Jay Michael Martinez v. The State of Texas--Appeal from 218th Judicial District Court of Frio County

MEMORANDUM OPINION
No. 04-06-00651-CR
Jay Michael MARTINEZ,
Appellant
v.
The State of TEXAS,
Appellee
From the 218th Judicial District Court, Frio County, Texas
Trial Court No. 05-08-0098-CRF
Honorable Stella H. Saxon, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: September 5, 2007

 

AFFIRMED

Appellant Jay Michael Martinez entered a plea of guilty to the murder of his wife, Belinda Lucia Martinez. He was subsequently sentenced by a jury to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of forty-five years. We affirm the judgment of the trial court.

Factual Background

Appellant Jay Michael Martinez entered a plea of guilty to the July 19, 2005 murder of his wife, Belinda Lucia Martinez. At the time of the murder, Martinez and Belinda were separated. Martinez was living in Laredo and Belinda continued living with their three children at the couple's apartment in Pearsall, Texas. By his own admission, Martinez drove to Belinda's residence, knocked on the door and she allowed him into the apartment. The two had a heated argument, ultimately resulting in Belinda's death from twenty-seven stab wounds to her head and body. It was undisputed that Martinez was at the residence for less than fifteen minutes and that he left with his older two children, aged two and three years. The State and defense, however, disagreed as to the nature of the argument and what prompted Martinez to murder his wife. After speaking to family members, Martinez turned himself in to police officers. Martinez subsequently waived his Miranda rights and gave a signed, written confession to the officers. After an extensive punishment hearing, the jury sentenced Martinez to forty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice. Martinez asserts the trial court erred in failing to give the jury an extraneous offense instruction and the State impermissibly commented on his right to remain silent. We affirm the judgment of the trial court.

Extraneous Offense Instruction

Martinez asserts the trial court erred in failing to properly instruct the jury regarding the State's burden of proof on extraneous acts. During the punishment phase, Martinez testified and was cross-examined, using the police report concerning the extraneous acts, regarding a prior assault on Belinda in March 2005. Martinez relies on Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000), for the argument that he is entitled to a new punishment hearing because the trial court failed to, sua sponte, instruct the jury in the punishment charge that the State bore the burden to prove extraneous offenses and bad acts beyond a reasonable doubt.

Section 3(a)(1) of article 37.07 of the Texas Code of Criminal Procedure, which governs the admissibility of evidence at punishment in all non-capital cases, provides:

Regardless of the plea and whether the punishment be assessed by the judge or jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible.

 

Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1) (Vernon 2006). The Huizar court explained that although article 37.07 does not specifically require the jury to receive any additional instructions, it is "logically required if the jury is to consider the extraneous offense and bad act evidence under the statutorily prescribed reasonable doubt standard." Huizar, 12 S.W.3d at 484. Furthermore, because the charge is the responsibility of the trial court, the defendant need not lodge an objection or request an instruction to preserve this error on appeal. Id. In Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004), however, the Court of Criminal Appeals distinguished Huizar when the offense in question was adjudicated. In analyzing the unambiguous language of article 37.03, the Bluitt court noted a defendant's criminal record is not grouped with extraneous offenses. Id. If the burden of proof is met regarding the offense in question, article 37.07 does not require additional proof of guilt beyond a reasonable doubt. Id. (finding that offenses admitted by appellant during the guilt-innocence phase were not extraneous offenses). The Court stated:

In any final conviction, the evidence was subjected to judicial testing of guilt with a standard of proof beyond a reasonable doubt, and the burden of proof was met. In any probation, the defendant has plead guilty or been found guilty by a judge or jury. In any deferred adjudication, the defendant has plead guilty, and the court has found sufficient evidence to support a finding of guilt. In all these circumstances, the burden of proof has been met. Thus, in all such cases, no further proof of guilt is required.

 

Id.

