NO. 07-02-0435-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B MARCH 4, 2004

______________________________ PHYLLIS KAY WELLS, APPELLANT

V. MARION KANE BARROW AND AMANDA BELLE BARROW, APPELLEES

_________________________________ FROM THE 181ST DISTRICT COURT OF RA NDALL COUNTY; NO. 49,94 8-B; HONO RABLE J OHN B. BOARD, JUD GE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
OPINION Appella nt, Phyllis Kay W ells, challenges a judgment for appellees Marion Kan e Barrowand Amanda Belle Barrow, rendered on a jury verdict for personal injuries arising from a car collision. Appellant presents a single point of error challenging the composition of the jury

which h eard the case. We affirm.-2-

The basic fa cts of thecollisi on are not in dispute. Appellant was the driver of the third of three cars stopped at a traffic signal. While waiting, he r foot slipped off the brake pedal and hit

the accelerator. She struck the car in front of her, which in turn struck the first
car. Appellee Amanda Barrow was the front sea t passenger in that vehicle . S he was approx ima tely33 weeks pregnant at the time of the collisio n. Appellees brought suit against appella nt for neg ligence

. The case was called for trial in June 20 02. The jury venire consisted of 42 members. After voir dire, the trial court sustained ten challenges for cause. The parties exercised six peremptory strikes eac h. Three of those peremptory strikes overlapped, le aving 23 venire members. The sixth “unstruck” venire member was Li nd a Pearson

. When the court clerk called the names of panel members who would compose the jury, she mistakenly omitted Pearson’s name, resulting in another panel me mber, Sylvia McDade, serving on the jury. Neither party brought the error to the attention of the court at that time. After a two-day tri al, the ju ry returne d a unan imous ver dict for a ppellee s.
After the verdict, but before rendition of judgment, appellant filed a motion for new trial asserting, among other grounds, that the jury was not properly selected. Appellant’s motion argued i n support of her chal lenge to the jury that she was “entitled to a new trial because the jury chosen by the parties was n ot the jury that was impaneled to hear the case.” No contention was made that McDade was disqualified; she was not chall enged for
cause at trial. The trial court overruled the motion for new trial and rendered judgment for appelle es. Appe llant ti mely perf ected app eal from t hat judgme nt.1 Other than a citation to the Seventh Amendment, appellant presents n o federal law argumentin support of her appeal. Nor does she ass ert federa l law affords her greater rights than the Texas Constitution. -3- Appellant’s first argument on appeal is that the exclusion of Pearson violated her constitutional right to “select ajury.” A party’s right to a trial by jury is established by Article I, Section 15 of the Texas Constitution an d the Seventh Amendment to the U . S

. Constitution. 1 Ar

ticle V, Sect ion 13 of the Texas Constitution specifies that petit juries in districtcourt shall have twelve members. None of the au thority relied on b y appell ant supports her asserted right to “select” the members of a jury. The right to a j ury tria l encompasses a right to have the jury selected in substantial compliance with the applicable procedural s tatutes an d rules. Heflin v. Wilson , 297 S.W.2d 864, 866 (Tex.Civ.App.–Beaumont 19 56, writ ref’ d) (jury pa nel erron eously c hosen by jury commission method rather than required jury wheel method). Under those statutes and rules the parties have a role in excluding prospective jurors who are disqualified or unfit for service as jurors, by virtue of bias or prejudice or othe rwise. See Tex. Gov’t Code § 62.105 (Vernon 1998); Tex. R. Civ. Proc. 229. The statutes and rules also allow parties a limited opportun ity

to strike prospective jurors even when bias or prejudicecannot be shown, see Tex. R. Civ. Proc. 232-33, and provide for the involvement of the parties in some decisions to excuse prospecti ve juro rs , see Tex. Gov’t Code § 62.110(c) (Vernon 1998) (requiring approval of partie s for exc use of prospective juror for e conomic r eason). O ur state constitution, statutes and rules cannot be said , though, to grant litigan ts the rig ht to “select” jury members. Restated, the right to a jury trial is a right to have fact questions resolved byan impar

tial jury

. See Babc

ock v. Northwest

Memorial Hosp ., 767 S.W.2d 705, 709-4-

(Tex. 1989). That right is distinguishable from a righ t to have particular persons serve on the jury. Appellant’s argument is also premised on her position that the jury in this case was notselected in substantial compliance with the Rules of Civil P ro cedure. Appellant cites McDaniel

v. Yarbrough , 898 S.W.2d 251, 253 (Tex . 1995), in support of her argument that the clerk’s failure to call Pearson’s name whe n announcing the jury in accordance with “the simple, clear di rective of Rule 23 4 is a sh ocking l ack of compliance wi th that rule which resulted in funda mental, constituti onal erro r.” McDaniel did not speak

to the se lection of a jury. It concer ned the requirement of Article V, Section 13 of our state constitution and Rule of Civil Procedure 292 that a district court jury consist of twelve members unless not
more than three jurors die or “be di sabled f r om sitting.” The trial court had dismissed a juror during trial pu rsuant toRule 292 because the juror informed the court she coul d not return after a recess d ue to local flood ing. Id. at 252. A divided Supreme Court found such temporary

inability to return to the courthouse was not the type of disability contemplated by Articl e V, Sect ion 13 o r Rule 29 2. Id. at 253.
We find persuasi ve two ca ses in w hich pro cedural errors in format ion of th e venire
or jury were the basis for appeal. In City of San Augus tine v. Johnson , 349 S.W.2d 653 (Tex.Civ.App.–Beaumont 1961, w rit ref’d n.r.e.), acounty ju dge fail ed to adm inister a statutorily required oath to the county clerk on delivery o f the jury lists. Id. at 654. The court found no reversible error, distinguishing Heflin on the basis that the error did n ot involve the entire system of jury selection but “only the oversight of one step or link in the chain of proceedi ngs unde r the prop er law.” Id. at 654.-5-

