Martinez v. State
| Decision Date | 29 April 2021 |
| Docket Number | NO. 01-19-00906-CR,01-19-00906-CR |
| Parties | DAVID RENE MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 185th District Court Harris County, Texas
A jury convicted appellant, David Rene Martinez, of indecency with a child by exposure,1 found two felony enhancements true,2 and assessed his punishment at65 years' confinement. In five issues on appeal, appellant contends that (1) the appeal should be abated so that the trial court can supplement the clerk's record; (2) the trial court erred in allowing evidence of an extraneous offense; (3) the evidence is legally insufficient to support the conviction; and (4-5) defense counsel provided ineffective assistance during both the guilt-innocence and punishment phases of trial. We affirm.
On January 23, 2018, six-year-old Katie3 was in the car with her mother and her four-year-old sister when her mother stopped at the Quick Quack Car Wash. Katie and her sister sat in the back seat while their mother vacuumed the car. While Katie's mother was parked in one of the complimentary vacuum stalls, appellant pulled his red Jeep into the stall next to the driver's side of their vehicle, opened both of his passenger-side doors, and began to clean his vehicle as well. As Katie's mother was busy vacuuming, appellant made eye contact with Katie and pulled his penis out of his sweatpants. He smiled at Katie, put his finger to his lips to "shush" her, and began masturbating. When he was finished, appellant turned toward his car and"peed" in a Taco Bell cup, which he then threw into the garbage. Katie thought appellant "peed" because some went on the ground and she said it was yellow.
Katie did not say anything to her mother at the time, but later that night she told her mother that a man showed her his "private part." Katie's mother initially though Katie was talking about a man at school, but Katie clarified that it was "the man at the car wash." Katie told her mother that the man made a "scratching" motion, but Katie's mother testified at trial that Katie demonstrated a rubbing motion.
Katie's mother immediately drove back to the car wash and reported the incident to Nicholas Gamboa, the assistant manager on duty. Gamboa told Katie's mother that he would contact his manager and they would check to see if the security system captured anything on video.
Katie's mother returned home and called the police. Deputy S. McIntyre with Precinct 4 of the Harris County Constable's Office responded to the 9-1-1 call and interviewed Katie that same evening. The next day, McIntyre went to the car wash and talked to Gamboa and another employee, Jap Murry. McIntyre also watched the car wash's video, which did not show the vacuum stalls, but did capture appellant's license plate as he drove through the car wash.
Based on this information, Investigator J.E. Craig of the Harris County Sheriff's Office prepared a photo array that included appellant. On February 6, 2018,both Katie and her mother identified appellant as the man they had seen at the car wash. Appellant was then arrested.
At trial, both Gamboa and Murry testified that they had seen appellant on the day of the offense. Gamboa remembered appellant because he was there for an unusually long period of time. While most patrons go through the car wash, then vacuum their car and leave, appellant was there for two to three hours. During that time, he drove through the car wash twice. He also moved his vehicle into several of the vacuum stalls; Gamboa acknowledged that all the vacuum stalls did not always work properly. At least twice, Gamboa saw appellant parked next to Katie's mother. It seemed to Gamboa that appellant was following them. Gamboa also noticed appellant "fiddling with his pants" at one point, but he did not see appellant expose himself. Murry, too, testified that he remembered appellant "fixing his pants as if he just used the bathroom . . . like he was just messing around with his pants, as if he used the bathroom or pulled his pants up, I don't know."
Katie and her mother both testified at trial. Katie's mother identified appellant at trial, though Katie did not. While on the stand, Katie demonstrated appellant "shushing" her and when asked what appellant was doing with his penis, Katie responded, She also drew a picture of what she saw, which was readily identifiable as a penis.
In his defense, appellant offered medical evidence that, at the time of the offense, he had a large, baseball-shaped umbilical hernia. His defense suggested that Katie did not see his penis but may have mistaken his umbilical hernia for a penis.
After the defense rested, the State called Patricia Mehmood as a rebuttal witness, who testified that, over 22 years earlier, she had been walking down the street when appellant pulled up in a truck and asked her if she wanted a ride. When she declined, appellant drove by again and asked the same question; again Mehmood declined. The third time appellant drove by, Mehmood saw that he was masturbating and saying, When Mehmood "cussed at appellant" and told him she had his license plate number, appellant drove off. He was later arrested, charged with, and convicted of, indecent exposure.
In issue one, appellant argues that "[d]ue to mistakes in the jury charges this appeal should be abated so the trial court can supplement the clerk's record." Specifically, appellant points out that "[t]he jury charges appeared out of order numerically," "[t]he culpability charge and the punishment charge are also mixed together," and that an abatement was necessary so that the trial court could properly "recreate the charges as given to the jury."
However, after appellant's brief was filed, the Harris County District Clerk's Office filed a supplemental clerk's record that complies with appellant's request.
Accordingly, we overrule issue one as moot.
In issue three, appellant contends that the evidence is legally insufficient to prove that he exposed his penis to Katie with the intent "to arouse or gratify [his] sexual desire[.]" Although raised as his third issue, we address appellant's sufficiency issue first because in it he seeks an acquittal. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("We address appellant's second issue first because it challenges the sufficiency of the evidence and seeks rendition of a judgment of acquittal."); see also King v. State, No. 01-18-00335-CR, 2019 WL 5432053, at *2 (Tex. App.—Houston [1st Dist.] Oct. 24, 2019, pet. ref'd) () ( same); see also Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010) ().
We review the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In assessing the sufficiency ofthe evidence to support conviction, a reviewing court must consider all evidence that the jury was permitted, whether rightly or wrongly, to consider. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); Waggoner v. State, No. 01-09-00215-CR, 2010 WL 3294228, at *3 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.) (mem. op., not designated for publication) ("[I]n conducting a sufficiency review, we must consider all the evidence presented to the jury, whether rightly or wrongly admitted."). Our role is that of a due-process safeguard, ensuring only the rationality of the trier-of-fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of the witnesses, may choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
A person commits the offense of indecency with a child by exposure if:
TEX. PENAL CODE § 21.11(a)(2)(A); Guzman v. State, 591 S.W.3d 713, 732 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The uncorroborated testimony of either the child or an outcry witness suffices to support a conviction for indecency with a child. Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Appellant argues that the evidence is legally insufficient to prove the second element of indecent exposure listed above, i.e., that he exposed his penis to Katie with the required criminal "intent to arouse or gratify the sexual desire of any person," here, himself. See TEX. PENAL CODE § 21.11(a)(2)(A). Specifically, appellant points out that Katie testified that she saw a man with his privates out, scratching himself, and peeing in a cup; she knew he...
To continue reading
Request your trial