COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00337-CR

KELLY MUNN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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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 

 

1See Tex. R. App. P. 47.4.
2

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 

 

2Munn was also convicted of engaging in organized crime, but he does not 

appeal this conviction.
3

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).
4

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 insulindependent 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.
5

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 
6

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.

 

3See Orona v. State, No. 02-09-00182-CR, 2011 WL 679320 (Tex. App.—

Fort Worth Feb. 24, 2011, no pet h.).
7

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 misdemeanormarijuana 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 
8

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 
9

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;
10

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.
11

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-fiveyear-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.
12

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 beatup 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

 

4Matheny was deceased at the time of Munn’s trial.
13

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,5and that he had obtained information about the vehicle Sartain 

 

5

The record does not contain details about Sartain’s arrest.
14

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.
15

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 
16

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 
17

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.
18

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 
19

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 
20

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 
21

(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.’’

A. Standard of Review

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 
22

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.

B. Applicable Law

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). 
23

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 
24

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.

 

7Munn 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.
25

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.

 

8Munn 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.
26

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 

 

9Munn 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.
27

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,
28

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 

 

10After 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.
29

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 

 

11The 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.
30

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 
31

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 
32

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.
33

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