                                                                                 ACCEPTED
                                            04-17-00626-CV                   04-17-00626-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                           9/27/2017 2:45 PM



                               626
                      No. 04-17-___-CV

                                                   FILED IN
                                            4th COURT OF APPEALS
                 IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
          FOR   THE FOURTH DISTRICT OF TEXAS09/27/2017 2:45:25 PM
                                                KEITH E. HOTTLE
                                                     CLERK
IN RE SOUTHCROSS ENERGY PARTNERS, GP LLC, Relator


  From the 229th Judicial District Court of Duval County, Texas
                     Cause No. DC-16-139
            The Honorable Ana Lisa Garza, presiding


           PETITION FOR WRIT OF MANDAMUS


Wallace B. Jefferson                  Thomas C. Wright
State Bar No. 00000019                State Bar No. 22059400
Rachel A. Ekery                       Jessica Z. Barger
State Bar No. 00787424                State Bar No. 24032706
Nicholas Bacarisse                    E. Marie Jamison
State Bar No. 24073872                State Bar No. 24044647
ALEXANDER DUBOSE JEFFERSON &          Elizabeth H. Rivers
TOWNSEND LLP                          State Bar No. 24052020
515 Congress Avenue, Suite 2350       WRIGHT & CLOSE, LLP
Austin, Texas 78701                   One Riverway, Suite 2200
(512) 482-9300                        Houston, Texas 77056
(512) 482-9303 (facsimile)            713-572-4321
                                      713-527-4320 (facsimile)

                                      Counsel for Relators




              ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Relator:

   Southcross Energy Partners, GP LLC

Relator’s Counsel:

   Wallace B. Jefferson
   Rachel A. Ekery
   Nicholas Bacarisse
   ALEXANDER DUBOSE JEFFERSON &
   TOWNSEND LLP
   515 Congress Avenue, Suite 2350
   Austin, Texas 78701

   Thomas C. Wright
   Jessica Z. Barger
   E. Marie Jamison
   Elizabeth H. Rivers
   WRIGHT & CLOSE, LLP
   One Riverway, Suite 2200
   Houston, TX 77056

   Ernest P. Gieger, Jr.
   Brendan P. Doherty
   GIEGER, LABORDE & LAPEROUSE, L.L.C.
   5151 San Felipe, Suite 750
   Houston, Texas 77056

Real Parties in Interest:

   Ivy Gonzalez, on behalf of M.R. Gonzalez and M.N. Gonzalez, minor children
   Amy Gonzalez and Jesus Gonzalez, Sr., as heirs at law of Jesus Gonzalez, Jr.
   Rene Elizondo

Real Parties’ Counsel:

   David Rumley
   Ross W. Evans
                                        2
  WIGINGTON RUMLEY DUNN & BLAIR, L.L.P.
  123 N. Carrizo Street
  Corpus Christi, Texas 78401

  Mark A. Gonzalez
  ATTORNEY AT LAW
  924 Leopard Street
  Corpus Christi, Texas 78401

  Baldemar Gutierrez
  J. Javier Gutierrez
  Ana Gutierrez Castillo
  THE GUTIERREZ LAW FIRM, INC.
  700 E. Third St.
  Alice, Texas 78332

  Russell S. Post
  Chad Flores
  Mary Kate Raffetto
  BECK REDDEN
  1221 McKinney, Suite 4500
  Houston, Texas 77010-2010

  Bryan K. Harris
  Kevin W. Liles
  Stuart R. White
  LILES HARRIS WHITE, PLLC
  500 North Water Street, Suite 800
  Corpus Christi, Texas 78401-0232

Respondent:

  Hon. Ana Lisa Garza
  229th District Court of Duval County
  400 E. Gravis
  San Diego, TX 78384

  P.O. Box 1070
  San Diego, TX 78384


                                         3
                                        TABLE OF CONTENTS
                                                                                                                 Page

IDENTITY OF PARTIES AND COUNSEL ............................................................ 2

INDEX OF AUTHORITIES......................................................................................6

STATEMENT OF THE CASE ..................................................................................8
STATEMENT OF JURISDICTION........................................................................10

STATEMENT REGARDING ORAL ARGUMENT .............................................11

REQUEST FOR TEMPORARY EMERGENCY RELIEF ....................................12

ISSUES PRESENTED.............................................................................................13
PRELIMINARY STATEMENT .............................................................................15

STATEMENT OF FACTS ......................................................................................16

A.                The jury trial, charge of the court, and first verdict. ...........................16
B.                Discharged jurors talk with the lawyers about the verdict
                  and damages award. ............................................................................18

C.                The trial court orders jurors back to the courthouse, the
                  jurors further discuss the verdict in the jury room, and the
                  court accepts evidence that impeaches the verdict’s
                  damages award. ...................................................................................19
D.                The trial court orders the jury to redeliberate, allows the
                  jury to render a second verdict, and then accepts the
                  second verdict. .....................................................................................20
SUMMARY OF THE ARGUMENT ......................................................................22

ARGUMENT ...........................................................................................................23

I.                The trial court’s decision to reconvene the jury and receive
                  evidence to impeach the jury’s verdict, and allow that
                  same jury to redeliberate was arbitrary and unreasonable. ................. 23


                                                           4
                  A.                Trial courts are prohibited from reconvening
                                    jurors after they have been discharged and
                                    intermingled with the public. ..........................................23
                  B.                Trial courts are expressly prohibited under
                                    Rule of Evidence 606 from receiving
                                    evidence to invalidate a jury verdict after the
                                    verdict has been accepted. ..............................................26
                  C.                Allowing the “jury” to redeliberate and
                                    accepting a second verdict is a clear abuse of
                                    discretion warranting mandamus. ...................................29

II.               The trial court’s actions undermining the jury’s initial,
                  sworn verdict were an abuse of discretion. The initial
                  verdict was complete, fully responsive to the questions in
                  the charge, and not conflicting. ...........................................................30
III.              There is no adequate remedy by appeal. .............................................34
CONCLUSION ........................................................................................................37
RULE 52.3(J) CERTIFICATION ............................................................................39

CERTIFICATE OF COMPLIANCE .......................................................................39
CERTIFICATE OF SERVICE ................................................................................40

APPENDIX .............................................................................................................42




                                                           5
                                    INDEX OF AUTHORITIES

                                                                                                            Page
Cases
Adams v. Houston Lighting & Power, Co.,
  314 S.W.2d 826 (Tex. 1958) ................................................................................30
Archer Daniels Midland Co. v. Bohall,
  114 S.W.3d 42 (Tex. App.—Eastland 2003, no pet.) ................................... 30, 32
Branham v. Brown,
  925 S.W.2d 365 (Tex. App.—Houston [1st Dist.] 1996, no writ) ............... passim
Caylat v. Houston E. & W. Ry. Co.,
  113 Tex. 131, 252 S.W. 478 (Tex. 1923)...................................................... 23, 29
Dietz v. Bouldin,
  136 S.Ct. 1885 (2016) ................................................................................... 24, 25
Dilbeck v. Ideal Bread Co.,
  562 S.W.2d 563 (Tex. Civ. App.—Texarkana 1978, no writ).............................31
Faulk v. Bluitt,
  211 S.W.3d 418 (Tex. App.—Waco 2006, pet. denied) ......................................35
Ford Motor Co. v. Castillo,
  279 S.W.3d 656 (Tex. 2009) ......................................................................... 27, 29
Golden Eagle Archery, Inc. v. Jackson,
 24 S.W.3d 362 (Tex. 2000) ..................................................................................29
Hyundai Motor Co. v. Vasquez,
 189 S.W.3d 743 (Tex. 2006) ................................................................................25

In re Estate of McNutt,
  No. 04–15–00110–CV, 2016 WL 519732 (Tex. App.—San Antonio
  Feb. 10, 2016, pet. denied) ...................................................................................27
In re Prudential Ins. Co. of Am.,
  148 S.W.3d 124 (Tex. 2004) ......................................................................... 34, 37



                                                        6
In re Team Rocket, L.P.,
  256 S.W.3d 257 (Tex. 2008) ................................................................................37

In re Toyota Motor Sales, U.S.A., Inc.,
  407 S.W.3d 746 (Tex. 2013) ................................................................................35

In re United Servs. Auto. Ass’n,
  307 S.W.3d 299 (Tex. 2010) ................................................................................34

McCarty v. Morrison,
 468 S.W.2d 350 (Tex. 1971). ...............................................................................35

Wilkins v. Methodist Health Care Sys.,
 160 S.W.3d 559 (Tex. 2005) ................................................................................35

Statutes
TEX. GOV’T CODE § 22.201......................................................................................10

TEX. GOV’T CODE § 22.221......................................................................................10

Rules
TEX. R. APP. P. 39.1 .................................................................................................11
TEX. R. CIV. P. 226 ...................................................................................................29
TEX. R. CIV. P. 293 ...................................................................................................35

TEX. R. CIV. P. 294 ...................................................................................................29

Tex. R. Civ. P. 295 ...................................................................................... 24, 32, 33
TEX. R. CIV. P. 300 ...................................................................................................35
TEX. R. CIV. P. 327 ...................................................................................................26
TEX. R. EVID. 606 .....................................................................................................26




                                                           7
                         STATEMENT OF THE CASE

Nature of the case:      Plaintiffs/Real Parties in Interest brought this lawsuit
                         against Defendant/Relator Southcross Energy Partners,
                         GP LLC, alleging negligence and gross negligence
                         stemming from a workplace accident. (MR 309–13) After
                         a five-day trial, the jury returned its verdict in open court.
                         (MR 122–27) The trial court polled the jurors, accepted
                         the verdict, released the jurors from their previous
                         instructions, and discharged the jury. (MR 128–34)
                         Thereafter, Plaintiffs’ counsel interviewed one or more
                         jurors and then asked the trial court to bring the jurors back
                         to the courthouse from their homes to redeliberate because
                         at least one juror mentioned she thought the damages
                         would be multiplied by the court. (MR 186–207) The trial
                         court reconvened the jury, examined the jurors about their
                         deliberative process, accepted jurors’ testimony to
                         impeach the verdict, and ordered the jury to redeliberate
                         and render a new verdict, all over the vociferous
                         objections of Southcross’s counsel. (MR 236–37) The trial
                         court accepted this second verdict and is considering
                         whether the first or second verdict should be entered as a
                         final judgment as Southcross. (MR 245–46)

Trial court:             229th Judicial District Court of Duval County, Texas;
                         Hon. Ana Lisa Garza, presiding.

