Opinion filed December 31, 2018

In The

Eleventh Court of Appeals __________

No. 11-16-00337-CR

__________

EX PARTE PATRICK HAWTHORNE

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 024014

—and—

__________

No. 11-16-00359-CR

__________

PATRICK NEAL HAWTHORNE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 011209
2

M E M O R A N D U M O P I N I O N

In this opinion, we address two related appeals: the first (11-16-00337-CR) is 

an appeal from the denial of a request for habeas corpus relief based on double 

jeopardy; the second (11-16-00359-CR) is an appeal from two judgments of 

conviction for sexual assault of a child. The trial court declared a mistrial during the 

first jury trial. Subsequent to the mistrial, Appellant filed an application for writ of 

habeas corpus in which he sought to have the indictment dismissed on double 

jeopardy grounds. The trial court denied Appellant’s application without conducting 

a hearing, and Appellant filed a notice of appeal. While that appeal was pending, a 

different jury convicted Appellant of two counts of sexual assault of a child under 

the age of seventeen. The jury assessed Appellant’s punishment at confinement for 

seven years for each count. We affirm both the order in which the trial court denied 

habeas corpus relief and the judgments of conviction. 

Appellant presents three issues in the first appeal and six issues in the second 

appeal. He argues in the habeas corpus appeal that the trial court erred in failing to 

conduct a hearing on his application for writ of habeas corpus, that the trial court 

erred in failing to stay the proceedings below while his appeal from the denial of 

habeas corpus relief was pending, and that the trial court should have granted his 

application for habeas corpus because the mistrial was caused, or goaded, by the 

conduct of the prosecutor during the first trial. In the second appeal, Appellant 

presents two issues related to double jeopardy, three issues related to the admission 

and exclusion of evidence, and one related to the denial of motions for mistrial 

during the second trial. He does not challenge the sufficiency of the evidence to 

support his convictions. 

We will begin with the double jeopardy issues. We note at the outset that, 

even though Appellant was tried and convicted while the habeas corpus appeal was 
3

pending in this court, the habeas corpus appeal is not moot because Appellant’s 

application was based on double jeopardy grounds. See Morris v. State, No. 11-10-

00332-CR, 2011 WL 1818059, at *1 (Tex. App.—Eastland May 12, 2011, pet. ref’d) 

(mem. op., not designated for publication); see also Kniatt v. State, 206 S.W.3d 657 

(Tex. Crim. App. 2006) (discussed in Morris). 

The record reflects that the initial trial ended in a mistrial on day four of trial

during Appellant’s cross-examination of Texas Ranger Jason Shea. The following 

colloquy occurred:

Q. You did several warrants -- obtained several warrants in this 

case?

A. Yes, sir. 

Q. And they related to the communication devices of 

[Appellant], true?

A. Yes, sir. 

Q. And essentially those warrants produced no evidence which 

showed any link between [the victim] and [Appellant] except for one 

phone call? 

A. That is very false. 

Q. Very false?

A. Yes, sir. That is not the truth. 

Q. Okay. What links do you have? 

A. We have several text messages and phone calls. We just 

didn’t have the business affidavit records to get those into court. 

At that time, Appellant’s counsel asked to approach the bench, and the trial court 

sent the jury to the jury room. Appellant then objected that the State had not 

provided him with “anything other than one phone call that was in the Ranger’s 

report.” Appellant pointed out that an essential theme of his case was that there was 
4

no evidence of contact between Appellant and the victim and argues that “the State 

has basically bamboozled us by surprise in the middle of trial.”

