dissenting.
Appellants’ argument, and the majority’s decision, rest on only two facts: (1) at the time of trial the district clerk of Frio County was pregnant and living with the corporate representative of one of the litigants; and (2) prior to jury selection certain personnel in the district clerk’s office excused prospective jurors, accepted exemptions, and failed to file and preserve the jury list, all in violation of the civil statutes. See, e.g., Tex.Gov’t Code Ann. 51.303 (Vernon 1988). From these facts the majority infers that “the actions taken may have been intended to, and did, prejudice the rights of the appellants.” This inference is unwarranted. Indeed, after thoroughly reviewing the record and the applicable law, I find nothing to suggest that appellants preserved error, demonstrated harm, or have shown a systematic exclusion of any particular group of jurors. Furthermore, I fear that the majority, in allowing a post-verdict objection and challenge to the jury selection process, is setting a dangerous precedent. For these reasons, I dissent.
The Texas Rules of Civil Procedure provide for only two objections to the makeup of the jury. First, a parly may challenge the array. Tex.R.Civ.P. 221. Generally, this objection alleges a defect in the juror selection and summons procedure or a violation of the jury-wheel statute. See Tex.Gov’t.Code Ann. §§ 62.001-021 (West 1988 & Supp.1995). If the movant is successful, the entire array is dismissed and a new array is summoned. Tex.R.Civ.P. 222. The challenge must be presented in a written motion supported by affidavit to the particular judge in charge of the local jury system. Tex.R.Civ.P. 221; State ex rel. Hightower v. Smith, 671 S.W.2d 32, 36 (Tex.1984); Martinez v. City of Austin, 852 S.W.2d 71, 73 (Tex.App.—Austin 1993, writ denied); Texas Employers’ Ins. Ass’n v. Burge, 610 S.W.2d 524, 525 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.). See also Tex.Gov’t.Code Ann. §§ 62.001-.021 (West 1988 & Supp.1995). Here no written motion was filed; no affidavits submitted; and no objection was made to the judge in charge of the local jury system.
Second, a party may demand a “shuffle” of the panel. Tex.R.Civ.P. 223. The result is that the panel is randomly rearranged with the possibility that potential jurors at the end of the list may move up and be more likely to serve on the jury. Martinez, 852 S.W.2d at 73. This demand must be made before voir dire and is limited to one shuffle in a case. Tex.R.Civ.P. 223. Here no shuffle was requested.
It is undisputed there were no such objections to the jury selection process in this *284case. It is too late to complain of the jury panel or errors in the selection of the jury when the complaint, as in this case, is made only after the verdict. See Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex.Civ.App.—Tyler 1981, writ ref'd n.r.e.); Sendejar v. Alice Physicians & Surgeons Hosp., Inc., 555 S.W.2d 879, 886 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.); Berner v. Southwestern Public Service Co., 517 S.W.2d 924, 925 (Tex.Civ.App.—Amarillo 1974, writ ref'd n.r.e.). See also McDonald Texas Civil PRACTICE § 21.43 (1992) (“It is the general rule that when a party or his or her attorney learns before verdict of an impropriety in the course of the trial, he or she must promptly complain or the matter will be waived.”). This rule applies not only when the party is aware of the irregularity but also when he or she might have discovered it by inquiry. Berner, 517 S.W.2d at 925. “This rule is, of course, designed to prevent a party from taking his chance on a favorable verdict and then obtaining a second trial by reason of the irregularity....” King v. Moberley, 301 S.W.2d 202, 205 (Tex.Civ.App.—Eastland 1957, no writ).
The majority, however, relies largely on Mendoza v. Ranger Ins. Co., 753 S.W.2d 779 (Tex.App.—Fort Worth 1988, writ denied). In Mendoza, a large number of jurors had been excused from service. The array summoned for a jury trial during school vacation included an inordinate number of teachers. The local practice did not provide for juror information cards. Instead, some basic information was obtained by preliminary voir-dire. The lack of randomness on the panel was therefore not apparent until the time to challenge the array had passed. Appellants complained of a defect in the method used to select the array. The court of appeals held that, under these facts, a motion for mistrial made at the end of voir dire properly preserved error. The court found that the appellants were denied their right to a fair and impartial trial before an impartial jury, fairly representative of the community because “the jury was not a randomly selected cross section of the community.” Id. at 781.
In this case, appellants have made absolutely no showing that the actions of the district clerk resulted in any systematic exclusion of a particular group of jurors, nor have they made any showing that the district clerk’s actions resulted in any lack of randomness in the impaneling jury.