Trial court’s actions:   After accepting the initial $31 million verdict and
                         discharging the jury, the trial court, based on ex parte
                         communications between Plaintiffs’ counsel and the
                         foreperson, summoned the jury to return to be questioned
                         about their deliberations and the intent of their verdict.
                         Through this improper questioning, the jurors indicated
                         that they thought the numbers they wrote down in the
                         charge would be multiplied and prior to the questioning,
                         they spoke about why they were asked to return to the
                         courthouse. Based on this improperly received evidence,
                         the trial court (after being able to discuss the effect of their
                         verdict with Plaintiffs’ counsel, the court, and amongst
                         themselves) actually allowed the jury to redeliberate and
                                          8
return a second verdict represented by a second set of
numbers written next to the original set. (MR 284–302) The
trial court accepted this second verdict which increased the
first verdict by nearly $141 million.




                9
                       STATEMENT OF JURISDICTION

      This Court has jurisdiction to issue a writ of mandamus when a trial court

abuses its discretion. See TEX. GOV’T CODE § 22.221(a), 22.002(a). Jurisdiction is

proper under section 22.221(b) of the Texas Government Code because the

Respondent is a district court judge in Duval County, Texas, which is one of the

counties within the Fourth Court of Appeals’ district. Id. §§ 22.201(f), 22.221(b).

      Further, this case is important to the jurisprudence of the state because the trial

court’s rulings conflict with the decisions of Texas courts of appeals, are contrary to

procedural and evidentiary rules, and violate the parties’ substantive, constitutional

rights. The trial court’s rulings reconvening the discharged jury after multiple jurors

had communicated with the lawyers on the case, receiving inadmissible evidence to

impeach a jury verdict, and allowing a jury to render a second “verdict” violate

Texas’s long-standing public policy and practice against tainting jury deliberations

and verdicts.




                                          10
              STATEMENT REGARDING ORAL ARGUMENT

      Relator believes that abuse of discretion is apparent from the face of the

record, but respectfully requests oral argument because this issues raised are

important to the jurisprudence of the State of Texas, and argument may significantly

aid the Court in considering the issues presented in this matter. TEX. R. APP. P. 39.1.




                                          11
           REQUEST FOR TEMPORARY EMERGENCY RELIEF

      As detailed in the separate motion filed with this mandamus petition, Relator

asks the Court for a stay of any order or judgment that purports to give any effect to

the “second verdict” returned by the improperly re-impaneled jury around 10 p.m.

on Friday, September 22, 2017. The need for expedited treatment arises from the

fact that the trial court has set a hearing for 9:30 a.m. on Friday, September 29, 2017,

to determine whether she will actually enter judgment on this second verdict.

Because the “second verdict” is a void result of an unauthorized procedure, Relator

respectfully requests that this Court stay the hearing and any action giving effect to

it until the Court has an opportunity to rule on this petition for writ of mandamus.




                                          12
                                    ISSUES PRESENTED

1.      The trial court’s reassembling of the jury and receiving evidence to impeach
        the jury’s first verdict violates the Rules of Procedure, the Rules of
        Evidence, and a century of Texas law. A trial court abuses its discretion if it
        reconvenes a jury after jurors have been discharged and have mingled with
        the lawyers on the case and general public. Here, the trial court ordered the
        jurors back to the courthouse about an hour after the verdict had been accepted
        and the jury was discharged. A majority of the jurors had left the courthouse,
        some jurors had gone home, some to other places, and others talked to
        Plaintiffs’ counsel about the verdict. After being discharged and questioned
        by Plaintiffs’ counsel, the foreperson allegedly informed Plaintiffs’ counsel
        that the verdict was intended to be larger. The trial court, contrary to
        procedural and evidentiary rules, ordered all jurors to return to the courthouse
        and thereafter accepted jurors’ testimony as competent evidence to impeach
        the verdict that had been previously accepted by the trial court. The trial court
        abused its discretion by reconvening the jury and receiving evidence to
        impeach the validity of the verdict. The jurors’ testimony should be
        disregarded and stricken from the record. The trial court’s rulings and actions
        are a clear abuse of discretion, and the second verdict should also be stricken
        from the record.1

2.      The trial court abused its discretion in allowing the jury to redeliberate and
        significantly change its original verdict—after being discharged and
        mingling with Plaintiffs’ counsel. After its erroneous questioning of the
        jurors, the trial court compounded its error by allowing the jury to redeliberate
        after the first verdict. By recalling the discharged jury and ordering it to
        deliberate again, the trial court effectively granted a new trial—but then
        skipped the trial and went right to the verdict. Jurors redeliberated, and
        rendered a new verdict on only the damage awards. This was a clear abuse of
        discretion, and mandamus is appropriate.

3.      The trial court abused its discretion by receiving the second verdict. The first
        verdict was accepted, is complete, and is without “mistake.” In this case,
        Plaintiffs’ counsel had no objections to the final jury charge (in fact, the trial
        court essentially gave Plaintiffs’ counsel the charge they wanted). The jury

1
     By requesting that the erroneous second verdict be stricken from the record, Relator is not
     agreeing to the first verdict. Relator reserves all rights to appeal any judgment based on that
     verdict as well, on the merits.

                                                 13
deliberated the first time for approximately three hours and without questions
to the trial court. The verdict was read in open court and accepted by the trial
court. The jury was polled and then discharged. There is no mistake in the
jury’s verdict—post-verdict regrets and reservations are not mistakes
warranting withdrawal of a verdict. The trial court should have addressed this
verdict in an eventual judgment and should never have summoned the jurors
to return. Allowing the jury to return this second verdict after tainted
questioning was clearly an abuse of discretion for which no adequate remedy
by appeal is available. Because of the significant size of the second verdict
and many implications if such a verdict is given credence in a final judgment,
mandamus is appropriate.




                                   14
                         PRELIMINARY STATEMENT

      The trial court’s unauthorized actions in this case are without an analog in

Texas law. After accepting a $31 million verdict, the court discharged the jury,

released it from its instructions, and sent the jurors home. Plaintiffs’ counsel then

spoke privately with multiple jurors, at least one of whom left this ex parte meeting

telling a tale, unmoored in the charge or any instruction, that the jury had meant for

its award to be multiplied. Without license in Texas law, the court recalled the

released jurors. Contrary to Texas law, it took evidence regarding the jury’s verdict.

On the basis of this evidence, it ordered the jury to deliberate again, and it then

accepted (or “received”) the jury’s tainted, $172 million second verdict.

      This mandamus petition addresses several rulings by the trial court: (1)

ordering the jury to reconvene; (2) accepting testimony to impeach and invalidate

the verdict; (3) undermining the jury’s initial verdict that had been accepted by the

court; (4) ordering the discharged jurors to redeliberate; and (5) allowing the jury to

return a second verdict and “receiving” this “verdict.”

      Relator requests that this Court order the trial court to vacate these orders and

strike the inadmissible evidence on which they were based. The trial court’s actions

violate Southcross’s right to a trial by an untainted jury; are tantamount to ordering

a new trial (and skipping the trial, proceeding directly to a second verdict); and




                                          15
constitute a clear abuse of discretion for which no adequate remedy by appeal exists.

A writ of mandamus should issue.

                                 STATEMENT OF FACTS

        The underlying personal injury and death lawsuit stems from a workplace

accident that occurred during a hot tap procedure. Plaintiffs 2 sued numerous

defendants, including Southcross Energy Partners, GP LLC (“Southcross”). (MR

303) Ivy Gonzalez, the ex-wife of Jesus Gonzalez, Jr., who sustained fatal injuries

during the accident, sued on behalf of the estate of Jesus Gonzalez, Jr. (the “estate”)

and his two minor children, M.R. and M.N. (“Gonzalez children”). Amy and Jesus

Gonzalez, Sr., the parents of Jesus Gonzalez, Jr., sued as wrongful death

beneficiaries (“Gonzalez parents”). Rene Elizondo, who sustained a broken leg in

the accident, also sued Southcross. Plaintiffs alleged negligence and gross

negligence against Southcross. (MR 309)

A.      The jury trial, charge of the court, and first verdict.
        On September 18, 2017, the underlying case was called to trial. Counsel for

both sides announced they were ready to proceed. The jury was selected and then

sworn in by the trial court. After both sides rested and all evidence was closed, the




2
     Real Parties in Interest are referred to herein as “Plaintiffs,” though they were technically
     Defendants/Cross-Plaintiffs below.

                                                16
trial court charged the jury precisely as Plaintiffs requested.3 (MR 323–44) The

jurors affirmed to the court that they understood the jury charge and returned to the

jury room to deliberate. (MR 365) After a few hours of deliberations, the jury

returned a verdict, awarding $11.42 million in economic and non-economic damages

collectively to all Plaintiffs and $20 million in punitive damages to the estate and

Elizondo. (MR 122–27, 284–302)

       The jury’s verdict was announced in open court, without objection. (MR 122–

27) Upon the request of counsel, the jury was polled and jurors affirmed their verdict.

