                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


  JERRY LYNN MCGAVITT,                              §
                                                                     No. 08-17-00168-CR
                        Appellant,                  §
                                                                        Appeal from the
  v.                                                §
                                                                      34th District Court
  THE STATE OF TEXAS,                               §
                                                                   of El Paso County, Texas
                        Appellee.                   §
                                                                     (TC# 20140D05274)
                                                    §

                                            OPINION

       Jerry Lynn McGavitt was convicted of murder and sentenced to sixty years’ confinement

with the Texas Department of Criminal Justice Institutional Division. In five issues, McGavitt

contends: (1) the trial court erroneously defined the term “intentionally” in the abstract portion

of the jury instructions, allowing the jury to convict him of murder without concluding it was his

conscious objective or desire to promote or assist in the victim’s murder; (2) the trial court erred

in admitting the photos of the victim’s body because they were more prejudicial than probative;

(3) the evidence was legally insufficient to support his conviction under the law of parties; (4) the

trial court erred in denying his motion for mistrial because an impartial verdict could not be reached

after the State’s expert witness testified to a different conclusion than stated in the expert’s report,

which significantly hampered his defense; and (5) the trial court erred in denying his motion to
suppress the video recorded statement because he never received Miranda warnings. We affirm.

                                       BACKGROUND

       On September 5, 2014, employees of the El Paso Electric Company were performing work

in the basement of an abandoned building in downtown El Paso when they discovered a burned

and decomposing body. Police responded to the scene and found what was later identified as the

body of Geraldo Luna. The deceased appeared to have been restrained and violently beaten. His

arms were bound behind his back, his feet were bound, his mouth had been gaged, and a ligature

had been wrapped around his neck. He had broken bones in his arms and legs and his skull had

been smashed in. The deputy medical examiner ruled the death a homicide by unspecified means,

due in part to the difficulty in determining the exact cause of death from a burned and partially

decomposed body.

       Officers initially identified two suspects, Jesus Barraza and Thomas McNair, each of whom

had left identifying documents at the scene. A third individual, Marcus Adkins, was identified

through fingerprint analysis. Through interviews, the police were able to identify the Appellant,

Jerry Lynn McGavitt, as having been involved.

       On September 9, 2014, plainclothes officers made contact with McGavitt while he was

walking with a companion on Myrtle Street in downtown El Paso. He was cooperative and

willing to speak with detectives but was not told what case was being investigated or that he was

suspected of a crime. The officers contacted Sergeant David Flores of the El Paso Police

Department, who was investigating the case, and he came to Myrtle street to meet with McGavitt.

Upon arriving, Sgt. Flores thanked McGavitt for his cooperation, to which McGavitt responded,

“[n]o problem, I’ll speak to you guys.” Because neither McGavitt nor his companion had a


                                                2
vehicle, the plainclothes officers drove McGavitt to the police station.

       Once at the station, McGavitt waited in the common area of the crimes-against-persons

office. Sgt. Flores informed McGavitt he was not in custody and walked with him to an unlocked

interview room off of the common area. In the interview room, Flores began by telling McGavitt

the police were investigating a case involving a dead body and asked if he could answer a few

questions. McGavitt agreed, and Flores read him his Miranda warnings. Flores later testified

that regardless of whether or not a suspect is in custody, whenever he interviews a suspect he reads

each interviewee the Miranda warnings without exception. The two briefly engaged in small talk,

and Flores reminded Appellant again that he was investigating a case involving a dead body found

in the downtown area. McGavitt volunteered that he had “heard about it on the news.” Flores

asked him if he had any information to give, and McGavitt responded that he did, but added, “it

wasn’t me that did it.” Flores asked McGavitt if he would be willing to allow the interview to be

recorded and he responded affirmatively.

       At the beginning of the recording, McGavitt is read his Miranda warnings. McGavitt

proceeded to state that he, Barraza, McNair, and a third person, Brittany Stewart, had been living

in the abandoned Dollar Plus building on 101 North Mesa Street and went there the afternoon of

the murder. The victim, Geraldo Luna, subsequently entered through the front of building by

climbing a fenced-off entryway. McGavitt noted Luna had done this in broad daylight, which he

pointed out could have jeopardized he and his companions’ ability to remain in the abandoned

building. McGavitt claimed he did not know Luna personally and told Flores that McNair and

Barraza harbored animosity for Luna for reasons he did not understand. According to McGavitt,

an altercation started between McNair and Luna when Luna jumped the fence because he had


                                                 3
potentially exposed the fact that they were squatting in the building. The altercation proceeded

into the basement of the building. McGavitt claimed that once they were in the basement Barraza

told him to hold Luna down. McGavitt complied and wrapped his arms around Luna and both

men fell to the ground. With McGavitt still holding onto Luna, Barraza started hitting Luna with

a rubber mallet. McGavitt claimed Barraza struck Luna in the face over a dozen times with the

rubber mallet. While he was wildly swinging the mallet, Barraza accidentally hit McGavitt in the

face, causing him to release his grip on Luna and run upstairs. McGavitt told Flores he started

bleeding and had to use a shirt to stop the blood flow. Sgt. Flores asked about pooled blood the

police had located in the basement and McGavitt stated that some of the pooled blood downstairs

was his own, while some belonged to Luna.

