COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00337-CR
KELLY MUNN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ------------
I. Introduction
In three points, Appellant Kelly Munn appeals his conviction for murder.
We affirm.
II. Factual and Procedural Background
Munn was charged with the murder of Scott Sartain. A jury found Munn
guilty of murder and assessed punishment at ninety-nine years’ incarceration.2
1 See Tex. R. App. P. 47.4. Because Munn challenges the sufficiency of the evidence to support his
conviction, we will address the evidence in greater detail below.
III. Sufficiency of the Evidence
In his first and second points, Munn challenges the legal and factual
sufficiency of the evidence to support his conviction for murder, but after Munn
filed his brief, the court of criminal appeals held that there is no meaningful
distinction between the legal-sufficiency and the factual-sufficiency standards.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis
v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)). Thus, the Jackson
standard, explained below, is the ―only standard that a reviewing court should
apply in determining whether the evidence is sufficient to support each element
of a criminal offense that the State is required to prove beyond a reasonable
doubt.‖ We overrule Munn’s second point.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). This standard gives full play to the
2 Munn was also convicted of engaging in organized crime, but he does not appeal this conviction.
2 responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The
trier of fact is the sole judge of the weight and credibility of the evidence. See
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d
564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus,
when performing an evidentiary sufficiency review, we may not re-evaluate the
weight and credibility of the evidence and substitute our judgment for that of the
factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Instead, we Adetermine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007). We must presume that the factfinder resolved any conflicting
inferences in favor of the prosecution and defer to that resolution. Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. The standard of
review is the same for direct and circumstantial evidence cases; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor.
Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
B. Applicable Law
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1)
(West 2011).
3 In a homicide case, the State is not required to produce a body. See
Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993) (―[P]roduction and
identification of the victim’s body or remains is not part of the corpus delicti of
murder.‖), cert. denied, 531 U.S. 1164 (2001). The State must show the death of
the victim was caused by the criminal act of the defendant. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997).
The jury charge included, and the indictment alleged, several manners and
means by which Munn, acting alone or as a party, intentionally or knowingly
caused Sartain’s death: by a manner and means unknown to the grand jury, or
―by kicking [Sartain] with his feet or by punching him with his hands or by
preventing [him] from obtaining insulin in sufficient quantities to prevent his death
when [Munn] knew that . . . Sartain was an insulin-dependent diabetic, or by a
combination of any or all of the aforementioned means.‖
C. Evidence
1. The Beating
On September 6, 2007, Sartain, a methamphetamine user and an insulin-
dependent diabetic, stole his grandmother’s checkbook, forged a check, and
gave it to his friend Natalie Bazan to cash. Police arrested Bazan after the bank
confirmed that the check was forged. Bazan’s husband, Brian Johns, upset by
Bazan’s arrest, bailed her out, and then the two confronted Sartain in a back
room at Munn and Alejandro Orona’s house.
4 Johns and Bazan both hit Sartain, and when Sartain moved to the front of
the house to leave, Munn and Orona joined in and beat Sartain with their hands
and feet. Sartain covered his head and was knocked to the ground. Several
people at the house yelled for Munn and Orona to stop, but they continued
kicking and hitting Sartain. Bazan, Johns, and the other people in the house fled
as the beating continued.
2. Brian Johns’s Testimony
Johns testified about Bazan’s arrest and his role in starting the fight with
Sartain. He said that Munn and Orona joined in as the fight moved to the front of
the house, and that Munn said, ―Go to sleep, bitch,‖ as he repeatedly hit Sartain
in the head. He testified that Sartain did not fight back; that Johns told Munn and
Orona to stop; and that he, his wife, and others left the house when Munn and
Orona would not stop beating Sartain. Johns also said that several days after
the fight, Munn called him and asked him to go to the store for him or to take
Munn to the store and that when he arrived at the house, the house smelled like
―something was rotting real bad.‖ He saw Munn and Orona emerge from a back
room containing a table on which saws and knives rested, and he saw Munn hold
up Sartain’s severed head. Johns ran out of the house to tell friends what he had
seen.
3. Melissa Morante’s Testimony
Melissa Morante testified that she saw Munn, Orona, and Johns beating
Sartain. She stated that Munn was doing most of the beating—kicking and
5 punching Sartain—and that she and others left the house when Munn and Orona
refused to comply with their pleas to stop beating Sartain. She testified that
when she returned to the house the day after the fight, she heard moans coming
from the garage. When she asked about the moaning, Munn told her to, ―Just
shut up, you’re tripping,‖ and ―Shut up, don’t say anything.‖
Morante also testified that between the time of her initial interview with
Arlington Police Detective Jim Ford about the murder and her testimony before
the grand jury, she had been arrested on unrelated drug charges. She stated
that she did not tell Detective Ford or the prosecutor assigned to Munn’s case
about her arrest because she had reached a confidential deal to work as an
informant for the Fort Worth Police Department (FWPD) in exchange for the drug
charges being dropped. Morante confirmed that the State had made no
promises to her at the time of her initial interview with Detective Ford, her
testimony before the grand jury, or her testimony at Orona’s trial. (Orona, also
arrested for Sartain’s murder, was tried separately before Munn.)3 She admitted
that just prior to Orona’s trial, she had failed to meet the terms of her deal with
the FWPD, and she was re-arrested on the drug charges. She also confirmed
that in exchange for her truthful testimony at Munn’s trial, the State had offered
her a reduced sentence on those charges.
