Preview
Electronically Filed
3/25/2024 12:00 AM
Hidalgo County District Clerks
CAUSE NO. C-1637-21-J Reviewed By: Arlene Villarreal
JUAN NORBETO CADENA § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 430th DISTRICT COURT
§
KEBO OIL & GAS, INC. §
Defendant. § HIDALGO COUNTY, TEXAS
DEFENDANT’S TRIAL BRIEF ON VOIR DIRE ISSUES
TO THE HONORABLE JUDGE OF THE COURT:
Defendant, KEBO OIL & GAS, INC., in the above-styled and numbered cause,
file their Trial Brief on Voir Dire issues and would show the court the following.
I.
Defendant expects Plaintiff’s counsel to attempt to voir dire jury panel members on
variations on the theme of whether they could award some astronomical sum of money
or to commit them to a particular amount or range in an attempt to find the most plaintiff-
favorable possible jury members. They should not be allowed to do so, as it injects clear
error into this case from the very beginning.
II.
A prospective juror is disqualified from serving on the jury when biased or
prejudiced for or against a party. See Tex. Gov't Code Ann. § 62.105(4). Accordingly,
one purpose of voir dire is to find biased jurors and eliminate them from the jury panel. In
re Commitment of Barbee, 192 S.W.3d 835, 845 (Tex.App.-Beaumont 2006, no pet).
Thus, litigants may question potential jurors to discover biases and to properly use
peremptory challenges. See In re Commitment of Hill, 334 S.W.3d 226, 228 (Tex.
2011)(per curiam). This does not mean, however, that all types of questions are
acceptable. Peremptory strikes are not intended to permit a party to “select” a favorable
Electronically Filed
3/25/2024 12:00 AM
Hidalgo County District Clerks
jury. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750 (Tex. Reviewed By:
2006). As Arlene
the Villarreal
Vasquez court noted:
Counsel's latitude in voir dire, while broad, is constrained by reasonable trial
court control. Such control is necessary because, though the motive of a
peremptory challenge may be to protect a private interest, the objective of
jury selection proceedings is to determine representation on a
governmental body. Thus, the exercise of jury strikes is not solely a private
endeavor: When private litigants participate in the selection of jurors, they
serve an important function within the government and act with its
substantial assistance.
See Hyundai at 750 (cleaned up and footnotes omitted)
One specifically problematic area is in the area of “commitment” type questions.
Any voir dire questioning that seeks to assess a venire member’s likely verdict – whether
in result or the damages amount – is improper under Texas law.
A commitment question attempts to “bind or commit a prospective juror to a verdict
based on a hypothetical set of facts.” Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim.
App. 2001). Commitment questions “require a venireman to promise that he will base his
verdict or course of action on some specific set of facts before he has heard any evidence,
much less all of the evidence in its proper context.” Sanchez v. State, 165 S.W.3d 707,
712 (Tex. Crim. App. 2005); Standefer, 59 S.W.3d at 179. Although counsel
may “question jurors about bias or prejudice resulting from a societal influence outside
the case,” and “it is not unusual for jurors to hear the salient facts of the case during the
voir dire,” “a trial court does not abuse its discretion in refusing to allow questions that
seek to determine the weight to be given (or not be given) a particular fact or set of
relevant facts.” See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006).
This is because the answer to the question would not necessarily be disqualifying, but
would reveal a “fact-specific opinion,” not “improper subject-matter bias.” Id.
The court in Standefer essentially created a three-part test for both criminal and
civil cases. See Hyundai Motor Co., 189 S.W.3d at 753 (because the statutory standards
2
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Hidalgo County District Clerks
for bias and prejudice are the same in civil and criminal cases, “voir dire standards should
Reviewed By: Arlene Villarreal
remain consistent.”). To analyze the propriety of the question the court must ask (1) is the
question a commitment question; (2) if so, is it proper; and (3) does the question contain
only the facts necessary to test whether a prospective juror is challengeable for cause.
See Standefer, 59 S.W.3d at 179–82.
A commitment question is one to which “one or more of the possible answers is
that the prospective juror would resolve or refrain from resolving an issue in the case on
the basis of one or more facts contained in the question.” 59 S.W.3d at 180; see also K.J.
v. USA Water Polo, Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012,
pet. denied)(“commitment” questions attempt to commit a prospective juror “to resolve, or
refrain from resolving, an issue a certain way after learning a particular fact”).
