                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00370-CR

HARVEY LEELANE SEARCY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 39316CR


                          MEMORANDUM OPINION


      Harvey Leelane Searcy was convicted of assault on a public servant and sentenced

to 20 years in prison. See TEX. PENAL CODE ANN. § 22.01 (West 2011). Because the trial

court did not err in denying Searcy’s motion for mistrial, the trial court’s judgment is

affirmed.

      In one issue, Searcy contends the trial court should have granted Searcy’s motion

for mistrial. He complains that an “outburst” by a jury panel member tainted the panel

and a mistrial should have been granted. We disagree with Searcy.
        The traditional and preferred procedure for a party to voice its complaint

regarding the occurrence of a prejudicial event has been to, in sequence, (1) object when

it is possible, (2) request an instruction to disregard if the objectionable event has

occurred, and (3) move for a mistrial if a party thinks an instruction to disregard was not

sufficient to cure the prejudice of the event. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004).       In most instances, an objection will prevent a prejudicial event from

occurring, and the failure to make a timely, specific objection prevents appellate review.

See TEX. R. APP. P. 33.1; Id. at 70. If an objectionable event occurs before a party could

reasonably have foreseen it, the omission of objection will not prevent appellate review.

Id. Similarly, a request for an instruction that the jury disregard an objectionable event is

essential only when such an instruction could have had the desired effect, which is to

enable the continuation of the trial by an impartial jury. Id. But if an instruction could

not have had such an effect, the only suitable remedy is a mistrial, and a motion for a

mistrial is the only essential prerequisite to presenting the complaint on appeal. Id.

        Accordingly, when a party's first action is to move for mistrial, the scope of

appellate review is limited to the question whether the trial court erred in not taking the

most serious action of ending the trial; in other words, an event that could have been

prevented by timely objection or cured by instruction to the jury will not lead an appellate

court to reverse a judgment on an appeal by the party who did not request these lesser

remedies in the trial court. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). See


Searcy v. State                                                                        Page 2
also Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009). Limited as this scope of

appellate review may be, such an appellate review is available to such a party. Young,

137 S.W.3d at 70. That being said, a motion for mistrial still must be timely and is timely

only if it is made as soon as the grounds for it become apparent. Griggs v. State, 213 S.W.3d

923, 927 (Tex. Crim. App. 2007).

          Here, Searcy did not object or request an instruction to disregard when the alleged

objectionable statement was made.1 Rather, Searcy waited and requested a mistrial only

after voir dire had been completed and during the time when the trial court was asking

for challenges for cause. By that time, the parties had gone through three rows of panel

members to determine who would be challenged for cause. When the court asked for

challenges to anyone on the fourth row, Searcy stated:

          I'd just like to state for the record that I'd like to make a motion for a mistrial
          for the following good and sufficient reason, that is to say during the
          outburst in which the panel accused me of wasting their time, a panel
          member shouted "you're guilty" in direct violation of the presumption of
          innocence; and the entire panel heard it -- heard that outburst, thus,
          prejudicing the entire panel; and I now move for a mistrial on that ground.
          Thank you.

The “outburst” Searcy referred to was a statement by one of the panel members during

voir dire, and potentially at the beginning of Searcy’s voir dire, that Searcy was guilty




1   It is unclear when the statement was actually made.


Searcy v. State                                                                                 Page 3
because of the way he was acting in court.2 This was the first time anything was

mentioned about a possibly prejudicial statement by a panel member; and neither the

State, nor the trial court, nor the court reporter heard the alleged statement.

        As it was, after the motion for mistrial was urged, the trial court did everything it

could to cure any potential prejudice. The court painstakingly allowed the parties to

question each remaining panel member, approximately 18 of them, to determine if the

member heard the “outburst” and if so, could the member consider Searcy to be innocent

until proven guilty. Of the six panel members who actually heard the statement, five

could consider Searcy to be innocent until proven guilty; but only one stated he was

prejudiced, not by the statement made, but by the way Searcy was acting in court. The

person who actually made the statement admitted he was prejudiced against Searcy.

Further, all who stated they could not presume Searcy innocent until proven guilty, for

any reason, were struck for cause.

        Had Searcy timely objected when the statement was made and requested an

instruction to disregard, rather than waiting until voir dire was over, prejudice, if any,

resulting from the statement could have been cured. Without repeating the statement,

especially since the trial court did not hear it, the trial court could have reasserted the

presumption of innocence Searcy was afforded. But no objection was made and Searcy




2The record reflects that Searcy, who was representing himself, was disrespectful to the court and to the
United States flag during his voir dire.

Searcy v. State                                                                                   Page 4
did not assert the motion for mistrial when the statement occurred.                Under these

circumstances, Searcy’s motion for mistrial was untimely and failed to preserve his

complaint for appellate review. See Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App.

2007).

         Accordingly, because any potential prejudice could have been cured by a timely

objection and instruction to disregard, the trial court did not err in denying Searcy’s

motion for mistrial.3 Searcy’s sole issue is overruled, and we affirm the trial court’s

judgment.


                                             TOM GRAY
                                             Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2016
Do not publish
[CR25]




3Because we hold the complaint was waived, we do not reach the merits of the complaint or the harm
analysis.

Searcy v. State                                                                            Page 5