The trial court permitted Appellant to question Ranger Shea outside the 

presence of the jury. Ranger Shea explained that he had records indicating that 

phone calls and text messages were exchanged between Appellant and the victim 

but that the records did not contain the content of those phone calls and text 

messages. The prosecutor believed that Appellant had been provided with those 

records. The trial court recessed the case for approximately three hours for the 

attorneys and Ranger Shea to sort through the issue. During the recess, the 

prosecutor came to realize that neither he nor Appellant had been apprised of the 

records because Ranger Shea had failed to turn them over to the prosecutor. The 

“records” at the heart of this matter were pages from the victim’s cell phone log, not 

from Appellant’s phones. The phone log did not contain the content of any 

messages, but it indicated that approximately sixteen to twenty messages had been 

exchanged between Appellant’s phones and the victim’s phone. Ranger Shea 

testified that he did not knowingly withhold the records but agreed that he may have 

been “reckless” in overlooking them. He also testified that he had not provided them 

to the prosecutor prior to that day.

Appellant asked for a mistrial based on the State’s failure to turn over material 

evidence to the defense. The prosecutor opposed Appellant’s request. Prior to ruling 

on the motion for mistrial, the trial court announced its findings: the failure to 

provide the phone log was not intentional or even reckless; “this was not intended 

for the purpose of trying to goad the Defense into a certain defense or a certain 

procedural position”; and “absolutely no” misconduct had occurred with respect to 

this matter. The trial court nonetheless declared a mistrial because of the effect that 

the previously undisclosed evidence had on the credibility of the defense.
5

In his first issue, Appellant argues that the trial court erred when it denied his 

request for habeas corpus relief without conducting a hearing. He contends that his

application was not frivolous and that a hearing was necessary to develop facts not 

contained in the record. A trial court is not required to conduct an evidentiary 

hearing before ruling on a defendant’s writ application. Lara v. State, No. 04-15-

00176-CR, 2016 WL 2936548, at *6 (Tex. App.—San Antonio May 18, 2016, pet. 

ref’d) (mem. op., not designated for publication); see Ex parte Gonzalez, 323 S.W.3d 

557, 561 (Tex. App.—Waco 2010, pet. ref’d) (holding that, when application is filed 

pursuant to Article 11.072, no evidentiary hearing is required to resolve controverted 

facts if the trial judge before whom the habeas application is pending also presided 

over the applicant’s trial). The parties and the same trial judge that ruled on 

Appellant’s application had addressed the State’s conduct at the time that Appellant 

moved for mistrial; the trial judge made relevant findings at that time. Because we 

do not agree that a hearing was necessary, we overrule Appellant’s first issue in the 

habeas corpus appeal. 

Appellant argues in his third issue that the trial court erred when it denied

relief because the prosecutor had goaded Appellant into requesting a mistrial during 

the initial trial of this cause. If the granting of a mistrial at the defendant’s request 

is based upon the conduct of the prosecutor, the Fifth Amendment guarantee against 

double jeopardy bars retrial only when it has been shown that the prosecutor engaged 

in conduct that was “intended to provoke the defendant into moving for a mistrial.” 

Ex parte Lewis, 219 S.W.3d 335, 336–37 (Tex. Crim. App. 2007) (quoting Oregon v. 

Kennedy, 456 U.S. 667, 679 (1982)) (adopting the Oregon v. Kennedy standard as 

the proper rule in Texas). 

In reviewing the trial court’s decision in this case with respect to the denial of 

habeas corpus relief, we review the facts in the light most favorable to the trial 

court’s ruling. Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex. Crim. App. 
6

2007). We will uphold that ruling absent an abuse of discretion. See Ex parte 

Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Martin, 6 S.W.3d 

524, 526 (Tex. Crim. App. 1999) (citing Guzman v. State, 955 S.W.2d 85 (Tex. 

Crim. App. 1997)). We must afford almost total deference to a trial court’s 

determination of historical facts and also to mixed questions of law and fact when 

the resolution of those questions turns on an evaluation of credibility and demeanor. 

Guzman, 955 S.W.2d at 89. We review de novo any mixed questions of law and 

fact that do not depend upon credibility and demeanor. Martin, 6 S.W.3d at 526; 

Guzman, 955 S.W.2d at 89. 

