Tom Matis and Gary Sorensen v. Mark Golden, Brian Kosoglow and Jonathan Deming

IN THE TENTH COURT OF APPEALS No. 10-05-00311-CV Tom Matis and Gary Sorenson, Appellants v. Mark Golden, Brian Kosoglow, and Jonathan Deming, Appellees From the 361st District Court Brazos County, Texas Trial Court No. 02-002559-CV-361 ORDER Following a bench trial, the court found in Appellees’ favor on their fraud claim and rendered judgment against Appellants in the amount of $75,000 for actual damages, plus attorney’s fees and costs. The court signed the judgment on May 12, 2005. Appellants timely perfected this appeal. The district clerk filed the clerk’s record on October 21, 2005. To date, no reporter’s record has been filed. Because Appellants filed a motion for new trial, the reporter’s record was originally due on September 9, 2005. The Clerk of this Court notified the official court reporter, Susan Rainwater, that the record was overdue by letter dated September 29, 2005. This letter directed Rainwater to contact the Clerk regarding the matter within 10 days. Rainwater responded by requesting a 45-day extension, which was granted. A second notice was sent to Rainwater on January 6, 2006, directing her to file the record within 30 days. After this deadline passed without a response, a follow-up notice was sent on February 10 directing Rainwater to contact the Clerk regarding the matter within 10 days. Rainwater responded 4 days later, requesting a 15-day extension. This extension was granted, making the reporter’s record due on March 1. After the March 1 deadline passed without a response, a follow-up notice was sent on March 14 directing Rainwater to contact the Clerk regarding the matter within 10 days. The Clerk has left 3 telephone messages with Rainwater during the month of April.[1] Rainwater has not responded to the March 14 notice or the Clerk’s telephone messages. Accordingly, we ORDER court reporter Susan Rainwater to file the reporter’s record for cause number 02-002559-CV-361 in the 361st District Court of Brazos County, Texas with the Clerk of the Tenth Court of Appeals, McLennan County Courthouse, 501 Washington Avenue, Room 415, Waco, Texas 76701, on or before May 17, 2006. See McElwee v. Joham, 971 S.W.2d 198, 198 (Tex. App.—Waco 1998, order), disp. on merits, 15 S.W.3d 557 (Tex. App.—Waco 2000, no pet.). FAILURE OF SUSAN RAINWATER TO FILE THE REPORTER’S RECORD ON OR BEFORE MAY 17, 2006 MAY RESULT IN THE ISSUANCE OF A SHOW CAUSE ORDER AND/OR JUDGMENT OF CONTEMPT. The Court ORDERS that this Order be personally served on Susan Rainwater by overnight delivery via a commercial delivery service within the meaning of Rule of Appellate Procedure 9.5(b). See Tex. R. App. P. 9.5(b). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting with note)* Order issued and filed May 5, 2006 Do not publish * (“Dissenting note: Chief Justice Gray dissents from the issuance of this order because this Court has failed to comply with its joint responsibility to work with the trial court to ensure that the appellate record is timely filed. As is evident from the recitation of the history of our attempts to obtain the record, the trial court may be totally unaware of the reporter’s need to prepare this record. The trial court is in the best position to encourage and ensure the timely preparation and filing of the reporter’s record.”) [1] Counsel for Appellants notes in correspondence dated April 14, 2006 that he has sent 4 letters to Rainwater during the course of the appeal asking her to prepare the record and to notify him of the cost. Counsel states in the letter that “[a] long time ago I did talk with Ms. Rainwater on the phone and she told me that she would complete her record and get it to me along with her bill for services rendered.” Apparently, counsel has not heard from her since. alatino'>(2) That the juror has been convicted of misdemeanor theft or a felony; (3) That the juror is under indictment or other legal accusation for misdemeanor theft or a felony; (4) That the juror is insane; … (7) That the juror served on the grand jury which found the indictment; … No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist. Id. § 35.16(a). We review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). A mistrial is appropriate only for highly prejudicial and incurable errors. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). The Code of Criminal Procedure makes it a ground of challenge for cause that a panelist "served on the grand jury which found the indictment." Tex. Code Crim. Proc. Ann. art. 35.16(a)(7). It is error for a trial court to overrule a challenge for cause to a panelist who was a member of the grand jury that returned the indictment being tried. Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274, 279 (Tex. Crim. App. 1944); Mitchell v. State, 116 Tex. Crim. 65, 27 S.W.2d 800, 800-01 (Tex. Crim. App. 1930). But a claim that a juror served on the indicting grand jury is a ground for a challenge for cause, not an absolute disqualification. Tex. Code Crim. Proc. Ann. art. 35.16(a); Webb v. State, 232 S.W.3d 109, 113 (Tex. Crim. App. 2007); see, e.g., Freeman v. State, 168 S.W.3d 888, 891 (Tex. App.—Eastland 2005, no pet.); Moya v. State, 691 S.W.2d 63, 65 (Tex. App.—San Antonio 1985, no pet.) (service on grand jury that returned indictment is ground of challenge that may be waived pursuant to article 35.16(a)); see also Self v. State, 39 Tex. Crim. 455, 47 S.W. 26, 28 (Tex. Crim. App. 1898). The failure to question a juror about whether the juror was a member of the grand jury that returned the indictment constitutes a waiver of the right to thereafter complain that the juror was disqualified on that basis. Mitchell, 27 S.W.2d at 800. In Self, the Court of Criminal Appeals held that questioning of a juror as to whether or not he had formed an opinion in the case did not recall to him the fact that he had sat upon the grand jury which found the bill of indictment. Self, 47 S.W. at 28. “It was not diligence on the part of appellant to rest simply upon questioning the witness as to the formation of an opinion; but he should have covered the other grounds named in the statute, if he desired to avail himself of them, before he could be held to have used due diligence as to the particular cause for challenge [the juror's prior service on the grand jury].” Id. Therefore, the claim is waived unless the defendant specifically questioned the juror on potential grounds for disqualification and exercised the challenge in a timely manner. See Tex. Code Crim. Proc. Ann. art. 35.16(a); see also 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 35.65 (2001 & Supp. 2004). The proposition in Self was recently re-affirmed by the Court of Criminal Appeals in Webb. Addressing the exact issue before us, the court held: “challenge for cause is forfeited if not made. Failure to question the jurors on [whether they sat on the grand jury which found the indictment] constitutes a forfeiture of the right to complain thereafter.” Webb, 232 S.W.3d at 112. In Webb, “neither party specifically asked the panel if they had previously served on the grand jury that indicted Appellant.” The court upheld the Austin Court of Appeals’ ruling that “because neither party challenged the venirewoman the claim was waived.” Id. Here, Graham failed to diligently press the statutory inquiries as to the grounds for challenge. At no time did either counsel inquire whether anyone had served on a grand jury—or the grand jury at issue—nor did either question Ackland individually about any matter. Although the State asked the panel if anyone knew Mrs. Graham, it appears that Ackland did not remember Mrs. Graham by name and did not recall any facts of the case until she saw and heard Mrs. Graham on the stand, making the general question insufficient to preserve a challenge for cause. See Self, 47 S.W. at 28. There is no question that Ackland could have been excused for her prior grand jury service had she been timely challenged. But she was not queried or challenged. Accordingly, the trial court did not abuse its discretion in denying Graham’s motion for mistrial because the challenge had been waived. Webb, 232 S.W.3d at 112; Hawkins, 135 S.W.3d at 76-77. We overrule Graham’s only issue and affirm the trial court’s judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed February 27, 2008 Publish [CR25]