Rene Martinez v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

No. 04-00-00014-CR
Rene MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District of Bexar County, Texas
Trial Court No. 1998CR6526
Honorable Pat Priest, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 29, 2001

AFFIRMED

A jury convicted Appellant Rene Martinez of aggravated assault and recommended a sentence of fourteen years imprisonment in the Texas Department of Criminal Justice, Institutional Division. The trial court rendered judgment accordingly. Martinez raises the following issues on appeal: (1) the jury charge was erroneous; (2) his conviction is not supported by sufficient evidence; and (3) he was denied effective assistance of counsel. We overrule all three issues and affirm the judgment of the trial court.

Background

On September 13, 1998, Martinez and his uncle, Robert Martinez, were drinking beer at a bar. Martinez was playing pool, and his uncle was sitting at a nearby table. Ernest Rodriguez, the victim, was also playing pool nearby with his friend. According to the State's version of events, Martinez approached Rodriguez and asked him if he wanted to play a game of pool for a beer. Rodriguez said that he did not want to play for a beer. Martinez then approached Rodriguez a second time and asked him if he wanted to play for twenty dollars. Rodriguez testified that when he refused again, Martinez became aggressive. At that time, Rodriguez relented and agreed to play a game. When Rodriguez beat Martinez in the first game, Martinez pleaded with him to play another game so he could win his twenty dollars back. Rodriguez replied that he could keep his money because they were not playing for money. Rodriguez testified that Martinez seemed angry over losing the first game. When Martinez broke to begin the second game, he hit the balls so hard that some of them almost flew off the table near where Rodriguez was standing. As Rodriguez leaned down to shoot, Martinez hit him on the side of the head with a pool cue. Rodriguez fell to the floor and remained unconscious while Martinez continued to strike him with the pool cue.

According to Martinez's version, as depicted through his uncle's testimony, Rodriguez approached Martinez and said that if Martinez wanted to play a real game, he should come over and play with real men. Martinez and Rodriguez began a game of pool soon thereafter. After Martinez broke, he went to the restroom. Upon his return, Martinez disagreed with Rodriguez about which balls belonged to which player. When Martinez leaned over to hit a ball, Rodriguez attempted to hit him with his pool cue. Martinez's uncle shouted a warning to him. Martinez reacted by moving his head so that the pool cue hit his forehead, instead of the back of his head. Martinez then hit Rodriguez with his own pool cue. Martinez's uncle did not know how many times Martinez hit Rodriguez, as he was fending off customers of the bar immediately after the incident and had his back turned to Martinez and Rodriguez.

Sufficiency of the Evidence

Martinez phrases his first issue in the following manner: "The State failed to prove beyond a reasonable doubt that appellant was not acting in self-defense." Martinez misstates the State's burden and has confused the burden of production and the burden of persuasion. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Hull v. State, 871 S.W.2d 786, 790 (Tex. App.--Houston[14th Dist.] 1994, pet. ref'd). Self-defense is a fact issue to be determined by the jury. Saxton, 804 S.W.2d at 913; Hull, 871 S.W.2d at 790. Once a defendant meets the initial burden of producing some evidence to justify submission of a self-defense instruction, the State must persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense. Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979). The State has the burden of persuasion in disproving the evidence of self-defense, not the burden of production that would require it to affirmatively produce evidence to rebut the claim of self-defense. Saxton, 804 S.W.2d at 913; Hull, 871 S.W.2d at 790. The presentation by the defense of evidence supporting self-defense will not necessarily render the State's evidence insufficient since the credibility determination of such evidence is solely within the jury's province, and the jury is free to accept or reject the evidence. Saxton, 804 S.W.2d at 913-14; Hull, 871 S.W.2d at 790. A jury finding of guilty of all the elements of the offense beyond a reasonable doubt is an implicit finding rejecting the defendant's self-defense theory. Saxton, 804 S.W.2d at 914; Hull, 871 S.W.2d at 790.

In the discussion of this first issue, Martinez asserts that the "evidence is factually insufficient to prove guilt beyond a reasonable doubt to the rational trier of fact and is legally insufficient to sustain this verdict." While Martinez's issue was not stated clearly as required by Texas Rule of Appellate Procedure 38.1(h), we will assume from the above statement that Martinez is attempting to raise sufficiency of the evidence issues.