3 See Orona v. State, No. 02-09-00182-CR, 2011 WL 679320 (Tex. App.— Fort Worth Feb. 24, 2011, no pet h.).
6 4. Rebecca Brauer’s Testimony
Rebecca Brauer, who was not present at the beating, testified that she
went to Munn and Orona’s house a few days after the fight and that she heard
Munn tell Orona to feed and water the ―dog‖ as he pointed toward the garage.
She said that after her visit, Munn and Orona—who normally had frequent
visitors—―kind of closed the house down for a week or so.‖ Brauer stated that
when she returned to the house a week later, Munn and Orona were mopping
the floor with Fabuloso cleaner, and that the house ―smelled like a dead animal.‖
She testified that after Munn and Orona had moved out of the house, Munn,
while intoxicated, appeared scared as he expressed concern that crime scene
technicians had examined the house. Munn stated that he had used bleach to
clean up blood, and told her about blood in trash bags.
On cross-examination Brauer stated that Munn told Orona to feed and
water the dog in Spanish—a language she understands ―a little bit,‖ but that she
does not speak. Brauer, who testified in jail clothes because she was arrested
the day of Munn’s trial for failure to post bond on an unrelated misdemeanor-
marijuana charge, stated that she was not testifying voluntarily and
acknowledged that she had past drug convictions.
5. Sanjuana Garcia’s Testimony
About a week after the beating, Sanjuana Garcia—who had fled from the
house with Morante—returned to the house and noticed a strong dead animal
smell. Garcia testified that between the time of her initial interview with Detective
7 Ford and her testimony before the grand jury, she and Morante had been
arrested on unrelated drug charges. Like Morante, Garcia did not tell Detective
Ford or the prosecutor assigned to Munn’s case about her arrest because she
had also reached a confidential deal to work as an informant for the FWPD in
exchange for the drug charges being dropped. She admitted that just prior to
testifying at Orona’s trial, she had failed to meet the terms of her deal with the
FWPD, that she was re-arrested on the drug charges, and that in exchange for
her truthful testimony at Munn’s trial, the State offered her a reduced sentence on
the drug charges. On cross-examination Garcia admitted to smoking
methamphetamines the day of the beating and confirmed that Munn was a ―clean
freak.‖
6. Dennis Osborne’s Testimony
Dennis Osborne, Munn’s best friend, who was not present at the fight,
visited the house several days after the fight. He testified that Munn told him that
he and Orona had beaten Sartain because he owed them money. Osborne said
that Munn had asked him to check on Sartain in the garage and to feed Sartain a
burger and get him something to drink but that Osborne refused because he
―didn’t want to be a part to [sic] any of this. I didn’t want to believe any of it was
true.‖
Osborne stated that on his next visit to the house, there were dryer sheets
on all of the air conditioning vents, that Munn had Vicks Vapor Rub on his nose,
and that Munn told Osborne that Sartain had died after Munn and Orona had
8 beaten him a second time, after Sartain had ―got[ten] better and started
screaming and yelling.‖ Osborne confirmed that Munn knew that Sartain was
diabetic while the beatings were occurring.
Osborne testified that later, during a barbecue cook-out at the house,
Munn told Osborn that ―he had just gotten rid of the problem . . . that [Munn and
Orona] only had an arm and a leg left . . . .‖ Osborne confirmed that Clayton
Miller and Shannon Marlowe were at the barbecue and that he later helped Miller
and Marlowe load a beat-up black Grand Prix that was missing its hood onto a
tow-dolly hooked up to a Chevrolet pick-up truck. The pick-up truck had a
bathtub full of trash bags in its bed. Osborne testified that the bathtub had
previously been in Munn’s garage and that there was a maroon stain in the
garage where the bathtub had been located. He said that Miller later told him
that the Grand Prix was in Waco. Osborne also testified that sometime after the
car was disposed of, Munn described and demonstrated to Osborne how he had
cut up Sartain’s body.
Osborne, in jail clothes, confirmed that he was in federal custody at the
time he gave his initial statement to Detective Ford, that Detective Ford wrote his
statement for him because he was dyslexic, that after Detective Ford read his
statement to him, that Osborne dictated corrections to his statement, and that
Osborne initialed those corrections. Osborne said that he declined Detective
Ford’s offer to speak to federal authorities or the parole board on Osborne’s
behalf; that his release from federal custody was not related to his statement;
9 and that three days prior to Munn’s trial, the State arrested him for evading
arrest. He stated that he was not testifying voluntarily and that in exchange for
his testimony at Munn’s trial, the State agreed to drop the evading-arrest
charges.
