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March 26, 2026 Get Citation Alerts Download PDF Add Note

Marvin Louis Guy v. the State of Texas

Texas Court of Appeals, 13th District

• Citations: None known
• Docket Number: 13-24-00073-CR
• Nature of Suit: Murder

• Disposition: Affirmed

• Opinion

• Authorities (32)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.4K)

• PDF

Disposition

Affirmed

Lead Opinion

NUMBER 13-24-00073-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARVIN LOUIS GUY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 27TH DISTRICT COURT
OF BELL COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Peña and West
Memorandum Opinion by Justice West

Appellant Marvin Louis Guy was indicted for the capital murder of Killeen Police

Department Officer Charles Dinwiddie on November 14, 2018. Appellant’s trial began on

November 6, 2023, and occurred over eleven days. At trial, it was undisputed that

appellant shot and killed Officer Dinwiddie, and appellant asserted claims of self-defense

and defense of property. The jury rejected appellant’s defensive claims and convicted
appellant of the lesser-included offense of murder, a first-degree felony. See TEX. PENAL

CODE § 19.02(b)(1), (c). The jury assessed his punishment at life in prison, and the trial

court sentenced him in accordance with the jury’s verdict. By seven issues which we

reconstrue as six, appellant argues that: (1) the evidence is legally insufficient to support

the jury’s verdict because the jury could not rationally reject his defensive claims, and the

trial court abused its discretion when it (2)–(3) denied his motion to suppress, (4) denied

his motion to suppress evidence recovered as a result of a signed consent waiver to

search his residence, (5) overruled his motion for mistrial, and (6) allowed a video excerpt

of appellant’s interrogation into the punishment phase of trial. We affirm.

I. BACKGROUND 1

At trial, Killeen Police Department detective John Moseley testified that sometime

in early 2014, the Department suspected that appellant was trafficking cocaine. Moseley

explained that he received reports from a confidential informant that a “man he knew as

‘G’” was trafficking cocaine out of a blue Crown Victoria outside a quadruplex on “1100

Circle M.” Moseley, through his own observations of the area, identified a blue Crown

Victoria which was owned by appellant on the same block as reported by the confidential

informant. Moseley and his unit began to surveil appellant and observed “high traffic” to

and from appellant’s residence and vehicle. Moseley obtained a search warrant for

appellant’s residence and vehicle and communicated with Officer Dinwiddie to obtain a

SWAT team for the search.

1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001.

2
In the early morning hours of May 9, 2014, multiple SWAT teams converged at the

quadruplex on 1100 Circle M to execute the search warrant on appellant’s unit and

vehicle. One team consisting of seven to nine men was assigned to breach the front door

of appellant’s unit; a two-man team was stationed by the unit’s front window—which

opened into appellant’s bedroom and where the shooting later occurred; and another

team was stationed near the back door as a “secondary” entry point. A separate six-man

team was assigned to appellant’s vehicle parked in front of the quadruplex.

At approximately 5:30 a.m., the front door team initiated the raid by ramming a

battering ram against the front door. The door failed to open because, as later revealed,

a La-Z-Boy chair was blocking the front door. At about the same time, Xaiver Clark, an

officer stationed by the front window, began knocking out the window. Clark testified that

he yelled “Killeen Police Department” or “police department, search warrant” just prior to

striking the window. Clark testified that he struck the window twice, and he “heard a pop”

after the second strike. By the time he cleared the glass from the window, he could “see

[a] muzzle flashing” and “a volley fire right behind that.” He testified that the “muzzle

flashes” were about three feet away from him, and he saw “a large figure that looked like

it came from the sitting position to a standing position . . . towards the corner” of the room.

Officers began shooting at the window and the front door of the unit. Later evidence

revealed that appellant fired nine rounds from a nine-millimeter handgun, and expert

testimony established that the fatal shot to Dinwiddie was fired from that handgun.

Much testimony was dedicated to describing the lighting conditions and the

visibility of the officers. Testimony and video evidence revealed that it was dark outside

when the raid was initiated. Right after the shooting began, a “flash bang” inadvertently

3
went off which caused the air outside the quadruplex to become cloudy. Multiple officers

identified a bright outdoor light on the second floor of the quadruplex which helped

illuminate the area. Multiple officers testified about the SWAT uniforms they wore during

the raid and photos of the uniforms were introduced into evidence. Shirley Whittington,

appellant’s girlfriend at the time of the shooting, testified at trial that appellant “can’t see”

without glasses, and some evidence indicated that appellant was not wearing his glasses

at the time of the raid.

