Lillie Marie Clark v. Greg Steven Clark ( 2008 )

Order filed May 1, 2008

Order filed May 1, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00302-CV

                                                    __________

                                  LILLIE MARIE CLARK, Appellant

                                                             V.

                                   GREG STEVEN CLARK, Appellee

                                         On Appeal from the 106th District Court

                                                         Gaines County, Texas

                                              Trial Court Cause No. 00-10-14125

                                                                     O R D E R

Greg Steven Clark=s motion for rehearing concerning this court=s March 20, 2008 opinion is overruled.  The opinion and judgment dated March 20, 2008, are withdrawn.  The opinion and judgment dated May 1, 2008, are substituted therefor.

PER CURIAM

May 1, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

Opinion filed May 1, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00302-CV

                                                    __________

                                  LILLIE MARIE CLARK, Appellant

                                                             V.

                                   GREG STEVEN CLARK, Appellee

                                         On Appeal from the 106th District Court

                                                         Gaines County, Texas

                                              Trial Court Cause No. 00-10-14125

                                             M E M O R A N D U M   O P I N I O N

Lillie Marie Clark filed a motion to modify an order naming Greg Steven Clark sole managing conservator of their three children.  The motion was tried to a jury. The jury held for Greg, and Lillie filed a motion for new trial alleging jury misconduct.  The trial court conducted an evidentiary hearing and denied the motion.  Because the trial court erred by excluding admissible testimony, we reverse and remand for admission of the testimony and further consideration of the motion for new trial.

Lillie called Trey Curiel as a witness during the posttrial hearing and asked about a conversation he had with one of the jurors.  Greg objected, contending that Curiel=s testimony was hearsay.  Lillie responded that it was admissible as a statement against interest.^[1]  The trial court sustained Greg=s objection, and Lillie made an offer of proof.  Curiel testified that he spoke with one of the jurors after the trial, that the juror admitted that he thought Lillie was crazy, that he knew who he would vote for before he ever came to the courthouse, and that he did not want to let his coach down.  Following the offer, the trial court reaffirmed its decision to exclude Curiel=s testimony and denied Lillie=s motion for new trial.

Lillie challenges the trial court=s ruling with two issues.  She contends that the trial court erred by excluding Curiel=s testimony^[2] and erred by denying her motion for new trial.  Greg does not directly address the exclusion of Curiel=s testimony and essentially concedes the issue.  Greg argues instead that, even if Curiel=s testimony is considered, the trial court did not abuse its discretion because it could have disbelieved or discounted Curiel=s testimony for any number of reasons.  We agree that the trial court has broad discretion and that we must defer to any credibility assessment when considering the exercise of that discretion.  However, the trial court=s ruling makes clear that it did not consider Curiel=s testimony and, therefore, that it did not make a credibility assessment.

The statement against interest hearsay exception applies to statements that, at the time of their making, tend to subject the declarant to civil or criminal liability.  Tex. R. Evid. 803(24).  Curiel=s proffered testimony falls within this exception.  During voir dire, the challenged juror indicated that he knew both parties and their children and that Greg had been his high school basketball coach.  But, he denied that this would give him a bias in the case or that he would show favoritism toward Greg.  These representations are fundamentally inconsistent with the juror=s alleged posttrial admission that he had decided how to vote before the start of trial and his alleged statement that he did not want to let his coach down.  Moreover, these discrepancies would potentially subject the juror to a perjury charge.  See Tex. Penal Code Ann. ' 37.02 (Vernon 2003); Duffy v. State, 567 S.W.2d 197, 200 (Tex. Crim. App. 1978) (statements or answers given by prospective jurors during voir dire are given under oath). Accordingly, the statement-against-interest exception applies, Curiel=s testimony was admissible, and the trial court abused its discretion by excluding it.^[3] Because Curiel=s testimony was the sole evidence of the alleged misconduct, its exclusion was harmful.^[4]  Lillie=s second issue is sustained.

Curiel=s excluded testimony does not establish jury misconduct as a matter of law.  It  merely creates a fact question.  We cannot, therefore, conclude that the trial court erred by denying the motion for new trial.  Lillie=s first issue is overruled.  The trial court=s order denying Lillie=s motion for new trial is reversed, and this cause is remanded for further consideration of Lillie=s motion for new trial and the admission of Curiel=s previously excluded testimony.

PER CURIAM

May 1, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

---

     ^[1]See Tex. R. Evid. 803(24).

     ^[2]Lillie=s brief refers to Curiel=s affidavit rather than his testimony.  We believe that this was a typographical error and that she is complaining of the exclusion of his testimony. 

     ^[3]See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (the admission or exclusion of evidence is a matter within the trial court=s discretion).

     ^[4]See Tex. R. App. P. 44.1 (in addition to error, an appellant must also show that the error was calculated to cause and probably did cause the rendition of an improper judgment).