Martinez v. State

• Decision Date: 22 May 1996
• Docket Number: No. 71818,71818
• Citation: 924 S.W.2d 693
• Parties: Johnny Joe MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 693

924 S.W.2d 693

Johnny Joe MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 71818.

Court of Criminal Appeals of Texas En Banc.

May 22, 1996.

Rehearing Denied June 26, 1996.

Grant Jones, Corpus Christi, for appellant.

James D. Rosenkild, Asst. Dist. Atty., Corpus Christi, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

Appellant, Johnny Joe Martinez, was convicted of capital murder in January, 1994. TEX.PENAL CODE ANN. § 19.03(A)(2)¹. During the punishment phase, the jury affirmatively answered the special issue set forth in Texas Code of Criminal Procedure art. 37.071 § 2(b) and negatively answered the special issue set forth in Article 37.071 § 2(e). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071 § 2(g). Direct appeal is automatic. TEX.CODE CRIM.PROC.ANN. art. 37.071 § 2(h). We will affirm.

Appellant raises six points of error. He does not challenge the sufficiency of the evidence to support the jury's verdict finding him guilty of capital murder. However, he does contend the evidence is insufficient to support the jury's affirmative answer to the special issue on future dangerousness. We will address the points as they are presented to us.

Looking at the evidence in the light most favorable to the jury's verdict, the record reveals the following facts. Appellant took the stand on his own behalf at the guilt/innocence phase of trial. According to appellant, he and a friend left Kingsville around 5:15 p.m. on July 14, 1993, and headed toward Corpus Christi. They stopped on the way out of town to buy a 12-pack of beer and began drinking it. After they arrived in Corpus, and over the course of the evening, the pair stopped at a number of nightclubs and allegedly consumed multiple alcoholic drinks. ² They were soon joined by a third person. The trio was headed to yet another club when they met a man named Ernest Wortmann and engaged him in conversation. Wortmann decided to join the trio at the next nightclub. However, Wortmann was having car trouble, so appellant rode with him in case his car broke down along the way. By the time the group closed down the last bar, appellant had allegedly consumed twelve to thirteen alcoholic drinks.

According to appellant, the group then decided to go to a park on North Beach. Appellant again rode with Wortmann and the two stopped at a 7-11 convenience store where the deceased was working the early morning shift of July 15, 1993. Upon arriving at the 7-11, Wortmann entered the store and asked to use the telephone. Wortmann then apparently went back outside and told appellant that the car needed to cool down. Appellant suggested that the two go to the beach, but entered the store first to use the restroom. Before leaving the store, appellant and Wortmann are seen on the security videotape shoplifting several items. Back outside, appellant and Wortmann engaged in conversation and Wortmann allegedly told appellant that he was recently out of prison for robbing stores. Appellant jokingly suggested that he rob the 7-11. While standing by the car, the two discussed how easy it would be to rob the store, so appellant decided to rob it. Appellant testified that, while he normally did not carry a knife, he had a small knife with him that evening. He stated that he entered the store with the intent to steal money, but only intended to use the knife to scare the clerk.

The videotape then depicted appellant re-entering the store. Appellant is shown apparently asking the deceased for something and when the deceased partially turned away, appellant grabbed him around the neck and put the knife to his throat. Appellant then forced the deceased around the counter and into the cash register area. The video revealed that appellant had one arm in a choke hold around the deceased's neck and his other hand pressing the knife into the deceased's throat. The deceased opened the cash register and appellant took the money. Appellant then stabbed the deceased approximately two or three times before the deceased fell facedown and motionless on the floor. Appellant then thrust the knife into the deceased's back several more times before exiting the store.

