Hyundai Motor Co. v. Vasquez
Hyundai Motor Co. v. Vasquez
Opinion of the Court
delivered the opinion of the Court,
In this case, we decide whether a trial court abuses its discretion in refusing to allow a voir dire question from counsel that previews relevant evidence and inquires of prospective jurors whether such evidence is outcome determinative. We hold that it does not. The court of appeals held that it does. Accordingly, we reverse and remand.
I. Background
Four-year-old Amber Vasquez died in a low-speed neighborhood traffic collision, after the passenger-side airbag in her aunt’s Hyundai Accent deployed with enough force to catch Amber’s chin and break her neck. The driver of the other car had turned unexpectedly in front of the Hyundai, and the force of the collision threw Amber forward in her seat. It is undisputed that Amber was not buckled into her front-seat seat belt at the time of the accident.
Amber’s parents, Victor and Brenda Vasquez, sued Hyundai Motor Company and Hyundai Motor America, Inc. (together “Hyundai”), contending that Hyundai had placed the airbag incorrectly, and that the airbag had deployed with too much force in this low-impact accident. Hyundai responded that the airbag that killed Amber was not defective because a child wearing a seat belt — as state law requires
In placing Amber unbuckled in the front seat, Amber’s aunt, Valerie Suarez, disregarded airbag warnings on both sunvisors, a hangtag from the rearview mirror, a decal on the dashboard, and a notification in the owner’s manual. Suarez ignored the warnings because she planned a short neighborhood trip and believed that the airbags would deploy only at higher speeds. Hyundai conceded that it knew some occupants would ignore the airbag warnings about placing children unbuckled in the front seat,
The trial judge dismissed two jury panels before seating the jury in the case from a third. During the first voir dire, Amber’s counsel asked jurors
Before the third voir dire, the trial judge discussed with counsel her concern that the previous jury panels had misunderstood the inquiry about placing a child in the front seat without a buckled seat belt to be one about the weight they could give to particular evidence in the case rather than whether they could fairly consider all of the evidence presented.
The Vasquezes appealed, contending the trial court erred in disallowing voir dire inquiry into whether the jurors would be “predisposed, regardless of the evidence,” against the Vasquezes because “there is no seat belt in use,” to a point that “[the jurors] could not be fair and impartial.” Hyundai responded that the proposed voir dire inquiry is improper in that it asks jurors about the weight they would place on a particular piece of relevant evidence, and thus the trial court properly refused to allow it. A panel of the Fourth Court of Appeals affirmed the trial court’s judgment. Upon rehearing en banc, however, the court of appeals reversed, holding that the trial court had abused its discretion in disallowing the inquiry because the proposed question focuses “on the ability of the jurors to be fair.”
II. The Purpose of Voir Dire
The Bill of Rights in the Texas Constitution guarantees litigants a right to trial by a fair and impartial jury
Voir dire examination protects the right to an impartial jury by exposing possible improper juror biases that form the basis for statutory disqualification.
In addition, this Court recognizes that trial courts should allow “broad latitude” to counsel “to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised.”
[T]he scope of the voir dire examination quite obviously can not be bounded by inflexible rules of thumb, for of all the delicate psychological factors inherent in a jury trial perhaps none is more essentially subjective and hence less submissive to dogmatic limitations.25
Peremptory strikes are not intended, however, to permit a party to “select” a favorable jury.
III. Voir Dire Inquiry Regarding Facts in a Case
Voir dire inquiry into potential juror bias and prejudice thus is proper to determine whether jurors are disqualified by statute
*751 Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined, for it means prejudgment, and consequently embraces bias; the converse is not true.32
Other sources confirm that “bias” generally relates to inclinations, while “prejudice” is associated with prejudgment.
Although a juror may be statutorily disqualified because of a bias or prejudice against a type of claim or a general inability to follow the court’s instructions regarding the law, this Court has refused to hold that statements that reflect a juror’s judgment about the facts of a case as presented, rather than an external unfair bias or prejudice, amount to a disqualifying bias. In Cortez v. HCCI-San Antonio, Inc., an attorney summarized the evidence during voir dire, and then inquired of the jurors whether either party was “starting out ahead.”
Cortez thus adopted the general rule that it is improper to ask prospective jurors what their verdict would be if certain facts were proved.
First, an inquiry about the weight jurors will give relevant evidence should not become a proxy for inquiries into jurors’ attitudes, because the former is a determination that falls within their province as jurors.
Second, inquiring whether jurors can be fair after isolating a relevant fact confuses jurors as much as an inquiry that previews all the facts. Lawyers properly instruct jurors that voir dire is not evidence, yet jurors must answer whether they can fairly listen to all of the evidence based only upon the facts that counsel have revealed. In responding, jurors are unable to consider other relevant facts that might alter their responses, rendering their responses unreliable. This confusion may explain in part why jurors’ voir dire reactions to the evidence have not been proven to be predictors of jury verdicts: experience tells that, whatever jurors’ stated opinions about particular evidence may be at the outset, they can shift upon hearing other evidence.
Third, previewing jurors’ votes piecemeal is not consistent with the jurisprudence of our sister court.
[Questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence are not proper.46
As the statutory standards for bias or prejudice in civil and criminal cases are the same,
Finally, the Court’s decision in Babcock v. Northwest Memorial Hospital does not dictate that a trial judge must accept questions that seek to assess jurors’ opinions about the weight they will place on particular evidence. In that case, we held that counsel could question jurors about bias or prejudice resulting from a societal influence outside the case — namely, tort reform
Statements during voir dire are not evidence, but given its broad scope in Texas civil cases, it is not unusual for jurors to hear the salient facts of the case during the voir dire. If the voir dire includes a preview of the evidence, we hold that a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not to be given) a particular fact or set of relevant facts.
IY. Trial Court Discretion
One of the primary rules of voir dire in Texas civil cases has long been that trial courts have broad discretion in conducting it.
PROSPECTIVE JUROR NO. 7: I don’t understand that question. Does that mean like that by what we have heard so far we haven’t made a judgment?
[PLAINTIFFS’ COUNSEL]: Yeah. I don’t want — Is there anyone here who has already made up them mind? Let me ask that question real, real loud again. Is there anybody here that thinks that they have already made up their mind on this case right now before you have heard any evidence whatsoever?
Without being present in the courtroom, one cannot tell whether jurors might have understood this response to be “Yes” or “No.”