          McGavitt returned downstairs and saw McNair and Barraza beating Luna with metal pipes,

noting that Barraza had the bigger of the two pipes. They were hitting Luna in the stomach and

chest and he was screaming as he was being struck. McGavitt saw Luna standing as he was being

beaten.      Barraza demanded Luna lie down on the bed but he did not respond. The others asked

Luna if he would resist while they bound his hands and feet and he replied he would not.

McGavitt stated he and the others then bound Luna’s hands and feet near the bed. McGavitt told

Sgt. Flores that he personally tied Luna’s hands behind his back with string McGavitt had found

lying around in the basement. He claimed McNair used a bungee cord around Luna’s neck and

someone gagged him. Luna was now placed lying face-up on the bed, bound and gagged.

          McGavitt stated Barraza and McNair begin hitting Luna with the pipes again, this time

continuously for a sustained period. McGavitt explained to Flores that at some point during this

second beating McGavitt stopped believing Luna was alive. Sgt. Flores interrupted, noting police


                                                4
had found a third pipe in the basement and asked whether McGavitt had joined in on the beating

out of anger for being struck in the face with the mallet. McGavitt denied joining in, asserting he

was not angry about getting hit in the face. He stated that while Barraza and McNair were still

beating Luna, Brittany and he walked up the stairs to the main floor. Barraza and McNair

followed shortly thereafter, and the four agreed they needed to get out of the building. McGavitt

stated they all walked over to The Tap, a bar in the nearby downtown area, and sat together on a

bench in front of the bar. He stated McNair and Barraza began discussing how to dispose of the

body but told Flores that he and Brittany did not participate in the conversation. McGavitt

claimed the third suspect, Marcus, walked up and joined them all shortly thereafter. At McNair’s

suggestion, Marcus, McNair, and Barraza walked back to the abandoned building to burn the body.

McGavitt claimed they utilized lighter fluid that had been abandoned in the alley. The three then

returned to The Tap, where McGavitt claims McNair told him they had successfully burned the

body. Sgt. Flores asked McGavitt why he had helped the others. McGavitt initially stated he did

not know why he had helped, then claimed he had done so because he was scared he would have

been next if he refused to help. McGavitt was arrested by Sgt. Flores shortly after the end of the

interview.

       McGavitt was indicted for murder and for altering or destroying a human corpse with intent

to impair its availability as evidence. He moved to suppress the recorded interview on the grounds

that he had been in custody when he was taken to the police station and claimed he had given

incriminating statements in the initial unrecorded interview and denied that Sgt. Flores had

provided him with Miranda warnings before that discussion. The trial court denied the motion to

suppress and the case proceeded to trial. The jury found McGavitt guilty of murder as charged in


                                                5
the indictment and sentenced him to sixty years’ in the Texas Department of Criminal Justice

Institutional Division.1 This appeal followed.

                                                  DISCUSSION

         McGavitt raises five issues on appeal.                 In Issue One, he contends the trial court

erroneously defined the term “intentionally” in the abstract portion of the jury instructions,

allowing the jury to convict him of murder without concluding it was his conscious objective or

desire to promote or assist in Luna’s murder as was required to convict him under the law of

parties. In Issue Two, he asserts the photos of Luna’s charred and deformed body were more

prejudicial than probative because the evidence presented at trial showed he did not participate in

beating Luna, thus rendering their probative value nonexistent.                       In Issue Three, McGavitt

contends the evidence to show he was acting with Barraza and McNair as part of a common design

to murder Luna was legally insufficient to support his conviction under the law of parties. In

Issue Four, McGavitt argues the trial court erred in denying his motion for mistrial because an

impartial verdict could not be reached after the State’s expert witness testified that blood found on

McGavitt’s shirt was a mixture of two individuals’ blood instead of inconclusive as was stated in

the report. He asserts this was devastating to his defensive strategy because he could no longer

contend he was an unwilling participant due to the implication that the blood mix resulted from

his willing participation. In Issue Five, McGavitt contends the trial court erred in denying his

motion to suppress the recorded interview because at some point between his initial contact with

plainclothes officers and the recorded interview, the interaction had become custodial, and

therefore the initial incriminating statements along with the subsequent recorded statements should


