Martinez v. State

• Decision Date: 11 May 1992
• Docket Number: Nos. 05-91-00443,05-91-00444-CR,s. 05-91-00443
• Parties: Paul MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 188

833 S.W.2d 188

Paul MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 05-91-00443, 05-91-00444-CR.

Court of Appeals of Texas Dallas.

May 11, 1992.

Discretionary Review Refused

Sept. 30, 1992.

R.D. Rucker, Dallas, for appellant.

Pamela Sullivan Berdanier, Dallas, for appellee.

Before ENOCH, C.J., and ASHWORTH ¹ and DIAL, ² JJ.

OPINION

ENOCH, Chief Justice.

Paul Martinez, Jr. appeals his conviction in a jury trial of the offenses of attempted voluntary manslaughter and murder. The jury assessed punishment at five years' confinement and forty years' confinement, respectively. On appeal, appellant asserts that: (1) the trial court abused its discretion in failing to dismiss the venire panel; (2) the trial court erred in overruling appellant's objection to the prosecutor's jury argument; (3) the trial court erred in admitting the autopsy report over his objection; (4) the charge given to the jury during the guilt-innocence phase was fundamentally defective; and (5) the evidence was insufficient to support his convictions. In a crosspoint, the State requests that the judgment for the murder conviction be reformed to show the jury's affirmative deadly weapon finding. We overrule appellant's points, sustain the State's crosspoint, affirm the judgment for the attempted voluntary manslaughter conviction, reform the judgment for the murder conviction and as reformed, affirm.

The record shows that appellant and his brother, Robert Martinez, were tried jointly. Robert Martinez was acquitted, and appellant was convicted for the attempted voluntary manslaughter of Alfonso Posada and for the murder of Steve Solis. Posada testified at trial that he, his brother, and Solis left the Ladies Choice Club on December 8, 1990 at about 2:00 a.m. Two men approached them in the parking lot and one of the men shot him in the head. A patron and a bartender testified that they saw a fight in the parking lot and heard shots. The bartender identified appellant as the man with the gun. A police officer was called to the scene. The officer testified that he stopped an automobile leaving just after the shooting. Appellant exited the passenger side of the automobile, began running, and threw a gun over a fence. Appellant was arrested and the gun was retrieved. Robert Martinez testified that he and Alfonso Posada were involved in a physical fight on December 8, 1990. He stated that he heard a shot and saw his brother, Paul, getting ready to fight with Steve Solis. He did not know that his brother had a gun. Robert Martinez was driving the car when a police officer stopped him. His brother jumped out of the car and took off running. Appellant did not testify.

PROSECUTOR'S COMMENT DURING VOIR DIRE OF JURY PANEL

In his first point of error, appellant asserts that the trial court abused its discretion in failing to dismiss the venire panel after the prosecutor made a harmful and improper comment. The relevant portion of the record is as follows:

[PROSECUTOR]: Because the Defendants do not have to prove anything here, because the State has the burden of proof, they cannot be required to testify. The Judge can't make them testify, their own attorneys can't, their mamas can't, the prosecutors can't. And, if they fail to testify here, you cannot read anything into that. You cannot infer their guilt from their failure to testify. You must look solely to the State to prove their guilt. Now, if they do testify, of course you can examine their testimony under a magnifying glass. Now, human nature--that's what the law tells us you have to do. And, it's human nature to want to know both sides of an issue before you decide it. We know that. You might say to yourself, "heck, if I was in there, I would testify." But you have to--

[CODEFENDANT'S COUNSEL]: I'm going to object [to] this line of Voir Dire as a comment on Defendant's failure to testify.

THE COURT: Well, I will sustain the objection. Let me just tell the jury panel this: Let's go back to our high school civics. You know, we have the Constitution of the United States and the first ten amendments are called the Bill of Rights. Well, the Fifth Amendment is the amendment against self incrimination and by law, in an American courtroom, no defendant in a criminal proceeding can be required to testify. And, that's the law and you're going to be instructed of that. If he doesn't testify, that can't be considered against him for any reason. And a lot of people have a difficult time with that. But, if you're going to serve on this jury, you have to be able to say, that you will not hold it against any defendant, if he doesn't testify. That's all it is. So let's just go on from there gentlemen, please.

[CODEFENDANT'S COUNSEL]: Your Honor, I believe due to Mr. Nelms prior statement, that we would ask the panel be discharged.

