Murff v. Pass Ex Rel. Pass, 249 S.W.3d 407 (Tex. 2008). · Go Syfert
Murff v. Pass Ex Rel. Pass, 249 S.W.3d 407 (Tex. 2008). Cases Citing This Book View Copy Cite
69 citation events (69 in the last 25 years) across 4 distinct courts.
Strongest positive: Zhigang Wang v. State (texapp, 2019-10-09)
Treatment trajectory · 2009 → 2026 · click a year to view as-of
2009 2017 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) Zhigang Wang v. State
Tex. App. · 2019 · confidence medium
App. 1987) (stating that juror’s potential bias, when reviewing the testimony as a whole, did not show “that such would cause him to be unwilling or unable to obey the law or follow the oath of a juror”); see also Silsbee Hosp., Inc. v. George, 163 S.W.3d 284 , 295–96 (Tex. App.—Beaumont 2005, pet. denied) (holding that although a venire member stated “she ‘would have trouble not giving him money— something, anyway[,]’” that statement was not unequivocal that she could not follow the instructions of the trial court); Buls v. Fuselier, 55 S.W.3d 204, 210 (Tex. App.— Texark…
examined Cited as authority (rule) Sylvia Roger, Individually and as Personal Representative of the Estate of Jean Louis Roger, Sr. v. Benjamin Karl Mumme, Jr. and Cameron International Corporation (3×) also: Cited "see"
Tex. App. · 2016 · confidence medium
Bias, prejudice, or inability to follow the trial court's instructions “may not be discernible from a single statement or response to a general question.” Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008).
cited Cited as authority (rule) In re M.G.N.
Tex. App. · 2016 · confidence medium
Murff v. Pass, 249 S.W.3d 407, 411 (Tex.2008) (citing Hyundai Motor Co., 189 S.W.3d at 755 ).
examined Cited as authority (rule) Sylvia Roger, Individually and as Personal Representative of the Estate of Jean Louis Roger, Sr. v. Benjamin Karl Mumme, Jr. and Cameron International Corporation (3×) also: Cited "see"
Tex. App. · 2015 · confidence medium
Bias, prejudice, or inability to follow the trial court's instructions “may not be discernible from a single statement or response to a general question.” Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008).
cited Cited as authority (rule) in the Interest of M.G.N. and A.C.N., Minor Children
Tex. App. · 2015 · confidence medium
Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co., 189 S.W.3d at 755 ).
discussed Cited as authority (rule) Karen D. Griffin v. Union Pacific Railroad Company and Kenneth Piper
Tex. App. · 2014 · confidence medium
We affirm the trial court’s judgment. 04-12-00824-CV STANDARD OF REVIEW AND CHALLENGES FOR BIAS OR PREJUDICE “A person is disqualified from serving on a jury if the person has a bias or prejudice in favor of or against a party or claim, or if the person is unable or unwilling to follow the trial court’s instructions.” Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing TEX.
discussed Cited as authority (rule) Elida Lopez Oliver v. Long Island Owners Association, Inc. (2×) also: Cited "see"
Tex. App. · 2009 · confidence medium
Murff v. Pass , 249 S.W.3d 407, 411 (Tex. 2008).
discussed Cited as authority (rule) Elida Lopez Oliver v. Long Island Owners Association, Inc. (2×) also: Cited "see"
Tex. App. · 2009 · confidence medium
Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008).
cited Cited "see" Estate of Rickey Ray Allen
Tex. App. · 2021 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam); Batra v. Covenant Health Sys., 562 S.W.3d 696 , 706 n.8 (Tex. App.—Amarillo 2018, pet. denied).
discussed Cited "see" Mary Louise Serafine v. Alexander Blunt and Ashley Blunt (2×)
Tex. App. · 2015 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam) (defining term as “the greater weight of the credible evidence”); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s “preponderance of the evidence” standard, that the phrase’s “particular meaning . . . in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759 , 763–64 (Tex. Crim.
discussed Cited "see" Shamark Smith Limited Partnership, Sharon D. Marcus, and Paul J. Smith v. Martin M. Longoria
Tex. App. · 2015 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (trial judges are given wide latitude both in conducting voir dire proceedings and in determining whether a panel member is impermissibly partial). 73 PRAYER Longoria prays: 1.
discussed Cited "see" Mary Louise Serafine v. Alexander Blunt and Ashley Blunt
Tex. App. · 2015 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam) (defining term as “the greater weight of the credible evidence”); Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.) (observing, with reference to the TCPA’s “preponderance of the evidence” standard, that the phrase’s “particular meaning . . . in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim” (citing Rickels v. State, 202 S.W.3d 759 , 763–64 (Tex. Crim.
cited Cited "see" Shamark Smith Limited Partnership, Sharon D. Marcus, and Paul J. Smith v. Martin M. Longoria