The trial judge that granted the mistrial also issued the findings of fact and 

conclusions of law with respect to the request for habeas corpus relief. The trial 

court found that the prosecutor did not intend to provoke Appellant into moving for 

a mistrial and that the prosecutor vehemently opposed the motion for mistrial. The 

trial court also found that, at the time of the mistrial, the trial was not going badly 

for the State. Those findings are supported by the record. Deferring to the trial 

court’s findings of fact, we agree that Appellant was not entitled to habeas corpus 

relief on double jeopardy grounds. See Kennedy, 456 U.S. at 679. Accordingly, we 

overrule Appellant’s third issue in the habeas corpus appeal. 

In his second issue in the habeas corpus appeal, Appellant presents complaints 

related to the failure to stay the retrial while the habeas corpus appeal remained 

pending in this court. He argues that both the trial court and this court erred by 

refusing to stay the proceedings in the trial court. The State contends that 

Appellant’s challenges to the denial of his motions to stay are not cognizable in an 

appeal from the denial of his pretrial application for writ of habeas corpus, which 

bears a separate cause number from Appellant’s convictions and is a separate and 

distinct proceeding from the cause that Appellant desired to stay: the retrial of his 

criminal prosecution. See Greenwell v. Court of Appeals for Thirteenth Judicial 
7

Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005). We agree and would also 

note that the denial of Appellant’s motion to stay appears to be a moot issue at this 

juncture. 

Moreover, although we agree with Appellant that, generally, a defendant’s 

right not to be exposed to double jeopardy by retrial “must be reviewable before that 

exposure occurs,” Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)

(quoting Ex Parte Robinson, 641 S.W.2d 552, 555 (Tex Crim App. 1982)), we do 

not agree that the general rule is controlling in this case. Instead, where “the trial 

court has determined that the double jeopardy claim is frivolous and the appellate 

court is in agreement,” the defendant is not entitled to a stay of further proceedings

in the trial court while an appeal from the denial of the pretrial writ of habeas corpus 

is pending in the appellate court. Trimboli v. MacLean, 735 S.W.2d 953, 954 (Tex. 

App.—Fort Worth 1987, no pet.) (citing United States v. Dunbar, 611 F.2d 985, 989 

(5th Cir. 1980)). Here, the trial court concluded that Appellant’s claim for habeas 

relief was “utterly without merit,” a conclusion with which we agree. We overrule 

Appellant’s second issue in the habeas corpus appeal. 

Appellant presents a related argument in his first issue in the appeal from the 

judgments of conviction. In that issue, he complains that the trial court lacked 

jurisdiction over the retrial because the habeas corpus appeal was pending in this 

court at the time of the retrial. We disagree. 

As we noted above, the habeas proceeding is separate and distinct from 

Appellant’s criminal prosecution. See Greenwell, 159 S.W.3d at 649–50. At the 

time of the retrial of the criminal prosecution in trial court cause no. 011209, an 

appeal was pending in this court from a final order denying Appellant’s application 

for writ of habeas corpus in trial court cause no. 024014. Contrary to Appellant’s 

assertion, the appeal that was pending in this court at the time of the retrial was not 

an interlocutory appeal; rather, it was an appeal from a final judgment in the separate 
8

and distinct habeas corpus proceeding. See id.; Kelson v. State, 167 S.W.3d 587, 

593 (Tex. App.—Beaumont 2005, no pet.); Green v. State, 999 S.W.2d 474, 477 

(Tex. App.—Fort Worth 1999, pet. ref’d). The appeal in cause no. 024014 did not 

deprive the trial court of jurisdiction in cause no. 011209. We overrule Appellant’s 

first issue in his appeal from the judgments of conviction. 

In his next issue, Appellant argues that the trial court erred when it refused to 

submit Appellant’s special plea of double jeopardy to the jury. The record reflects 

that Appellant filed a special plea of double jeopardy and informed the trial court 

prior to the retrial that he wished to submit the issue to the jury. The trial judge 

denied the special plea prior to the beginning of the retrial and ruled as follows: “I 

am not going to allow that plea to be put to this jury.”