A. Legal Sufficiency

When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Further, the jury serves as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, Mosley, 983 S.W.2d at 254, and can draw reasonable inferences and make deductions from the evidence. Griffin v. State, 908 S.W.2d 624, 626 (Tex. App.--Beaumont 1995, no pet.) (citation omitted). Therefore, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Mosley, 983 S.W.2d at 254. The same standard applies in both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

In the special issue, (1) the jury found that the pool cue was a deadly weapon. Martinez argues that because Rodriguez attacked him with a pool cue, which was a deadly weapon according to the jury, it was reasonable for him to have feared serious bodily injury or death. Thus, Martinez argues that he was justified pursuant to section 9.32 of the Texas Penal Code in responding by using a deadly weapon. Section 9.32 justifies one using deadly force to protect oneself against another's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. 9.32 (Vernon Supp. 2001); see id. 9.31. Martinez maintains that as "no independent witness" controverted the fact that Rodriguez used unlawful deadly force against Martinez, the evidence is legally insufficient to support his conviction. (2)

In the light most favorable to the jury's verdict, the evidence shows that several witnesses saw Martinez strike Rodriguez with a pool cue. All testified consistently that Rodriguez remained on the floor and appeared to be unconscious after the first strike by Martinez. These witnesses testified that although Rodriguez remained on the floor, Martinez continued to strike him three or four more times. Rodriguez's doctor testified that his injuries were consistent with multiple blows to the same area on his head and that it was unlikely that such damage could be caused by a single blow. None of these witnesses saw Rodriguez make a threatening gesture toward Martinez. Additionally, Rodriguez testified that he did not make any threatening gestures toward Martinez. From this evidence, a rational jury could have found the essential elements of aggravated assault beyond a reasonable doubt. Therefore, the evidence is legally sufficient to support Martinez's conviction.

B. Factual Sufficiency

In determining the factual sufficiency of the elements of the offense, we view "all the evidence without the prism of 'in the light most favorable to the prosecution'" and will set aside the verdict only if it is so "contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Id. (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). This evidence must be viewed in a neutral light, favoring neither party. Id. (citing Clewis, 922 S.W.2d at 134). "Unless the available record clearly reveals a different result is appropriate, [we] must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Id. at 8. We have authority to disagree with the fact finder's determination "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence." Id. at 9 (citing Jones, 944 S.W.2d at 648-49).

Martinez argues that the State did not meet its burden in rebutting Martinez's claim of self-defense. As such, Martinez argues that the evidence is factually insufficient to prove guilt beyond a reasonable doubt. As noted above, the State has only the burden of persuasion with regard to a defendant's claim of self-defense, not the burden of production. Saxton, 804 S.W.2d at 913; Hull, 871 S.W.2d at 790. Reviewing the evidence without the prism of "in the light most favorable to the prosecution," the evidence shows that Martinez made a prima facie case of self-defense. Martinez's uncle, Robert Martinez, testified that Rodriguez struck Martinez first and that Martinez responded by defending himself. The State, however, attacked the uncle's credibility by questioning him about inconsistencies between his testimony at trial and his statement given to the police shortly after the incident. In support of his self-defense claim, Martinez also submitted into evidence a photograph of himself shortly after the incident in question, which depicts abrasions to his face. This evidence in support of Martinez's self-defense claim was contradicted by the State's witnesses. Rodriguez testified that he did not threaten or attempt to hit Martinez. As noted above, several witnesses testified that they saw Martinez repeatedly strike Rodriguez, who remained unconscious on the floor. These witnesses described the appearance of Rodriguez's severe facial injuries. A doctor testified about the loss of Rodriguez's eye and the life-threatening injuries Rodriguez sustained. The jury heard all of this evidence and chose to believe the State's witnesses and not Martinez's uncle. We must defer to the jury's findings as it is the sole judge of the weight and credibility of the evidence. Thus, the State met its burden of persuading the jury beyond a reasonable doubt that Martinez did not act in self-defense. The evidence is factually sufficient to support the conviction.

