Martinez v. State
| Decision Date | 07 October 2014 |
| Docket Number | No. 01–13–00698–CR.,01–13–00698–CR. |
| Citation | 449 S.W.3d 193 |
| Parties | Eber MARTINEZ, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Gerald C. Moton, San Antonio, TX, for Appellant.
John F. Healey, District Attorney, Chad Bridges, Assistant District Attorney, Fort Bend County, Richmond, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.
After a bench trial, the trial court convicted appellant, Eber Martinez, of the first-degree felony offense of aggravated sexual assault, assessed punishment at confinement for seventeen years and 200 days, and ordered appellant to pay a $2,000 fine.1 In three issues, appellant contends that (1) he did not knowingly and intelligently waive his right to a jury trial; (2) he should receive a new trial because the trial court violated Article 36 of the Vienna Convention concerning contacting consular authorities; and (3) his trial counsel rendered constitutionally ineffective assistance.
We affirm.
A grand jury indicted appellant for the offense of aggravated sexual assault of the complainant, J.B.M., appellant's estranged common-law wife. At appellant's initial appearance before a magistrate judge, the magistrate judge informed appellant, a Honduran national, of his right to contact his consular authorities. According to appellant, he did not speak with his consular authorities at that time because the Honduran consulate would not accept collect calls from the Fort Bend County Jail.
Before trial, appellant moved for the appointment of a Spanish-language interpreter, and the trial court granted this motion and appointed an interpreter. Appellant then sought to waive his right to a jury trial, and the State consented. The interpreter read the written waiver to appellant in open court, and the record reflects that appellant signed the waiver before the trial court. Appellant and the trial court then had the following exchange:
The trial court then released the jury panel.
After accepting appellant's jury trial waiver and upon learning that appellant was a citizen of Honduras, the trial court asked appellant whether he had had an opportunity to speak with his consular authorities. Appellant responded, “Never.” The trial court then asked defense counsel to contact the Honduran consulate for appellant and recessed the proceedings to allow this to occur. After appellant spoke with his consular authorities, he had the following discussion with the trial court:
The trial court then discussed the potential adverse immigration consequences that could occur due to a conviction, and appellant indicated that he had discussed that with his counsel and that he understood the potential consequences.
At trial, J.B.M. testified that she had a disagreement with appellant concerning their daughter on the afternoon of April 27, 2012. The disagreement ended with J.B.M. telling appellant to leave her alone and that she did not wish to see him. J.B.M. went out that evening to celebrate a friend's birthday, and appellant repeatedly called her while she was out, but she refused to answer. She returned home around 2:00 a.m., and after she got out of her car in her driveway, appellant grabbed her around her neck. Appellant ripped J.B.M.'s clothes off and dragged her through several yards, occasionally pulling her by her hair. Throughout the encounter, appellant tried to choke J.B.M., he hit her head against the ground, and he scratched her on her face and neck. At one point while appellant had his hands around J.B.M.'s throat, he told her, J.B.M., who was in fear for her life, told appellant to think of their daughters. Appellant stopped strangling her, but he then sexually assaulted J.B.M. She testified that she did not want to have sex with appellant and that she was afraid he would get angry with her again if she did not participate.
J.B.M. identified appellant in court as her attacker. The State introduced pictures and testimony concerning J.B.M.'s injuries. The trial court also admitted DNA test results indicating that appellant was a source of DNA for the vaginal swabs taken from J.B.M.
Defense counsel did not call any witnesses, nor did he introduce any evidence concerning appellant's good character. During closing argument at the guilt/innocence phase, defense counsel conceded, “There's a sexual assault occurring under these facts,” but he argued that the evidence reflected that, at the time the sexual assault happened, J.B.M. was no longer in fear for her life, and, as a result, appellant was potentially guilty of the lesser-included offense of sexual assault, not the charged offense of aggravated sexual assault. The trial court found appellant guilty of aggravated sexual assault as charged in the indictment.
J.B.M. testified during the punishment phase as well. She testified concerning an incident that occurred in 2011, in which she woke up to see appellant standing over her and her daughters, who were asleep, while holding an axe and making a chopping motion. J.B.M. called 9–1–1, but when the police arrived, appellant spoke with the officers and told them that they had called the police because they heard thieves outside the house. She also testified concerning an incident that occurred in March 2012, in which appellant brought a gun to work, and another co-worker told J.B.M. that appellant had purchased the gun “just in case [appellant] ever saw [J.B.M.] with someone else.” Defense counsel did not object to this testimony on any grounds. Defense counsel cross-examined J.B.M. about both extraneous incidents.
Defense counsel did not call any witnesses in the punishment phase or attempt to put on any mitigating evidence. During closing argument, the State referenced the extraneous acts on three occasions.
In pronouncing appellant's sentence, the trial court stated:
The actions that occurred on the night of this event are not simply a fight between a husband and a wife. It was a brutal assault that escalated across a yard in public. It involved brutalization of another person, who led to that person fearing for her life because of defendant's actions. That alone is sufficient for a number of years in the penitentiary.
The trial court did not mention the extraneous bad acts. The court then assessed punishment at confinement for seventeen years and 200 days and a $2,000 fine. Appellant did not file a motion for new trial.
In his first issue, appellant contends that he did not knowingly and intelligently waive his right to a jury trial. Appellant contends that the trial court failed to inform him that a jury could have considered lesser-included offenses and that a jury could, if appellant met certain requirements, recommend that the court place appellant on community supervision for aggravated sexual assault, a right not present in a bench trial.
A defendant has an absolute right to a jury trial. Hobbs v. State, 298 S.W.3d 193, 197 (Tex.Crim.App.2009) ; see also U.S. Const. amend. VI (); Tex. Const. art. I, § 15 (). A defendant may, however, waive this right and instead have a bench trial. See Hobbs, 298 S.W.3d at 197. Code of Criminal Procedure article 1.13(a) provides:
The defendant in a criminal prosecution for any offense ... shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that ... the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval...
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