Opinion
NO. 14-19-00005-CR
08-27-2020
VICTOR RENE MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 17CR3014
MEMORANDUM OPINION
Appellant Victor Rene Martinez challenges his conviction for burglary of a habitation with intent to commit sexual assault, contending the trial court erred in failing to include a jury charge instruction during the punishment phase of trial requiring the jury to find beyond a reasonable doubt that appellant committed certain extraneous offenses. We conclude that appellant was not entitled to the instruction as to a deferred adjudication, prior convictions, and charged offenses. We presume without deciding that he was entitled to the instruction as to other purported extraneous offenses. However, appellant has not demonstrated on this record that he was egregiously harmed by the trial court's omission. We affirm.
Background
During the punishment phase of trial, the complainant testified that she and appellant began dating when he was 21 years old and she was 15 years old. She conceived her first child with appellant when she was 15 and her second child with appellant when she was 16. She said the relationship was consensual, but she did not know that "in the eyes of the law," appellant had committed sexual assault of a child.
According to the complainant, the relationship slowly deteriorated due, in part, to appellant's drug use. When the complainant was pregnant, she realized appellant had been doing drugs. She discovered a bag of something that "looked like meth" in their home. Whenever the complainant confronted appellant about his drug use, he would become aggressive. He pushed her on one occasion, and on another occasion, he grabbed her by the hair and hit her head against a headboard. The complainant recounted two times when appellant sexually assaulted her. She also testified, "And there [were] many times where he would hit me and throw stuff at me while I was pregnant with my daughter."
The trial court further admitted evidence from the State that appellant had a misdemeanor conviction for burglary of a motor vehicle and a misdemeanor conviction for theft, and was on deferred adjudication probation at the time of trial for credit card abuse, a state jail felony.
Appellant's mother testified. During cross-examination, the prosecutor asked appellant's mother whether she knew that appellant previously had been charged with robbery, which was later reduced to the theft conviction, and had two other pending misdemeanor theft charges at the time of trial. The prosecutor also asked the witness if she knew appellant had committed felony sexual assault of a child.
In closing argument, the prosecutor mentioned the pending theft charges and that appellant had sexually assaulted the complainant "when she was a child" because she was under seventeen years old when they had children together. The prosecutor also argued that appellant had committed extraneous offenses as follows: "Two thefts, a robbery, a [burglary of a motor vehicle], this case, sexual assault, meth user, abusive, breaks down doors."
Discussion
Appellant contends that the trial court erred in failing to include a jury charge instruction that extraneous offenses must be proven beyond a reasonable doubt before a jury may consider them in assessing punishment. We first address whether appellant was entitled to such an instruction. We conclude that he was not entitled to the instruction as to his deferred adjudication, prior convictions, and charged offenses. We presume without deciding that he was entitled to the instruction as to the other purported extraneous offenses. We then address whether appellant was harmed by the trial court's failure to include the instruction.
I. Was appellant entitled to an extraneous offense burden of proof instruction?
After a finding of guilt, evidence may be offered by either party as to any matter that the court deems relevant to sentencing, including but not limited to: (1) the prior criminal record of the defendant; (2) the general reputation of the defendant; (3) the character of the defendant; (4) an opinion regarding the reputation of the defendant; (5) the circumstances of the offense on trial; and (6) extraneous offenses and bad acts that are shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (citing Tex. Code Crim. Proc. art. 37.07 § 3). The only types of evidence for which a burden of proof is articulated are unadjudicated extraneous offenses and bad acts. Id.
A jury charge instruction is required as to unadjudicated extraneous offenses and bad acts so that the jury does not apply a standard of proof less than reasonable doubt in its determination of the defendant's connection to such offenses and bad acts. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). A trial court has a sua sponte duty to give a reasonable doubt instruction concerning extraneous offenses during the punishment phase of trial if there is some evidence of unadjudicated offenses. Id.; cf. Bluitt, 137 S.W.3d at 54 ("Giving such an instruction is a useless act if no unadjudicated offenses have been introduced.").
Appellant complains of the trial court's failure to submit a reasonable doubt instruction based on the following extraneous offense evidence admitted during the punishment phase: two sexual assaults of a child (the complainant); methamphetamine use and having the substance around the children; and multiple assaults of the complainant, including sexual and physical assaults while the complainant was pregnant. Appellant does not explicitly assert that he was entitled to the instruction as to his deferred adjudication and prior convictions, but to the extent that he raises that issue, he was not entitled to the instruction. Appellant also contends that he was entitled to the instruction based on the trial court's admission of evidence that appellant was charged twice with misdemeanor theft and charged with robbery resulting in a theft conviction. We conclude the criminal charges are not evidence of unadjudicated extraneous offenses that would entitle appellant to the instruction. However, for the reasons discussed below, we presume without deciding that appellant was entitled to the instruction as to the evidence of his alleged prior assaults and drug use.
