Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-24-00392-CR
Maximiliano GAZCA,
Appellant
v.
The STATE of Texas,
Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 20-CR-119
Honorable Jose Luis Garza, Judge Presiding
Opinion by: Velia J. Meza, Justice
Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice
Delivered and Filed: June 17, 2026
AFFIRMED
A jury convicted Maximiliano Gazca of murder and assessed punishment at forty years’
confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court
imposed the sentence consistent with the verdict. In his first point of error, Gazca argues the trial
court abused its discretion by admitting the testimony of the State’s crime-scene reconstruction
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expert, asserting the expert’s opinions were inadmissible ipse dixit 1 under Rule 702 and Kelly.
Second, he argues the court erred in denying his motion for new trial based on alleged juror
misconduct—specifically, a juror’s purported failure to disclose a relationship with a person
connected to the case and, separately, the juror’s alleged prohibited contact with that person after
the close of evidence. As the record and governing law show, Gazca did not preserve any challenge
to the reliability of the expert’s testimony; his first issue therefore presents nothing for our review.
As to the second issue, the motion for new trial was filed without affidavits or other competent
evidence establishing facts outside the record, and the trial court was free to disbelieve the unsworn
allegations of misconduct. Because the record supports the trial court’s decision to deny the motion
for new trial, the court did not abuse its discretion. We affirm.
BACKGROUND 2
Over six days of trial, the jury in Starr County heard extensive evidence concerning the
shooting death of Antonio “Tony” Aguilera. The State introduced eyewitness accounts, physical
evidence, and expert testimony to support its theory that Gazca intentionally fired nineteen shots
at Aguilera, striking him sixteen times. Investigating officers described their response to the scene,
the collection of physical evidence—including a cell phone—and the subsequent recovery of the
firearm from Gazca’s residence.
Gazca, however, testified that he acted in self-defense. He stated that he heard his sister
screaming outside, saw Aguilera walking onto the property, and ordered him to leave. According
to Gazca, when Aguilera refused, he went inside the house, “got [his] gun, loaded it, [and] shot
three times...” The jury ultimately evaluated these competing theories in reaching its verdict.
1
Ipse dixit is a Latin term that translates to “he himself said it.” See Ipse Dixit, BLACK’S LAW DICTIONARY (12th ed. 2024).
2
The record spans forty-seven volumes and contains hundreds of exhibits; we recount only those facts necessary to resolve the issues presented on appeal.
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To establish why Aguilera was on Gazca’s property at the time of the shooting, the State
presented testimony from Aguilera’s mother, Ana Maria Cortez. She explained that Aguilera had
three daughters and was living with his partner, Selene Yajaira Garza, in a rented home in El
Arroyo near Rio Grande City. On the afternoon of July 4, 2020, Cortez was working as a provider
in La Victoria when Garza dropped Aguilera off around 3:30 p.m. Aguilera appeared sad and
crying and told her Garza had left him. After Cortez finished work at 4:00 p.m., she drove Aguilera
toward his home, but as they approached Garciasville, Garza called and asked him to come to her
family’s (Gazcas’) residence instead. Cortez drove Aguilera to the Gazca residence and parked
near the entrance.
Cortez testified that she walked with Aguilera toward the entrance after Garza insisted he
go with her inside. Cortez then returned to her truck, leaving Garza and Aguilera talking outside.
Moments later, Cortez heard what sounded like fireworks, ran toward the house, and found her
son lying face down on the ground. She saw Garza and Gazca standing on the porch. As Cortez
approached, Aguilera briefly lifted his head and said “Mommy, Mommy” before Gazca shot him
again multiple times. As Cortez attempted to reach her son, Gazca pointed a gun at her and
threatened to shoot if she came closer, causing her to retreat. Cortez ran back to her truck to call
911. She identified Gazca in court as the person who shot Aguilera.
To corroborate the communications occurring before Aguilera reached the property, the
State next presented Special Agent Joseph Mirino, a digital forensic examiner with Homeland
Security Investigations. After describing his experience and qualifications, he explained that he
conducted the forensic extraction of a Motorola Moto E cellphone using Cellebrite. Mirino
described Cellebrite as a forensic tool that creates a one-way transfer of data from the device to a
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forensic workstation, ensuring that information flows only from the phone to the examiner’s
system and thereby preserving data integrity.