Much testimony was also dedicated to whether the police announced themselves.

Ten officers testified that officers called out “police, search warrant” or otherwise

announced themselves as police, and at least eight of those officers testified that the

officers announced their identity before the shooting began. Joanna Humfleet, who lived

in the duplex unit above appellant’s, testified that she did not hear the police announce

their presence. Humfleet’s eighteen-year-old daughter, who lived with her at the time,

testified that she heard the word “warrant” before the shooting began.

Appellant eventually came out of the back door of the residence and surrendered

to police. Officer Steve Kirk testified that when appellant exited the residence, “he made

[a] statement [that] it was the woman that was shooting.” Whittington was sleeping in the

back bedroom at the time of the raid and exited the residence shortly after appellant.

Detectives Sharon Brank and Fred Harris interviewed appellant three times at the

police station, and the interviews were recorded and played in part for the jury. Brank

testified that appellant “was very eager to tell his side of the story” and told them that

Whittington had nothing to do with the shooting. Appellant told the detectives that he was

asleep when the raid began, and the first thing he heard upon waking up was glass

4
breaking in his bedroom. He said he never heard the police announce themselves or

shout “search warrant,” and “when he shot, it was just instincts.” He repeatedly told Brank

that he would not have fired if he had known he was shooting at officers. Appellant also

told Brank that in the days preceding the shooting, he was paranoid that two men were

watching him. He believed it was those men trying to get inside his residence when he

began shooting.

The jury convicted appellant for the offense of intentional murder. During the

punishment phase, the State presented evidence that appellant was previously convicted

for bank robbery, felon in possession of a firearm, possession of a firearm after conviction

of a misdemeanor crime of violence, and unlawful possession of a controlled substance

with intent to deliver. The jury found the allegations true and assessed punishment as

outlined above. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant argues that the evidence is insufficient to support the

jury’s verdict because the jury could not rationally reject his claims of self-defense and

defense of property.

A. Standard of Review & Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we consider

the evidence in the light most favorable to the verdict and determine whether, based on

the evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Edward v. State, 635 S.W.3d

649, 655 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The jury is the exclusive judge of the credibility of the witnesses and the weight to be

5
given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We defer to the jury’s responsibility to fairly resolve conflicts in testimony, weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. This

standard applies to both circumstantial and direct evidence. Id.

Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009). A hypothetically correct jury charge “accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Villarreal, 286 S.W.3d at 327.

As charged here, a person commits the offense of murder if the person

“intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE

§ 19.02(b)(1). A person is justified in using deadly force against another if they (1) would

be justified in using force against the other under § 9.31, and (2) when and to the degree

they reasonably believe the deadly force is immediately necessary to protect them against

the other’s use or attempted use of unlawful deadly force or to prevent the other’s

imminent commission of one of various enumerated felonies. Id. § 9.32(a). A person is

justified in using deadly force to protect property if they (1) would be justified in using force

against the other under § 9.41, (2) when and to the degree they reasonably believe the

deadly force is immediately necessary to prevent the other’s imminent commission of

robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the

nighttime, and (3) he reasonably believes that:

6
(A) the land or property cannot be protected or recovered by any other
means; or

(B) the use of force other than deadly force to protect or recover the land
or property would expose the actor or another to a substantial risk of
death or serious bodily injury.

Id. § 9.42. A “reasonable belief” is defined as one that would be held by “an ordinary and

prudent [person] in the same circumstances as the actor.” Id. § 1.07(a)(42). “Deadly force”

is defined as “force that is intended or known by the actor to cause, or in the manner of

its use or intended use is capable of causing, death or serious bodily injury.” Id. § 9.01(3).

B. Analysis

Appellant argues that because the jury acquitted him of capital murder and

convicted him of intentional murder, they necessarily rejected the notion “that he knew

the persons he shot at were police officers in the performance of their duty.” See id.