Tex. App. · 2015 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 409 (Tex. 2008).
discussed Cited "see" In Re Lufkin Industries, Inc. (2×)
Tex. App. · 2010 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 411 (Tex.2008) (per curiam) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex.2006)); see also Columbia Med.
cited Cited "see" in Re: Lufkin Industries, Inc.
Tex. App. · 2010 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006)); see also Columbia Med.
discussed Cited "see" Lauren Taber, Individually and as Next Friend of Jordan Robinson, a Minor v. Catherine Nguyen Roush, M.D. and Plaza Ob-Gyn Associates, P.A. (2×)
Tex. App. · 2010 · signal: see · confidence high
See Murff v. Pass , 249 S.W.3d 407, 411 (Tex. 2008); Gant v. Dumas Glass and Mirror, Inc. , 935 S.W.2d 202, 208 (Tex. App.—Amarillo 1996, no writ).
examined Cited "see" Taber v. Roush (4×)
Tex. App. · 2010 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 411 (Tex.2008); Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202, 208 (Tex.App.-Amarillo 1996, no writ).
discussed Cited "see" In Re Columbia Medical Center of Las Colinas, Subsidiary, L.P. (2×)
Tex. · 2009 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407, 411 (Tex.2008) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex.2006)).
discussed Cited "see" Baylor Medical Center at Waxahachie v. Wallace
Tex. App. · 2009 · signal: see · confidence high
See Murff v. Pass, 249 S.W.3d 407 , 409 n. 1 (Tex.2008) (per curiam) (proper standard of proof in case involving section 74.153 is preponderance of evidence); Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex.2007) (ordinary care standard is not higher standard of care like strict liability, lower standard of care like gross negligence, and willful and wanton standard for emergency care); Dill v. Fowler, 255 S.W.3d 681, 683 (Tex.App.-Eastland 2008, no pet.) (statute imposes lower standard of care when physician provides emergency care in certain settings) Baylor Medical Center has not cited any cas…
discussed Cited "see, e.g." Commission for Lawyer Discipline v. Omar Weaver Rosales, 201701087, 201700840, 201700279, 201700153, 201607308, 201607292, 201701948, 201702052
Tex. App. · 2019 · signal: see also · confidence low
See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) (noting that “preponderance-of-the-evidence standard . . . is a fact-finder’s determination that the plaintiff’s version of the events is more likely than not true”); see also Murff v. Pass, 249 S.W.3d 407 , 411 n.1 (Tex. 2008) (noting that standard requires “the greater weight of the credible evidence”). 18 dismissal of the Commission’s professional-misconduct claim against him, he must establish by a preponderance of the evidence that he did not violate the Texas Disciplinary Rules of Professional Misconduct.
discussed Cited "see, e.g." Damien Herrera and Blaine Castle v. Judy Stahl and Sue Hensley (2×)
Tex. App. · 2014 · signal: see also · confidence low
App. 2006); see also Murff v. Pass, 249 S.W.3d 407 , 409 n.1 (Tex. 2008) (per curiam); R&R Contractors v. Torres, 88 S.W.3d 685 , 695 n.12 (Tex. App.—Corpus Christi 2002, no pet.); The Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App.—Dallas 1992, no writ).
discussed Cited "see, e.g." Druery v. State
Tex. Crim. App. · 2013 · signal: see also · confidence low
See Rickets v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006) (defining preponderance of the evidence as the greater weight of credible evidence that would create a reasonable belief in the truth of the claim); see also Murff v. Pass, 249 S.W.3d 407 , 409 & n. 1 (Tex.2008).
discussed Cited "see, e.g." Druery, Marcus
Tex. Crim. App. · 2013 · signal: see also · confidence low
App. 2006) (defining preponderance of the evidence as the greater weight of credible evidence that would create a reasonable belief in the truth of the claim); see also Murff v. Pass, 249 S.W.3d 407 , 409 & n.1 (Tex. 2008).
cited Cited "see, e.g." in the Interest of J.J.R., a Child
Tex. App. · 2012 · signal: see also · confidence low
See Derzapf, 219 S.W.3d at 333 ; see also Murff, 249 S.W.3d at 409 n.1.
Retrieving the full opinion text from the archive…
W. Gene MURFF, M.D. and Murff-Wang-Moore Associates, P.A., Petitioners,
v.
Wanda Kaye PASS, as Next Friend of Leslie LeAnn Pass, a Minor, Respondent
07-0294.
Texas Supreme Court.
Mar 28, 2008.
249 S.W.3d 407
2008 Tex. LEXIS 234
2008 WL 820577
Terri S. Harris, James B. Ewbank II, Tamra J. Wilkinson English, Patricia Sue Allen, Ewbanks & Byrom, P.C., Austin, TX, for Petitioners., Timothy R. Cappolino, Richard Dodd, Craig Wilse Brown, Cappolino Dodd & Krebs, Cameron, TX, Susan Eisner Hiatt, Law Office of Susan E. Hiatt, Alexandria, VA, Richard N. Countiss, Countiss Law Firm, Houston, TX, for Respondent.
Per Curiam.
Cited by 38 opinions  |  Published
[*409] PER CURIAM.

