Opinion issued July 28, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00569-CR ——————————— VICTOR MANUEL ALAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1467825
MEMORANDUM OPINION
Victor Alas, a minor, was convicted of capital murder and sentenced to life in
prison without the possibility of parole for his role in the death of a teenage girl. In
four issues, he contends that the trial court erred by (1) impermissibly denying him
the possibility of parole, (2) denying his Rule 403 evidentiary motion, (3) denying his motion for mistrial, and (4) refusing to include in the court’s charge a requested
“voluntariness” instruction, in addition to the voluntariness instructions already
included.
We affirm the conviction, but we reform the judgment to delete the phrase
“without parole.” As reformed, the trial court’s judgment is affirmed.1
Background
Alas, a couple of his male friends, and Cathy Cuellar2—all teenagers—
became acquainted with a middle-aged woman who lived in a nearby apartment.
That woman began to allow the teenagers to use her apartment to drink and smoke
marijuana. One night,3 the teenagers took Xanax before meeting at the apartment.
Although Cuellar, age 15, had experience with alcohol and marijuana, this was the
first time she had used Xanax. After a couple of hours in the apartment, Cuellar
became very intoxicated. She was slurring her words and stumbling, and she needed
assistance to walk. The apartment owner agreed that Cuellar could spend the night.
1 TEX. R. APP. P. 43.2 (permitting intermediate appellate courts to modify trial court’s judgment and affirm it as modified). 2 The complainant is referred to by a pseudonym. 3 These events occurred after 10:00 p.m. on a school night. While the others were scheduled to return to school the next day, Alas had a court date on a burglary charge and had told his friends that he thought he would be confined to jail following his court appearance.
2 When Cuellar went to the bedroom, Alas, age 16, went with her. According
to Alas, they began a consensual physical encounter in the bedroom. They were
interrupted when their friend, Jose Reyes, age 17, knocked on the bedroom door.
The owner did not like that the boys were in her bedroom and told them to leave the
apartment. Instead of spending the night at the apartment as planned, Cuellar left
with Alas and Reyes.
The three went to a vacant apartment approximately one block away that the
teenagers frequently visited to take drugs. There, all three went into an empty closet
and, according to Alas, had consensual sex.4
However the encounter began, it quickly turned into a brutal, physical attack
on Cuellar. She was struck in the head 15 times with an ashtray and a toilet tank lid,
causing the shape of her head and facial features to be distorted. She was stabbed
over 60 times with a screwdriver. Her eyes were gouged, and a metal hook was
lodged in her eye socket. She was beaten with plastic rods from the apartment’s
vertical blinds. Then she was impaled, anally, with two of those rods, which severely
damaged her intestines and liver. Finally, an inverted cross was carved into her
abdomen, with a t-shirt covering a portion of that injury and a bra attached over the
t-shirt. There was evidence that most of these injuries, including the impalement,
4 Photographs of the sexual encounter were downloaded from Reyes’s phone and admitted into evidence. 3 occurred while Cuellar was still alive, though some, such as the “cross” carving,
were after she had died. Cuellar’s body was discovered a few days later.
The police quickly received a lead that Reyes and Alas were involved. Reyes
was arrested first. Then, Alas was arrested, mid-day, at the alternative school he
attended. He was taken to a magistrate for warnings. Afterwards, he was taken to be
interviewed in the Homicide Division, where he gave a statement.
Alas told the police that he participated in consensual sex with Cuellar and
Reyes in the empty apartment closet but denied that he played any role in the attack
other than briefly choking Cuellar with a belt. He said he put the belt around her
neck but eventually removed it, leaving her gasping for air. He told the police that
he did not cause any of her physical injuries and was not physically involved in
causing her death. He blamed Reyes for her injuries and death.
According to Alas, when Reyes began attacking Cuellar, he became scared
and went to the kitchen area of the apartment. Although Alas denied any
involvement in Cuellar’s severe injuries, he gave the police specific details about her
injuries that they had not yet discovered. For example, Alas revealed in his statement
that Cuellar had been choked with a belt and that the objects that were used to impale
her were plastic rods from the vertical blinds in the apartment. At the time, the police
knew neither.