As the evidence is both legally and factually sufficient, Martinez's first issue is overruled.

Jury Charge

Martinez argues that the trial court erred in submitting an erroneous charge to the jury during the punishment phase of the trial. Analysis of jury-charge error depends largely on whether Martinez objected to the complained-of language or omissions at trial. Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000); Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If a proper objection was raised, reversal is required if the error "was calculated to injure the rights of defendant." Tex. Code Crim. Proc. Ann. art. 36. 19 (Vernon 1981); Jimenez, 32 S.W.3d at 237; Almanza, 686 S.W.2d at 171. Therefore, when a defendant properly objects, reversal is required if some harm exists. Jimenez, 32 S.W.3d at 237; Almanza, 686 S.W.2d at 171. If a defendant does not object to the charge, reversal is required only if the harm is so egregious that the defendant has not had a fair and impartial trial, i.e. the error was "fundamental." Jimenez, 32 S.W.3d at 238; Almanza, 686 S.W.2d at 171.

While we have discerned the basic test for fundamental error, the "fair and impartial trial" phraseology still serves as only a general admonition that fundamental error must involve "egregious harm" in trial. The same idea is contained in the occasional statements that a fundamental error must "go to the very basis of the case," deprive the accused of a "valuable right," or "vitally affect his defensive theory."

Jimenez, 32 S.W.3d at 238 n.21 (quoting Almanza, 686 S.W.2d at 172). To determine whether the error caused egregious harm, the appellate court must consider all parts of the record that bear upon the subject. Almanza, 686 S.W.2d at 171. This includes "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. Martinez did not object to the charge at trial. Therefore, reversal is mandated only if the trial court's error, if any, was fundamental. Jimenez, 32 S.W.3d at 239.

The function of a jury charge is to instruct the jury on the law applicable to the case. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995); Escobar v. State, 28 S.W.3d 767, 778 (Tex. App.--Corpus Christi 2000, pet. ref'd). When reviewing charge error, we determine whether error exists in the charge and if so, then we inquire into whether any harm resulted which would require reversal. Mann, 964 S.W.2d at 641; Garcia v. State, 32 S.W.3d 328, 332 (Tex. App.--San Antonio 2000, no pet.); Escobar, 28 S.W.3d at 778. We must examine the charge as a whole, considering the workable relationship between the abstract parts of the charge and those parts that apply the abstract law to the facts of the case. Almanza, 686 S.W.2d at 171; Garcia, 32 S.W.3d at 332; Escobar, 28 S.W.3d at 778. The paragraphs in the charge containing the abstract law and definitions serve as a "glossary" to aid the jury in understanding the meaning of legal concepts and terms used in the application paragraph of the charge. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996)overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); Escobar, 28 S.W.3d at 778. Thus, the charge is adequate if it contains an application paragraph that authorizes a conviction under conditions specified by other paragraphs of the charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata, 926 S.W.2d at 302; Escobar, 28 S.W.3d at 778. Specifically, Martinez argues that the trial court reversibly erred by submitting the following special issue to the jury:

Do you find from the evidence beyond a reasonable doubt that the Defendant, Rene Martinez, used a deadly weapon, namely: a pool cue, in committing the offense of aggravated assault.

Answer: "We find the defendant did use a deadly weapon" or "We find the defendant did not use a deadly weapon."

The jury answered that it found the defendant did use a deadly weapon. Martinez argues that this issue mislead the jury, because it assumes that the pool cue is a deadly weapon. As such, Martinez urges that the jury could have thought they were only being asked whether Martinez used a pool cue during the assault. Indeed, the jury is never asked directly whether it believes that the pool cue is a deadly weapon. While the State admits that this issue is "not the most artfully drafted language," it responds that any error in the charge is harmless.

Reviewing the charge in its entirety, we note that the charge contains the following instructions:

Having found the defendant, Rene Martinez, guilty of aggravated assault, you will next determine whether the pool cue used during the commission of the offense is a deadly weapon.

"Deadly weapon" means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Therefore, if you further find beyond a reasonable doubt that the defendant used a deadly weapon, as that term has been defined above, to-wit: a pool cue during the commission of the alleged offense, you will so state in your verdict.

