dissenting.
The majority holds that when two defendants are jointly tried for capital murder and each receive less than 15 peremptory challenges although by virtue of the ■express provisions of Article.35.15(a), V.A. C.C.P., and one defendant is later granted a motion for severance in mid-trial, the other defendant is entitled, at his or her option, to a motion for mistrial based on the fact that such defendant did not receive 15 peremptory challenges during the jury voir dire examination. This is new and dangerous law which gives the remaining defendant control over bringing the whole proceedings to a grinding halt at his whim and pleasure. The rule would apply only where there were two defendants not where there are three or four defendants and only one defendant is severed from the case in mid-trial and two or more defendants remain on trial. And there is no reason why the rule adopted today would not apply in non-capital felony and misdemean- or cases where only two are being jointly tried. See Article 35.15(b) and (c), V.A.C. C.P.
The rule espoused by the majority allows the courts of this state to be manipulated by the parties as was the trial judge in this cause. The majority is saying that the proper number of peremptory challenges is not always determined at the time of voir dire examination but can be redetermined upon the joint trial of two defendants if one is severed out of the case doing the trial on the merits and the remaining defendant makes a mistrial motion based on the number of peremptory challenges allowed, if that number was less than authorized by statute if the remaining defendant had been tried alone.
The majority takes the phrase “tried together” used in Article 35.15, supra, as well as its predecessors, relating to the number of peremptory challenges allowed and reads it to mean that where two defendants are jointly tried the trial must be completed as to both or otherwise the applicable number of peremptory challenges changes long after the jury has been empaneled and sworn and the trial commenced. That is not the law, has never been the law and should not be the law. Common sense dictates otherwise.
The appellant (Laura Anderson Goode) and her mother, Rowena Anderson, were separately indicted for the capital murder of appellant Goode’s husband. So were her brother, Johnny Anderson, and Delvin Johnson. Subsequently the appellant and her mother, Rowena, were jointly indicted for the offense. See Article 36.09, V.A.C. C.P.
On May 24, 1982, the court conducted a hearing on appellant’s first pretrial motion for severance and denied the same with full explanation of its reasons for doing so. The matter of peremptory challenges was not a part of the motion to sever. On June 25, 1982, the court conducted a hearing on appellant’s second or amended pretrial motion for severance. Here the only significant additional claim was a “De Luna” claim based on De Luna v. United States, 308 F.2d 140 (5th Cir.1962), which recog*462nizes the right of jointly tried defendants in certain circumstances to comment on the failure of a codefendant in the joint trial to testify. This motion was likewise overruled. On July 30, 1982, after the jury had been selected and before the testimony commenced a third hearing on severance was conducted after attorneys for the code-fendant, Rowena Anderson, filed an affidavit against appellant, her daughter, complaining that agents of the daughter had “violated our attorney/client privilege hearing by taping our client in an interview.” An extensive hearing was conducted. It appears that Barbara Cleveland, investigator for appellant’s attorneys, had gone to the jail and taped an interview with Rowena Anderson, an interview supposedly very damaging to Rowena, and favorable to appellant. The tape was given not only to appellant’s attorneys but a copy was given to Rowena’s attorneys in October or November 1981.1 Supposedly Cleveland did not have authority from appellant’s attorneys to undertake such action, and apparently acted without the consent or knowledge of Rowena’s attorneys. At one point Tom Mulvaney, one of Rowena’s attorneys, told Cleveland not to have any contact with his client, and this may have been before the recording. Mulvaney admitted that he knew that from time to time Cleveland took care of Rowena’s laundry, helped her with lipstick, her hairdo and clothes before court appearances, etc., and may have done this and visited the jail after the taping. Cleveland was a most evasive witness, pretending at one point to have no recollection of any tape or recording.
At one point the court stated:
“We’re in this mess — or I’m in this mess because of an investigator hired by Mr. Smith and Mr. Bradford who violated her obligation to them and also violated the rights of Rowena Anderson. She has now received information and now she’s paddling out of both sides of the boat ... we spent four weeks of jury selection and several thousand dollars of taxpayers’ money to get to this point. I would say I am very frustrated, very, very frustrated to have to face this issue....”
The State pointed out that it had not heard the tape, that counsel had insisted that Rowena Anderson would not testify, thus the tape could not be used to impeach her, and that there was no showing at the time that the contents of the tape would ever be used. The State urged the court not to grant severance.
The court then instructed counsel not to use any evidence obtained by Cleveland or any evidence derived therefrom until they had approached the bench during trial and indicated that the use of such evidence had been necessary, and that a decision on its use would be made then.
On August 2, 1982, after the State’s second witness had been passed and cross-examined by Rowena’s attorneys, and his cross-examination by appellant’s counsel commenced, there was a bench conference at which time the appellant’s counsel indicated he was about to use the tape in question or evidence derived therefrom. The tape or parts of it was played in the court’s chambers.
