                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00309-CV

DENNIS & GAIL DAVIS,
                                                          Appellants
v.

BNSF RAILWAY COMPANY,
                                                          Appellee


                           From the 21st District Court
                             Burleson County, Texas
                              Trial Court No. 25,151


                          MEMORANDUM OPINION


      This appeal involves the issue of jury misconduct. After a lengthy trial, nine

weeks, the jury found BNSF’s negligence did not cause Dennis Davis’ cancer. The trial

court rendered judgment that Dennis and Gail Davis take nothing in their suit against

BSNF. The Davises filed a motion for new trial alleging jury misconduct and also

issued subpoenas for six jurors and another witness. The trial court denied the motion

for new trial and granted BSNF’s motions to quash all subpoenas. The Davises appeal.

Because the trial court did not err in denying the motion for new trial and granting the

motions to quash, we affirm.
                                INCOMPLETE REPORTER’S RECORD

         The reporter’s record consists only of the hearing on the motion for new trial.

The court reporter filed a letter with this Court stating that the Davises no longer wish

to appeal the entire trial and will only pursue the motion for new trial on appeal. The

rules provide that if the appellant requests a partial reporter’s record, the appellant

must include in the request a statement of the points or issues to be presented on appeal

and will be limited to those points or issues. TEX. R. APP. P. 34.6(c)(1). The Davises did

not file a statement of the points or issues to be presented on appeal as required by the

rule. TEX. R. APP. P. 34.6(c)(1). Therefore, we presume that the omitted portions of the

record support the trial court’s findings. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.

2002); Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no

pet.).

                                        JURY MISCONDUCT

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

the misconduct occurred, (2) it was material, and (3) probably caused injury. 1 TEX. R.

CIV. P. 327a.; Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). 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



1
  We proceed in this opinion to address the merits of Appellants’ issues. We note, however, that if we
determine there was jury misconduct and it was material, it would, nevertheless be almost impossible to
determine harm, in essence that it probably caused injury, because without a full record of the evidence
there is no way for us to evaluate whether the Davises’ evidence was strong or weak, overwhelming or
close, conclusive or barely more than a scintilla. Thus, we would have to presume the record not brought
forth supported the trial court’s decision on the denial of the motion for new trial.

Davis v. BNSF Railway                                                                            Page 2
done on one or more issues vital to the judgment. Pharo v. Chambers County, Tex., 922

S.W.2d 945, 950 (Tex. 1996). Whether misconduct occurred and caused injury is a

question of fact for the trial court. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d at 372.

Absent findings to the contrary, we must assume that the trial court made all findings

in support of its decision to deny the motion for new trial. Id. The Davises had the

burden to establish jury misconduct. Id.

        The Davises contend that outside influences brought to bear upon the jury

caused harm. In support of the motion for new trial, the Davises presented the affidavit

of Debra Zavondy, an alternate juror. In the affidavit, Zavondy states that, “Jurors

wrote quotes from the trial on the blackboard during the trial and prior to deliberating,”

“Juror Stephanie King told me that her close friend’s boyfriend is currently employed at

the Somerville creosote tie plant2 and she was afraid she would get in trouble because of

this”, and “During the course of the trial when I was in town people would try to talk to

me about the case and I would have to walk away from them. During one of these

times I was told that Dennis Davis had filed other cases against the defendant.” At the

end of the statement concerning town people talking about the case, Zavondy hand-

wrote “as well as other jury members.” It is not clear whether she intends to state that

other jury members were approached to talk about the case and had to walk away or

whether other jury members were told about previous lawsuits.




2The Davises state in their brief that BSNF owned and operated Somerville Tie Plant at all relevant times
up to and including March 28, 1995, at which time it sold the facility to Koppers, Inc.

Davis v. BNSF Railway                                                                             Page 3
       Zavondy was an alternate juror and did not participate in deliberations. Any

comments directed to her about the case did not affect the verdict. It is unclear what

comments if any Zavondy alleges were made to members of the jury. The trial court

did not err in not finding that any such comments probably caused a juror to vote

differently than the juror otherwise would have done.