1
  The State later dismissed the charge for altering or destroying a human corpse with intent to impair its availability
as evidence.
                                                           6
have been suppressed due to his never having received Miranda warnings. Because we must

render a judgment of acquittal if the evidence is legally insufficient to convict McGavitt of murder,

we will address Issue Three first.2

                                         Sufficiency of the Evidence

        In his third issue, McGavitt challenges the legal sufficiency of the evidence to support his

conviction for murder, asserting the State failed to demonstrate he promoted or assisted the others

in Luna’s murder.

                                              Standard of Review

        Under the Due Process Clause of the U.S. Constitution, the State is required to prove every

element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). In Brooks v. State, the Texas Court of Criminal Appeals held that the only standard a

reviewing court should apply when examining the sufficiency of the evidence is the legal

sufficiency standard articulated in Jackson, which requires deference to be given to the jury’s

credibility and weight determinations. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App.

2010). The critical inquiry in a legal sufficiency challenge, as set out in Jackson, is whether the

evidence in the record could reasonably support a conviction of guilt beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). When

reviewing the legal sufficiency of the evidence, we must view all of the evidence in the light most

favorable to the verdict to determine whether any rational juror could have found the defendant

guilty of the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163

S.W.3d 734, 737 (Tex.Crim.App. 2005). Additionally, we treat circumstantial evidence as being


2
  See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000)(“If the evidence is insufficient to support [the
defendant’s] conviction, the remedy is acquittal.”).
                                                         7
equally probative as direct evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.

2004)(citing Templin v. State, 711 S.W.2d 30, 33 (Tex.Crim.App. 1986)). Therefore, a lack of

direct evidence is not dispositive on the issue of the defendant’s guilt; guilt may be established by

circumstantial evidence alone. Id., at 49 (citing Miles v. State, 165 S.W. 567, 570 (Tex.Crim.App.

1914)). We measure the evidence by the elements of the offense as defined by the hypothetically

correct jury charge.    Thomas v. State, 303 S.W.3d 331, 333 (Tex.App.—El Paso 2009, no

pet.)(citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). A hypothetically correct

charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the offense for which the defendant was

tried. Malik, 953 S.W.2d at 240.

       We bear in mind that the trier of fact is the sole judge of the weight and credibility of the

evidence, and we must presume that the fact finder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.

2014)(citing Jackson, 443 U.S. at 319). A reviewing court may not reevaluate the weight and

credibility of the evidence or substitute its judgment for that of the fact finder. Isassi v. State, 330

S.W.3d 633, 638 (Tex.Crim.App. 2010)(citing Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App. 1999)). Our only task under this standard is to determine whether, based on the

evidence and reasonable inferences drawn therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Id.

                                           Applicable Law

       Under the Texas Penal Code, a person commits the offense of murder if he:                    (1)

intentionally or knowingly causes a person’s death; or (2) intends to cause a person serious bodily


                                                   8
injury and commits an act clearly dangerous to human life that causes the death of an individual.

TEX.PENAL CODE ANN. § 19.02(b)(1), (2).

       Under Texas law, a defendant may be held criminally responsible as a party for an offense

committed by another under certain enumerated circumstances. TEX.PENAL CODE ANN. § 7.02.

One such circumstance is when the defendant—acting with intent to promote or assist the

commission of the offense—solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense. TEX.PENAL CODE ANN. § 7.02(a)(2). Evidence is sufficient to support a

conviction under this section where the defendant is physically present at the commission of the

offense and encourages the commission of the offense by either words or other agreement. Beier

v. State, 687 S.W.2d 2, 3 (Tex.Crim.App. 1985)(citing Tarpley v. State, 565 S.W.2d 525

(Tex.Crim.App. 1978)). There must be evidence of intentional participation; mere presence alone

is insufficient. Id., at 4. In determining whether the defendant participated as a party, the court

may look to events occurring before, during, and after the commission of the offense, and may rely

on actions of the defendant evincing an understanding and common design to do the prohibited

act. Id., at 4 (citing Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App. 1981)); Reed v. State, 550

S.W.3d 748, 765 (Tex.App.—Texarkana 2018, no pet.). That each party was doing some part of

the common purpose is sufficient to show the parties were acting together. Cordova v. State, 698

S.W.2d 107, 111 (Tex.Crim.App. 1985).

