In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00335-CR
MAXIMIANO GONZALEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2022-CR-1541, Honorable Douglas H. Freitag, Presiding
May 26, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
A jury found Appellant, Maximiano Gonzalez, guilty of possession of
methamphetamine with intent to deliver in an amount of four grams or more but less than
200 grams.1 He pleaded true to an enhancement allegation, and the jury assessed
punishment at thirty-five years of confinement. In two issues, he contends the trial court
1 TEX. HEALTH & SAFETY CODE § 481.112. abused its discretion by refusing his requested mistake-of-fact jury instruction and by
denying his motion for mistrial during punishment deliberations. We affirm.
BACKGROUND
In June 2022, Officer Justin Criner with the Lubbock Police Department entered a
commercial location to assist a landlord with an eviction. Upon entering, he found
Appellant asleep on a couch. He also noticed drug paraphernalia and packets of
methamphetamine on a nearby table. After detaining Appellant, Officer Criner used
Appellant’s digital scale to weigh the methamphetamine, confirming approximately 117
grams.
Appellant told Officer Criner that he worked for “TW” as a confidential informant.
Officer Criner recognized “TW” as the street name for Captain Tony Williams of the
Lubbock Police Department’s narcotics unit.
Officer Criner called Captain Williams, who said Appellant was not a confidential
informant and directed Officer Criner to arrest him. Appellant attempted to persuade
Criner not to arrest him, claiming he was trying to work off a case. Criner, an experienced
narcotics officer, testified that Appellant’s behavior was inconsistent with that of a
legitimate confidential informant and told Appellant he was doing “exactly the opposite”
of what a contracted CI would do.
Appellant was indicted for possession of methamphetamine with intent to deliver.
At trial, he did not contest possession of the methamphetamine. In opening statement,
defense counsel told the jury that Appellant was guilty of the lesser-included offense of
simple possession but lacked intent to deliver because he believed he was acting as a 2 confidential informant. At the close of the guilt-innocence phase, Appellant requested a
mistake-of-fact instruction. The trial court denied the request. The jury found Appellant
guilty as charged.
During punishment deliberations, the jury sent three notes. The first requested
copies of prior judgments and convictions admitted into evidence. The second asked,
“How long was his previous sentence? His time served.” The third asked, “Was his full
eight years served?” After the third note, Appellant moved for a mistrial, which the trial
court denied. The jury returned a sentence of thirty-five years of confinement.
ANALYSIS
Jury Charge Instruction
In his first issue, Appellant argues that the trial court erred by denying his request
for a mistake-of-fact jury instruction. We conclude the trial court did not abuse its
discretion because the alleged mistake, even if true, would not negate the culpable mental
state required for the offense.
We review a trial court’s decision to deny a requested jury instruction for an abuse
of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). Section
8.02 of the Texas Penal Code provides that it is a defense to prosecution that the actor,
through mistake, formed a reasonable belief about a matter of fact if his mistaken belief
negated the kind of culpability required for commission of the offense. TEX. PENAL CODE
§ 8.02(a). A defendant is entitled to a mistake-of-fact instruction if there is some evidence
that, through mistake, he formed a reasonable belief about a matter of fact and that
mistaken belief negated the intent or knowledge required for conviction. Celis v. State, 3 416 S.W.3d 419, 430 (Tex. Crim. App. 2013); Granger v. State, 3 S.W.3d 36, 38 (Tex.
Crim. App. 1999).
Appellant’s claimed mistake was that he believed he was a confidential informant
working for Captain Williams. His theory is that this belief negated his intent to deliver
because he thought he was gathering drugs for law enforcement, not distributing them.
We disagree that this involves a relevant mistake-of-fact under Penal Code § 8.02(a).
Critically, the mistake-of-fact defense “applies only with respect to elements that
require proof of a culpable mental state.” Celis, 416 S.W.3d at 430; TEX. PENAL CODE
§ 8.02(a). Possession with intent to deliver a controlled substance requires proof that the
defendant “knowingly . . . possesses with intent to deliver a controlled substance.” TEX.
HEALTH & SAFETY CODE § 481.112(a). “Deliver” means “to transfer, actually or
constructively, to another a controlled substance.” TEX. HEALTH & SAFETY CODE
§ 481.002(8). The culpable mental state is therefore knowledge that one is possessing
a controlled substance with intent to transfer it; knowing the identity of the person to whom
it will be transferred is not an element.
The Court of Criminal Appeals’ decision in Celis v. State illustrates the principle.
There, the defendant was charged with falsely holding himself out as a lawyer under
Texas Penal Code § 38.122. 416 S.W.3d at 421–22. The statute prohibits a person from
holding himself out as a lawyer, with intent to obtain an economic benefit, if he was not
licensed or in good standing with the State Bar of Texas or a foreign licensing authority.