It can be a close question whether a juror’s response indicates a prejudice due to personal animus or bias, rather than a fair judgment of the previewed evidence.
We observed in Cortez that trial judges have discretion to clarify whether a juror’s response is the result of confusion, misunderstanding, or mistake.
Permitting disclosures about the evidence the jury will hear during the case increases the potential for discovering external biases, but inquiries to jurors after doing so should not spill over into attempts to preview the verdict based on the facts as represented to the jurors. Balancing these competing concerns depends on the facts in a case and on the inquiries posited to the jury. The trial judge is in a better position to achieve the proper balance.
V. The Question
The Vasquezes contend the trial court erred in refusing to allow the following inquiry to the jurors:
THE COURT: What is the type of question you need to ask other than what has already been asked about their own individual use of seat belts or not seat belts?
[PLAINTIFFS’ COUNSEL]: Your Honor, I need to know whether or not they would be predisposed regardless of the evidence to — Then' preconceived notion is that if there is no seat belt in use, no matter what else the evidence is, that they could not be fair and impartial.
THE COURT: And that’s the type of question you are asking to ask?
[PLAINTIFFS’ COUNSEL]: That’s the kind of question I need to ask ....
After Hyundai’s objection that the question would “pretest these jurors about the facts of this case,” the trial judge stated:
THE COURT: All right. I’m going to sustain the objection. We are not going to go any further into seat belts....
The court of appeals held that the trial court abused its discretion in excluding the
First, the question isolates a single fact material to the case: that Amber did not wear a seat belt. Hyundai’s defense at trial rested in part on a theory that its airbags would not have harmed a child wearing a seat belt, as required by law, or sitting in the back seat. Assuming that placing an unbelted child in the front seat is relevant, admissible evidence, reasonable jurors could base their verdict on that fact alone.
Jurors should not base their verdicts on matters that are irrelevant, inadmissible, or unfairly prejudicial, and counsel is entitled to frame voir dire inquiries that ensure that the seated jury will not do so. In those cases in which prejudicial evidence cannot be excluded,
Second, incorporating phrases associated with an inquiry into whether the jurors hold a preconceived bias does not alter the basic substance of this question. Although the proposed question refers to predispositions and preconceived notions, both concepts properly relate to opinions jurors hold before entering the courtroom and hearing the relevant facts. Here, the question includes a relevant fact; thus, responses to it encompass more than pre dispositions or pre conceived notions. In this case, the jurors’ judgments about the fact that Amber did not wear a seat belt at the time of this accident are not separable from their potential verdict. The proposed inquiry asks about these judgments, not about any separate unfair prejudice against a party or a claim jurors may have held, before hearing the facts of the case.
The emphasis of the question is not ameliorated by asking in it whether jurors could be fair and impartial. “Called as they are from all walks of life, many [jurors] may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.”
The Vasquezes rely upon several intermediate appellate court decisions to contend that the proposed question is in the form of a permissible commitment question. In those cases, however, the courts of appeals deferred to the trial courts’ discretion in allowing the questions; none of them reversed a trial court for excluding a question.
The substance of a question, not its form, determines whether it probes for
VI. Further Questions
At the conclusion of the general questioning of the panel, the trial judge asked counsel to state the additional questions he sought to ask the jurors about seat belts. The Vasquezes proffered the above question. In sustaining Hyundai’s objection, however, the trial judge also ruled: “We are not going to go any further into seat belts.”
A trial court may not foreclose a proper line of questioning, presuming that the actual questions posed are proper.
Thus, to preserve a complaint that a trial court improperly restricted voir dire, a party must timely alert the trial court as to the specific manner in which it intends to pursue the inquiry.
Here, in response to the trial judge’s request that counsel specify the type of additional inquiry he would ask, counsel framed one inquiry. The proposed question is virtually the same inquiry that the trial court perceived had Caused confusion during the second voir dire. That the trial court did not allow a similarly confusing question does not mean, though, that the trial court would have rejected a different approach had counsel proposed it. For example, the trial court could not have denied a question that asked if any juror had a bias against product liability lawsuits that would prevent them from considering the Vasquezes’ specific claims. Such a bias, if firmly held, would disqualify any prospective juror who confessed such a belief. Not all questions or areas of inquiry involving the facts of a case will imper-missibly attempt to pre-test the weight jurors will give those facts. But absent counsel proposing a different method of inquiry that would avoid continued confusion or pre-commitment, the breadth of the trial court’s ruling is untested. Counsel does not have to present a list of questions to preserve error, but after the trial court’s ruling sustaining Hyundai’s objection to the one presented, it was incumbent on the Vasquezes to request alternative approaches to avoid the problems the trial court was addressing by its ruling. Moreover, the fact that counsel asked other general seat belt questions during the first voir dire does not shed light on the extent of the trial court’s ruling in the third, when counsel already had asked some general seat belt questions and did not refer to the first two voir dires, or any question in them, in response to the trial judge’s request for the type of additional questions counsel sought to ask — much less seek a ruling on other types of questions counsel previously had asked without objection.
The Vasquezes carried their objection to the trial court’s ruling throughout the remainder of individual voir dire, but they did not frame additional inquiries or convey to the trial court that the thrust of any remaining questions would be different from the single one presented for a ruling.
¾: ⅝ ⅝ ⅜ ⅝
The Texas Constitution guarantees a trial by a fair and impartial jury, and our courts use voir dire to achieve that goal. Voir dire inquiries that explore external biases and unfair prejudices further the effort, but those that test jurors’ possible verdicts based on case-specific relevant evidence detract from it. The distinction between the two in some cases is a fine one. Thus, we vest trial judges with the discretion to decide whether an inquiry constitutes the former or the latter; as appellate courts, we should defer to their judgment.
Justice WAINWRIGHT filed a dissenting opinion, in which Justice JOHNSON joined.
. See Tex. Transp. Code § 545.413(b)(2) ("A person commits an offense if the person ... allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system ... to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.”).
. See, e.g., Susan M. Mudgett, Comment, Exploding Liability: Creating a Cause of Action for Defectively Designed Airbags Under the Restatement (Third) of Torts, 78 Or. l. rev. 827, 842-43 (1999) (citing poll that found 80% of respondents thought it safe to have children under age 13 in the front seat).
