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Golden Eagle Archery6/29/2000
deliberations" in these cases. And contrary to the court of appeals's suggestion in Baley, Rule 606(b) and Rule 327(b) were not intended to eliminate post-trial questioning altogether. Juror testimony is still permitted on the issues of juror misconduct, communications to the jury, and erroneous answers on voir dire, provided such testimony does not require delving into deliberations. Tex. R. Civ. P. 327(a), (b).
Consequently, we conclude that Rules 327(b) and 606(b) do not bar Frederick's testimony about his conversation with Maxwell during a trial break. However, because this evidence does not conclusively establish that Maxwell prevaricated or concealed bias during voir dire, we do not agree that the trial court abused its discretion in failing to grant a new trial.
To warrant a new trial for jury misconduct, the movant must establish (1) that the misconduct occurred, (2) it was material, and (3) probably caused injury . Rule 327 provides that a trial court:
may grant a new trial if . . . the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party. Tex. R. Civ. P. 327(a).
Whether misconduct occurred and caused injury is a question of fact for the trial court. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Absent findings to the contrary, we must assume that the trial court made all findings in support of its decision to deny the motion for new trial. See id. Consequently, Jackson had the burden to conclusively establish that Maxwell committed jury misconduct, a burden he did not discharge.
Jackson contends that juror Frederick's accounts of a casual conversation with Maxwell established that she prevaricated on voir dire and concealed her bias. Frederick's affidavit in support of Jackson's motion stated in part:
At a recess during the trial after the testimony of the witness Mulaney, the juror Barbara Maxwell told me that she had been on a previous jury in which a family was suing for the death of another family member. Her comment was that the jury she was on awarded nothing, and that she did not believe in "awarding money in stuff like that". She also said, "We are the ones that end up paying for it." I reminded her that she had been asked about that by [Jackson's attorney] and she gave no answer.
Frederick elaborated on this incident as a witness called by Jackson at the hearing on the motion:
Q I believe [your affidavit refers] to something that took place while the case was still being tried; is that correct?
A Yes, sir, it is.
Q Did that take place on a break of the jury?
A Yes, sir, right outside the courtroom.
Q Now, this this - I believe that you told me that you and a female juror both like to drink coffee and you-all were the only coffee drinkers?
A Yes, sir.
Q Is that right?
A That's correct.
Q And during this break this female juror made some comments; is that right?
A That's correct, yes.
Q And what was it she said?
A It was during or right after the witness Mulaney, right after his testimony. She made the comment about it being boring. She said, "Of course, the whole thing is boring." And she said, "I don't believe in lawsuits like this." And I said, "Well," I said, "I think you was asked that during voir dire." And she didn't make any comment after that. She didn't answer me one way or the other.
Q Di
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