(MR 128–31) With no objection to the verdict and no objection to the jury poll, the

trial court accepted the jury’s verdict. (MR 134) The trial court asked the lawyers to

propose a final judgment to be entered the following week. (MR 136)

       The trial court discharged the jury and released the jurors from the court’s

strict instruction not to talk to any person about the case. (MR 132–33) Their notes

were destroyed as their duties as jurors were over. (MR 232) The jurors then left the

courtroom; most left the courthouse and returned to their homes. (MR 166, 193–

219)




3
    At the charge conference, counsel for Plaintiffs submitted his proposed jury charge. Over
    Southcross’s objections, the trial court granted every definition, instruction, and question
    requested by Plaintiffs’ counsel. (MR 323–44) Plaintiffs’ counsel did not object to the final
    jury charge that was submitted to the jury. (MR 323–44)

                                               17
B.      Discharged jurors talk with the lawyers about the verdict and damages
        award.
        After the 12 jurors were discharged, at least half of them went home. A few

jurors, including the foreperson, stayed near the courtroom and spoke with the

Plaintiffs’ lawyers. The foreperson talked with Plaintiffs’ lawyers about the case and

the verdict. In her conversation with the lawyers for Plaintiffs, it was “brought it to

her attention” that the jury had not awarded the large amounts Plaintiffs’ counsel,

Mr. Rumley, requested in his closing, though she told Plaintiffs’ counsel they

thought the verdict was going to be multiplied after the fact. (MR 189) The

foreperson agreed with Plaintiffs’ counsel that “you can’t put a price on life.” (MR

187) The foreperson then “made phone calls.” (MR 189)

        Another juror, who went home after the verdict, talked to Plaintiffs’ counsel

about the verdict. (MR 201) Apparently on a first name basis with Plaintiffs’

counsel, the juror talked with “Mark” about how it is hard to “put a number on

someone’s life.”4 (MR 201) Other jurors talked to the lawyers about the case and

verdict before they left the courthouse. (MR 166–67, 173)




4
     Mark Gonzalez is listed on the pleadings as counsel of record, along with David Rumley.

                                               18
C.      The trial court orders jurors back to the courthouse, the jurors further
        discuss the verdict in the jury room, and the court accepts evidence that
        impeaches the verdict’s damages award.
        The court conducted a hearing in which Plaintiffs’ counsel, but not defense

counsel, participated. (MR 164) Afterwards, the court instructed all counsel to return

to the courthouse. Over Southcross’s objection, the trial court then reassembled the

discharged jurors in the courthouse. (MR 166) The jury5 was first ordered to the jury

room where they remained together without any instructions and discussed their first

verdict and the effect of their answers for at least 30 minutes amongst themselves.

(MR 173, 176) This was after some of the jurors had met with Plaintiffs’ counsel.

While waiting in the jury room, the foreperson told the jurors that the court had

called them back because they had made a “mistake” by not multiplying the damages

award (by 50). (MR 186–87, 194, 206–07)                      Thus, before being questioned

individually, the jurors—as a group—had an opportunity to discuss their verdict, the

effect of their answers, and the reason they had been called back. (MR 212 (they all

talked about it in the jury room before being called out to testify))

        The court then accepted testimonial evidence from each juror regarding the

verdict and whether each juror had intended to award the amounts that were actually



5
     Because the discharged jurors were not sworn in again, and were not given the mandatory
     instructions for jurors under Rule 226a (“the court must five instructions to the jury panel”),
     the group of former jurors does not constitute a lawful jury. We refer to them as the “jury”
     herein for lack of a word for “former jurors improperly re-assembled.”

                                                 19
stated on the verdict form. (MR 193–219) Most of the jurors said they thought the

numbers would be multiplied (MR 193–219)—although why they thought that given

the clear wording of the standard PJC damages questions is a mystery. One juror

was confused, saying there was “something about a multiplication” but gave no

indication of what number he thought would be multiplied or by how much. (MR

208) Another juror said she thought the numbers would be divided by 15. (MR 211)

One juror said he told the others their numbers would not be multiplied and that the

final number would be what they wrote down. (MR 213–14)

D.    The trial court orders the jury to redeliberate, allows the jury to render
      a second verdict, and then accepts the second verdict.
      After conversations with jurors, Plaintiffs’ counsel asked the trial court to

reexamine the verdict. (MR 224) Specifically, Plaintiffs’ counsel represented to the

trial court that the jury “misunderstood” the jury charge and instructions of the court

regarding the damages. (MR 224) Counsel told the court that the jury believed the

amounts they awarded were on an annual basis and that the court would multiply

those amounts by 50, the life expectancy of Jesus Gonzalez, Jr. (MR 186–87) But

not all of the jurors suffered from this same misapprehension. (MR 212–14)

      Southcross objected to the entire procedure of revisiting the verdict, to taking

evidence to impeach the verdict, instructing the jury to redeliberate after they had

been subject to outside influence, and taking a “second verdict.” (MR 170–79)



                                          20
      After receiving the jurors’ testimony in violation of governing precedents and

Rule 606, urged on by Plaintiffs’ counsel, the trial court accepted the testimony as

credible evidence to impeach the verdict and sent the jury back to deliberate again.

(MR 236–37) The jury was ordered to render their new damages award on the

original jury verdict form. (MR 236) The jury was not sworn in again by the trial

court, and was not given the instructions again about not talking to anyone. The only

instructions the court gave to the jury when she called them back as a group into the

courtroom, and before sending them back to “re-deliberate” were these:

      THE COURT: I am putting you all in jail. Ha, ha I am just kidding. You
      may be seated. Okay, ladies and gentlemen of the jury, what I am going
      to have you all do now I am going to give you a red pen. With the red
      pen you are to write the numbers that you meant to write as per your
      discussions at the bench a while ago. If the numbers change the persons
      that are members in accord with the verdict, then those additional
      people sign with the red pen, if it becomes unanimous in other words. I
      don't know that it will or not but if it does you sign the additional two
      names or one name, whatever it may be. And that's all I am going to
      say. That's all I can say. So here is the red pen, go back to the jury room
      and begin your deliberations.”

(MR 236) (emphasis added)

      After this rather astounding instruction, the jury returned to the jury room,

“redeliberated” for approximately an hour and a half, followed the court’s redlining

instructions, and inserted strikingly inflated new numbers on the same verdict form.

Although a few of the amounts remained the same, most of the individual damages

were increased by using a range of random multipliers, including 1.3, 1.6, 2, 2.5, 17,


                                          21
to 50—clearly showing this is not the result of some scrivener’s error. (Tab 2) While

Plaintiffs’ counsel informed the trial court that the jury’s mistake had to do with

future damages only (MR 175), the jury actually wrote new (and much higher)

numbers down for past damages as well. (MR 292–97) The jurors did not re-sign

the verdict form after the second deliberation, and there is therefore no certificate

for the second “verdict.”

      At the end of the second deliberation, around 10:38 p.m., the trial court

received the second verdict and polled the jury again. (MR 245–46)

                        SUMMARY OF THE ARGUMENT

      The rulings at issue constitute clear abuses of discretion, for which there is no

adequate remedy by appeal. The trial abused its discretion by: (1) reassembling a

jury after they had been discharged and mingled with the lawyers and went home;

(2) receiving evidence to impeach a jury’s verdict that had already been accepted by

the court; (3) allowing the jurors to redeliberate despite the fact that the first verdict

was complete and without conflicting findings or mistake; and (4) receiving a second

verdict which increased the damages by $141 million.

      In sum, the jurors’ testimony should be disregarded and stricken from the

record, as well as the second erroneous verdict. The trial court’s rulings are clear

abuses of discretion, and if not corrected now, there is no adequate remedy on appeal.




                                           22
Mandamus is appropriate to remedy this potentially egregious error before a costly,

erroneous, and damaging verdict is entered into judgment.

                                    ARGUMENT

I.    The trial court’s decision to reconvene the jury and receive evidence to
      impeach the jury’s verdict, and allow that same jury to redeliberate, was
      arbitrary and unreasonable.

      A.     Trial courts are prohibited from reconvening jurors after they
             have been discharged and intermingled with the public.
      Once a jury is discharged from their oaths, they are subject to contact with

and influence by the parties and others so that the jury cannot be reconstituted. See

Caylat v. Houston E. & W. Ry. Co., 113 Tex. 131, 252 S.W. 478, 482–83 (Tex.

1923).

      In this case, the trial court discharged the jury and released jurors from the

court’s strict instruction not to talk to any person about the case. (MR 132) The jurors

left the courtroom. (MR 134) Some jurors went home and others stayed to talk with

Plaintiffs’ lawyers. There is no doubt that the jury in this case was discharged and

spoke to the lawyers and general public about this case and its verdict. (MR 166,

193–219) The foreperson even made phone calls after she talked to Plaintiffs’

counsel about the damages awarded in the case. (MR 189) Because the jury had been

discharged and mingled with the lawyers and public, the trial court was prohibited

from ordering the jury back to the courtroom. See id.; see also Branham v. Brown,




                                          23
925 S.W.2d 365, 368 (Tex. App.—Houston [1st Dist.] 1996, no writ) (it is error to

reconvene a jury after it has been discharged and has mingled with the public).

      In the trial court, Plaintiffs relied on Dietz v. Bouldin, 136 S.Ct. 1885 (2016),

for the proposition that a trial court has inherent power to recall a discharged jury to

continue deliberating. But Dietz does not help Plaintiffs. First, neither of the

preconditions to application of the Dietz rule apply here. Dietz concluded that the

federal district court had an inherent power to recall a jury because the Federal Rules

of Civil Procedure “do not place limits on a [district] court’s ability to rescind a prior

order discharging a jury.” Id at 1893. The Texas Rules, by contrast, limit recall to

specific circumstances not present here. See TEX. R. CIV. P. 295. And the reason for

the discharge in Dietz was a verdict that, on its face, was “legally impermissible.”

136 S.Ct. at 1890. Here, there was no such defect on the face of the verdict; rather,

the court resorted to inadmissible evidence to recall the jury.

      Second, the Dietz court cabined district courts’ inherent power to recall

discharged juries to circumstances in which it could be ensured that the jury was not

tainted after discharge. Id. at 1894 (“Any suggestion of prejudice in recalling a

discharged jury should counsel a district court not to exercise its inherent power.”).

It held that discharge was permissible there because the discharge lasted only a few

minutes and the “jurors did not speak to any person about the case after discharge.”

Id. at 1895. The circumstances here are far different:


                                           24
           • Several jurors had already gone home when recalled, where they could
             have talked to many different people, and the delay lasted much more
             than the “few minutes” approved in Dietz.

           • The jurors talked to many people—most notably to Plaintiffs’ counsel,
             but also the court, court staff, and each other. See id. at 1894 (“Even
             apparently innocuous comments about the case from someone like a
             courtroom deputy such as ‘job well done’ may be sufficient to taint a
             discharged juror . . . .”); id. (warning of the “potential for taint” after
             discharge because “it is not uncommon for attorneys or court staff to
             talk to jurors post-discharge”).

           • Plaintiffs’ counsel advised the foreperson, and through her the entire
             jury, that Plaintiffs would not receive what the jury supposedly
             intended.6 The jury would thus have understood the order to deliberate
             again as an order to arrive at a larger verdict. Cf. id. at 1894–95
             (warning of the possibility that reactions to a verdict will “cause jurors
             to begin to reconsider their decision”).