. See, e.g., Richard J. Bonnie & Bernard Guyer, Injury as a Field of Public Health: Achievements and Controversies, 30 J.L. Med. & Ethics 267, 277 (2002) (noting that force of airbag deployment involves trade-offs between adults and children, and between belted and unbelt-ed passengers); Lauren Pacelli, Note, Asleep at the Wheel of Auto Safety? Recent Airbag Regulations by the National Highway Traffic Safety Administration, 15 J. Contemp. Health L. & Pol'y 739, 761-64 (1999).
. See Tex. Civ. Prac. & Rem. Code § 33.004.
. We refer to persons assigned to a court but not yet selected on a jury as "jurors,” as this term is generally the one used in court rules. See Tex. R. Civ. P. 223, 224, 226, 226a, 227-32,
.Plaintiffs' counsel asked:
Now, what I specifically am looking for are those among you right now that will say, if [Amber] wasn't wearing a seat belt, then I don’t care what the scientific evidence is. I don’t care about the characteristics of this particular airbag and how it operated in this particular accident at this particular speed. As long as I know that she wasn’t wearing an airbag — I mean a seat belt, that means that, you know, there's no way Hyundai can be responsible. If that is an attitude that you have about seat belts and about airbags, if that is an attitude that you have about accidents of this kind and the tragic results that flow from them, that’s what I'm asking you about. Is there anyone here that regardless of what the evidence is, once you hear [Amber] wasn’t wearing a seat belt your mind is made up?
. Specifically, the trial court told the second jury panel that "Amber was not wearing her seat belt,” and asked the jurors to raise their hand if they would "decide this case ... based on that one fact alone.”
. During the first voir dire, 29 out of 48 jurors indicated that the fact that Amber was not wearing a seat belt would preclude them from considering any other evidence presented. During the second panel, 18 of the 52 jurors responded affirmatively to the trial court’s inquiry.
. As the trial court stated, "The problem with that is I was automatically excluding some people who may have understood my questions- — either of the questions on the seat belt or on the sympathy — merely trying to be persuading them to set aside the idea that they might be giving weight or not being allowed to give weight to the evidence, and that was not the purpose of my question.”
. The trial court stated, "I will let you explore the belting issue,” but noted "I want just general questions.” The trial court further ordered that any inquiries about whether jurors ensured their children are belted could be done on an individual basis, but as we later discuss, the court changed its ruling on individual voir dire when presented with counsel's question.
. 119 S.W.3d 848, 856 (Tex.App.-San Antonio 2003) (en banc).
. 48 Tex. Sup.Ct. J. 45 (Oct. 15, 2004).
. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 708 (Tex. 1989).
. Tex. Const. art. I, § 15 ("The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”).
. See Central & M.R. Co. v. Morris, 68 Tex. 49, 3 S.W. 457, 462 (1887) (statute requiring court instead of jury adjudication of plaintiffs damages after defendant’s default held unconstitutional).
. Tex. Gov’t Code § 62.102.
. Tex. Gov’t Code § 62.105.
. Id. § 62.105(4).
. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
. See Morgan v. Illinois, 504 U.S. 719, 734-35, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).
. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989).
. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 917 (Tex. 1979) (quoting Tex. R. Civ. P. 232).
. Id. at 919; see also Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (noting that "[w]hile challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. It is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ upon a juror’s 'habits and associations,' or upon the feeling that 'the bare questioning (a juror’s) indifference may sometimes provoke resentment.” ’) (citations omitted), overruled in part by Batson v. Kentucky, 476 U.S. 79, 100 n. 25, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
. 4 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice, § 21:19 at 116 (2d ed. 2001); see generally 8 William V. Dorsaneo III, Texas Litigation Guide § 120.02 (2005).
. Patterson Dental, 592 S.W.2d at 919 (noting that, in cases with multiple parties, if the number of peremptory strikes allowed to one side is grossly disproportionate, it permits the side with the greater number to actually construct the jury).
. See Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 92 (Tex. 2005); see also Falter v. United States, 23 F.2d 420, 426 (2d Cir. 1928) (L.Hand, J.) (upholding trial court voir dire without counsel examination because "[t]he length and particularity of the examination of jurors had become a scandal, and required some effective control”).
. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 626, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (holding that, in civil cases, private parties may not base their peremptory challenges on a juror’s race).
. Tex. Gov’t Code § 62.105(4).
. Tex. Gov't Code § 312.002; Cities of Austin, Dallas, Ft. Worth & Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002); Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex. 1999).
. 364 S.W.2d 179, 182 (Tex. 1963).
. See, e.g., Black's Law Dictionary 171, 1218 (8th ed. 2004) (defining bias as "[ijnclination; prejudice; predilection,” and defining prejudice as "[a] preconceived judgment formed without a factual basis; a strong bias”); Merriam Webster's Collegiate Dictionary 147,928 (10th ed. 1993) (defining bias as "an inclination of temperament or outlook; especially: a highly personal and unreasoned distortion of judgment,” and defining prejudice as "(1): preconceived judgment or opinion (2): an adverse opinion or leaning formed without just grounds or before sufficient knowledge”).
. Compton, 364 S.W.2d at 182 (citing Houston & T.C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670, 672 (1888) and Couts v. Neer, 70 Tex. 468, 9 S.W. 40, 41 (1888)).
. Tex. Gov't Code § 62.105(4).
. Cortez, 159 S.W.3d 87, 94 (Tex. 2005).
. Id.; see also Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex L. Rev. 1041, 1095 (1995) ("[T]he parties have a right to an impartial jury .... They do not, however, have a right to a sympathetic jury of their own creation ...."); Julie A. Wright, Challenges for Cause Due to Bias or Prejudice: The Blind Leading the Blind Down the Road of Disqualification, 46 BAYLOR L. REV. 825, 828 (1994) (”[S]ome of the juror responses which are used to form bases of challenges are not indications of actual bias, but are instead, answers to inappropriate weight of evidence questions.”).
