Jesus M. Cortez, on behalf of the Estate of Carmen Puentes, Deceased v. HCCI-San Antonio, Inc. d/b/a Alta Vista Nursing Center; Alta Vista Nursing Center; Altman Nursing, Inc. d/b/a Alta Care Nursing Center; Hunter Care Centers, Inc. d/b/a Alta Vista Nursing Center; and Jerry Tristan--Appeal from 285th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-02-00536-CV
Jesus M. CORTEZ, On Behalf of the Estate of Carmen Puentes, Deceased,
Appellant
v.

HCCI-SAN ANTONIO, INC., d/b/a Alta Vista Nursing Center; Alta Vista Nursing Center;
Altman Nursing, Inc. d/b/a Alta Vista Nursing Center; Hunter Care Centers, Inc.
d/b/a Alta Vista Nursing Center; and Jerry Tristan,
Appellees
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 1995-CI-12856
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 7, 2004

This case is a good example of the reason the law prohibits a juror, who admits having a bias or prejudice, from being rehabilitated by the efforts of opposing counsel or the trial court. See White v. Dennison, 752 S.W.2d 714, 717 (Tex. App.--Dallas 1988, writ denied) (trial court must excuse juror who admits bias or prejudice even where juror is rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and be fair to both sides); Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App.--Corpus Christi 1984, no writ) (same); Carpenter v. Wyatt Const. Co., 501 S.W.2d 748, 750 (Tex. Civ. App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.) (same). Snider admitted that he had preconceived notions and judgments. As a result, Snider was asked, "And given that fact, can you tell the court that you definitely do have a prejudgment and probably a bias in the case?" Snider responded, "I would feel bias, but, I mean, I can't answer anything for certain." In my opinion, Snider's admissions reveal a state of mind that leads to a natural inference that he would not act impartially, thereby establishing bias. Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex. App.--San Antonio 2000, no pet.).

The majority opinion quotes extensively from statements made by Snider during efforts by opposing counsel and the court to rehabilitate him. Initially, upon questioning by the trial court, Snider mentions the issue of "lawsuit abuse" and admits that one party would be starting out ahead of the other party before he even got into the jury box. Snider concedes that perhaps his bias is not one he should have, but "[i]t's just there." With regard to whether his training and experience would prohibit him from listening to the evidence from both sides and making a decision, Snider becomes more evasive, stating "You know, I honestly don't know."

Opposing counsel then undertook efforts to rehabilitate Snider. When questioned by one counsel, Snider continued to be evasive and refused to directly answer the question. In response to whether he would listen to the evidence and find that the plaintiff proved his case, Snider stated that he "could try" but he did not have "a yes or no" answer. After another counsel attempted to rehabilitate Snider, he became more equivocal in his responses, stating he was "willing to try" and that he "could try" to listen to the evidence before making a decision regarding the merits of the claim.

The law precludes this court from considering the efforts of counsel and the court to rehabilitate Snider for a good reason. Once a juror admits bias, efforts by opposing counsel and the court to mask that bias by eliciting equivocal answers should not be sufficient to undermine the right to a fair and impartial jury. Because Snider admitted to having a bias, and because this court should not consider efforts by opposing counsel and the court to rehabilitate him in order to conclude that Snider was "somewhat equivocal," I would sustain Snider's first point of error. Because the majority holds to the contrary, I respectfully dissent.

Alma L. L pez, Chief Justice