                                             Analysis

       McGavitt contends his repeated denials in the recorded interview that he helped beat Luna

showed he did not intend to promote or assist the others in causing Luna’s death. He asserts no

evidence exists to show he participated in a common design to murder Luna, and therefore the


                                                9
jury’s verdict was not based on evidence but rather improper speculation. He also asserts the

State failed to establish the corpus delicti of the murder, contending, as he puts it, the deputy

medical examiner’s conclusion that the death was a homicide by unspecified means was “very

scant,” and therefore insufficient to establish the body of the crime. We disagree.

       As the State correctly points out, the requisite culpable mental state is generally proved

circumstantially. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991), overruled

on other grounds by Janecka v. State, 937 S.W.2d 456, 460 (Tex.Crim.App. 1996)(“Indeed, mental

culpability is of such a nature that it generally must be inferred from the circumstances under which

a prohibited act or omission occurs.”). The jury was entitled to examine events occurring before,

during, and after the murder and rely on McGavitt’s actions that show an understanding and

common design to murder Luna. Beier, 687 S.W.2d at 4. And from his confession the jury heard

that McGavitt grabbed Luna as the altercation started and using his weight pulled Luna to the

ground and held him in place while Barraza struck him over a dozen times in the face with a mallet.

From his testimony, the jury also heard that McGavitt only stopped holding Luna in place because

he himself was accidentally struck with the mallet by Barraza, an act that caused immediate and

serious bleeding from McGavitt. He went upstairs to get a shirt to stop his own bleeding from the

blow, and then returned downstairs and continued to assist the others by helping to bind up an

already beaten Luna, thus rendering the victim immobile and defenseless. He watched Barraza

and McNair beat Luna continually until, by his own admission, he believed Luna was dead. The

four of them then decided it was wise to leave the building they had been occupying and left

together to a local bar. Under the law of parties, the jury was required to find that (1) McGavitt,

(2) acting with the intent to promote or assist the commission of murder, (3) solicited, encouraged,


                                                 10
directed, aided, or attempted to aide McNair or Barraza, or both, murder Luna in pursuit of that

common goal. TEX.PENAL CODE ANN. §§ 19.02(b)(1), (2); 7.02(a)(2). The jury here could have

made that finding based solely on McGavitt’s own admissions regarding his actions during and

after the commission of the offense. Accordingly, the evidence was legally sufficient for a

rational juror to find McGavitt promoted or assisted in Luna’s murder as part of a common design.

       As to McGavitt’s contentions regarding the corpus delicti rule, that rule, as applies to

murder, is satisfied where the evidence other than the defendant’s extrajudicial confession shows

(1) the death of a human being (2) caused by the criminal act of another. Fisher v. State, 851

S.W.2d 298, 303 (Tex.Crim.App. 1993)(citing Jackson v. State, 652 S.W.2d 415, 419

(Tex.Crim.App. 1983)). That is, all that must be shown by the non-confession evidence is that

Luna was murdered by someone.          Id.   Here, that was established by the deputy medical

examiner’s testimony that the cause of Luna’s death was homicide by unspecified means, a fact

also reflected in her formal autopsy report that was entered into evidence. Although McGavitt

asserts this evidence alone was insufficient, or insufficiently conclusive, he has cited no authority

to support this contention and we have found none. Accordingly, McGavitt’s third issue is

overruled.

                                       Jury Charge Error

       In his first issue, McGavitt argues the trial court committed reversible error in defining the

term “intentionally” only in the abstract portion of the jury instructions, thus impermissibly

lowering the State’s burden of proof and allowing the jury to convict him without finding he

intentionally promoted or assisted the others in causing Luna’s death.

                                        Standard of Review


                                                 11
       We review claims of jury-charge error by first determining whether an error exists in the

charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). In examining a charge for

possible error, we examine the charge as a whole instead of as a series of isolated and unrelated

statements. Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Crim.App. 2012). If we find error in

the charge, we then analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453

(Tex.Crim.App. 2003). The level of harm required for reversal depends on whether the defendant

objected to the error at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(Opn.

on reh’g). If the defendant timely objected to the error, the error is analyzed under the “some

harm” standard: the judgment may not be reversed unless the error was calculated to injure the

rights of the defendant. Id. In deciding whether some harm occurred, the court reviews the

degree of harm in light of the entire jury charge, the state of the evidence, the argument of counsel,

and any other part of the record as a whole which may illuminate the actual, not just theoretical,

harm to the accused. Id. at 171-74.

                                          Applicable Law

       As noted above, a person commits the offense of murder if he intentionally or knowingly

causes a person’s death or intends to cause a person serious bodily injury and commits an act

clearly dangerous to human life that causes the death of an individual. TEX.PENAL CODE ANN.

