Court of Appeals of Texas, Beaumont.

Mike MANDLBAUER, Appellant,

v.

The TEXAS WORKERS’ COMPENSATION INSURANCE FUND, Appellee.

No. 09-96-334-CV.

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Submitted May 18, 2001.

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Delivered May 31, 2001.

Before WALKER, C.J., BURGESS and GAULTNEY, JJ.

OPINION ON SECOND REMAND

PER CURIAM.

*1 Mike Mandlbauer appealed from an adverse jury verdict in his suit against the Texas Workers’ Compensation Insurance Fund (TWCIF) raising five points of error. We overruled Mandlbauer’s fifth point of error, but found his fourth point to have merit and reversed and remanded the cause for a new trial without considering the remaining points. Mandlbauer v. Texas Workers’ Compensation Ins. Fund, 990 S.W.2d 290 (Tex.App.-Beaumont 1998). TWCIF appealed the decision of this court and the Texas Supreme Court reversed our judgment and remanded for consideration of Mandlbauer’s remaining issues. Texas Workers’ Compensation Ins. Fund v. Mandlbauer, 988 S.W.2d 750 (Tex.1999).

On remand we considered Mandlbauer’s argument “that the trial court had refused his requested instructions defining ‘producing cause’ and clarifying that ‘[t]here can be more than one producing cause’ of symptoms and disability.” See Mandlbauer, 988 S.W.2d at 751. We agreed and held the trial court erred in failing to instruct the jury on producing cause. Mandlbauer v. Texas Workers’ Compensation Ins. Fund, 998 S.W.2d 939 (Tex.App.-Beaumont 1999). The Texas Supreme Court once again considered the case, reversed our judgment and remanded for consideration of Mandlbauer’s remaining issues. Texas Workers’ Compensation Ins. Fund v. Mandlbauer, 34 S.W.3d 909 (Tex.2000).

We now consider Mandlbauer’s issues one, two and three. Issue one alleges the trial court erred in failing to grant his motion for judgment as a matter of law in that the appeals panel incorrectly found that a subsequent injury was the sole producing cause of Mandlbauer’s disability. The appellate record does not contain any motion for judgment not withstanding the verdict filed by Mandlbauer. An appellant complaining of a trial court’s failure to grant some motion must produce a record that shows the motion was presented to the court and the court acted upon it. Tex.R.App.P. 33.1(a)¹ Nothing has been preserved for review. Consequently, this issue is overruled.

Issue two argues the trial court erred in failing to grant Mandlbauer’s motion for continuance and abused its discretion in failing to grant a new trial on the same issue. As to the motion for continuance, that motion was made orally thus it was not in compliance with Tex.R.Civ.P. 251. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). This portion of the issue is overruled.

Mandlbauer filed a motion for new trial with an affidavit alleging he was out of the country at the time of the trial and did not receive any notification of the trial setting prior to leaving. Mandlbauer similarly testified at the hearing on the motion for new trial. A party is not entitled to a continuance merely because he is unable to be present at trial. See Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex.App.-Dallas 1989, no writ). The absent party must show both that he had a reasonable excuse for not being present, and that he was prejudiced by his absence. See Richards v. Schion, 969 S.W.2d 131, 132 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

*2 Mandlbauer does not, either in his affidavit or his testimony, explain why his deposition testimony was inadequate, show what he would have testified to at trial had a continuance been granted or even dispute any of the facts testified about during the course of the trial; therefore, he has not demonstrated that he was prejudiced by his absence from the trial. See Brown v. Brown, 599 S.W.2d 135, 137 (Tex.Civ.App.-Corpus Christi 1980, no writ). Issue two is overruled.

The remaining issue alleges the trial court abused his discretion in failing to grant a mistrial when a juror disclosed that a witness had performed some carpentry work for the juror. The record reflects that when Sam Tanner was called as a witness, Juror Sawyer immediately asked to approach the bench and informed the court that Tanner had done carpentry work at Sawyer’s home. The record:

JUROR SAWYER: On this case it wouldn’t-wouldn’t have any bearing on my feelings one way or the other. I wanted the court to be aware that I do know Mr. Tanner personally.