§ 9.03(a)(1) (requiring as an element of capital murder of a peace officer that the

defendant murders a peace officer who is acting in the lawful discharge of an official duty

and who the defendant knows is a peace officer). He contends that, therefore, the jury

could not have rationally found against his claims of self-defense and defense of property

because they necessarily found that he shot at “trespassers” or “people unknown to him.”

Appellant argues these two positions are fatally inconsistent, but “the law does not

bar inconsistent verdicts.” Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App. 2015)

(first citing United States v. Powell, 469 U.S. 57, 68–69 (1984); and then citing Dunn v.

United States, 284 U.S. 390, 393 (1932)); see Hernandez v. State, 556 S.W.3d 308, 321

(Tex. Crim. App. 2017) (op. on reh’g) (Richardson, J., concurring) (“Where a multi-count

verdict appears inconsistent, our inquiry is limited to a determination of whether the

evidence is legally sufficient to support the count on which a conviction is returned.”).

7
“Inconsistent verdicts do not necessarily imply that the jury convicted the defendant on

insufficient evidence, but may simply stem from the jury’s desire to be lenient or to execute

its own brand of executive clemency.” Miller v. State, 712 S.W.3d 235, 254 (Tex. App.—

Eastland 2025, pet. filed) (citing Thomas v. State, 352 S.W.3d 95, 101 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d)). “An inconsistent verdict which might have been the

result of compromise or mistake ‘should not be upset by appellate speculation or inquiry

into such matters.’” Meals v. State, 601 S.W.3d 390, 396 (Tex. App.—Amarillo 2020, pet.

ref’d) (quoting Powell, 469 U.S. at 64–67); see Jones v. State, 712 S.W.3d 151, 160–61

(Tex. App.—Corpus Christi–Edinburg 2024, no pet.).

Further, even if the jury did not believe that appellant knew he was firing at law

enforcement officers, the jury could still reasonably reject his defensive claims and find

him guilty of murder. A rational jury could have concluded that appellant did not have a

reasonable belief that deadly force was immediately necessary to protect himself or his

property. See TEX. PENAL CODE §§ 9.31, 9.41. For instance, evidence indicated that

appellant shot first and fired nine rounds at officers. See Harris v. State, 668 S.W.3d 83,

91 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d) (concluding that jury could have

rejected appellant’s self-defense claim in part because jury could have believed the

evidence that appellant drew his gun and fired first); see also Lee v. State, No. 04-24-

00188-CR, 2025 WL 2808343, at *6 (Tex. App.—San Antonio Sept. 30, 2025, pet. ref’d)

(mem. op., not designated for publication) (concluding that the jury had sufficient evidence

to reject appellant’s claim of self-defense in part because there was evidence that

appellant fired multiple rounds at the victim before the victim could fire). The jury could

have also found evidence of consciousness of guilt when appellant told officers when he

8
exited the residence that Whittington was the shooter. See King v. State, 29 S.W.3d 556,

565 (Tex. Crim. App. 2000) (holding that making false statements to cover up a crime is

circumstantial evidence indicating consciousness of guilt). Accordingly, we overrule

appellant’s first issue.

III. MOTIONS TO SUPPRESS

By his second and third issues, appellant argues that the trial court abused its

discretion when it denied his motion to suppress the underlying no-knock search warrant

for the raid on May 9, 2014. He argues that the underlying affidavit failed to supply

probable cause and justification for the no-knock entry. However, in his appellate brief,

he states:

The harm to [appellant] in failing to suppress the evidence recovered in the
search and arrest warrant . . . is almost immeasurable. All of the evidence
against [appellant] flows from execution of the warrant—from his
statements following his arrest to the physical evidence subsequently
accumulated after the botched raid, including forensic evidence that linked
him to the gun that fired the fatal bullet into Officer Dinwiddie. It is hard to
imagine that more fruit could come from a “poisonous tree.”

Essentially, appellant argues that because the underlying search warrant—issued on

suspicion for drug related offenses—was illegal, then all the evidence gathered for

appellant’s subsequent murder charge should be suppressed.