In the present case, the State presented evidence, without objection, during the punishment phase of the trial, regarding the previous assault of March 20, 2005 and Martinez's subsequent charge of assault on Belinda. After the State rested, the defense called several witnesses, including Martinez. When asked about the March 2005 incident, Martinez explained to the jury that after he and Belinda separated, he went to the apartment to "make up with her." When Belinda closed the door on him and locked all three deadbolts, he entered the residence by breaking a window and found Belinda with another man. After Belinda threatened to call the police, Martinez "put the phone back on the base" and followed Belinda, who wore only a towel, outside the apartment. When Martinez removed Belinda's towel, she fell and bruised herself on her way back to her residence. Martinez was subsequently charged with the misdemeanor assault, entered a plea and received probation for the offense. He told the jury that he paid his fine and took the required anger management classes.

Because Martinez testified that he pled to the offense, no further proof of guilt was required for its admission. See Bluitt, 137 S.W.3d at 54. Thus, the trial court was not required to instruct the jury that it must find the offense beyond a reasonable doubt and we overrule this issue on appeal.

Comment On Failure to Testify

Martinez next argues that the trial court erred in failing to declare a mistrial, sua sponte, based on the prosecutor's statements regarding Martinez's right to remain silent. Martinez contends the State's cross-examination and argument regarding Martinez's failure, after arrest, to claim his sudden passion arose from Belinda's statement that Diamond was not his biological daughter, violated his right to silence under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. U.S. Const. amend. V; Tex. Const. art. 1, 10. It is without question that a defendant's silence at the time of his arrest cannot be used against him as a circumstance of his guilt. Hicks v. State, 493 S.W.2d 833, 836-37 (Tex. Crim. App. 1973). Martinez claims the trial court should have granted a new trial sua sponte upon hearing the testimony. Notably, when the State asked Martinez why he did not mention Brenda's announcement that he was not the father of one year old Diamond, his counsel did not object. To properly preserve this issue for appeal, the proper objection was that the question violated Martinez's rights against self incrimination. Tex. R. App. P. 33.1; Tex. Code Crim. Proc. art. 38.21 and art. 38.22 (Vernon 2005). Defense counsel made no such objection. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that failure to obtain ruling on objection to improper argument was waiver).

Even if Martinez had properly preserved error, he elected to testify and thus subjected himself to cross-examination. As a general rule, a defendant testifying before the jury, at either the guilt-innocence or punishment phase, is subject to the same rules as any other witness and may be "contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying, except where there are overriding constitutional or statutory prohibitions." Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987) (citing Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981)). As in Cantu, Martinez was faced with the difficult choice of either waiving his right to self-incrimination on all relevant issues and being subjected to cross-examination or retaining his right and not explaining his defense to the jury. Id. at 256. The Cantu court further held that this "difficult decision does not impose an impermissible burden upon the exercise to Fifth Amendment rights. No constitutional violation is presented by the fact of a difficult decision for a defendant. " Id. See also Kos v. State, 15 S.W.3d 633 (Tex. App.--Dallas 2000, pet. denied) (holding State could fully cross-examine defendant when no previous invocation of Fifth Amendment right to remain silent and therefore no reliance on protections afforded by constitutional provision).

This case is no different. Martinez elected to testify and explained to the jury that he "lost it" when Belinda called him a derogatory name and told him that he was not the father of one year old Diamond Martinez. We presume Martinez and his counsel weighed the benefits of presenting his case against the potential detriment of cross-examination on all relevant issues. Belinda's statement, denying Diamond was the child of Martinez, was not part of Martinez's written statement given to officers shortly after the murder. As such, the State could properly cross-examine, discredit and attack Martinez regarding this omission. See Cantu, 738 S.W.2d at 255. Accordingly, we overrule Martinez's second issue on appeal.

Conclusion

Because Martinez entered a plea to the previous assault charges and testified regarding the prior incident, no further proof of guilt was required. Accordingly, the trial court was not required to include any additional instructions in the court's charge on punishment. Martinez's decision to testify subjected him to the same cross-examination as any other witness in the trial. Because there were no overriding constitutional or statutory prohibitions, the State's questions and argument did not constitute a comment on Martinez's right to remain silent. We, therefore, affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

DO NOT PUBLISH