On cross-examination, Osborne admitted that he had a history of selling
drugs and that he told Munn’s investigator (1) that he did not see any body parts,
(2) that he felt pressured into his statement and his previous testimony, (3) that
Detective Ford had threatened his freedom and told him what to say, (4) that he
was worried because his urine had tested positive for drugs, (5) that his
statement was ―bullshit,‖ and (6) that in ―his heart‖ he knew that Munn was
innocent. Osborne also stated that he had lied to Munn’s investigator because
he was scared of Munn, the State, and the defense, and that was why his
statement to the police and testimony differed from what he told Munn’s
investigator. He further testified that Detective Ford told him that he had it out for
Munn; that because he was already ―doing time,‖ he was not concerned about
the results of his urine test; that Munn’s electricity was off around the time of the
beating; that because Munn lacked power, a big pot of chicken and dumplings
spoiled on the stove; that Munn and Orona kept the house pretty clean; and that
they threw all of their trash, including the spoiled chicken and dumplings, into the
garage.
10 7. Joe Olivarez’s Testimony
Joe Olivarez, who was not present at the beating, testified that he was a
methamphetamine user and occasionally bought drugs from Munn and Orona,
that he met Sartain several months before the beating at a house where they
both purchased drugs, that Sartain lived with him for a while, and that he has not
heard from Sartain since the day of the beating. He also stated that Sartain
drove a black ―Grand Prix or Monte Carlo.‖
Olivarez, in jail clothes, confirmed that he had been arrested for attempted
forgery and that because he was a repeat offender, he was facing a twenty-five-
year-to-life sentence on that charge. He also testified about his criminal history—
that he had served a fifteen-year sentence for murder, that he had served six
years for amassing three DWI charges in an eight-month period, and that he had
also served nine months for possession of a controlled substance. He stated
that a recent charge against him for being a felon in possession of a weapon had
been dismissed because of insufficient evidence. He confirmed that once he
finished testifying in Munn’s case (in exchange for his guilty plea), the State
would waive the repetition counts on his forgery charge, which would reduce the
punishment range to that of a state-jail felony charge (six months to two years).
He also confirmed that because he would get credit for time served, he would be
released at the end of his duties as witness in Munn’s trial.
11 8. Chris Barakat’s Testimony
Chris Barakat, a self-employed auto-shop and U-Haul dealership owner in
Arlington, testified that he rented a tow-dolly to Marlowe on October 22, 2007,
and confirmed that the receipt stated that a Chevrolet half-ton pick-up truck
would be used to tow a 2000 Pontiac Grand Prix. He said that he thought that
the tow-dolly had not been returned ―but [did not] know that information.‖
9. Joshua Schlasman’s Testimony
Fifteen-year-old Joshua Schlasman testified that sometime in 2007,
Clayton Miller and a woman driving a Chevrolet Z71 pick-up truck towed a beat-
up black Pontiac Grand Prix to Waco and left it with Dayarl Matheny,4 who
Schlasman’s family was living with at the time. Schlasman said that although the
Pontiac car contained loose trash and was missing its hood, a bumper, the
windshield, and some windows, it was still drivable. He also said that there was
a bathtub filled with trash and tires in the bed of the pick-up. He testified that
later that evening, he and his mother looked inside the trunk of the car, that he
saw a clear bag with either ―blood or transmission fluid on it,‖ and that his mother
quickly slammed the trunk shut. He said that they sold the bathtub and burned
the trash bags and loose trash, and that Matheny cut apart the Grand Prix,
burned out the interior, and sold the car as scrap metal. Although he told police
4 Matheny was deceased at the time of Munn’s trial.
12 in his initial statement that he did not see any blood or body parts, Schlasman
testified that he thought he saw an arm in the trunk but that he could not be sure.
On cross-examination, Schlasman confirmed that he had not mentioned
seeing any body parts in his prior testimony at Orona’s trial. Later, after a bench
conference, Schlasman was recalled for further cross-examination, and he stated
that he had exaggerated in his testimony and admitted that he had not seen any
body parts in the car.
10. Arlington Police Detective Jim Ford’s Testimony
A few months after the beating, Detective Ford received a tip about a
murder from an Arlington jail inmate. Detective Ford eventually tracked down
witnesses and, approximately seven months after the beating, although Munn
and Orona no longer lived there, the police searched the house and yard for
evidence of a murder. Detective Ford testified that a chemical sprayed onto the
walls and floors showed some areas that could have blood on them but that
police were unable to perform further testing before the chemicals destroyed the
potential DNA samples. He also confirmed that the blood samples that the police
took from baseboards in the living room did not test positive for Sartain’s DNA.
Detective Ford stated that he located a badly damaged tow dolly in Waco that
had been rented by Marlowe, that Sartain had been arrested shortly before his
disappearance,5 and that he had obtained information about the vehicle Sartain
5 The record does not contain details about Sartain’s arrest.
13 drove from impound records related to that arrest and from witnesses. He
confirmed that Sartain had been listed as ―missing endangered‖ in a database
that is accessible to all law enforcement agencies and that he had not received
any contacts related to Sartain’s presence on the list.