If the voir dire question is a commitment question, the next step is to determine if
one of the possible answers gives rise to a valid challenge for cause. See Standefer, 59
S.W.3d at 181–82. Texas law requires a “certain type of commitment from jurors” in every
trial, and that includes following the law. Id. at 181. If, however, the commitment would
require the juror to stop listening to evidence after a certain point, then it is improper. See
e.g., In re Commitment of Barnes, 2020 WL 4499795 *7 (Tex. App. – Dallas 2020, writ
denied)(question asked whether juror would automatically find against the party once they
heard the term “child victim” or “pedophilic disorder,” and court found that such would not
be a “fact-specific opinion,” but rather evidence of a disqualifying and “improper subject-
matter bias.”); see also Hill at 229-30 (jurors may be asked to commit to follow law and
statute, and render “a true verdict according to the law and to the evidence”).
Finally, the court should review whether the question is sufficiently limited to test
only bias/prejudice or injects other facts that are not necessary. See Standefer, 59
S.W.3d at 179-82. This would include any attempt to commit the jury during voir
3
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Hidalgo County District Clerks
dire examination to a promise to arrive at at least a certain amount or Reviewed By: Arlene Villarreal
to any similar
monetary commitment. See K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 601 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied); Greenman v. City of Fort Worth, 308
S.W.2d 553, 554 (Tex. App.—Fort Worth 1957, writ ref’d n.r.e.) (affirming trial court’s
ruling that prevented a voir dire question committing jury to a specific award
amount). Specifically, the K.J. Court condemned the use of a question that asked the
jurors to award $2 million if the law and credible evidence justified it. These sort of
commitment questions regarding monetary damages have become commonplace
attempts from Plaintiff attorneys to try and skew jury awards early on in a case in an
improper manner. The Court should not allow those sort of attempts in this case.
Thus, “[q]uestions that are not intended to discover bias against the law or
prejudice for or against the defendant, but rather seek only to determine how jurors would
respond to the anticipated evidence and commit them to a specific verdict based on that
evidence are not proper.” See K.J., 383 S.W.3d at 601. “[I]t is improper to ask jurors what
their verdict would be if certain facts were proved,” and “attempts to preview a venire
member’s likely vote are not permitted.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d at
94. Nor may a lawyer ask the venire members if, after summarizing the case, one side
would be “starting out ahead.” Cortez ex. rel. Estate of Puentes v. HCCI-San Antonio,
Inc., 159 S.W.3d, 87, 94 (Tex. 2005). Questions aimed at “guessing the verdict” are
impermissible. Hyundai, 189 S.W.3d at 752.1 Put another way “[f]air and impartial jurors
reach a verdict based on the evidence, and not on bias or prejudice. Voir dire inquiries to
jurors should address the latter, not their opinion about the former.” See K.J., 383 S.W.3d
at 602. (condemning question that asked juror to commit to awarding $2 million if the law
and credible evidence justified it).
III.
4
Electronically Filed
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Hidalgo County District Clerks
Reviewed
Based on all of the above, the Court should reasonably restrict counsel from By: Arlene Villarreal
asking
any such commitment questions, or anything similar, to avoid causing the selection of an
improperly constituted jury.
WHEREFORE, PREMISES CONSIDERED, Kebo Oil & Gas, Inc. requests that the
Court take notice of this trial brief and grant to Defendant all such relief to which it is
entitled.
Respectfully submitted,
/s/Evan F. Patterson
LARRY D. WARREN
State Bar No. 20888450
E.F. PATTERSON
State Bar No. 24098232
NAMAN HOWELL SMITH & LEE, PLLC
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: (210) 731-6350 [Warren Direct]
Facsimile: (210) 785-2950 [Warren Direct]
lwarren@namanhowell.com
epatterson@namanhowell.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I certify that on the 23rd day of March 2024 a true and correct copy of the foregoing
document was filed with the Clerk of the Court using the CM/ECF system, and was served
on all counsel of record via e-filing notification system:
/s/EF Patterson
Evan F. Patterson
5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Evan Patterson
Bar No. 24098232
EPatterson@namanhowell.com
Envelope ID: 85891365
Filing Code Description: Motion (No Fee)
Filing Description: Trial Brief Re Improper Commitment Questions
Status as of 3/25/2024 2:08 PM CST
Associated Case Party: JUANNORBERTOCADENA
Name BarNumber Email TimestampSubmitted Status
J. Scott Frederick scott@jscottfredericklaw.com 3/23/2024 4:01:29 PM SENT
Jason DeSouza scheduling@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
Michelle Roberson michelle@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
JASON FDESOUZA jason@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
John PRiley john@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Sara Gonzalez sara@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
