









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00033-CV
______________________________


CHARLES SUGGS, INDIVIDUALLY AND 
AS NEXT FRIEND OF JUDY KAY SUGGS, Appellant

V.

LARRY ALAN FITCH, ET AL., Appellees



On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. 27,474





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross

O P I N I O N

	Charles Suggs, individually and as next friend of Judy Suggs, filed suit alleging
negligence against various defendants for injuries sustained by Judy in an automobile
accident.  Some of the defendants settled, and Suggs proceeded to trial against the
remaining defendants.  At the conclusion of trial, the jury reached a ten-to-two verdict,
assigning primary responsibility for the accident to Suggs.  Based on the answers to the
verdict questions, and after polling the jurors, the court rendered a take-nothing judgment
against Suggs.
	Suggs appeals, contending there was an irregularity in the polling results.  The
record shows only nine jurors were affirmatively polled by the court, although ten jurors had
signed the verdict certificate.  Because Suggs failed to object or otherwise raise this issue
in the trial court, any error has been waived.  We affirm the judgment.
	The jury verdict reflected that ten of the jurors agreed the accident was caused by
the negligence of Judy and one of the settling defendants, seventy-five percent and twenty-five percent, respectively.  Each of the defendants at trial was assigned zero fault.  The trial
court polled the jury sua sponte.  When the jury was brought back into the courtroom after
deliberations, the following exchange took place:
		THE COURT:	. . . Ladies and Gentlemen of the Jury, it is my
understanding that you have reached a verdict.

		THE PRESIDING JUROR:	Yes, we have.

		THE COURT:	Was your verdict unanimous?
		THE PRESIDING JUROR:	No sir.  It was not.

		THE COURT:	Did you secure signatures of at least 10 or more
jurors on the appropriate line?

		THE PRESIDING JUROR:	Yes.  We did.

		THE COURT:	If you would hand the charge to the bailiff, please.

(The judge then read the verdict questions and the answers given by the jury).

		THE COURT:	Ladies and Gentlemen, I see [the verdict
certificate] is signed by 10 jurors and at this time I will poll the jury.

