Adalberto Villarreal v. Norco Crude Gatherings, Inc.--Appeal from 229th Judicial District Court of Jim Hogg County

MEMORANDUM OPINION
No. 04-02-00671-CV
Adalberto VILLARREAL,
Appellant
v.
NORCO CRUDE GATHERING, INC.,
Appellee
From the 229th Judicial District Court, Jim Hogg County, Texas
Trial Court No. 4664
Honorable Alex Gabert, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

This case arises from a personal injury suit. Appellant Adalberto Villarreal (Villarreal) filed suit against appellee Norco Crude Gathering, Inc. (Norco) for injuries he sustained while working as a truck driver, delivering Norco's oil. Following a trial, the jury rendered a take nothing verdict in favor of Norco. The trial court entered judgment in accordance with this verdict, and Villarreal filed a motion for new trial which was denied. Villarreal now appeals in two issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

Motion for New Trial/ Jury Misconduct

In his first issue, Villarreal contends the trial court erred in failing to grant his motion for new trial. Villarreal's motion was predicated on jury misconduct. He reiterates this argument in his appellate brief, citing the jury for failing to follow the instructions of the court's charge regarding the discussion of matters outside the evidence presented at trial, specifically, the discussion of the amount of any worker's compensation benefits received by Villarreal. During the course of its deliberations, the jury sent a note to the judge, asking, among other things, "to see checks and workers compensation claim documents." The note, argues Villarreal, is proof that the jury considered worker's compensation in arriving at its decision against him.

The trial court's decision to grant or deny a motion for new trial based upon jury misconduct is in the sound discretion of the court. In re J. F., Jr., 948 S.W.2d 807, 810 (Tex. App.--San Antonio 1997, no writ). To obtain a new trial on the basis of jury misconduct, the complaining party has the burden to prove: (1) the misconduct occurred; (2) it was material; and (3) based on the record as a whole the misconduct probably resulted in harm to the complaining party. Tex. R. Civ. P. 327(a); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000); Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985). A motion for new trial based on jury misconduct must also be supported by a juror's affidavit alleging that "outside influences" affected the jury's decision. Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex. 1987); Mitchell v. S. Pac. Transp. Co.,955 S.W.2d 300, 322 (Tex. App.--San Antonio 1997, no writ), overruled on other grounds.

Villarreal's motion is not supported by the affidavit of a juror. Villarreal, then, has failed to present any admissible evidence of jury misconduct. As such, he cannot prove that misconduct occurred. Golden Eagle Archery, 24 S.W.3d at 372. The trial court did not abuse its discretion in denying the motion for new trial. We overrule Villarreal's first issue.

Jury Charge

In his second issue, Villarreal complains the trial court erred in submitting Question 1 in its charge to the jury. The question asks whether Villarreal was acting as an employee and under the control of Norco at the time of his injury. Specifically, Villarreal contends the trial court should have "confin[ed] the [question] to whether Norco controlled the manner, means, and details" of how he "was to load his trailer to 'carry a full load'" and whether this alleged control made him an employee of Norco.

The submission of an improper jury question can be harmless error if the jury's answers to other questions render the improper question immaterial. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). A jury question is considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict. Id. Submission of an immaterial question is not harmful error unless the submission confused or misled the jury. Id. In determining this, we consider the question's probable effect on the minds of the jury in light of the charge as a whole. Id.

Assuming without deciding that the trial court's submission of Question 1, dealing with Villarreal's status as an employee and Norco's control over him, was improper, we find the alleged error to be harmless. The jury found, in Question 2, that Norco was not negligent. (1) Even if the jury had found Villarreal to be an employee of Norco or found Norco to have controlled Villarreal's work, it would not have altered the verdict because the jury also found that Villarreal's negligence was the sole proximate cause of the accident. Therefore, Question 1 is immaterial. In addition, viewing the charge as a whole, Question 1 does not mislead or confuse the jury. Any error, then, was harmless. We overrule Villarreal's second issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

1. Villarreal does not challenge the submission of Question 2 in either his motion for new trial or his appellate brief.