SHERIFF'S OFFICE civil@hidalgoso.org 3/23/2024 4:01:29 PM SENT
Commercial Scheduling Comm_scheduling@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT
JORGE LALVAREZ JORGE@JFDLAWFIRM.COM 3/23/2024 4:01:29 PM SENT
ADRIANA SOLIS ASOLIS@NAMANHOWELL.COM 3/23/2024 4:01:29 PM SENT
Associated Case Party: KEBO OIL AND GAS, INC
Name BarNumber Email TimestampSubmitted Status
LARRY WARREN lwarren@namanhowell.com 3/23/2024 4:01:29 PM SENT
EVAN FPATTERSON EPATTERSON@NAMANHOWELL.COM 3/23/2024 4:01:29 PM SENT
Preview
Electronically Filed 3/25/2024 12:00 AM Hidalgo County District Clerks CAUSE NO. C-1637-21-J Reviewed By: Arlene Villarreal JUAN NORBETO CADENA § IN THE DISTRICT COURT Plaintiff, § § V. § 430th DISTRICT COURT § KEBO OIL & GAS, INC. § Defendant. § HIDALGO COUNTY, TEXAS DEFENDANT’S TRIAL BRIEF ON VOIR DIRE ISSUES TO THE HONORABLE JUDGE OF THE COURT: Defendant, KEBO OIL & GAS, INC., in the above-styled and numbered cause, file their Trial Brief on Voir Dire issues and would show the court the following. I. Defendant expects Plaintiff’s counsel to attempt to voir dire jury panel members on variations on the theme of whether they could award some astronomical sum of money or to commit them to a particular amount or range in an attempt to find the most plaintiff- favorable possible jury members. They should not be allowed to do so, as it injects clear error into this case from the very beginning. II. A prospective juror is disqualified from serving on the jury when biased or prejudiced for or against a party. See Tex. Gov't Code Ann. § 62.105(4). Accordingly, one purpose of voir dire is to find biased jurors and eliminate them from the jury panel. In re Commitment of Barbee, 192 S.W.3d 835, 845 (Tex.App.-Beaumont 2006, no pet). Thus, litigants may question potential jurors to discover biases and to properly use peremptory challenges. See In re Commitment of Hill, 334 S.W.3d 226, 228 (Tex. 2011)(per curiam). This does not mean, however, that all types of questions are acceptable. Peremptory strikes are not intended to permit a party to “select” a favorable Electronically Filed 3/25/2024 12:00 AM Hidalgo County District Clerks jury. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750 (Tex. Reviewed By: 2006). As Arlene the Villarreal Vasquez court noted: Counsel's latitude in voir dire, while broad, is constrained by reasonable trial court control. Such control is necessary because, though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Thus, the exercise of jury strikes is not solely a private endeavor: When private litigants participate in the selection of jurors, they serve an important function within the government and act with its substantial assistance. See Hyundai at 750 (cleaned up and footnotes omitted) One specifically problematic area is in the area of “commitment” type questions. Any voir dire questioning that seeks to assess a venire member’s likely verdict – whether in result or the damages amount – is improper under Texas law. A commitment question attempts to “bind or commit a prospective juror to a verdict based on a hypothetical set of facts.” Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). Commitment questions “require a venireman to promise that he will base his verdict or course of action on some specific set of facts before he has heard any evidence, much less all of the evidence in its proper context.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005); Standefer, 59 S.W.3d at 179. Although counsel may “question jurors about bias or prejudice resulting from a societal influence outside the case,” and “it is not unusual for jurors to hear the salient facts of the case during the voir dire,” “a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not be given) a particular fact or set of relevant facts.” See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006). This is because the answer to the question would not necessarily be disqualifying, but would reveal a “fact-specific opinion,” not “improper subject-matter bias.” Id. The court in Standefer essentially created a three-part test for both criminal and civil cases. See Hyundai Motor Co., 189 S.W.3d at 753 (because the statutory standards 2 Electronically Filed 3/25/2024 12:00 AM Hidalgo County District Clerks for bias and prejudice are the same in civil and criminal cases, “voir dire standards should Reviewed By: Arlene Villarreal remain consistent.”). To analyze the propriety of the question the court must ask (1) is the question a commitment question; (2) if so, is it proper; and (3) does the question contain only the facts necessary to test whether a prospective juror is challengeable for cause. See Standefer, 59 S.W.3d at 179–82. A commitment question is one to which “one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.” 