4 During the interview, Alas told the officers that he discarded the screwdriver
in some bushes at a nearby church. Two police officers immediately drove to the
church and located the screwdriver where he had indicated.
At the capital murder trial, a forensic DNA analyst with the Houston Forensic
Science Center testified that Alas could not be excluded as a source of the DNA
found on the screwdriver and inside Cuellar. A medical examiner testified about
Cuellar’s injuries and cause of death. She described multiple, severe injuries and
informed the jury that most of those injuries occurred before Cuellar’s death,
including the gouging of her eyes and the impalement. She testified that Cuellar
eventually died from “multiple blunt and sharp force injuries.” Homicide Detective
M. Condon testified that “it appeared . . . that it had to be more than one person”
involved in Cuellar’s death, given the condition of her body and the “very violent”
nature of her death. In his opinion, “it took more than one person to commit this
murder.”
Alas testified as well. He admitted using alcohol, marijuana, and Xanax that
night. He said that the sexual encounter was consensual. According to Alas, Reyes
had been taking pictures when he became distracted by other items on his phone.
Reyes began asking Alas some questions, and then, unexpectedly, struck Cuellar in
the head with an ashtray. Alas testified that he became shocked and scared. He told
5 Reyes he was going to leave, but Reyes made a statement that he interpreted as a
threat. Instead of leaving, he went into the separate kitchen area of the apartment.
Alas testified that, from his hiding place in the kitchen, he heard some muted
noises followed by a loud “glass breaking” sound. At that point, he returned to the
living room, where Reyes was hitting Cuellar in the head with a toilet tank lid. He
then saw the blood and the protruding rods. He yelled for Reyes to leave her alone
and for them to leave. Reyes handed him a screwdriver, ashtray, and belt; Alas
discarded the three items as they were leaving the apartment. Alas testified that he
did not know whether Cuellar was still alive when he and Reyes left the apartment.
Alas testified that he did not participate in any of Cuellar’s injuries and denied
that he retaliated against her so she would not report the initial assault to the police.
He also recanted his earlier statement to police that he choked her with a belt. He
claimed he said something to the police that was untrue because he was scared and
thought that was what they wanted to hear.
The jury convicted Alas of capital murder. The trial court announced the
automatic sentence of life imprisonment. See TEX. PENAL CODE ANN. § 12.31(a)(1);
Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App. 2014). The written judgment
of conviction gave a different sentence: life without parole. Alas appealed.
6 Availability of Parole for a Juvenile Convicted of Capital Murder
In his first issue, Alas argues that his sentence of life imprisonment without
the possibility of parole violates Texas law. He argues that, because he was a juvenile
at the time of the offense, Section 12.31(a)(1) of the Texas Penal Code requires that
his life sentence include the possibility of parole. We agree.
Section 12.31 specifies the punishment for an individual convicted of capital
murder when the State is not seeking the death penalty. See TEX. PENAL CODE ANN.
§ 12.31(a). The mandatory punishment is “life without parole, if the individual
committed the offense when 18 years of age or older.” Id. § 12.31(a)(2). It is “life,
if the individual committed the offense when younger than 18 years of age.” Id.
§ 12.31(a)(1); Lewis, 428 S.W.3d at 863 (“Life imprisonment, with the possibility
of parole, is the mandatory sentence for defendants convicted of capital murder for
crimes they committed as juveniles.”).
Alas was 16 years of age at the time of the offense.5 After the jury found him
guilty of capital murder, the trial court immediately pronounced punishment as
“confinement in the Texas Department of Criminal Justice Institutional Division for
life,” consistent with Section 12.31(a)(1). But, contrary to the requirements of
5 Alas’s case was not resolved in the juvenile court system because that court waived jurisdiction and ordered transfer to the criminal district court. See TEX. FAM. CODE ANN. § 54.02 (waiver of jurisdiction and discretionary transfer to criminal court). 7 Section 12.31(a)(1), the trial court’s written judgment reflects that Alas was
sentenced to life imprisonment without the possibility of parole.