On cross-examination, Detective Ford acknowledged that he was not
testifying that the vehicle Sartain drove was registered to Sartain, and he
confirmed that Munn had shown proof of insurance and paid the fee to retrieve
the car from the impound. He also confirmed that in an unrelated November
2007 investigation of Munn’s house,6 the police analyzed eighteen swab-based
samples of material from baseboards, walls, and a ceiling that they acquired for
testing and found no evidence of Sartain’s DNA. Detective Ford also stated that
the room searched in November 2007 was not the room where the fight with
Sartain had started. He agreed that the house contained no physical evidence
that related to Sartain.
11. Jo Ann Mitchell’s Testimony
Mitchell, Sartain’s mother, testified that, after the forgery incident, she told
Sartain that she never wanted to see him again. But she also explained that he
was very close to his grandmother and visited her often and that neither she nor
her mother had heard from Sartain after the day of the beating. She confirmed
that Sartain had a car but said that she did not know what kind. She testified that
6 The record does not indicate the details of this investigation.
14 Sartain was a ―brittle diabetic‖ and that he had a history of complications and
hospitalizations due to his heightened sensitivity to insulin.
12. Deputy Tarrant County Medical Examiner Lloyd White’s Testimony
Dr. White testified that he had reviewed Sartain’s medical records from
2005 to 2007, that too much or too little insulin causes brittle diabetics to become
ill very quickly. He also said that, based on Sartain’s medical records, a person
with a similar medical condition who was subjected to a serious injury—such as
the beating Sartain experienced—would be more vulnerable to death than a
person without the same medical condition. Specifically, Dr White stated that
―any kind of injury . . . exacerbates the effects of diabetes‖ and that the most
serious effect would be ketoacidosis which could result in sudden death.
13. Defense Witnesses Testimonies
Charlotte Youngquist, Munn’s mother, and Amy Garcia, Munn’s sister,
testified that while they were both visiting Munn in jail before trial, they heard
Johns, who was working in the jail’s visiting area, speak to Munn on the jail’s
phone-intercom system. They both said that although they could only vaguely
hear Munn’s side of the conversation, they heard Munn ask Johns why he lied,
and that Johns responded that the police made him do it.
Melissa Gutierrez, the mother of Munn’s children, testified that she and
Munn broke up in 2003, that they shared parenting of their two children, that their
parenting activities occasionally evolved into romantic encounters, and that she
15 and her children were at Munn’s house the weekend of the beating. She said
that she arrived at Munn’s house at 7:30 p.m. on Friday, September 7, 2007, that
a tattoo artist present at Munn’s house gave her a tattoo, and that she
remembered the date because she acquired the tattoo the weekend before her
mother’s birthday on September 13. She also said that Munn, Orona, and the
tattoo artist were the only people at Munn’s house on Friday; that she spent
Friday night at the house; that the next morning, she retrieved her children from
another residence and returned with them to Munn’s house where they all spent
Saturday night; and that she and her children left the house on Sunday.
Gutierrez said she returned to Munn’s house on Thursday, September, 13, 2007,
and spent the night. She testified that during this time, she had not observed
anything out of the ordinary, had not smelled anything unusual, and was not
restricted from entering any part of the house.
On cross-examination, Gutierrez admitted that although she had visited
Munn at least thirty times in jail, she did not alert Munn’s attorney to the facts in
her testimony until the week of the trial.
D. Analysis
Munn argues that the evidence is insufficient to prove that Sartain is
deceased or that Sartain was murdered. Specifically, he argues that although
the evidence shows that Sartain is missing, the evidence is insufficient to show
that Sartain owned the Grand Prix, that there is no evidence linking Munn to
16 Sartain’s death, and that each of the state’s key witnesses suffered from
―significant credibility issues.‖
1. Witness Credibility
As noted above, the trier of fact is the sole judge of the weight and
credibility of the evidence. See Tex. Code Crim. Proc. Ann. art 38.04; Brown, 270
S.W.3d at 568. The jury may choose to believe or disbelieve all or any part of
any witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986), cert. denied, 488 U.S. 872 (1988). Likewise, reconciliation of conflicts in
the evidence is within the exclusive province of the jury. Jones v. State, 944
S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).
Morante, Garcia, and Osborne all appeared before the jury in jail clothes.
They all testified about the reasons behind their arrests, any deals made with the
State related to their testimonies, and whether they were testifying willingly or
not. In addition, although Johns admitted that he started and participated in the
fight with Sartain, his testimony that he left when Munn and Orona refused to
stop beating Sartain was corroborated by Morante’s and Garcia’s testimonies.
Osborne testified that Munn admitted that Sartain had died after a second
beating and that Munn said that he had dismembered Sartain’s body. Moreover,
the jury heard Osborne and Olivarez testify that Sartain drove a black Grand Prix,
and the jury heard Schlasman’s testimony that Miller and a woman had disposed
of such a vehicle.
17 The jury was fully aware of the deals between the witnesses and the State
regarding the witnesses’ pending offenses and the circumstances surrounding
their decisions to testify, and Munn questioned the witnesses about these issues.
