05-07-00690-CV
AFFIRM and Opinion Filed February 5, 2009
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00690-CV
............................
BOBBY HAGOOD, Appellant
V.
FISHBORN, INC. D/B/A CUSTOM INTEGRATED SERVICES, Appellee
.............................................................
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-11425-I
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Lang
Opinion By Justice O'Neill
Appellant Bobby Hagood appeals from a take nothing judgment against appellee Fishborn, Inc. d/b/a
Custom Integrated Services. In his first issue, appellant argues he is entitled to a new trial under Texas Rule
of Appellate Procedure 34.6(f) because handwritten questions submitted by the jury to the trial court during
deliberations have been lost or destroyed, and the questions are necessary to the appeal's resolution. In his
second issue, he asserts he is entitled to a new trial because of jury misconduct. We affirm the trial court's
judgment. Because all dispositive issues are settled in law, we issue this memorandum opinion. The facts
and procedural history of this appeal are well known to the parties; therefore, we do not relate them in detail
here.
Missing Jury Questions in Reporter's Record
In his first issue, appellant argues he is entitled to a new trial under Texas Rule of Appellate Procedure
34.6(f) because handwritten questions submitted by the jury to the trial court during deliberations have been
lost or destroyed, and the questions are necessary to the appeal's resolution. He claims he is unable to
adequately prepare his brief without the questions, which relate to causation, because his motion for new
trial is based on whether jury misconduct occurred in determining causation. He further states the lost or
destroyed portion of the record cannot be replaced by agreement of the parties. See Tex. R. App. P. 34.6(f)
(4). Appellee responds appellant waived error under Texas Government Code section 52.046(a) by failing to
request a recording of the proceedings.
We agree with appellee that appellant failed to preserve his issue for review. Texas Rule of Appellate
Procedure 13.1 requires the official court reporter to attend court sessions and make a full record of the
proceedings unless excused by agreement of the parties. Tex. R. App. P. 13.1. However, section 52.046 of
the government code provides that “on request,” the court reporter must record all proceedings. Tex. Gov't
Code Ann. § 52.046(a) (Vernon 2005). We have held that “when confronted with the apparent conflict
between rule 13.1(a) and section 52.046 of the government code, the rule must yield.” See Langford v.
State, 129 S.W.3d 138, 139 (Tex. App.-Dallas 2003, no pet.); see also Kellison v. State, 05-06-01117-CR,
2008 WL 44424, *7-8 (Tex. App.-Dallas 2008, no pet.) (not designated for publication); Nicholson v. Fifth
Third Bank, 226 S.W.3d 581, 582 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
Appellant encourages us to revisit our holding in Langford; however, we are bound by our precedent. In
re M.C.T., 250 S.W.3d 161, 167 (Tex. App.-Fort Worth 2008, no pet.). He further contends Langford should
not be viewed as binding precedent because the Texas Supreme Court has not resolved the conflict among
the courts of appeals regarding rule 13.1 and government code section 52.046. We are unpersuaded by his
argument. As a court, we are duty bound to follow pronouncements by the supreme court; however, until the
court resolves the apparent conflict, we are not bound by the law of our sister courts of appeals. See In re
Westwood Affiliates, L.L.C., 263 S.W.3d 176, 179 (Tex. App.-Houston [1st Dist.] 2007, orig. proceeding). As
such, it is appellant's burden to bring forward a sufficient record to show the error committed by the trial
court. Nicholson, 226 S.W.3d at 583; Langford, 129 S.W.3d at 139.
Thus, relying on Langford and Kellison, we conclude appellant had the duty to request the court reporter
to record any proceedings involving the discussion of jury questions and to request preservation of any such
notes for the record. See Footnote 1 There is no evidence in the record that appellant did either. As such,
if the record was never made, it could not have been lost or destroyed and rule 34.6(f) does not apply. We
resolve his first issue against him.
Motion for New Trial on Jury Misconduct
In his second issue, appellant asserts he is entitled to a new trial because of juror misconduct. He
specifically claims the jury engaged in misconduct by applying the wrong standard of proof in determining
proximate cause.
We review a trial court's ruling on a motion for new trial based on jury misconduct for an abuse of
discretion. Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 48 (Tex. App.-San Antonio 2006, no pet.). To
obtain a new trial based on juror misconduct, an appellant must show (1) the misconduct occurred, (2) it was
material, and (3) it probably caused injury. Tex. R. Civ. P. 327; Golden Eagle Archery, Inc. v. Jackson, 24 S.
W.3d 362, 372 (Tex. 2000). Here, appellant filed a motion for new trial and attached affidavits from
several jurors stating that while deliberating the issue of proximate cause, “the standard I and the other
jurors applied was that of an absolute-that is 100%,” rather than a preponderance of the evidence standard.
Based on these affidavits, he claims juror misconduct occurred, and he is entitled to a new trial.
Texas Rule of Civil Procedure 327 states “when the ground of a motion for new trial, supported by
affidavit, is misconduct of the jury . . . , the court shall hear evidence thereof from the jury or others in open
court.” Tex. R. Civ. P. 327. During the hearing on his motion, appellant discussed the affidavits but never
attempted to admit them into evidence and never attempted to present any other evidence of juror
misconduct through live testimony. Affidavits themselves are not evidence, nor admissible as such at a
hearing on a motion for new trial. See Downing v. Uniroyal, Inc., 451 S.W.2d 279, 284 (Tex. App.-Dallas
1970, no writ); see also Martins v. State, 52 S.W.3d 459, 468 (Tex. App.-Corpus Christi 2001, no pet.).
Therefore, there is no evidence in the record to support appellant's allegations, and the trial court did not
abuse its discretion in denying the motion. See, e.g., Mattox v. State, 874 S.W.2d 929, 936 (Tex. App.-
Houston [1st Dist.] 1994, no pet.) (noting affidavit attached to a motion for new trial is a mere pleading, a
threshold to the introduction of evidence and not evidence itself). Appellant's second issue is overruled.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
MICHAEL J. O'NEILL
JUSTICE
070690F.P05
Footnote 1 We acknowledge that both of these cases are criminal in nature; however, we may look to
criminal law to determine similar or corresponding issues in civil law. See, e.g., Davis v. Fisk Elec. Co., 187 S.
W.3d 570, 582 (Tex. App.-Houston [14th Dist.] 2006) (noting court could look to criminal law when discussing
Batson challenges in the civil context because criminal jurisprudence is much more developed than civil
jurisprudence in this area of law), rev'd on other grounds, 268 S.W.3d 508 (Tex. 2008).
File Date[02/05/2009]
File Name[070690F]
File Locator[02/05/2009-070690F]