An extraneous offense burden of proof instruction is not required for deferred adjudications and prior convictions. Bluitt, 137 S.W.3d at 54. And criminal charges are not evidence that appellant committed unadjudicated offenses. See In re V.V., 349 S.W.3d 548, 599-600 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (Jennings, J., dissenting) ("It is hornbook law that a criminal information cannot be considered as evidence that an accused has committed a criminal offense."); McLean v. State, 312 S.W.3d 912, 917 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating jury charge contained appropriate instruction that "criminal information is not evidence of guilt"); Gonzales v. State, 977 S.W.2d 189, 190 (Tex. App.—Austin 1998, pet. ref'd) ("An indictment or information is not evidence."). Accordingly, appellant was not entitled to the instruction as to his deferred adjudication, prior convictions, and charged offenses. Presuming without deciding that appellant's purported prior assaults of the complainant and prior drug use are victim impact evidence and appellant was entitled to a reasonable doubt instruction as to this evidence, we conclude that appellant was not egregiously harmed by the trial court's omission of the instruction.
Our sister court has held that victim impact evidence does not require a burden of proof jury instruction during the punishment phase of trial. See Rayme v. State, 178 S.W.3d 21, 26 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (citing Brown v. State, 54 S.W.3d 930, 932 (Tex. App.—Corpus Christi 2001, pet. ref'd)). Neither this court nor the Court of Criminal Appeals has addressed whether such an instruction is required as to victim impact evidence.
II. Was appellant egregiously harmed by the trial court's failure to give a reasonable doubt instruction concerning unadjudicated extraneous offenses?
As noted, a trial court has a sua sponte duty to give a reasonable doubt instruction concerning extraneous offenses during the punishment phase of trial if there is some evidence of unadjudicated offenses. See Huizar, 12 S.W.3d at 484; Bluitt, 137 S.W.3d at 54. Appellant did not object to the jury charge or request the reasonable doubt instruction, so he is entitled to reversal only if the trial court's purported error resulted in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Orellana v. State, 489 S.W.3d 537, 543 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Egregious harm is the highest standard of harm an appellant must meet, in part because it involves error raised for the first time on appeal. Zarco v. State, 210 S.W.3d 816, 824 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Almanza, 686 S.W.2d at 172-74). We must determine the impact of the error on a case-by-case basis. Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
Under this standard, the judgment may be reversed only if the purported error is so egregious and creates such harm that it deprives the accused of a fair and impartial trial. Almanza, 686 S.W.2d at 172; Orellana, 489 S.W.3d at 543. An accused is denied a fair and impartial trial when the error (1) went to the very basis of the case, (2) denied the accused a valuable right, or (3) vitally affected his defensive theory. Orellana, 489 S.W.3d at 543. We review the degree of harm in light of the entire jury charge, the state of the evidence, counsels' argument, and any other relevant information revealed by the trial record as a whole. Id. at 543-44 (citing Almanza, 686 S.W.2d at 171, and Villarreal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015)). Appellant must show he suffered actual rather than theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011); Orellana, 489 S.W.3d at 544.
We first examine whether the State's evidence of appellant's guilt was clear, direct, and unimpeached. See Orellana, 489 S.W.3d at 544. During the guilt-innocence phase of trial, the State introduced testimony from the complainant that appellant broke into the complainant's apartment and physically and sexually assaulted the complainant. She testified that she and appellant had had a prior relationship and they had two children together. The complainant was fifteen and sixteen years old when the children were born.
On the night of the offense, the complainant saw a white pickup truck in the parking lot of her apartment complex that looked like appellant's. The complainant became nervous, so she moved a couch in front of her door. Despite this, appellant broke into the apartment after the complainant and the children had fallen asleep.
When the complainant awakened, appellant was standing by her bed. The complainant asked appellant to leave. He walked out, and the complainant heard the door open and close, so she assumed appellant had left. The complainant got up to get her son some water, and appellant jumped out of the living room and told the complainant he was not leaving until she answered some questions.
Appellant then physically and sexually assaulted the complainant. The complainant testified that appellant's being violent was not "unusual" and "[m]aybe he was on something." The complainant eventually persuaded appellant to leave by promising not to tell anyone what happened. The complainant also testified that appellant had a history of hitting and sexually assaulting her.
A nurse did a sexual assault examination on the complainant and testified that the complainant had injuries on her face and pain consistent with the version of events relayed to the nurse by the complainant. Appellant, moreover, could not be excluded as the contributor of DNA from sperm obtained from the sexual assault examination of the complainant. The DNA profile was 12.5 octillion times more likely to have come from appellant than another person.
The State also introduced appellant's recorded statement through an officer who had interviewed appellant. Appellant initially was dismissive and claimed he could not recall what had happened, but then his statement became more specific. He inconsistently claimed that he and the complainant had not argued but later claimed that they had a physical confrontation and the complainant kicked him. Appellant first said he had no "sexual interest in" the complainant and "he was done with her"; then, he said he and the complainant had consensual sex, but appellant claimed he did not ejaculate. This was contradicted by the DNA obtained from the sexual assault examination of the complainant.