Pursuant to the Texas Code of Criminal Procedure, the “only special plea”

that a defendant may assert is “that he has already been prosecuted for the same or a 

different offense arising out of the same criminal episode that was or should have 

been consolidated into one trial, and that the former prosecution” resulted in an 

acquittal or a conviction or, as relevant here, “was improperly terminated.” TEX.

CODE CRIM. PROC. ANN. art. 27.05 (West 2006). The Code also provides that issues 

of fact presented by a special plea “shall be tried by the trier of the facts on the trial 

on the merits.” Id. art. 27.07. Thus, a special plea of double jeopardy “is a 

mechanism for avoidance of reconviction, not retrial.” Apolinar, 820 S.W.2d at 794 

(quoting Robinson v. Wade, 686 F.2d 298, 302 n.3 (5th Cir. 1982)). A defendant’s 

special plea of double jeopardy is applicable to jeopardy claims that involve

successive punishments; it is not applicable to jeopardy claims based on successive 

prosecution. Valenti v. State, No. 11-14-00256-CR, 2016 WL 5340221, at *2 (Tex. 

App.—Eastland Sept. 15, 2016, no pet.); Kelson v. State, 167 S.W.3d 587, 593 (Tex. 

App.—Beaumont 2005, no pet.). The opinion in Kelson is directly on point. There, 

the court held that, “because a defendant’s special plea is cognizable only as to 
9

former jeopardy claims of successive punishments, appellant’s special plea 

complaining of successive prosecutions failed to present a legally cognizable issue 

for the trial court to submit to the jury.” Kelson, 167 S.W.3d at 593 (citing Apolinar, 

820 S.W.2d at 794; Collins v. State, 640 S.W.2d 288, 288–89, 291 (Tex. Crim. App.

1982); Arredondo v. State, 582 S.W.2d 456, 459 (Tex. Crim. App. 1979)). However, 

upon reviewing the opinions of the Court of Criminal Appeals on which Kelson

relied, we discovered that Collins does not stand for the proposition for which it was 

cited in Kelson but, rather, would support the opposite conclusion. See Collins, 640 

S.W.2d at 291 (holding that, because a rational factfinder could have inferred from 

the facts in that case that the prosecutors had intended to provoke the mistrial in 

order to obtain a more favorable jury at a second trial, the defendant was entitled to 

have the special plea submitted to the jury). We note that three years prior to Collins, 

the Court of Criminal Appeals had held that, where there was no evidence that the 

prosecutor was guilty of prosecutorial overreaching, the trial court “would have 

acted properly in overruling appellant’s special plea” and “did not err in refusing to 

submit the issue to the jury.” Chvojka v. State, 582 S.W.2d 828, 831 (Tex. Crim. 

App. 1979). 

Nonetheless, in light of Apolinar, the rationale of the court in Kelson, and the 

language in Articles 27.05 and 27.07, we agree with Kelson and hold that 

Appellant’s special plea complaining of successive prosecutions failed to present a 

legally cognizable issue for the trial court to submit to the jury. See Apolinar, 820 

S.W.2d at 794; Kelson, 167 S.W.3d at 593. “Because the special plea procedure 

does not protect against retrial, use of the pretrial writ of habeas corpus is the only 

way to protect a defendant’s fifth amendment right against twice being put to trial.” 

Apolinar, 820 S.W.2d at 794. 

Moreover, the record here, as in Chvojka, is devoid of evidence that the 

prosecutor was guilty of any conduct that could be considered prosecutorial 
10

overreaching. See Chvojka, 582 S.W.2d at 831. For that reason also, the trial court 

did not err when it refused to submit Appellant’s special plea to the jury. We 

overrule Appellant’s second issue in his appeal from the judgments of conviction. 

In his next three issues, Appellant complains that the trial court abused its 

discretion when it admitted certain exhibits into evidence and excluded certain 

evidence offered by Appellant. We review a trial court’s decision to admit or 

exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 

S.W.2d 372, 391 (Tex. Crim. App. 1991). Under this standard, “an appellate court 

should not disturb the trial court’s decision if the ruling was within the zone of 

reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 

2008). 