. Annotation, Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case, 99 A.L.R.2d 7, 20 (1965); see, e.g., Okla. Stat. tit. xii, ch. 2, app., Rule 6 (2005); Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 258 (5th Cir. 1985); DeLaCruz v. Atchison, T. & S.F. Ry. Co., 405 F.2d 459, 462 (5th Cir. 1968); Sherman v. William M. Ryan & Sons, 126 Conn. 574, 13 A.2d 134, 135-36 (1940); Telligman v. Monumental Props., Inc., 172 Ga.App. 783, 323 S.E.2d 888, 889 (1984); Woolen v. Wire, 110 Ind. 251, 11 N.E. 236, 237 (1887); Grover v. Boise Cascade Corp., 860 A.2d 851, 858 (Me. 2004); Barnes v. Marshall, 467 S.W.2d 70, 76 (Mo. 1971); Hill v. Turley, 218 Mont. 511, 710 P.2d 50, 56 (1985); Pence v. Pence, 8 N.C.App. 484, 174 S.E.2d 860, 861 (1970); Patterson v. Corliss, 112 N.H. 480, 298 A.2d 586, 590 (1972); Thornsbury v. Thornsbury, 147 W.Va. 771, 131
. Black's Law Dictionary 873 (8th ed. 2004) (defining an "impartial jury” as one that "bases its verdict on competent legal evidence”); see also Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998) (holding that juror’s answers "do not establish bias; in fact, they are consistent with a juror’s duty to be bound by the evidence in a particular case in reaching his verdict”).
. See Tex. R. Civ. P. 226a, sec. III ("Do not let bias, prejudice or sympathy play any part in your deliberations.’’).
. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
. See Cortez, 159 S.W.3d at 94.
. See Reid Hastie, Is Attorney-Conducted Voir Dire an Effective Procedure for the Selection of Impartial Juries?, 40 Am. U.L.Rev. 703, 720 (1991) (publishing results of study concluding that "Attorneys disagree substantially about what information to rely on and which jurors to select, and consistently produce low levels of accuracy in forecasting juror verdict preference prejudices.”). The commentator further observes, "[pjerhaps more importantly, even the heightened power of prediction of statistical models also demonstrates comparatively low levels of success in forecasting juror verdict preferences.” Id.
. See Cortez, 159 S.W.3d at 91-94 (noting similar tests in criminal voir dire cases concerning rehabilitation of jurors, limitations on scope of questioning, and standards for preserving error in denial of challenges for cause); see also Davenport v. Garcia, 834 S.W.2d 4, 14 (Tex. 1992) ("We give thoughtful consideration to [the Court of Criminal Appeals'] analysis in part to avoid conflicting methods of constitutional interpretation in
. 59 S.W.3d 177, 183 (Tex.Crim.App. 2001) (holding it was improper to ask jurors "[w]ould you presume someone guilty if he or she refused a breath test on their refusal alone?”).
. Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005).
. The Texas Code of Criminal Procedure provisions concerning bias or prejudice mirror those applicable to civil trials. See Tex. Crim. Proc. Code art. 35.16(a)(9); Smith v. State, 907 S.W.2d 522, 530 (Tex.Crim.App. 1995) (holding that "bias or prejudice in favor of or against the defendant” in article 35.16(a)(9) includes bias for or against the State, as bias against one would constitute bias in favor of the other).
. 767 S.W.2d 705, 706 (Tex. 1989).
. See Cortez, 159 S.W.3d at 94 ("Such attempts to preview a veniremember’s likely vote are not permitted.”).
. Cortez, 159 S.W.3d at 92; Babcock, 767 S.W.2d at 709; see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997) (applying abuse-of-discretion standard in reviewing whether peremptory strike was discriminatory); Compton, 364 S.W.2d 179, 182 (Tex. 1963) (applying abuse-of-discretion standard in reviewing whether juror was disqualified).
. See, e.g., Greenman v. City of Ft. Worth, 308 S.W.2d 553, 554 (Tex.App.-Fort Worth 1957, writ ref’d n.r.e.) (trial court did not abuse its
. Both Campbell and Lassiter are writ refused cases, and in both, the appellate courts held that counsel may not seek responses that commit jurors to a particular view of the evidence before it is presented. See Lassiter, 41 S.W.2d at 90; Campbell, 215 S.W. at 137. Decided in 1931, Lassiter carries the imprimatur of Texas Supreme Court precedent. See TEXAS RULES OF FORM (Texas Law Review Ass’n et al. eds., 10th ed. 2005) (In cases after 1927, “writ refused” denotes that the "(j]udgment of the court of civil appeals is correct,” with "[sjuch cases hav[ing] equal precedential value with the Texas Supreme Court's own opinions.”). The Court refused the writ in Campbell in 1919, an amorphous time in our writ practice. At least two cases of that era interpret the refusal of a writ to mean the court of appeals’ opinion is binding precedent, but later the Court noted that writ refusals during that era signified an agreement with the judgment of the court of appeals, but not adoption of the opinion. Compare Binford v. Harris County, 261 S.W. 535, 537 (Tex.Civ.App.-Galveston 1924, writ ref’d) ("The ... decision, rendered in 1918 by this court, with writ of error refused by the Supreme Court [, is] the law of the state until changed .... ”); Urban v. Bagby, 286 S.W. 519, 523 (Tex.Civ.App.-Galveston 1926), aff'd on other grounds, 291 S.W. 537 (Tex. Comm’n App.1927, judgm’t adopted) (“The opinion in the case cited was approved by the Supreme Court by a refusal to grant a writ of error.”) with Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 674 (1959) ("While the refusal of a writ of error in 1917 did not mean what it does now, it meant that the Supreme Court was satisfied with the correctness of the judgment rendered.”). See generally, Ted Z. Robertson and James W. Paulsen, Rethinking the Texas Writ of Error System, 17 Tex. Tech. L. Rev. 1, 10-20 (1986).
. See John T. Bibb, Comment, Voir Dire: What Constitutes an Impermissible Attempt to Commit a Prospective Juror to a Particular
. Cortez, 159 S.W.3d at 92.
. Id. at 94 (stating that "attempts to preview a veniremember’s likely vote are not permitted,” and that "[a] statement that one party is ahead cannot disqualify if the veniremember’s answer merely indicates an opinion about the evidence”).
. 119 S.W.3d 848, 856 (Tex.App.-San Antonio 2003) (en banc).
. The Vasquezes contended in the court of appeals that evidence regarding Amber’s lack of a buckled seat belt should have been excluded. The trial court allowed the jury to hear the evidence. In a footnote, the court of appeals held that the evidence is admissible, and thus concluded it was a relevant subject for voir dire inquiry. 119 S.W.3d at 851 n. 2. We assume for the purposes of this discussion that the lack of a buckled seat belt is admissible evidence, and thus seat belt use generally was a relevant topic for voir dire examination.