We disagree. Appellant was not charged with any drug related offenses under the

Texas Health & Safety Code. Instead, appellant was charged and convicted of murder for

acts that occurred as officers executed the search warrant. Thus, regardless of whether

the initial search warrant was illegal, the fruit of the poisonous tree doctrine would not

apply to the evidence acquired from the subsequent investigation into appellant’s murder

9
charge. 2 See, e.g., State v. Iduarte, 268 S.W.3d 544, 551 (Tex. Crim. App. 2008) (“If [the

defendant] did point the gun at [a police officer], that act constituted an independent

criminal offense committed after the complained-of entry, and the acquisition of evidence

of the independent offense was not causally connected to the officer’s allegedly illegal

entry.”); Bell v. State, 233 S.W.3d 583, 588 (Tex. App.—Waco 2007, pet. ref’d, untimely

filed) (holding that appellant could not suppress all evidence recovered from his arrest for

aggravated assault of a public servant even if the police initially acted illegally because

commission of the assault constituted a new crime); Tucker v. State, 114 S.W.3d 718,

723–24 (Tex. App.—Corpus Christi–Edinburg 2003, pet. ref’d) (same); see also Siaz v.

State, No. 03–10–00135–CR, 2011 WL 4424971, at *1–2 (Tex. App.—Austin Sept. 21,

2011, no pet.) (mem. op., not designated for publication) (concluding that even if an officer

lacked probable cause to arrest the defendant for public intoxication, suppression of

evidence that the defendant spat on the police officer could not be suppressed because

the spitting comprised an independent offense). Accordingly, we overrule appellant’s

second and third issues.

IV. CONSENT TO SEARCH HOME

By his fourth issue, appellant argues that the trial court abused its discretion when

it denied his motion to suppress a written waiver of consent for officers to search his home

because his consent “was involuntary and the result of fear, intimidation and coercion not

unattenuated from the circumstances of his arrest.”

2 Notably, appellant does not challenge the validity of a separate search warrant issued the day

after appellant’s arrest, which recovered evidence from the shooting such as shell casings, “projectiles,”
magazines, a black pistol, paper targets, and blood swabs.

10
A. Background

During appellant’s second interview with detectives, appellant signed a written

waiver of consent to search his home. Appellant later filed a motion to suppress, alleging,

as he does on appeal, that “the consent was the result of police misconduct, overreach

and coercion,” and “the consent was tainted by the circumstances of his arrest and

interaction with officer [Juan] Obregon.”

At the pre-trial hearing on the motion, officers testified that appellant was generally

compliant when he exited the residence and followed instructions to lie down. Obregon

testified that while appellant was on the ground, he placed his knee on appellant’s back,

yelled continuously at appellant that if he moved, he “was going to [expletive] kill him,”

and placed his pistol into appellant’s mouth. Obregon explained that he was angry and

emotional because Officer Dinwiddie had been shot. Obregon testified that he withdrew

the pistol when he noticed that appellant was gagging, and he got off appellant when

other officers told him to calm down. Obregon testified that he reported his conduct to his

commander, and he was later reprimanded for his actions.

Brank testified at the hearing that she issued Miranda warnings at the beginning

of appellant’s first interview, which occurred around 7:35 or 7:45 a.m. and went until

around 9:00 a.m. “or a little after.” Appellant initialed a written Miranda waiver, and the

document was entered into evidence. Brank interviewed appellant again “close to one

o’clock p.m.” and that interview lasted between five to ten minutes. Brank said that she

did not re-read appellant his Miranda rights but reminded him that his Miranda rights “were

still in effect and if he understood those,” and he responded affirmatively. She then asked

11
appellant for consent to search his home. She said appellant did not hesitate and signed

the written waiver, which was also admitted into evidence.

Appellant’s trial counsel contended that appellant’s consent to search his home

was tainted by the circumstances of his interaction with officer Obregon and subject to

suppression. The trial court overruled counsel’s objection and denied the motion to

suppress.

B. Standard of Review & Applicable Law

“We review a trial court’s denial of a motion to suppress for an abuse of discretion

and apply a bifurcated standard of review, affording almost complete deference to the

trial court’s determination of historical facts, especially when those determinations are

based on assessments of credibility and demeanor.” Wells v. State, 611 S.W.3d 396, 405

(Tex. Crim. App. 2020) (citing Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016)).