The relevant facts are again worth noting. This case was called for trial on July 12, 1993. During the hearing on the motion for mistrial, Brenda Fudge recalled that she had summoned 250 potential jurors. Usually only 150 to 175 jurors would be summoned for a civil case. The reason for this larger number was, according to Fudge, the nature of the ease and the fact that all parties were well known in the community.
The selection and summoning of the 250-member panel was handled not by the district clerk’s office, but by the Tax Collector and the Sheriff of Frio County. On June 29, 1993, the Tax Collector, using his computer, generated a randomly selected list of 250 jurors. This list was received by the deputy district clerk, Dawn McCormick. The district clerk’s office then certified that the list had been drawn and delivered it to the sheriffs office. The sheriffs office had the responsibility for preparing, sending out and monitoring any returned summons to the persons on the jury list. The sheriffs office delivered any envelopes returned as undeliverable to the district clerk’s office. When the district clerk’s office received these envelopes, a notation of “No Service” was made on the jury list beside each prospective juror’s name whose summons had been returned.
Brenda Fudge was on sick leave from June 30,1993 through July 7,1993. Dawn McCormick was left in charge of handling juror excuses during Fudge’s absence. Fudge took no excuses while she was out on sick leave, and she testified that she was only available to take excuses on the Thursday and Friday before trial, and on the morning of the trial.
It is undisputed that potential jurors were excused by personnel in the Clerk’s office before voir dire, and that some of these excuses were not cleared by the presiding judge. The record suggests this was a custom to which the local district judge acquiesced. In any event, the majority cor-*285reetly notes that most of the excuses were given for statutory exemptions, e.g., “kids” or “overage.” Eleven names bear notations of “No Service” on the Clerk’s working copy of the juror list. Fewer than twenty-five potential jurors were excused — without the approval of a district judge — for either no reason or a non-statutory excuse.1 Of these, fewer than five were handled by the district clerk. Most of the excuses, in fact, were handled by Fudge’s deputy, Dawn McCormick.
The majority, however, says it analyzes the record “through the unique prism of the relationships of the interested parties,” a euphemism for the admitted intimate relationship between Brenda Fudge and David Mas-sengale, the corporate representative of Texas Dyno Chem, Inc. Noting the admitted statutory violations of the jury selection process, the majority concludes there was a “materially unfair trial as a matter of law,” and (noting it would reach the same decision under a harmful error analysis) holds the trial court abused its discretion. The implicit assumption is that Fudge was somehow manipulating the jury panel for the apparent benefit of her paramour, and that McCormick was in league with her.2 Indeed, the majority concludes by observing that there is “a strong inference that the actions taken may have been intended to, and did, prejudice the rights of the appellants.” (Emphasis added).
This inference cannot sustain our holding. Reading the majority opinion, I am reminded of Justice Nathan Heeht’s observation that:
Several smoldering sticks, no one of them flaming, may together build a fire. But all the sticks there are, piled up without spark or heat, make neither smoke nor fire; they are nothing but a big pile of sticks, and one cannot infer from the pile that they must be afire.
Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 234-35 (Tex.1990) (Hecht, J., dissenting). Such is the case here, except that appellants offer us only a small pile of sticks. We should not supply by inference what they have failed to show us in the record.
Again, the issue is whether appellants knew or should have known there were irregularities in the jury selection. Only after suffering an adverse verdict did appellants complain of irregularities in jury selection. Prior to entry of judgment, appellants’ trial counsel filed a motion for mistrial. During the hearing on that motion Mr. Brock, appellant’s lead trial counsel, posed the following question to Dawn McCormick:
Ms. McCormick, do you recall during the voir dire process when we were at the bench and I raised the question about the number of jurors that showed up here and basically made an objection about that and that you responded that, yes, there had been excuses that had been granted but also talked about that people would go to Judge Strauss and seek those exemptions or Judge Saxon and would be granted exemptions? Do you recall that?
(Emphasis added). This is the moment, during voir dire, when counsel should have objected to the court (not the clerk), requested an inquiry, and if not satisfied with the result *286of that inquiry, presented his motion for mistrial. One cannot “basically” object.
Appellants’ counsel was provided the jury list prior to trial. This list showed 250 names. Fewer than 100 potential jurors were summoned. Counsel’s own question shows he asked the clerk about the number of prospective jurors that had been summoned. Yet, counsel apparently made no inquiry into the number of potential jurors who failed to appear for the panel. The record also shows counsel knew that some statutory exemptions had been granted. However, at no time did counsel attempt to check the method by which jurors were excused, such as asking for copies of the exemption certificates or asking the presiding judge about the excusing of jurors. It is this knowledge that makes the scenario more compelling than the facts of the Sendejar case, a precedent the majority disregards. See id. at 886.
