### OPINION
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BZ TIRE SHOP , Appellant

v. Brian BRITE and B rian B rite E nterprises, Inc., Appellees From the 2nd 25 th Judicial District Court , Guadalupe County, Texas Trial Court No. 09

- 1877

- CV Honorable W.C. Kirkendall , Judge Presiding Opinion by: Steven C. Hilbig, Justice Sitting: Rebecca S immons , Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice Delivered and Filed: October 31, 2012
AFFIRMED BZ Tire Shop (“BZ Tire”) appeals from a judgment rendered in favor of Brian Brite and Brian Brite Enterprises, Inc. (collectively “Brite”). In one issue, BZ contends the trial court erred in failing to grant a new trial after it was discovered that one juror was statutorily disqualified from serving on the jury. See T EX
. G OV ’ T C ODE A NN
. § 62.102(7) (West Supp. 2012). We affirm the trial court’s judgment.0 4

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- BACKGROUND BZ Tire filed suit against Brite for defective construction of a building. Venireperson Shawn Dozier was one of the eleven members of the jury that rendered a take

- nothing verdict. Before the parties conducted voir dire, the judge advised and questioned the jury panel about their qualifications to serve. Dozier told the judge t hat he had been arrested for writing a “hot check” in 1995 in Guadalupe County and paid a fine, but had never been placed on probation. After further questioning by the judge, the trial court indicated he believed Dozier had only been charged and not convi cted. The trial court allowed Dozier to remain on the venire panel and Dozier ultimately served on the jury.
A fter the verdict was rendered, BZ Tire discovered Dozier had pled guilty and was convicted of felony theft in Bexar County in 1996. BZ Tire fi led a Motion to Disregard the Verdict and/or Motion for New Trial. At the hearing on the motion, BZ Tire introduced certified copies of documents that demonstrated Dozier pled guilty to a felony theft in Bexar County in 1996 and successfully completed pro bation. Dozier testified at the hearing and explained that he believed he received deferred adjudication and therefore did not have a felony conviction. He also testified that because he believed he had received deferred adjudication for the theft charge , he did not mention it to the parties during voir dire. The trial court denied BZ Tire’s Motion to Disregard the Verdict and/or Motion for New Trial. ANALYSIS We review a trial court’s denial of a motion for new trial under an abuse of discretion stand ard. Waffle House, Inc. v. Williams , 313 S.W.3d 796, 813 (Tex. 2010); Medistar Corp. v. Schmidt , 267 S.W.3d 150, 159 (Tex. App.

— San Antonio 2008, pet. denied). A trial court abuses its discretion when it acts unreasonably or without regard for any guidin g legal principles.0 4

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- Medistar , 267 S.W.3d at 159

. BZ Tire contends the trial court erred in not granting its motion because Dozier was statutorily disqualified from serving on the jury. See T EX
. G OV ’ T C ODE A NN
. § 62.102(7)(West Supp. 2012) (“A person is disqualified to serve as a petit juror unless the person . . . has not been convicted of misdemeanor theft or a felony.”); Dempsey v. Beaumont Hosp., Inc. , 38 S.W.3d 287, 289

- 91 (Tex. App.

— Beaumont 2001, pet. dism’d); R.R.E. v. Glenn , 884 S.W.2d 189, 191

- 9 4 (Tex. App.

— Fort Worth 1994, writ denied). Brite does not dispute that Dozier was disqualified to serve on the jury, but instead argues a new trial was not warranted because BZ Tire failed to show harm arising from Dozer’s inclusion on the jury.
Contra ry to BZ Tire’s argument, the participation of an unqualified juror in the jury’s verdict does not automatically entitle a party to a new trial. See De Leon v. Longoria , 4 S.W.2d 222, 225 (Tex. App.

— San Antonio 1928, writ dism’d w.o.j.) (holding “the mere fact that a member of a jury in a civil case is [disqualified] does not of itself require that the verdict of that jury be set aside.”); see also Mercy Hosp. of Laredo v. Rios , 776 S.W.2d 626, 628 (Tex. App.

— San Antonio 1989, writ denied ) (holding appellant waived complaint that illiterate juror was unqualified); Jenkins v. Chapman , 636 S.W.2d 238, 240 (Tex. App.