(emphasis added). The instructions direct the jury to first determine whether the pool cue was a deadly weapon before considering whether the defendant used a deadly weapon during the commission of the offense. Moreover, there was sufficient evidence to support a finding that the pool cue is a deadly weapon as defined in the charge. Several witnesses testified how Martinez repeatedly raised his pool cue over his head and struck downward toward Rodriguez. Those witnesses also testified about Rodriguez's physical condition after the attack. Review of the record and the charge as a whole reveals no fundamental error. We overrule Martinez's second issue.

Ineffective Assistance of Counsel

Next we consider Martinez's assertion that he was denied effective assistance of counsel. Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986), both inquiries are subsumed into one. We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57. To prevail on a claim of ineffective assistance of counsel, Martinez must show: (1) trial counsel's performance was deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that Martinez was deprived of a fair trial. See Strickland, 466 U.S. at 687; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Chetwood v. State, 31 S.W.3d 368, 370 (Tex. App.--San Antonio 2000, pet. ref'd). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Furthermore, Martinez must overcome the presumption that trial counsel rendered effective assistance, and it is incumbent on him to identify those acts or omissions that do not amount to reasonable professional judgment. See Strickland, 466 U.S. at 690. Additionally, the Strickland test is applied without the benefit of hindsight, and the allegations will be sustained only if they are affirmatively established in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); Brown v. State, 974 S.W.2d 289, 291 (Tex. App.--San Antonio 1998, pet. ref'd). This court has refined the analysis to note the constitutional right to effective assistance does not mean errorless counsel. Brown, 974 S.W.2d at 291. In reviewing these challenges, the "totality of the representation" controls the determination of whether Martinez meets the Strickland standard. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Great deference is given to defense counsel's representation at trial, Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 2196 (2001), and there is a strong presumption that the actions of counsel were within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. Additionally, the burden of proving ineffective assistance by a preponderance of the evidence rests upon the appellant. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); McFarland, 928 S.W.2d at 500.

A. Voir Dire

Martinez argues that his counsel failed to object to improper statements by the State during voir dire. Specifically, Martinez maintains that his counsel should have objected to the following statement by the prosecutor:

So self-defense is justified, but there's a couple of things I wanted to point out. First of all, the other person has to use force against you. You have to believe that force is immediately necessary. Okay. Immediately necessary means you got to do it right now to protect yourself. Let's say I come up to you and I hit you, and then I run away. Is it immediately necessary for you to use force?

Martinez argues that the prosecutor mislead the jury regarding the definition of self-defense, because the attempted use of force is also sufficient to justify the use of force in self-defense. Martinez fails to mention that mere seconds prior to these statements, the prosecutor stated to the venire panel that under the concept of self-defense, "a person is justified in using force against another when and to the degree he reasonably believes force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." (emphasis added). The prosecutor then asked a venireperson what that definition meant to him. The juror responded that the definition "means if somebody's trying - you see somebody trying to - coming to hit you, you have the right to stop them..." (emphasis added). Given that the prosecutor stated the correct definition of self-defense mere moments before uttering the statement which Martinez now finds objectionable and given that the venireperson had clearly understood that one can use force in self-defense against attempted use of unlawful force, defense counsel's failure to object could have been trial strategy. Objecting to the prosecutor's quick summation of a previous statement could have been construed as petty and annoying by the venire panel. Thus, counsel's actions were within the broad range of reasonable professional assistance.

B. Admission of Photographs

Defense counsel failed to object to the admission of photographs of the crime scene and of Rodriguez taken shortly after the incident. Martinez argues that defense counsel should have objected pursuant to Texas Rule of Evidence 403. Because Martinez did not contest that he had caused Rodriguez's injuries, Martinez argues that the photographs were not relevant and were only intended to prejudice the jury. Martinez was charged in the indictment with committing aggravated assault. Whether Rodriguez suffered serious bodily injury is an element of the offense. The photographs of Rodriguez after the attack depict his physical condition. As such, the photographs were tied to an element of the offense and were relevant. See Long v. State, 823 S.W.2d 259, 272-75 (Tex. Crim. App. 1991). Likewise, the photographs of the crime scene facilitated the testimony of several witnesses. Id. Moreover, unlike photographs of a bludgeoned murder victim, none of the photographs were particularly gruesome. The photograph of Rodriguez was taken in the hospital days after the attack. It depicts his physical injuries without showing blood and gore. The photographs of the crime scene show the pool table and a small pool of blood on the floor. None of these photographs is so gruesome that their probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Had defense counsel objected pursuant to rule 403, the trial court would have been within its discretion in overruling the objection. Therefore, the record does not affirmatively establish that Martinez was denied effective assistance of counsel.

