COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————

No. 08-24-00392-CR

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Dunn Everett, Appellant v. The State of Texas, Appellee

On Appeal from the 229th District Court Duval County, Texas Trial Court No. 21-CRD-16 M E MO RA N D UM O PI NI O N 1 Appellant Dunn Everett was convicted of assault against a public servant and sentenced to four years’ incarceration. He appeals, alleging two errors during voir dire. Because Everett failed to preserve error, we affirm.

proof in the law and what each required, and the fact that an indictment is not evidence of guilt.

As Everett’s attorney was discussing a defendant’s right to remain silent, the trial court advised him that he had three minutes left. After a few remarks and questions about what types of evidence that the jury would find persuasive, the trial court stated that his time was up. ^[2] Defense counsel asked to approach and informed the trial court that he had not been advised of a time limit and that he wanted to make a record of the other questions that he intended to ask. The trial court stated that he could do so at a break.

The jury was then sent out of the courtroom so that the attorneys could exercise their strikes. During that time, Everett’s attorney complained that he was unable to further question a prospective juror who he believed had answered that he would hold it against Everett if he did not testify. The trial court allowed him to call that veniremember back into the courtroom to answer

that question. After the attorneys completed their strikes, the trial court announced the jurors and asked the attorneys if there were objections to the selected jurors, to which Everett’s attorney responded “no.”

B. Applicable law

“The constitutionally guaranteed right to counsel encompasses the right to question

prospective jurors in order to intelligently and effectually exercise peremptory challenges and challenges for cause during the jury selection process.” Ex parte McKay, 819 S.W.2d 478, 482

(Tex. Crim. App. 1990) (en banc). But voir dire does not continue until the attorney runs out of questions. Indeed, a “skilled lawyer can always find more questions that are proper to ask

prospective jurors.” Whitaker v. State, 653 S.W.2d 781, 782 (Tex. Crim. App. 1983) (en banc). The right to question a venire panel is balanced with the trial court’s right to control voir dire “in the interest of conducting an orderly and expeditious trial.” Ex parte McKay, 819 S.W.2d at 482.

“These two principles—the right of counsel to question veniremembers and the right of the trial court to control the voir dire and impose reasonable restrictions—coexist and must be harmonized.” Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985) (en banc).

We review time limitations of voir dire for an abuse of discretion. McCarter v. State, 837

S.W.2d 117, 119 (Tex. Crim. App. 1992) (en banc). We analyze three factors in determining whether the trial court abused its discretion: “(1) whether the defendant’s voir dire examination reveals an attempt to prolong the voir dire . . . [;] (2) whether the questions that the defendant was

not permitted to ask members of the venire were proper voir dire questions”; and (3) whether the defendant “was not permitted to examine jurors who served on the jury.” Ratliff, 690 S.W.2d at

599–600.

C. Application

The State argues that the trial court did not abuse its discretion because Everett unnecessarily prolonged voir dire—the first factor listed above—by “sharing stories about his legal experience and comparing the jury service to religion instead of immediately questioning jurors.”

We need not address this point, however, because we hold that Everett failed to preserve error.

For us to analyze whether the questions the defendant would have asked were proper—the second factor listed above—the defendant must have made a record of the specific questions he would have asked, if given additional time. Clemments v. State, 940 S.W.2d 207, 209 (Tex. App.—

San Antonio 1996, pet. ref'd) (“it is essential that the record reflect what questions the complaining party was prevented from asking”); Yanez v. Hernandez, 632 S.W.3d 64, 74 (Tex. App.—El Paso

2020, no pet.) (“Without knowing specifically what questions Appellant intended to ask the venire

members, we cannot adequately assess whether they would be relevant to determining the proclivities of potential jurors which could subject them from being stricken.”). Submitting the specific unasked questions is required to preserve a complaint for appeal. S.D.G. v. State, 936

S.W.2d 371, 380 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding that the appellant did not preserve error because “[r]ather than propound specific questions that he wished to ask, appellant merely identified general topics for potential questions”).

Everett’s attorney asked to make a record of the questions that he would ask the veniremembers if he was given more time. The trial court did not deny his request but only told

him to wait for a break. That opportunity came almost immediately when the trial court sent the panel out of the courtroom so that the attorneys could make their challenges and strikes. During

that time, Everett’s attorney made no attempt to put those questions on the record 3 and, before the unselected veniremembers were excused, stated that he had no objection to the jurors selected.

Everett failed to preserve his complaint that the trial court abused its discretion by not allowing him additional time to question prospective jurors. Issue one is overruled.

II. DENIAL OF MOTION FOR MISTRIAL

In his second issue, Everett complains that the trial court erred in denying his mistrial when two prospective jurors disclosed that Everett had a criminal history as a juvenile.

During the State’s portion of voir dire, two veniremembers who worked at a juvenile detention facility stated that they knew Everett because he had been detained there. After the first

instance, Everett’s attorney approached the bench, requested an instruction to disregard the statement, and moved for a mistrial. The trial court did not respond to the request for an instruction and denied the motion for mistrial. After the second instance, the attorney did not object, request an instruction, or move for a mistrial. 4 To preserve a complaint for appeal, a party must make a “timely request, objection, or motion[.]” Tex. R. App. P. 33.1(a). When an objectionable statement is repeated, the party must object each time; failure to do so forfeits the complaint. Fuentes v. State, 991 S.W.2d 267, 273

(Tex. Crim. App. 1999) (holding that appellant waived his complaint that the trial court misstated the burden of proof during voir dire because, although he objected the first time, he failed to object the second time the trial court made the same statement); Wampler v. State, 494 S.W.3d 367, 369

(Tex. App.—Eastland 2015, pet. ref’d) (“If one venireman answered an allegedly improper question, and the defendant failed to object, then the defendant’s argument is waived.”).

Because Everett’s attorney did not object when the second veniremember referred to

Everett’s time in juvenile detention, Everett failed to preserve his complaint for appeal. We overrule issue two.

III. CONCLUSION

Everett failed to preserve the errors that he asserts on appeal. The judgment of the trial court is affirmed.

MARIA SALAS MENDOZA, Chief Justice March 3, 2026 Before Salas Mendoza, C.J., Palafox and Soto, JJ. (Do Not Publish)