In Rivas v. Liberty Mutual Ins. Co. , 480 S.W.2d 610 (Tex. 1972), o ur Suprem e Court
co nsidered the effec

t of the fa ilure to follow arule req uiring me mbers of ajury panel b e listed in the o rder thei r names w ere drawn from the jury wheel. It was undisputed that
names were listed in the order the summo ns letter

s were co llected by the ba iliff. Id. at 611. Relying on Heflin , the cour t of appe als held the proce dure used , and the de nial of ajury shuffle, raised a n inferen ce of harm and reve rsed. Liberty Mutual Ins. v. Rivas , 466 S.W.2d 823 (Tex.Ci v.App.–C orpus Ch risti 197 1), reversed , 480 S.W.2d 610. The Sup reme Cour t disagreed, finding the proce dure empl oyed “s u bstantially complied” with the underlying purpose of the rule to create a random list. 480 S.W.2d at 612. Of particular significance here is the co urt’s reje cti on of an arg ument based on the contention that denial of the requested jury

shuffle resulted in a different jury than would have heard the case had the
r equestbeen gra nted. Whi le conce ding theprocedur e followed was n ot the pro per one , the court concluded the method used did not probabl y cause, and was no t reasonabl y calculated to cause, the rendition of an improper judgment. It reversed the court of appeals and affir med the ju dgment of the trial court. Id.
We find Rivas

controlling in the case now before us. In each, there was a mistaken failureby court personnel to follow a procedural rule, the result of which was that different venire members made up the jury. As in Rivas , too, appella nt h as failed to make any showing that any member of the jury was not qu alified to serve.
Rivas disposes of appellant’s argument that a procedural error

in selecting a jury is fundamental constitu tional e rror not su bject towaiver or harmless error analysis. Rejection of a ppel lant’s a rgument i s consis tent with opinion s consid ering si milar cha llenges . In-6-

Berner v. Southwestern Public Service Co. , 517 S.W.2d 924 (Tex.Civ.App.--Amarillo 1974, writref’d n.r .e.), thiscourt hel d presentation of complain ts regarding the selection of a jury in a motion for new t rial are ordinari ly too la te. Id. at 925. This rule applies not onl y when the party is aware of the irregularity but also when he might have di scovered itby inquiry. Id. See alsoLopez

v. State , 437 S.W.2d 268, 269 (Tex.Crim.App. 1968) (applying rule in criminal context). While th is autho rity supp orts the p ropositi on that su ch compla ints are subject to

waiver, our disp osition is not de pendant on a find ing of wa iver. Alternatively, appellant

contends for the application of the “relaxed” harmless error standard of review utiliz ed by theFort Worth court of appeals in Carr v. Smith , 22 S.W.3d 128, 135 (Tex.App.--Fort Worth 2000, pet. denied). This standard requires the complaining party to show that the trial was mat erially unf air, without having to demonstrate specific harm. Id. Appellant argues the existence of hotly contested issues at trial establishes that the error resu lted in amaterial ly unfai r trial. A ccepti ng that the re were several contested issues here, wenonethe less fin d the “materially unfair” standard inappli cable. T he standa rd has been applied primarily in cases invo lvi ng p eremptory strikes. Lopez v. Foremost Paving, Inc., 709 S.W.2 d 643 (Tex. 1986) ; Garcia v. Central Power & Light Co ., 704 S.W.2d 734 (Tex . 1986); Patterson Dental Co. v. Dun n, 592 S.W. 2d 914 (Tex. 1979) ; Tamburellov. Welch , 392 S.W. 2d 114 (T ex. 1965 ); see Lorusso v. Members Mut. Ins. Co. , 603 S.W.2d 81 8 (Tex. 1 980); Dunlap v. Excel Corp. , 30 S.W .3d 42 7 (Tex.App.–Amarillo 2000, no pet.). This case does not involve the potentially unfair advantage that can result from the awarding of peremptory strikes. Nor did the clerk’s error here result in the kind of adverse effect on the rand omness of the jury or venir e that theFort

Worth court found in-7-

Ca r r , 22 S.W.3d at 133-35, and in Mendoza v. Ranger Ins. Co. , 753 S.W.2d 779 (Tex.App .–Fort

Worth 1988, writ deni ed). Nor d oes it involve the type of prejudicial miscondu ctthat concerned the majority in Mann v. Ramirez , 905 S.W.2d 275, 28 3 (Tex.App .– San Antoni o 1995, writ denied). The contention that a closel y contested case substitutes for a showing of harm was rejected in Rivas . 480 S.W.2d at 612. Fo llowing Rivas , we find this record does not demonstrate reversible error. Tex. R. App. Proc. 44.1. We overru le appel lant’s i ssue and affirm thejudgment of the tri al court.

James T. Campbell Justice