I dissent. The primary issue in this case is whether the impartiality of the jury was compromised by improper contacts by an employee of the defendant and improper communications by a court officer. I would reverse and remand for trial.
Improper Contacts In point of error one, the plaintiffs contend the contacts between Pylant and Ferris Collier, an employee of the sheriff's criminal investigation division, during the trial violated the court's instructions to the jurors not to have contact with parties in a lawsuit *Page 269 during the trial and amounted to reversible error. I agree.
In reaching its decision to affirm, the majority rejects as inapplicable a long line of cases, two of them from the Supreme Court, that hold that contacts between jurors and a party or a party's representative involving favors given, requested, or received, are so inimical to a fair trial, that no proof harm is necessary. Texas Employers' Ins. Ass'n v.McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921 (1958) (plaintiff went to juror's office and asked her to do all she could for her); Texas Milk Products Co. v. Birtcher,138 Tex. 178, 157 S.W.2d 633, 634 (1941) (party purchased soft drink for juror); Texas Employers' Ins. Ass'n v.Brooks, 414 S.W.2d 945, 946 (Tex.Civ.App. — Beaumont 1967, no writ) (juror requested ride home from party to suit and his brother-in-law); Occidental Life Ins. Co. v.Duncan, 404 S.W.2d 52, 53 (Tex.Civ.App. — San Antonio 1966, writ ref'd n.r.e.) (insured asked juror for an aspirin); see also Texas Employers' Ins. Ass'n v.Moore, 549 S.W.2d 37, 39 (Tex.Civ.App. — El Paso 1977, no writ) (if jurors had drunk coffee supplied by one of the attorneys, it would have been reversible error). The majority also rejects the holding of McCaslin, that a juror's disavowal of influence derived from misconduct is not relevant. McCaslin, 317 S.W.2d at 920.
The majority holds that Collier was "sufficiently remote" from the County and its representative. Majority op. n. 1. I respectfully disagree. First, Collier was not "remote" from the representative of the County; as a County employee, Collier was a representative of the County. Second, Collier was employed by the Chambers County Sheriff's department, the entity the plaintiffs charged with the responsibility for the accident. Chambers County has a small sheriff's department. Third, Chambers County is a small county with relatively few lawsuits.1 Collier, a member of the sheriff's department, dated Pylant, a member of the jury, and treated her to coffee at the sheriff's office during the trial.
The majority criticizes the trial judge and theattorneys for not explaining to the panel that they should not consort with current members of the sheriff's department. Clearly it was not the role of the attorneys to instruct the jury on this matter. Under TEX.R.CIV.P. 226a, the judge must give the following instruction:
Do not mingle with nor talk to the lawyers, the witnesses, the parties or any other person who might be connected with or interested in this case, except for casual greetings.
The instruction in rule 226a was sufficient to apprise the jurors that they could not consort with current members of the sheriff's department. Pylant admitted she knew the instructions applied to the sheriff. Yet, on two occasions she visited the sheriff's office and had coffee with his employees. Pylant's relationship with Collier and the sheriff's department went far beyond "casual" greetings permitted by rule 226a.
I would hold the meetings between juror Pylant and Collier, an employee of the County, during the trial were so contrary to fairness that proof of harm is not necessary. SeeMcCaslin, 317 S.W.2d at 929. I would also hold it was not necessary for juror Pylant to admit to being influenced by the contacts. Id. at 920. Nor was it necessary for other jurors to testify that they were influenced by seeing Pylant consort with Ferris.
I would sustain point of error one.
Improper Communications In point of error two, the plaintiffs argue the trial court erred in denying their motion for new trial because the bailiff of the 344th District Court made statements to the entire panel before voir dire that prejudiced their case. The bailiff told the jury panel that if it "wanted to talk about the county spending money, [it] better talk about raising taxes."
The majority dismisses the comment as nothing more than a harmless and casual comment about raising taxes in general. The plaintiffs contend the bailiff's comment poisoned the jury panel because he told them that if they awarded money damages, their *Page 270 taxes would be increased to pay for the award. The plaintiffs claim the actions of the bailiff were so outrageous that they deprived the plaintiffs of their right to "trial by jury." I agree with the plaintiffs.
The bailiff's testimony is set out in the majority's opinion. The bailiff admitted that he was wearing a badge of a deputy sheriff of the Chambers County Sheriff's department at the time he made the remark to the panel. The bailiff testified he was not employed by the sheriff's department, but by the county, the named defendant in the suit.
