                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                            NO. 12-0410
                                          444444444444

                           IN RE HEALTH CARE UNLIMITED, INC.

            4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR WRIT OF MANDAMUS
            4444444444444444444444444444444444444444444444444444


                                          PER CURIAM


       The trial court in this case granted a motion for new trial based on a juror’s communications

with a party’s representative even though there was no evidence that the communications probably

caused injury. In the absence of such evidence, we conclude that the trial court abused its discretion

and improperly granted a new trial, and we conditionally grant relief.

       The estate and survivors of Belinda Valdemar (collectively Valdemar’s Survivors) sued

Relator Health Care Unlimited, Inc. (HCU) and its employee, Edna Gonzalez, after Valdemar died

as a result of an automobile accident. Valdemar was a passenger in a vehicle that Gonzalez was

driving at the time of the accident, and Valdemar’s Survivors alleged that HCU was vicariously

liable because Gonzalez was driving within the course and scope of her HCU employment.

Although the jury agreed that Gonzalez negligently caused the accident, it found that she was not

acting within the scope of her employment, and thus HCU was not vicariously liable. Valdemar’s

Survivors moved for a mistrial, alleging that the presiding juror, Dominique Alegria, had engaged
in juror misconduct by communicating with an HCU employee, Sonny Villarreal, during breaks

while the jury was deliberating.

       The trial court initially granted the motion without conducting an evidentiary hearing. After

HCU filed a motion for reconsideration, arguing that the Texas Rules of Civil Procedure require that

“the court shall hear evidence [of alleged juror misconduct] from the jury or others in open court,”

see TEX. R. CIV. P. 327(a), the trial court conducted a hearing at which Juror Alegria, Villarreal, and

Gi Anna Valdemar (one of Valdemar’s Survivors) testified. Gi Anna testified that, while the jury

was taking a break from its deliberations, she saw Juror Alegria place a call on her cell phone and

overheard Juror Alegria address the person on the call as “Sonny,” whom she believed to be

Villarreal. Juror Alegria and Villarreal both admitted in their testimony that they had telephone

conversations during the time the jury was deliberating, but explained that they knew each other

from church and their discussions only involved preparations for the food to be served at an

upcoming church retreat. Voicemail recordings played during the hearing supported this testimony,

and Juror Alegria and Villarreal both denied that they talked about the pending case at all during the

trial. Juror Alegria testified, in fact, that she did not know Villarreal was employed by HCU at that

time, and she denied that she ever saw or noticed Villarreal at the trial. Juror Alegria and Villarreal

both also admitted that Villarreal was a member of the school board of the district in which Juror

Alegria and her husband were employed.

       The trial court treated the motion for mistrial as a motion for new trial and issued an

amended order, again granting the motion. In a two-page amended order, the trial court found that

Villarreal was “a local manager” for HCU, that he sat behind and conferred with HCU’s counsel


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during the evidentiary part of the trial “in the full view of the jury,” that during jury deliberations

Juror Alegria had at least two cell phone conversations with Villarreal “concerning preparations for

an upcoming church retreat,” that Villarreal was a board member of the school district at which Juror

Alegria’s husband was employed, and that Juror Alegria had violated the court’s instructions by

communicating with an HCU representative during the trial of the case. The court concluded in its

order that, “[i]n light of the totality of the circumstances, the integrity of the verdict rendered in this

cause has been compromised and in the interest of justice, a new trial should be granted.” The trial

court did not find or conclude, however, that Juror Alegria’s communications with Villarreal were

material or probably resulted in injury. HCU petitioned the San Antonio Court of Appeals for

mandamus relief, and that court denied the petition without explanation.

         In In re Toyota Motor Sales, U.S.A. Inc., we held that an appellate court may conduct a

merits-based review of a trial court’s order granting a new trial. 407 S.W.3d 746, 757 (Tex. 2013).

Because we held in previous cases that a trial court must give a reasonably specific explanation of

its reasons for granting a new trial,1 we concluded that an appellate court’s ability to evaluate the

specificity of a stated reason is toothless if it cannot also evaluate the correctness of the stated

reason. See id. at 757–58. Thus, an appellate court may review whether a trial court’s explanation

supports its decision to grant a new trial. Id. at 758. In the instant case, the trial court’s amended

order made specific findings of fact and conclusions of law based on the circumstances of the case.


         1
            See In re Columbia Med. Ctr. Of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 206 (Tex. 2009) (holding
that when a trial court grants a new trial it must provide an understandable, reasonably specific explanation for doing
so); In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (holding that the trial court’s stated explanation
must be legally appropriate and specific enough to assure parties that the articulated reasons are based, not on a pro forma
template, but on the facts and circumstances of the case).

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However, under Toyota, “[s]imply articulating understandable, reasonably specific, and legally

appropriate reasons is not enough; the reasons must be valid and correct.” Id. at 759.

       To warrant a new trial based on jury misconduct, the movant must establish that (1) the

misconduct occurred, (2) it was material, and (3) it probably caused injury. TEX. R. CIV. P. 327(a);

see also Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). The complaining

party has the burden to prove all three elements before a new trial can be granted. Redinger v.

Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985). Whether misconduct occurred and caused injury are

questions of fact for the trial court. Golden Eagle, 24 S.W.3d at 372.

       Rule 327’s first requirement is not at issue in this case. It is undisputed that Alegria

communicated with Villarreal during jury deliberations while the jury was on break, and thus that

the instance of misconduct did occur. By engaging in these communications, Alegria violated the

trial court’s instructions, regardless of whether she knew that Villarreal was an HCU employee or

representative, and Gi Anna Valdemar’s and the trial court’s concerns about these communications

were justified. But HCU contends that there is no evidence to satisfy Rule 327’s requirement that

the misconduct cause probable injury. We agree. HCU also contends that the evidence is

insufficient to establish materiality, Rule 327’s second requirement. Because we find no evidence

of probable injury, we need not address whether the misconduct was material.

       “To show probable injury, there must be some indication in the record that the alleged

misconduct most likely caused a juror to vote differently than he would otherwise have done on one

or more issues vital to the judgment.” Redinger, 689 S.W.2d at 419 (internal quotation marks




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omitted). We find no evidence in the record that Alegria’s conversations with Villareal about the

church retreat affected her vote or any other juror’s vote.

       Valdemar’s Survivors cite to this Court’s holding in Texas Employers’ Insurance Ass’n v.

McCaslin to support their contention that the communications were themselves sufficient to show

materiality and probable injury. 317 S.W.2d 916 (Tex. 1958). But the facts of this case are

distinguishable from the facts of McCaslin. In McCaslin, we held that injury occurred as a matter

of law when undisputed facts showed that the plaintiff went to the office of one of the jurors,

engaged the juror in conversation, and asked the juror to “‘[b]e sure and do all you can to help me,’

or something of a similar nature.” Id. at 918. As we explained, “[t]he testimony in the record

clearly indicate[d] to us that the purpose of this visit was to influence [the juror’s] actions as a

juror.” Id. The ultimate issue was whether the trial was substantially unfair, and we held that

misconduct not resulting in injury does not “condemn a trial as unfair.” Id. at 921 (quoting Cloudt

v. Hutcherson, 175 S.W.2d 643, 649 (Tex. Civ. App.—1943, writ ref’d w.o.m.)). We found that the

communication in McCaslin was an overt act that created a strong inference of prejudice sufficient

to show probable injury. Id.

       In contrast to McCaslin, there is no evidence here that Juror Alegria’s communications with

Villareal probably changed or influenced Juror Alegria’s vote or the outcome of the trial. In

McCaslin, the plaintiff discussed the trial with the juror in a direct attempt to persuade the juror to

help her in the case. Their communications were specifically and directly related to the trial, and

intended to affect the juror’s vote. In this case, the evidence established and the trial court found

that Villareal and Alegria communicated solely about the upcoming church retreat, and these were


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communications that began before the trial. As we held in McCaslin, misconduct itself does not

condemn a trial as unfair. Here, there is no evidence that the communications, although prohibited

by the trial court, were related to the trial or probably affected its outcome.

        The record reveals that the trial court essentially used an “appearance of impropriety”

standard to grant the motion for new trial. During discussions with counsel in open court, the trial

judge explained:

        [Y]ou know, that conversation should have never taken place, as innocent as it may
        very well have been. But it—the mere appearance of that looks bad. . . . And—and
        I don't think I need to hear the evidence, whether it's good or should or the legal part
        about it. That in and—in and of itself, that there was a contact with someone
        associated with a party in this case, with a member of that jury during the actual trial
        of the cause, is enough for me to grant a mistrial in this matter. And you can argue
        what you want to from there, but that’s going to be my decision.

After hearing evidence, the court concluded in its order granting a new trial that “the integrity of the

verdict rendered in this cause has been compromised and in the interest of justice, a new trial should

be granted.” While we appreciate the court's desire to protect the “integrity of the verdict,” Rule

327 accomplishes this by giving due consideration to the right to a jury trial in an effort to best

protect the trial process. See In re Columbia, 290 S.W.3d at 213 (“[S]uch a vague explanation in

setting aside a jury verdict does not enhance respect for the judiciary or the rule of law, detracts from

transparency we strive to achieve in our legal system, and does not sufficiently respect the

reasonable expectations of parties and the public when a lawsuit is tried to a jury.”). Under Rule

327, protecting the trial process in the jury misconduct context requires a finding of misconduct,

materiality, and probable injury, not merely that there was an appearance of impropriety from which

harm could be presumed. The facts here, without more, do not support a finding of probable injury,


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and therefore do not satisfy Rule 327 requirements to warrant granting a new trial based on jury

misconduct.

       Accordingly, after reviewing the trial court’s findings and reasons for granting a new trial

in this case, we hold that the trial court abused its discretion. The evidence is not legally sufficient

to support a finding that the communications between the juror and the person associated with a

party probably caused injury. Thus, granting the motion for new trial was improper. We

conditionally grant relief and order the trial court to withdraw its First Amended Order Granting

New Trial and render judgment on the verdict.



OPINION DELIVERED: April 25, 2014




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