Matter of Marriage of Knighton

REYNOLDS, Chief Justice,

dissenting.

Although I agree that the trial court erred in admitting testimony of, and in permitting comment upon, Mrs. Knighton’s religious beliefs and practices which were neither illegal or immoral nor shown to affect the physical or mental well-being of the children, I conclude from this record that Mrs. Knighton waived the complaints now made on appeal and, by her acquiescence, is estopped to urge the errors asserted. Consequently, I respectfully dissent to the reversal and remand.

The first fourteen of Mrs. Knighton’s twenty-seven points of error are predicated upon the admission of evidence regarding her religious beliefs and practices. One does not read far in this record to reach the theme of the promotion of Mr. Knighton’s managing conservatorship of the children because of Mrs. Knighton’s religious beliefs and practices. Since an appeal to religious prejudice cannot be a factor in deciding the best interest of the children, Matter of Marriage of Knighton, 685 S.W.2d 719, 722 (Tex.App.—Amarillo 1984, no writ), the trial court erred in overruling Mrs. Knigh-ton’s first two motions for mistrial voiced on that ground. However, later in the trial, when Mr. Knighton’s counsel, Mr. Hamilton, responded to a witness’ answer by saying, in effect, it was in writing that Mrs. Knighton says education is very harmful, there was then recorded the following:

MR. HALE [Mrs. Knighton's trial counsel]: Your Honor, I’m going to object. He’s — once more, he’s testifying about what he has in writing. It’s evidence outside the jury, and I object.
THE COURT: Sustain the objection. The jury will disregard any comments that Mr. Hamilton—
MR. HALE: I move for a mistrial, Your Honor, because of the prejudicial— the cumulative prejudicial effect of Counsel’s behavior cannot be overcome by the Court’s instructions.
THE COURT: Why don’t the jury step outside for a moment, please. Why don’t you step down for a minute, Mr. Ham-brick, I have got something—
(Thereupon, the jury left the courtroom, and the following was had).
THE COURT: Mr. Hamilton, if, in fact, there does not come into the record what you have just alleged to, I will grant the mistrial, and if you don’t have it, I would just as soon do it now than wait until it happens.
MR. HAMILTON: It may not be in writing, but it’s in her prior testimony where she said it’s harmful.
THE COURT: Well, then, are you going to apologize to the jury and tell them that you said something that’s not true, or am I going to — and I’ll give you about five minutes to think about that. If y’all will excuse me, I’m—
MR. HAMILTON: No, no, no. I don’t need but 30 seconds, Your Honor.
THE COURT: I’m going to give you five minutes.
(Thereupon a recess was had, after which fhe following proceedings were had).
MR. HAMILTON: The reference that I was making appears on Page 69 in the Statement of Facts where the Respondent testified, on Line 10. “ANSWER: There is harm in education, but it is necessary; some education.”
Other than that, I have nothing in writing. That, of course, is the written State of Facts there, as she testified.
THE COURT: Go back and find that question, Paula. The testimony—
*287MR. HALE: Your Honor, to save the Court’s time, I want to withdraw my motion for a mistrial.
THE COURT: That’s your decision, because I’m about to grant it.
MR. HALE: I want to withdraw it, Your Honor.
THE COURT: You understand — let me go ahead and put that on the record, Mr. Hale, is that I — if I have remembered Mr. Hamilton’s question correctly, I do not think that can be cured, and I will grant your motion for mistrial, if you choose to make that motion.
MR. HALE: Your Honor, can I have two seconds?
THE COURT: Yes.
(Thereupon, a short break was had.
MR. HALE: Your Honor, we’re going to withdraw our motion.
THE COURT: All right. Do I understand, Mr. Hale, that you are declining the Court’s offer to grant a mistrial on this issue?
MR. HALE: Yes, sir, at this time we are, Your Honor.
THE COURT: Do you understand I will not grant one on this issue later?
MR. HALE: I understand that.
THE COURT: I’m not precluding you from raising the issue later if Mr. Hamilton persists in testifying.
MR. HALE: Your Honor, I’ve visited with my client and we think that the case is in such posture that we have decided to go on with it and pursue it.
THE COURT: That’s your decision. I certainly believe that Mr. Hamilton’s question was not a question, it was a bit of testimony and appeared not to be true.
MR. HALE: I would ask, Your Honor, that the Court instruct the jury to disregard his last statement. That’s the only cure request I have.
THE COURT: All right. That’s fine. (Thereupon, the jury was returned to the courtroom, and the following proceedings were had before the Court and jury).
THE COURT: Ladies and gentlemen, Mr. Hale’s objection to the last comment by Mr. Hamilton is going to be sustained. The record does not reflect and there is no evidence of any writings by — I’m sorry, I forgot everybody’s name — Mrs. Knighton, purported. You will therefore disregard this comment. Any further instructions, Mr. Hale?
MR. HALE: No, sir.