§ 19.02(b)(1), (2). A person acts intentionally with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the conduct or cause

the result. TEX.PENAL CODE ANN. § 6.03(a). A person acts knowingly with respect to the nature

of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his

conduct or that the circumstances exit.       TEX.PENAL CODE ANN. § 6.03(b).          A person acts


                                                 12
knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result. Id. The offense of murder requires that the culpable mental state

accompany the result of the conduct, rather than the nature of the conduct, and a murder charge

that defines intentionally and knowingly as they relate to both the nature and the result of conduct

is error. Wallace v. State, 763 S.W.2d 628, 629 (Tex.App.—San Antonio 1989, no pet.). Under

the law of parties, a person is criminally responsible for the conduct of another if, acting with intent

to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense. TEX.PENAL CODE ANN. § 7.02(a)(2).

                                               Analysis

        McGavitt asserts the definition of “intentionally” given by the trial court allowed the jury

to convict him based on his intentional conduct in the struggle with Luna rather than, as was

required, on his intent to cause the result—Luna’s death. The trial court defined the culpable

mental state of “intentionally,” as related to the conduct elements involved in murder, as follows:

        A person acts intentionally, or with intent, with respect to a result of his conduct
        when it is his conscious objective or desire to cause the result.

McGavitt objected to this definition at trial, proposing instead his alternative definition:

        A defendant acts with intent to promote or assist in the commission of an offense
        when it is his conscious objective or desire to promote or assist in the commission
        of the offense.

McGavitt cites Peek v. State to support his contention that trial court’s definition was erroneous.

Peek v. State, 494 S.W.3d 156, 163 (Tex.App.—Eastland 2015, pet. ref’d).

        Peek does not support this contention. In Peek, the defendant and two associates had been

caught driving with sixteen grams of methamphetamine. Peek, 494 S.W.3d at 159–60. The

defendant was charged as a party with the crime of possession of methamphetamine with intent to

                                                  13
deliver in a drug-free zone. Id., at 159. That offense focused on the nature of the defendant’s

conduct, i.e., possessing a controlled substance with the intent to deliver it, which is punishable

without regard to the result of his conduct. Id., at 162. The defendant contended the trial court

failed to define “intentionally” in terms of the result of his conduct in the abstract portion of the

charge and failed to apply a result-of-conduct definition to the law of parties. Id., at 162. This,

he asserted, allowed the jury to convict him for merely driving the vehicle without finding he

possessed the conscious intent to promote or assist in the possession of methamphetamine with the

intent to deliver. Id., at 163. The definition supplied by the trial court was, “[a] person acts

intentionally, or with intent, with respect to the nature of his conduct when it is his conscious

objective or desire to engage in a conduct.” Id. In rejecting his argument, the court held the trial

court “correctly charged the jury on the culpable mental state: [Defendant] must have acted with

the ‘intent’ to promote or assist the commission of the charged offense.” Id., at 163.

       Here, the definition provided by the trial court is identical to the language used in Peek

with the exception that it emphasizes the result of the defendant’s conduct rather than the nature

of his conduct. That is precisely what was required. See Cook v. State, 884 S.W.2d 485, 491

(Tex.Crim.App. 1994)(holding that murder is a result-of-conduct offense and a trial court errs in

not limiting the culpable mental states to the result of the defendant’s conduct). Further, the

abstract portion of the jury instructions instructed the jury that under the law of parties:

               A person who does not by his own conduct commit an offense may
       nonetheless be criminally responsible for the conduct of another person. A person
       is criminally responsible for an offense committed by the conduct of another if,
       acting with intent to promote or assist the commission of the offense, he
       encourages, aids, or attempts to aid the other person to commit the offense.

              To prove that the defendant is guilty of an offense committed by the conduct
       of another, the state must prove, beyond a reasonable doubt, three elements. The

                                                  14
       elements are that—

               1. The other person committed the offense;

               2. The defendant encouraged, aided, or attempted to aid the other person
                  to commit the offense; and

               3. The defendant acted with the intent to promote or assist in the
                  commission of the offense by the other person. [Emphasis added].

This instruction tracks the language of the statute regarding the law of parties and properly

informed the jury regarding the State’s burden of proof. See TEX.PENAL CODE ANN. § 7.02(a)(2).

Because the trial court correctly defined the culpable mental state as accompanying the result of

the conduct, rather than the nature of the conduct, and properly defined the State’s burden under

the law of parties, the jury instructions were not erroneous.       Wallace, 763 S.W.2d at 629.

Accordingly, McGavitt’s first issue is overruled.

                            Admission of Crime Scene Photographs

       In his second issue, McGavitt asserts the photos of Luna’s charred and deformed body were

more prejudicial than probative because the evidence presented at trial showed he did not

participate in beating the victim, thus rendering their probative value nonexistent.