See id.; see also Douglas v. State, No. 05-06-00198-CR, 2006 WL 3742902, at
*3 (Tex. App.—Dallas Dec. 21, 2006) (mem. op., not designated for publication)
(noting that a jury was free to decide if a witness testified truthfully or was
influenced by his agreement with the State), cert. denied, 552 U.S. 1246 (2008).
And, even though the jury heard Schlasman admit that he exaggerated about
seeing body parts, the jury was free to believe his testimony that Miller delivered
a black Grand Prix to the chop-shop in Waco. See Sharp, 707 S.W.2d at 614.
Likewise, the jury was free to disbelieve any or all of Gutierrez’s testimony about
her presence at the house at the time of the events in question. Id. And, the jury
was free to determine that the Grand Prix was Sartain’s car. Id.
2. Sufficiency
Munn also argues that his conviction is not supported by an extrajudicial
confession or a body and, thus, the evidence is legally insufficient to establish the
corpus delicti of murder. But the record reflects that Munn told Osborne—a party
not present at either beating—that Munn and Orona beat Sartain a second time
and that Sartain died as a result. Thus, Munn admitted that Sartain died as a
result of Munn’s intentional actions, and we are left to determine whether the
independent evidence corroborating Munn’s extrajudicial confession renders the
commission of Sartain’s murder more probable than it would be without the
18 evidence. See Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997);
Fisher, 851 S.W.2d at 302–03; see also Gonzales v. State, 190 S.W.3d 125, 130
(Tex. App.—Houston [1st. Dist.] 2005, pet. ref’d) (noting that a defendant’s
extrajudicial confession corroborated by independent evidence tending to
establish corpus delicti is sufficient to uphold a conviction), cert. denied,
Gonzales v. Texas, 549 U.S. 1000 (2006).
Munn argues that ―a review of all th[e] testimony fails, even in the light
most favorable to the verdict that the jurors could infer that [Munn] murdered Mr.
Sartain, dismembered the body, put it in a car and had it burned . . . because no
physical evidence corroborated this alleged carnage.‖ Munn misstates the
State’s burden. The State was not required to show how Munn disposed of
Sartain’s body or personal property, but testimony about Munn’s actions relative
to those events could serve as evidence to prove that Munn murdered Sartain;
the State was required to show beyond a reasonable doubt that Munn murdered
Sartain as alleged in the indictment. See Swearingen v. State, 101 S.W.3d 89,
96 (Tex. Crim. App. 2003).
Here, the evidence reflects that Sartain disappeared after a beating
witnessed by multiple parties; that Munn knew that Sartain was diabetic and
needed insulin; that Munn told Orona and Osborne to give Sartain, who was in
the garage, some food and water; and that a short time later multiple witnesses
reported a foul odor at Munn and Oronoa’s home—where Sartain was last seen.
Additionally, a week after the beating, Munn stopped receiving guests, he
19 attempted to mask the odor with dryer sheets and Vick’s Vapor Rub, and he
cleaned the house. Further, Johns saw Sartain’s severed head and a tabletop
full of knives and saws, Osborne saw a reddish stain on the floor of Munn’s
garage, and Munn described and demonstrated to Osborne how Munn had
dismembered Sartain’s body. Finally, months after moving out of the house,
Munn told Brauer that he had cleaned up blood in the house and expressed
concern that police were conducting forensic testing in the home, and
acquaintances of Munn’s delivered a car similar to Sartain’s to a chop-shop in an
outlying county. We conclude that the independent evidence corroborates
Munn’s extrajudicial confession. Viewing the evidence in the light most favorable
to the jury’s verdict, we hold that a rational trier of fact could have found beyond a
reasonable doubt that Sartain is deceased and that Munn intentionally and
knowingly caused Sartain’s death by one, or a combination, of the manners and
means alleged in the indictment. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Clayton, 235 S.W.3d at 778; Cardenas v. State, 30 S.W.3d 384, 390 (Tex.
Crim. App. 2000) (noting that all that is required in corroborating an extrajudicial
confession is that some evidence makes the commission of the offense more
probable than it would be without the evidence), cert. denied, 130 S. Ct. 2094
(2010); see also Kitchens v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 1991)
(noting that when a jury returning a guilty verdict on an indictment charging
several alternate manners and means, the verdict stands if the evidence is
sufficient with respect to any of the acts charged), cert. denied, 504 U.S. 958
20 (1992); Martinez v. State, 723 S.W.2d 264, 265 (Tex. App.—San Antonio 1986,
pet. ref’d) (holding that evidence that victim died as a result of a severe beating
supported conviction for murder). Accordingly, we hold that the evidence is
legally sufficient to support Munn’s conviction, and we overrule Munn’s first point.
IV. Motion for Mistrial
In his third point, Munn argues that the trial court erred by denying his
motion for mistrial during voir dire. Specifically, he complains that ―unacceptable
jurors were seated on the jury panel based upon receiving information in violation
of Texas Code of Criminal Procedure article 35.16(a)(10)[,]‖ which limited his
―ability to properly and specifically question all of the venire members.’’
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion and must uphold the trial court’s ruling if that ruling was within the zone
of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.
