Roberto Martinez A/K/A El Raton Martinez v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

No. 04-00-00175-CR
Roberto MARTINEZ, a/k/a "El Raton" Martinez,
Appellant
v.
The STATE of Texas,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 1999-CRN-00492-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 13, 2001

AFFIRMED

Martinez appeals his murder conviction, alleging error when the trial court excluded evidence that the victim, as a convicted felon, was prohibited from possessing a firearm at the time of the shooting. Martinez claims that this ruling prevented him from offering relevant testimony to show his own state of mind at the time of the shooting. Martinez argues the victim's status as a convicted felon was relevant to his self-defense theory when he observed the victim committing a felony by re-emerging from the house in possession of a handgun. Since both the shooter and the victim were convicted felons illegally in possession of handguns at the time of the offense, Martinez argues that it was unfair to exclude evidence that the victim was a convicted felon.

The State replies that Martinez had the opportunity to provide evidence of the victim's general reputation in the community. The jury was shown that both Martinez and the victim were known affiliates of the Mexican Mafia, and both possessed handguns at the time of the shooting. But, the State argued that it was irrelevant that the victim committed a felony by emerging from the house with a handgun in his waistband. Alternatively, the State suggests that any error in excluding this evidence was harmless.

The Standard of Review

We review evidentiary issues under an abuse of discretion standard. The trial court has wide discretion in determining the admissibility of evidence. See Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985). We will reverse only if the trial court clearly abused its discretion in excluding admissible evidence. See id.; Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.-Amarillo, pet. ref'd). Unless a substantial right of the party is affected, error in the exclusion of evidence will not result in reversal. See Tex. R. Evid. 103(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Vega v. State, 898 S.W.2d 359, 363 (Tex. App.-San Antonio 1995, pet. ref'd).

Evidence of Bad Acts

The general rule is that evidence of a person's character is inadmissible to prove that he or she acted in conformity with a given trait. However, character evidence is admissible under some circumstances. General evidence of the character of a victim is admissible if pertinent and offered by the accused or by the prosecution in rebuttal. Tex. R. Evid. 405(b). A defendant claiming self-defense may introduce as evidence specific bad acts by the victim of which the defendant is aware to show the reasonableness of the defendant's apprehension of danger. See Thompson v. State, 659 S.W.2d 649, 653 (Tex. Crim. App. 1983) (defendant may introduce violent acts of victim of which defendant is aware to show that defendant reasonably believed the force was necessary to protect himself); Tex. Code Crim. Proc. art. 38.36(a) (Vernon 1997) (allowing relevant state of mind evidence). Further, if there is evidence that the victim was the aggressor at the time of the killing, his prior bad acts are admissible, even if the defendant did not know about them. See Beecham v. State, 580 S.W.2d 588, 590 (Tex. Crim. App. 1979); Harwood v. State, 961 S.W.2d 531,539 (Tex. App.-San Antonio 1997, no pet.).

Martinez wanted to offer the specific fact that because the victim was a convicted felon, the gun carried in his waistband amounted to an illegal act. However, this illegal act does not tend to prove that the victim was the aggressor. The illegality, itself, does not justify the murder. The jury knew that both men were armed at the time of the shooting. We find no abuse of discretion in the court's decision to exclude this evidence.

The issue is overruled and the judgment of the trial court is affirmed.

Alma L. L pez, Justice

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