
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00734-CV



Duane Preiss, Individually and as Next Friend of Alexis Preiss and Ronni Preiss, Minor
Children, and as Representative of the Estate of Traci L. Rasmussen-Preiss,

Deceased; and Shirley Rasmussen, Appellants


v.


Charles E. Moritz, M.D.; Central Texas Kidney Associates, P.A.; Wilbert Polson, M.D.;

and Austin Radiological Association, P.A., Appellees






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 98-12024, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING






	Appellants Duane Preiss (representing his children, Alexis and Ronni Preiss, and the
estate of his deceased wife, Traci L. Rasmussen-Preiss) and Shirley Rasmussen (Traci's mother)
(together "Preiss"), appeal from a judgment based on a jury verdict in favor of appellees Charles
Moritz, Central Texas Kidney Associates, P.A., Wilbert Polson, and Austin Radiological Association,
P.A. (together "the healthcare providers").  Preiss complains on appeal that the district court erred in
denying him a new trial because two unqualified jurors served on the district-court jury.  We will
reverse the district court's judgment and remand the case to that court.


FACTUAL AND PROCEDURAL BACKGROUND	Preiss brought a medical-malpractice action against the healthcare providers, arguing
that they were negligent in performing a kidney biopsy on Traci and that their negligence was the
cause of her death.  At trial, by a 10-2 vote, the jury found that any negligence of the healthcare
providers was not a cause of Traci's death, but rather her death was caused, at least in part, by her
own negligence.  The district court rendered judgment on the jury's verdict that Preiss take nothing. 
Preiss filed a motion for new trial, arguing that one of the jurors was statutorily disqualified from
serving as a juror and had also committed juror misconduct.  Later, the district court granted Preiss
leave to file an amended motion for new trial.  Preiss's amended motion was filed more than thirty
days after the district-court judgment.  See Tex. R. Civ. P. 329b(b) (stating that leave of court required
to file amended motion for new trial more than thirty days after judgment ordered).  The amended
motion added allegations that a second jury member, Irene Olivares Garcia, was also statutorily
disqualified from serving on the jury.  After a hearing, the district court denied Preiss's amended
motion.
	Preiss then filed a "Motion to Vacate Interlocutory Judgment and to Enter Final
Judgment" asserting that the district court's final judgment did not dispose of one of the healthcare
providers, Central Texas Kidney Associates, P.A., thus rendering the judgment interlocutory and
unappealable.  See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993).  The district court denied
Preiss's motion.
	Preiss originally appealed by six issues.  By his second issue, Preiss argued that the
district court erred in denying his motion to vacate.  This Court, expressing concern that it did not
have jurisdiction to hear the appeal absent a final judgment specifically disposing of all the parties
in the district court, abated the appeal and remanded the cause to the district court for the entry of
a final judgment disposing of all the parties.  See Preiss v. Moritz, No. 03-00-734-CV, slip op. (Tex.
App.--Austin Apr. 12, 2001) (not designated for publication) (citing Tex. R. App. P. 27.2 (appellate
court may allow appealed order that is not final to be modified so as to be made final)).  The district
court rendered an amended final judgment that disposed of all issues and all parties.  Preiss then
moved the district court for a new trial, seeking relief from the amended final judgment, or in the
alternative, that the court reconsider his earlier amended motion for new trial.  The district court
denied Preiss's motion. (1)  We now consider Preiss's remaining issues. 