       Dietz thus does not apply in Texas, and even if it did it would not permit a

jury to deliberate a second time after speaking to a party’s counsel about how it

arrived at its verdict. Rendition of judgment on the tainted second verdict would

violate Southcross’s constitutional right to an impartial jury. See id. at 1893 (“The

inherent power to rescind a discharge order and recall a dismissed jury, therefore,

must be carefully circumscribed, especially in light of the guarantee of an impartial

jury that is vital to the fair administration of justice.”); Hyundai Motor Co. v.




6
    It is not clear whether anyone advised the jurors that their verdict would be reduced by a
    settlement credit.

                                             25
Vasquez, 189 S.W.3d 743, 749 (Tex. 2006) (“The Bill of Rights of the Texas

Constitution guarantees litigants a right to trial by a fair and impartial jury.”)

      B.     Trial courts are expressly prohibited under Rule of Evidence 606
             from receiving evidence to invalidate a jury verdict after the
             verdict has been accepted.
      After the trial court improperly reconvened the discharged jury, it proceeded

to interrogate the jurors about their deliberations, in violation of the long line of case

law cited and Texas Rule of Evidence 606.

      Texas Rule of Evidence 606(b) states:

      During an inquiry into the validity of a verdict or indictment, a juror
      may not testify about any statement made or incident that occurred
      during the jury’s deliberations; the effect of anything on that juror’s or
      another juror’s vote; or any juror’s mental processes concerning the
      verdict or indictment. The court may not receive a juror’s affidavit or
      evidence of a juror’s statement on these matters.
TEX. R. EVID. 606(b)(1) (emphasis added). The Rule provides exceptions for

testimony regarding outside influence on the jury and a juror’s lack of

qualification—neither of which is implicated here. Id. at 606(b)(2).

      A corollary to TRE 606, Texas Rule of Civil Procedure 327(b) states:

      A juror may not testify as to any matter or statement occurring during
      the course of the jury’s deliberations or to the effect of anything upon
      his or any other juror’s mind or emotions as influencing him to assent
      to or dissent from the verdict concerning his mental processes in
      connection therewith, except that a juror may testify whether any
      outside influence was improperly brought to bear upon any juror. Nor
      may his affidavit or evidence of any statement by him concerning a
      matter about which he would be precluded from testifying be received
      for these purposes.

                                           26
TEX. R. CIV. P. 327(b) (emphasis added).

      The Texas Supreme Court has emphasized that Rules 606 and 327 should be

taken at face value: “discovery involving jurors should ordinarily be limited to facts

and evidence relevant to (1) whether any outside influence was improperly brought

to bear upon any juror, and (2) rebuttal of a claim that a juror was not qualified to

serve.” Ford Motor Co. v. Castillo, 279 S.W.3d 656, 666 (Tex. 2009).

      Under Rules 606 and 327, it is clear that evidence of the jury’s mental

impressions and jury deliberations cannot support a new trial. This Court recently

upheld a trial court’s denial of a motion for new trial when the only evidence

consisted of inadmissible affidavits regarding statements made during deliberations.

In In re Estate of McNutt, defendants moved for a new trial based on an allegation

of juror misconduct. No. 04–15–00110–CV, 2016 WL 519732, at *10 (Tex. App.—

San Antonio Feb. 10, 2016, pet. denied). The court noted that, based on Rule 327(b),

“a party may not satisfy its burden of proof to show juror misconduct on any bases

based solely upon the testimony of fellow jurors regarding matters and statements

that occurred during deliberations.” Id. at *11. Because defendants’ evidence

consisted solely of juror affidavits regarding deliberations—which evidence is

inadmissible—the trial court denied defendants’ motion for new trial, and this Court

affirmed on appeal. Id.




                                         27
      But Rule 606 does not apply only to motions for new trial. It makes evidence

of jurors’ mental processes inadmissible for any purposes—including whether to

recall a jury. Indeed, if evidence of the jury’s deliberations cannot support a new

trial, a fortiori it cannot support a new “verdict”—skipping over the new trial.

      This case involves a claim of a “misunderstanding” of the charge, but the

charge is not unclear, and the best that can be said for the juror’s testimony, aside

from it being incompetent under the rules, is that somehow some but not all jurors

believed some but not all of their damages answers would be increased by the court,

despite being told in no uncertain terms by a fellow juror that such was not the case.

(MR 212–14)

      Defense counsel objected to any questioning of the jurors about their verdict

after the verdict had been accepted and the jury dismissed. (MR 170, 179) As the

questioning itself makes clear that the issue in this case concerns not a scrivener’s

error but the jury’s supposed misunderstanding of the charge and a miscalculation

of damages, the jury’s testimony regarding their mental impressions and statements

made during deliberations cannot be used to support either the second verdict or a

new trial. As the Texas Supreme Court has explained, “some reasons underlying the

prohibition of unfettered probing into jury deliberations [include]: (1) keeping jury

deliberations private to encourage candid discussion of a case, (2) protecting jurors

from post-trial harassment or tampering, (3) preventing a disgruntled juror whose


                                         28
view did not prevail from overturning the verdict, and (4) protecting the need for

finality.” Ford Motor, 279 S.W.3d at 666 (citing Golden Eagle Archery, Inc. v.

Jackson, 24 S.W.3d 362, 366–67 (Tex. 2000)).

      C.     Allowing the “jury” to redeliberate and accepting a second verdict
             is a clear abuse of discretion warranting mandamus.
      “Once a jury is discharged from their oaths, they are subject to contact with

and influence by the parties and others so that the jury cannot be reconstituted.”

Caylat, 252 S.W. at 482–83. The group of former jurors called back to the court on

Friday night was not sworn in again as jurors, were not given the mandatory

instructions in Rule 226a, and did not constitute a jury. See TEX. R. CIV. P. 226a.

Their collective writing in red pen on the original verdict form is a complete nullity.

      It is well settled that the purpose of the Rule 294 poll of the jurors at the

conclusion of the trial, under the protection of the Court, “is to afford jurors an

opportunity to express their true convictions” and to ensure that at least ten of the

same jurors agreed to the answers given to each question and that the same ten jurors

agreed to the entire verdict, that is, to the answers to each and every question

submitted. See Branham, 925 S.W.2d 365; TEX. R. CIV. P. 294. Jurors are required

to speak at the time of polling with regard to the members who agreed to the verdict

and not after they have been discharged and have mingled with the public. Once the

Court has accepted the verdict and discharged the jury, it has no authority to later

order the jury to redeliberate.

                                          29
      The trial court in this case abused its discretion when it ordered the former

jurors to redeliberate. Archer Daniels Midland Co. v. Bohall, 114 S.W.3d 42, 46–

47 (Tex. App.—Eastland 2003, no pet.) (concluding that the trial court’s ordering

the jury to deliberate further on corrected jury charge was impermissible). The court

of appeals in Branham v. Brown, 925 S.W.2d 365 (Tex. App.—Houston [1st Dist.]

1996, no writ), held that:

      once the judge had accepted the verdict and discharged the jury, he had
      no authority to later order the jury to redeliberate; he should have
      proceeded to judgment on the original 11–1 verdict. Therefore, we hold
      that the trial court erred in sending the jury back to make any
      corrections or redeliberate on their verdict after the trial court accepted
      the verdict and discharged the jury.

Id. at 368 (emphasis added). Once a jury has been discharged and has mingled with

the public, it is error to reconvene that jury. Id. The trial court here far exceeded her

power by relying on incompetent evidence to impeach a verdict and then handing

the jury a red pen with instructions to go back and write down “what they really

meant to write.” (MR 236)

II.   The trial court’s actions undermining the jury’s initial, sworn verdict
      were an abuse of discretion. The initial verdict was complete, fully
      responsive to the questions in the charge, and not conflicting.
      “A trial court is authorized to set aside a jury verdict which is the result of a

unanimous mistake in the nature of a clerical error, but not when the verdict results

from a misinterpretation of the evidence or the charge of the court.” Adams v.

Houston Lighting & Power, Co., 314 S.W.2d 826, 829 (Tex. 1958).

                                           30
      Here, the trial court refused to accept the first verdict and disallow any further

inquiry into the jury’s deliberations. Instead, the trial court required them to

redeliberate and allowed a wholesale reconsideration of their damage awards.

However, after a verdict is returned and represented to the court as being the verdict,

and it is accepted by the court and the jury discharged, a showing that some of the

jurors (after speaking with counsel, or with the foreperson after she spoke with

counsel) claimed to misunderstand the effect of their verdict or wanted to reconsider

their answers, or even that the verdict was not unanimous, will not impeach or

invalidate the verdict as returned to and accepted by the court. Dilbeck v. Ideal Bread

Co., 562 S.W.2d 563 (Tex. Civ. App.—Texarkana 1978, no writ).

      The trial court agreed to allow these jurors to reconvene and redeliberate on

the basis that the jury somehow thought the court would multiply their amounts. But

a comparison of the initial damages with the subsequent damages does not support

that argument. For instance, some damages remained the same, some were double,

and others were multiplied by 15 or 50. (Tab 2)

      A juror’s doubt, hesitancy, and mental reservations about the verdict do not

destroy a verdict. Branham v. Brown, 925 S.W.2d 365, 368 (Tex. App.—Houston

[1st Dist.] 1996, no writ). A verdict is not destroyed by proof that a juror is not

satisfied with the verdict; that the verdict was reached against a juror’s better

judgment; that the verdict was the result of a compromise; or that the juror voted


                                          31
with the majority under protest. Id. The evidence in the record does not establish

that a mistake in the nature of a clerical error or otherwise was made. To the contrary,

it discloses that the mistake was not in transcribing the verdict, but arose from either

a misunderstanding of the court’s charge coupled with the desire to award more

money.

         Moreover, Texas Rule of Procedure 295 allows a correction of the verdict only

when the purported verdict is “defective.” TEX. R. CIV. P. 295. A verdict is only

defective under the Rule if “it is incomplete or not responsive to the questions

contained in the court’s charge, or the answers to the questions are in conflict.” Id.

Absent one of these limited defects, the verdict acquired the finality of an official

act once it is returned and received by the court. See Branham, 925 S.W.2d at 368.

In fact, before Rule 295 would authorize further instructions to the jury, the verdict

must be incomplete, non-responsive, or conflicting in its answers. See Archer

Daniels Midland Co. v. Bohall, 114 S.W.3d 42, 46 (Tex. App.—Eastland 2003, no

pet.).