As for Fudge’s relationship with Massen-gale, there is evidence suggesting that appellants’ trial counsel were aware of this relationship before the trial even started. During the hearing on the motion for mistrial, for example, Fudge testified:
Q Okay. Now, you’ve been the district clerk here in Frio County since 1989?
A Yes, ma’am.
Q Grady Roberts, one of the attorneys for plaintiff, and John Bull, one of the attorneys for plaintiff, you see them at least on a weekly basis, do you not?
A Yes, ma’am.
Q And for how many months or years before this trial have they been aware of your relationship with David Massengale of Texas Dyno Chem?
A Grady, I’m not real sure. I know that he knew it was going on at the time of the divorce. John, since he has been in Frio County.
Q So how long has John Bull been in Frio County?
A A few years. I don’t remember exactly how long he’s been here.
Q In essence though, let’s say, the entire year of 1993, your relationship with David Massengale could come as absolutely no surprise whatsoever to Grady Roberts or to John Bull, could it?
A No, ma’am.
Q And, in fact, since Burl Brock has been associated with this case have you also or are you also aware that he’s known of your relationship with David Massengale?
A If I’m not mistaken he has known.
More importantly, the majority gives scant regard to the work of the trial judge, who thoroughly inquired into appellants’ allegations both at the hearing on the motion for mistrial and at the hearing on the motion for new trial. Not only was he the judge of the witnesses’ credibility, but he witnessed much of the selection process. He had an opportunity to observe the litigants, the advocates, and the court personnel. Further, he thoroughly reviewed the events following the jury’s verdict. He concluded the relationship between Fudge and Massengale, and the admitted irregularities in jury selection, did not result in the selection of an unfair jury. He also recognized that in many small Texas counties without resident judges, selection irregularities were inevitable. Given the record in this case, I see no reason to second-guess his decision.
To presume from this record that there was an abuse of discretion ignores both the record and established caselaw. By sanctioning a post-verdict challenge to the jury selection process, the majority is setting a dangerous precedent. There was no suggestion during the trial, nor is there one now, of a pattern to exclude any classification of jurors, nor any allegation that this jury was not randomly selected.3 Essentially appellants complain that had they been able to select from more jurors, “there would have been at least forty-five more jurors in the room ...,” not that they identified any jurors that would otherwise have been stricken. By the major*287ity’s own reckoning, appellants must show the trial which resulted against them was “materially unfair.” They have not done so. To sustain their challenge now, given the record in this case, only encourages similar “discoveries” following adverse verdicts.
I believe the record in this case sufficiently indicates that appellants either knew or should have known there were irregularities in the jury selection process. Yet, they failed to raise any objection until after the verdict was returned. This, in my view, is a sufficient basis for concluding they waived any complaints regarding jury selection. I would therefore hold that appellants waived any right to complain of errors in the selection of the jury panel. I would override appellants’ first and second points of error, and address their remaining points on their merits. I dissent.
. Of the non-statutory excuses, there are several references to non-residence. Other notations include "out of state," "out of county,” "nursing home,” "doctor’s appointment,” "disabled,” and "hospital.”
. It is true that, as district clerk, Fudge was responsible for the people who worked in her office. Following the majority's reasoning, however, one would have to assume that Dawn McCormick was also part of this conspiracy. I find no support for such a contention in this record. The record shows that McCormick had a prior attorney-client relationship with Burl Brock, lead plaintiffs’ counsel. During the hearing on the motion for mistrial Fudge testified as follows:
Q Now, it’s my understanding that Dawn McCormick has an attorney-client with Mr. Burl Brock. Do you have knowledge of that?
A That's my understanding.
Q And that’s what she's indicated to you?
A Yes, ma'am.
Q He represents her in a lawsuit for the death of her son; is that correct?
A Yes, ma'am.
Q And that attorney-client relationship had existed well prior to the Mann-Ramirez case being called to trial; is that correct?
A Yes, ma’am.
Q And you understood that relationship existed well before this jury was summoned in this case and excuses being taken; is that correct?
A Yes, ma'am.
. There is a reference in appellants' reply brief to an alleged exclusion of the elderly from the jury panel. Such individuals, the argument goes, might have been more sympathetic to the plaintiff. There is, however, no support for this allegation in the record, nor was it brought to the attention of the trial court.