In its brief, the State “concurs that the judgment should be reformed to correct
the clerical error and reflect that appellant is subject to review for parole.” See TEX.
R. APP. P. 43.2 (permitting court of appeals to modify trial court’s judgment and
affirm it as modified); Lewis v. State, 402 S.W.3d 852, 867 (Tex. App.—Amarillo
2013) (reforming judgment on capital murder conviction of juvenile from “life
without parole” to “life”), aff’d, 428 S.W.3d 860 (Tex. Crim. App. 2014) (focusing
on related issue of whether sentence of minor to life imprisonment without
individualized sentencing hearing is cruel and unusual punishment).
Because the written judgment imposes a sentence on Alas that goes beyond
what is allowed by statute, as the State concedes, we sustain Alas’s first issue.
Article 38.23 “Voluntariness” Instruction
In his third issue, Alas argues that the trial court erred by refusing to include
in its charge an Article 38.23 jury instruction. When included in a court’s charge, an
Article 38.23 jury instruction requires the jury to resolve a disputed issue of material
fact that is essential to the determination of whether evidence was obtained illegally
from the defendant. TEX. CODE CRIM. PROC. ANN. art. 38.23. If the jury determines
the issue in the defendant’s favor, it is instructed to disregard the challenged
evidence, which, here, would be Alas’s statements to the police. See id.
8 Drawing a distinction between two available methods of challenging the
State’s reliance on his police-interview statement, we note that Alas is not
challenging the admissibility of his statement to police; instead, he is challenging
the refusal of a jury-charge instruction that would have told the jury to disregard his
statement if it resolved a disputed, material factual issue in his favor.
A. Applicable law
In analyzing a jury-charge issue, we first determine whether error exists. See
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984); Tottenham v. State,
285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Only if we
find error, do we consider harm. See Tottenham, 285 S.W.3d at 30. To determine
whether error occurred in the denial of Alas’s request for an Article 38.23
instruction, given that an Article 38.22 instruction was included, we consider the
various jury instructions on “voluntariness,” the proper circumstances for each
instruction, and the requirements for a request under Article 38.23.
Article 38.21 of the Texas Code of Criminal Procedure provides that a
defendant’s statement may be used against him “if it appears that the same was freely
and voluntarily made without compulsion or persuasion.” TEX. CODE CRIM. PROC.
ANN. art. 38.21; Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). To
decide whether a statement was voluntary, we consider the totality of the
circumstances that surround its making. Delao, 235 S.W.3d at 239.
9 Under Texas statutory law, there are three types of jury instructions that relate
to the voluntariness of a defendant’s statement: (1) a “general” voluntariness
instruction from Section 6 of Article 38.22; (2) a “general” warnings instruction
from Section 7 of Article 38.22; and (3) a “specific” exclusionary-rule instruction
from Article 38.23. Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App.
2008). When the evidence raises a voluntariness issue, “the defendant should request
a jury instruction that relates to his theory of involuntariness.” Id. at 174.
The Article 38.22 Section 6 “general” voluntariness instruction states that
“unless the jury believes beyond a reasonable doubt that the statement was
voluntarily made, the jury shall not consider such statement for any purpose nor any
evidence obtained as a result thereof.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6;
Oursbourn, 259 S.W.3d at 174.6
The Article 38.22 Section 7 “general” instruction focuses on whether the
defendant who made a custodial statement was adequately warned of his rights and
knowingly and intelligently waived them so that his statement is voluntary. TEX.
CODE CRIM. PROC. ANN. art. 38.22, § 7; see id. § 2. Under Section 7, if a defendant
6 The sequence of events that “seems to be contemplated by Section 6,” according to the Court of Criminal Appeals, begins with the issue being raised whether the defendant voluntarily made the statement, the judge holding a hearing and deciding that the statement was voluntary, the defendant offering evidence to suggest that it was not voluntary, and the trial court then instructing the jury, generally, on voluntariness. Oursbourn v. State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008). 10 makes a statement as a result of a custodial interrogation and the evidence raises an
issue regarding the adequacy of the warnings he received, the defendant is entitled
to have the jury decide whether he was adequately warned and whether he knowingly
and intelligently waived them. Oursbourn, 259 S.W.3d at 176.
