                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00204-CV


BNSF RAILWAY COMPANY                                                 APPELLANT

                                        V.

STACY WIPFF                                                            APPELLEE


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           FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION

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         Appellant BNSF Railway Company (“BNSF”) appeals from a jury verdict in

favor of Appellee Stacy Wipff. In three issues, BNSF challenges the trial court’s

denial of its demand for a jury shuffle, the sufficiency of the evidence to support

the jury’s damage award for Wipff’s future pain and mental anguish, and the trial

court’s exclusion of evidence BNSF attempted to introduce during its cross-

examination of Wipff. We reverse and remand for a new trial on the jury-shuffle

issue.
                              I. BACKGROUND

                    A. FACTS LEADING TO WIPFF’S LAWSUIT

      The underlying facts are largely undisputed on appeal. Wipff worked for

BNSF as a conductor. On November 10, 2008, Wipff was the conductor for a

train traveling from Winslow, Arizona, to Seligman, Arizona. The engineer on the

train, Robert Diehl, had a history of safety and rule violations. Wipff and the

brakeman began having problems with Diehl, and Wipff promptly reported the

problems to her supervisor. On November 11, while Wipff was attempting to

remove several cars from the train, Diehl intentionally mishandled the train,

jostling Wipff from the top of a car and injuring her back.     Although Wipff

unsuccessfully attempted to work after the accident, she never returned to work

for BNSF as a conductor.

      In October 2010, Wipff filed suit against BNSF under the federal

Employers’ Liability Act (“FELA”), arguing that BNSF breached its nondelegable

duty to provide Wipff with a safe place to work. See 45 U.S.C.A. § 51 (West

2007); Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558, 107

S. Ct. 1410, 1412 (1987).

                              B. JURY SELECTION

      On Friday, January 6, 2012, at 9:00 a.m., the trial court conducted a

pretrial hearing. The trial court informed counsel that the veniremembers, who

were located in the central jury room, were completing detailed questionnaires.

The questionnaire informed the veniremembers that they were answering the


                                       2
questions “under penalty of perjury.” BNSF’s counsel, Susan J. Travis, did not

view the venire while it was in the central jury room. The trial court began asking

counsel about the expected length of voir dire and suggested that the completed

questionnaires “should speed up voir dire.”       The trial court then instructed

counsel that jury selection would begin at 10:00 a.m. on Monday, January 9. The

hearing ended at approximately 11:00 a.m. on January 6. Travis received copies

of the completed questionnaires at 1:00 p.m. and copies of the information cards

at 4:15 p.m.

      On Monday, January 9, the trial court called the case for trial, and Travis

immediately demanded a shuffle of the venire on the record. Travis stated she

had not seen the venire on Friday, but she acknowledged that she had reviewed

the questionnaires before appearing on Monday and demanding the shuffle.

Travis clarified, however, that her decision to demand a shuffle had been

“primarily based” on the information cards rather than the questionnaires. The

trial judge, relying on a case from this court, expressed that he felt bound to deny

the jury-shuffle demand because the questionnaires had been reviewed,

beginning voir dire; thus, the shuffle demand was untimely. See Tex. R. Civ. P.

223; Carr v. Smith, 22 S.W.3d 128, 133–34 (Tex. App.—Fort Worth 2000, pet.

denied).

      The venire then entered the courtroom. The trial court gave the venire the

required admonitory instructions. See Tex. R. Civ. P. 226a. After conducting

voir dire and excusing some veniremembers for cause, the trial court instructed


                                         3
counsel to exercise their peremptory strikes. BNSF exercised all of its allotted

peremptory strikes. See Tex. R. Civ. P. 233. The trial court seated the jury from

the remaining veniremembers, gave the appropriate oath, and gave the

prescribed jury instructions. See Tex. R. Civ. P. 226a, 236. Travis’s co-counsel

then stated on the record that two objectionable jurors were seated after he had

to expend two peremptory strikes on veniremembers that were more

objectionable but were not excused for cause. 1

                                     C. TRIAL

      The jury found in favor of Wipff and awarded her $2,718,653 in damages,

including $1,000,000 for “[p]hysical pain and mental anguish that, in reasonable

probability[,] will be sustained in the future.” BNSF filed a motion to disregard the

jury’s verdict because it was supported by insufficient evidence. See Tex. R. Civ.

P. 301. The trial court rendered final judgment in accordance with the jury’s

verdict.

      BNSF then filed a motion for new trial again raising the insufficiency of the

evidence to support the jury’s verdict and asserting that the trial court erred by

denying BNSF’s timely demand for a shuffle. In an affidavit attached to the new-

trial motion, Travis stated that she did not review the questionnaires before

      1
       The timeliness of this objection is not an issue here because the record
shows that BNSF alerted the trial court to this issue before the jury was seated.
See Cortez ex rel. Puentes v. HCCI–San Antonio, Inc., 159 S.W.3d 87, 91 (Tex.
2005) (holding objection to denial of cause challenge timely presented if made
before jury is seated). The parties apparently agreed that BNSF could timely
make its objection on the record after the jury was seated.