       The Davises’ attorney hired Louis Michalko, a private investigator, to investigate

possible jury misconduct. Michalko interviewed jurors and spoke with confidential

informants. In his affidavit, Michalko states that he spoke with Stephanie King about

her relationship to a Somerville Tie Plant employee. King told Michalko that she met

and talked to a yard supervisor at the Somerville Tie Plant. King declined to sign an

affidavit. There is nothing to indicate King discussed the case with the employee.

Michalko’s affidavit does not show that any juror misconduct occurred.

       The Davises also offered the affidavit of Ketran Cordrae Gentry in support of the

motion for new trial. Gentry is employed at Koppers. Gentry states that the plant

manager made it clear that employees should not testify against Koppers. Gentry’s

affidavit is dated December 21, 2008.     The trial began on April 27, 2009 and jury

deliberations began on June 25, 2009. Gentry’s affidavit does not show that any jury

misconduct occurred. The Davises did not establish material jury misconduct that

probably caused injury. The trial court did not err in denying the motion for new trial.

We overrule the first issue.




Davis v. BNSF Railway                                                              Page 4
                            DISCOVERY OF JURY MISCONDUCT

       The Davises argue that the trial court denied the opportunity to conduct

discovery on the issue of jury misconduct by granting BSNF’s motions to quash the

subpoenas of six jurors and one witness. We review a trial court's actions denying

discovery for an abuse of discretion. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex.

2009). A trial court abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Id.

       Texas Rule of Civil Procedure 327 states:
       a. When the ground of a motion for new trial, supported by affidavit, is
          misconduct of the jury or of the officer in charge of them, or because of
          any communication made to the jury, or that a juror gave an erroneous
          or incorrect answer on voir dire examination, the court shall hear
          evidence thereof from the jury or others in open court, and may grant a
          new trial if such misconduct proved, or the communication made, or
          the erroneous or incorrect answer on voir dire examination, be
          material, and if it reasonably appears from the evidence both on the
          hearing of the motion and the trial of the case and from the record as a
          whole that the injury probably resulted to the complaining party.

       b. 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 affidavit or evidence of any statement by him concerning a matter
          about which he would be precluded from testifying be received for
          these purposes.

       Jurors are not prohibited from discussing what took place during deliberations

after the trial court discharges them from service, but there is a difference between

jurors choosing to talk about their service and their being compelled to do so in

discovery depositions and court hearings. Ford Motor Co. v. Castillo, 279 S.W.3d at 666.
Davis v. BNSF Railway                                                                 Page 5
There are several policy reasons why losing parties should not be allowed to conduct

unfettered investigations into the jury's deliberations to try to prove such allegations, in

essence putting the jury on trial. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d at 366.

These policy reasons 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 view did not prevail from

overturning the verdict, and (4) protecting the need for finality. Ford Motor Co. v.

Castillo, 279 S.W.3d at 666; Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d at 366-67.

       The Davises’ affidavits in support of the motion for new trial were insufficient to

require the trial court to hear evidence as provided in TEX. R. CIV. P. 327a. The affidavits

contain only speculation of possible outside influence and such speculation does not

raise an issue of jury misconduct. See Lopez v. City Towing Associates, Inc., 754 S.W.2d

254, 259 (Tex. App.—San Antonio 1988, writ den’d). The trial court did not err in

granting BSNF’s motions to quash the subpoenas of the jurors and witness.                    We

overrule the second issue.

                                        CONCLUSION

       We find that the trial court did not err by denying the motion for new trial and

granting the motions to quash the subpoenas. We affirm the trial court’s judgment.




                                           TOM GRAY
                                           Chief Justice



Davis v. BNSF Railway                                                                      Page 6
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed October 6, 2010
[CV06]




Davis v. BNSF Railway                         Page 7
