i i i i i i

MEMORANDUM OPINION

No. 04-08-00091-CV

Daniel Roy LOPEZ and Antonia R. Lopez, Individually and

as Representatives of the Estate of Daniel Roy Lopez Jr., 

Appellants

v.

FORD MOTOR COMPANY,

Appellee

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. DC-04-254

Honorable Alex William Gabert, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Sitting: Catherine Stone, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

Delivered and Filed: March 11, 2009

AFFIRMED

Daniel Roy Lopez and Antonia R. Lopez, individually and as representatives of the Estate

of Daniel Roy Lopez Jr., appeal the take-nothing judgment rendered in favor of Ford Motor

Company after a jury trial. We affirm the judgment.
04-08-00091-CV

-2-

BACKGROUND

The Lopezes sued Ford after their son Daniel Lopez Jr. was killed in a traffic accident while

driving a Ford pickup truck. The jury found against the Lopezes on their manufacturing and design

defect claims and it assigned eighty percent of the responsibility for the death to the decedent. The

trial court rendered judgment on the verdict on June 13, 2007. On July 11, 2007, the Lopezes filed

a motion for new trial on the ground of “juror misconduct and error,” alleging one of the jurors

mistakenly signed the verdict form. On August 24, 2007, the Lopezes filed a supplemental motion

for new trial, claiming juror misconduct on the grounds of an improper outside influence. The trial

court denied both motions after hearing evidence and argument. The Lopezes appeal, arguing a new

trial should have been granted because of juror error and jury misconduct. 

DISCUSSION

In their first issue, the Lopezes argue the trial court should have granted their original motion

for new trial because one of the jurors mistakenly signed the verdict, resulting in an “error” or

“irregularity in juror voting” that constitutes juror misconduct. We review the trial court’s order on

a motion for new trial for abuse of discretion. Pharo v. Chambers County, 922 S.W.2d 945, 948

(Tex. 1996). Whether jurymisconduct occurred is a question of fact for the trial court. Golden Eagle

Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). In the absence of findings of fact, we

assume the trial court made all findings in support of its decision to deny the motion for new trial.

Id. If there is conflicting evidence on the issue, we defer to the trial court’s finding. Pharo, 922

S.W.2d at 948.

The verdict was signed by ten jurors. Juror Elmira Alanis’s signature appeared first on the

verdict form. When the verdict was returned, the foreperson read the verdict aloud in open court.
04-08-00091-CV

-3-

No objections were raised. At the Lopezes’ request, the trial court polled the jury. Beginning with

Mrs. Alanis, the trial court asked whether the verdict read by the presiding juror was her verdict.

Mrs. Alanis and nine others answered “yes.” After the jury was polled, the trial court accepted the

verdict. 

At the hearing on the motion for new trial, Mrs. Alanis testified on direct examination she

thought the first question in the charge — whether there was a design defect in the door of the pickup

truck — should be answered “yes.” She stated she signed the verdict because she thought she “was

signing for mistrial.” On cross-examination, however, Mrs. Alanis conceded she understood at the

time that ten votes were necessary to support a verdict and that the verdict she signed answered “no”

to question number one. She testified “I was under pressure I didn’t want to sign and at the end I just

signed. I got the paper and I signed it.” Mrs. Alanis testified she “was the last one to decide,” but

when she did, she was the first person to sign the verdict. Mrs. Alanis acknowledged being in the

courtroom when the verdict was announced. She also recalled being asked by the trial judge whether

she agreed with the verdict and answering “yes.” On redirect examination, the Lopezes’ attorney

asked her whether the verdict reflected her “ultimate decision.” Mrs. Alanis responded, “No, I was

very confused and I was very – I, I was under pressure. I, I was like – yeah, I had a lot of pressure

and, uh, I just signed it.” 

Mrs. Alanis’s testimony was conflicting: she testified she thought the answer to question

number one should be “yes” and she believed she was “signing for a mistrial;” however, she also

testified she understood the verdict contained a “no” vote to question one and that she nevertheless

“decided” to sign the verdict. The trial court reasonably could have found that Mrs. Alanis’s

signature on the verdict form accurately reflected her vote. A new trial is not warranted merely
04-08-00091-CV

-4-

because a juror had doubts or misgivings about her vote. See State v. Finch, 349 S.W.2d 780, 782-83

(Tex. App.—San Antonio 1961, no writ). We hold the trial court did not abuse its discretion by

denying the motion for new trial. 

In their second issue, the Lopezes contend the trial court abused its discretion in denying their

supplemental motion for new trial. The original motion for new trial, alleging juror misconduct

because of Mrs. Alanis’s vote, was timely filed within thirty days of the judgment. The supplemental

motion, alleging for the first time juror misconduct due to an improper outside influence, was filed

more than thirty days after the trial court signed the judgment. The motion was untimely. See TEX.

R. CIV. P. 329b(b); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). A trial court has discretion

to consider an untimely supplemental motion for new trial while the court retains plenary power. Id.

“[B]ut if the trial court denies a new trial, the belated motion is a nullity and supplies no basis for

consideration upon appeal of grounds which were required to be set forth in a timely motion.” Id.

Because the untimely motion did not preserve any issue for appellate review, we overrule the

Lopezes’ second issue and affirm the trial court’s judgment. See id.

COSTS

As a general rule, the appellant pays the cost to prepare the appellate record and this court

awards the prevailing party the appellate costs incurred by that party. See TEX. R. APP. P. 34.6(c )

(3); 43.4. However, we may tax costs otherwise for good cause. See R. 43.4; see, e.g., Castillo v.

Am. Garment Finishers Corp., 965 S.W.2d 646, 655-56 (Tex. App.—El Paso 1998, no pet.). In this

case, the Lopezes requested a partial record, consisting of the motion for new trial hearing and the

portions of the trial proceedings that occurred after the jury retired to deliberate. When Ford

subsequently requested the reporter prepare “all other portions of the reporter’s record, including
04-08-00091-CV

-5-

opening statements, closing statements, and all trial testimony, together with exhibits,” the Lopezes

moved to require Ford to pay the cost of the additional parts of the record. After a hearing on the

motion, the trial court ordered Ford to pay for preparation of the additions, impliedly finding the

designated additions to the record were unnecessary to the appeal. See R. 34.6(a)(3). Ford paid the

court reporter and the record of the trial was prepared and filed. In its brief, Ford requests we tax

the cost of the record, as well as all other costs of this appeal, against the Lopezes. 

The partial reporter’s record requested by the Lopezes contained all that was necessary for

us to dispose of this appeal. Had appellants successfully shown that only nine jurors had endorsed

the verdict, as they argued in their first issue, we would have remanded the cause. No review of the

trial record would have been necessary. And, as Ford successfully argued both in the trial court and

on appeal, the Lopezes’ issue claiming an improper outside influence on the jury was not raised in

a timely motion for new trial and therefore was not preserved for appellate review. No review of the

reporter’s record was necessary.

We have considerable discretion in taxing costs on appeal. See Recognition Commc’ns, Inc.

v. Am. Auto. Ass’n, 154 S.W.3d 878, 894-95 (Tex. App.—Dallas 2005, pet. denied). Although the

trial court’s order that Ford pay the cost to prepare the additional parts of the record does not affect

our power to tax costs differently, see R. 34.6(c)(3), we agree with the trial court’s finding that the

portions of the record Ford requested were unnecessary. Accordingly, we find good cause to depart

from the general rule and, in the interests of justice, we order Ford to bear the cost of the portions

of the reporter’s record it requested. We tax all other costs incurred by Ford in this appeal against

appellants.

Steven C. Hilbig, Justice