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Dempsey v. Beaumont Hospital2/22/2001
Appellee's Motion for Rehearing overruled March 15, 2001. Petition for review dismissed pursuant to settlement August 2, 2001.
DELIA DEMPSEY, APPELLANT
v.
BEAUMONT HOSPITAL, INC. D/B/A COLUMBIA BEAUMONT MEDICAL AND SURGICAL HOSPITAL, APPELLEE
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-155,053
Before Walker, C.J., Burgess and Gaultney, JJ.
The opinion of the court was delivered by: Don Burgess Justice
OPINION
Delia Dempsey, an employee of Beaumont Regional Medical Center, filed suit against Beaumont Hospital, Inc. d/b/a Columbia Beaumont Medical and Surgical Hospital, the Center's owner, alleging an on-the- job injury. Following the presentation of evidence by both sides, the charge was read to the jury and the jury retired for deliberations, which continued until the next day. That morning Juror #1, Lonnie Manuel, Jr., failed to appear. During the search for Manuel, the trial court discovered he had a prior felony conviction. Counsel for Dempsey moved for a mistrial. Following a hearing, the trial court denied the motion and proceeded with eleven jurors. The jury returned a 10-1 verdict that neither party was negligent and a take-nothing judgment was entered. The sole issue on appeal is whether the trial court erred in denying Dempsey's motion for mistrial when it was discovered that Manuel had been convicted of a felony.
Over the objection of Dempsey's counsel, the trial court conducted a hearing and asked Judge Larry Gist if Manuel would be considered to have been convicted of a felony so as to disqualify him statutorily from jury service in the State of Texas. Judge Gist testified the provisions of article 42.12, section 20(a) of the Texas Code of Criminal Procedure were satisfied, releasing Manuel "from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty." Tex. Code Crim. Proc. Ann. art. 42.12 § 20(a) (Vernon 1979). The trial court then found, ". . . I'm satisfied based on what we learned from Judge Gist he's not disqualified as a matter of law. So I'm not granting a mistrial on that . . .."
Following the trial, Dempsey's counsel filed a Motion for Mistrial or, in the alternative, Motion for New Trial. The first ground raised was that section 20(a) of article 42.12 did not apply to this case; that issue is also raised on appeal. Section 20(b) of article 42.12 provides, "This section does not apply to a defendant convicted of an offense . . . punishable as a state jail felony." Tex. Code Crim. Proc. Ann. art. 42.12 § 20(b) (Vernon 1979). According to the sworn testimony of Judge Gist, Manuel's conviction was for a state jail felony and the record supports that evidence. Because article 42.12 does not apply to Manuel, he could not have been released from his statutory disqualification pursuant to its provisions.
More importantly, Manuel was not released from his constitutional disqualification. The Texas Constitution provides that in civil cases in district courts the parties have the right to a jury of twelve persons who have not been convicted of a felony. See Tex. Const. art. I, § 15 (1876, amended 1935); Tex. Const. art. V § 13; and Tex. Const. art. XVI, § 2. Manuel was constitutionally disqualified to serve as a juror.
The Supreme Court of Texas has held that " n cases involving juror disqualification the Complainant need not establish that probable injury resulted therefrom before a new trial may be granted." Compton v. Henrie, 364 S.W.2d
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