Martinez v. State

• Court: Texas Court of Appeals
• Writing for the Court: Catherine Stone
• Citation: Martinez v. State, 131 S.W.3d 22 (Tex. App. 2003)
• Decision Date: 17 September 2003
• Docket Number: No. 04-02-00329-CR.,04-02-00329-CR.
• Parties: John Gilbert MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

131 S.W.3d 22

John Gilbert MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-02-00329-CR.

Court of Appeals of Texas, San Antonio.

September 17, 2003.

Rehearing Overruled October 23, 2003.

Fred G. Rodriguez, Suzanne M. Kramer, Michael A. Ramos, San Antonio, TX, for Appellant.

Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.

OPINION

Opinion by CATHERINE STONE, Justice.

Appellant John Gilbert Martinez was found guilty of the offense of capital murder. He was 15 years old at the time of the offense and was certified to stand trial as an adult. A jury found Martinez guilty, and due to his age, an automatic life sentence was imposed. We affirm.

Factual and Procedural Background

On the morning of October 24, 2000, Jae Kyung Lee ("Lee") and Hyeon Ju Lee, recent emigres from Korea, opened their Dollar Plus store on Bandera Road. Through an interpreter, Lee testified that Martinez and Paul Vara, two customers he saw on an almost daily basis, came into the store twice that morning. Martinez and Vara returned a third time and asked Lee where his wife was. Lee responded that she was sleeping on a sofa near the cash register. After asking about several other items, Martinez and Vara asked Lee to show them a decorative sword displayed near the register. As Lee turned to get the sword, he saw a gun in Martinez's hand. Martinez fired a shot that hit Lee in the mouth and the impact of that shot caused Lee to fall to the floor. Lee then heard several things: Vara said, "shoot the wife;" two explosions sounded; and Hyeon Ju Lee cried out. Before Lee lost consciousness, he saw Martinez and Vara attempt to open the cash register. When Lee regained consciousness, the men were gone and he crawled out of the store to call for help.

Ben Esquivel, a police officer with the San Antonio Police Department, answered a call for a shooting at the Lees' store. When Esquivel and his partner arrived, they saw Lee outside the store, bleeding profusely and motioning the officers inside the store. Esquivel found Hyeon Ju Lee's body behind the cash register. She had been shot twice as someone stood over her.

Jae Kyung Lee was taken to the hospital where his injuries were treated. Four days later, Detective Holguin interviewed Lee at the hospital and showed Lee a photo array. Lee identified Vara and Martinez in separate photo arrays. As soon as Lee saw Martinez's photograph, he said, "That was the boy who shot me."

Juan Mendoza, Vara's step-father, testified at trial. Mr. Mendoza stated that approximately two weeks before the shooting, Vara asked to borrow $200 to pay a debt Martinez owed to someone. Mr. Mendoza denied Vara's request. On the afternoon of the robbery, Mr. Mendoza became suspicious of the boys because they were watching the news, which was unusual. He noted that they seemed especially interested in news reports of the shooting at the Dollar Plus store.

Sylvia Mendoza, Vara's mother, testified that her husband roused her from a nap on the day of the shooting. Mr. Mendoza appeared concerned about the boys and asked her to talk to them. Mrs. Mendoza testified that the boys seemed scared and would not answer her questions. She was so alarmed by the boys' behavior that she asked them to leave. Two days later, Mrs. Mendoza spoke with Viola Serrano, one of Vara's girlfriends. The State was unable to produce Serrano as a witness at trial, but Mrs. Mendoza testified that Serrano informed her that Vara admitted committing the shooting at the Dollar Plus store. Serrano also informed Mrs. Mendoza that she hid the gun and that her mother had taken the shells from the gun to work and thrown them away there. After this conversation, Mrs. Mendoza called Detective Holguin and reported that she had information about her son's involvement in the shooting.

Serrano's mother testified that she called Detective Holguin and informed him that her daughter had the gun used in the shooting at the Dollar Plus store. The detective went to the Serrano home and retrieved a revolver. Ed Wallace, a firearms examiner for the Bexar County Criminal Investigation Laboratory, tested the gun recovered from the Serrano home against the bullet recovered from the scene and the one recovered from Hyeon Ju Lee's body. Wallace determined that the gun recovered from the Serrano home was the one used in the shooting at the Dollar Plus store.