. See Campbell, 215 S.W. 134, 137 (Tex.Civ. App.-Dallas 1919, writ ref'd) (holding that “[a] juror that will not be influenced by any material fact, properly admitted ... is an uncommon person. All material and admissible facts ought and are presumed to influence the juror, notwithstanding some will outweigh and exercise greater influence than others,”).
. See, e.g., Tex. R. Evid 411 (allowing evidence of liability insurance when offered for "proof of agency, ownership, or control” or "bias or prejudice of a witness”).
. See Tex. R. Evid. 105(a).
. See Tex. R. Civ. P. 226a, sec. II (Admonitory Instructions to Jury Panel and Jury).
. McDonough, 464 U.S. 548, 555, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).
. Cortez, 159 S.W.3d 87, 93 (Tex. 2005).
. See, e.g., City Transp. Co. v. Sisson, 365 S.W.2d 216, 219 (Tex.Civ.App.-Dallas 1963, no writ) (affirming trial court decision to allow inquiry into whether plaintiffs' use of narcotics, if introduced into evidence, would bias jurors against the parly); Rothermel v. Duncan, 365 S.W.2d 398, 402 (Tex.Civ.App.-Beaumont 1963) (error not preserved as to trial court’s decision to allow inquiry into whether jurors would "take into consideration the fact that the witnesses to the disputed will were, at the time of its execution, in the employ of appellant”), rev’d on other grounds, 369 S.W.2d 917 (Tex. 1963); Airline Motor Coaches v. Bennett, 184 S.W.2d 524, 528 (Tex.Civ.App.-Beaumont 1944) (affirming trial court's decision to allow: "Would the mere presence of a quart of rum ... in [the] car prejudice you at all in this case?”), rev’d on other grounds, 144 Tex. 36, 187 S.W.2d 982 (1945).
.See Lassiter, 41 S.W.2d 88, 90 (Tex.Civ. App.-Dallas 1931, writ ref'd) ("Counsel should not be permitted, by questions to a prospective juror, to commit such juror, in advance of the evidence, as to the weight he would give any certain evidence.”); Campbell, 215 S.W. 134, 137 (Tex.Civ.App.-Dallas 1919, writ ref'd) ("To require [a juror] to say that he will or that he will not let a given material fact influence him in reaching a conclusion, if chosen, is simply to commit him against that material fact in advance .... [This] would be improper.”).
. See Cortez, 159 S.W.3d 87, 93 (Tex. 2005).
. The trial court also ruled that Hyundai could not ask questions about "sympathy.”
. See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002) (holding that trial court abused its discretion in preventing "a proper question about a proper area of inquiry”). See also Cortez, 159 S.W.3d 87, 92 (Tex. 2005) ("[T]rial judges must not be too hasty in cutting off examination that may yet prove fruitful.”).
. Id.
. Tex. R. App. P. 33.1; Babcock, 767 S.W.2d 705, 707-08 (Tex. 1989).
. Tex. R. App. P.33.1.
. 767 S.W.2d at 706-07 (holding that error was preserved by counsel's statement "that the Court has precluded me from asking questions as to whether the jury has heard or read about, not necessarily the insurance crisis, but the liability crisis and the lawsuit crisis”). In Babcock, the party seeking to ask additional voir dire questions tendered the questions
. See McDonough, 464 U.S. 548, 555, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (holding that, in a civil case in which a juror failed to provide information in response to a voir dire question, counsel must show that juror’s motive for withholding it affected his impartiality, in part because: "A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptoiy challenge process because counsel lacked an item of information which objectively he should have obtained from [the] juror on voir dire examination.”).
. See, e.g., Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 889-90 (Tex. 1985) (holding that error was waived in trial court’s failure to excuse a juror for cause by not informing court before exercise of peremptory challenges that counsel lacked sufficient peremptory challenges to remove all objectionable jurors).
.As we have noted, during the third general voir dire, counsel referred to questions "about belting, seat belting, and seat belting habits much akin to” the first voir dire. The trial court responded, "I am going to let you ask those questions.” Upon further questioning at the individual voir dire, counsel did not seek to ask other questions from the first voir dire, and did not refer to it. In the second voir dire, the trial court and the parties ceased efforts to select a jury after the trial court gave preliminary instructions to the jury and asked the single seat belt question counsel preserved for review in the third voir dire. Thus, no other questions or areas of inquiry from the second voir dire exist, save the question we have addressed.
. After the trial court had ruled on the parties' challenges for cause, the Vasquezes renewed their objection that the court improperly had restricted the voir dire, but did not frame further seat belt inquiries for a ruling. If the complaint on appeal is that a trial judge has not allowed sufficient questions about a particular subject matter, then a party should detail its areas of inquiry before challenging the juror for cause, allowing the trial judge an opportunity to cure the problem. Cf. Hallett, 689 S.W.2d at 889 (noting that, "[ajbsent such notice to the trial court, [a party] waive[s] any error committed by the court in its refusal to discharge those jurors who were challenged for cause”).
. Malone, 977 S.W.2d 562, 564 (Tex. 1998) ("If prejudice is not established as a matter of law, the trial court makes a factual determination as to whether the venire member should be disqualified.”); Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963) (deferring to trial court’s decision to overrule a motion for mistrial which alleged a juror was biased because "[t]he trial court had the opportunity of observing the juror as he testified and was in better position than an appellate court to evaluate the juror’s sincerity and his capacity for fairness and impartiality”).
Dissenting Opinion
joined by Justice JOHNSON, dissenting.
I join JUSTICE MEDINA’S dissent
The Court identifies the issue in this case as whether the trial court abused its discretion in refusing to allow one question during voir dire. The Court identifies “the question” in the following exchange at the trial court:
THE COURT: What is the type of question you need to ask other than what has already been asked about their own individual use of seat belts or not seat belts?
[PLAINTIFFS’ COUNSEL]: Your Honor, I need to know whether or not they would be predisposed regardless of the evidence to — Their preconceived notion is that if there is no seat belt in use, no matter what else the evidence is, that they could not be fair and impartial.
THE COURT: And that’s the type of question you are asking to ask?
[PLAINTIFFS’ COUNSEL]: That’s the kind of question I need to ask ....