Mirino testified that the extracted data included a TextNow conversation occurring on July
4, 2020, between the phone’s user—identified as Selene Garza—and a contact saved as “mi
corazon.” He explained that TextNow functions like standard SMS messaging but uses internet
data rather than cellular carrier service. The Cellebrite report displayed messages and audio clips
in chronological order and automatically converted timestamps from UTC to Central Time.
The broader record reflects that approximately an hour before the shooting, the text
communications between Garza and Aguilera were hostile. Mirino testified the conversation began
at 3:44 p.m., when “mi corazon” sent an incoming message to Garza’s phone. The exchange
included a mixture of text messages and short audio clips, which Mirino identified as either
incoming or outgoing between the two devices. Several incoming messages from “mi corazon”
contained profanity, insults, and derogatory language, including “Fuck you,” “ungrateful,” and
“Don’t text or call.” Other messages consisted of repeated “Bye” or “Bye-bye” texts. Mirino also
played multiple outgoing audio messages sent from Garza’s device between 3:45 p.m. and 3:51
p.m., which were translated for the jury.
The record reflects that at approximately 3:54 p.m., Garza’s tone shifted and she began
asking Aguilera to “fix this.” Aguilera responded by asking her for money, and Garza eventually
agreed to give him money if he came to the residence where she was staying with her mother and
brother. At 4:25 p.m., Mirino testified that TextNow incoming messages to Garza’s phone read,
“I’m almost there,” and “at your house.” Mirino concluded his testimony by affirming that the
TextNow messages and audio files extracted from the device accurately reflected the entire
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exchange. According to the custodian of records who testified at trial, the 911 call was received at
4:28 p.m., shortly after the shooting began.
Dr. Norma Jean Farley, a forensic pathologist contracted with Hidalgo County, testified
regarding the autopsy she performed in this case. Dr. Farley testified that after she cleaned
Aguilera’s body, she identified 16 gunshot wounds. Gunshot Wound No. 2 was, in her opinion, a
fatal wound. The bullet perforated the left fifth rib, continued through the upper lobe of the left
lung, perforated all the way through the heart, and ended in the liver. She explained that
approximately 180 milliliters of blood accumulated in the pericardial sac and another 500
milliliters in the left chest cavity, causing cardiac tamponade, a condition in which external
pressure from blood prevents the heart from functioning. Dr. Farley testified that this type of heart
injury would cause death within minutes, not hours, depending on the person’s activity level and
heart rate. She agreed with the State that Aguilera would likely have remained conscious initially,
and it was possible he could have lifted his head or communicated briefly before becoming
unconscious.
Forensic Expert Michael Maloney: Qualifications
To help the jury understand the physical evidence underlying the shooting, the State
presented the testimony of Michael Maloney, a crime-scene reconstruction expert who analyzed
the physical evidence to reconstruct the shooting.
In a hearing outside the presence of the jury, the trial court heard testimony from Mr.
Michael Maloney, whom the State offered as an expert in crime-scene reconstruction and related
forensic disciplines. Maloney testified that he performs crime-scene reconstruction, provides
training and seminars, conducts forensic consulting, and has authored two books in the field. He
owns Forensic Solutions Incorporated, through which he instructs law enforcement personnel
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domestically and internationally on shooting incident reconstruction, bloodstain pattern analysis,
crime-scene reconstruction, and death scene investigation.
Maloney described a lengthy professional background beginning as a deputy and police
officer, followed by five years of service in the United States Marine Corps. He later served as a
senior instructor at the Department of Homeland Security’s Federal Law Enforcement Training
Center, specializing in death investigations and crimes against persons. After retiring from federal
service, he founded his forensic training company.
Maloney explained he has held multiple forensic certificates, though he could not obtain
the International Association for Identification’s crime-scene investigation certificate because he
helped write the examination. He is a certified criminal investigator through the federal system
and a certified criminal investigative special agent. His training includes wound dynamics,
mechanisms of injury, shooting reconstruction, bloodstain pattern analysis, forensic anthropology,
and other specialized coursework. He also holds a master’s degree in forensic science and
completed a year-long fellowship in forensic medicine under a medical examiner, where he gained
experience in autopsies, wound dynamics, mechanisms of injury, and cause-of-death
determinations.