                                         4
deciding to demand a shuffle and again averred that her decision to demand a

shuffle was based on the information cards. Travis stated she made the shuffle

demand at the first opportunity to do so. The trial court denied the motion for

new trial. BNSF timely filed its notice of appeal.

                     D. ORDER REGARDING PENDING MOTIONS

      On appeal and in response to BNSF’s jury-shuffle argument, Wipff

attached to her appellate brief an affidavit by the jury bailiff for Tarrant County,

Paula Giaimo Morales. Morales averred that her “standard operating procedure”

is to administer an oath to the summoned veniremembers before they complete a

case-specific questionnaire. See, e.g., Tex. R. Civ. P. 226. BNSF moved to

strike the affidavit, which was signed four days before Wipff filed her appellate

brief, because the affidavit is not part of the appellate record and, thus, cannot be

considered by this court. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.

2001). Wipff then moved to supplement the record with Morales’s affidavit. For

the reasons stated below in our discussion of the jury shuffle, we grant BNSF’s

motion to strike and deny Wipff’s motion to supplement.

                              II. VENIRE SHUFFLE

                  A. STANDARD OF REVIEW TO DETERMINE ERROR

      In its first issue, BNSF argues that the trial court erred by denying its timely

demand for a shuffle of the venire. BNSF asserts that determining whether the

trial court erred is governed by a de novo standard of review. Wipff contends

that any error in refusing the jury shuffle is analyzed under an abuse of discretion


                                          5
standard. The procedural rule governing jury shuffles creates mandatory duties

for a trial court. See Tex. Gov’t Code Ann. § 311.016 (West 2013) (providing

“shall” imposes a duty); Tex. R. Civ. P. 223 (providing trial court “shall” shuffle

venire upon timely demand). The construction of this mandatory procedural rule

is a legal question that we must review de novo. See Morris v. Aguilar, 369

S.W.3d 168, 171 n.4 (Tex. 2012). Therefore, we give no deference to the trial

court’s conclusion and give “a completely fresh look at the trial court’s rulings.”

W. Wendell Hall et al., Hall’s Standards of Review in Texas, 42 St. Mary’s L.J. 3,

14 (2010).

                            B. TIMELINESS OF DEMAND

      If a party timely demands a shuffle of the venire, the trial court is required

to grant the demand: “[T]he trial judge of such court, upon the demand prior to

voir dire examination by any party or attorney in the case . . ., shall cause the

names of all members of such assigned jury panel in such case to be . . .

shuffled.” Tex. R. Civ. P. 223 (emphases added). Wipff asserts that because the

venire had been sworn in the central jury room and because BNSF reviewed the

jury questionnaires before demanding the shuffle, voir dire had begun, rendering

its shuffle demand untimely; thus, the trial court correctly denied the demand.

      When voir dire begins is the operative issue in this case. Indeed, Rule 223

is clear that a shuffle demand must be made before voir dire begins. Id.; see 4

Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 21:14 (2d

ed. 2001 & Supp. 2012–13). We have held that a shuffle demand is untimely in a


                                         6
civil case if done after counsel reviews case-specific questionnaires that give

detailed information beyond the “name, rank, and serial number” given on

information cards. Carr, 22 S.W.3d at 133–34. Not surprisingly, Wipff relies on

the fact that BNSF reviewed a case-specific questionnaire before demanding the

shuffle. It is important to delineate specifically what had occurred before BNSF’s

demand: BNSF had not seen the venire, it is unclear if the venire had been

sworn, the venire answered the questionnaires under penalty of perjury, counsel

had received the completed questionnaires and information cards, and the venire

had not been given the Rule 226a instructions.

      We first need to discuss Wipff’s attempt to introduce an affidavit

suggesting that the venire had been sworn while in the central jury room before

completing their questionnaires. As BNSF points out, this evidence is improper

because it was not before the trial court when it denied BNSF’s shuffle demand,

nor was it presented at the hearing on BNSF’s motion for new trial. E.g., Felt v.

Comerica Bank, No. 14-11-00783-CV, 2013 WL 1908875, at *1 (Tex. App.—

Houston [14th Dist.] May 9, 2013, no pet.). Therefore and as stated above, we

deny Wipff’s motion to supplement and grant BNSF’s motion to strike. We have

not considered Morales’s affidavit in this appeal.

      The questionnaire itself informed the veniremembers that the answers they

provided to the written questions were to be truthful “to the best of [their]

knowledge” and were given under penalty of perjury. This warning is not the

same as the oath required to be given to a venire under Rule 226: “You, and


                                         7
each of you, do solemnly swear that you will true answers give to all questions

propounded to you concerning your qualifications as a juror, so help you God.”