The majority minimizes the effect of the testimony of the plaintiffs' attorney at the motion for new trial hearing. Kevin Dutton, one of the plaintiffs' attorneys, testified he heard the bailiff's comment. He said the bailiff was asked about the cards and said "if they wanted to speak with the county about spending money, they needed to talk about taxes being raised." When asked if the entire panel heard the remark, Dutton said he thought so because "a number of prospective jurors and pretty much all of the panel started laughing when he (the bailiff) said that."2
The majority misconstrues the effect of testimony of Mary Heafner, an attorney who does not represent the plaintiffs, who testified that she discussed the case with the bailiff. She testified that the bailiff described the plaintiffs as "those people [who] were not from here," and said the jury would not give them any money because they knew the money would come out of their own pockets. The majority dismisses Heafner's testimony with the statement that none of the jurors heard the bailiff's remarks to Heafner. That was not the point of her testimony. The point of her testimony was that the bailiff told her, a stranger to the litigation, that he knew the jurors would not vote for the plaintiffs because he told them any recovery would come out of their own pockets. Heafner's testimony about the bailiff's remark to her bolsters the plaintiffs' argument that the bailiff informed the panel that they would pay the judgment with higher taxes.
The plaintiffs cite McCaslin for the proposition that once improper influence on a jury is shown, no other evidence is necessary in order to require a new trial. I agree. In McCaslin, the plaintiff went to the business office of a juror and asked her to "do all you can to help me." McCaslin, 317 S.W.2d at 918. The court held this was an overt act that was so prejudicial that the burden of going forward with proof of harm is met by simply showing the improper act and nothing more. Id. at 921.
I would hold the bailiff's remarks to the jury panel amounted to improper contact between an officer of the court and the jury. Although the harm analysis is not necessary under point of error number one, it is under this point. Thus, under this point I would engage in the harm analysis required by TEX.R.APP.P. 81(b)(1), to determine whether the error amounted to such a denial of the plaintiffs' rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Ramos v. Champlin Pet. Co., 750 S.W.2d 873, 877 (Tex.App. — Corpus Christi 1988, writ denied).
The bailiff is an officer of the court. Ex parteDaniels, 722 S.W.2d 707, 710 (Tex.Cr.App. 1987); Exparte Krupps, 712 S.W.2d 144, 147 (Tex.Cr.App. 1986). A presiding judge must conduct the trial in a fair and impartial manner and should refrain from making comments which result in prejudice to a litigant, or are calculated to influence the minds of the jury. Brown v. Russell, 703 S.W.2d 843, 847 (Tex.App. — Fort Worth 1986, no writ). We should consider the remark of the bailiff as if it had been uttered by the court. See, e.g., Krupps, 712 S.W.2d at 151 (party held in contempt for refusing to obey order of bailiff even though the judge had left the courtroom).
An appellate court should reverse a judgment because of improper comments or conduct on the part of the bailiff only if the comments are prejudicial. See Brown, 703 S.W.2d at 847 (improper comments of the trial judge). We should make our determination of whether the error probably caused *Page 271 the rendition of an improper judgment by examining the record as a whole. Walker v. Texas Employers' Ins. Ass'n,155 Tex. 617, 291 S.W.2d 298, 301 (1956); Brown, 703 S.W.2d at 847. Thus, under this harm analysis, we should also consider the contacts between Pylant and Collier.
Crucial to an analysis of harm is the recognition of the constitutional right to an impartial jury. See, e.g.,Babcock v. Northwest Mem. Hosp., 767 S.W.2d 705, 709 (Tex. 1989). The impartiality of the jury goes to the very integrity of the legal system. Historically, Texas courts have held that it is improper for a jury to be informed of whether or not a party is protected by insurance. Dennis v.Hulse, 362 S.W.2d 308, 309 (Tex. 1962). Here, the jury was given information that was more prejudicial than the mention of insurance by a lawyer. They were told — albeit obliquely — by an officer of the court that they would pay for any damage award to the plaintiff by higher taxes.
Trial judges (and their officers) must strive not only to give all parties a fair trial but also to maintain a high level of public trust and confidence. Indemnity Ins. Co. v.McGee, 356 S.W.2d 666, 668 (Tex. 1962). The constitutional guarantee of an impartial jury is the cornerstone of our system of justice. The possibility that even one juror in the plaintiffs' case was biased or prejudiced offends our sense of justice.
Our jury system attempts to ascertain facts to arrive at the truth. Public policy demands that a jury hear the evidence in a case with absolute impartiality. Jury verdicts rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the jury system is based. The legitimacy of the judicial process is based on the public's respect and on its confidence that the system settles controversies impartially and fairly.
Texas law recognizes that multiple errors may result in reversal and remand for a new trial if the cumulative effect of the errors is harmful. See Scoggins v. Curtiss Taylor, 148 Tex. 15, 219 S.W.2d 451, 453-54 (1949). This is particularly true when the errors interact with each other, and augment their individual effects. See id. 219 S.W.2d at 454.
I would hold that the errors in this case were reasonably calculated to cause and probably did cause rendition of an improper judgment. The error in telling the panel, even obliquely, that the county was broke and taxes would have to be raised, when combined with the error of a juror consorting with an employee of the sheriff's office during the trial, was calculated to cause, and probably did cause the rendition of an improper verdict.
I would sustain point of error two.