Maloney has taught shooting reconstruction and bloodstain-pattern courses more than forty
times, has presented cases at national and international training programs, has published articles
in the field, and has testified approximately 25–30 times previously. His curriculum vitae was
admitted as State’s Exhibit 337 for the trial court’s review.
Maloney clarified that he is an expert in bloodstain pattern analysis, not “blood splatter,”
and that he was not asked to perform blood spatter analysis in this case. He acknowledged that he
does not hold specific accreditation in bloodstain analysis.
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Maloney’s Methodology:
Maloney testified that crime-scene reconstruction follows the scientific method, beginning
with the identification of possible events, followed by sequencing those events through deductive
reasoning. He explained that investigators isolate individual pieces of forensic evidence to
determine “who was where and doing what” during the critical moments of the incident. He
acknowledged that reconstruction is limited by the condition of the crime scene.
He described his training in the use of visual aids, including LIDAR, to demonstrate bullet
paths. LIDAR technology allows investigators to digitally remove or manipulate objects to
determine possible shooter and victim positions. Autopsy findings are incorporated by placing
wound locations onto a digital representation of the body and tracing the bullet’s likely path.
Maloney testified that shooting incident reconstruction has been accepted as scientifically valid in
prior court proceedings.
Maloney prepared a report in this case and reviewed extensive materials, including LIDAR
scans, autopsy and toxicology reports, autopsy photographs, crime scene photographs, firearms
and toolmark reports, gunshot residue analysis, officer incident reports, interviews of Gazca and
of his sister, Starr County Sheriff’s Office investigative materials, Texas Ranger supplemental
reports and field notes, and Valley Forensic inventory forms. 3
During his testimony to the jury, Maloney testified how he analyzes gunshot wound
dynamics during an autopsy. He identifies entrance and exit wounds, determines bullet paths
through the body, and evaluates whether bullets passed through soft tissue, struck bone, or
re-entered the body. Because bodies at autopsy lie in a neutral, “sterile” position, he uses dynamic
3
During a discussion outside the presence of the jury, defense counsel objected that the witness lacked qualifications in blood-spatter analysis. The State clarified that the witness would not offer blood-spatter opinions but would reference blood evidence generally. The trial court limited the testimony accordingly and found the witness qualified within those parameters.
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positioning to reconstruct how the victim’s body must have been oriented when each shot was
fired.
To integrate the autopsy findings with the physical scene, Maloney used LIDAR
technology to create a precise three-dimensional model of the environment. He imported the
LIDAR data into a CAD program to remove irrelevant clutter and retain only objects that affected
movement or line of fire. He then created a forensic reconstruction using 3D modeling to represent
Aguilera’s body type, height, and weight, and placed each entrance and exit wound on the model.
Using the autopsy report, he drew the bullet trajectories and extrapolated the likely direction from
which each shot originated.
Maloney walked the jury through each gunshot wound in isolation, showing how the
trajectories struck Aguilera’s chest, hip, shoulder, back, lower back, buttocks, and, in one instance,
passed between the legs and creased against the scrotum. He explained that the trajectory rods on
the model represented the direction from which each bullet traveled and that some shots—such as
one involving the forearm—could vary depending on how Aguilera’s arm was positioned.
Using the combined autopsy and scene data, Maloney identified what he called two distinct
shooting corridors. The first accounted for the initial shots to the chest, shoulder, arm, and upper
back. These trajectories required Aguilera to present specific parts of his body—such as the right
or left front shoulder—toward the shooter. As the shooting progressed, Maloney explained,
Aguilera would have turned, dropped, or fallen, eventually lowering his body below nearby objects
such as a table or dog kennel.
The second shooting corridor accounted for the shots to the lower back, buttocks, and the
trajectory passing between the legs. Maloney testified that the unusual angles of these shots could
be explained in only two ways: either the shooter moved or Aguilera moved. Based on the location
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of spent casings and physical obstructions, he concluded that the shooter likely remained in the
same general area. Therefore, Aguilera must have been changing position—such as falling forward
or rising onto his knees—during the final shots, which brought those trajectories into alignment
with the shooter’s position.