When asked why he stabbed the deceased, appellant answered, "I don't know. That's a question I will never be able to answer." He said that he did not intend to kill the deceased. In fact, he told the jury that he did not even remember stabbing the deceased as many times as he did. ³

Appellant further told the jury that he got scared after the stabbing and just started running. He stated that he ran to the beach, got down on his hands and knees, and started crying. He testified that he was not sure what he did with the knife, but that he turned himself in shortly thereafter. Appellant also admitted to the jury that he had lied about several remarks he made in his statements to police. ⁴

A short while after the stabbing, Police Officer Kureska was dispatched to the Sandy Shores Hotel in reference to an individual who called the police saying he was involved in the convenience store crime. Upon arriving at the hotel, the officer entered the lobby and observed appellant sitting on a couch in the presence of two security guards. Kureska testified at trial that appellant was very calm and quiet and seemed somewhat withdrawn. Kureska said appellant was cooperative and did not appear to be under the influence of alcohol. A hotel employee and one of the security guards also confirmed that appellant did not appear to have the smell of alcohol on his breath. The hotel employee further noted that appellant's clothes did not appear sandy or wet. During the trip to the police station, appellant asked Officer Ilse, "Is the guy I stabbed dead?"

At the police station appellant was taken to a room where he came into contact with Sergeant R.L. Garcia. Garcia stated that appellant was angry and told the officer that he had stabbed a man and wanted to talk to the officer "now." Garcia noted that this was said in an insistent and demanding tone. However, during the actual interview, appellant was cooperative and understanding. Appellant even attempted to help officers locate the knife he had used to stab the store clerk. Garcia noted that appellant did smell of alcohol, but he did not believe appellant was intoxicated.

At the punishment stage of trial, the State presented no additional evidence. Appellant, on the other hand, called long time friend, Verna Rodriguez, to testify to appellant's non-violent character. However, Rodriguez also told the jury that appellant grew up in a violent neighborhood and frequently got in disputes with people in which he would argue verbally. According to appellant's younger brother, David Martinez, appellant dropped out of school in the 10th grade ⁵ and joined a job training program, but appellant never finished the program. Martinez also recalled that his brother was involved in a school fight. Finally, the county jail coordinator testified that the jail did not have any "significant" problems with appellant. The coordinator stated that appellant's jail record included three minor write-ups including a "disagreement" with a guard.

In his first point of error, appellant contends that the evidence was insufficient to support the jury's affirmative answer to the special issue on future dangerousness. In reviewing the sufficiency of the evidence at the punishment, it is well-settled that we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have made the finding of future dangerousness beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.), cert. denied, --- U.S. ----, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). ⁶ The circumstances of the offense alone may be sufficient to sustain the jury's affirmative answer to the issue on future dangerousness. Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.), cert. denied, --- U.S. ----, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). It may be helpful in the instant case to examine those cases in which we have found the evidence insufficient. However, we note that each case must be resolved on its own facts. Id.

In Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987), the defendant entered a grocery store and, without warning, shot a clerk and fired at the store owner. He then went behind the counter and stole both of the victims' purses. In Roney v. State, 632 S.W.2d 598 (Tex.Crim.App.1982), the defendant, without provocation, shot a grocery store clerk during a robbery, but after he had received the money. Another clerk testified at trial that the victim had his hands raised when he was shot. In Beltran v. State, 728 S.W.2d 382 (Tex.Crim.App.1987), during a robbery of a tortilleria, the defendant shot the victim immediately after she handed him the money from the cash drawer. In each of these instances, we acknowledged that the killings were senseless and unnecessary. However, we nevertheless held the circumstances of the offenses were not so brutal as to prove in and of themselves that any of the three defendants posed a continuing threat to society. See Dinkins, supra.

The circumstances in the instant case are distinguishable from these cases. In each of the above cases, the defendant utilized a gun to commit murder--an instrument which can potentially be used from across a room or at a very close range and which often results in death resulting from a single shot, even if not well-aimed. See Warren v. State, 562 S.W.2d 474 (Tex.Crim.App.1978) (defendant entered home unarmed, but when owner unexpectedly came home, found defendant, and pulled a gun, defendant "just shut his eyes and shot."). In the present case, on the other hand, appellant's weapon of choice was a knife--a weapon which, by virtue of its very nature, forces the user to be in such close proximity to his...