Tex. R. Civ. P. 226.     The record only reflects the jurors were seated in the

courtroom before the trial court gave the venire the Rule 226a instructions. We

have no evidence that shows they were ever sworn under Rule 226.

      But it is clear that the trial court had not given the venire the prescribed

instructions under Rule 226a before the requested jury shuffle.       The Texas

Supreme Court, in ordering the form of the Rule 226a instructions, mandated that

they “shall be given by the court to the members of the jury panel after they have

been sworn in as provided in Rule 226 and before the voir dire examination.”

Supreme Court of Tex. Admin. Order, Amendments to Texas Rules of Civil

Procedure 281 and 284 and to the Jury Instructions under Texas Rule of Civil

Procedure 226A, Misc. Docket No. 11-9047 (Mar. 15, 2011) (emphasis added)

(text also included as editor note to Tex. R. Civ. P. 226a). Under the clear terms

of the supreme court’s order amending the instructions, voir dire is not to begin

until after the admonitory instructions are given to the venire. Tex. R. Civ. P.

226a historical notes.     While true that case-specific questionnaires were

completed and received by counsel, counsel had not viewed the venire, and the

trial court had not given the venire the prescribed instructions. These two facts

distinguish this case from Carr. 2    See Carr, 22 S.W.3d at 133–34 (“The


      2
       Carr did not specify if the Rule 226a instructions had been given before
the jury shuffle was demanded and focused on the “substantive inquiry” of the

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distinction between oral and written questioning is virtually meaningless,

especially where each party has already had the opportunity to view the panel.”

(emphasis added)). Therefore, voir dire had not begun in this case even though

counsel had an opportunity to review the questionnaires.

      If Wipff’s position were to prevail on this point, we question whether a party

ever could realize the intended benefit of comprehensive questionnaires. Such

questionnaires take time to review, which should be undertaken before

questioning the venire to ensure a prepared give-and-take between the attorneys

and the veniremembers. Wipff’s position would require the attorneys to wait until

after the veniremembers are seated and after a shuffle demand has been made

to review the detailed questionnaires.           This defeats the purpose of

questionnaires—to aid in preparing for voir dire—and would waive a party’s right

to a shuffle. The court of criminal appeals has recognized this problem: “And in

some cases written questionnaires or juror information cards may be submitted

long in advance of voir dire. To hold that this information must be concealed until

immediately before voir dire begins (or else the party forfeits his shuffle) could




start of voir dire, which was triggered in Carr by counsels’ viewing of the
veniremembers in their seated order, counsels’ opportunity to review the case-
specific and detailed questionnaires, and the trial court’s swearing of the venire
under Rule 226. Carr, 22 S.W.3d at 134, 139. Therefore, the timing of the Rule
226a admonishments was not at issue in Carr.


                                         9
result in impeding the efficient progression of trial proceedings.” Garza v. State,

7 S.W.3d 164, 166 (Tex. Crim. App. 1999). 3

      BNSF’s shuffle demand was timely under Rule 223 because it was made

before voir dire began. As such, the trial court erred by denying BNSF’s shuffle

demand.

                                B. HARM ANALYSIS

                                1. Presumed Harm

          BNSF asserts that harm should be presumed when a jury shuffle is

erroneously denied. Wipff relies on an opinion from our sister court of appeals in

arguing that any error in denying a jury shuffle is subject to the traditional harm

analysis of Rule 44.1. Jackson v. Williams Bros. Constr. Co., 364 S.W.3d 317,

321–22 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). But in Jackson, the

appellant did not complain about the participation of jurors who should have been

excluded and the resulting harm “arising from . . . the participation of a juror as to

whom no valid legal challenge was preserved.” Id. at 322 (emphasis added). In

short, the trial court denied the Jackson appellant’s jury-shuffle demand (which

the court of appeals assumed was erroneous), and the court of appeals refused

to presume harm because the Jackson appellant did not challenge the initial


      3
       We recognize that Carr holds that civil precedents control a review of the
propriety of a granted jury shuffle. Carr, 22 S.W.3d at 133. However, we agree
with the court of criminal appeals regarding the practical effect of a rule requiring
counsel to actively refrain from viewing the venire and reviewing questionnaires
before demanding a shuffle.


                                         10
randomness of the venire or otherwise complain about the effects of participation

by any particular juror who should have been excluded. Id. at 321–22; cf. Rivas

v. Liberty Mut. Ins. Co., 480 S.W.2d 610, 612 (Tex. 1972) (rejecting presumed

harm from denial of jury shuffle because no showing litigant “was required to

accept a juror which it otherwise would have stricken had it not been for the trial

court’s ruling”).

