Harvey Leelane Searcy v. State ( 2016 )

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.
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