On cross-examination, defense counsel questioned Maloney on several matters related to
the State’s demonstrative exhibit. Counsel elicited that Maloney relied on LIDAR measurements
that were not obtained until approximately twenty-seven months after the shooting and that he did
not know whether any structural changes had been made to the residence during that period.
Maloney further acknowledged that his demonstrative exhibit depicted only eighteen or nineteen
shell casings and that a red truck appearing in the scene had not been removed from the rendering.
Counsel also questioned him about his compensation, establishing that he had been paid
approximately $15,000 for his work, and confirmed that he had never personally traveled to Starr
County in connection with the case. At the conclusion of Maloney’s testimony, the State rested its
case in chief.
The defense called Appellant Maximiliano Gazca in its presentation of evidence. Gazca
testified that he was twenty years old on July 4, 2020. He stated that he awoke late that day and
heard his sister, Selene Garza, crying and arguing with Aguilera on the phone. According to Gazca,
Garza told him that Aguilera wanted money and intended to come to the house. Gazca said he told
Garza to tell Aguilera not to come. Gazca testified that he was preparing to leave to celebrate the
holiday with friends when he heard yelling outside. He went outside and saw Aguilera enter the
property. Gazca stated that he told Aguilera to leave multiple times, but Aguilera refused. Gazca
then went inside, retrieved a gun, loaded it, and fired three “warning shots.” He testified that
Aguilera continued approaching him, laughing and insulting him, and that he feared Aguilera
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might harm him, his sister, or his nephew. Gazca said he fired at Aguilera because he was afraid,
referring to stories Aguilera had told him about using crack cocaine and acting violently. Gazca
testified that he did not intend to kill Aguilera and only wanted to stop him.
On cross-examination, Gazca acknowledged that he did not hear Aguilera say anything
during the argument with his sister. He confirmed that within the three-minute window between
Aguilera’s arrival and the 4:28 p.m. 911 call, he told Aguilera to leave, retrieved and loaded his
gun, fired warning shots, and then shot Aguilera multiple times. He admitted he never saw Aguilera
with a weapon and that Aguilera did not physically attack him, though he said Aguilera was
walking toward him. Gazca denied pointing a gun at Aguilera’s mother or threatening her. Gazca
maintained that he acted out of fear and did not intend to kill Aguilera. The jury returned a verdict
of guilty on Count 1, charging Gazca with the murder of Aguilera, and not guilty on Count 2, the
aggravated assault charge involving Aguilera’s mother, Ana Maria Cortez.
On May 6, 2024, after hearing the evidence presented at the punishment phase—including
Gazca’s claim that he acted under the influence of sudden passion and his request for community
supervision—the jury rejected that claim and found he did not act under sudden passion. The jury
then assessed his punishment at 40 years’ confinement, with no fine.
Thereafter, on June 6, 2024, Gazca filed a notice of appeal and contemporaneous motion
for new trial alleging, in relevant part, two instances of juror misconduct. The motion asserted that
a juror failed to disclose material information during voir dire that he knew the Starr County
District Clerk Orlando Velasquez. Second, the motion alleged that on May 4, 2020—after both
sides had rested and after the trial court had admonished the jury under Article 36.22 not to
converse or mingle with persons connected to the case, the juror was photographed at a municipal
election site with the Starr County District Clerk, Orlando Velasquez. The motion asserted that
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Velasquez is the fiancé of the lead prosecutor. The motion further alleged that this relationship
was not discovered until after trial, when a “Deed of Gift” from Velasquez and the juror came to
light. According to the motion, the juror’s conduct created a presumption of injury to the accused.
The motion included only three exhibits—a photograph, a gift deed, and a brochure, and failed to
include any affidavits. On July 18, 2020, the trial court signed an “Order Denying Motion for New
Trial and Hearing or Order Denying Motion for New Trial and Order to Set Aside Order Setting
Hearing,” thereby denying Gazca’s post-judgment motions. This appeal followed.
DISCUSSION
Standard of Review: Rule 702
As a threshold matter, we address whether Gazca preserved error under Rule 702 of the
Texas Rules of Evidence.