The complainant's sister testified for the defense that her sister was not a "truth teller" and "has so much anger." Despite appellant's statement denying the assault, which was not very helpful to the defense, and the testimony from the complainant's sister, the evidence presented during the guilt-innocence phase established a strong case for appellant's guilt. See id.
The jury charge for the guilt-innocence phase of trial included a reasonable doubt instruction as to extraneous offenses:
You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.Accordingly, the jury had this instruction before it when it considered evidence of appellant's physical and sexual assaults of the complainant when she was a child and appellant's drug use. See Zarco, 210 S.W.3d at 825, 827 (considering in egregious harm analysis that guilt-innocence charge "properly instructed the jurors not to consider the extraneous offenses unless they were convinced beyond a reasonable doubt that they occurred").
During the punishment phase, as discussed, the State introduced evidence of the following unadjudicated extraneous offenses: two sexual assaults of a child (the complainant); methamphetamine use and having the substance around the children; and multiple assaults of the complainant, including sexual and physical assaults while the complainant was pregnant. Appellant did not present any evidence challenging the State's version of the bad acts.
The State also introduced evidence of appellant's two prior misdemeanor charges and the robbery charge that was reduced to theft. As discussed, these charges are not evidence of unadjudicated bad acts.
The evidence of sexual assault of a child was uncontradicted in that the complainant was under the legal age of consent when she had children with the appellant. The complainant also testified that she believed appellant used methamphetamines, she found what she believed was methamphetamines in the apartment where she and appellant had lived with the children, and appellant had assaulted her and sexually assaulted her numerous times, including while the complainant was pregnant. Evidence of these infractions was clear, strong, direct, and unimpeached. See Orellana, 489 S.W.3d at 544.
Turning to the closing arguments in the sentencing phase, the prosecutor focused on the fact that appellant committed the present offense while he was on deferred adjudication probation. Based on that fact, the prosecutor asked the jury not to consider probation for appellant. The prosecutor highlighted the facts of the present offense in asking the jury to give appellant a prison sentence:
[T]hink about the message that it sends to the community if you commit an offense like this and he gets probation. What message that sends is you're lucky, you don't get caught. If you're unlucky, you get probation. You can go into someone's home in the middle of the night while they're asleep and force them to have sex with you just because you want to establish, mark your territory, that they're yours because
you had kids together, and if she can have sex with someone else, she can have sex with him, and he is actually discussing probation. You should all be offended that he wants you to feel guilty by not saying no, no, no, no, no probation, not for you. He is absolutely not worthy of being on probation.
The prosecutor also argued that appellant did not deserve probation because of his criminal history, in addition to the pending charges of theft, the sexual assault of a child, robbery charge, methamphetamine use, and prior abusive behavior toward the complainant. The linchpin of the prosecutor's argument was that appellant "treated [the complainant] like his property" and tried to control her. The State asked for a 30 year sentence out of a possibility of life.
We conclude the arguments of counsel weigh against a holding of egregious harm. Although the prosecutor mentioned unadjudicated offenses in his closing argument, he gave multiple unrelated reasons supporting his argument in favor of a 30 year sentence.
As to the jury charge at the punishment phase, the jury was instructed that it could "take into consideration all the facts shown by the evidence admitted . . . in the full trial of [the] case and the law as submitted . . . in [the] charge." The jurors were further instructed that they were "the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony, but [they were] bound to receive the law from the Court . . . and be governed thereby." Nothing in the charge weighs in favor of or against the conclusion that appellant suffered egregious harm. Neither the parties nor the judge told the jury that the State's burden was anything less than beyond a reasonable doubt. See id. at 545.
In addressing other relevant information, we may also consider the severity of the punishment assessed. See id. The jury returned a 25 year sentence out of a possibility of 99 years or life. In light of the evidence of appellant's prior convictions and the fact appellant was on probation when he committed the present offense, the jury likely was focused on the probability that appellant would not be successful if placed back on probation. We cannot speculate as to the punishment the jury would have assessed had the reasonable doubt instruction been provided, but the evidence presented included several aggravating factors that the jury likely considered in determining appellant's sentence, such as the violence appellant perpetrated during the present offense as well as appellant's probation violation and prior convictions, which, as discussed, did not entitle appellant to a reasonable doubt instruction. See id. at 546. Despite these facts, the punishment assessed was at the lower end of the punishment range. See Zarco, 210 S.W.3d at 827.
Considering the totality of the record, we conclude appellant has not shown he was egregiously harmed by the omission of a reasonable doubt instruction regarding evidence of extraneous unadjudicated bad acts. See Orellana, 489 S.W.3d at 546. The presumed charge error did not affect the very basis of the case, deprive appellant of a valuable right, or vitally affect a defensive theory. See id. The trial court's error, if any, accordingly, did not deprive appellant of a fair and impartial trial. We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice Panel consists of Justices Christopher, Bourliot, and Hassan. Do Not Publish — TEX. R. APP. P. 47.2(b).