A venireperson who demonstrates “a general inability to follow the court’s instructions regarding the law” is disqualified from serving on a jury. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex.2006); see Tex.R. Civ. P. 226a. In this health care liability case, following a confusing line of questioning about the burden of proof, a venireperson stated that he would hold the plaintiff to a clear and convincing standard of proof. [1] Additional venirepersons raised their hands indicating that they agreed. Believing that the panel members were confused, and after informing the venire of the proper standard, the trial court refused to disqualify these veni-repersons. A divided court of appeals held that the venirepersons were disqualified as a matter of law, and reversed and remanded the case for a new trial. 2007 WL 613843, at *4. We hold that the trial court did not abuse its discretion in refusing to disqualify the challenged jurors, reverse the court of appeals’ judgment, and render judgment in the respondent’s favor in accordance with the jury’s verdict.

Wanda Pass, as next friend of her minor daughter LeAnn, filed a health care liability claim against Dr. W. Gene Murff and his professional association, Murff-Wang-Moore Associates, P.A. Pass alleged that Murff failed to act in accordance with the requisite standard of care during the labor and delivery of her daughter and that LeAnn suffered extensive and permanent physical and mental disabilities as a result. During the voir dire examination at trial, Pass’s counsel questioned the venire about the proper standard of proof, attempting to define and compare the terms “preponderance of the evidence,” “clear and convincing evidence,” and “beyond a reasonable doubt.” Pass’s counsel described “the preponderance of the evidence” as “the greater weight and degree of credible testimony,” after which the following exchange with venireperson 5, Mr. Ruth, occurred:

Counsel: Okay. Does anyone here disagree with Mr. McBrine about that? That they do not believe that that would be a more likely than not vote if she said I believe it more likely than not, but I have some doubts. Anyone have a problem with that? Very good. Yes, sir, Mr. Ruth?
Ruth: Is the question more likely than not the preponderance of the evidence? Because if it is, then I disagree.
Counsel: I’m sorry. The preponderance of the evidence is what would be [the] greater weight and degree of credible testimony. Mr. Ruth, do you see a big difference in more likely than not and greater weight?
Ruth: Yes.
Counsel: Okay. Could you please tell me what that difference is in your opinion?
Ruth: The greater the weight, I would expect it to be clear and convincing.
Counsel: Clear and convincing, okay.
Ruth: I have doubts then.
Counsel: Well, you would hold me to clear and convincing?
Ruth: Yes.
Counsel: Okay. And I appreciate that because, you know, a lot of people— okay.
(Clarification by reporter.)
Counsel: The Court Reporter would like you to repeat that, sir.
[*410] Ruth: I just said that for me the clear and convincing would be that closer to the greater weight measure that he mentioned before.
Counsel: Okay. And the question then was whether or not you would hold me to a clear and convincing degree in this case?
Ruth: Yes, I would.
Counsel: Okay. And who agrees with Mr. Ruth about that?

Counsel then listed the venirepersons who responded affirmatively, including venire-persons 10, 29, and 31. Shortly thereafter, another panel member had the following exchange with Pass’s counsel:

Cantu: Now, in preponderance of the evidence, are you saying that clear and convincing is an option, or is more likely than not a preponderance of the evidence?
Counsel: Okay. It means the greater weight and degree of credible testimony. The greater weight, okay?
Cantu: But what is considered the greater weight than that? Does it have to be clear and convincing or does it have to be more likely than not?
Counsel: Well, I guess that’s up to the juror to decide because when the Judge gives the instructions—

At this point in the questioning Murffs counsel objected, and the trial court agreed that the jury was becoming confused. The trial court clarified that the standard of proof in this case was preponderance of the evidence, and that the jury charge would contain appropriate instructions related to the standard of proof and its definition.

Following the objection by Murffs counsel, Pass’s counsel continued to attempt to explain the differences between the various standards of proof, as did the defense attorneys. Comments made by several of the panel members indicated that they continued to be confused. One of the defense attorneys asked the panel whether they would apply a standard of proof other than the one outlined by the judge in the jury charge. None answered affirmatively-

Pass made timely and proper objections to venirepersons 5 (Ruth), 10, 29, and 31, arguing that they should be disqualified for cause. The trial court overruled all of Pass’s challenges. Pass used peremptory challenges to eliminate venirepersons 5, 29, and 31, and venireperson 10 served on the jury. After a two-week trial, the jury found in Murffs favor and the trial court entered a take-nothing judgment. Pass appealed, contending the challenged veni-repersons should have been disqualified for their endorsement of an improper standard of proof. [2] The court of appeals reversed, holding that venirepersons 5, 10, 29 and 31 [3] should have been disqualified because their responses demonstrated prejudice and an “inability , to follow the court’s instructions regarding the law.”[*411] 2007 WL 613848, at *1 (citing Hyundai, 189 S.W.3d at 751). We disagree.

