IN THE

TENTH COURT OF APPEALS

No. 10-11-00168-CR

MIGUEL GABINO MEJIAS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F44572

MEMORANDUM OPINION

Miguel Gabino Mejias pled guilty to the offense of aggravated assault with a 

deadly weapon—family violence and elected to have a jury decide his punishment. See

TEX. PENAL CODE ANN. § 22.02(b)(1) (West 2011). After a hearing, the jury assessed 

Mejias’ punishment at 60 years in prison and a $10,000 fine. Because the trial court did 

not err in denying Mejias’ motion for mistrial and did not err in overruling his objection 

to the introduction of two photographs, the judgment is affirmed.
Mejias v. State Page 2

BACKGROUND

Early Easter morning in 2010, Mejias and his wife, Armida, had a fight. Mejias 

punched and broke the headboard of their bed. When Armida told him to leave the 

house, he injected himself with illegal steroids. Mejias eventually left but returned a 

short time later through the garage attached to the house and broke down the back 

door. Again Armida told Mejias to leave. He complied but again returned and kicked 

in the glass door to the kitchen. Mejias slapped Armida, knocking her to the ground. 

He then grabbed a large kitchen knife and stabbed Armida in the chest, abdomen, and 

arm—cutting her internal mammary artery, lower lobe of the left lung, heart, 

diaphragm, and liver. Mejias would not allow Armida to leave the house and did not 

seek medical attention for her for at least 20 minutes before he finally called 911. 

Armida was flown to John Peter Smith Hospital in Fort Worth. She survived her 

injuries.

MISTRIAL

In his first issue, Mejias contends the trial court erred in denying his motion for 

mistrial after sustaining an objection to testimony from a State’s witness regarding an 

extraneous offense.

When the trial court sustains the defense’s objection, grants the requested 

instruction to disregard, but denies the motion for mistrial, the proper issue is whether 

the refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 
Mejias v. State Page 3

72, 76-77 (Tex. Crim. App. 2004). In deciding whether to grant a motion for mistrial, 

however, the trial court effectively conducts an appellate function: determining 

whether improper conduct is so harmful that the case must be redone. Id. at 77. Only in 

extreme circumstances, where the prejudice is incurable, will a mistrial be required. 

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A prompt instruction to 

disregard will ordinarily cure any prejudice 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).1 Accord Marshall v. State, 210 S.W.3d 618, 628-629 (Tex. Crim. 

App. 2006); Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004); Rojas v. State, 

986 S.W.2d 241, 250 (Tex. Crim. App. 1998).

Mayra Escobar was called by the State to testify about her prior relationship with 

Mejias. When she was asked about whether Mejias ever made any statements that he 

would harm her, she stated that Mejias threatened to kill her or her daughter or her 

family if Mayra ever called the police or left Mejias. Mayra then stated that Mejias 

would also think of gruesome ways to harm her, such as: “he said he would kind of 

almost like a pulley system, where he would do like a fish lure to the eyelids.” After 

this statement, Mejias asked to approach the bench. Mayra’s testimony about this 

incident was continued outside the presence of the jury where she further explained 

this system:

 

1 The Ovalle opinion viewed the instruction to disregard as a means to cure “error.” However, in light of 

Hawkins, we view it as curing “prejudice.”
Mejias v. State Page 4

<it would be like fish hooks from your eyelids tied to the back of 

your foot so, like you have to blink, it would pull you, or if you moved 

your leg, something to be tearing and just basically torture. 

After argument by both parties, a request by Mejias for an instruction to 

disregard, and a request for a mistrial, the trial court ruled that he would instruct the 

jury to disregard the witness’ last answer and deny the motion for mistrial. When the 

jury was brought back into the courtroom, the trial court promptly sustained Mejias’ 

objection and instructed the jury to “disregard the witness’ last answer and not consider 

that answer for any purpose in this case.”