                                       Standard of Review

       “The admissibility of a photograph is within the sound discretion of the trial judge.”

Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). A photograph is generally

admissible if verbal testimony as to matters depicted in the photograph is also admissible. Gallo

v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007)(citing Williams, 958 S.W.2d at 195). Thus,

if verbal testimony is relevant, so are photographs depicting the matters testified to. Id., at 762.

A photograph is relevant if it has “any tendency to make the existence of any fact that is of


                                                15
consequence to the determination of the action more probable or less probable than it would be

without the evidence.” [Internal quotations omitted]. Flores v. State, 299 S.W.3d 843, 857

(Tex.App.—El Paso 2009, pet. ref’d)(citing TEX.R.EVID. 401). The victim’s identity and the

manner and means of death are facts of consequence to the determination of an action. Id.

Accordingly, a photograph of the injuries a defendant inflicted on the victim is evidence that is

relevant to the jury’s determination. Salazar v. State, 38 S.W.3d 141, 151–53 (Tex.Crim.App.

2001); see also Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997)(recognizing that

autopsy photos are generally admissible unless they depict mutilation of the victim caused by the

autopsy itself). We review a trial court’s decision to admit photographs into evidence for abuse

of discretion and that decision will only be disturbed on appeal if it falls outside the zone of

reasonable disagreement. Young v. State, 283 S.W.3d 854, 874 (Tex.Crim.App. 2009).

                                         Applicable Law

       Relevant evidence may be excluded when its “probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading

the jury, undue delay, or needlessly presenting cumulative evidence.” TEX.R.EVID. 403. Rule

403 favors the admission of relevant evidence and carries with it a presumption that relevant

evidence will be more probative than prejudicial. Gallo, 239 S.W.3d at 762, (citing Williams, 958

S.W.2d at 196). A court may consider several nonexclusive factors in determining whether the

probative value of photographs is substantially outweighed by the danger of unfair prejudice. Id.

These factors include: the number of exhibits offered, their gruesomeness, their detail, their size,

whether they are black and white or color, whether they are close-up, and whether the body

depicted is naked or clothed. Williams, 958 S.W.2d at 196. A court must also consider the


                                                16
availability of other means of proof and the circumstances unique to each individual case. Gallo,

239 S.W.3d at 762. Additionally, a court should consider whether the body has been altered since

the crime in a way that might enhance the gruesomeness of the photographs to the accused’s

detriment. Flores, 299 S.W.3d at 858 (citing Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App.

2000)).

                                                Analysis

          Here, McGavitt contends the trial court’s decision to admit the photographs of Luna’s body

was an abuse of discretion because the evidence at trial did not implicate him in the beating of

Luna; he therefore concludes the photos of Luna’s wounds and the pipes nearby were not probative

of the manner and means of death. He also contends the photos were highly inflammatory

because of the gruesome nature of the charred body.

          As already noted, a visual image of the injuries sustained by a victim are relevant to a jury’s

determination, and it is uncontested that the complained of photographs depict those injuries

sustained by Luna. Salazar, 38 S.W.3d at 151–53. Accordingly, our only task is to determine

whether the trial court abused its discretion in determining the probative value of the photos was

not substantially outweighed by the danger of unfair prejudice. Gallo, 239 S.W.3d at 762. The

photos of Luna’s burned body were indeed grim, but that alone does not make them inadmissible.

In Chamberlain v. State, the Court of Criminal Appeals recognized that while photographs may

be gruesome and depict the disagreeable realities of the crime committed, “it is precisely because

they depict the reality of [the] offense that they are powerful visual evidence, probative of various

aspects of the State’s case.” Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999).

Accordingly, McGavitt’s assertion that the photos were highly inflammatory merely because they


                                                    17
were unpleasant to behold is insufficient for us to find an abuse of discretion in admitting them.

Their gruesomeness results only from the actions of the murderers themselves, who burned the

body in order to impair its availability as evidence. Further, McGavitt’s contention that the photos

are not probative of the manner and means of Luna’s death is inaccurate. The complained-of

photos—State’s Exhibits 85, 88, and 92—depict several angles of the burned body, the pipes used

to murder Luna that were left next to his body, and the bungee cord wrapped around Luna’s neck.

Photographs showing the injuries sustained by the victim are probative of the manner and means

of his death and are relevant to the jury’s determination. Salazar, 38 S.W.3d at 151–53. Because

McGavitt has not shown how the probative value of these photos was substantially outweighed by

the danger of unfair prejudice, we cannot conclude the trial court abused its discretion in admitting

them. Issue Two is overruled.