A person is disqualified from serving on a jury if the person has a bias or prejudice in favor of or against a party or claim, or if the person is unable or unwilling to follow the trial court’s instructions. See Tex. Gov’t Code § 62.105(4); Tex.R. Civ. P. 226a; Hyundai 189 S.W.3d at 751. Such bias, prejudice, or inability to follow the court’s instructions may not be discernible from a single statement or response to a general question. As we have previously observed, “[statements of partiality may be the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely ‘loose words spoken in warm debate,’ ” and do not necessarily establish disqualification. Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 92 (Tex.2005) (quoting Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963)). When a venireperson expresses bias or confusion, the trial court has the discretion to stop the line of questioning to clarify that person’s response. See Hyundai 189 S.W.3d at 755. Because trial judges are present in the courtroom and are in the best position to evaluate the sincerity and attitude of individual panel members, they are given wide latitude in both conducting voir dire proceedings, see id. at 753, and in determining whether a panel member is impermissibly partial, see Cortez, 159 S.W.3d at 93. Thus, we must consider the entire examination in reviewing whether a trial court abused its discretion in deciding that a juror was or was not disqualified. See id.

Here, although Ruth stated that he would hold Pass to a clear and convincing standard of proof, it is apparent Ruth was confused as to the definition of “preponderance of the evidence,” as were many of the other panel members. This confusion is not only demonstrated by the venireper-sons’ statements but was also noted by the trial judge who witnessed the exchange. Stating “the jury sounds like they’re getting confused,” the trial judge stopped the line of questioning and clarified the applicable standard of proof. Nothing in the examination indicates that Ruth harbored bias or prejudice in favor of or against a party or claim, or that he would be unable or unwilling to follow the court’s instructions once the definitions were properly stated. In response to a general question, Ruth even indicated his agreement that he would follow the instructions given by the trial court.

Ruth’s responses exhibit the type of “confusion, misunderstanding, [and] ignorance of the law” we discussed in Cortez. Id. at 92. There, we emphasized that the trial judge was in the best position to determine whether the allegedly impartial statement was the result of bias or merely of confusion. Id. at 92-93. In this case, the trial judge observed the exchange and considered it confusing, a characterization the record supports.

Citing Cortez, Pass contends rehabilitation is necessary once a member of the venire makes a statement indicating an inability to follow the court’s instructions and argues that Ruth was disqualified because he was never rehabilitated. However, in Cortez we did not require rehabilitation in order to prevent disqualification; rather, we held that rehabilitation is permissible to clarify whether a venireper-son’s response results from confusion or misunderstanding, and that the extent and use of rehabilitation is within the trial court’s discretion. Id. at 92. Here, the trial court was satisfied that Ruth was sufficiently impartial without having to conduct additional individual questioning, and review of the entire examination fails to indicate that the trial court’s assessment constituted an abuse of discretion.

[*412] The court of appeals also concluded that venirepersons 10, 29, and 31 were disqualified based on their affirmation of Ruth’s statement regarding the standard of proof. See 2007 WL 613843. However, as the trial court did not abuse its discretion in refusing to disqualify Ruth, it cannot have abused its discretion in refusing to disqualify venirepersons 10, 29, and 31, who merely agreed with Ruth’s statement in response to general questioning.

[[Image here]]

We reverse the court of appeals’ judgment and render judgment in favor of Murff.

1

. The proper standard of proof in this case is a preponderance of the evidence, Tex. Civ. Prac. & Rem.Code § 74.153, meaning "the greater weight of the credible evidence,” State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

2

. Pass also contended another group of veni-repersons should have been disqualified for endorsing a misstatement of proximate cause. The court of appeals held that the misstatement was not disqualifying. 2007 WL 613843, at *2. Pass does not raise the proximate-cause disqualification issue here as an alternative ground to affirm the court of appeals’ judgment; therefore we do not consider the issue. See Tex.R.App. P. 53.3(c)(2).

3

. The court of appeals included venireperson 6 in the group that should have been disqualified for agreeing with Ruth’s characterization of “the greater weight" as “clear and convincing evidence.” 2007 WL 613843, at *2. However, the record unequivocally indicates that venireperson 6 was not among those who affirmatively responded and neither party argues otherwise.