C. Failure to Object

Martinez argues further that he was denied effective assistance of counsel because his lawyer failed to make certain objections. First, Martinez argues that his lawyer should have objected to the qualification of the police officer who testified that the facial abrasions reflected in a photograph of Martinez, taken one week after the barroom fight, appeared not to have been a result of the fight. In other words, Rodriguez did not cause the abrasions on Martinez's face. Martinez argues that this testimony destroyed his self-defense claim and that had his counsel objected, the police officer would not have been allowed to give this opinion as he had no medical training to qualify as an expert. Martinez points to the police officer's testimony which he maintains can be found in volume four, page 208 of the reporter's record. After reviewing volume four, we note that there is no page 208. (3) Page 208 of volume three is a transcription of Detective Torres' testimony, but that testimony discusses a photograph of Rodriguez, not of Martinez. Upon review of the entire record, we note that during the defense's case-in-chief on pages 109 and 110 of volume four, the defendant, not the State, called Detective Torres as a witness. Defense counsel used Detective Torres to authenticate the picture of Martinez in question. Defense counsel then asked Detective Torres whether the abrasions on Martinez's face "look like a fresh bruise, or mark, or fresh marks on his face?" The detective answered, "It could be." Defense counsel then offered the photograph into evidence and it was admitted. Defense counsel then asked the detective, "Aside from his appearance, did you ask Mr. Martinez how he - or Rene how he received those marks on his face?" The detective responded, "I believe I did ask him about - about the incident. His exact word - his response, I mean, I can't tell you exactly what he told me. I know from his statement and - that they didn't come from this incident at the bar. That's all I know." As defense counsel solicited this testimony, he could hardly have objected to his own questions. On cross-examination, the prosecutor also asked the detective about this photograph.

Q: And on what date did you take that photograph?

A: That was on the 21st. September 21st.

Q: And the incident that you were investigating, the assault at Josie's, occurred on the 13th of September?

A: That's correct.

Q: Okay. So approximately eight days later?

A: That's correct.

Q: And you've testified that you saw injuries on his nose?

A: According to this picture, yes, ma'am.

Q: And something above his eyebrow?

A: Yes, ma'am.

Q: More - More than one cut or abrasion on his face?

A: Yes, ma'am.

Q: And just in your experience and training, multiple cuts or contusions like that, would that occur with one blow? (4)

A: If it was -- if it was happened [sic] to receive from another individual, it's possible that it could be from one blow. But more likely it's a series of - of contacts to the face.

Q: Okay. And did those marks appear to you to be fresher than eight days old?

A: Yeah. They appear - From what is showing [sic] in this picture and from what I remember seeing them, they appeared to be maybe at the most two to three days old. They didn't seem to be scabbed over or anything.

Q: And when you interviewed Rene Martinez, he didn't say anything to you about those injuries occurring during the assault on the 13th of September?

A: No, ma'am, he didn't.

The observation that abrasions which have not "scabbed over" indicate more recent injuries than those which have developed into scabs is within the jury's common knowledge. Thus, the detective did not testify as an expert; rather, he testified as a lay witness. Further, the prosecutor was expanding on testimony that the defense had raised as an issue. Thus, the trial court would have been within his discretion to overrule any objection made by defense counsel.