Gazca argues the trial court erred by admitting Maloney’s expert testimony despite an
alleged failure to satisfy Rule 702’s reliability requirements. If the opponent fails to object,
however, the complaint is waived, and the reviewing court will treat the expert as qualified. Matson
v. State, 819 S.W.2d 839, 851–52 (Tex. Crim. App. 1991).
The admissibility of expert testimony is governed by Texas Rule of Evidence 702, which
provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.
TEX. R. EVID. 702; see also Null v. State, 690 S.W.3d 305, 311 (Tex. Crim. App. 2024).
Preservation of error is governed by Texas Rule of Appellate Procedure 33.1. Under that
rule, a party preserves error only if the record shows a timely objection or request stating the
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specific grounds for the desired ruling, unless those grounds were apparent from the context. TEX.
R. APP. P. 33.1(a)(1)(A); see also Null, 690 S.W.3d at 318.
“The purpose for requiring a timely, specific objection is twofold: (1) it informs the judge
of the basis of the objection and affords him an opportunity to rule on it[;] and (2) it affords
opposing counsel an opportunity to respond to the complaint.” Null, 690 S.W.3d at 318 (quoting
Williams v. State, 662 S.W.3d 452, 460 (Tex. Crim. App. 2021)). Preservation of error is a systemic
requirement, and “on direct appeal it has been the common practice of this Court and of the
intermediate appellate courts in Texas to examine matters affecting the preservation of error,
whether separately argued by the parties or not.” Id. (citing Hughes v. State, 878 S.W.2d 142, 151
(Tex. Crim. App. 1992) (op. on reh’g)); see also Fuller v. State, 829 S.W.2d 191, 199 n.4 (Tex.
Crim. App. 1992).
Error Not Preserved
The record in this case reflects that Gazca objected to Maloney’s qualifications on the
ground that the State designated him as a blood-spatter expert even though he lacked the necessary
accreditation. Counsel moved either to strike the witness or limit his testimony accordingly. At
most, the objection sought to limit the scope of the witness’s testimony to matters within his
training and credentials. Nothing in the exchange alerted the trial court to any complaint regarding
the reliability of the scientific principles or methodologies underlying crime-scene reconstruction
under Rule 702, Kelly, or the ipse dixit doctrine. Counsel never invoked Kelly, challenged any
underlying scientific theory or technique, or requested a reliability hearing.
MS. GARZA: Your Honor, I was going to ask that he be stricken because, as he had
indicated, Your Honor – he had gone into the blood splatter analysis that he was designated to. He knew that he had to be licensed. He is not licensed, so for that reason he wouldn’t be able to testify on a criminal case with blood splatter analysis. They have not indicated that that was a mistake. He is not one of those, and he clarified that he is not.
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THE COURT: Is he testifying to blood spatter?
MS. BARRERA: Blood spatter, Judge, no. I mean, he is going to reference blood stains,
but not blood spatter. The discipline of blood spatter is different, and, you know, I don’t think it comes into question in this case.
MS. GARZA: And, Your Honor, that was the parameter -- I wanted there to be a limitation with regards to that. He indicates that he is not licensed with regards to that, and, as the Court is aware, he says he will not testify to that. Then so be it, Judge.
THE COURT: Okay. It’s in the record, and the Court is going to find he’s qualified. Can we move on? What else?
This objection preserved only a challenge to the witness’s qualifications. It did not preserve
any complaint regarding the reliability of the scientific principles or methodologies underlying the
testimony.
Our conclusion is guided by the Court of Criminal Appeals’ recent decision in Null v. State,
which addressed a similar preservation issue. See Null, 690 S.W.3d at 318–19. 4 There, the court
held that a generalized reliability objection failed to preserve the specific Rule 702 complaints
raised on appeal. The court explained that Rule 702 presents distinct inquiries regarding
qualification, reliability, and relevance, each of which may independently support or defeat
admissibility. Id. at 318. The court further observed that expert testimony may rest on multiple
scientific theories and methodologies and that requiring the proponent to defend every conceivable
4
Judicial decisions, including criminal cases, generally apply retroactively. Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 748 (Tex. 2017); see also Proctor v. State, 967 S.W.2d 840, 845 n.5 (Tex. Crim. App. 1998). Accordingly, cases pending on direct appeal when a new decision is issued are ordinarily subject to that decision’s governing principles. The Court of Criminal Appeals has recognized that this principle likewise applies in criminal cases. Courts may, however, expressly limit retroactive application in appropriate circumstances. Callison v. State, 218 S.W.3d 822, 825 (Tex. App.—Beaumont 2007, no pet.) (citing Proctor, 967 S.W.2d at 845 n.5).