THE COURT: Overruled.

[CODEFENDANT'S COUNSEL]: Note my exception.

Generally, if a codefendant has not voiced his own personal objection, he is foreclosed from relying on the objection of his codefendant to preserve error. See Lerma v. State, 679 S.W.2d 488, 498 (Tex.Crim.App.1982). A defendant may adopt an objection made by a codefendant and, thus, preserve error when there is sufficient indication in the record of his intent to adopt the objection. See Woerner v. State, 576 S.W.2d 85, 86 (Tex.Crim.App.1979). In this case, the counsel for the defendant, Paul Martinez, Jr., remained silent after the prosecutor's comment. Due to this silence, the trial court was only given the opportunity to rule on the prosecutor's statement as it applied to the codefendant, Robert Martinez. Further, the record shows no indication that the defendant intended to adopt any of the codefendant's objections. We find that appellant failed to preserve error and, accordingly, overrule his first point.

PROSECUTOR'S JURY ARGUMENT FOLLOWING THE PUNISHMENT PHASE

In his second point of error, appellant asserts that the trial court erred in overruling his objection to the prosecutor's jury argument following the punishment phase of the trial. He contends that the argument was improper because it was not based on the evidence and was inflammatory and prejudicial. The relevant portion of the record is as follows [PROSECUTOR]: * * * Now, Paul Martinez is probably sorry, as he's sitting here today, I suggest. But, do you think he's sorry he shot Steve Solis? I doubt it. I suggest, no. The only thing he's sorry about, I submit to you, is that he's sorry he got caught. He's sorry that he's being put through this inconvience [sic]. He's sorry he didn't turn around and shoot Officer Fuentes, then he probably wouldn't have to be here today.

[DEFENDANT'S COUNSEL]: Your Honor, I'm going to object to him imputing to my defendant, that he's sorry that he didn't shoot a police officer. That's not a proper argument. That's inflammatory and prejudicial.

THE COURT: Well, the jury is instructed to remember the testimony as they heard it.

[DEFENDANT'S COUNSEL]: May I have a ruling on my objection?

THE COURT: I'll overrule the objection.

The State responds that the trial objection fails to comport with appellant's point of error on appeal and, alternatively, that the prosecutor's comment was invited in response to the defense counsel's jury argument that appellant did not have a violent past and was a good family man. The State also contends that there was sufficient evidence in the record to support the comment. We first address whether appellant properly preserved error.

Appellant's objection to the prosecutor's comment was based on grounds that it was an improper argument and inflammatory and prejudicial. Texas courts often hold that an objection made on the basis that an argument comprises an improper comment or argument is insufficient to preserve error because it is too general in nature. E.g., Huggins v. State, 795 S.W.2d 909, 912 (Tex.App.--Beaumont 1990, pet. ref'd); Meek v. State, 628 S.W.2d 543, 546 (Tex.App.--Fort Worth 1982, pet. ref'd). An exception exists, however, under circumstances reflecting that the trial judge and prosecutor are aware of the substance of the objection. Burdine v. State, 719 S.W.2d 309, 319 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). Then, a general objection will not waive the defendant's complaint for purposes of appellate review. Id.

In Everett v. State, the Texas Court of Criminal Appeals held that an objection on the ground that an argument was "improper" sufficiently preserved error for appellate review. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App.1986). The Court explained:

The very nature of the prosecutor's argument coupled with defense counsel's objection informed the court of the nature of the error. This is evidenced by the admonitions the trial court gave the prosecutor after overruling defense counsel's objection: "Just argue the evidence in this phase of the Hearing (sic)." In this instance we find appellant's objection to be sufficient.

Id. In Everett, as in this case, the prosecutor's argument placed evidence before the jury that was outside the record. See id. That the trial court was apprised of the nature of the error is evidenced in its comment: "Well, the jury is instructed to remember the testimony as they heard it." We find that the alleged error has been sufficiently preserved on this point.

Proper jury argument falls into one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to defendant's argument; or (4) a plea for law enforcement. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App.1990). The State argues that the prosecutor's comment is a reasonable deduction from the evidence because Officer Fuentes testified that when he was apprehending appellant, appellant took his gun out from under his shirt and "looks at me and he looks at the gun and, I'm giving him commands with my gun to drop the gun, and, then he decides to...