THE COURT: Would you give more credence to his testimony than anyone else’s of a same or like nature?

JUROR SAWYER: I would take it in the same acceptance.

THE COURT: Would you automatically believe him in the face of someone else? If someone gave conflicting testimony to his, would you just automatically believe Mr. Tanner or would you lean?

JUROR SAWYER: No, sir. I’d weigh all the evidence.

THE COURT: Can you set aside all your personal feelings or otherwise or any past relationship that you have with Mr. Tanner and weigh his testimony and his credibility with the remainder of the testimony?

JUROR SAWYER: Yes, sir, I could.

THE COURT: Any questions?

[Plaintiff’s Counsel]: I don’t have any questions from this witness, except you do recall that we asked you if you knew him?

JUROR SAWYER: The name will not ring a bell. I never realized who he was until you called him in.

[Plaintiff’s Counsel]: How much work has he done for you in terms of money?

JUROR SAWYER: I don’t know. I’d say less than a thousand dollars.

[Plaintiff’s Counsel]: But on more than one occasion?

JUROR SAWYER: Yes, sir.

[Plaintiff’s Counsel]: When is the last time he went out there and worked for you?

JUROR SAWYER: Probably in May of last year.

[Plaintiff’s Counsel]: You’ve always been friendly with Mr. Tanner?

JUROR SAWYER: Yes, sir. Met him through an acquaintance that worked for me. Never had any problems with him.

[Plaintiff’s Counsel]: Did he ever have any employees working for him?

JUROR SAWYER: Yes, he did.

[Plaintiff’s Counsel]: Do you remember the names of those employees?

JUROR SAWYER: They were all working together. I’m not sure if these were actually employees. Carol Dryden and Tommy Dryden. They all worked together.

[Plaintiff’s Counsel]: Your Honor, I hesitate to do this; but given that my client is not here-and I believe Mr. Tanner’s testimony may be in direct contradiction to Mr. Mandlbauer’s testimony on the deposition. My client is not here to rebut that. That is a tremendous disadvantage, especially when one of the juror has some familiarity with the witness. I don’t fault Mr. Sawyer; but in all candor, had I known all that connection I would have exercised a pre-emptory strike. Now I’m forced in a position that I’ve got at least one juror who knows him. In my opinion he is-Mr. Tanner is a critical witness in this case. This, I think, is extremely prejudicial to the plaintiff. We would ask for mistrial.

*3 [Defense Counsel]: Your Honor, if I may respond. Mr. Tanner is going to testify the same way he did at the contested case hearing. The plaintiff had ample opportunity to respond to the contested case hearing. In fact, they have read his responses into the record today. This juror knows him. Obviously, doesn’t know him well enough to know him by name, only after he saw him. So, whatever contact it is, it is completely inconsequential; and I would oppose any type of mistrial at this time.

THE COURT: Just as an exercise, would you agree to a eleven-man jury?

[Plaintiff’s Counsel]: I cannot, your Honor.

THE COURT: We’ll overrule the motion for mistrial; and we’ll just caution you, Mr. Sawyer, that we are depending on your fairness and the fact that you can set aside any prior relationship, knowledge, or otherwise of Mr. Tanner. And we’d also caution you not to discuss your relationship with Mr. Tanner with the remainder of the jury during your deliberations. Nor should you even talk to the jury about what this particular hearing is about. Okay.

JUROR SAWYER: Yes, sir.

THE COURT: In other words, just keep everything quite about it and go on as if you never met Mr. Tanner.

JUROR SAWYER: Okay. Again, I apologize.

THE COURT: Those things happen. That’s not any big problem.

The trial court, in overruling the motion for mistrial based on this testimony, impliedly held Juror Sawyer was not biased or prejudiced.

The trial court had the opportunity of observing the juror as he testified and was in better position than an appellate court to evaluate the juror’s sincerity and his capacity for fairness and impartiality. If the juror was telling the truth no bias or prejudice is shown. The court’s finding that the juror was not biased or prejudiced should not be disturbed.

See Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963). The trial court did not err in overruling the motion for mistrial. This issue is overruled. The judgment is AFFIRMED.

	Footnotes
1		This was Tex.R.App.P. 52(a) at the time of trial.