For instance, a judicial decision may not apply retroactively when doing so would deprive a defendant of “fair warning” concerning the conduct subject to criminal penalties. Id. But retroactive application remains appropriate when the decision does not alter the definition of an offense, increase the range of punishment, or eliminate a substantive defense. Id. Null does none of those things. See generally Null v. State, 690 S.W.3d 305, 311 (Tex. Crim. App. 2024). Rather, it clarifies the already-existing preservation requirements codified in Texas Rule of Appellate Procedure 33.1 and applies longstanding principles governing preservation of Rule 702 complaints. See TEX. R. APP. P. 33.1. Retroactive application of Null therefore does not deprive Gazca of fair warning regarding conduct giving rise to criminal penalties, nor does it alter any substantive criminal right. Accordingly, Null applies to this appeal.
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scientific principle or method in response to a vague objection would impose an “incredible
burden.” Id. at 318–19. Accordingly, the opponent must identify the particular aspect of reliability
being challenged. Id.
Applying that reasoning here, Gazca’s objection concerned only the witness’s lack of
blood-spatter accreditation and did not alert the trial court to any challenge to the validity or
reliability of the scientific theories or methodologies underlying crime scene-reconstruction. As in
Null, arguments concerning the reliability of those underlying principles were raised for the first
time on appeal and are therefore forfeited. See TEX. R. APP. P. 33.1(a)(1)(A).
Accordingly, Gazca preserved a challenge to the witness’s qualifications, but not to the
reliability of the underlying scientific methodology. We therefore overrule Gazca’s first issue.
Standard of Review: Motion for New Trial
The Court of Criminal Appeals has emphasized that a trial court’s ruling on a motion for
new trial is reviewed under a uniformly deferential abuse of discretion standard, Najar v. State,
618 S.W.3d 366, 372 (Tex. Crim. App. 2021). Under that standard, the trial court is the exclusive
judge of the credibility of the evidence, even when the evidence is uncontroverted. Id. A trial court
is not required to accept any factual assertion unless it is conclusively established, such as by
stipulation or indisputable visual evidence. Id.; see also Evans v. State, 202 S.W.3d 158, 163–65
(Tex. Crim. App. 2006).
When the movant seeks a new trial based on matters outside the appellate record, Rule 21
requires that those facts be established by affidavit or other competent evidence. Elston v. Sherman
Coca–Cola & Dr. Pepper Co., 596 S.W.2d 215, 217 (Tex. App.—Texarkana 1980, no writ) (citing
Whited v. Powell, 285 S.W.2d 364 (Tex. 1956)); see also Mem’l Park Med. Ctr., Inc. v. Bob
Thornhill Trucking, No. 11-24-00064-CV, 2026 WL 191948, at *3 (Tex. App.—Eastland Jan. 22,
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2026, pet. filed) (explaining that the purpose of the affidavit requirement is to support allegations
by competent proof). Absent such proof, the trial court is free to disbelieve the allegations and
deny relief.
Rule 21.3(f) requires proof that the jury received outside evidence, engaged in improper
communication, or otherwise committed misconduct that probably affected the verdict. See Najar,
618 S.W.3d at 374. Because Gazca presented no affidavits or other competent evidence
establishing such misconduct, the trial court acted within its discretion in denying the motion.
Unsupported Allegations of Juror Misconduct Do Not Demonstrate an Abuse of Discretion.
The motion for new trial in this case asserts that a juror committed misconduct by failing
to disclose a relationship with the prosecutor when the panel was asked whether anyone knew the
prosecutor or members of the district attorney’s office. The motion relied primarily on Curry v.
State, which recognized that a conviction may be reversed when a juror withholds material
information despite the exercise of due diligence by the defense. See Curry v. State, 222 S.W.3d
745, 755 (Tex. App.—Waco 2007, pet. ref’d).
