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Click here for the full text of this decision FACTS:In the early morning hours of Dec. 12, 1999, Scott Michael Pojar (Scott) was the driver of a four-passenger car that collided head on with a single-passenger car driven by Laura Kathleen McCormick. All five people involved were teenagers. All but one of the five survived relatively unscathed. One of the passengers in Scott’s car, Beatrice Cifre, was paralyzed by the collision, and currently requires extensive care. Beatrice and her parents, Wendell and Neida Cifre, sued Scott and his mother, Brenda Pojar (Brenda), as well as McCormick. Scott and Brenda filed a cross-claim against McCormick, saying she caused of the accident by running a red light, and McCormick filed her own cross-claim against Scott and Pujar, claiming Scott also ran a red light. For voir dire, the trial court gave Cifre six peremptory strikes. The trial court gave three peremptory strikes each to Scott and McCormick. In pretrial hearings and at trial, the issue of Scott’s past use of marijuana came up. There was conflicting testimony over whether Scott had smoked marijuana before the accident. Brenda admitted that she knew Scott had used marijuana in the past and had broken a promise to her not to use it again. She also testified that Scott carried a “4:20″ sticker on his car, a reference to a legalized-marijuana advocacy group named after the old police code reference for marijuana offenses. Brenda got an instructed verdict on the one claim against her. The jury found Scott’s negligence caused the accident. The jury awarded compensatory damages to Wendell and Neida Cifre for loss of past service, and separate compensatory damages to Beatrice. The jury found that Beatrice’s damages resulted from malice, but it did not assess any exemplary damages against Scott. On appeal, Scott raises the following issues: 1. Did the trial court abuse its discretion in its allocation of peremptory challenges? 2. Is any issue regarding the admission of evidence of marijuana use properly before the court? 3. Does sufficient evidence support an award for loss of past services if there is no evidence of lost services? 4. Must a trial court disregard a jury’s finding of malice as immaterial if the jury does not award exemplary damages? 5. Is evidence that a person used marijuana prior to operating a motor vehicle on a public road and entering an intersection despite a red light, thereby causing a collision with another vehicle, legally or factually insufficient to prove malice if the same person admits that driving under the influence of marijuana is wrong because it is dangerous? HOLDING:Affirmed in part; reversed and rendered in part. The court notes that because there were multiple parties on each side of the case (Beatrice and her parents were separate plaintiffs, while Scott and Brenda and McCormick were co-defendants), the trial curt had a duty to determine whether antagonism existed among them. The court accepts as true that there was antagonism between Scott and Brenda and McCormick, since one blamed the other for causing the accident. But the fact of antagonism does not end the enquiry; the next step is to assess how the trial court dealt with that antagonism. The court compares Scott’s objection to the peremptory challenge issue at trial with the point of error he raises on appeal and finds that they differ. At trial, even though the word “equalization” was used, Scott wanted the trial court to realign the sides. He argued that Cifre’s and McCormick’s attorneys were “chummy,” for instance. The trial court refused to do that. On appeal, Scott now argues that the trial court should have equalized the number of challenges allocated to each party. If Scott meant to argue for equalization at trial, he failed to clearly articulate the relief he sought. The court goes on to address the issue, then, of the trial court’s refusal to realign the sides, concluding that the cases where realignment and reallocation of peremptory challenges were achieved involved an agreement among the party. Without such an agreement, the trial court correctly declined to realign the sides. Even though it does not need to address the equalization issue since it was not properly preserved for appeal the court does so anyway, paying particular attention to Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex. 1979), which the dissent and Pojar both contend stands for the proposition that is reversible error to require two antagonistic defendants to share six strikes against a plaintiff’s six strikes. The court finds that Dunn recognized trial-court discretion to create disparity in the number of challenges among parties, and noted that a two-to-one disparity would be generally acceptable, while, say, a four-to-one disparity would be an abuse of discretion. “We believe that the disparity ratio in this case was between two-to-one and three-to-one. Given that the trial court did not allow counsel for Cifre and McCormick to work together in exercising their challenges and given that there was antagonism between not only McCormick and Pojar but also between Cifre and McCormick, we conclude that there was no abuse of discretion.” The court adds that many courts have interpreted Dunn so as to relax the complaining party’s initial burden of showing actual error, overlooking considerations of fairness articulated by the Dunn court. No “bright-line rule” governs the trial court’s discretion, as Dunn made clear, but what is clear is that “equalization does not mean exact numerical equality.” Here, Pojar and McCormick were not forced to share their strikes, but they could collaborate if they wanted to. Inherent in this ruling is a finding that despite the chumminess between Cifre and McCormick, the co-defendants still had an overriding common interest in defeating Cifre’s claims against them, even if this common interest were strictly limited to the issue of damages. The chumminess, in turn, was accounted for by the trial court’s specific instruction forbidding Cifre and McCormick from working together in exercising their challenges. The trial court thus attempted to minimize the possibility that an unfair advantage would arise. “In explaining today’s decision, we emphasize that, regardless of what degree of harm must be shown to justify a new trial, the complaining party must always bear the initial burden of showing actual error. Considerations of fairness remain an integral part of today’s jurisprudence, and we decide today’s case by considering whether the trial court’s allocation of peremptory challenges produced an unfair advantage, an approach which is consistent with supreme court precedent. Because we find no abuse of discretion, we do not reach any issues of harm.” The court next discusses the various references to Scott’s alleged marijuana use. Specifically, Scott complains of evidence that marijuana metabolites were in his system after the accident, that he had smoked marijuana in the past, that he had a “4:20″ sticker on his car, and that he smoked an unknown quantity of marijuana some time on the night of the accident. The court finds evidence falling into the first three categories was initially injected into the trial by Scott’s attorney, not by Cifre or McCormick. Scott waived his objections on these points. The court then takes note of the several references in pretrial hearings and at trial to Scott’s marijuana use on the night of the accident. The court finds that Scott’s objection was premised on his attorney’s belief that Cifre would attempt to prove Scott was impaired solely by the presence of marijuana metabolites in his urine the day after the accident. Cifre never offered this evidence at trial. Instead, Cifre attempted to prove impairment by eyewitness testimony that Scott used marijuana on the night of the accident, and Scott did not object to this evidence. The court rules in Scott’s favor on the issue of damages to Cifre’s parents for loss of past services. There was no direct testimony of these lost services. Even if Cifre and her family suffer financial hardships because of the injuries she sustained in the accident, such evidence, standing alone, is legally insufficient to support the award of $200,000 for lost services. The court notes that it is not saying any claim for lost services must be based solely on objective elements, but here there was no evidence that Cifre ever performed any services for her parents or that she would have performed certain services had she not been injured. The court then rules that the evidence supported the jury’s finding of malice. “[W]e conclude that there is legally and factually sufficient evidence to support the jury’s finding that the combination of Pojar’s acts (namely, using marijuana, driving a vehicle after using marijuana, and running a red light) involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and that Pojar had actual subjective awareness of the risk involved but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others.” OPINION:Garza, J.; Hinojosa, Yanez, and Garza. DISSENT:Hinojosa, J. “I conclude the trial court erroneously believed that absent a signed agreement or settlement between Cifre and McCormick, she could not find antagonism and equalize peremptory challenges.”

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