When incorporated into a jury charge, an Article 38.22 instruction can protect
a criminal defendant both from police overreaching that leads to an involuntary
statement and from any effects on the defendant’s mental state that might cause his
statement to be involuntary, such as being ill and on medication, lacking mental
capacity to understand his rights, or being too intoxicated to understand that he is
signing a confession. See id. at 172–73 (stating that Article 38.22 general
voluntariness instruction protects “people from themselves because the focus is upon
whether the defendant voluntarily made the statement. Period.”). Alas received two
Article 38.22 general instructions. He did not, however, receive the Article 38.23
instruction he requested.
The “specific” Article 38.23 instruction has a different focus from the
“general” Article 38.22 instructions. It is a fact-based instruction that is narrowly
focused on the specific tactic used to obtain a statement and whether that tactic was
illegal, thereby destroying the statement’s voluntariness. Id. at 178; Mbugua v. State,
312 S.W.3d 657, 668–69 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Article
38.23 provides as follows:
11 No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. If any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (emphasis added). Article 38.23 is
commonly referred to as a “specific exclusionary rule.” See, e.g., Oursbourn, 259
S.W.3d at 178 (“Normally, ‘specific’ exclusionary-rule instructions concerning the
making of a confession are warranted only where an officer uses inherently coercive
practices” to “wring a confession out of a suspect against his will” and “there is a
disputed fact issue” about the coercion).
To be entitled to an Article 38.23 jury instruction, the defendant must establish
that (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that
fact is affirmatively contested (not merely the subject of cross-examination), and
(3) the contested factual issue is “material to the lawfulness of the challenged
conduct in obtaining the statement claimed to be involuntary.” Id. at 177; see Hamal
v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); Madden v. State, 242 S.W.3d
504, 510–12 (Tex. Crim. App. 2007) (“The disputed fact must be an essential one in
deciding the lawfulness of the challenged conduct.”)
12 The Court of Criminal Appeals has provided an example of what an Article
38.23 “fact-specific, exclusionary-rule instruction might look like”:
If you find from the evidence that Officer Obie held a gun to the defendant’s head in an effort to make the defendant give him a statement, or if you have a reasonable doubt thereof, you will disregard the defendant’s videotaped statement and not use it for any purpose whatsoever during your deliberations. However, if you find from the evidence, beyond a reasonable doubt, that Officer Obie did not hold a gun to the defendant’s head in an effort to make the defendant give him a statement, then you may consider the defendant’s videotaped statement during your deliberations.
Oursbourn, 259 S.W.3d at 177 n.69.
Thus, when an Article 38.23 instruction is given, the jury is tasked with
resolving “specific historical,” disputed facts. Mbugua, 312 S.W.3d at 669. If there
is not a material factual dispute about the police’s conduct, then the legality of that
conduct is determined by the trial judge as a question of law and an Article 38.23
instruction would be inappropriate. Oursbourn, 259 S.W.3d at 177–78; Madden, 242
S.W.3d at 510–11.
B. Trial court did not err by refusing the Article 38.23 instruction
Alas requested that the trial court include in its charge an instruction on
voluntariness under Article 38.23. The instruction Alas requested is as follows:
[I]f you believe or have a reasonable doubt thereof that the defendant’s statement to HPD detectives was not voluntarily obtained in violation of the provisions of the constitution or laws of the State of Texas, or the Constitution[ ] [or] laws of the United States of America, then in such event, you will wholly disregard such evidence and not consider it as any evidence whatsoever.
13 When he requested the instruction, Alas did not identify a factual dispute the jury
would need to resolve to determine if the officers violated a constitutional provision
or other law. His request was denied.
