In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00165-CR

MARTIN RAY MALONE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court

Hunt County, Texas

Trial Court No. 31795

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Stevens
2

MEMORANDUM OPINION

Martin Ray Malone was convicted by a Hunt County jury of the murder1 of his sister, 

Jayme Lopez, and was assessed a sentence of ninety-nine years’ imprisonment and a $10,000.00 

fine. On appeal, Malone contends that the trial court erred (1) by denying his motion for mistrial 

and (2) by failing to make an allocution inquiry before pronouncing his sentence. Because we find 

that Malone has not preserved these complaints, we affirm the trial court’s judgment.

I. Preservation of Error

Generally, to preserve a complaint for our review, a party must first present to the trial 

court a timely request, objection, or motion stating the specific grounds for the desired ruling if 

not apparent from the context. TEX. R. APP. P. 33.1(a)(1). And the trial court must have ruled on 

the request, objection, or motion, either expressly or implicitly, or the complaining party must have 

objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). 

II. Malone’s Complaint Regarding the Denial of His Motion for Mistrial Was Not 

Preserved

In his first point of error, Malone complains that the trial court erred in denying his motion 

for mistrial based on the admission of State’s Exhibit 82 (Exhibit 82). For a party to complain 

about the trial court’s denial of his motion for mistrial, the preferred procedure to present the 

complaint and preserve error at trial “is to (1) object in a timely manner, (2) request an instruction 

to disregard, and (3) move for mistrial if the instruction to disregard seems insufficient” to cure 

the prejudice. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). A party may request 

 1

See TEX. PENAL CODE ANN. § 19.02(b)(1).
3

a mistrial after skipping the first two steps, but error is only preserved for appeal if an “instruction 

to disregard would not have cured . . . the harm flowing from the error.” Unkart v. State, 400 

S.W.3d 94, 99 (Tex. Crim. App. 2013). “A request for an instruction to disregard is essential to 

the preservation of error only when such an instruction could have had the effect desired by the 

requesting party.” Cruz, 225 S.W.3d at 548. The failure to “request a curative instruction before 

moving for mistrial . . . forfeit[s] appellate relief for an error that could have been cured by such 

an instruction.” Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012).

Here, State’s Exhibit 82 was admitted without objection during the testimony of Ryan 

Yvon, a deputy with the Van Zandt County Sheriff’s Office. Exhibit 82 was identified as a 

recording of an investigation of an alleged assault involving Malone and Lopez about two years 

before Lopez’ death.2

 After its admission into evidence, Exhibit 82 was played for the jury, again 

with no objection. Near the end of the recording, Lopez stated that “he shoved her down” and 

said, “I said just don’t touch her, just don’t hurt her, I’ll go.”3 

After Exhibit 82 was played for the jury, the State continued its examination of Yvon about

his investigation, the charges brought against Malone, and the trial setting for those charges. 

Malone then cross-examined Yvon, and the State conducted a short redirect examination. At the 

State’s request, a bench conference was then held over its next witness, Sheila Morgan. Morgan 

then testified and was cross-examined by Malone. 

 2

The alleged assault occurred on July 17, 2015, and Lopez died on May 19, 2017. 

3

Lopez was apparently stating that Malone shoved their mother down. 
4

After Morgan’s testimony, the trial court recessed the jury for a short break. During the 

break, the State advised the trial court of some concerns it had with its next witness, and the trial 

court and the parties discussed the identity and order of the State’s next several witnesses. At that

point, Malone for the first time objected to the admission of Exhibit 82, asserting that the last part 

of the recording violated the trial court’s order in limine on evidence of extraneous offenses against 

third parties. The trial court noted that Malone had not objected at the time Exhibit 82 was offered 

and admitted into evidence, so it was not alerted to the possible violation of its order. The trial 

court then agreed to view the recording again. 

At the conclusion of the day’s testimony, the trial court considered the matter again. 

Malone moved for a mistrial, arguing that there was no instruction that could cure the error. The 

trial court denied the motion. 

This case illustrates why making a timely objection, requesting an instruction to disregard 

the improper testimony, and then moving for mistrial is the preferred procedure. First, a timely 

objection is preemptive, informs the trial court of the potential for error, and conserves judicial 

resources by preventing foreseeable, harmful events. Young v. State, 137 S.W.3d 65, 69 (Tex. 

Crim. App. 2004). Yet, Malone argued at trial that the redacted copy of the recording that he 

received from the State before trial did not include the objectionable statements at the end of the 

recording. If Malone’s representation was accurate,4 the potential error was not foreseeable, and 

a timely objection could not have prevented it. 

 4

The State did not contest Malone’s representation at trial. Even so, in its brief on appeal, the State contends that 

Exhibit 82 is identical to the redacted recording it provided to Malone at pretrial. Malone did not challenge the State’s 

contention on appeal.
5

Even so, a timely objection either during or right after Exhibit 82 was played would have 

alerted the trial court to the objectionable part of the recording. A timely objection would have 

allowed the trial court to take immediate corrective action in the form of an instruction to disregard. 

An instruction to disregard attempts to cure any prejudice that may have occurred and, if the 

prejudice is curable, eliminates the need for a mistrial.5

 Id. In most cases, “a prompt instruction 

to disregard will cure error associated with an improper question and answer, even one regarding 

extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam) 

(citing Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992)). Here, we have no reason to 

believe that an instruction to disregard the objectionable statements given right after the recording 

was shown to the jury would not have been sufficient to cure any error.

Because Malone failed to alert the trial court to the possible error through a timely 

objection, foreclosing the possibility of a prompt instruction to disregard that would have cured 

any error, Malone has forfeited his appellate complaint on this point. Cruz, 225 S.W.3d at 548. 

Malone has therefore failed to preserve this complaint for our review. As a result, we overrule his 

first point of error.

III. Malone’s Complaint Regarding the Lack of an Allocution Was Not Preserved

Article 42.07 of the Texas Code of Criminal Procedure provides that “[b]efore pronouncing 

sentence, the defendant shall be asked whether he has anything to say why the sentence should not 

be pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07. Malone complains in his 

 5

A motion for mistrial also seeks to correct prejudice that has already occurred. However, the granting of a motion 

for mistrial is “reserved for those cases in which an objection could not have prevented, and an instruction to disregard 

could not cure, the prejudice stemming from an event at trial—i.e., where an instruction would not leave the jury in 

an acceptable state to continue the trial.” Young, 137 S.W.3d at 69.
6

second issue that the trial court failed to provide him this statutory right of allocution. However, 

he did not object at trial to the trial court’s failure to abide by Article 42.07. The denial of the 

statutory right of allocution must be preserved. See Tenon v. State, 563 S.W.2d 622, 623–24 (Tex.

Crim. App. [Panel Op.] 1978); Graham v. State, 498 S.W.2d 197, 198 (Tex. Crim. App. 1973). 

Because he did not preserve this complaint for our review, we overrule Malone’s second point of 

error.

IV. Conclusion

For the reasons stated, we affirm the trial court’s judgment.

Scott E. Stevens

Justice

Date Submitted: July 18, 2019

Date Decided: July 19, 2019

Do Not Publish