After reviewing the record, we find the answer is not so extreme that prejudice, if 

any, could not be cured by the instruction to disregard such as to require a mistrial, 

especially compared to Mayra’s more explicit description of Mejias’ threat outside the 

presence of the jury.2 Accordingly, the trial court did not abuse its discretion in denying 

Mejias’ motion for mistrial. Mejias’ first issue is overruled.

 

2 Both Mejias and the State review the potential prejudice of Mayra’s answer in light of the factors 

pronounced in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). The Court of Criminal 

Appeals in Mosley adopted factors to use to evaluate whether the trial court abused its discretion in 

denying a motion for mistrial for improper argument during the guilt/innocence phase of a trial. Id. 240-

259. In Hawkins, the Court of Criminal appeals tailored the Mosley factors to evaluate the denial of a 

motion for mistrial resulting from improper argument in the punishment phase of the trial. Because the 

Court of Criminal Appeals has not adopted the Mosley/Hawkins factors in evaluating the denial of a 

motion for mistrial pursuant to any reason other than improper argument, such as the improper 

introduction of extraneous offenses, we do not use those factors in our review of Mejias’ first issue. We 

recognize that in 2006, this Court twice evaluated the denial of a motion for mistrial for the improper 

introduction of extraneous evidence using the Mosley factors. See England v. State, No. 10-05-00021-CR,

2006 Tex. App. LEXIS 2524 (Tex. App.—Waco Mar. 29, 2006, pet. ref’d) (not designated for publication); 

Perez v. State, 187 S.W.3d 110 (Tex. App.—Waco 2006, no pet.). The Mosley type review and analysis 

conducted in those cases was inappropriate based on the nature of the issues in those proceedings, and 

we do not follow them in this proceeding.
Mejias v. State Page 5

PHOTOGRAPHS

In his second issue, Mejias argues that the trial court erred in admitting 

photographs of Armida while in the hospital. Specifically, he argues that the trial court, 

after balancing the various Rule 403 factors set out in Montgomery v. State, should have 

reasonably concluded that the probative value of the photos was substantially 

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery v. State, 

810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g). 

In evaluating the photos in light of the Montgomery factors, Mejias contends the 

probative value of the photos was inherently weak because they did not portray any of 

the wounds to Armida; the State did not have a great need for the evidence because 

Mejias pled guilty and the nature and severity of the wounds was not depicted in the 

photos; the photos had a tendency to influence the jury on an improper basis by 

arousing the jury’s sympathy for Armida and anger toward Mejias for placing her in the 

hospital; and the photos were graphic and could have easily confused the jury by 

distracting the jury from the main issue of the case; that being, a proper punishment.

The two photos about which Mejias complains were of Armida, lying in a 

hospital bed. The photos depict her attached to a ventilator with I-Vs in her arm and 

with a brace on her neck. The admissibility of photographs over an objection is within 

the sound discretion of the trial court. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. 

App. 2010). After considering the Montgomery factors relevant to a Rule 403 analysis 
Mejias v. State Page 6

and the factors specific to the review of the admission of photographs as set out in 

Narvaiz,3 we find that the trial court did not abuse its discretion in admitting the photos 

over Mejias’ Rule 403 objection.4 Mejias’ second issue is overruled.

CONCLUSION

Having overruled each of Mejias’ issues on appeal, we affirm the judgment of the 

trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Davis concurs with a note)*

Affirmed

Opinion delivered and filed July 12, 2012

Do not publish 

[CRPM]

* “(Footnote 2 is unnecessary to the analysis, noting or disposition of this 

appeal.)”

 

3 Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992) (the number of photographs, the size, 

whether they are in color or are black and white, whether they are gruesome, whether any bodies are 

clothed or naked, and whether the body has been altered by autopsy).

4 This is especially so in light of Armida’s reluctance to testify about the severity of her injuries and other 

pictures about which Mejias does not complain on appeal which depict Armida lying on the floor 

covered in blood.