         None of the provisions of Rule 295 permitted the trial court to take the action

which it did following the rendition of the jury’s initial verdict that was verified

under oath by jurors. In fact, Plaintiffs have never contended the verdict was

incomplete, non-responsive, or conflicting. All counsel heard the jury’s verdict as it

was read in open court. Counsel then requested that the jury be polled, and the trial


                                           32
court complied. At that time, the trial court announced the jury’s verdict was

accepted. Plaintiffs made no objection to the verdict and did not request the jury be

instructed to resolve any perceived inconsistencies. Rather, the answers returned in

the initial verdict were complete, the answers were responsive to the questions asked,

and the answers were not in conflict. The jury was polled and affirmed the validity

of their verdict, without objection.

      The first challenge to the verdict arose after the jury was discharged and

Plaintiffs’ counsel questioned the foreperson about the amount of damages awarded

in the verdict. Following Plaintiffs’ counsel’s private conversation with the

foreperson, Plaintiffs’ counsel approached the court (after defense counsel had left)

and claimed that the verdict needed to be corrected and jurors should be called back

from their homes because they clearly meant to multiply their numbers.

      To impugn the veracity of a jury’s verdict based on post-verdict remorse after

talking to Plaintiffs’ counsel, especially when the verdict is complete, responsive,

and consistent, is expressly prohibited by the Texas Rules of Procedure. See TEX. R.

CIV. P. 295. The trial court abused its discretion, and there is no adequate remedy on

appeal if not corrected by this Court.




                                         33
III.   There is no adequate remedy by appeal.
       The trial court’s actions since the original verdict are an affront to Texas law.

It has been acting contrary to law, and it has expressed an intent to continue to do so

by requesting briefing and even entertaining the idea that the second verdict is

somehow valid. But the harms that stem from the trial court’s threatened judgment—

to both Southcross and the judicial system—go beyond what can be remedied by an

appeal.

       The Supreme Court has explained that “extraordinary circumstances . . .

warrant[] extraordinary relief, even though it” might typically be unavailable. In re

United Servs. Auto. Ass’n, 307 S.W.3d 299, 313–14 (Tex. 2010); see also In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (explaining that an

appellate remedy is inadequate when “the benefits [of mandamus] outweigh the

detriments”). Here, the circumstances are truly extraordinary: the trial court has

suggested a willingness to set aside a verdict that was duly returned and accepted,

and instead render judgment on a verdict that is the result of ex parte

communications between a discharged jury and Plaintiffs’ counsel, among others.

These actions undermine the judicial system, and they will encourage counsel in

other cases to act similarly and hope for the best. This, in turn, will result in more

calls to change or abandon the jury system entirely. This court should quash the trial

court’s dangerous course of action before it goes any further.


                                          34
      There can be “only one verdict in a case, and it is the one accepted and ordered

filed by the trial court.” Faulk v. Bluitt, 211 S.W.3d 418, 421 (Tex. App.—Waco

2006, pet. denied) (emphasis added) (citing McCarty v. Morrison, 468 S.W.2d 350,

351–52 (Tex. 1971)). The trial court here received the jury’s first verdict. (MR 134)

TEX. R. CIV. P. 293. At that point, its duties were effectively ministerial: it had to

render judgment on the verdict unless it was set aside, a new trial was granted, or

judgment was granted notwithstanding the verdict. TEX. R. CIV. P. 300. By recalling

the discharged jury and ordering it to deliberate again, the trial court effectively

granted a new trial—but then skipped the trial and went right to the verdict. Worse,

the second verdict was rendered by an uncharged, uninstructed, and badly tainted

jury, in violation of Southcross’s constitutional rights. This roundabout procedure is

reviewable by mandamus in the same manner as any trial court order granting a new

trial after a verdict. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 762

(Tex. 2013) (allowing mandamus review where trial court’s new-trial order “lack[s]

substantive merit”); Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563

(Tex. 2005) (permitting mandamus where the trial court orders a new trial based on

an erroneous finding of conflict in the verdict).

      Toyota shows that if the trial court is allowed to render judgment on the second

verdict, things will already have gone too far. See Toyota, 407 S.W.3d at 762

(vacating the new-trial order and ordering the trial court to “render judgment on the


                                          35
[original] verdict”). Because appellate courts review judgments, not interlocutory

orders, this Court may not be able to vacate through appeal the unauthorized actions

that led the trial court to this point: its recall of the jury, its taking of inadmissible

evidence, its reseating a tainted jury, and its receipt of that second tainted jury’s

verdict. It is only mandamus that would allow this Court to vacate all of these

proceedings, leaving the trial court with a clean slate—and only the original verdict.

      By doing so, this Court would also head off the procedural problems that will

inevitably follow Southcross prevailing in an appeal from judgment on the second

verdict. Once the court of appeals vacates the judgment, the case will be remanded—

but for what? Will Plaintiffs be allowed to elect to recover under the previous

verdict? There is no precedent for a trial court even accepting two separate verdicts,

let alone for a plaintiff electing among them. How the trial court ought to proceed

will be a tough question that the parties will undoubtedly expend substantial

resources litigating in the trail court and on appeal. But these problems can be

avoided today by vacating the trial court’s actions after accepting the first verdict,

allowing the parties to engage in the typical post-verdict and post-judgment practice.

      Judgment on the second verdict, nugatory though it is, also subjects

Southcross to substantial monetary and business harms. This huge judgment will

affect the market. It will be costly to bond. And it will, of course, require the

expenditure of resources on a costly but pointless appeal, as Southcross’s appeal


                                           36
from judgment on the second verdict will have to challenge not only the trial court’s

unauthorized procedure, but the judgment’s (lack of) merits and the trial court’s

other errors. Most of this work, though, will then have to be duplicated if the trial

court on remand renders judgment on the first verdict. Mandamus is appropriate to

spare Southcross these costs. Cf. In re Team Rocket, L.P., 256 S.W.3d 257, 263 (Tex.

2008) (granting mandamus where trial court’s abuse of discretion threatened to

“result in an irreversible waste of resources”); Prudential, 148 S.W.3d at 136 (Tex.

2004) (holding that mandamus is appropriate to “spare private parties and the public

the time and money utterly wasted enduring eventual reversal of improperly

conducted proceedings”).

                                   CONCLUSION

      The trial court abused its discretion and acted well outside its authority. Its

actions caused injuries that cannot be righted on appeal. Mandamus relief is

appropriate. Relator requests that this Court issue an order requiring the trial court

to (1) vacate its ruling reconvening the jury; (2) strike the testimonial evidence

accepted by the trial court to invalidate the verdict; and (3) vacate the trial court’s

receipt of the second verdict. The trial court’s rulings violate Southcross’s right to a

trial by an impartial and untainted jury and constitute a clear abuse of discretion for

which no adequate remedy by appeal exists. A writ of mandamus should issue




                                          37
accordingly. Relator prays for any other relief, at law or in equity, to which it may

be entitled.

                                       Respectfully submitted,

                                       By:    /s/ Jessica Z. Barger
                                              Thomas C. Wright
                                              State Bar No. 22059400
                                              wright@wrightclose.com
                                              Jessica Z. Barger
                                              State Bar No. 24032706
                                              barger@wrightclose.com
                                              E. Marie Jamison
                                              State Bar No. 24044647
                                              jamison@wrightclose.com
                                              Elizabeth H. Rivers
                                              State Bar No. 24052020
                                              rivers@wrightclose.com
                                              WRIGHT & CLOSE, LLP
                                              One Riverway, Suite 2200
                                              Houston, TX 77056
                                              713-572-4321 Telephone
                                              713-527-4320 Facsimile

                                              Wallace B. Jefferson
                                              State Bar No. 00000019
                                              wjefferson@adjtlaw.com
                                              Rachel A. Ekery
                                              State Bar No. 00787424
                                              rekery@adjtlaw.com
                                              Nicholas Bacarisse
                                              State Bar No. 24073872
                                              nbacarisse@adjtlaw.com
                                              ALEXANDER DUBOSE JEFFERSON &
                                              TOWNSEND LLP
                                              515 Congress Avenue, Suite 2350
                                              Austin, Texas 78701



                                         38
                                              (512) 482-9300
                                              (512) 482-9303 (facsimile)

                                              Counsel for Relator



                        RULE 52.3(J) CERTIFICATION

      I certify that I have reviewed the foregoing petition for writ of mandamus and
have concluded that every factual statement in the petition is supported by competent
evidence included in the appendix or record.

                                       /s/ Jessica Z. Barger
                                       Jessica Z. Barger



                      CERTIFICATE OF COMPLIANCE

       I certify that this Petition for Writ of Mandamus complies with the typeface
and word-count requirements set forth in the Rules of Appellate Procedure. This
Petition for Writ of Mandamus has been prepared using Microsoft Word, in 14-point
Times New Roman font for the text and 12-point Times New Roman font for any
footnotes. This Petition contains 5,983 words, as determined by the word count
feature of the word processing program used to prepare this document (Microsoft
Word), excluding those portions of the petition exempted by TEX. R. APP. P.
9.4(i)(1).

                                       /s/ Jessica Z. Barger
                                       Jessica Z. Barger




                                         39
                         CERTIFICATE OF SERVICE

      I certify that on September 27, 2017, a true and correct copy of the foregoing
was served upon the following counsel of record in accordance with the Texas Rules
of Appellate Procedure.

