Martin Gutierrez Jr. v. State, 05-16-00638-CR

Appellant Martin Gutierrez was tried for murder after police found him kneeling over Cesar Martinez‑Zamarripa’s body with a knife and his foot on the victim’s neck; he repeatedly said “I killed him.”
Autopsy found homicidal blunt force trauma and neck compression; victim’s blood alcohol was .212.
A jury convicted Gutierrez; at punishment the State sought enhancement to life/25–99 years under §12.42(d) based on two prior felony convictions (robbery, 2000; assault‑family, 2006); Gutierrez pleaded true to both enhancement paragraphs.
During punishment argument, the prosecutor said, “Don’t believe what the defense attorney is saying. He is paid,” prompting an objection, a jury instruction to disregard, and a denied mistrial motion.
The court’s punishment charge described the prior convictions as sequential; the jury assessed 60 years’ confinement and a $10,000 fine.
Gutierrez also contended the charge failed to explain that good‑conduct time was inapplicable; the court omitted one inapplicable sentencing sentence from the Article 37.07 instruction.

Issue	Gutierrez's Argument	State's Argument	Held
Whether denial of mistrial was error after prosecutor said defense counsel "is paid"	Prosecutor’s comment improperly struck at appellant over counsel’s shoulder; mistrial required	Comment was improper but not extreme; court’s instruction cured; mistrial not necessary	Denial of mistrial was not an abuse of discretion; conviction stands
Whether punishment charge improperly enlarged enhancement by stating priors were sequential when sequence not alleged/proven	Charge misstated enhancement by asserting sequence not pleaded or proven; prejudiced punishment	Gutierrez pleaded true to enhancements, relieving State’s burden; record does not affirmatively show enhancements improper	No error: court correctly instructed jury on sequential priors given plea of true
Whether omission/explanation about good‑conduct time violated due process	Failure to explain good‑conduct inapplicability deprived appellant of correct sentencing information	Instruction tracked mandatory Article 37.07 language; omitted only an inapplicable sentence	No due process violation; Article 37.07 instruction permissible

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (mistrial remedy and review of trial court discretion)
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (standards for mistrial and prejudice)
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (factors for evaluating improper jury argument)
Westbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (instruction to disregard normally cures prosecutorial remark)
Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 2008) (proof sequence required for §12.42(d) habitual enhancement)
Hopkins v. State, 487 S.W.3d 583 (Tex. Crim. App. 2016) (effect of defendant pleading true to enhancement paragraphs)
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002) (constitutionality and requirement of Article 37.07 §4(a) jury instruction)