DISCUSSION	By his first issue, Preiss argues that the district court erred in denying his motion for
new trial because juror Garcia was statutorily disqualified from jury service.  See Tex. Gov't Code
Ann. § 62.102(8) (West 1998) ("A person is []qualified to serve as a petit juror [if she] . . . is not
under indictment or other legal accusation of misdemeanor or felony theft or any other felony.").
	When examining a trial court's action on a motion for new trial, appellate courts
apply an abuse of discretion standard.  "A motion for new trial is addressed to the trial court's
discretion and the court's ruling on such will not be disturbed on appeal in the absence of a showing
of an abuse of discretion."  Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Jackson v. Van
Winkle, 660 S.W.2d 807, 808-09 (Tex. 1983).  "It is an abuse of discretion for a trial court to rule
arbitrarily, unreasonably, or without regard to guiding legal principles or to rule without supporting
evidence."  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
	At the time she sat on the jury, Garcia was under legal accusation of the misdemeanor
offense of theft by check.  Before voir dire, each potential juror completed a questionnaire
distributed by the district clerk consisting of commonly asked voir dire questions.  On her juror
questionnaire Garcia was asked, "Have you ever been an . . . accused, or a . . . complainant, or a . . .
witness in a criminal case?"  She responded "NO" and was later selected as a juror.  After the verdict
was rendered, Preiss's counsel discovered that Garcia had the outstanding misdemeanor-theft charge. 
Garcia testified at the motion-for-new-trial hearing that in June 1993 she wrote a check that was
returned for insufficient funds.  After being notified of the problem, she returned to the store where
she wrote the check and paid the amount in full.  However, she received a letter from the Travis
County Attorney informing her that, because of the insufficient check, she was required to attend a
financial-management class or the State would file criminal charges against her.  She completed the
course in January 1994.  Garcia testified that she submitted the proper proof of her completing the
class to the county attorney.  However, in July 1994, the State filed theft-by-check charges against
Garcia that remained pending at the time of her jury service.  A warrant for Garcia's arrest, which
remained unserved, was also issued. 
 Initially, we note that this is not a juror-misconduct case.  Garcia's statements on her
juror questionnaire were truthful to the extent of her knowledge.  She believed that no charges had
been filed and did not learn the contrary until after her jury service.  There is no evidence that Garcia
intended to conceal information from the parties.  Yet the fact remains that, at the time she was a
juror, she was under legal accusation of misdemeanor theft and therefore not legally qualified to
serve. 
	The supreme court has addressed the importance of the section 62.102 qualifications
for jury service.  In Palmer Well Services, Inc. v. Mack Trucks, Inc., 776 S.W.2d 575 (Tex. 1989).
Palmer Well Services, following a 10-2 verdict against it, discovered that a juror voting in favor of
the verdict was under felony indictment.  Id. at 576; see Tex. Gov't Code Ann. § 62.102(8).  Palmer
Well Services moved for a new trial, but the motion was overruled by the trial court.  Palmer Well
Servs., 776 S.W.2d at 576.  On appeal, the court of appeals affirmed, holding that the juror should
have been excluded because of the indictment and that Palmer Well Services did not lack diligence
in failing to discover the fact of the indictment earlier.  Id.  However, the court held that Palmer Well
Services failed "to demonstrate that the unqualified juror's presence on the jury was a material factor
which was reasonably calculated to, and probably did, cause the rendition of an improper judgment." 
Id.
	The supreme court reversed the court of appeals and remanded the case to the trial
court for a new trial.  Id. at 577.  In so doing, the court observed that the statutory disqualification
was not discovered until after the jury's verdict was returned, the failure to discover the pending
felony indictment was not due to Palmer Well Services' lack of diligence, and material injury occurs
when a verdict is returned by fewer than ten qualified jurors.  Id.  Of particular concern to the court
was the fact that an unqualified juror voted in favor of the verdict:

[I]f the rules and statutes governing the qualifications of jurors and the requisites of
verdicts are to have any effect, litigants similarly situated to Palmer [Well Services]
must be held to have suffered material injury as a matter of law.  Therefore, because
this is not an instance in which a verdict could have been rendered by less than ten
jurors, as a matter of law Palmer [Well Services] was materially injured by the
rendition of an unfavorable verdict by less than the requisite number of qualified
jurors.
Id. at 577; accord Dunlap v. Excel Corp., 30 S.W.3d 427, 433 (Tex. App.--Amarillo 2000, no pet.);
see Tex. R. Civ. P. 292 (stating that verdict may be rendered by no fewer than same ten members
of original jury of twelve).
	Here, it is beyond dispute that Preiss is similarly situated to Palmer Well Services. 
Because Garcia voted in favor of the 10-2 verdict, Preiss suffered an unfavorable verdict by fewer
than ten qualified jurors.  We thus must hold that Preiss was materially injured as a matter of law.
	The healthcare providers do not assert that Preiss discovered the pending charges
against Garcia before the jury returned its verdict.  However, the healthcare providers argue that
Preiss lacked diligence in discovering the disqualifying facts.  The supreme court's opinion in
Palmer Well Services provides no guidance on this issue, because Palmer Well Services' diligence
was conceded before the supreme court.  See Palmer Well Servs., 776 S.W.2d at 576.
	Before addressing Preiss's diligence, however, we must determine whether diligence
matters.  Put another way, the question that remains is whether the qualifications set forth in section
62.102 may be waived.  Palmer Well Services answers this question in the affirmative.  See id. at
576-77.  The court distinguished, but did not disapprove, De Leon v. Longoria, 4 S.W.2d 222 (Tex.
Civ. App.--San Antonio 1928, writ dism'd w.o.j.), and Mendoza v. Varon, 563 S.W.2d 646 (Tex.
Civ. App.--Dallas 1978, writ ref'd n.r.e).
	In Mendoza, during the trial the parties discovered that one of the jurors was subject
to arrest for an alleged felony and thus disqualified to serve on the jury.  See Mendoza, 563 S.W.2d
at 648.  The parties, however, agreed to proceed without discharging the disqualified juror.  Id.  The
court of civil appeals held, and the supreme court agreed, that the disqualification had been waived. 
Id.; see Palmer Well Servs., 776 S.W.2d at 577.
	In all likelihood, De Leon is also a waiver case but presents a somewhat different
circumstance.  At the time of trial, a juror was under indictment for a felony.  See De Leon, 4 S.W.2d
at 225.  The court of appeals observed that "the inference from the whole record is that appellants
knew of the pendency of the indictment against the juror."  Id.  The court also noted the "total
absence of any evidence that appellants knew nothing of the indictment pending against the
objectionable juror."  Id.  The court held:

It is obvious, then, that by not seasonably raising the objection to the juror at a time
when the trial court could and would have excused him, and allowed the parties to
agree upon another, appellants waived their objection, and must be content with his
participation in the deliberations and findings of his fellows.


Id.  The supreme court, however, distinguished De Leon on a somewhat different basis:  "In De
Leon, although the pending felony indictment and due diligence were stipulated by the parties, a
sufficient number of jurors remained that could have rendered a binding verdict."  Palmer Well
Servs., 776 S.W.2d at 577 (citing De Leon, 4 S.W.2d at 224-25).
 The court of criminal appeals has also considered whether service by a legally
disqualified juror ipso facto mandates a new trial for the losing party.  In Mayo v. State, 4 S.W.3d
9 (Tex. Crim. App. 1999), the court observed that section 62.102 applies to juries selected in both
civil and criminal cases.  See id. at 11 (citing Cantu v. State, 842 S.W.2d 667, 685 n.13 (Tex. Crim.
App. 1992)).  The court also noted that "[t]he legislature did not mandate that any of the § 62.102
qualifications could not be waived by agreement or otherwise."  Id. at 12. (2)
	Because section 62.102 prescribes qualifications for jurors in civil and criminal cases
and the supreme court and court of criminal appeals agree that these qualifications, in appropriate
circumstances, may be waived, we hold that the participation of an unqualified juror in the jury's
verdict does not automatically entitle Preiss to a new trial.
 The healthcare providers assert that Preiss, by not presenting Garcia's disqualification
to the district court before the jury's verdict, has waived any complaint about such disqualification. 
See, e.g., Bailey v. Tuck, 591 S.W.2d 605, 608 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.)
(holding that disqualification "cannot be raised for the first time after verdict") (citing Mitchell v.
Burleson, 466 S.W.2d 646 (Tex. Civ. App.--Beaumont 1971, writ ref'd n.r.e.); Coca-Cola Bottling
Co. v. Mitchell, 423 S.W.2d 413 (Tex. Civ. App.--Corpus Christi 1967, no writ); 3 Roy McDonald,
Texas Civil Practice, § 11.05 (1970)); Mercy Hosp. v. Rios, 776 S.W.2d 626, 628 (Tex. App.--San
Antonio 1989, writ denied); Jenkins v. Chapman, 636 S.W.2d 238, 240 (Tex. App.--Texarkana
1982, writ dism'd w.o.j.) (citing Bailey, 591 S.W.2d 605). (3)  However, in Palmer Well Services, the
supreme court specifically found that "the discovery of the [juror's] pending felony indictment was
not made until after the verdict was rendered."  Palmer Well Servs., 776 S.W.2d at 577.  Thus, to the
extent that there was ever an absolute requirement that a juror's disqualification be brought to the
attention of the trial court before verdict, the supreme court has overruled such requirement by
implication.  We hold that Preiss did not waive his complaint to Garcia's qualifications by not
raising the issue before verdict.
	That Preiss is not barred, as a matter of law, from asserting his juror-qualification
objection because it was not raised before verdict does not relieve him of his burden to exercise
diligence in presenting the objection.  We find nothing in Palmer Well Services to indicate that a
delay in presenting a juror-qualification objection may not be considered in determining whether a
party exercised diligence in discovering facts that would disqualify a juror and bringing those facts
to the attention of the trial court.  We now address Preiss's diligence.
	The potential jurors received a jury questionnaire that contained general questions
about matters such as their employment, family, and prior involvement in lawsuits.  The
questionnaire also inquired, "Have you ever been an . . . accused . . . in a criminal case?"  This
question invoked a response regarding the statutory qualification requiring that a juror not be under
indictment or other legal accusation of misdemeanor or felony theft or any other felony.  See Tex.
Gov't Code Ann. § 62.102(8).  As has been previously noted, Garcia answered this question in the
negative.  Copies of the completed juror questionnaires were distributed to the parties before voir
dire.
	In an affidavit in support of Preiss's motion for new trial, Preiss's trial attorney stated
that he received Garcia's questionnaire before his voir dire examination of the jury panel and that
"[t]he responses of Juror Garcia on her jury questionnaire and in open court gave me no indication
of her criminal history and disqualification from jury service and left me unable to perform an
effective voir dire in the trial of this case."  However, during voir dire, Preiss asked no questions of
either the panel or individual jurors concerning past criminal involvement, electing instead to rely
on the information provided in the questionnaires. (4)  Whether Preiss was diligent in discovering
Garcia's disqualification thus depends on the extent to which he could rely on Garcia's response to
the inquiry on her juror questionnaire.
	The trial was to be centered on who was responsible for the death of Traci.  Preiss
alleged that responsibility lay with the healthcare providers.  The parties anticipated, and the district
court advised the jury panel, that the trial would consume approximately thirteen days. (5)  Before the
parties questioned the jury panel, the district court shared with the panel certain restrictions under
which the parties would labor during voir dire, including, inter alia, the following:

Ladies and gentlemen, under the rules the attorneys for both sides are entitled to
examine the jury panel, and they have already had the benefit of the jury information
cards that you have completed and left at the auditorium.  Therefore it will not be
necessary for them to explore into all of the matters revealed by those cards, but, in
addition, they are entitled to inquire into your background, your experiences and
similar matters, so that they may more intelligently exercise the [peremptory]
challenges to which they are entitled, and to challenge members of the panel for
cause.

. . . .

Also, the lawyers have been given time limits for conducting this examination, and
so if I give them a time warning or a reminder about where they are in their
argument, please don't think I'm scolding them in any way.  I'm not.  I'm simply
letting them know how much time they have left, or something like that.


(Emphasis added.)
	Texas courts have rarely addressed the extent to which an attorney may rely on the
information contained in juror questionnaires and when they have, they have not spoken with one
voice.  In Gonzales v. State, a questionnaire inquired, "[H]ave you ever been accused, complainant,
or witness in a criminal case[?]"  3 S.W.3d 915, 916 (Tex. Crim. App. 1999).  A juror who
responded "no" served on the jury and it later came to light that the juror was in fact a criminal-case
complainant.  See id.  The issue was not whether the juror was disqualified but whether the juror
withheld information.  The court of criminal appeals restated its previous holdings that counsel must
be without fault or lack of diligence in seeking out a prejudiced or biased juror.  Id. at 916-17 (citing
Brandon v. State, 599 S.W.2d 567, 577 (Tex. Crim. App. 1979), cert. denied, judgment vacated on
other grounds, 453 U.S. 902 (1981)).  With respect to oral inquiries, counsel must ask specific
questions and may not rely on broad ones.  Id. at 917 (citing Brandon, 599 S.W.2d at 578).  Further,
after uncovering potential bias, counsel must ask follow-up questions.  Id. (citing Armstrong v. State,
897 S.W.2d 361 (Tex. Crim. App. 1995)).  The court continued,

We see no reason why counsel's burden to use diligence should be any less in the
case of written juror questionnaires.  Particularly because of the nature of written
questions, counsel should be sure to ask follow-up oral questions concerning any
information on the form that counsel deems material.  While a questionnaire may
serve as an efficient vehicle for collecting demographic data, it is not the most
reliable way to collect other types of information.  Counsel should never assume that
the respondents will understand each question as it was intended by counsel to be
understood.  As this case illustrates, written questions are by nature vulnerable to
misinterpretation--even questions that appear to be subject to only one
interpretation.  For this reason, "diligent counsel" will not rely on written
questionnaires to supply any information that counsel deems material.  Counsel who
does otherwise is simply not diligent.