Ernest P. Gieger, Jr.               Via Email egieger@glllaw.com
Brendan P. Doherty                  Via Email bdoherty@glllaw.com
Gieger, Laborde & Laperouse, L.L.C.
5151 San Felipe, Suite 750
Houston, Texas 77056

David Rumley                      Via Email drumley@wigrum.com
Ross W. Evans                     Via Email revans@wigrum.com
Wigington Rumley Dunn & Blair, L.L.P.
123 N. Carrizo Street
Corpus Christi, Texas 78401

Mark A. Gonzalez                      Via Email mgon3@yahoo.com
Attorney at Law
924 Leopard Street
Corpus Christi, Texas 78401

Baldemar Gutierrez                    Via Email balde@gutierrezlawfirm.com
J. Javier Gutierrez                   Via Email javier@gutierrezlawfirm.com
Ana Gutierrez Castillo                Via Email ana@gutierrezlawfirm.com
The Gutierrez Law Firm, Inc.
700 E. Third St.
Alice, Texas 78332

Russell S. Post                       Via Email rpost@beckredden.com
Chad Flores                           Via Email cflores@beckredden.com
Mary Kate Raffetto                    Via Email mkraffetto@beckredden.com
Beck Redden
1221 McKinney, Suite 4500
Houston, Texas 77010-2010

Bryan K. Harris                       Via Email bkharris@lilesharris.com
Kevin W. Liles                        Via Email kevin@lilesharris.com
Stuart R. White                       Via Email swhite@lilesharris.com
                                        40
Liles Harris White, PLLC
500 North Water Street, Suite 800
Corpus Christi, Texas 78401-0232

Honorable Ana Lisa Garza             Via Email egonzalez@co.starr.tx.us
229th District Court of Duval County Via Email elida.duenez@co.duval.tx.us
P.O. Box 1070                        Via Overnight Mail
San Diego, TX 78384


                                    /s/ Jessica Z. Barger
                                    Jessica Z. Barger




                                      41
                              APPENDIX

Tab 1:   Verdict (first and second combined)

Tab 2:   Verdict Chart




                                   42
          Tab 1
         Verdict
(first and second combined)
           n a n ,- ··
           k " , .•• \... ..

                                          Cause No. DC- 16-139
   IVY GONZALEZ ON BEHALF
                            OF           §
   M.R. GONZALEZ AND M.N. GO
                              NZALEZ,    §
   MINOR CH ILDREN
   AND                                   §
  AMY AND JESUS GONZALEZ                §
                           , SR., AS    §
  HEIRS AT LAW OF JESUS GO
                           NZALEZ, JR.; §
  AND RENE ELIZONDO
                                        §
             Plaintiffs
  vs.                                   §                         229TH JUDICIAL DISTRICT
                                                          §
                                                          §
                                                            ~ : FILED AT " ; I O'CLOCK    z.          L
  SOUTHCROSS ENERGY PART
                        NERS GP,                         §
  LLC,                                                                   SEP 2 2 2017
                                                         §
                 Defendant.
                                                         §               R. BARTON, CLERK
                                                                Di~
                                                         §      BY    I
                                                                       ~
                                                                                      t
                                                                            RKc f;ZAl COUNTY. TEXAS
                                                                                   fin µ.
                                                         § DUVALCOUNT ,T EXAS ./ OEPUTY

                                    CH ARGE OF TH E CO UR T
                                                               R.t., !   FILED AT   I()! 'f O O'CLOCK .fJi
                                                                                    SEP 2 2 2017
  M. b      f the J .
   cm ers o        ury.
  After the closing arguments.
                                                                         ~~J!ruR.~BAR·/TOtJ
                                                                                          ., CLERK
                                                                                              : ~ l~
                                   you will go to the jury room
  questions that are attached, and                                to decide the case. answer the
                                   reach a verdict. You may discus
  when you are all together in the                                 s the case with other jurors only
                                   jury room.
  Remember my previous instru
                                 ctions: Do not discuss the cas
  person or by any other means                                    e with anyone else, either in
                                . Do not do any independent
 conduct any research. Do not loo                                im estigation about the case or
                                  k up any words in dictionaries
 information about the case on the                                or on the Internet. Do not post
                                    Internet. Do not share any specia
 with the other jurors. Do not                                       l knowledge or experiences
                                 use your phone or any other
 deliberations for any reason.                                    electronic device during your

  Any notes you have taken are
                                for your O\\ n personal use. You
 the jury room and consult them                                    may take your notes back into
                                   during deliberations, but do not
 your fellow jurors during your                                       show or read your notes to
                                deliberations. Your notes are not
 rely on your independent recoll                                   e\ idence. Each of you should
                                 ection of the evidence and not
another juror has or has not tak                                   be influenced by the fact that
                                 en notes. You must leave you
you are not deliberating. The                                     r notes with the bailiff when
                                 bailiff will give your notes to
them from you. I will make                                          me promptly after collecting
                                sure your notes are kept in a
disclosed to anyone. After you                                    safe, secure location and not
                                comple te your deliberations, the
When you are released from                                         bailiff will collect your notes.
                               jury duty, the bailiff will promp
nobody can read what you wrote.                                   tly destroy your notes so that
                                  Herc arc instructions for answerin
                                                                    g the questions.
                                         Page I of~ C \.~
                                                                                                   MR 284
     1.    Do not let bias, prejudice, or sympathy play any part in your decision.

 2.        Base your answers only on the evidence admitted in court and on the law that is in these
           instructions and questions. Do not consider or discuss any evidence that was not
           admitted in the courtroom.

 3.        You are to make up your own minds about the facts. You are the sole judges of the
           credibility of the witnesses and the weight to give their testimony. But on matters of law,
           you must follow all of my instructions.

 4.        If my instructions use a word in a way that is different from its ordinary meaning, use the
           meaning l give you, which will be a proper legal definition.

 5.        All the questions and answers are important. No one should say that any question or
           answer is not important.

 6.        Answer "yes" or ''no" to all questions unless you are told otherwise. A "yes" answer must
           be based on a preponderance of the evidence unless you are told otherwise. Whenever a
           question requires an answer other than "yes" or "no,'' your answer must be based on
           a preponderance of the evidence unless you are told otherwise.

          The tenn ''preponderance of the evidence" means the greater weight of credible evidence
          presented in this case. If you do not find that a preponderance of the evidence supports a
          "yes" answer, then answer "no." A preponderance of the evidence is not measured by the
          number of witnesses or by the number of documents admitted in evidence. For a fact to
          be proved by a preponderance of the evidence, you must find that the fact is more
          likely true than not true.

          A fact may be established by direct evidence or by circumstantial evidence or both. A
          fact is established by direct evidence when proved by documentary evidence or by
          witnesses who saw the act done or heard the words spoken. A fact is established
          by circumstantial evidence when it may be fairly and reasonably inferred from other
          facts proved.

7.        Do not decide who you think should win before you answer the questions and then just
          answer the questions to match your decision. Answer each question carefully without
          considering who will win. Do not discuss or consider the effect your answers will have.
          Do not answer questions by drawing straws or by any method of chance.

8.        Some questions might ask you for a dollar amount. Do not agree in advance to decide on
          a dollar amount by adding up each juror's amount and then figuring the average.

9.        Do not trade your answers. For example, do not say, "I will answer this question your
          way if you answer another question my way."



                                            Page   2ol'~-"'
                                                                                              MR 285
I 0.   Unless otherwise instructed, the answers to the questions must be based on the decision
       of at least l O of the I2 jurors. The same IO jurors must agree on every answer. Do not
       agree to be bound by a vote of anything less than l O jurors, even if it would be a
       majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the tMpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.




                                                  .., "'t
                                        Page3 of ~
                                                                                        MR 286
                                      DEFINITIONS
''Southcross" means Southcross Energy Partners GP, LLC. Southcross includes the acts of its
employees acting in the scope of their employment if they are acting in the furtherance of the
business of their employer.

"Funnanite" means Furmanite Corporation, Furmanite America, Inc., and/or Funnanite US
GSG LLC. Funnanite includes the acts of its employees acting in the scope of their
employment if they are acting in the furtherance of the business of their employer.




                                               .~ oV\
                                      Page 4 of'i<
                                                                                     MR 287
                                                Question No. I

 Did the negligence, if any, of those named below proximately cause the injuries in question'!

"Negligence" means failure to use ordinary care, that is, failing to do that which a person
of ordinary prudence would have done under the same or similar circumstances or doing that
which a person of ordinary prudence would not have done under the same or similar
circumstances.

"Ordinary care" means that degree of care that would be used by a person of ordinary prudence
under the same or similar circumstances.

" Proximate cause" means a cause that was a substantial factor in bringing about an occurrence,
and without which cause such occurrence would not have occurred. In order to be a proximate
cause, the act or omission complained of must be such that a person using ordinary care would
have foreseen that the occurrence, or some similar occurrence, might reasonably result
therefrom. There may be more than one proximate cause of an injury.

Answer ''Yes" or "No" for each of the following:



       ;:::::~:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ~~~~:~:::~~~~~~~
(a)

(b)




                                              Page 5   ofl      ,it
                                                                                                          MR 288
If you answered "yes" to both subparts of Question No. I, then answer the following question.
Otherwise, do not answer the following question.
                                                   Question No. 2

Assign percentages of responsibility only to those you found caused or c-0ntributed to cause the
injuries. The percentages you find must total I00 percent. The percentages must be expressed in
whole numbers. The percentage of responsibility attributable to any one is not necessarily
measured by the number of acts or omissions found. The percentage attributable to any one need
not be the same percentage attributed to that one in answering another question.

For each person you found caused or contributed to cause the injuries, find the percentage of
responsibility attributable to e<1ch:

(a)    Southcross .. ............................................................................ Answer: _ _'7
                                                                                                             _._0.;;___ __
(b)                                                                                                      . ._~0.__
       Furmanite ..............................................................................Answer: _ _   6 ___
                                                                                     Total:                  100%




                                                                                                                    MR 289
If you answered "yes" to Question No. J(b) regarding Furmanite's negligence, then answer the
following question. Otherwise, do not answer the following question.
                                        Question No. 3

 Did the failure to ensure that the hot tap was performed by a crew qualified to make hot taps
 proximately cause the injuries in question?

Answer "Yes·' or No."
                 0




Answer:   --8~-""l-{.,.~~.cJ. ______




                                                                                      MR 290
If you answered "yes" to Question No. l(b) regarding Funnanite's negligence, then answer the
following question. Otherwise, do not answer the following question.
                                                    Question No. 4

Did the hot tap work that Southcross hired Funnanite to do meet any of the following conditions?

      a.   Did it involve a special danger to others which Southcross knew or had reason
to know was inherent in or nonnal to the work?

Answer '"Yes" or "No" .............................................................. ........ Answer: - ~~,q::.
                                                                                                           .=.:;:___ _

      b.      Was it likely to create during its progress a peculiar risk of physical hann to others
unless special precautions were taken?

Answer "Yes" or "No" ...................................................................... Answer: - - ,~ -=1a:::...
                                                                                                               "_ _

      c.      Did it threaten a grave ri sk of serious bodily hann or death unless the
instrumentalities used were carefully maintained?