— Texarkana 1982, writ dism’d) (holding appellant waived complaint regarding unqualified juror who was accepted and not complaine d about until after unfavorable verdict). However, we must determine whether , absent waiver or agreement, a showing of harm is required in order to be entitled to a new trial. The Texas Supreme Court has held that a party is materially injured by the re ndition of an unfavorable verdict when an unqualified juror voted with the majority in a 10

- 2 verdict. See Palmer Well Servs., Inc. v. Mack Trucks, Inc. , 776 S.W.2d 575, 577 (Tex. 1989). In making its determination, the court noted that Texas Rule of Civ il Procedure 292 permits a verdict of less than ten jurors of a twelve person jury only when three jurors die or become disabled from0 4

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- sitting. Id. at 576. Because one of the ten jurors voting for the verdict was not qualified to serve, the Court reasoned that Palmer was materially injured by the rendition of an unfavorable verdict by less than the requisite number of qualified jurors. Id. at 577. The court distinguished De
Leon by explaining that in De Leon a sufficient number of jurors remained that co uld have rendered a binding verdict

. Id. The court’s reasoning in Palmer suggests that a verdict rendered by a jury that includes one disqualified juror does not establish a material injury as a matter of law. U nder Palmer the presence of an unqualified juror in an 11

- 1 majority does not result in a reversal of the verdict as a matter of law when, as here, the required ten qualified jurors rendered the verdict

. BZ Tire argues that the Texas Supreme Court’s opinion in McDaniel v. Yarbrough , 898 S.W.2d 251 (Tex. 1995), and the court of appeals opinion in Dempsey compel a reversal in this case. We disagree. In McDaniel , the Supreme Court considered whether the trial court erred when it dismissed a juror sua sponte when the juror had indicat ed she was not able to attend court due to heavy flooding. McDaniel , 898 S.W.2d at 252. The court held the trial court erred because the circumstances did not rise to level of a juror disability to permit dismissal of the juror under the constitution or rule 292. Id. at 253. The court held that it is constitutional error to deprive a litigant of a full jury of twelve members, “absent an exception authorized by the constitution or applicable rules.” Id. Similarly in Dempsey , a juror failed to appear af ter the jury retired for deliberations. Dempsey , 38 S.W.3d at 289. It was discovered the juror was disqualified to serve because he had prior felony convictions. Id . The trial judge denied a mistrial motion and the deliberations proceeded with eleven j urors. Id . The court of appeals held the action of the trial court deprived Dempsey of his constitutional right to a twelve

- person jury. Id . at 291.0 4

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- BZ Tire also relies on R.R.E. v. Glenn , 884 S.W.2d 189 (Tex. App.

— Fort Worth 1994,writ denied), to suppo rt its argument that the judgment must be reversed. In R.R.E. , the court held that the presence of a juror disqualified to serve because of a felony conviction denied the litigant his constitutional right to a jury. Id . at 194. However, in doing so, the court also noted that the appellant suffered significant harm because the evidence showed the disqualified juror played a “leading role” in convincing three jurors to change their votes. Id . at 191, 194. The issue presented

— whether the presence of a di squalified juror on a twelve

- person jury equates to a jury of less than twelve

— is closer to the facts considered by the Supreme Court in Palmer than those in McDaniel . Here, twelve persons deliberated and rendered the verdict. And in R.R.E. , it is clea r the court considered the harm occasioned by the presence of an unqualified juror. We believe it is appropriate to require a party seeking a new trial under the circumstances present here to show harm. “As a general matter, few exceptions to the ‘harmle ss error’ rule have been recognized.” In re K.R. , 63 S.W.3d 796, 799 (Tex. 2001). Harm must be shown when a party seeks a new trial in cases where it is alleged a juror is biased, there is jury misconduct, and in criminal cases where it is discovered aft er the verdict that a juror in the case was disqualified from service. See T EX
. R. C IV
. P. 327 ( a ) ; T EX
. C ODE C RIM
. P ROC
. A NN
. art. 44.46 (West 2006 ); Nelson v. State , 129 S.W.3d 108, 112 (Tex. Crim. App. 2004) (criminal cases); Golden Eagle Archery, Inc. v. Jackson , 24 S.W.3d 362, 372 (Tex. 2000) ( jury misconduct); Shepherd v. Ledford , 962 S.W.2d 28, 34 (Tex. 1998) (bias). Accordingly, we follow the Supreme Court’s reasoning in Palmer and determine whether BZ Tire suffered any harm from the presence of th e unqualified juror. The verdict in this cause was rendered by eleven jurors. The disqualified juror was among the eleven. Excluding the disqualified juror, ten jurors remain to support the verdict.0 4

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- Rule 292 permits a verdict rendered by ten or more mem bers of an original twelve

- person jury. BZ Tire offered no evidence that the presence of the disqualified juror harmed it, other than making its argument for automatic reversal

— an argument we have rejected. BZ Tire has failed to show any harm from Dozi er’s inclusion on the jury. Therefore, we conclude the trial court did not err in denying BZ Tire’s motion for new trial. CONCLUSION Accordingly, we overrule BZ Tire’s issues on appeal and affirm the trial court’s judgment.
Steven C. Hilbig, Justice