In the present case, defense counsel did not ask any oral questions in an effort to
verify whether prospective jurors who returned juror questionnaires had been
involved in criminal cases as that question was meant to be understood.


Id.  If the court of criminal appeals is to be taken literally, there is no reason to ever submit juror
questionnaires in advance of voir dire, because to be "diligent," counsel would have to reask each
question.
	But Gonzales is distinguishable from the case at hand.  Apparently, in Gonzales, not
all jurors had returned a juror questionnaire.  The court found it significant that the nonresponding
jurors were not asked oral questions about their involvement in criminal cases, stating that
"[a]lthough appellant emphasizes the importance of this information, . . . it was apparently not
important enough to seek the same information from prospective jurors who had not completed
information cards."  Id. at 917-18.  Here, each prospective juror completed a questionnaire.  Further,
Garcia indicated by affidavit that she understood the question:

To this day, I have never received any notice of an indictment [sic] for criminal
charges regarding my bounced check or of any arrest warrants issued for me
regarding this matter.  My address has remained the same from 1993 to the present. 
So, if in fact any warrants or indictments [sic] had been issued I certainly should have
received them.  It was my understanding that because I completed the course, no
criminal charges would be filed.

In filling out my jury questionnaire where it asks if you have ever been accused or a
complainant or a witness in a criminal matter I put no because it is my understanding
that that is an accurate statement.  Therefore, it is my understanding that at the time
I served on the jury in the above case that I was not under indictment or other legal
accusation for misdemeanor theft.  Therefore, it is my understanding I was competent
to serve on the jury.


The question clearly and unambiguously asks whether the respondent has ever been an accused,
complainant, or witness in a criminal case.  Where, as here, the response is an unequivocal "no," we
feel it would accomplish no purpose other than delay to require counsel to reask the question of each
potential juror, inquire whether the potential juror understood the question, and further inquire as to
whether there was anything the potential juror wanted to add.  Of equal importance, Garcia did not
know that theft-by-check charges had been filed against her and was absolutely convinced that, by
completing the financial-management class, she would not be subject to prosecution.  No amount
of questioning by counsel could have uncovered the fact that she was under accusation.
	In Spelling v. State, a juror's answer on a questionnaire concerning whether she or
any member of her family had been a victim of a crime was later found to be inaccurate.  825 S.W.2d
533, 536-37 (Tex. App.--Fort Worth 1992, no pet.).  The court held that counsel had not been
diligent in uncovering the false information, stating:

[C]ounsel for the defense was not diligent because he did not ask either the panel as
a whole or [the juror] individually the more specific question of whether they could
not serve as a fair and impartial juror due to violence or abuse on them or someone
in their family.  A more specific question would have likely produced an accurate
answer from [the juror].


Id. at 537.  The issue before the court in Spelling, as it was in Gonzales, concerned the failure of the
juror to fully disclose information that could reveal bias or prejudice, not the juror's legal
qualifications.  In both cases, the juror's legal qualifications to participate on the jury were not
dependent on the accuracy of the juror's answers on the juror questionnaire.
	Juror questionnaires are now generally used to augment oral voir dire examination.
The questions posed on jury questionnaires traditionally are attributed to the trial
court.  The purpose of jury questionnaires is to elicit basic information, possible
biases, and other problems that would otherwise be brought out during voir dire. 
Counsel may rely on these questionnaires to determine which questions to ask during
voir dire and which jurors to strike, thus minimizing the length of voir dire. . . .
Furthermore, the trial court and the attorneys can rely on information that is available
only from the juror questionnaire or information cards.