Answer "Yes" or "No" ...................................................................... Answer:   --8£A.,. .,a.J"""-- -




                                                                                                                   MR 291
If you answered "yes'' to either subpart in Question No. 1, then answer the following question.
Otherwise, do not answer the following question.
                                                    Question No. S

 What sum of money, if paid now in cash, would fairly and reasonably compensate Maygan
 Gonzalez and Mia Gonzalez for their damages, if any, resulting from the death of her father,
 Jesus Gonzalez, Jr.?

 Consider the following elements of damages, if any, and none other. Do not award any sum of
 money on any element if you have otherwise, under some other element, awarded a sum of
 money for the same loss. That is, do not compensate twice for the same loss, if any. Do not
 include interest on any amount of damages you find.

For elements (c)-( t) of damages listed below, you may consider the relationship between
Maygan Gonzalez and Mia Gonzalez and their father, Jesus Gonzalez, Jr., their living
arrangements, any extended absences from one another, the hannony of their family relations,
and their common interests and activities.

Answer separately in dollars and cents for damages, if any.

(a)    Pecuniary loss sustained in the past:

       "Pecuniary loss'' means the loss of the care, maintenance, suppon, services,
       advice, counsel, and reasonable contributions of a pecuniary val ue, excluding loss
       of inheritance, that Maygan Gonzw~. .,aii~._Mia Gonzalez in reasonable
       probability, would have received from lD'fat~      esus Gonzalez, Jr. had he lived.                o,Y
       Maygan Gonzales .......................................................... Answer: S ct00. QQO • 10 000,000
                                                                                                                  1
                                                                                                    '     <P
       Mia Gonzales .................... ................................... ......... Answer: $ aOO 000 . I o,OOJ I ooo
                                                                                                    1
(b)    Pecun iary loss that, in reasonable probability, will be sustained in the future:
                                                                                                             ~
       Maygan Gonzales ........... ............................................... Answer: S     t 00,000. 5,,000 ,ooo
                                                                                                             oO
       Mia Gonzales ................................................................ Answer: S   loo, 000.    s ,000,00°




                                                                                                          MR 292
 (c)    Loss of companionship sustained in the past:

        "Loss of companionship and society" means the loss of the positive benefits
        flowing from the love, comfort, companionship, and society that Maygan
        Gonzalez and Mia Gonzalez in reasonable probability, would have recei ved from
        their father, Jesus Gonzalez, Jr. had he lived:                                                       oy
        Maygan Gonzales.......................................................... Answer: $    SQ O.QQQ . t ,000,00O
       Mia Gonzales ................................................................ Answcr: s 5() ~ OQD. ~ ,ooq(KJJ
(d)    Loss of companionship that, in reasonable probability. will be sustained in the future:

       Maygan Gonzales.......................................................... Answer: S       500 1 OQQ · 0~~ 5/X/J, 000
       Mia Gonzales ............... ............................................... Answer: S    5001000    ~ d 5/J.XJ/fJ0
(e)    Mental anguish sustained in the past:

       "Mental anguish" means the emotional pain, tonnent, and suffering experienced
       by Maygan Gonzalez and Mia Gonzalez because of the death of their father. Jesus
       Gonzalez, Jr.

       Maygan Gonzales........................................................ Answer: S        JQ01Q()O . oY0 500 000I

       Mia Gonzales ........................ ............................... ........ Answer: S ~ 0 0 000 . 9,75 00, 000
                                                                                                     1
(f)    Mental anguish that, in reasonable probability, will be sustained in the future:

       Maygan Gonzales.......................................................... Answer:   saoo,ooo.        ;p'
                                                                                                                  10,000,COO
       MiaGonzales ................................................................ Answer: s   aiOO ,(JOO <jJ- 10,oo0,ooo




                                                          ;,
                                                   Page lOo~
                                                                    \~

                                                                                                           MR 293
If you answered "yes" to either subpa rt in Question No. I, then answer the following question.
Otherwise, do not answer the following question.
                                                  Question No. 6

 What sum of money, if paid now in cash, would fairly and reasonably compensate Amy
 Gonzalez and Jesus Gonzalez, Sr. for their damages, if any. resulting from the death of
 their son, Jesus Gonzalez, Jr.?

Consider the following elements of damages, if any, and none other. Do not award any sum of
money on any element if you have otherwise, under some other element, awarded a sum
of money for the same loss. That is, do not compensate twice for the same loss, if any. Do
not include interest on any amount of damages you find.

For elements (c)-(f) of damages listed below, you may consider the relationship between
Amy Gonzalez and Jesus Gonzalez, Sr. and their son. Jesus Gonzalez, Jr. , their living
arrangements, any extended absences from one another, the harmony of their family relations,
and their common interests and activities.

Answer separately in dollars and cents for damages, if any.

(a)    Pecuniary loss sustained in the past:

       "Pecuniary loss" means the loss of the care, maintenance, support, services,
       advice, counsel, and reasonable contributions of a pecuniary value, excluding
       loss of inheritance, that Amy Gonzalez and Jesus Gonzalez, Sr. in reasonable
       probability, would have received from their son. Jesus Gonzalez. Jr. had he lived. ~

       AmyGonzales ............................................................... Answer:S  (00 .CJQO · :--Q501QQQ
                                                                                                 r      "
       Jesus Gonzalez, Sr......................................................... Answer: S \ 00 00 D, J50 00 0
                                                                                                                 1

(b)    Pecuniary loss that, in reasonable probability, will be sustained in the future:                  ~

       Amy Gonzales ............................................................. Answer: S \   00 I OOQ . ~ ,QoCJ,CCo
       Jesus Gonzalez, Sr........................................................ Answer: S   \ 00 OQ O. 3) 000 0::::0
                                                                                                                     1
                                                                                                  1




                                                                                                        MR 294
(c)    Loss of companionship and society sustained in the past:

      "Loss of companionship and society· means the loss of the positive benefits
      flowing from the love, comfort, companionship. and society that Amy Gonzalez
      and Jesus Gonzalez, Sr. in reasonable probability, would have received from
      their son, Jesus Gonzalez, Jr. had he lived.

      AmyGonzales .............................................................. Answer:   s 150 Qo D~o/50 000
                                                                                                   I        .>_9.       I
      Jesus Gonzalez, Sr....................... ................................ Answer:   SI50 I ODO · cJ50 I (X)O
(d)   Loss of companionship that, in reasonable probability, will be sustained in the future:

      AmyGonzales ............................................................... Answer: S   ISO 1000 . oY4 , 50O/X:P
      Jesus Gonzalez, Sr.························ .............................. Answer:   s Iso.I rod . ~4 ,c.;oo,OCJJ
(e)   Mental anguish sustained in the past:

      "Mental anguish" means the emotional pain, torment, and suffering experienced
      by that Amy Gonzalez and Jesus Gonzalez, Sr. in reasonable probability, would
      have received from their son because of the death of their son, Jesus Gonzalez, Jr.

      AmyGonzales............................................................... Answer: S    f 5{), OGO. v7& 50 ,000
      Jesus Gonzalez, Sr. ........................................................ Answer:$   I:) 0,   000.~d 50 1000
(I)   Mental anguish that, in reasonable probability, will be sustained in the future:                     1/12

      AmyGonzales .. ............................................................ Answer: S   1so, OcxJ. ~          4 ,soo,000
      Jesus Gonzalez, Sr...................... ............................... Answer: S      15'0 I 000. >-l, 500,000




                                                  Page
                                                         iA~
                                                         \tot)/
                                                                                                          MR 295
If you answered "yes" to either subpart in Question No. l, then answer the following question.
Otherwise, do not answer the following question.
                                                 Question No. 7

What sum of money would have fairly compensated Jesus Gonzalez, Jr. for his physical pain
and mental anguish?

       "Pain and mental anguish" means the conscious physical pain and emotional
       pain, torment, and suffering experienced by Jesus Gonza lez, Jr., before his
       death as a result of the occurrence in question.

Answer in dollars and cents for damages, if any.                                                                   o/
        Physical pain and mental anguish ................................................. Answer:   850,c)QQ .
                                                                                                 14,450,000




                                                         J~
                                                 Page \~ ~
                                                                                                          MR 296
If you answered "yes" to either subpart in Question No. \, then answer the following question.
Otherwise, do not answer the following question.
                                                     Question No. 8

 What sum of money, if paid now in cash, would fairly and reasonably compensate Rene
 Elizondo, for his injuries, if any, resulting from injuries in question"

Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some
other element, awarded a sum of money for the same loss. That is, do not compensate twice for
the same loss, if any. Do not include interest on any amount of damages you find.

 Answer separately in dollars and cents for damages, if any.

(a)     Physical pain and mental anguish sustained in the past.. ........ Answer:                      IDOI 000 .~ so,ooo
(b)     Physical pain and mental anguish that. in reasonable                                                                       D)'
        probability, Rene Elizondo will sustain in the future . ............ Answer:                           50, ooo. a,soo,ooo
(c)     Loss of earning capacity Rene Elizondo                                                                                 #
        sustained in the past. ............................................................... Answer: -->~4-0~,'-"0,.,Q.._O
                                                                                                                          .,,_._
                                                                                                                     i

(d)     Loss of earning capacity that Rene Elizondo, in reasonable                                                                  p
                                                                                             ! .ctf) CJ:JJ.
        probability, will sustain in the future ...... ................................ Answer:
                                                                                              y     1       ~
(e)     Disfigurement sustained in the past.·········· ............................. Answer: ,2 00,000 . Psoo, OCXJ

(f)     Disfigurement that, in reasonable probability,                                          ()(J)       o/,
        Rene Elizondo will sustain in the future ................................. Answer: {l                            f   000.o}_ ,OOO ,<XJ.
(g)     Physical impainnent sustained in the past. ... .......................... Answer:                  ~ 00 1000              . 5 0 O, 000
(h)     Physical impainnent that, in reasonable                                                        I       ~         0        D~
        probability, Rene Elizondo will sustain in the future ............. Answer:                        ,-oo ,oo . ~,ooo,OCP
(i)     Medical care expense that, in reasonable
        probability, Rene Elizondo will sustain in the future ............ Answer:
                                                                                                       I
                                                                                                           j
                                                                                                               t--oo (X)O .~;)/Xf),O(J.
                                                                                                               ::>           1




                                                                                                                                 MR 297
If you have unanimously answered "yes" to Question No. l(a), then answer the following question.
Otherwise, do not answer the following question.
                                          Queslion No. 9

To answer "Yes" to the following question, your answer must be unanimous. You may answer
"No" to the following question only upon a vote of ten or more jurors. Otherwise, you must not
answer the following question.