59 S.W.3d at 180; see also K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)(“commitment” questions attempt to commit a prospective juror “to resolve, or refrain from resolving, an issue a certain way after learning a particular fact”). If the voir dire question is a commitment question, the next step is to determine if one of the possible answers gives rise to a valid challenge for cause. See Standefer, 59 S.W.3d at 181–82. Texas law requires a “certain type of commitment from jurors” in every trial, and that includes following the law. Id. at 181. If, however, the commitment would require the juror to stop listening to evidence after a certain point, then it is improper. See e.g., In re Commitment of Barnes, 2020 WL 4499795 *7 (Tex. App. – Dallas 2020, writ denied)(question asked whether juror would automatically find against the party once they heard the term “child victim” or “pedophilic disorder,” and court found that such would not be a “fact-specific opinion,” but rather evidence of a disqualifying and “improper subject- matter bias.”); see also Hill at 229-30 (jurors may be asked to commit to follow law and statute, and render “a true verdict according to the law and to the evidence”). Finally, the court should review whether the question is sufficiently limited to test only bias/prejudice or injects other facts that are not necessary. See Standefer, 59 S.W.3d at 179-82. This would include any attempt to commit the jury during voir 3 Electronically Filed 3/25/2024 12:00 AM Hidalgo County District Clerks dire examination to a promise to arrive at at least a certain amount or Reviewed By: Arlene Villarreal to any similar monetary commitment. See K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); Greenman v. City of Fort Worth, 308 S.W.2d 553, 554 (Tex. App.—Fort Worth 1957, writ ref’d n.r.e.) (affirming trial court’s ruling that prevented a voir dire question committing jury to a specific award amount). Specifically, the K.J. Court condemned the use of a question that asked the jurors to award $2 million if the law and credible evidence justified it. These sort of commitment questions regarding monetary damages have become commonplace attempts from Plaintiff attorneys to try and skew jury awards early on in a case in an improper manner. The Court should not allow those sort of attempts in this case. Thus, “[q]uestions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence are not proper.” See K.J., 383 S.W.3d at 601. “[I]t is improper to ask jurors what their verdict would be if certain facts were proved,” and “attempts to preview a venire member’s likely vote are not permitted.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d at 94. Nor may a lawyer ask the venire members if, after summarizing the case, one side would be “starting out ahead.” Cortez ex. rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d, 87, 94 (Tex. 2005). Questions aimed at “guessing the verdict” are impermissible. Hyundai, 189 S.W.3d at 752.1 Put another way “[f]air and impartial jurors reach a verdict based on the evidence, and not on bias or prejudice. Voir dire inquiries to jurors should address the latter, not their opinion about the former.” See K.J., 383 S.W.3d at 602. (condemning question that asked juror to commit to awarding $2 million if the law and credible evidence justified it). III. 4 Electronically Filed 3/25/2024 12:00 AM Hidalgo County District Clerks Reviewed Based on all of the above, the Court should reasonably restrict counsel from By: Arlene Villarreal asking any such commitment questions, or anything similar, to avoid causing the selection of an improperly constituted jury. WHEREFORE, PREMISES CONSIDERED, Kebo Oil & Gas, Inc. requests that the Court take notice of this trial brief and grant to Defendant all such relief to which it is entitled. Respectfully submitted, /s/Evan F. Patterson LARRY D. WARREN State Bar No. 20888450 E.F. PATTERSON State Bar No. 24098232 NAMAN HOWELL SMITH & LEE, PLLC 10001 Reunion Place, Suite 600 San Antonio, Texas 78216 Telephone: (210) 731-6350 [Warren Direct] Facsimile: (210) 785-2950 [Warren Direct] lwarren@namanhowell.com epatterson@namanhowell.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I certify that on the 23rd day of March 2024 a true and correct copy of the foregoing document was filed with the Clerk of the Court using the CM/ECF system, and was served on all counsel of record via e-filing notification system: /s/EF Patterson Evan F. Patterson 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Evan Patterson Bar No. 24098232 EPatterson@namanhowell.com Envelope ID: 85891365 Filing Code Description: Motion (No Fee) Filing Description: Trial Brief Re Improper Commitment Questions Status as of 3/25/2024 2:08 PM CST Associated Case Party: JUANNORBERTOCADENA Name BarNumber Email TimestampSubmitted Status J. Scott Frederick scott@jscottfredericklaw.com 3/23/2024 4:01:29 PM SENT Jason DeSouza scheduling@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT Michelle Roberson michelle@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT JASON FDESOUZA jason@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT John PRiley john@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Sara Gonzalez sara@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT SHERIFF'S OFFICE civil@hidalgoso.org 3/23/2024 4:01:29 PM SENT Commercial Scheduling Comm_scheduling@jfdlawfirm.com 3/23/2024 4:01:29 PM SENT JORGE LALVAREZ JORGE@JFDLAWFIRM.COM 3/23/2024 4:01:29 PM SENT ADRIANA SOLIS ASOLIS@NAMANHOWELL.COM 3/23/2024 4:01:29 PM SENT Associated Case Party: KEBO OIL AND GAS, INC Name BarNumber Email TimestampSubmitted Status LARRY WARREN lwarren@namanhowell.com 3/23/2024 4:01:29 PM SENT EVAN FPATTERSON EPATTERSON@NAMANHOWELL.COM 3/23/2024 4:01:29 PM SENT