The record then reflects:
“THE COURT: May I first ask does Mrs. Anderson make a motion for mistrial and to sever?
“MR. MULVANEY: Yes, Your Honor.
“THE COURT: Does Mrs. Goode (appellant) make a motion for a mistrial and a severance?
“MR. BRADFORD (appellant’s counsel): Yes, Your Honor.”
The court, with the consent of the parties, then privately conferred separately with each set of lawyers to determine if the contents of the tape recording was going to be serious enough to grant a severance.
After these consultations2 the court stated that it appeared the defenses were now mutually exclusive primarily due to the action of the appellant’s investigator, and that a motion for severance and mistrial *463would be granted to one of the defendants. He asked for suggestions as to which party it should be. The State responded that if forced to choose, it would prefer to proceed with the trial of the appellant rather than her mother. The court then asked appellant’s counsel to “State any objection to your remaining in the case.” Appellant’s counsel emphasized the defendants “had been in antagonistic positions from the beginning ... and ... this ... evidence [from the tape] simply demonstrates and amplifies our antagonistic position ... We’ve had to go through the entire jury selection that way. It has all resulted in problems with jury selection. We have received less peremptory strikes ... we are in an antagonistic position ... and [appellant] has been suffering as a result of being in this position in jury selection ... we would be prejudiced by continuing ... We, again, would prefer not to go forward at this time and we would request that we be severed out.”
Attorneys for Rowena, the codefendant, took “no position.” The court granted Rowena’s motion for mistrial and severance and denied the motion for mistrial for the appellant.
On appeal the appellant in point (nee ground) of error four contended that the “trial court abused its discretion and erred in denying appellant’s motion for mistrial when the defendants were severed.” The argument advanced was that the court abused its discretion in granting severance to Rowena, and not granting appellant a mistrial which would have required a new jury; that she had to “resume” with the same jury Rowena had in part selected, and that her peremptory challenges had been limited (Article 35.15, Y.A.C.C.P.) when she should have had 15 such challenges. Appellant asserted a violation of her rights to an impartial jury under the Sixth Amendment, United States Constitution, and Article I, § 15, Texas Constitution, the Fourteenth Amendment due process clause and 15 peremptory challenges under Article 35.-15, supra.
It is observed that at no time when the severance was granted did appellant make any motion for a mistrial based on the number of peremptory challenges earlier allowed under Article 35.15, supra. All the motions for severance previously filed and urged had not been urged on that basis. It is true that when asked to state any objection to appellant remaining in the case appellant’s counsel, inter alia, did complain about the jury selection process; but this complaint was not based on the authorities urged by appellant nor was the trial court asked to rule upon the same. Nothing was preserved for review.
In his fifth point of error on appeal appellant complained that the “trial court erred in failing to grant appellant’s motions for severance prior to completion of jury selection.”
The Beaumont Court of Appeals considered appellant’s fourth and fifth points of error together, Goode v. State [Tex.App. —Beaumont No. 09-33-059 CR — Feb. 21, 1985) (unpublished) (Slip Op. 12-15). The court concluded: “After a careful review of these several hearings for a severance, and especially in view of the investigative action of Cleveland, an agent of Laura, we find no merit and overrule appellant’s fourth and fifth grounds of error.” The Court of Appeals did not mention or discuss the jury selection question or the number of peremptory challenges at all.
Despite the foregoing the appellant in his petition for discretionary review urged in ground of review number “HI” that the “DECISION OF THE COURT OF APPEALS INVOLVES AN IMPORTANT QUESTION OF STATE LAW WHICH HAS NOT BEEN SETTLED BY THE COURT OF CRIMINAL APPEALS CONCERNING THE RIGHT OF A DEFENDANT IN A CAPITAL MURDER CASE TO THE SELECTION OF A NEW AND IMPARTIAL JURY, ONCE A CO-DEFENDANT IS SEVERED DURING JURY SELECTION, AND THE RIGHT OF SAID DEFENDANT TO HER FIFTEEN PEREMPTORY CHALLENGES.”
Despite the fact the severance did not occur during the jury selection, and the fact that the Court of Appeals did not pass on the contention advanced, this Court *464granted, inter alia, ground of review number “III.” Now the majority, among whom are those judges who believe that this Court cannot review any contention not first passed upon by the Court of Appeals, has seized upon this cause as a vehicle to lay down a new and unsound proposition of law not supported by the facts or the law.
If this is a sign of things to come, I dissent to this action of the majority with all the concern for the future I can muster.
DAVIS and McCORMICK, JJ., join this opinion.. The attorneys for Rowena did not learn of the tape for the first time after jury selection as the majority opinion indicates.
. These consultations are not in the record nor is the content of the tape recording.