Based on this evidence, a jury found Martinez guilty and, because of his minority, the trial court imposed a life sentence. On appeal, Martinez presents seven issues in which he complains that: (1) the trial court erred in allowing witnesses to testify even though they were not disclosed on the State's witness list; (2) his statement was not voluntary and should not have been admitted into evidence; (3) the trial court erroneously allowed into evidence the statement of his co-defendant as an adopted admission; (4) the trial court erred in denying his request for a jury charge on the voluntariness of his statement; (5) the trial court erred in failing to give a requested lesser included offense charge; (6) the court erred in failing to grant a mistrial based on juror coercion; and (7) the trial court denied his right to confrontation and cross-examination by permitting the State to reference the co-defendant's confession. For clarity, we will address these issues in a different order.

Undisclosed State Witnesses

The trial court granted Martinez's request for the State to produce a list of prospective witnesses. The State subsequently called four witnesses whose identities were not disclosed on its witness list. Before each witness testified, Martinez objected and moved for a mistrial on the grounds that the State's failure to disclose these witnesses surprised him and prevented him from adequately performing voir dire. Allowing a surprise witness to testify is not constitutional error. See Merritt v. State, 982 S.W.2d 634, 636 (Tex. App.-Houston [1st Dist.] 1998, pet ref'd). The applicable standard of review is abuse of discretion. See Bridge v. State, 726 S.W.2d 558, 566-67 (Tex.Crim.App.1986).

On appeal, the State claims Martinez waived these complaints by requesting a mistrial instead of a continuance. The State argues that when "a witness' name is not furnished a defendant before trial despite a court order, any error in allowing that witness to testify over a claim of surprise is `made harmless' by defendant's failure to object or move for a continuance." Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App.1994)(emphasis added). The State argues that Martinez's failure to object and move for a continuance waives his complaints about unfair surprise and inability to properly question the venire. Because Martinez timely objected on grounds of surprise and moved for a mistrial, the complaint is properly preserved. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (error preserved when complaint pursued to an adverse ruling). However, for the reasons detailed below, Martinez can not successfully argue that he was unfairly surprised by the State's action of calling these witnesses.

In determining whether the trial court abused its discretion in permitting an undisclosed witness to testify, this court must answer two questions: (1) did the prosecutor act in bad faith by failing to disclose the names of the witnesses ahead of time; and (2) could the defendant reasonably anticipate that the witnesses would testify, although their names were not included on the witness list. See Bridge, 726 S.W.2d at 566-67. Reviewing courts have focused on three areas of inquiry in deciding whether the State acted in bad faith: (1) whether the defense shows that the State intended to deceive; (2) whether the State's notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information (e.g., by maintaining an open files policy, by providing updated witness lists, or by promptly notifying the defense of new witnesses). Hardin v. State, 20 S.W.3d 84, 88 (Tex.App.-Texarkana 2000, pet. ref'd). In determining whether the defense could have anticipated the State's witness, reviewing courts also have examined three areas of inquiry: (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise (e.g., the defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); (3) the degree to which the trial court was able to remedy that surprise (e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness' criminal history). Id. If this court finds that Martinez reasonably anticipated that these witnesses would testify, then we will reject his argument that the State's failure to disclose the identities of these witnesses prevented him from adequately performing voir dire. See Salinas v. State, 625 S.W.2d 397, 402 (Tex. App.-San Antonio 1981, no pet.).

To prove the absence of bad faith, the prosecutor apologized to the trial court and explained her failure to provide these names. She stated that this was the first time she compiled a witness list on the computer, and in formatting, some names were inadvertently excluded. She also admitted that, although the list was lengthy, she should have checked it more carefully. Finally, she reasoned that the witness' names were disclosed on the subpoena list, preventing any real surprise to the defense. This explanation establishes the absence of the State's intent to deceive. Additionally, defense counsel requested a continuance before cross-examining only one of these witnesses, and the trial court granted that request. The record shows that Martinez was prepared to vigorously cross-examine each of these witnesses. These facts support the conclusion that defense counsel...