                                              OPINION
                                         No. 04-11-00670-CV

                                          BZ TIRE SHOP,
                                             Appellant

                                                  v.

                            Brian BRITE and Brian Brite Enterprises, Inc.,
                                            Appellees

                 From the 2nd 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 09-1877-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 31, 2012

AFFIRMED

           BZ Tire Shop (“BZ Tire”) appeals from a judgment rendered in favor of Brian Brite and

Brian Brite Enterprises, Inc. (collectively “Brite”). In one issue, BZ contends the trial court

erred in failing to grant a new trial after it was discovered that one juror was statutorily

disqualified from serving on the jury. See TEX. GOV’T CODE ANN. § 62.102(7) (West Supp.

2012). We affirm the trial court’s judgment.
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                                        BACKGROUND

       BZ Tire filed suit against Brite for defective construction of a building. Venireperson

Shawn Dozier was one of the eleven members of the jury that rendered a take-nothing verdict.

Before the parties conducted voir dire, the judge advised and questioned the jury panel about

their qualifications to serve. Dozier told the judge that he had been arrested for writing a “hot

check” in 1995 in Guadalupe County and paid a fine, but had never been placed on probation.

After further questioning by the judge, the trial court indicated he believed Dozier had only been

charged and not convicted. The trial court allowed Dozier to remain on the venire panel and

Dozier ultimately served on the jury.

       After the verdict was rendered, BZ Tire discovered Dozier had pled guilty and was

convicted of felony theft in Bexar County in 1996. BZ Tire filed a Motion to Disregard the

Verdict and/or Motion for New Trial. At the hearing on the motion, BZ Tire introduced certified

copies of documents that demonstrated Dozier pled guilty to a felony theft in Bexar County in

1996 and successfully completed probation. Dozier testified at the hearing and explained that he

believed he received deferred adjudication and therefore did not have a felony conviction. He

also testified that because he believed he had received deferred adjudication for the theft charge,

he did not mention it to the parties during voir dire. The trial court denied BZ Tire’s Motion to

Disregard the Verdict and/or Motion for New Trial.

                                           ANALYSIS

       We review a trial court’s denial of a motion for new trial under an abuse of discretion

standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Medistar Corp. v.

Schmidt, 267 S.W.3d 150, 159 (Tex. App.—San Antonio 2008, pet. denied). A trial court abuses

its discretion when it acts unreasonably or without regard for any guiding legal principles.



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Medistar, 267 S.W.3d at 159. BZ Tire contends the trial court erred in not granting its motion

because Dozier was statutorily disqualified from serving on the jury. See TEX. GOV’T CODE

ANN. § 62.102(7)(West Supp. 2012) (“A person is disqualified to serve as a petit juror unless the

person . . . has not been convicted of misdemeanor theft or a felony.”); Dempsey v. Beaumont

Hosp., Inc., 38 S.W.3d 287, 289-91 (Tex. App.—Beaumont 2001, pet. dism’d); R.R.E. v. Glenn,

884 S.W.2d 189, 191-94 (Tex. App.—Fort Worth 1994, writ denied). Brite does not dispute that

Dozier was disqualified to serve on the jury, but instead argues a new trial was not warranted

because BZ Tire failed to show harm arising from Dozer’s inclusion on the jury.

       Contrary to BZ Tire’s argument, the participation of an unqualified juror in the jury’s

verdict does not automatically entitle a party to a new trial. See De Leon v. Longoria, 4 S.W.2d

222, 225 (Tex. App.—San Antonio 1928, writ dism’d w.o.j.) (holding “the mere fact that a

member of a jury in a civil case is [disqualified] does not of itself require that the verdict of that

jury be set aside.”); see also Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 628 (Tex. App.—

San Antonio 1989, writ denied) (holding appellant waived complaint that illiterate juror was

unqualified); Jenkins v. Chapman, 636 S.W.2d 238, 240 (Tex. App.—Texarkana 1982, writ

dism’d) (holding appellant waived complaint regarding unqualified juror who was accepted and

not complained about until after unfavorable verdict). However, we must determine whether,

absent waiver or agreement, a showing of harm is required in order to be entitled to a new trial.