Thereafter, Mrs. Knighton did not object to the testimony adduced, to the jury argument made, or to the jury charge given.

It is elemental that the proffered mistrial would have afforded Mrs. Knighton the relief from the errors she asserts in her first fourteen points of error, and would have granted her all of the relief she now seeks on appeal. But Mrs. Knighton affirmatively declined a mistrial; instead, she specifically opted to pursue the case as it was postured with the instruction she requested and received. As a consequence, Mrs. Knighton is in no position to complain of the failure of the trial court to declare a mistrial before the court offered to do so, Keels v. First Nat. Bank of Groveton, 71 S.W.2d 372, 377 (Tex.Civ.App.—Galveston 1934, no writ); or to complain of the admission of evidence upon which the case was postured when she urged the court to continue the trial. Dickson v. J. Weingarten, Inc., 498 S.W.2d 388, 391 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). Orderly procedure does not permit a party to waive error and receive everything requested and then complain of the court doing precisely what it was requested to do. Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 785 (Tex.Comm’n App. 1928, holdings approved). In that situation, which is the situation here, the party is estopped to complain. Northeast Texas Motor Lines v. Hodges, 138 Tex. 380, 158 S.W.2d 487, 488 (1942).

The estoppel is not negated, in my view, by the majority’s theory that injection of religion into the cause was fundamental error that could not be waived by Mrs. Knighton because of the State’s interest in the welfare of children within its boundaries. The action was not one which transcended the rights of the parents to estab*288lish the State’s criteria for the best interest of the children; instead, it was a divorce action involving the rights of the parents to the managing conservatorship of the children. Thus, the admission of the religious evidence can hardly be classified as an error which directly and adversely affects the interest of the public generally. Moreover, to adopt the majority’s holding is to embrace its logical extension that in an appeal from a conservatorship determination, the aggrieved party is entitled to ignore all procedural requirements of the predicate for and the assignment of error, and have the best interest of a child reviewed as a matter of unassigned fundamental error founded on the State’s interest. That has not been, and should not now be, the law.

For the foregoing reasons, I would overrule the first fourteen points of error. For the same reasons, I would overrule Mrs. Knighton’s points of error twenty-two through twenty-seven by which she ascribes error to the admission of evidence concerning the prior trial and its results.

Points fifteen and sixteen are Mrs. Knighton’s contention that the court fundamentally erred in failing to instruct the jury that it could not consider religious beliefs or affiliations of either parent in determining the best interest of the children. The absence of the instruction does not come within the definition of fundamental error, and Mrs. Knighton waived any error in the omission by failing to request the submission of the instruction. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 538 n. 4 (Tex.1981). These points should be overruled.

Mrs. Knighton uses her points seventeen through twenty-one to complain that Mr. Knighton’s jury argument was erroneous in that it was inflammatory and prejudicial, contained misstatements of fact and law, and violated her constitutional right to freedom of religion. No objection was made to the argument. The perceived errors in the argument are not, in my opinion, so prejudicial or inflammatory as to be incurable by an instruction to disregard. Then, absent an objection, any error was waived. Otis Elevator Company v. Wood, 436 S.W.2d 324, 333 (Tex.1968). Therefore, these points of error should be overruled.

Under this analysis of the appeal, all of Mrs. Knighton’s points of error should be overruled, and the judgment of the trial court should be affirmed. It is in accordance therewith that I respectfully dissent to the reversal and remand.