By so framing the issue, the Court makes a hard case easier. Certainly there is no entitlement to ask a specific question during voir dire. Even if a proper question to a jury panel is barred by a trial court, counsel can often rephrase the question to probe the relevant subject. I agree with JUSTICE MEDINA; the central issue in this case should not be the propriety of asking this one question. The key issue is the trial court’s barring counsel from inquiring about an entire and admittedly relevant subject during voir dire. This does not mean that voir dire should be lengthy, only that properly limited voir dire should be allowed on the important issues in a case.
After going through two jury panels and trying to seat a jury during the third, the trial judge, understandably frustrated, precluded not just one question but any further questioning on seat belts. This ruling was an about-face from the procedure she had established for the questioning of the third panel. Following the dismissal of the second panel, the trial court held a hearing and outlined a procedure for the third voir dire: the court and counsel could conduct the initial questioning, absent case-specific facts, about venire panel members’ attitudes toward seat belt usage; subsequent specific questioning by counsel regarding seat belt usage would be permitted only during the individual questioning of panel members at the bench. During general questioning of the third voir dire panel, plaintiffs’ counsel approached the bench seeking clarification of the seat belt usage questions he could ask.
By the third voir dire, the parties knew that asking questions specifically about Amber was too emotionally sensitive and was barred. Despite plaintiffs’ less-than-perfect single statement on which the Court’s opinion turns, the rest of the bench discussions in the record reveal the trial court and the attorneys were discussing a category of questions regarding seat belt usage and not just “a question.” The trial court’s ruling precluded an entire category of questions that were not only clearly relevant but were central to the case for all parties, and the objection to the trial court’s ruling preserved error on plaintiffs’ complaint that it did not have an opportunity to ask about individual jurors’ seat belt attitudes, especially toward seat-belting minors. Whether the questions would have revealed disqualifying bias or not, the answers would have assisted in the intelligent exercise of peremptory challenges.
The Court says that counsel did not sufficiently apprise the trial judge of “additional inquiries” that he wanted to ask. 187 S.W.3d 743, 760. This contradicts the information in the record. The trial court’s discussions with counsel at the bench, particularly during the general questioning of the third voir dire, demonstrate the court was well aware plaintiffs’ counsel sought to ask questions concerning juror attitudes for seat belt usage of others, particularly of minors.
The Court holds that counsel’s objection during the third voir dire and request to ask a group of questions regarding the belting of minors “much akin to what” he asked during the first voir dire does not preserve error. See supra note 5. During the third voir dire, the trial judge acknowledged that she knew counsel wanted to ask these types of questions about practices for seat-belting children. See supra note 4. Because counsel’s reference to the group of questions asked in the first voir dire essentially provided the trial court with a list of questions dictated in the record only a few days earlier, it is unclear what the Court requires to preserve error for restricting voir dire questioning. Compare the Court’s reliance on Babcock v. N.W. Memorial Hospital, 767 S.W.2d 705, 707-08 (Tex. 1989), holding litigants need not present a list of each intended voir dire question, with the Court’s conclusion that the Vasquezes “did not frame additional inquiries” to preserve their complaint after the trial court revisited its discussion of questions related to seat-belting practices. 189 S.W.3d at 763. Perhaps the safest approach would be to provide the trial court with a list of questions, in writing or on the record, every time the trial court discusses the preclusion of a category of questions.
Because the Court sidesteps the harder issue posed by this case and fails to recognize the asserted error was preserved (as the record shows and the trial court and Hyundai acknowledge), I respectfully dissent.
. However, I express no opinion on whether I agree with the result reached by the majority or the dissent in Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).
. Plaintiffs’ counsel stated:
[PLAINTIFFS’ COUNSEL]: It is my understanding that the Court has instructed me not to ask the question about the child being not belted and I think I know how to make that distinction, although for the record I do object that the Court instructed me not to go into that area of inquiry. I think that objection is already on the record.
It is my understanding that I want to ask them questions— What I want to do is ask them general questions about their general attitudes about belting such as—
THE COURT: Their own personal habits. [PLAINTIFFS’ COUNSEL]: Their own personal habits such as how many of you belt before you start the car.
After hearing arguments from both parties, the court ruled, "I’m going to let you ask general questions about belting. Not about children, but about their attitudes about putting seat belts on themselves.”
. Presumably, the trial court also would have precluded defendants from asking about panelists' general attitudes toward airbags, which is also a central issue in this case.
. At the bench conference during the third voir dire’s general questioning, plaintiffs’ counsel asked for additional clarification to determine what he could ask during general questioning rather than reserve for individual questioning.
[PLAINTIFFS’ COUNSEL]: The Court is permitting questioning about general attitudes and personal practice. It’s not clear to me if that personal practice would include those of you who have children, do you ensure that all of your children are belted before you start the car.
THE COURT: We will do that on individual if, in fact, you have gotten something that you need. We are not doing children on this one.
The court indicated that it was aware plaintiffs' counsel wanted to ask questions about children and seat belts.
.The trial court precluded counsel from asking a number of unobjectionable questions that he had asked during the first voir dire, including (quoted as in the record):
[PLAINTIFFS’ COUNSEL]: How many of you require your passengers to [put their seat belt on] before you move the car?
[[Image here]]
Those of you with children that you still drive around, okay, how many of you have been known to have to turn around and tell your child, Put your seat belt on before I stop this car and do something to you? Okay. So those of you that raised your hand that said you require your passengers to put the belt on before it moves, if your child is the passenger, sometimes they don’t do that*763 until you prod them or make them do it. Is that everyone’s experience? Is that not the experience of any of you?
[PROSPECTIVE JUROR]: I have grandchildren that ride.
[PLAINTIFFS’ COUNSEL]: Children or grandchildren. Thank you.
[PROSPECTIVE JUROR]: I tell them first thing to put them on, but sometimes they don’t listen and I repeat myself.
[PLAINTIFFS’ COUNSEL]: Okay. I imagine if you are leaving from your residence, you sort of going through a stage of, you know, you pull out of your driveway and you are approaching that right turn or left turn onto the major street that you are going to travel on, and the whole trip from your driveway to the first turn to get you on the trip is where you are telling everybody, Do you have your belts on. Anyone have a remarkably different experience than that with children? All your kids always put their belt on immediately and always obey you?
Dissenting Opinion
joined by Justice WAINWRIGHT and Justice JOHNSON, dissenting.