       The Texas Supreme Court has held that a party is materially injured by the rendition of an

unfavorable verdict when an unqualified juror voted with the majority in a 10-2 verdict. See

Palmer Well Servs., Inc. v. Mack Trucks, Inc., 776 S.W.2d 575, 577 (Tex. 1989). In making its

determination, the court noted that Texas Rule of Civil Procedure 292 permits a verdict of less

than ten jurors of a twelve person jury only when three jurors die or become disabled from



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sitting. Id. at 576. Because one of the ten jurors voting for the verdict was not qualified to serve,

the Court reasoned that Palmer was materially injured by the rendition of an unfavorable verdict

by less than the requisite number of qualified jurors. Id. at 577. The court distinguished De

Leon by explaining that in De Leon a sufficient number of jurors remained that could have

rendered a binding verdict. Id. The court’s reasoning in Palmer suggests that a verdict rendered

by a jury that includes one disqualified juror does not establish a material injury as a matter of

law. Under Palmer the presence of an unqualified juror in an 11-1 majority does not result in a

reversal of the verdict as a matter of law when, as here, the required ten qualified jurors rendered

the verdict.

        BZ Tire argues that the Texas Supreme Court’s opinion in McDaniel v. Yarbrough, 898

S.W.2d 251 (Tex. 1995), and the court of appeals opinion in Dempsey compel a reversal in this

case. We disagree. In McDaniel, the Supreme Court considered whether the trial court erred

when it dismissed a juror sua sponte when the juror had indicated she was not able to attend

court due to heavy flooding. McDaniel, 898 S.W.2d at 252. The court held the trial court erred

because the circumstances did not rise to level of a juror disability to permit dismissal of the

juror under the constitution or rule 292. Id. at 253. The court held that it is constitutional error

to deprive a litigant of a full jury of twelve members, “absent an exception authorized by the

constitution or applicable rules.” Id. Similarly in Dempsey, a juror failed to appear after the jury

retired for deliberations.   Dempsey, 38 S.W.3d at 289.         It was discovered the juror was

disqualified to serve because he had prior felony convictions. Id. The trial judge denied a

mistrial motion and the deliberations proceeded with eleven jurors. Id. The court of appeals

held the action of the trial court deprived Dempsey of his constitutional right to a twelve-person

jury. Id. at 291.



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       BZ Tire also relies on R.R.E. v. Glenn, 884 S.W.2d 189 (Tex. App.—Fort Worth

1994,writ denied), to support its argument that the judgment must be reversed. In R.R.E., the

court held that the presence of a juror disqualified to serve because of a felony conviction denied

the litigant his constitutional right to a jury. Id. at 194. However, in doing so, the court also

noted that the appellant suffered significant harm because the evidence showed the disqualified

juror played a “leading role” in convincing three jurors to change their votes. Id. at 191, 194.

       The issue presented — whether the presence of a disqualified juror on a twelve-person

jury equates to a jury of less than twelve — is closer to the facts considered by the Supreme

Court in Palmer than those in McDaniel. Here, twelve persons deliberated and rendered the

verdict. And in R.R.E., it is clear the court considered the harm occasioned by the presence of an

unqualified juror. We believe it is appropriate to require a party seeking a new trial under the

circumstances present here to show harm. “As a general matter, few exceptions to the ‘harmless

error’ rule have been recognized.” In re K.R., 63 S.W.3d 796, 799 (Tex. 2001). Harm must be

shown when a party seeks a new trial in cases where it is alleged a juror is biased, there is jury

misconduct, and in criminal cases where it is discovered after the verdict that a juror in the case

was disqualified from service. See TEX. R. CIV. P. 327(a); TEX. CODE CRIM. PROC. ANN. art.

44.46 (West 2006); Nelson v. State, 129 S.W.3d 108, 112 (Tex. Crim. App. 2004) (criminal

cases); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000) (jury

misconduct); Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998) (bias). Accordingly, we

follow the Supreme Court’s reasoning in Palmer and determine whether BZ Tire suffered any

harm from the presence of the unqualified juror.

       The verdict in this cause was rendered by eleven jurors. The disqualified juror was

among the eleven. Excluding the disqualified juror, ten jurors remain to support the verdict.



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Rule 292 permits a verdict rendered by ten or more members of an original twelve-person jury.

BZ Tire offered no evidence that the presence of the disqualified juror harmed it, other than

making its argument for automatic reversal — an argument we have rejected. BZ Tire has failed

to show any harm from Dozier’s inclusion on the jury. Therefore, we conclude the trial court did

not err in denying BZ Tire’s motion for new trial.

                                        CONCLUSION

       Accordingly, we overrule BZ Tire’s issues on appeal and affirm the trial court’s

judgment.


                                                     Steven C. Hilbig, Justice




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