“We review de novo mixed questions of law and fact that do not hinge on assessments

of credibility or demeanor.” Id. at 405–06 (citing Brodnex v. State, 485 S.W.3d 432, 436

(Tex. Crim. App. 2016)). “If the ruling of the trial court is correct under any applicable

theory of law, we will sustain its ruling.” Id. at 406 (citing Furr, 499 S.W.3d at 877). When,

as in this case, the trial court did not make explicit findings of fact, we review the evidence

in the light most favorable to the trial court’s ruling. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007).

“The federal exclusionary rule requires the suppression of evidence obtained either

directly or derivatively (‘fruit of the poisonous tree’) from police conduct that violates the

Fourth Amendment.” Massey v. State, 667 S.W.3d 784, 788 (Tex. Crim. App. 2023) (citing

Utah v. Strieff, 579 U.S. 232, 237 (2016)). “But whether the discovery of evidence was

12
the fruit of Fourth Amendment misconduct is not a strictly but/for inquiry.” Id. (citation

modified). “Suppression of evidence is a last resort, not a first impulse.” Id. (citation

modified). “Accordingly, the United States Supreme Court has identified exceptions to the

exclusionary rule, one of which is the attenuation-of-taint doctrine.” Id. (citing Strieff, 579

U.S. at 238). Under this doctrine, “[e]vidence is admissible when the connection between

unconstitutional police conduct and the discovery of evidence is remote or has been

interrupted by some intervening circumstance, so that ‘the interest protected by the

constitutional guarantee that has been violated would not be served by suppression of

the evidence obtained.’” Id. (quoting Strieff, 579 U.S. at 238). In other words, under the

attenuation-of-taint doctrine, “evidence may be admitted at trial if the connection between

the initial illegality and the means through which the evidence was secured is so

attenuated as to dissipate the taint.” Weems v. State, 167 S.W.3d 350, 359 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d); Hudson v. State, 247 S.W.3d 780, 787 (Tex. App.—

Amarillo 2008, no pet.).

To determine whether this connection is sufficiently remote or attenuated, we

consider: (1) whether Miranda warnings were given, (2) the temporal proximity between

the misconduct and discovery of the evidence, (3) the presence of any intervening

circumstances, and (4) the purpose and flagrancy of the police misconduct. See Brown

v. Illinois, 422 U.S. 590, 603–04 (1975); Massey, 667 S.W.3d at 789 (citing Brown, 422

U.S. at 603–04); Martinez v. State, 620 S.W.3d 734, 741 (Tex. Crim. App. 2021) (citing

Brown, 422 U.S. at 603–04). “No single factor is decisive.” Monge v. State, 315 S.W.3d

35, 40 (Tex. Crim. App. 2010). “[E]ither the first factor (‘temporal proximity’) or the third

factor (‘purpose and flagrancy’) will take on greater significance in any given case,

13
depending upon whether the second factor (any ‘intervening circumstances’) is present.”

Id. (citing State v. Jackson, 464 S.W.3d 724, 732 (Tex. Crim. App. 2015)). “So, when

there is an intervening circumstance as contemplated by Brown, the Brown inquiry

emphasizes the third factor—the purpose and flagrancy of the police misconduct.” Id.

(citing Jackson, 464 S.W.3d at 733).

C. Analysis

For the sake of appellant’s argument, we will assume that Obregon’s misconduct

was an illegal use of force and that incriminating evidence was recovered as a result of

appellant’s consent waiver. 3

Here, the parties do not dispute that Miranda warnings were given to appellant,

and appellant does not challenge the adequacy of the warnings. This factor weighs in

favor attenuation.

As to the second factor, the Court of Criminal Appeals has held that if the time

between the illegal conduct and discovery of the evidence is under three hours, this factor

weighs in favor of the defendant. Monge, 315 S.W.3d at 41 (“[I]f there is a short period of

time (under three hours) between the illegal arrest and the confession, this factor will

weigh in favor of appellant.”); see also Garcia v. State, No. 13-19-00626-CR, 2022 WL

1492838, at *9 (Tex. App.—Corpus Christi–Edinburg May 12, 2022, no pet.) (mem. op.,

not designated for publication) (citing Monge, 315 S.W.3d at 41). Obregon’s misconduct

3 The record is unclear as to exactly what evidence, if any, was recovered after appellant signed

the consent waiver. Appellant contends, without citing to the record, that the evidence recovered included
“a gun used in that shooting which was forensically linked to [appellant] and to the bullet recovered at officer
Dinwiddie’s autopsy,” and “paper targets the State sought to use as proof that [appellant] intended an
ambush of officers as they entered his home.” The State contends that appellant is incorrect, and the
complained-of evidence was collected as a result of the search warrant issued the day after appellant’s
arrest. Out of an abundance of caution, we will analyze whether appellant’s consent to search his residence
was given involuntarily as a result of Obregon’s misconduct.

