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Click here for the full text of this decision FACTS:During voir dire, a venireperson stated that “what I have found in 25 to 30 years of this work is that usually when a child says something has been done like this, usually the majority of cases I’ve worked with, it’s the truth.” The appellant was convicted of aggravated sexual assault and sentenced to 75 years’ imprisonment and a $5,000 fine. The court of appeals reversed, holding, “An instruction to disregard could not have cured the prejudice resulting from: (1) the impact of the venirewoman’s improper opinion statement, combined with the emphasis given to it by the trial court’s double-repetition of the statement; and (2) the fact that the prejudicial opinion addressed precisely the crucial issue of the child complainant’s credibility in an essentially two-witness case.” HOLDING:Reversed and remanded. When a party’s first action is to move for mistrial, as this appellant’s was, 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. Limited as this scope of appellate review may be, such an appellate review is available to such a party. The court recognizes the potential for abuse of a rule allowing a motion for mistrial without a preceding objection or request for instruction to disregard. If a party delays motion for mistrial, and by failing to object allows for the introduction of further objectionable testimony or comments and greater accumulation of harm, the party could no more rely on the untimely motion for mistrial than on an untimely objection. This appellant’s motion for mistrial was not so delayed. In this case, the appellant moved for mistrial once it became apparent that the judge was beginning to focus her questions on the venireperson’s comments regarding her 25 to 30 years of experience and the truthfulness of children. The appellant complained, among other things, about the comments made during the portion of voir dire that is presented above. Specifically, the appellant argued that the trial court erred in denying his motion for mistrial because the venireperson’s statements were prejudicial and were repeated and emphasized by the trial court in the presence of the jury panel. The court of appeals agreed: Mistrial is the appropriate remedy when, as here, the objectionable events “are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.” Although appellant’s counsel did not pursue the familiar procedure of objection and request for an instruction to disregard before moving for a mistrial, his action forced the trial court to choose between letting the remark stand and declaring a mistrial; moreover, appellant’s motion for mistrial preserved error. The quoted colloquy constituted a record that fully demonstrated harm. An instruction to disregard could not have cured the prejudice resulting from: 1. the impact of the venireperson’s improper opinion statement, combined with the emphasis given to it by the trial court’s double-repetition of the statement; and 2. the fact that the prejudicial opinion addressed precisely the crucial issue of the child complainant’s credibility in an essentially two-witness case. The court of appeals was correct to hold that the appellant preserved error for appeal, the court determines. The court finds that an instruction to disregard the venireperson’s comments would have cured any resulting harm, the trial court did not err in denying the appellant’s motion for mistrial. The appellant chose not to object to the comment or to request an instruction. Instead, he chose to preserve error by immediately moving for a mistrial to which he was not entitled, foreclosing the opportunity to cure any prejudice that may have contributed to his conviction. The court of appeals did not err in holding that, despite his failure to object and to request an instruction to disregard before moving for a mistrial, the appellant preserved error for appeal. However, the court was incorrect in its conclusion that an instruction to disregard would not have cured the prejudice caused by the prospective juror’s opinion statements and that, therefore, the trial court erred in denying the appellant’s motion for mistrial. OPINION:Paul Womack, J., delivered the opinion of the court, in which Keller, P.J., and Keasler, Hervey, Holcomb and Cochran, JJ., joined. Meyers, J., filed a dissenting opinion, in which Price and Johnson, JJ., joined. Johnson, J., filed a dissenting opinion, in which Meyers and Price, JJ., joined. DISSENT:Lawrence E. Meyers, J. “I agree with the majority that the Court of Appeals was correct in determining that appellant’s point of error was preserved for appeal. I disagree that the harm could have been cured by an instruction to disregard and feel that the Court of Appeals correctly determined that the jury was tainted by the exchange between the judge and venireperson Valdez. The majority says that the appellant procedurally defaulted his remedy for failure to ask the judge for an instruction to disregard the conversation that she had with the venireperson. I respectfully disagree and dissent to this conclusion . . . “ DISSENT:Cheryl A. Johnson, J. “I would find that her [the venireperson's] remarks poisoned the panel and were harmful and that the harm was exacerbated by the continued exchange between the trial court and Ms. Valdez [the venireperson] after appellant’s counsel moved for mistrial. Because of that continued exchange after the request for mistrial, I would find that the harm could not be cured by an instruction to disregard.”

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