Garza v. State, 988 S.W.2d 352, 362 (Tex. App.--Fort Worth) (Dauphinot, J., dissenting) (footnotes
omitted), rev'd, 7 S.W.3d 164 (Tex. Crim. App. 1999); accord Carr v. Smith, 22 S.W.3d 128, 139
(Tex. App.--Fort Worth 2000, pet. denied) (Dauphinot, J., dissenting). (6)
	In Cuellar v. State, after holding that an allegation of juror misconduct had been
waived, Justice Yañez, taking the unusual step of writing a separate concurrence to her own opinion
of the court, also commented on the purpose of juror questionnaires, noting that they are intended
to elicit basic information which would otherwise have to be brought out in voir dire, thus
minimizing the length of the process.  See Cuellar v. State, 943 S.W.2d 487, 495 (Tex.
App.--Corpus Christi 1996, pet. ref'd) (Yañez, J., concurring).  Although Cuellar was not a juror-qualification case, Justice Yañez's observations are helpful.  She concluded that

when a potential juror answers a question on a jury card in a manner that would not
arouse any reasonable suspicion that the juror might be biased or prejudiced, . . .
counsel is entitled to rely on the truthfulness and accuracy of the response.  In such
instance, . . . counsel should not be required to inquire further into that response
during voir dire in order to preserve error.  To rule otherwise would undermine one
of the primary purposes of the information cards.
Id. at 496 (footnote omitted).
	We have been unable to locate any case, and have been cited to none, where a
complainant's lack of diligence in discovering facts that would statutorily disqualify a juror from
service has been discussed.  The justice system's use of devices to expedite the trial of cases should
not become a snare for the advocates who practice within that system.  We recognize that a tension
exists between the justice system's desire to advance cases with dispatch and the obligation of
counsel to use diligence to uncover facts that could lead to a potential juror's disqualification.
	We believe that these competing interests may be balanced on a case-by-case basis. 
The legislature has established certain minimum qualifications for jurors.  See Tex. Gov't Code Ann.
§ 62.102 (West 1998).  The supreme court has held that "the rules and statutes governing the
qualifications of jurors and the requisites of [jury] verdicts" are to be given effect and that a party
who suffers an adverse 10-2 verdict returned by fewer than 10 qualified jurors has suffered material
injury as a matter of law.  Palmer Well Servs., 776 S.W.2d at 577.
	In the case before us, the question posed was unambiguous, understood by Garcia,
and capable of being answered "yes" or "no."  The question did not inquire into the subjective state
of mind of the potential jurors or address whether they could be fair and impartial, thus perhaps
requiring follow-up questions.  There is no reason to believe that had additional questions been
asked, Garcia would have responded differently.  As was within her discretion, the district court had
restricted the time available to the parties for voir dire.  Under these particular facts, we tip the
balance in favor of Preiss and hold that because he was justified in relying on Garcia's juror-questionnaire response and thus satisfied his duty of diligence, the district court abused her discretion
in overruling his motion for new trial.  To hold otherwise would undermine the utility of juror
questionnaires and unduly extend trials by requiring counsel to unnecessarily inquire into the same
information that had already been disclosed. (7)  We sustain Preiss's first issue. (8) 

CONCLUSION
	Because we have held that a juror who participated in the district-court verdict was
not qualified to serve on the jury (a fact that was not discovered until after the verdict), that Preiss
was diligent in discovering the facts forming the basis of the disqualification, and that Preiss was
harmed as a matter of law when fewer than ten qualified jurors returned the verdict, we reverse the
district-court judgment and remand this cause to that court for a new trial. 


  
					Lee Yeakel, Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Reversed and Remanded
Filed:   October 11, 2001
Publish
1.      	The healthcare providers argue that because Preiss's amended motion for new trial was filed
more than thirty days after the district court signed the original final judgment, this Court may not
consider issues raised in the amended motion.  See Kalteyer v. Sneed, 837 S.W.2d 848, 850-51 (Tex.
App.--Austin 1992, no writ); Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53, 55 (Tex.
App.--Beaumont 1987, no writ).  The signing of the amended final judgment and the district court's
overruling of Preiss's subsequent motion for new trial renders this argument moot.
2.      	Although the supreme court and court of criminal appeals agree that the provisions of section
62.102 apply to both civil and criminal cases and may be waived, the degree of proof necessary to
demonstrate that the complainant suffered significant harm because of the unqualified juror is
different.  Since 1993, the code of criminal procedure has provided that

[a] conviction in a criminal case may be reversed on appeal on the ground that a juror
in the case was absolutely disqualified from service . . . only if . . . the disqualification
was not discovered or brought to the attention of the trial court until after the verdict was
entered and the defendant makes a showing of significant harm by the service of the
disqualified juror.