       Here, BNSF specifically argued to the trial court that two objectionable

jurors were seated that it would have struck if it could have.       As such, we

presume harm because “we cannot know for certain that [the objectionable

jurors’] inclusion did not affect the verdict.”   Cortez, 159 S.W.3d at 91.    We

understand that Cortez involves the erroneous denial of challenges for cause to

veniremembers, while this case concerns the erroneous denial of a jury shuffle.

But other than showing either that objectionable jurors were seated after a timely

jury-shuffle demand was denied and after the exhaustion of peremptory

challenges or that the original order of the venire was not random, a party would

seem to have no other way to show harm from the denial of a timely jury-shuffle

demand. See, cf., Rivas, 480 S.W.2d at 611–12 (denying presumption of harm

from denial of jury-shuffle demand because venire randomly ordered through

substantial compliance with Rule 223); Mendoza v. Ranger Ins. Co., 753 S.W.2d

779, 780–81 (Tex. App.—Fort Worth 1988, writ denied) (presuming harm from

denial of motion for mistrial based on venire that was impermissibly assembled

and shown not to be random); cf. Carr, 22 S.W.3d at 135–36 (adopting


                                        11
intermediate harm standard to gauge effect of erroneous grant of shuffle while

recognizing “it would be unreasonable to require a complaining party to show

specific harm like that required to preserve error for failing to grant a challenge

for cause”). We conclude that by alerting the trial court that it was forced to take

two objectionable jurors, BNSF preserved the error arising from the improper

denial of the jury shuffle; therefore, we presume harm from the participation of

those objectionable jurors, which arose from the improper denial of a jury shuffle.

See Cortez, 159 S.W.3d at 91 (holding harm presumed from erroneous denial of

challenge for cause because “we cannot know for certain that [veniremember’s]

inclusion [on the jury] did not affect the verdict”); Jackson, 364 S.W.3d at 321–22

(stating “[i]f the ordinary procedure for preserving error relating to a particular

juror had been followed, any such error could have been remedied by the trial

court”) (relying on Cortez, 159 S.W.3d at 91).

                        2. Intermediate Harm Standard

      Even if we applied the intermediate harm analysis we applied in Carr to

review the erroneous grant of a jury shuffle—which requires a showing of a

materially unfair trial—BNSF would be able to make such a showing. See Carr,

22 S.W.3d at 135–36 (applying “relaxed” error standard in “the jury selection

context”).   In determining whether a trial was “hotly contested” and, thus,

materially unfair, we consider (1) the number of special issues, (2) the count of

the verdict, (3) the absence of summary-judgment motions or motions for

instructed verdict, (4) the pleadings and the jury findings, (5) whether the record


                                        12
shows how the parties used their strikes, and (6) whether there were any double

strikes. Id. at 136.

      Before trial, BNSF filed a detailed motion for summary judgment

challenging most aspects of Wipff’s case.            During jury selection, BNSF

exhausted its allotted peremptory challenges, and there were no double strikes.

After Wipff rested her case but before BNSF began to present its evidence,

BNSF moved for a directed verdict arguing that there was no evidence that

BNSF was a common carrier under FELA. The jury was asked to answer four

questions, one of which had eight subparts. The jury’s verdict was eleven to one,

with the two jurors BNSF previously could not challenge voting in favor of Wipff. 4

After the jury’s verdict, BNSF moved the trial court to disregard several of the

jury’s findings based on insufficient evidence. BNSF also filed a motion for new

trial attacking the jury’s verdict and the denial of a jury shuffle. Viewing all these

factors in light of the entire record, BNSF has shown that the trial was materially

unfair based on the erroneous denial of a jury shuffle arguably resulting in the

seating of two objectionable jurors. We sustain issue one.




      4
       Of course, ten jurors had to concur on all answers to render a verdict in
Wipff’s favor. See Tex. R. Civ. P. 292(a); Palmer Well Servs., Inc. v. Mack
Trucks, Inc., 776 S.W.2d 575, 576 (Tex. 1989). Had the two objectionable jurors
not served on the jury, it could have resulted in only a nine to three verdict, which
would not result in recovery for Wipff. See Palmer Well, 776 S.W.2d at 576.


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                              III. CONCLUSION

      Because the trial court erred by denying BNSF’s timely demand for a jury

shuffle and because harm is either presumed or the required harm is shown,

BNSF is entitled to a new trial. See, e.g., Shepherd v. Ledford, 962 S.W.2d 28,

34 (Tex. 1998); Mendoza, 753 S.W.2d at 781. Therefore, we reverse the trial

court’s judgment and remand the case to that court for a new trial. See Tex. R.

App. P. 43.2(d). Because of our disposition of issue one, we need not address

the remaining issues. See Tex. R. App. P. 47.1.



                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: August 8, 2013




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