by JoAnn Storey, JoAnn Storey, P.C.

Under Texas Rule of Civil Procedure 295, if the jury’s verdict is incomplete, not responsive to the questions, or contains conflicting answers, the court shall:

  • in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict;
  • provide such additional instructions as may be proper; and
  • retire the jury for further deliberations.

If your case involves the trial court’s failure to comply with Rule 295, keep in mind that a judgment may be reversed only if the error is harmful.  See Tex. R. App. P. 44.1(a)(1).

Two examples illustrate the application of the harmless-error rule in this context.  Reversing the appellate court’s decision, the supreme court in Ross v. Texas Employers’ Insurance Association concluded that it was not reversible error for the trial court to direct the sheriff in charge of the jury to verbally answer one juror’s question after the jury had retired to deliberate, as opposed to communicating with the jury in writing in open court as required by Rule 295.  267 S.W.2d 541, 542-43 (Tex. 1954) (applying the predecessor to Texas Rule of Appellate Procedure 44.1 and Texas Rule of Civil Procedure 327).

Of course, the error is waived if the complaint about the trial court’s failure to comply with Rule 295 is not made before the trial court discharges the jury.  See Bryan v. Papalia, 542 S.W.3d 676, 693 (Tex. App.—Houston [14th Dist.] 2017, pet. granted, judgm’t vacated by agr.).  But, even if an objection is timely and the trial court erred, the court in Bryan found that it was not reversible error for the trial court to tell the jury, in open court and on the record, that the verdict certificate contained an ambiguity.  Id. at 692-93.  The ambiguity involved the jury’s responses to questions that required unanimous answers; after the jury returned to the jury room, they amended the verdict certificate to indicate they all agreed to those answers that required unanimity.  Id. at 693.