Even without that instruction, the jury charge did include an Article 38.22
Section 6 general instruction on voluntariness. It advised that an “oral statement of
an accused may be used in evidence against him if it appears that the same was freely
and voluntarily made without compulsion or persuasion.” The charge also included
an Article 38.22 Section 7 general instruction regarding whether Alas was properly
warned and whether he “knowingly, intelligently and voluntarily waived the rights”
set out in those warnings.
Alas now asserts that the material factual dispute that required an additional
Article 38.23 specific voluntariness instruction was whether he was “scared” while
giving his police statement. According to Alas, one of the officers leaned toward
him only a few inches away from his face, and he felt pressured during the almost
hour-long interview. He argues that the issue of whether he was scared was disputed
because he testified he was scared but one of the officers who was in the interview
room at the time testified that Alas did not appear scared while giving his statement.
Alas further argues that being “scared” is relevant to the voluntariness of his
statement because of his youthfulness, his low level of literacy, and the tactics used
by the police during the interview and statement.
14 The State responds that Alas failed to identify a material fact in dispute when
he requested the instruction. The State also asserts that Alas’s argument is better
viewed as raising a general voluntariness issue, which was addressed through the
Article 38.22 instructions the court included in its charge. In other words, the
voluntariness issue Alas is raising fits within Article 38.22 and, because the trial
court gave Article 38.22 instructions to the jury, there is no error or harm.
We agree that Alas’s requested jury instruction failed to identify a specific
disputed historical fact that was material to whether the police’s conduct in obtaining
his statement was legal. Accordingly, we conclude that the trial court did not err by
denying his requested instruction. Because we have concluded that the trial court did
not err, we do not reach the issue of harm.
We overrule Alas’s third issue.
Rule 403 Challenge to Crime-Scene Photographs
In his second issue, Alas argues that the trial court erred by denying his Rule
403 objection to five crime-scene photographs. The five photographs he challenges
are Exhibits 18, 19, 23, 24, and 41.
When Alas objected to these photographs, he argued that the probative value
of the evidence was substantially outweighed by the danger of unfair prejudice,
particularly given “the nature of this case with a confession.” The State responded
to Alas’s objection with two points: first, each photograph “shows something
15 separate and apart from the other” photographs, meaning that the photographs were
taken at different angles and revealed different, relevant information; and, second,
Exhibits 19, 24, and 41 would only be shown to the jury as a “glossy” and not on
“the big screen,” given the gruesomeness of the images. The trial court overruled
Alas’s objection and admitted all five photographs into evidence.
A. Standard of review
We review a trial court’s ruling on a Rule 403 objection for an abuse of
discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial
court abuses its discretion only if its decision is “so clearly wrong as to lie outside
the zone within which reasonable people might disagree.” Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008). Thus, we give “substantial discretion” to
a trial court to weigh the probative value of the challenged evidence against the
danger of unfair prejudice. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.
2005); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
B. Rules 401, 402, and 403
“[T]he rules of evidence are inclusionary rather than exclusionary with a
presumption that relevant evidence is admissible . . . .” Erazo v. State, 144 S.W.3d
487, 499 (Tex. Crim. App. 2004). Evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence” and “the
fact is of consequence in determining the action.” TEX. R. EVID. 401. “Relevant
16 evidence is admissible” unless provided otherwise by rule, statute, or other law. TEX.
R. EVID. 402.
Although relevant, evidence may be excluded “if its probative value is
substantially outweighed by the danger of . . . unfair prejudice, confusion of the
issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403; see Shuffield v. State, 189 S.W.3d 782, 787 (Tex.
Crim. App. 2006) (“Rule 403 favors the admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial.”).
Unfair prejudice does not mean simply having an adverse or detrimental effect
on a defendant’s case. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).
“Virtually all evidence that a party offers will be prejudicial to the opponent’s case,
or the party would not offer it.” Id. Instead, “unfair prejudice” refers to “an undue
tendency to suggest a decision on an improper basis, commonly an emotional one.”
Id.