App. 2004). An abuse of discretion occurs ―only when the trial judge's decision
was so clearly wrong as to lie outside that zone within which reasonable persons
might disagree.‖ Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992),
cert. denied, 509 U.S. 926 (1993). A mistrial is an extreme remedy for prejudicial
events occurring during the trial process and should be granted only when
residual prejudice remains after curative measures are sought and denied in the
trial court or ―events are so emotionally inflammatory that curative instructions
are not likely to prevent the jury from being unfairly prejudiced against the
21 defendant.‖ Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004); see also
West v. State, 121 S.W.3d 95, 106 (Tex. App.—Fort Worth 2003, pet. ref’d)
(noting mistrial appropriate only when prejudice exists after objections have been
sustained and curative instructions given). A motion for mistrial preserves error,
but the court of criminal appeals has stated that
when a party’s first action is to move for mistrial . . . , the scope of appellate review is limited to the question [of] whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead an appellate court to reverse a judgment on appeal by the party who did not request these lesser remedies in the trial court.
Young, 137 S.W.3d at 70.
Prospective jurors are not challengeable for cause merely because they
have heard news reports about the crime or the suspect. See Ladd v. State, 3
S.W.3d 547, 561 (Tex. Crim. App. 1999), cert denied, 529 U.S. 1070 (2000). A
prospective juror is subject to being excused if he has a bias or prejudice against
the accused or has formed a conclusion as to the guilt of the accused that would
influence his verdict. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9), (10) (West
2006). Any juror who can put aside any bias, prejudice, or conclusion of guilt and
base his verdict on the evidence presented in court may serve on the jury at the
trial court’s discretion. Barber v. State, 737 S.W.2d 824, 829–30 (Tex. Crim.
App. 1987), cert. denied, 441 U.S. 967 (1979); see also Von Byrd v. State, 569
S.W.2d 883, 890 (Tex. Crim. App. 1978), cert. denied, 441 U.S. 888 (1979).
22 Defense counsel has the burden to ask questions to elicit information implicating
a juror’s inability to be impartial, truthful, and the like, and ask follow-up questions
after uncovering potential bias. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim.
App. 1980), overruled on other grounds by Sneed v. State, 670 S.W.2d 262, 266
(Tex. Crim. App. 1984); Freeman v. State, 168 S.W.3d 888, 891 (Tex. App.—
Eastland 2005, pet. ref’d), cert. denied, 547 U.S. 1208 (2006); see also Webb v.
State, 232 S.W.3d 109, 113 (Tex. Crim. App. 2007) (―It is incumbent upon
counsel to specifically ask questions which will determine whether they have a
right to challenge the venire member.‖); Armstrong v. State, 897 S.W.2d 361,
363–64 (Tex. Crim. App. 1995) (recognizing that defense counsel has burden to
ask questions to determine a juror’s potential bias). Even when a juror withholds
information, a conviction will only be reversed if the defendant exercises due
diligence in attempting to elicit that information. Jones, 596 S.W.2d at 137; see
also Armstrong, 897 S.W.2d at 363–64.
C. Voir Dire
During Munn’s portion of voir dire, a panel member asked about the
ramifications of remembering parts of the crime from newspaper coverage.
Munn then asked the entire panel if ―[a]nybody else . . . thinks they know
something about the case?‖ The five jurors answering affirmatively were
identified as Victor Jones, Richard Hintermeier, Troy Rackliffe, James McClure,
and William Olcsvary. After asking the entire panel this single question about
23 prior knowledge of the case, Munn moved onto a new topic and made no further
inquiries about media exposure during the remainder of his voir dire.
D. Individual Questioning
At the conclusion of voir dire, the trial court individually questioned
nineteen panel members, including the five identified above.
1. Victor Jones
Jones was the third venire person questioned individually by the trial
court.7 Jones indicated that during the lunch break, he had looked the case up
on the internet and learned that ―the gentlemen was homeless . . . [,] the [dispute]
was over a check[,] and . . . they cut up a car.‖ In response to the trial court’s
question as to whether the information had led him to form an opinion as to
Munn’s guilt, Jones replied ―I’d be more swayed to say yes more so than not.‖
Munn then asked the trial court to determine if Jones had spoken to anyone else
about the case:
The Court: Did anybody else -- did you talk to anybody else about it?
[Jones]: There was [sic] four of us. They all raised their hands. We all got the names and numbers.
The Court: They were reading it on Google?
[Jones]: Yeah.
7 Munn did not ask the first two of the nineteen venire persons questioned about their knowledge of, or exposure to, media or news stories about the case.
24 Prior to releasing Jones, the trial court instructed him not to discuss the case with
anyone else. Citing article 35.16(a)(10), the trial court excused Jones from jury
duty.
2. Richard Hintermeier
Hintermeier was the sixth venire person individually questioned.8
Hintermeier indicated that because the victim’s name sounded familiar, he looked
the case up on the internet over the break and confirmed what he had
remembered: that ―there was a murder . . . , that a couple of people had been
arrested . . . . [, and] that there was an indictment and a conviction.‖ The trial
court and both parties questioned Hintermeier about his ability to uphold the law
and whether he had formed an opinion about Munn’s guilt. In concluding the
questioning of Hintermeier, the trial court asked if either party had any additional
questions and the following exchange occurred:
[Defense Counsel]: Yes, Your Honor. I’ve only been asking people questions about the subject they’ve been brought in for. If there were other challenges for people, I haven’t -- in other words, if there were --
The Court: Oh, no. We can deal with those.