Appellant argues that the trial court abused its discretion when it admitted 

State’s Exhibit Nos. 3, 4, 5, and 6—a brown paper sack and three envelopes—

because the exhibits failed to show the chain of custody from one examiner to the 

next and because the exhibits were not sufficiently tied to Appellant to become 

relevant. Exhibit No. 3, the brown paper sack, contained a vacuum cleaner bag that 

was submitted to the DPS crime lab by Ranger Shea. Exhibit No. 4 contained known 

samples from the victim and was submitted to the lab by Ranger Shea. Exhibit No. 5 

contained nine hairs recovered from the vacuum cleaner bag. Exhibit No. 6 

contained one hair that had also been recovered from the vacuum cleaner bag but

had been placed on a slide to aid in a microscopic comparison of the hair.

The trace evidence analyst from the crime lab, Lindsey Bynum, testified that 

Exhibit Nos. 3 and 4 display the lab’s unique case number, the item number, and her 

initials, as well as the date she received it. Exhibit Nos. 5 and 6 also displayed that 

information. Although Bynum recovered the hairs from the vacuum cleaner bag, 

she could not personally testify to the entire chain of custody of Exhibit Nos. 5 and 

6. Despite Appellant’s relevance and chain-of-custody objections, all four exhibits 
11

were admitted into evidence. Shortly after the admission of these exhibits, the trial 

court admitted into evidence an exhibit showing “the internal chain of custody report 

for this case” from the lab’s electronic tracking system. Additionally, the DNA 

analyst testified to her part in the chain of custody of Exhibit Nos. 4 and 6, as 

reflected by her initials on those exhibits. Ranger Shea subsequently testified that 

he had seized the vacuum cleaner bag during a search of Appellant’s residence and 

had sent it to the DPS crime lab for analysis.

Evidence should be admitted if the trial court finds that a reasonable juror 

could find that the evidence was authenticated. Pondexter v. State, 942 S.W.2d 577, 

586 (Tex. Crim. App. 1996); see TEX. R. EVID. 901 (authenticating or identifying 

evidence). Proof of the beginning and end of the chain of custody will support 

admission of an object barring any evidence of tampering or alteration. Stoker v. 

State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). “Without evidence of tampering, 

most questions concerning care and custody of an item go to the weight attached, 

not the admissibility, of the evidence.” Lagrone v. State, 942 S.W.2d 602, 617 (Tex. 

Crim. App. 1997). We hold that the trial court did not abuse its discretion when it 

overruled Appellant’s objections and admitted State’s Exhibit Nos. 3, 4, 5, and 6 

into evidence. Appellant’s third issue in his appeal from the judgments of conviction 

is overruled. 

Appellant next asserts that the trial court abused its discretion when it admitted 

State’s Exhibit Nos. 28 and 30 into evidence over Appellant’s hearsay objections. 

Ranger Shea identified Exhibit No. 28 as a certificate of business records affidavit 

from Verizon Wireless that related to the victim’s phone. Attached to Exhibit No. 

28 was a CD-R disk that contained a log showing when and to what number or from 

what number phone calls, text messages, and pictures were sent and received. The 

exhibit did not contain the content of any of those calls, messages, or pictures.

Exhibit No. 30 was merely a printout of the information contained in the CD-R disk. 
12

Appellant argues that the business records affidavit did not comply with 

Rules 803(6) and 902(10) of the Texas Rules of Evidence. The business records 

affidavit reflects that Sherilyn Losado, an employee of Verizon Wireless, was 

“designated” as its “Custodian of Records.” Losado signed the “Certificate of 

Records” and had it notarized by a notary public in New Jersey, where Verizon’s 

“Office of Integrity & Compliance” was located. In the Certificate of Records, 

Losado “certifies that the documents attached hereto are true and complete copies of 

the requested records as maintained by Verizon Wireless in the normal course of 

business.”