Tex. Code Crim. Proc. Ann. art. 44.46 (West Supp. 2001) (emphasis added).  This Court has
observed that article 44.46 was enacted by the legislature in response to Thomas v. State, 796 S.W.2d
196 (Tex. Crim. App. 1990), which held that "service by an absolutely disqualified juror was an error
that could not be waived and that required a new trial without a showing of harm."  Hernandez v.
State, 952 S.W.2d 59, 69 (Tex. App.--Austin 1997) (citing Thomas, 796 S.W.2d at 198-99) vacated
on other grounds by 957 S.W.2d 851 (Tex. Crim. App. 1998).  Thus, for the statute to have meaning,
"the defendant is entitled to a new trial only if he demonstrates that the [disqualified] juror's service
caused him significant harm beyond the mere fact of conviction."  Hernandez, 952 S.W.2d at 71;
accord State v. Read, 965 S.W.2d 74, 77 (Tex. App.--Austin 1998, no pet.).  In neither Thomas,
Hernandez, nor Read did the court discuss the juror-qualification provisions of government code
section 62.102.  See Thomas, 796 S.W.2d at 197; Hernandez, 952 S.W.2d at 69; Read, 965 S.W.2d
at 76-77.  In Read, a jury-card question asked, "Have you ever been an accused, complainant or
witness in a criminal case?"  Read, 965 S.W.2d at 76.  The juror answered "No," in spite of the fact
that she had been convicted for misdemeanor theft.  Id.  The juror also failed to disclose several other
criminal accusations.  Id.  The trial court granted the defendant a new trial without making findings
or stating the reasons for granting the motion.  Id.  In affirming the decision, this Court stated: "The
trial court could reasonably conclude that the juror's actions caused Read significant harm within
the meaning of article 44.46.  The court could also conclude that the juror was guilty of misconduct
warranting a new trial both under rule 21.3(d) and (g) of the Rules of Appellate Procedure
[(defendant must be granted new trial when juror guilty of corrupt conduct or has engaged in such
misconduct that defendant did not receive fair and impartial trial)] and in the interest of justice."  Id.
at 78.

	With regard to civil cases, however, the supreme court has clearly stated that a complainant has
been materially injured as a matter of law "by the rendition of an unfavorable verdict by less than
the requisite number of qualified jurors."  Palmer Well Servs., Inc. v. Mack Trucks, Inc., 776 S.W.2d
575, 577 (Tex. 1989).

	Significantly, the legislature, in response to Palmer Well Services, did not amend chapter
62.102 of the government code. 
3.      	In Jenkins, however, the jury's verdict was unanimous; "[t]hus, one juror's lack of
qualifications could not have materially affected the verdict."  Jenkins v. Chapman, 636 S.W.2d 238,
240 (Tex. App.--Texarkana 1982, writ dism'd w.o.j.).  
4.      	Garcia's open-court responses during voir dire were made following questions by the
healthcare providers' attorney inquiring about bumper stickers on jurors' automobiles and family
members' health and experience with physicians and hospitals.
5.      	Voir dire began August 7, 2000, and the jury returned its verdict on August 22.
6.      	Garza and Carr both relate to the propriety of jury shuffles and do not address juror
qualifications.  See Carr v. Smith, 22 S.W.3d 128, 131 (Tex. App.--Fort Worth 2000, pet. denied)
(citing Tex. R. Civ. P. 223); Garza v. State, 988 S.W.2d 352, 353 (Tex. App.--Fort Worth) (citing
Tex. Code Crim. Proc. Ann. art. 35.11 (West Supp. 1999)), rev'd, 7 S.W.3d 164 (Tex. Crim. App.
1999).
7.        We also note the importance the legislature places on the use of juror questionnaires.  As of
January 1, 2001, all written jury summonses must include a juror questionnaire developed by the
Office of Court Administration of the Texas Judicial System.  See Tex. Gov't Code Ann. § 62.0132
(West Supp. 2001); Act of May 27, 1999, 76th Leg., R.S., ch. 539, § 2(c), 1999 Tex. Gen. Laws
3035, 3036.
8.      	Because we sustain Preiss's first issue, we do not address his other issues.  See Tex. R. App.
P. 47.1.