14
occurred when appellant was arrested, which must have occurred at some point before

his first interview with detectives around 7:35 or 7:45 am. Appellant gave consent to

search his residence during the second interview with detectives, which occurred close

to 1:00 p.m. Thus, well over three hours passed between Obregon’s misconduct and

appellant’s consent. This factor weighs in favor of attenuation. See Monge, 315 S.W.3d

at 41.

Appellant concedes that the third factor weighs in the State’s favor because

appellant initiated communication with the detectives, and this is “an intervening

circumstance borne of his own free will.” Martinez, 620 S.W.3d at 741–42 (“A suspect’s

request to speak to the police may be an intervening circumstance if the request is a

product of the suspect’s own free will.”).

Appellant contends, however, Obregon’s behavior was so “flagrantly abusive,”

“shocking and reprehensible” that it outweighs the factors above. Appellant relies on

Martinez for support. See id. However, Martinez is clearly distinguishable from the facts

of this case. In that case, a nineteen-year-old was illegally arrested and the Court of

Criminal Appeals found that the circumstances of the arrest, including transporting him

from his mother’s house at midnight, “seemed designed to cause fear, surprise, and

confusion for the purpose of getting a confession.” Id. at 743 (“Appellant invoked his right

to counsel, [officers] announced that he was under arrest for murder, handcuffed him,

confined him to a holding cell, and chained him to a bench. There was no evidence that

[a]ppellant was a flight risk, that there was no time to get an arrest warrant, or that some

other urgency justified the warrantless arrest.”). Here, even assuming Obregon used

illegal force, there is no dispute that appellant’s arrest was supported by probable cause,

15
and appellant does not contend that Obregon’s actions were purposeful or calculated.

See id. at 744 (“The arrest had a quality of purposefulness; it was for investigation,

embarked upon in the hopes that something might turn up, and the arrest seems to have

been calculated to cause surprise, fright, and confusion.”). Moreover, unlike this case, the

Court found that the temporal proximity between the police misconduct and

confession, the presence of any intervening circumstances, and the purpose and

flagrancy of the police misconduct all weighed in the appellant’s favor. Id. The Court did

not find that the last factor outweighed the other factors. See id. We overrule appellant’s

fourth issue.

V. MOTION FOR MISTRIAL

By his fifth issue, appellant argues that the trial court abused its discretion when it

overruled his motion for mistrial when a State’s witness asserted that appellant had a

“violent past.”

A. Background

At trial, Detective Jason Petty, one of the SWAT members who participated in the

raid, testified about the mission. At the beginning of his testimony, Petty testified that the

mission involved a “high-risk warrant.” The State asked Petty whether there was “anything

different about this high-risk warrant than all the other[] [missions]” Petty participated in.

Petty responded that it involved “a target of investigation who had a violent past.” Defense

counsel immediately objected. The trial court excused the jury.

Defense counsel argued that Petty’s statement violated the defense’s motion in

limine and moved for a mistrial. The State responded that Petty’s statement was

“inadvertent” and contended that “an instruction to disregard” was appropriate to cure the

16
error. The trial court denied the motion for mistrial. Defense counsel then requested an

instruction to disregard, which the trial court granted. When the jury returned, the trial

court instructed the jury to “totally disregard all of” Petty’s testimony. The State then

restarted Petty’s direct examination.

B. Standard of Review & Applicable Law

We review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011). We must

uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Id. at

699; Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In determining whether

the trial court abused its discretion in denying a mistrial, we may consider (1) the severity

of the misconduct (i.e., the prejudicial effect), (2) the curative measures adopted by the

trial court, and (3) the certainty of conviction absent the misconduct. Archie, 340 S.W.3d

at 739.

“A mistrial is an appropriate remedy in extreme circumstances for a narrow class

of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884 (citation modified).