8 Munn did not ask the two venire members questioned after Jones and before Hintermeier about their knowledge of the case, discussions with other panelists, or exposure to news stories about the case.
25 Hintermeier was not questioned further after this exchange. The trial court
indicated that it ―was not satisfied in [its] discretion that [Hintermeier] could be
impartial‖ and excused Hintermeier under article 35.16(a)(10).
3. Troy Rackliffe
Rackliffe, the seventh venire member individually questioned, went
immediately after Hintermeier. Rackliffe indicated that he had ―Googled‖ Munn’s
name. When asked if he could keep an open mind as to punishment, Rackliffe
said: ―[I]f the facts that [I] read are true and the jury says guilty, then I would go
towards the higher end. . . . [i]n my mind you have murder and then you have
extreme cases, and what I read was more extreme than just minor.‖ Rackliffe
indicated that he had read about Munn’s ―partner’s‖ conviction but that he did not
recall the sentence imposed. Rackliffe admitted to discussing the case with
Jones but stated that he had not discussed the case with anyone else. The court
excused Rackliffe.
4. William Olscvary
Olscvary went tenth.9 He indicated that he had overheard information
about the case while walking through the hallway outside the courtroom. He was
not sure if the people discussing the case were venire members or if they were
discussing something they had heard and not something they knew. He heard
9 Munn did not ask the two venire members questioned between Rackliffe and Olscvary about their knowledge of the case, discussions with other venire members, or exposure to news stories about the case.
26 them speak about ―the type of injury, something about . . . . [k]eeping someone
from getting medicine and dying and some kicking and two people involved.‖ He
stated that he continued to listen because he thought they might be discussing
the case, that ―no names or anything were mentioned regarding who it was or
when it happened[,]‖ and that, after lunch based on statements made during
Munn’s portion of voir dire, he realized that the conversation in the hallway
concerned Munn’s case. The trial court granted Munn’s challenge for cause of
Olscvary.
5. James McClure
McClure was questioned immediately after Olscvary. McClure indicated
that he did not read anything about the case but that he had overheard a
conversation between potential jurors in the hallway about information on the
case that one of them found on the internet. He stated that there were three or
four people engaged in the conversation and that he was about five feet away
from them, ―close enough that [he] couldn’t not hear it.‖ McClure noted that the
entire panel was in the hallway at the time he overheard the conversation, that
the parties were not whispering, and that he was unsure as to how many
panelists were within ―easy earshot‖ of the conversation, giving an estimate of as
few as four to as many as fifteen. McClure was also excused for cause.
6. Remaining Venire Members
After McClure’s questioning, Munn moved for a mistrial, arguing that the
entire panel had been tainted and stating,
27 I was under the impression from . . . Jones that the only persons he discussed this with were [in] the lunch environment and that they had all raised their hands and said they would come in and discuss the issue with us.
Now two different panel members have indicated that this was said in the open hallway out loud where anyone could hear. At this point I believe that the panel itself has been tainted, and I would make a motion for a mistrial.
The trial court responded that it had ―always thought it was just right in the
hallway with three or four other people‖ and denied Munn’s motion for mistrial.
The trial court then granted Munn a running objection and resumed individual voir
dire.
After McClure, another eight panelists were questioned. Munn did not ask
the first seven panelists if they had any knowledge of, had been exposed to, or
had overheard any information about the case. Michael Carter, the last panelist
individually questioned, responded ―No[]‖ when Munn asked if Carter had
―overhear[d] anything in the hallway, people talking about facts that could be
relative to th[e] case[.]‖
Only one of the nineteen panelists individually voir dired—Allen Elliot—was
seated on the jury.10 After the parties exercised their peremptory challenges, but
before the jury was empaneled, Munn reiterated his running objection to the
panel arguing ―that the entire panel had been tainted by the conduct of five to six
10 After the trial court and both parties questioned Elliot individually about his ability to follow the law in assessing punishment, the trial court denied Munn’s challenge for cause.
28 panel members in the hallway.‖11 The trial court again overruled Munn’s
objection. The trial court empaneled, but did not swear in, the jury; gave the jury
members written instructions to review overnight; instructed the jury not to ―listen
to or read anything about th[e] case in the media . . . . [and to] not make any
independent examinations or investigations . . . . don’t Google, don’t do anything
like that[;]‖ and released the jury for the evening.