Celis requested a mistake-of-fact instruction, claiming he reasonably believed he was
4 licensed in Mexico and therefore in good standing with a foreign authority. The trial court
denied the instruction. Id.
The Court of Criminal Appeals upheld the conviction. It held that the statute
prescribed a mental state only as to the intent-to-obtain-an-economic-benefit element, not
as to whether the defendant was licensed or in good standing. Id. at 424. Because no
culpable mental state attached to the “good standing” element, Celis’s mistake about his
licensing status could not negate a mental state the statute did not require. Id.
The same result is compelled here. Appellant’s claimed mistake does not negate
that he “knowingly . . . possesse[d] with intent to deliver a controlled substance.” TEX.
HEALTH & SAFETY CODE § 481.112(a). By his own account, he knew the substance was
methamphetamine and intended to transfer it to someone. In addition, the jury heard
evidence suggesting other badges of an intent to deliver: 117 grams of
methamphetamine, the presence of Appellant’s digital scale at the scene, as well as
numerous unused baggies.
Even if Appellant actually was a confidential informant, Texas law provides no
immunity for possessing controlled substances with intent to deliver. Section
481.062(a)(4) exempts peace officers acting in official law enforcement duties from the
law’s prohibitions. It does not exempt confidential informants, who remain private
citizens.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00335-CR
MAXIMIANO GONZALEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2022-CR-1541, Honorable Douglas H. Freitag, Presiding
May 26, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
A jury found Appellant, Maximiano Gonzalez, guilty of possession of
methamphetamine with intent to deliver in an amount of four grams or more but less than
200 grams.1 He pleaded true to an enhancement allegation, and the jury assessed
punishment at thirty-five years of confinement. In two issues, he contends the trial court
1 TEX. HEALTH & SAFETY CODE § 481.112. abused its discretion by refusing his requested mistake-of-fact jury instruction and by
denying his motion for mistrial during punishment deliberations. We affirm.
BACKGROUND
In June 2022, Officer Justin Criner with the Lubbock Police Department entered a
commercial location to assist a landlord with an eviction. Upon entering, he found
Appellant asleep on a couch. He also noticed drug paraphernalia and packets of
methamphetamine on a nearby table. After detaining Appellant, Officer Criner used
Appellant’s digital scale to weigh the methamphetamine, confirming approximately 117
grams.
Appellant told Officer Criner that he worked for “TW” as a confidential informant.
Officer Criner recognized “TW” as the street name for Captain Tony Williams of the
Lubbock Police Department’s narcotics unit.
Officer Criner called Captain Williams, who said Appellant was not a confidential
informant and directed Officer Criner to arrest him. Appellant attempted to persuade
Criner not to arrest him, claiming he was trying to work off a case. Criner, an experienced
narcotics officer, testified that Appellant’s behavior was inconsistent with that of a
legitimate confidential informant and told Appellant he was doing “exactly the opposite”
of what a contracted CI would do.
Appellant was indicted for possession of methamphetamine with intent to deliver.
At trial, he did not contest possession of the methamphetamine. In opening statement,
defense counsel told the jury that Appellant was guilty of the lesser-included offense of
simple possession but lacked intent to deliver because he believed he was acting as a 2 confidential informant. At the close of the guilt-innocence phase, Appellant requested a
mistake-of-fact instruction. The trial court denied the request. The jury found Appellant
guilty as charged.
During punishment deliberations, the jury sent three notes. The first requested
copies of prior judgments and convictions admitted into evidence. The second asked,
“How long was his previous sentence? His time served.” The third asked, “Was his full
eight years served?” After the third note, Appellant moved for a mistrial, which the trial
court denied. The jury returned a sentence of thirty-five years of confinement.
ANALYSIS
Jury Charge Instruction
In his first issue, Appellant argues that the trial court erred by denying his request
for a mistake-of-fact jury instruction. We conclude the trial court did not abuse its
discretion because the alleged mistake, even if true, would not negate the culpable mental
state required for the offense.
We review a trial court’s decision to deny a requested jury instruction for an abuse
of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). Section
8.02 of the Texas Penal Code provides that it is a defense to prosecution that the actor,
through mistake, formed a reasonable belief about a matter of fact if his mistaken belief
negated the kind of culpability required for commission of the offense. TEX. PENAL CODE
§ 8.02(a). A defendant is entitled to a mistake-of-fact instruction if there is some evidence
that, through mistake, he formed a reasonable belief about a matter of fact and that
mistaken belief negated the intent or knowledge required for conviction. Celis v. State, 3 416 S.W.3d 419, 430 (Tex. Crim. App. 2013); Granger v. State, 3 S.W.3d 36, 38 (Tex.
Crim. App. 1999).
