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

issue.
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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 
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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 
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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 newtrial 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.
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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 
6

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 
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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 
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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 casespecific 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.
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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 

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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.
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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 
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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 
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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