched during trial: that Mr. Davila could have used the tractor's turn indicator, despite its hazard lights being on." This purportedly was harmful because the expert's "testimony not only cast doubt on Mr. Davila's testimony about the tractor. It also necessarily called his general credibility as a witness into question." We overrule the issue.
The expert's testimony consisted of opining that the turn indicators in the tractor continue to operate even when the implement's emergency or hazard lights are engaged. This opinion was neither known to nor disclosed by the expert until after trial began. And, admitting it into evidence constituted error. Again, for purposes of this appeal, we assume arguendo the accuracy of that contention.
Yet, error in admitting evidence does not ipso facto require reversal. The complainant must still prove it to be harmful. That is, he must show the error complained of "probably caused the rendition of an improper judgment." TEX. R. APP. P. 44.1(a); Petroleum Synergy Group, Inc. v. Occidental Permian, Ltd., 331 S.W.3d 14, 21 (Tex. App.-Amarillo 2010, pet. denied). That is where we conclude the issue falls short.
At trial, Davila testified that the tractor's hazard lights were operating as he drove slowly down the side of Highway 207 and prepared to turn left. So too did he say he looked to the left. But, he denied looking behind him, that is, in the direction from which Wells came. And, during this exchange, the topic of turn indicators arose. He was asked if they worked while the hazard or emergency lights were also engaged. Davila said "no." When asked if he had "ever tried to do that," i.e., operate both simultaneously, the jury heard him say, "I don't recall." Then, defense counsel inquired about how he knew the turn signals would not work under those circumstances. Davila replied, "I don't know." Immediately thereafter, counsel queried: "Did you make a signal before trying to turn onto County Road H?" His answer was "no." That eventually led to Davila's saying, "I think so" when counsel asked if turning left without attempting any signal "was a mistake."
Admittedly, an expert's opining that both the turn indicators and hazard lights would operate simultaneously could discredit Davila's answer to the contrary and potentially affect his general credibility. Yet, it cannot be denied that he equally discredited himself and his testimony by first proffering an opinion (i.e., they cannot work at the same time), then admitting to having never tested it (i.e., he never attempted to operate both simultaneously), and then stripping it of foundation (i.e., saying "I don't know" when asked how he knew that).
More importantly, though, is the general irrelevance of that line of inquiry. It did not matter whether the turn signals were operative, for he never tried to engage them before turning. He admitted to making no signal evincing his intent to turn and no effort to look behind him for vehicles approaching. He simply turned and later acknowledged that doing so without signaling "was a mistake." What we encounter here is an attempt to take the proverbial molehill of an error and build a mountain from it. Whether signals work matters not if no one even tries to use them. Had Davila tried to signal his turn and the indicator failed to work, that is one thing. It is something else that he did not even try to use them. And, the argument being a molehill, rather than a mountain, leads us to conclude that admitting the expert testimony in question, even if error, did not probably cause the rendition of an improper judgment when coupled with Davila's inculpating admissions.
Having overruled each issue, we affirm the judgment.