The factors a trial court considers in a Rule 403 analysis include: “(1) the
inherent probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the evidence to
suggest decision on an improper basis, (4) any tendency of the evidence to confuse
or distract the jury from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the probative force of
17 the evidence, and (6) the likelihood that presentation of the evidence will consume
an inordinate amount of time or merely repeat evidence already admitted.”
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
For photographic evidence, in particular, the balancing of probativeness
against the danger of unfair prejudice should consider “the number of photographs,
the size of the photograph, whether it is in color or black and white, the detail shown
in the photograph, whether the photograph is gruesome, whether the body is naked
or clothed, and whether the body has been altered since the crime in some way that
might enhance the gruesomeness of the photograph to the appellant’s detriment.”
Shuffield, 189 S.W.3d at 787.
C. Trial court did not err by admitting the photographs
Alas challenges five photographs, all of which are in color and show the
complainant’s partially exposed body and her multiple injuries. Alas describes the
photographs as “gruesome” and singles out three of them (Exhibits 19, 23, and 24)
as “particularly gruesome.”
Exhibit 18 is a color photograph of Cuellar’s body lying on the floor with arms
and legs extended. She is clothed only on her upper body. Her face is visibly
bloodied, and there are pieces of the white porcelain tank lid broken around her. The
photograph is taken from a distance; the resolution of the image appears low.
18 Exhibit 19 is a color photograph taken from the opposite vantage point. In this
photograph, it can be discerned that Cuellar’s bra is fastened over her shirt. Also
visible in this photograph are the two rods protruding from her body between her
legs.
Exhibit 23 is a color photograph taken from the same angle as Exhibit 19. In
this photograph, individual pieces of evidence are marked with numbered yellow
markers.
Exhibit 24 is a color photograph that provides a closer image of Cuellar’s face.
The facial structure is visibly damaged, particularly around the eyes, although the
precise injuries are unclear due to the blood coverage.
Exhibit 41 is a color photograph taken from the right side of Cuellar’s body.
The image is centered on a large piece of porcelain that has a bloodied, sharp corner.
Also visible from this angle are the lacerations on her torso in the shape of an
inverted cross.
Officer A. Barr, a crime scene investigator, testified that the photographs
accurately depicted the crime scene as he found it. There is no evidence that the body
had been altered or moved before the photos were taken. Nor is there any allegation
of tampering, enhancement, or an attempt by the State to inflame, confuse, or
mislead the jury with its method of presentation. See Sonnier v. State, 913 S.W.2d
511, 519 (Tex. Crim. App. 1995) (indicating that lack of such assertion supported
19 conclusion that trial court did not err by admitting gruesome photographic evidence
over Rule 403 objection). Further, all photographs were taken at different angles and
provided relevant evidence regarding the crime, the physical evidence surrounding
Cuellar’s body, and her injuries. See Shuffield, 189 S.W.3d at 787 (stating that
photographs were relevant and admissible because they “showed the location of the
body at the crime scene and the wounds that caused the victim’s death,” and further,
that relevance of photographs is not necessarily reduced when jury hears testimony
regarding injuries depicted in photographs).
While the photographs could accurately be described as “gruesome,” “they
are no more gruesome than the crime scene itself as it was found by the police” or
“than would be expected” given the severity of Cuellar’s injuries. Id. at 787, 788;
Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.—Dallas 1994, no pet.) (“The fact
that the scene depicted in the photograph is gory and gruesome does not make the
photograph more prejudicial than probative when the crime scene is gory and
gruesome.”).
Further, the photographs were not “so horrifying or appalling that a juror of
normal sensitivity would necessarily encounter difficulty rationally deciding the
critical issues of [the] case after viewing them.” Narvaiz v. State, 840 S.W.2d 415,
429 (Tex. Crim. App. 1992) (quoting Fuller v. State, 829 S.W.2d 191, 206 (Tex.
Crim. App. 1992)). The images were captured from a distance and did not offer a
20 detailed view of any single injury. Cf. Reyes v. State, No. 14-14-01002-CR, 2016
WL 1043341, at *11–12 (Tex. App.—Houston [14th Dist.] Mar. 15, 2016, no pet.
h.) (analyzing same crime-scene photographs in Jose Reyes’s appeal of his capital
murder conviction for Cuellar’s death and concluding that trial court did not err by
denying Reyes’s Rule 403 objection).
