Matter of Marriage of Knighton

COUNTISS, Justice,

concurring.

This Court is unanimous in its belief that legitimate religious practices of no harm to a child cannot be used to deprive a parent of that child. We differ, however, on the procedural viability of that issue in this appeal. Well into the trial, and after several unsuccessful objections and motions, Mrs. Knighton moved for, and was offered, a mistrial. She then withdrew her motion and declined the offer. The procedural question is whether an offer by the trial court to grant a mistrial erases trial errors that preceded the offer. Justice Boyd concludes that her decimation is unimportant, because she cannot waive the State’s interest in protecting its children. Chief Justice Reynolds concludes that her decimation es-tops her from complaining about trial court errors that preceded the proffered mistrial. Each cites authority that is applicable by analogy, but the precise question is not, in my view, settled in Texas.

As a policy matter, I would follow a middle ground. I do not think this is the kind of case where the State’s interest is so overriding that error cannot be waived nor do I believe the trial court is protected from all antecedent error when it offers a mistrial. I agree that, if the trial court offers a mistrial and the offer is declined, the parties should not thereafter be allowed to complain about the event that led to the offer. However, other errors on other events that preceded the offer should remain viable. See Eubanks v. Winn, 420 S.W.2d 698, 702 (Tex.1967). Otherwise, at the end of a hard and complex case, the trial court could cleanse itself and place counsel in an intolerable tactical position by offering a mistrial.

In this case, the mistrial was offered because Mr. Knighton’s counsel was testi*286fying instead of asking questions. However, the error we think reversible is the improper use of Mrs. Knighton’s religious beliefs. That error occurred well before the mistrial offer. Therefore, I would hold that Mrs. Knighton is not estopped to assert that error by declining a mistrial on other grounds, and, having reached that conclusion, I agree with Justice Boyd that the case must be reversed and remanded for a new trial free of religious harassment.