Do you find by clear and convincing evidence that the harm to Jesus Gonzalez, Jr. and Rene
Elizondo resulted fi-om gross negligence attributable to Southcross?

       "Clear and convincing evidence" means the measure or degree of proof that produces a firm
       belief or conviction of the truth of the allegations sought to be established.

       "Gross negligence" means an act or omission by William Boyer,

        l.     which when viewed objectively fi-om the standpoint of William Boyer at the time of
               its occurrence involves an extreme degree of risk, considering the probability and
               magnitude of the potential harm to others; and

       2.      of which William Boyer has actual, subjective awareness of the risk involved, but
               nevertheless proceeds with conscious indifference to the rights, safety, or welfare of
               others.

You are further instructed that Southcross may be grossly negligent because of an act by William
Boyer if, but only if (a) Southcross Energy Partners GP, LLC authorized the doing and the manner
of the act, or (b) William Boyer was unfit and Southcross was reckless in employing him, or (c)
William Boyer was employed as a vice-principal and was acting in the scope of employment, or (d)
Southcross or a vice-principal ofSouthcross ratified or approved the act.

The term "vice-principal" means: (a) a corporate officer; (b) a person who has authority to employ,
direct, and discharge an employee of Southcross; (c) a person engaged in the performance of
nondelegable or absolute duties of Southcross; (d) a person to whom Southcross has confided the
management of the whole or a department or division of the business of Southcross.

       Answer "Yes'' or "No."

 Answer:~
        ~ """-'
           Q/)""6-- -




                                                                                           MR 298
If you have unanimously answered "yes" to Question No. 9, then answer the following question.
Otherwise, do not answer the following question.
                                          Question No. I 0

You are instructed that you must unanimously agree on the amount of any award of exemplary
damages.

\\.'hat sum of money, if any, should be assessed against Southcross and awarded to Jesus Gonzalez,
Jr. or Rene Elizondo as exemplary damages for the conduct you found in response to Question 9?

       "Exemplary damages" means any damages awarded as a penalty or by way of
       punishment but not for compensatory purposes. "Exemplary damages" includes
       punitive damages.

        Factors to consider in awarding exemplary damage, if any, are -

       a.        The nature of the wrong.
       b.        The character of the conduct involved.
       c.        The degree of culpability of the wrongdoer.
       d.        The situation and sensibilities of the parties concerned.
       e.        The extent to which such conduct offends a public sense of justice and prbpriety.

Answer in dollars and cents, if any, as to each of the following:

        Ivy Gonzalez, as Administrator of the Estate ............. Answer: S                       I15 ,Q(JJ 1000 . oY
        of Jesus Gonzalez, Jr.

         Rene Elizondo. . ............................................................ Answer: S   5 1WJ, ooO. if




                                                                                                             MR 299
                                         Presiding Juror

I.     When you go into the jury room to answer the questions, the first thing you will need to
       do is choose a presiding juror.

2.     The presidingjuror has these duties:

       a.     have the complete charge read aloud if it will be helpful to your deliberations;

       b.     preside over your deliberations, meaning manage the discussions, and see that you
              follow these instructions;

       c.     give written questions or comments to the bailiff who will give them to the judge;

       d.     write down the answer you agree on;

       e.     get the signatures for the verdict certificate; and

       f.      notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? lf you do not, please tell me now.




                                                                                           MR 300
                       Instructions for Signing the Verdict Certificate

I.     Unless otherwise instructed, you may answer the questions on a vote of IO jurors. The
       same IO jurors must agree on every answer in the charge. This means you may not have
       one group of 10 jurors agree on one answer and a different group of 10 jurors agree on
       another answer.

2.     If IO jurors agree on every answer, those IO jurors sign the verdict. If 11 jurors agree on
       every answer, those 11 jurors sign the verdict. If all 12 of you agree on every answer,
       you are unanimous and only the presiding juror signs the verdict.

3.     All jurors should deliberate on every question. You may end up with all 12 of you
       agreeing on some answers, while only IO or 11 of you agree on other answers. But when
       you sign the verdict, only those IO who agree on every answer will sign the verdict.

4.     There are some special instructions before Questions 9 and IO explaining how to
       answer those questions. Please follow the instructions. If all twelve of you answer those
       questions, you will need to complete a second verdict certificate for those questions.

Do you understand these instructions'? If you do not, please tell me now.




                                                                                          MR 301
    •
'
                                                 Verdict Certificate

         Check one:

                Our verdict is unanimous. All twelve of us have a~'Teed to these answers. The presiding
                juror has signed the certificate for all twelve of us.


                Signature of Presiding Juror                  Printed Name of Presiding Juror
                                                     e>tl ~
         j_     Our verdict is not unanimous. Ten or eleven of us have agreed to these answers and
                those ten or eleven have signed the certificate below.

                Signature                                     Printed Name of Juror

                l.-j,f:,i,~&ll..l~5l..--AJ~~' -               E sro2ro..\c\c. Lo P<-,__
                2.~~~1,L_-J:8~-.-..::___
                3.,jl,,J.\jllV~/Jll3--->,~~at'...LII~
                                                              !srocm l '"'      'Pen"
                                                              ~;:~ tLCh¾>~
                                                                ~d~arc)o     G~

                7._,~ ~ ~ ~ ~- - -
                8.~ ~ ~~--=:!!~~~"""-                         IJ~)I ~Id" .>e:i. / iN..._.S
               9.~f!/:!:_~.4f:!_~~L                            d, y11-Mi,,- V llilnjlf'S,;..
                                                           "n{ano C. Lope-z..

                                               Additional Certificate

        I certify that the jury was unanimous in answering Questions 9 and l 0. All twelve of us
        agreed to each of the answers. The presidingjuror has signed the certificate for all twelve ofus.



                                                                       C,.




                                                                                                  MR 302
      Tab 2
Verdict Comparisons
                                         VERDICT COMPARISONS

Plaintiff   Category of Damages            Original Verdict Second Verdict    Difference   Multiplier
                                                                              by Dollar
M.N.        Past Pecuniary Loss            $200,000          $10 MM           $9.8 MM      50
Gonzalez
(Ques. 5)
            Future Pecuniary Loss          $100,000          $5 MM            $4.9 MM      50
            Past Loss of Companionship     $500,000          $1 MM            $500,000     2
            Future Loss of Companionship $500,000            $25 MM           $24.5 MM     50
            Past Mental Anguish            $200,000          $500,000         $300,000     2.5
            Future Mental Anguish          $200,000          $10 MM           $9.8 MM      50

                                           Total: $ 1.7 MM   Total: $ 51.5 MM $ 49.8 MM    30.29
M.R.        Past Pecuniary Loss            $200,000          $10 MM           $9.8 MM      50
Gonzalez
(Ques. 5)
            Future Pecuniary Loss          $100,000          $5 MM            $4.9 MM      50
            Past Loss of Companionship     $500,000          $1 MM            $500,000     2
            Future Loss of Companionship $500,000            $25 MM           $24.5 MM     50
            Past Mental Anguish            $200,000          $500,000         $300,000     2.5
            Future Mental Anguish          $200,000          $10 MM           $9.8 MM      50

                                           Total: $ 1.7 MM Total: $ 51.5 MM   $ 49.8 MM    30.29
Plaintiff   Category of Damages          Original Verdict Second Verdict    Difference   Multiplier
                                                                            by Dollar
A.          Past Pecuniary Loss          $100,000           $250,000        $150,000     2.5
Gonzalez
(Ques. 6)
            Future Pecuniary Loss        $100,000           $3 MM           $2.9 MM      30
            Past Loss of Companionship   $150,000           $250,000        $100,000     1.67
            Future Loss of Companionship $150,000           $4.5 MM         $4.35 MM     30
            Past Mental Anguish          $150,000           $250,000        $100,000     1.67
            Future Mental Anguish        $150,000           $4.5 MM         $ 4.35 MM    30

                                         Total: $ 800,000   Total: $12.75 MM $11.95 MM   15.94
J.        Past Pecuniary Loss            $100,000           $250,000        $150,000     2.5
Gonzalez,
Sr.
(Ques. 6)
          Future Pecuniary Loss          $100,000           $3 MM           $2.9 MM      30
            Past Loss of Companionship   $150,000           $250,000        $100,000     1.67
            Future Loss of Companionship $150,000           $4.5 MM         $4.35 MM     30
            Past Mental Anguish          $150,000           $250,000        $100,000     1.67
            Future Mental Anguish        $150,000           $4.5 MM         $4.35 MM     30

                                         Total: $ 800,000   Total: $12.75 MM $11.95 MM   15.94



                                                    2
Plaintiff   Category of Damages             Original Verdict Second Verdict       Difference   Multiplier
                                                                                  by Dollar
Gonzalez    Physical   Pain      &   Mental $850,000           $14.45 MM          $13.6 MM     17
Estate      Anguish
(Ques. 7)
                                            Total: $ 850,000   Total: $14.45 MM    $13.6 MM    17
Elizondo    Past Physical Pain/mental       $100,000           $250,000           $150,000     2.5
(Ques. 8)   anguish
            Future Physical Pain/mental     $50,000            $2.5 MM            $2.45 MM     50
            anguish
            Past Earning Capacity           $20,000            $20,000            Same         1
                                                                                  amount
            Future Earning Capacity         $1 MM              $1 MM              Same         1
                                                                                  amount
            Past Disfigurement              $200,000           $500,000           $300,000     2.5
            Future Disfigurement            $1 MM              $2 MM              $1 MM        2
            Past Impairment                 $200,000           $500,000           $300,000     2.5
            Future Impairment               $1.5 MM            $2 MM              $500,000     1.33
            Future Medical Expenses         $1.5 MM            $2 MM              $500,000     1.33

                                            Total: $5.57 MM Total: $10.77 MM       $5.2 MM     1.93




                                                       3
Gonzalez    Exemplary         $15 MM          $15 MM          Same        1
Estate                                                        amount
(Ques. 10
- Gross)
Elizondo    Exemplary         $5 MM           $5 MM           Same        1
(Ques. 10                                                     amount
- Gross)

                              Total: $20 MM   Total: $20 MM               1

            TOTAL VERDICTS:   $31.42 MM       $173.72 MM      $142.3 MM   5.53




                                       4