We can all agree that (1) litigants are entitled to fair and impartial jurors, (2) voir dire should not be used as an exercise to preview the verdict, and (3) trial courts must necessarily have broad discretion when conducting voir dire. That said, I do not agree that a trial court can totally divorce the legitimate search for bias and prejudice during voir dire from all material facts in the case. I also disagree with the
The trial court here summarily dismissed two jury panels after approximately 60% of the first panel, and 35% of the second, initially indicated that they would not listen to any other evidence in the case upon learning that Amber was not wearing a seat belt at the time of the accident. Before beginning a third voir dire, the trial court devised a new format for questioning the panel, requiring that specific questions about seat belt attitudes be asked only during individual questioning of prospective jurors, and not to the panel as a whole, as had been done previously. When the time came to ask these questions individually, however, the trial court abandoned its plan, forbidding any further questions about seat belts. The Court agrees that this was error, but concludes that the error-was not appropriately preserved for our review. I disagree and therefore respectfully dissent.
I
In order to discover disqualifying bias or prejudice, we have said that litigants must be allowed reasonable latitude in examining prospective jurors on voir dire. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989). We recently noted, however, that a litigant may not, under the guise of bias and prejudice, ask prospective jurors to pledge or speculate about how specific evidence in the case may influence their- verdict. See Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 94 (Tex. 2005) (attempts to preview a prospective juror’s likely vote not permitted). Such questions, commonly referred to as commitment questions, are improper because they seek to commit prospective jurors to a particular view based on selected facts or evidence disclosed by counsel. See Lassiter v. Bouche, 41 S.W.2d 88, 90 (Tex.Civ. App.-Dallas 1931, writ ref'd). Their purpose is not to uncover a specific bias or prejudice but to identify prospective jurors who are impressed by the perceived strength or weakness of a particular piece of evidence.
The parties to this appeal strongly disagree about whether the rejected question here was an improper commitment question. The Court suggests that it was, and further submits that the Court of Criminal Appeals, which has had more experience in such matters, would agree with that assessment. But the subject of commitment questions remains a fertile area for debate despite the efforts of our Court of Criminal Appeals.
It was a sharply divided Court of Criminal Appeals that recently proposed a complex analysis for determining when voir dire questions seek an improper commitment from prospective jurors. In Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001), the court described commitment questions as those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact. Id. at 179. The court noted, however, that not all commitment questions are improper. Id. at 181. “When the law requires a certain type of commitment from jurors, the attorneys may ask the prospective jurors whether they can follow the law in that regard.” Id. Thus, the court noted that it might be appropriate to ask in a murder case if the
Although I empathize with the Court of Criminal Appeals’ efforts to define standards for this area of the law, I ultimately must agree with the dissent that Standefer provides no bright-line test for distinguishing an improper commitment question from a proper bias question. Nor can I propose an alternative test because I agree with the Court that the process “does not lend itself to formulaic management.” 189 S.W.3d at 750 (quoting 4 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 21:19, at 116 (2d ed. 2001)).
Clearly, a prospective juror who expresses disqualifying bias for or against a party or the litigation’s subject matter cannot serve, but no single rule can explain the extent to which specific evidence in the particular case may be used to test for such bias. In one sense, the facts of the case are inconsequential because disqualifying bias or prejudice will exist irrespective of the strength or weakness of one’s case. But bias and prejudice cannot be probed in a vacuum, and therefore some discussion of the evidence is inevitable. And it may occasionally happen that a material piece of evidence which strongly favors one party coincides with a bias or prejudice of a particular prospective juror. Because no one rule fits all circumstances, the burden must inevitably fall on the trial court to reasonably manage the voir dire, while guaranteeing the constitutional imperative of a fair trial. Thus, the overriding principle here is that the trial court is vested with broad discretion to control the voir dire, and its rulings should not be disturbed absent a clear abuse of that discretion. Babcock, 767 S.W.2d at 708 (citing Texas Employers Ins. Ass’n v. Loesch, 538 S.W.2d 435, 440 (Tex.Civ.App.-Waco 1976, writ ref'd n.r.e.)).
The question rejected by the trial court here inquired of the venire if they could be fair and impartial to the claim of the un-belted decedent. Admittedly, the question is vague although the Court finds it clear enough that the question’s purpose was to preview the verdict rather than to probe for bias or prejudice. But the trial judge must have understood the question to touch upon disqualifying bias or prejudice at one time or she would not have struck the first two panels. .
Before the third voir dire began, the trial judge indicated that she would again permit the Vasquezes to ask about seat belt bias during individual questioning of the venire. She later changed her mind, however, sustaining Hyundai’s objection to the aforementioned question and stating: “We are not going to go any further into seat belts.” The Vasquezes’ attorney ob
A disqualifying bias or prejudice exists whenever a prospective juror’s opinions for or against a party or the subject matter of the litigation are so strong that the juror’s decision will be based on those opinions rather than on the evidence presented at trial. See Cortez v. HCCI-San Antonio, 159 S.W.3d 87, 94 (Tex. 2005); see also 1 WILLIAM V. DORSANEO III & EARL JOHNSON, JR., TEXAS CIVIL TRIAL GUIDE § 10.03[2], at 10-15 (2005) (citing Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998)). The purpose of voir dire is to identify this type of bias or other disqualifying cause and, failing that, to make intelligent use of peremptory challenges. Babcock, 767 S.W.2d at 709. And although a trial court has discretion to impose reasonable limitations on voir dire and may control the form of any question seeking legitimate information, it does not have discretion to simply foreclose a proper line of questioning. See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002) (abuse of discretion to prevent “a proper question about a proper area of inquiry”). As the Court observes, the trial court could not have denied the Vasquezes the right to ask the venire if anyone had a firm bias against product liability claims that would prevent them from considering the plaintiffs’ claims. 189 S.W.3d at 761. Similarly, any prospective juror in an automobile product liability action who had such strong feelings about unbelted occupants as would preclude that juror from listening to all the evidence and following the court’s instructions would be subject to challenge.
I do not disagree that the question rejected by the trial court, as it was phrased, was an impermissible attempt to pre-test the weight jurors would attach to Amber not being belted. However, this improper question did not authorize the trial court to foreclose the entire area of properly-phrased seat belt usage questions. As the record reflects, there were (and are) a number of ways to pose the subject to the jury. See 119 S.W.3d at 851-54. Not all of them are improper commitment or pretesting questions. But, when a trial court tells a party’s attorney that there will be no further inquiry into a particular subject matter, as was done in this case, that party should not be prejudiced by taking the court’s ruling at face value.