Appellant’s claimed mistake was that he believed he was a confidential informant
working for Captain Williams. His theory is that this belief negated his intent to deliver
because he thought he was gathering drugs for law enforcement, not distributing them.
We disagree that this involves a relevant mistake-of-fact under Penal Code § 8.02(a).
Critically, the mistake-of-fact defense “applies only with respect to elements that
require proof of a culpable mental state.” Celis, 416 S.W.3d at 430; TEX. PENAL CODE
§ 8.02(a). Possession with intent to deliver a controlled substance requires proof that the
defendant “knowingly . . . possesses with intent to deliver a controlled substance.” TEX.
HEALTH & SAFETY CODE § 481.112(a). “Deliver” means “to transfer, actually or
constructively, to another a controlled substance.” TEX. HEALTH & SAFETY CODE
§ 481.002(8). The culpable mental state is therefore knowledge that one is possessing
a controlled substance with intent to transfer it; knowing the identity of the person to whom
it will be transferred is not an element.
The Court of Criminal Appeals’ decision in Celis v. State illustrates the principle.
There, the defendant was charged with falsely holding himself out as a lawyer under
Texas Penal Code § 38.122. 416 S.W.3d at 421–22. The statute prohibits a person from
holding himself out as a lawyer, with intent to obtain an economic benefit, if he was not
licensed or in good standing with the State Bar of Texas or a foreign licensing authority.
Celis requested a mistake-of-fact instruction, claiming he reasonably believed he was
4 licensed in Mexico and therefore in good standing with a foreign authority. The trial court
denied the instruction. Id.
The Court of Criminal Appeals upheld the conviction. It held that the statute
prescribed a mental state only as to the intent-to-obtain-an-economic-benefit element, not
as to whether the defendant was licensed or in good standing. Id. at 424. Because no
culpable mental state attached to the “good standing” element, Celis’s mistake about his
licensing status could not negate a mental state the statute did not require. Id.
The same result is compelled here. Appellant’s claimed mistake does not negate
that he “knowingly . . . possesse[d] with intent to deliver a controlled substance.” TEX.
HEALTH & SAFETY CODE § 481.112(a). By his own account, he knew the substance was
methamphetamine and intended to transfer it to someone. In addition, the jury heard
evidence suggesting other badges of an intent to deliver: 117 grams of
methamphetamine, the presence of Appellant’s digital scale at the scene, as well as
numerous unused baggies.
Even if Appellant actually was a confidential informant, Texas law provides no
immunity for possessing controlled substances with intent to deliver. Section
481.062(a)(4) exempts peace officers acting in official law enforcement duties from the
law’s prohibitions. It does not exempt confidential informants, who remain private
citizens. Any immunity a confidential informant enjoys flows from prosecutorial discretion,
not from statute.
5 Because Appellant’s claimed mistake would not negate the culpable mental state
required for the offense, he was not entitled to a mistake-of-fact instruction. The trial court
did not abuse its discretion in denying the request.
We overrule Appellant’s first issue.
Mistrial
In his second issue, Appellant contends the trial court abused its discretion by
denying his motion for mistrial after the jury sent notes inquiring about his prior time
served. We disagree.
We review a trial court’s denial of a motion for mistrial for an abuse of discretion.
Lewis v. State, No. 07-07-00425-CR, 2008 Tex. App. LEXIS 1540, at *3 (Tex. App.—
Amarillo Feb. 28, 2008, no pet.). “A mistrial is a device used to halt trial proceedings
when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.” Hallman v. State, 721 S.W.3d 307, 313 (Tex. Crim. App. 2025)
(quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Only in extreme
circumstances — “where the prejudice is incurable” — will a mistrial become necessary.
Hallman, 721 S.W.3d at 313; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
We presume the jury follows the trial court’s instructions, including the instruction
not to consider parole or good-conduct time. Lewis, No. 07-07-00425-CR, 2008 Tex.
App. LEXIS at *4; Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).
Although the jury’s notes asked about the length of Appellant’s prior sentence and time
served, a jury note alone is insufficient to rebut the presumption that the jury followed the
court’s instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.1998) 6 (holding that “[e]ven if the note constitutes evidence the jury discussed parole at a
preliminary point, we presume they followed the court’s instructions and thereafter did not
consider it in reaching their verdict”); Graham v. State, 96 S.W.3d 658, 661 (Tex. App.—
Texarkana 2003, pet. ref’d) (holding a question in a jury note alone is insufficient to rebut
the presumption that jurors followed the instruction to not consider parole in its
deliberations).
Appellant presented no evidence that the jury actually considered parole in
reaching its verdict or that it was confused by the charge. Under these circumstances,
the trial court did not abuse its discretion in denying the motion for mistrial. Issue Two is
overruled.
CONCLUSION
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
Lawrence M. Doss Justice
Do not publish.