Rule 803(6) is an exception to the hearsay rule that allows records of regularly 

conducted business activity to be admitted if it can be shown that the records were 

made at or near the time of the event by—or from information transmitted by—

someone with knowledge and that it was common practice to keep such a record in 

the course of regularly conducted business. TEX. R. EVID. 803(6). These conditions 

can be shown by the testimony of the custodian or another qualified witness or by 

an affidavit or unsworn declaration that complies with Rule 902(10). TEX. R. EVID.

803(6)(D). Rule 902(10) allows for self-authentication of a business record by an 

affidavit and provides a non-exclusive form that may be used to satisfy that rule. See

TEX. R. EVID. 902(10)(B). 

The Certificate of Records substantially complied with the language of 

Rule 902(10)(B); therefore, it properly authenticated the business record at issue and 

satisfied Rule 803(6). See McFarland v. Citibank (S. Dakota), N.A., 293 S.W.3d 

759, 762 (Tex. App.—Waco 2009, no pet.); Spradlin v. State, 100 S.W.3d 372, 382 

(Tex. App.—Houston [1st Dist.] 2002, no pet.); Reyes v. State, 48 S.W.3d 917, 921–

22 (Tex. App.—Fort Worth 2001, no pet.). We hold that the trial court did not abuse 

its discretion in admitting the victim’s phone log into evidence. Accordingly, we 

overrule Appellant’s fourth issue in his appeal from the judgments of conviction. 
13

In his next issue, Appellant argues that the trial court abused its discretion 

when it prohibited Appellant from presenting evidence regarding (1) the reason that 

Appellant purchased condoms while with the victim, (2) a Facebook business record

in which the victim allegedly admitted that she had falsely accused another man, and 

(3) a conversation between the district attorney’s investigator and the justice of the 

peace.

Appellant sought to offer evidence that he purchased condoms while the 

victim was with him because she had just told him that she was sexually active and 

he was concerned about her welfare. The trial court ruled that such evidence would 

be inadmissible under Rule 412 of the Texas Rules of Evidence. Rule 412 generally 

prohibits the admission of evidence regarding the sexual history or promiscuity of a 

sexual assault victim. See TEX. R. EVID. 412(a). Rule 412(b) provides some 

exceptions to this general rule. At trial, however, none of the exceptions listed in 

Rule 412(b) were shown to be applicable. Furthermore, contrary to Appellant’s 

assertion, the trial court’s refusal to permit Appellant to cross-examine the victim 

about her past sexual conduct did not violate Appellant’s Sixth Amendment right to 

confront the witnesses against him. The Confrontation Clause is not inconsistent 

with Texas evidence law, and compliance with a rule of evidence will, in most 

instances, avoid a constitutional question concerning the admissibility of such 

evidence. Hammer v. State, 296 S.W.3d 555, 566 (Tex. Crim. App. 2009). We 

believe that to be the case here and hold that the trial court did not abuse its discretion 

by excluding evidence related to the victim’s past sexual conduct. 

Appellant also sought to offer a Facebook business record purportedly 

showing some posts between the victim and her boyfriend. After Appellant’s offer 

of proof regarding the Facebook business record, the trial court ruled that the exhibit

was not admissible because nothing therein was connected to Appellant but, instead, 

related only to the victim, her boyfriend, and a man named Will Pettijohn. We have 
14

reviewed the offer of proof and the record and find no indication in the exhibit that 

the victim made false allegations against another man. Thus, we cannot agree with 

Appellant that this case is controlled by Billodeau v. State, 277 S.W.3d 34, 43 (Tex. 

Crim. App. 2009), in which the court held that evidence of a child victim’s threats 

to falsely accuse others was admissible to show the victim’s possible motive for 

accusing the defendant. We hold that the trial court did not abuse its discretion when 

it ruled that the Facebook exhibit was not relevant. See TEX. R. EVID. 401. 