A court abuses its discretion when it renders an arbitrary decision, lacking support in the facts and circumstances of the case. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The trial court controls the process, Cortez, 159 S.W.3d at 92, and may in its discretion reject questions which pose unnecessary factual detail or otherwise attempt to fish for a prospective juror’s reaction to evidence, but it abuses its discretion when its rulings are arbitrary and go beyond that necessary to protect the integrity of the process. The trial court could have required the Vasquezes’ question to be more precisely drawn, but the court did not have discretion to forbid the area of inquiry altogether. Cf. Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App. 1996) (litigant must rephrase or waive an improperly phrased question where trial court places no absolute limitation on the underlying substance of the voir dire). The trial court accordingly abused its discretion when it cut off any further questions about seat belts.
The Court, however, concludes that the Vasquezes’ objection to this ruling was not specific enough to preserve error. But rules are not traps. See McConnell v.
II
Having concluded that the trial court erred in restricting voir dire in this case, I must next consider whether such error was harmful. Hyundai argues that any error was harmless because the Vas-quezes had a fair opportunity to discover bias or prejudice by questioning the panel about their personal seat belt habits. Moreover, Hyundai submits that the court of appeals erred in presuming harm rather than considering whether the error either “probably caused rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a); see also TEX. R. APP. P. 61.1(a).
The Vasquezes respond that general questions regarding personal seat belt habits were too broad to be useful in uncovering an existing bias against an injured party who did not use her seat belt. They further respond that presumed harm is the appropriate analysis when a trial court errs in seating a jury during voir dire.
First, I agree that questions about personal seat belt habits were not a reasonable substitute for a direct question about seat belt non-use bias. Just as our Court of Criminal Appeals has cautioned against injecting unnecessary specifics into voir dire questioning, so too has the Supreme Court condemned another extreme — the use of such general inquiries as to deny a party’s right to an adequate voir dire. Morgan v. Illinois, 504 U.S. 719, 734-35, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Too little information in the question can be as damaging to the process as too much. See id. at 729, 112 S.Ct. 2222 (“part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors”). Without some connection to the case to “lay bare the foundation of [a] challenge for cause,” the right not to be tried by jurors who harbor a disqualifying bias, or inability to follow the law, is “nugatory and meaningless.” Id. at 733-34, 112 S.Ct. 2222.
Next, regarding harm analysis in this type of case, we said in Babcock that the trial court’s erroneous refusal to permit a party to ask an appropriate question about subject matter bias was harmful because it denied that party’s “constitutional right to trial by a fair and impartial jury.” Babcock, 767 S.W.2d at 709. For this proposition, we cited Texas & Pacific Ry. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 531 (1958), in which we said that the “mere denial [of the constitutional right of trial by jury] raisefd] an inference of probable harm.” Similarly, in another case in which the jury was seated in an improper manner, we adopted the following harmless error analysis as our own:
It would be impossible for appellant to demonstrate with any degree of certainty that he in fact suffered injury as a*768 result of the manner in which the jury panel was selected, and he has made no effort to show specific harm or injury, but we think that harm within contemplation of the so-called harmless-error rule ..., must be presumed in the circumstances, if such rule or rules can be said to be applicable to the situation at all. Approval of the judgment would be tantamount to denying appellant his constitutional right of a trial by jury, because trial by a jury that has at least been selected in substantial compliance with law is what is guaranteed him by both the federal and our state constitutions.
Heflin v. Wilson, 297 S.W.2d 864, 866 (Tex.Civ.App.-Beaumont 1956, writ ref'd); cf. Rivas v. Liberty Mut. Ins. Co., 480 S.W.2d 610, 612 (Tex. 1972) (harm not presumed when error is procedural and does not violate fundamental right of trial by jury)-
An improperly impaneled jury is also akin to the denial of one. In this latter situation, we have held that the failure to grant a jury trial, when properly requested, is harmless only when “the record shows that no material issues of fact exist and an instructed verdict would have been justified.” Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991); see also Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996). More recently, we noted that an appellate court must presume harm when an objectionable person is erroneously included on a jury because the court “cannot know for certain that his inclusion did not affect the verdict.” Cortez, 159 S.W.3d at 91.
Just as in Cortez, it is impossible to know here whether the verdict would have been different had the jury been seated properly. But as in other cases involving the right to trial by jury, our harm analysis must reflect the importance our justice system accords this precious right. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (right to jury trial is “one of our most precious rights”); see also McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995) (“Denial of the constitutional right to trial by jury constitutes reversible error.”). I conclude then that the court of appeals correctly relaxed its harmless error analysis under the circumstances of this case.
Ill
Finally, I find it highly improbable that all of the prospective jurors who responded affirmatively to the seat belt bias questions during the failed voir dires actually harbored disqualifying bias or prejudice against unbelted claimants. It is more likely that their responses were the result of confusion or misunderstanding as the trial court itself acknowledged after the second voir dire. A prospective juror does not demonstrate disqualification merely by raising his or her hand in response to a question asking about bias or prejudice. The court or parties should ordinarily follow up to confirm or dispel any initial notion of disqualification. See Cortez, 159 S.W.3d at 93 (“If the initial apparent bias is genuine, further questioning should only reinforce that perception; if it is not, further questioning may prevent an impartial veniremember from being disqualified by mistake.”).
The voir dire in this case occurred before our decision in Cortez, which may explain the court’s management of the process. No attempt was made to discover what the prospective jurors actually intended when 29 of them, about 60% of the first panel, raised their hands in response to the seat belt question and when 18 of them, about 35% of the second panel, responded similarly. 189 S.W.3d at 748 n. 10. After the second voir dire, the court recognized the problem: “The problem ...
Because I believe the trial court’s solution of forbidding further inquiry into the issue of seat belt bias was arbitrary and made without reference to the principles which should have guided the court’s discretion, I would affirm the judgment of the court of appeals and remand this case for trial. Because the Court does not, I dissent.
Reference
- Full Case Name
- HYUNDAI MOTOR CO. and Hyundai Motor America, Inc., Petitioners, v. Victor Manuel VASQUEZ and Brenda Suarez Vasquez, Individually and on Behalf of the Estate of Alyssa Amber Vasquez, Respondents
- Cited By
- 129 cases
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- Published