                                       Motion for Mistrial

       In his fourth issue, McGavitt contends the trial court erred in denying his motion for

mistrial. Specifically, he asserts the jury could not render an impartial verdict because the State’s

expert witness offered an opinion differing from that in the witness’ report, creating a conflict and

hopelessly confusing the jury. He also contends it was devastating to his defense because it

prevented him from pursuing the theory that he was an unwilling participant in the murder.

                                        Standard of Review

       We review a trial court’s ruling on a motion for mistrial for abuse of discretion. Archie v.

State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007). We must uphold the trial court’s ruling if it

is within the zone of reasonable disagreement. Id., (citing Wead v. State, 129 S.W.3d 126, 129

(Tex.Crim.App. 2004)). “Only in extreme circumstances, where the prejudice is incurable, will


                                                 18
a mistrial be required.” [Internal quotations omitted]. Id., (quoting Hawkins v. State, 135

S.W.3d 72, 77 (Tex.Crim.App. 2004)).

                                          Applicable Law

         An expert witness may give opinion testimony based on scientific knowledge if it will help

the trier of fact understand the evidence or determine a fact in issue. TEX.R.EVID. 702. The party

offering the expert’s opinion must demonstrate by clear and convincing evidence that the proof is

reliable, and the trial court must determine whether the evidence is sufficiently reliable and

relevant to assist the jury.    Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App. 2000).

Reliability can be demonstrated by showing: (1) the validity of the underlying scientific theory;

(2) the validity of the technique applying the theory; and (3) proper application of the technique

on the occasion in question. Id., (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.

1992).

                                             Analysis

         Here, the State’s expert witness was the DNA-section supervisor and technical leader for

the Texas Department of Public Safety. McGavitt contends the DNA expert rendered a different

conclusion from that reached in his report when he opined that blood found on McGavitt’s shirt

was a mixture, instead of “inconclusive,” as the report stated. During his testimony, the DNA

expert explained that the lab could not get a DNA profile of Luna because the body had been

burned and had decayed over several weeks before being discovered. He stated that several items

found at the crime scene had blood belonging to the same unknown male, but due to the lab’s

inability to profile Luna’s blood it could not be said whether the unknown male’s blood was

Luna’s. He also stated that the lab was able to conclude with a reasonable degree of scientific


                                                19
certainty that blood found on a pair of shorts belonged to McGavitt.3 He then testified that blood

was also found on a shirt belonging to McGavitt, but that it was “insufficient for interpretation,”

meaning there was a mixture of DNA present but at such small quantities that the lab could not

conclude whose blood it might be. On cross-examination, McGavitt noted that the report stated

the blood from the shirt was inconclusive and asked the witness why he had stated it was a mixture.

He responded that based on his review of the report and his own experience and technical

knowledge, the blood was actually “insufficient mixture data present for comparison.” McGavitt

then moved for a mistrial, which the trial court denied.

           McGavitt contends this testimony was confusing to the jury, mainly because it implied that

the “mixture” meant the blood belonged to both McGavitt and Luna. He asserts this also negated

his defensive theory that he was an unwilling participant. But as noted above, an expert witness

may give opinion testimony based on scientific knowledge if it is reliable and will help the trier of

fact. TEX.R.EVID. 702; Jackson, 17 S.W.3d at 670. The DNA expert’s testimony was helpful to

the jury in assisting them to understand whom the blood belonged to that was found on various

objects at the crime scene. And far from being confusing, the state’s expert witness made clear

that his testimony was the mixture was so low-level that it was impossible to determine the source.

The expert also testified that he had reviewed the data and was basing his opinion on his own

experience and technical knowledge as the DNA-section supervisor and technical leader. Based

on the record, the trial court did not abuse its discretion in concluding the expert’s testimony was

reliable and relevant in assisting the jury’s determination and thus in denying McGavitt’s motion

for mistrial. Issue Four is overruled.



3
    The expert testified that the odds the blood did not belong to McGavitt was approximately 1 in 3.081 quintillion.
                                                           20
                            Motion to Suppress Recorded Statement

       In his final issue, McGavitt contends the trial court erred in denying his motion to suppress

the recorded interview with Sgt. Flores because at some point between his initial contact with

plainclothes officers and the recorded interview the interaction had become custodial, and

therefore the initial incriminating statements along with the subsequent recorded statements should

have been suppressed due to his never having received Miranda warnings.

                                        Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In doing so, we “afford almost

total deference to the trial court’s determination of historical facts” when those facts are supported

by the record, and we will uphold the trial court’s decision if it is correct under any theory of law

applicable to the case. State v. Stevens, 235 S.W.3d 736, 739–40 (Tex.Crim.App. 2007); see

Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Where, as here, the trial court

does not make explicit findings of fact, we “review the evidence in a light most favorable to the

trial court’s ruling” and “assume that the trial court made implicit findings of fact supported in the

record that buttress its conclusion.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.