The next morning, before the jury was sworn in, Munn reiterated his
objection to the panel and again moved for a mistrial, arguing that he ―should
have been allowed to explore any area of questioning which would have revealed
a possible bias against [him] for preconceived opinions.‖ Munn argued that he
was ―not allowed‖ to question the panel as to the existence or effect of a potential
bias and, therefore, ―through no fault of [his own] . . . [he] was not able to
effectively and intelligently use [his] peremptory challenges on persons who may
have a preconceived opinion.‖ In response, the State stressed that Munn had
―effectively questioned the panel after the incident‖ and that everyone who had
indicated that he or she had any knowledge had ultimately been excused. The
trial court denied Munn’s motion, noting that
the [trial] [c]ourt is satisfied that based on the . . . questioning of the jurors that there were I believe three to four around the prospective juror . . . responsible for the internet transactions, all of those came
11 The State indicated that other than having ―a couple of more strikes‖ it had no objection to the composition of the jury. Munn did not request additional strikes.
29 in and discussed their -- discussed what they saw. And as [the State] indicated, none of them made it on the jury.
The trial court again granted Munn a running objection based on its denial of his
motion for mistrial and, though no request to quash the jury is in the record, the
trial court also approved a running objection based on its failure to quash the
panel. In its charges to the jury at both the guilt and punishment stages, the trial
court instructed the jury that it was to consider only evidence presented at trial in
reaching its decisions.
E. Analysis
To support his contention that unacceptable jurors were seated on the jury
panel in violation of article 35.16(a)(10) and that the trial court should have
granted a mistrial, Munn relies on Franklin v. State, 138 S.W.3d 351 (Tex. Crim.
App. 2004); Robinson v. State, 851 S.W.2d 216 (Tex. Crim. App. 1991), cert.
denied, 512 U.S. 1246 (1994); and Tijerina v. State, 202 S.W.3d 299 (Tex.
App.—Fort Worth 2006, pet. ref’d).
Munn’s reliance is misplaced. In both Franklin and Robinson, the alleged
error was discovered or occurred after the jury was empaneled and sworn in.
See Franklin, 138 S.W.3d at 352 (noting that alleged error was discovered when
State called complainant to testify); Robinson, 851 S.W.2d at 228–29
(recognizing potential error when, after the close of evidence in the
guilt/innocence phase of the trial, juror indicated that her sister had told her about
an article on the case in the prior day’s newspaper). In Tijerina, the error
30 occurred immediately after the trial court denied defense counsel’s request to
reopen voir dire to ask a previously disallowed question in a different form. 202
S.W.3d at 301. Here, Munn discovered the potential bias during his portion of
voir dire, and the trial court neither prevented him from questioning the panel to
determine bias nor denied him the opportunity to reopen voir dire.
The record shows that Munn had the opportunity to, and did, ask the entire
panel about knowledge of the case; that the five panelists who affirmatively
answered were questioned individually and stricken for cause; that Munn had the
latitude to ask any of the nineteen panelists questioned individually if they had
overheard anything in the hallway related to the case; that Munn did, in fact,
exercise this option on a single panelist and that the panelist answered in the
negative; and that prior to seeking a mistrial, Munn did not seek a lesser remedy
such as requesting an instruction or requesting to reopen voir dire to requestion
the entire panel. See Gonzales v. State, 3 S.W.3d 915, 916–17 (Tex. Crim. App.
1999) (―We have consistently held, with respect to oral questions asked during
voir dire, that error occurs where a prejudiced or biased juror is selected without
fault or lack of diligence on the part of defense counsel . . . .‖ (emphasis in
original, internal quotation omitted)); Armstrong, 897 S.W.3d at 363–64 (noting
that defense counsel had obligation to ask follow-up questions after uncovering
potential bias). Nothing in the record demonstrates that the trial court failed to
investigate any prospective juror admitting knowledge of the case in violation of
article 35.16(a)(10) or that any member of the seated jury was biased by
31 prohibited knowledge. See Tex. Code Crim. Proc. Ann. art. 36.15(a)(10); Jones,
596 S.W.2d at 134 (affirming denial of mistrial due to defense counsel’s failure to
ask any questions calculated to bring out the desired information); cf. Uranga v.
State, 330 S.W.3d 301, 307 (Tex. Crim. App. 2010) (rejecting implied-bias
doctrine argument and holding that standard of appellate review in denial of
mistrial is ―whether the trial court abused its discretion on the factual issue of
actual bias‖). Accordingly, we cannot conclude that actual bias existed or that
the events complained of were so emotionally inflammatory that curative
instructions would not have prevented the jury from being unfairly prejudiced
against Munn. We cannot say that the trial court erred by denying Munn’s motion
for mistrial. See Young, 137 S.W.3d at 65, 71 (holding that because an objection
and related instruction during voir dire would have cured harm resulting from
improper questioning, the trial court did not err by denying appellant’s motion for
mistrial); see also Gonzales, 3 S.W.3d at 917–18 (affirming jury selection when
defense counsel failed to ask questions to verify whether jurors failing to turn in
questionnaires had been involved in criminal cases); Jones, 596 S.W.2d at 137
(finding no error when counsel failed to ask questions during voir dire that would
have uncovered juror’s previous employment at county jail and that she had
served as a witness in a criminal trial). We overrule Munn’s third point.
32 V. Conclusion
Having overruled all of Munn’s points, we affirm the trial court’s judgment.
BOB MCCOY JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 16, 2011