Second, Martinez argues that defense counsel should have objected to "incorrect and prejudicial argument of the State." Error arising from allegedly improper jury argument must be viewed in the context of the entire argument. Mosley v. State, 686 S.W.2d 180, 183 (Tex. Crim. App. 1985); McCray v. State, 873 S.W.2d 126, 129 (Tex. App.--Beaumont 1994, no pet.). "Isolated sentences taken out of context may take on a meaning different from that understood by the jury." McCray, 873 S.W.2d at 129 (citing Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987)). Martinez points to the following statement of the prosecutor made during closing argument: "Ernest Rodriguez didn't do anything to him, according to all of the testimony you've heard, other than beat him at a game of pool." Martinez claims that this statement is incorrect and prejudicial, because Martinez's uncle testified that Rodriguez hit Martinez first and Martinez responded to that attack. What Martinez fails to mention, however, is that in the moments prior to that statement, the prosecutor discussed Martinez's version of the events at length and urged the jury not to believe the uncle. The prosecutor argued that the uncle's testimony regarding Rodriguez attacking Martinez first was much different from his original statement to the police and was not credible as a result. The prosecutor states, "Robert Martinez is the only one who wants you to believe that the story he's telling you today, the story that exculpates his nephew, is the true one, and that Detective Torres made him sign something that was completely false a year and a half ago." As the prosecutor had just discussed Robert Martinez's testimony immediately prior to making the "incorrect" statement, defense counsel could have decided not to object based on trial strategy. He might have believed that objecting would annoy the jury.

D. Failure to Obtain Ruling on Pre-Trial Motion

Lastly, Martinez argues he was denied effective assistance of counsel, because his attorney failed to obtain a ruling on defendant's motion for discovery of punishment evidence. As such, Martinez argues that his lawyer was unprepared to defend, explain, or rebut the extraneous offense evidence. The failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel, because defense counsel may decide not to file pre-trial motions as part of his trial strategy. Autry v. State, 27 S.W.3d 177, 182 (Tex. App.--San Antonio 2000, pet. ref'd); Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.--Houston[14th Dist.] 1997, no pet.). In this case, defense counsel filed several pre-trial motions. Prior to voir dire, defense counsel asked the court to rule on defendant's motion in limine, which the court granted. The record indicates that defense counsel did not wish to proceed on the other motions because he "had the file for discovery." Thus, defense counsel felt the rulings on those motions would be irrelevant, as he had had access to the State's file. Furthermore, the record indicates that when defense counsel was confronted with the evidence of Martinez's extraneous offenses during the punishment phase, he clearly knew about the offenses and attempted to impeach the police officer testifying about the offenses during cross examination.

Finally, with regard to the totality of counsel's representation, the record reflects that throughout both phases of the trial, defense counsel filed pre-trial motions, thoroughly examined the State's witnesses, presented witnesses, and vigorously argued on his client's behalf. After reviewing the record as a whole, we hold that Martinez has not overcome the presumption of reasonable professional assistance. See Strickland, 466 U.S. at 689. We overrule Martinez's third issue.

Conclusion

Having overruled Martinez's three issues, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. The charge directed the jury to indicate on a separate form entitled "Finding as to Use or Nonuse of a Deadly Weapon" whether the defendant used a deadly weapon in committing the offense. The charge informed the jury that under Texas law, if the defendant is sentenced to a term of imprisonment and the jury finds that a deadly weapon was used, the defendant will not be eligible for parole "until the actual time served equals one-half of the sentence imposed, without consideration of any good conduct time he may earn." Further, the charge states that "[i]f the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole."

2. In support of this argument, Martinez states, "This case is no different from a fight between two individuals, each wielding a firearm. Although the combatant with the better aim will, no doubt, defeat the other, the combatant's skill should not negate his claim of self-defense."

3. Martinez in his reply brief maintains that the officer who took the photograph of Martinez (Martinez does not identify this officer by name) testified, "Don't believe your eyes when you see the photograph that the defense is going to show you. I took that photograph and, regardless of what you think you see, I can tell you, those wounds were too fresh to have been sustained in the offense." Martinez does not indicate where this statement can be found in the record. Detective Torres is the officer who took the photograph in question. Upon review of his testimony, we can find no such statement in the record. We view Martinez's counsel's complete failure to identify relevant parts of the record and controlling case law as a violation of Texas Rule of Appellate Procedure 38.1(h). Nevertheless, we have reached the merits of this appeal.

4. Martinez has not argued that this question solicited improper expert testimony.