2000). Mixed questions of law and fact, or “ultimate facts,” are reviewed de novo, provided the

trial court did not resolve them based on an evaluation of credibility and demeanor. Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

                                          Applicable Law

       “Law enforcement and citizens engage in three distinct types of interactions:              (1)

consensual encounters; (2) investigatory detentions; and (3) arrests.” State v. Woodard, 341


                                                 21
S.W.3d 404, 410-11 (Tex.Crim.App. 2011).           The Fourth Amendment is not implicated by

consensual police-citizen encounters, and law enforcement is free to stop and question a citizen

without needing a justification. Id., at 411. Citizens may terminate consensual encounters at

will. Id. Such an encounter does not forfeit its consensual nature simply because the citizen is

not informed that he can ignore the officer or terminate the encounter; his continued acquiescence

to the request maintains its consensual nature. Id. Courts look at the totality of the circumstances

surrounding the interaction to determine whether a reasonable person in the defendant’s shoes

would have felt free to ignore the request or terminate the interaction.          Id.   Generally, an

encounter becomes a detention or arrest when an officer, through force or a showing of authority,

restrains a citizen’s liberty. Id., at 411.

        Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of

statements made by a defendant during custodial interrogation. TEX.CODE CRIM.PROC.ANN. art.

38.22. An oral statement is admissible against a defendant in a criminal proceeding if, among

other things: (1) the statement was electronically recorded; (2) the defendant was given the

warnings set out in Section 2(a) before the statement was made and it is included in the recording;

and (3) the defendant “knowingly, intelligently, and voluntarily” waived the rights set out in the

warnings. TEX.CODE CRIM.PROC.ANN. art. 38.22, § 3(a)(1)–(2). The warnings in Section 2(a)

of Article 38.22 are virtually identical to the Miranda warnings, and as with the Miranda warnings

are required only when there is custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526

(Tex.Crim.App. 2007)(citing TEX.CODE CRIM.PROC.ANN. art 38.22, §§ 3(a), 5).

                                              Analysis

        Here, the trial court held a suppression hearing outside the presence of the jury prior to Sgt.


                                                  22
Flores’s testimony.   Flores testified that when the plainclothes officers made contact with

McGavitt he was cooperative and willing to speak with them and the officers called Flores to come

meet with McGavitt because he was working on the case. When he arrived, Sgt. Flores thanked

McGavitt for his cooperation, to which McGavitt responded, “[n]o problem. I’ll speak to you

guys.” He testified McGavitt did not have a vehicle and the plainclothes officers offered to drive

him to the police station. McGavitt was not handcuffed and at the police station waited in the

common area. Flores testified he and McGavitt then walked to an unlocked interview room off

of the common area to speak. Flores stated he informed McGavitt he was investigating a case

involving a dead body and he wanted to ask him a few questions. McGavitt agreed, but Flores

stated that before proceeding he read him his Miranda warnings because he had been trained to do

so without exception. McGavitt volunteered that he had heard about the dead body on the news

and stated that he had information to give, adding, “it wasn’t me that did it.” Flores stated he

asked McGavitt if he would be willing to let him record the interview and McGavitt responded

affirmatively. Once the recording began, McGavitt was again read his Miranda warnings and the

interview proceeded from there. Sgt. Flores testified he arrested Appellant shortly after the

recorded interview concluded.

       At no point did Sgt. Flores testify to using force or a showing of authority to restrain

McGavitt’s liberty.    His testimony was that McGavitt was cooperative throughout their

interaction and at no point attempted to terminate the interaction. No contrary evidence was

provided.   The trial court implicitly found this version of events to be correct by denying

McGavitt’s motion to suppress, a finding we are required to give great deference because it was

based on evaluations of credibility and demeanor. Guzman, 955 S.W.2d at 89. Viewing the


                                               23
evidence in a light most favorable to the trial court’s ruling, we conclude the interaction between

McGavitt and police was a consensual encounter all the way up to the point he was arrested at the

conclusion of the recorded interview. Carmouche, 10 S.W.3d at 328. Because the interaction

was consensual, Miranda warnings were not required and McGavitt’s arguments to the contrary

are without merit.    Herrera, 241 S.W.3d at 526.        Accordingly, McGavitt’s fifth issue is

overruled.

                                        CONCLUSION

       Having overruled Issues One through Five, the judgment of the trial court is hereby

affirmed.



March 7, 2019
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




                                                24