“Because it is an extreme remedy, a mistrial should be granted only when residual

prejudice remains after less drastic alternatives are explored.” Id. at 884–85 (citation

modified). Even if inadmissible testimony or other evidence comes before the jury, “our

law prefers that the trial continue” unless the evidence “is so emotionally inflammatory

that curative instructions are not likely to prevent the jury being unfairly prejudiced against

the defendant.” Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

17
C. Analysis

We first note that appellant states in his brief that he was granted a motion in limine

which precluded, among other things, “references to any incidents of violence in [his]

past.” The trial court orally granted the motion in limine at the pre-trial hearing on the

motion. However, only the defense’s suggested written order appears in the record. No

signed order by the trial court exists. For the purposes of this analysis, we will assume

without deciding that appellant was granted the motion in limine.

Nevertheless, Petty’s statement arguably did not violate the motion in limine

because he did not reference any “incidents of violence.” Instead, Petty merely stated

that appellant “had a violent past.” Petty’s statement was vague and did not include details

of appellant’s “violent past,” and the State did not emphasize the testimony or mention

the testimony in its closing argument. And as appellant concedes, Petty’s statement was

unintentional. See Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000) (noting

in its conclusion that the prosecutor’s improper argument was “at most, only mildly

improper” in part because the prosecutor did not reveal any specific facts); Perez v. State,

187 S.W.3d 110, 112–13 (Tex. App.—Waco 2006, no pet.) (considering whether the

mistake was repeated and whether the mistake seemed inadvertent or intentional in the

court’s analysis of the first Mosley factor). As such, the prejudicial effect of Petty’s

statement was low.

As to curative measures, the trial court instructed the jury to disregard all of Petty’s

testimony. A prompt instruction to disregard will ordinarily cure error associated with

improper testimony. Irsan v. State, 708 S.W.3d 584, 614 (Tex. Crim. App. 2025); Ovalle

v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Herrero v. State, 124 S.W.3d 827,

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836 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (providing this presumption is

applicable in cases where the curative instruction follows a violation of a motion in limine).

Appellant contends, without citing authority, that the trial court’s instruction went too far

and excusing the jury brought unwarranted attention to Petty’s statement. However, we

must presume the jury followed the instruction of the trial court absent evidence of the

contrary. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Appellant

points to nothing in the record, and we find nothing supporting a conclusion that the jury

did not follow the trial court’s instruction.

As to the certainty of conviction absent the misconduct, appellant argues that this

factor weighs in favor of a mistrial because evidence of appellant’s intent “was not

overwhelming, . . . the jury’s determination of guilt rested on circumstantial and inferential

evidence,” and “the jury acquitted [appellant] of capital murder charges.” However, as we

concluded previously, Petty’s statement was inadvertent and vague, and the State did

nothing to emphasize his testimony. A mistrial is only warranted in the most extreme of

circumstances. Ocon, 284 S.W.3d at 884. We fail to see how Petty’s statement was “so

emotionally inflammatory” that the trial court’s curative instructions were “not likely to

prevent the jury being unfairly prejudiced against” appellant. See Bauder, 921 S.W.2d at

698.

We hold that the trial court did not abuse its discretion when it denied appellant’s

motion for mistrial. We overrule appellant’s fifth issue.

VI. PREJUDICIAL EVIDENCE

By his last issue, appellant argues that the trial court abused its discretion when,

during the punishment phase of trial, it allowed into evidence a video excerpt of

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appellant’s interrogation wherein a detective accused appellant “of being a violent person

based on his prior incarceration in what [appellant] describe[d] as a ‘supermax prison.’”

A. Background Facts

During the punishment phase, the State sought to introduce State’s Exhibit 1005,

a video excerpt of one of appellant’s interviews with Brank and Harris. In the exhibit,

appellant tells the detectives that he spent his whole life in prison, and Harris asks

appellant what prison. Appellant then lists several federal and state prisons, including

“Pontiac supermax”:

Appellant: State of Illinois. Pontiac supermax. You know Pontiac
supermax?

Harris: Yo, they don’t put you on supermax prison just because you’re
a pretty good guy and you kinda follow all the rules and
regulations and all that kind of stuff. You’re a pretty violent
person, [appellant]. You’re violent. You don’t agree with that?