	The judge polled nine members of the jury by name and in the exact order their
signatures appeared on the verdict certificate.  The tenth name on the certificate was that
of the presiding juror, Richard Irvin.  The judge did not expressly poll Irvin.  The court
thanked the jurors for their service and dismissed them.  The court then announced it had
received the verdict and would so enter it on the record, and asked the parties if they had
anything further.  Each party responded in the negative.
	Suggs contends the issue in this case is whether deprivation of a trial by jury and
verdict by ten jurors represents fundamental error which implicates both the due process
clause of the United States Constitution as well as the due course of law clause of the
Texas Constitution.  Suggs concedes there is no expressly recognized right to a jury trial
in the civil context.  
	Suggs' jury trial was not affected either fundamentally or structurally in this case. 
The right to poll the jury pursuant to Tex. R. Civ. P. 294 is a waivable right and must be
requested in order to be invoked.  Suggs did not request a jury poll and thus waived the
right.  Further, the verdict in this case was rendered by ten members of the jury, each of
whom signed the verdict certificate.  Suggs received a trial by jury on his cause of action,
and the verdict was rendered by the required ten jurors.  See Tex. R. Civ. P. 292.  
	Suggs' complaint is that the court failed to follow the specific procedures of Rule 294
by polling only nine of the ten jurors who signed the verdict.  See Tex. R. Civ. P. 294.  None
of the parties requested that the jury be polled.  Because Rule 294 does not require the
judge to poll the jury absent a request by a party, no error was committed.  It is not error
for the trial court to take independent action to ensure the soundness of the verdict.  Suggs
cannot complain about the procedure used, because the procedural requirements of Rule
294 were never invoked.
	The right to poll the jury must be requested by the complaining party to preserve any
error for appeal.  See Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 585 (Tex.
App.-Corpus Christi 1993, writ denied) (holding error not preserved when appellant ceased
to pursue a jury poll after explanation by judge).  Because this issue involves a waivable
right rather than a structural or systemic one, any complaint associated with the right is
deemed waived unless the right is affirmatively invoked by the aggrieved party.  See In re
C.O.S., 988 S.W.2d 760, 767 (Tex. 1999).  Suggs waived the right to poll the jury by failing
to invoke that right, and he cannot raise the issue for the first time on appeal.    
	Suggs contended at oral argument that, because the trial judge polled the jury sua
sponte, there was no necessity to request a jury poll and therefore he did not waive his
right to such a poll under Rule 294.  However, even if the judge's action in polling the jury
preserved the right for review, Suggs was still required to object to any error in the
procedure.  Such procedural errors are waived if the litigant does not affirmatively bring the
error to the court's attention by objection or otherwise.  Suggs failed to object to the fact
that only nine jurors were polled.  Therefore, nothing is preserved for our review. 
	Suggs further contends that, because only nine jurors were verbally polled by the
court, there is a facial deficiency in the verdict causing fundamental error.  He contends
such error is not subject to the requirements of Tex. R. App. P. 33.1(a)(1). (1)   However, the
purported violation is of a procedural rule, not of an absolute or systemic right.  See C.O.S.,
988 S.W.2d at 767.  Rule 294 provides that any party shall have the right to poll the jury. 
Tex. R. Civ. P. 294.  The right to poll the jury is a creature of the rules of civil procedure and
must be affirmatively requested in order to be invoked.  See Zrubeck, 850 S.W.2d at 585. 
Such a right, if not invoked, will be deemed waived.  Id.  And even if invoked, any error
involved in implementing such a right must be preserved for review.  Tex. R. App. P.
33.1(a)(1).  An irregularity in polling the jury must be brought to the court's attention before
the jury is discharged.  See Zrubeck, 850 S.W.2d at 586 (discussing types of errors which
must be raised before jury is discharged).  This makes the court aware of the error and of
the party's desire to have it corrected at a time when it is feasible to do so.  Id.
	In Wilkerson v. Darragh & Lyda, Inc., 408 S.W.2d 542 (Tex. Civ. App.-San Antonio
1966, writ ref'd n.r.e.), the appellant requested that the jury be polled.  The court polled the
jurors as a group rather than individually.  Id. at 545.  On appeal, the court noted that any
error in the polling procedure had been waived.  Id.  The appellant initially took exception
to the group polling procedure, but declined the judge's offer to supplement the record by
individually polling the jurors.  Id.
	Here, Suggs did not request that the jury be polled.  The court nevertheless polled
the jurors sua sponte.  Suggs then failed to object or otherwise bring to the court's attention
the fact that only nine jurors were polled.  Since no complaint was made to the trial court
by timely request, objection, or motion, nothing is preserved for our review.  See Tex. R.
App. P. 33.1(a). 
	Even if it were shown that the trial court erred by incompletely polling the jury, and
that the error had been preserved for appeal, in this case the error would be harmless. 
The judgment of the trial court may only be reversed if the error probably caused the
rendition of an improper judgment or probably prevented the appellant from properly
presenting his or her case on appeal.  Tex. R. App. P. 44.1(a).  Failure to separately and
individually poll each juror is subject to harmless error analysis.  Wilkerson, 408 S.W.2d
at 545 (holding harmless trial court's polling of jury as a group, rather than individually). (2) 
	Suggs argues a party is materially injured by an unfavorable verdict rendered by
less than the requisite number of jurors and that such error cannot be harmless, citing as
authority Dunlap v. Excel Corp., 30 S.W.3d 427, 433 (Tex. App.-Amarillo 2000, no pet.)
(citing Palmer Well Servs., Inc. v. Mack Trucks, Inc., 776 S.W.2d 575, 577 (Tex. 1989);
Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 738-39 (Tex.
App.-Dallas 1992, writ denied)). (3)  These cases are distinguishable and do not support
Suggs' argument.
	In Dunlap, one party was allowed an additional peremptory strike after the twelve-member jury panel had already been selected and the names disclosed to the parties. 
Dunlap, 30 S.W.3d at 430.  The new venireperson not on the original panel then
participated as one of the concurring jurors in a ten-to-two verdict.  Id. at 431.  Permitting
the extra strike was held to be erroneous.  Id. at 433.  Because the verdict was
impermissibly rendered by only nine members of the original jury panel, the case was
remanded for a new trial.  Id. at 435.  The appellant had preserved the error by timely
objection.  Id. at 433.
	In Palmer Well Services, the jury concurred ten-to-two in a verdict that resulted in
a take-nothing judgment, but one of the ten concurring jurors was subsequently shown to
be under felony indictment.  Palmer Well Servs., Inc., 776 S.W.2d at 576.  Because the
verdict was impermissibly rendered by only nine qualified jurors, the appellant was granted
a new trial.  Id. at 577.  The error was discovered after the jury had been dismissed, and
the appellant preserved the error by a motion for new trial.  Id. at 576-77.
	In both cases relied on by Suggs, the verdict was rendered by only nine jurors, and
the error was properly preserved in the trial court.  Here, the verdict was properly rendered
by the signatures of ten of the twelve jurors.  See Tex. R. Civ. P. 292.  No juror renounced
the verdict in open court, and no juror was disqualified.  The only juror who signed the
verdict certificate but was not polled was the presiding juror, Irvin.  It was Irvin who read the
verdict to the court.  Irvin also affirmatively represented that the jury had returned the
requisite ten signatures.  Even though he was not polled, these circumstances strongly
indicate Irvin concurred in the verdict and would have responded positively had he been
specifically asked whether this was his verdict.  In light of these facts, we cannot conclude
that the polling irregularity of which Suggs complains qualifies as reversible error under
Tex. R. App. P. 44.1(a).

	We affirm the judgment.

							Donald R. Ross
							Justice

Date Submitted:	December 5, 2001
Date Decided:	December 21, 2001

Publish
1. As a prerequisite to presenting a complaint for appellate review, the record must
show that the complaint was made to the trial court by a timely request, objection, or
motion.  Tex. R. App. P. 33.1(a)(1).
2. Note that the holding in Wilkerson can also be explained by the appellant's own
actions at trial.  When the trial judge offered to supplement the record by separately polling
the jurors, the appellant declined, thereby waiving any error.  Wilkerson v. Darragh & Lyda,
Inc., 408 S.W.2d 542, 545 (Tex. Civ. App.-San Antonio 1966, writ ref'd n.r.e.).
3. Suggs does not cite the Temple EasTex, Inc. case or present an argument as to
how the case applies.