Next, Appellant complains that the trial court erroneously excluded evidence 

related to the conduct of the district attorney’s investigator, which, Appellant 

contends, showed the State’s bias, misconduct, and vindictive intent. In addition to 

other evidence, Appellant sought to introduce evidence indicating that the 

investigator misinformed the justice of the peace about Appellant being a flight risk

so that Appellant would be denied bond. The trial court inquired into the matter and 

ultimately deemed the proposed evidence to be irrelevant to the issues before the 

jury. See id. We agree with the trial court’s conclusion. 

We hold that the trial court did not abuse its discretion when it excluded the 

evidence about which Appellant complains in his fifth issue. Therefore, we overrule 

Appellant’s fifth issue. 

In his final issue, Appellant argues that the trial court erred when it denied 

Appellant’s first and second motions for mistrial during Ranger Shea’s testimony.

We review a trial court’s denial of a motion for mistrial for an abuse of discretion.

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (citing Ladd v. State, 

3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). An appellate court views the evidence 

in the light most favorable to the trial court’s ruling and only considers those 

arguments before the court at the time of the ruling. Wead v. State, 129 S.W.3d 126, 

129 (Tex. Crim. App. 2004). The ruling must be upheld if it was within the zone of 

reasonable disagreement. Id.
15

“A mistrial is the trial court’s remedy for improper conduct that is ‘so 

prejudicial that expenditure of further time and expense would be wasteful and 

futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd, 

3 S.W.3d at 567). Instructions from the trial judge to the jury are generally 

considered to be sufficient to cure improprieties that occur during trial, and there is

a general presumption that a jury will follow the judge’s instructions. Gamboa, 296 

S.W.3d at 580. “Only in extreme circumstances, where the prejudice is incurable, 

will a mistrial be required.” Hawkins, 135 S.W.3d at 77; see Jenkins v. State, 493 

S.W.3d 583, 612 (Tex. Crim. App. 2016).

During the State’s direct examination of Ranger Shea, Appellant moved for 

mistrial twice in close succession. The record reflects the following:

Q. After you got done talking to [Appellant] what did you do? 

A. Let’s see. There were several things we did. I interviewed 

[the victim] again on the 5th of December to see if there was any other 

information. Then she stated that -- that he and she had sent nude 

photographs of each other back and forth.

[DEFENSE COUNSEL]: Objection to hearsay.

THE COURT: Sustained.

[DEFENSE COUNSEL]: I ask there be an instruction to disregard.

THE COURT: Disregard the last response, please.

[DEFENSE COUNSEL]: I ask for a mistrial. 

THE COURT: Denied.

Q. (by [PROSECUTOR]) Don’t mention anything that is 

hearsay. What else? 

A. The information I gathered was that there had been pictures 

sent back and forth to each other and then we also tried to do a phone 

call to [Appellant]. 

[DEFENSE COUNSEL]: Object again to the hearsay. He just 

said the same thing. 
16

The trial court again sustained Appellant’s objection, instructed the jury to disregard 

Ranger Shea’s response, and denied Appellant’s request for a mistrial. 

We cannot conclude that the prejudice in this case was incurable. Therefore, 

we presume that the jury followed the instructions to disregard, and we defer to the 

trial court’s decision based on the facts before it. We note that other evidence was 

introduced later regarding numerous text messages, pictures, and phone calls that 

were exchanged between Appellant’s phones and the victim’s phone. The trial court 

did not abuse its discretion when it denied Appellant’s motions for mistrial. We 

overrule Appellant’s sixth issue.

In Cause No. 11-16-00337-CR, we affirm the order in which the trial court

denied Appellant’s request for habeas corpus relief. In Cause No. 11-16-00359-CR, 

we affirm the judgments of the trial court. 

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

December 31, 2018

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.;

Gray, C.J., 10th Court of Appeals1

;

and Wright, S.C.J.2

Willson, J., not participating.

 1

Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment 

to the 11th Court of Appeals.

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.