Because these photographs were probative of the crime scene and injuries, the
more detailed ones were not shown on the large display screen but, instead,
published only in a small format, and the gruesomeness of the evidence was no more
gruesome that the crime itself—or than the mental image formed when the oral
description of Cuellar’s extensive injuries was given—we conclude that the trial
court did not abuse its discretion by concluding that the relevant evidence was more
probative than prejudicial or by admitting these photographs into evidence. See
Sonnier, 913 S.W.2d at 519 (“[W]hen the power of the visible evidence emanates
from nothing more than what the defendant has himself done we cannot hold that
the trial court has abused its discretion merely because it admitted the evidence.”).
We overrule Alas’s second issue.
Mistrial
In his fourth and final issue, Alas argues that the trial court erred by denying
his motion for a mistrial.
21 A. Statement that prompted the motion
Homicide Detective Condon testified about the three-month investigation that
uncovered the evidence admitted at trial. His testimony included a discussion of
online communications between Alas and Reyes, as well as online comments made
by their teenage friends.
The police determined that this group of teenagers frequently communicated
through Facebook. Condon explained that he would identify individual teenagers
who might have knowledge relevant to the investigation and then attempt to gain
access to the teenagers’ Facebook pages and posts. As Detective Condon was
describing this process, he informed the jury that Officer Vinto helped him obtain
search warrants and review Facebook posts. He volunteered that Officer Vinto
“works in the Gang Unit and they had classified this murder as a gang murder.”
Alas immediately objected to the statement, and the objection was sustained.
Alas asked that the jury be instructed to disregard the statement, and the court gave
that instruction. Alas then moved for a mistrial, which was denied. The testimony
immediately returned to the Facebook search warrants and the evidence obtained
through that process.
B. Applicable law and standard of review
When a trial court instructs the jury to disregard an improper statement but
denies a motion for mistrial based on the statement, we review the denial for an
22 abuse of discretion. Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim. App.
2011); Williams v. State, 417 S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d). We must uphold the trial court’s ruling to deny the motion for
mistrial if it was within the zone of reasonable disagreement. Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007).
A mistrial is a remedy for “extreme circumstances” when the prejudice is
“incurable.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Williams,
417 S.W.3d at 175. “Generally, a mistrial is only required when the improper
evidence is ‘clearly calculated to inflame the minds of the jury and is of such a
character as to suggest the impossibility of withdrawing the impression produced on
the minds of the jury.’” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999)
(quoting White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. 1969)); Williams,
417 S.W.3d at 175. “In most instances, an instruction to disregard the remarks will
cure the error.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Indeed, “the jury is presumed to follow the trial court’s motion to disregard
improperly admitted evidence.” Hinojosa, 4 S.W.3d at 253.
C. Trial court did not err by denying motion
The challenged portion of Detective Condon’s testimony did not focus on the
“gang” designation placed on the murder; instead, it focused on the role that the
officer played in obtaining evidence of Facebook communications between these
23 teenagers, including deleted comments that had to be recovered forensically. When
Detective Condon volunteered the “gang” remark, the trial court quickly instructed
the jury to disregard it. Cordon did not make any additional statements indicating
that the crime was gang related.7 The State did not revisit the point.
Under these circumstances, we conclude that the court’s instruction to
disregard cured the prejudicial effect of the detective’s statement, and the trial court
did not abuse its discretion by denying the motion for mistrial.
Conclusion
We reform the judgment to delete the phrase “without parole.” As reformed,
we affirm the trial court’s judgment.
Harvey Brown Justice
Panel consists of Justices Keyes, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
7 To the contrary, Detective Condon testified that criminal suspects typically fall into three types: (1) hard-core criminals and “gang members” who will not talk to police, (2) those who will talk to police but will try to cover up their crimes, and (3) those who are eager to confess. He testified that Alas fell into the second category, meaning that he did not present like a “gang member.” 24