Appellant says he disagrees, and Harris responds: “Then why would you be on

supermax prisons? Can’t lie to me about that, [appellant], I was there for fourteen years.

So don’t bullshit me about that. You’re on supermax prisons because you had a violent

past.” Brank adds, before the clip ends, “And you didn’t wanna go back.”

Appellant’s trial counsel objected to State’s Exhibit 1005, arguing that it was

irrelevant and more prejudicial than probative. Counsel also contended that

With regard to what’s known as super-max, [appellant] was never housed
in what’s actually known as super-max, which is in Colorado in the middle
of the mountains. He was in a maximum security prison if you want to—in
Leavenworth, that’s what that would be, but he’s not at super-max itself.
That’s just not accurate.

The State contested the accuracy of counsel’s assertion and further argued that the

distinction between a “super-max” or “maximum security” prison was not relevant

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because appellant, not the detectives, used the term “super-max.” The trial court denied

appellant’s objections, and State’s Exhibit 1005 was played for the jury.

B. Standard of Review & Applicable Law

The Code of Criminal Procedure Article 37.07, Section 3(a) governs the

admissibility of evidence during the punishment phase of a non-capital trial. TEX. CODE

CRIM. PROC. ANN. art. 37.07 § 3(a). It states in pertinent part

Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the defendant
as to any matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general reputation,
his character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and 405,
Texas Rules of Evidence, any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.

Id. In other words, Article 37.07, Section 3(a)(1) allows for admission of any evidence the

trial court “deems relevant to sentencing,” including the defendant’s prior criminal record,

character, and general reputation. Id.

Admissible evidence may violate Rule 403 and, therefore, be inadmissible, if the

probative value of the evidence is substantially outweighed by the danger of unfair

prejudice. See TEX. R. EVID. 403. We consider the following nonexclusive factors when

conducting a Rule 403 analysis: “(1) the probative value of the evidence; (2) the potential

to impress the jury in some irrational yet indelible way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the evidence.” State v. Mechler, 153 S.W.3d

435, 440 (Tex. Crim. App. 2005). “Under Rule 403, it is presumed that the probative value

of relevant evidence exceeds any danger of unfair prejudice.” Hammer v. State, 296

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S.W.3d 555, 568 (Tex. Crim. App. 2009) (citations omitted). “The rule envisions exclusion

of evidence only when there is a clear disparity between the degree of prejudice of the

offered evidence and its probative value.” Id. (citation modified).

A trial court’s decision to exclude evidence is reviewed for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We uphold the trial court’s

ruling on a Rule 403 balancing test if it is within the zone of reasonable disagreement. Id.

C. Analysis

Appellant first argues that State’s Exhibit 1005 was irrelevant, and alternatively,

that the exhibit was more prejudicial than probative. However, appellant bears the burden

to show the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice. See Hammer, 296 S.W.3d at 568. In this case, the State alleged that

appellant had four prior felony convictions in enhancement paragraphs at trial, one of

which alleged that appellant had been previously convicted in Illinois of “Unlawful

Possession of a Controlled Substance with Intent to Deliver.” Appellant disputed the prior

convictions, and appellant specifically challenged the out-of-state penitentiary packet of

the Illinois offense because it did not contain appellant’s fingerprints. By contesting the

out of state conviction, appellant increased the relevance and probative value of State’s

Exhibit 1005 because it contained a direct statement from appellant that he was, in fact,

incarcerated in an Illinois state prison. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a).

The jury also could have considered the dispute between appellant and Harris about

whether appellant was a “violent person” because a defendant’s prior criminal record,

character, and general reputation are all relevant at sentencing. See id.

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Turning to appellant’s 403 objection, two of the factors weigh in the State’s favor.

See Mechler, 153 S.W.3d at 440. The probative nature of the exhibit and the State’s need

for the evidence was high. Accordingly, appellant did not overcome the presumption that

the probative value of the exhibit exceeds any danger of unfair prejudice. See Hammer,

296 S.W.3d at 568. We hold that the trial court did not abuse its discretion when it

admitted State’s Exhibit 1005 over appellant’s objection. We overrule this issue.

VII. CONCLUSION

The trial court’s judgment is affirmed.

JON WEST
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
26th day of March, 2026.

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