But the motion contains no affidavit or other competent evidence establishing the juror
intentionally withheld relevant information, that any undisclosed relationship actually existed, or
even that the juror was aware of the alleged relationship between the prosecutor and Orlando
Velasquez, the district clerk. Nor does the record show that defense counsel asked sufficiently
specific questions designed to assist the juror in identifying the alleged relationship. See id.
Instead, the motion relied primarily on the juror’s silence during voir dire and attached only
a photograph, a gift deed, and a brochure. Those exhibits do not establish juror misconduct or
demonstrate the existence of a material undisclosed relationship. The attached exhibits do not
establish misconduct.
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Under Najar, the trial court is the exclusive judge of the credibility of evidence offered in
support of a motion for new trial, and it is not required to believe any factual assertion unless it is
conclusively established. Najar, 618 S.W.3d at 372. Allegations in a motion—unsupported by
sworn testimony—are not evidence. And because juror-misconduct claims under Rule 21.3(f) must
be proven by competent evidence, the failure to attach affidavits within the 30-day deadline means
the movant has not met the burden to show that misconduct occurred, that it was material, or that
it probably caused injury.
Accordingly, the motion’s assertion that the juror “withheld” information is unsupported
by any evidence the trial court was required to credit. Given the absence of affidavits and the nature
of the allegations, the trial court acted well within its discretion in denying the motion for new
trial.
The motion further alleged that the same juror engaged in misconduct the day after both
sides rested by appearing at a municipal election site in the presence of the district clerk, who is
the prosecutor’s fiancé. The motion attached a photograph from Facebook purporting to show the
juror, district clerk and at least thirteen other individuals in the frame. But, as with the first
allegation, the motion was filed without any supporting affidavits. No affidavit from the juror, the
district clerk, counsel, or any witness was offered to explain the circumstances of the photograph,
to establish that any communication occurred, or to show that the juror violated the court’s
admonishments under Article 36.22.
A Facebook photograph, standing alone, does not establish juror misconduct. Elston v.
Sherman Coca–Cola & Dr. Pepper Co., 596 S.W.2d at 217; see also Mem’l Park Med. Ctr., Inc.
v. Bob Thornhill Trucking, No. 11-24-00064-CV, 2026 WL 191948, at *3. (The purpose of the
affidavit requirement is to support the allegations by competent proof). It does not show that the
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juror and the district clerk spoke, discussed the case, or had any interaction prohibited by Rule
21.3(f). And under Najar the trial court is not required to accept any factual assertion unless it is
conclusively established, for example, by stipulation or indisputable visual evidence. Najar, 618
S.W.3d at 372. The photograph here is not “indisputable visual evidence” of misconduct; at most,
it shows fifteen individuals in a photograph, which is susceptible to multiple plausible
interpretations. When the evidence supports more than one reasonable view, it lies within the trial
court’s exclusive purview to decide which interpretation to believe. Id. (citing Evans, 202 S.W.3d
at 165).
Moreover, juror-misconduct claims under Rule 21.3(f) require proof that the jury actually
received outside evidence, engaged in prohibited communication, or became intoxicated in a way
that probably affected the verdict. Najar, 618 S.W.3d at 374. The motion’s allegation—that the
juror was merely present at the same polling site as the district clerk—does not establish any of
these statutory grounds. Without affidavits or competent evidence showing that prohibited
communication occurred, the trial court was free to disbelieve the unsworn assertions in the
motion.
Accordingly, because the motion for new trial presented no competent evidence of
misconduct, the trial court did not abuse its discretion in denying relief. As such, we overrule
Gazca’s second point of error.
CONCLUSION
Gazca’s challenge to the admission of the State’s crime-scene reconstruction expert was
not preserved. His objections at trial concerned only the expert’s qualifications, and under Null, an
unpreserved reliability complaint presents nothing for review. His motion for new trial, likewise,
did not establish reversible error. The juror misconduct allegations were unsupported by affidavits
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or other competent evidence, and the attached exhibits did not demonstrate a violation of Rule
21.3(f). Under Najar, the trial court was not required to credit unsworn assertions.
Having overruled both issues, we affirm the trial court’s judgment.
Velia J. Meza, Justice
PUBLISH
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