Martinez v. State

JOSE MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-17-00165-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

August 30, 2019

Appeal from the County Court at Law No. 1 of El Paso County, Texas

(TC# 20160C07540)

OPINION

Appealing his conviction for assault causing bodily injury to a family member, Appellant Jose Martinez asserts insufficient evidence for conviction, error in allowing admission of the victim's video statement to police, wrongful denial of new trial, error in allowing the testimony of an expert witness, and egregious error with a jury charge of self-defense. Finding no error, we affirm.

BACKGROUND¹

On August 1, 2016, Officers Guzman and Santiago of the El Paso Police Department, while working an overnight shift, responded to a 911 call of domestic disturbance made by Martinez.Arriving on scene, Crystal Garcia answered the door where she was soon joined by Martinez. Separating the residents, Officer Guzman met with Garcia while Officer Santiago met with Martinez. Guzman described Garcia as being "slightly distraught," "upset with the situation," "sad," and "[s]he had a little bit of teary eyes." After he asked about what had occurred and whether she had injuries, Guzman noticed that she had a redness on her skin underneath her neck that appeared to be fresh.

While Officer Guzman spoke with Garcia, Officer Santiago had been meeting with Martinez. Santiago noted that Martinez's breath smelled of alcohol and he was slightly intoxicated. When asked what had happened, Martinez reported that he had been arguing with Garcia about engagement rings² that he wanted back from her. Martinez reported that nothing had happened, and no assault occurred. Santiago had also observed redness in an area below Garcia's neck. Santiago asked Martinez about this redness. Martinez repeated that no assault had occurred, and nothing had happened.

While on scene, Santiago took photographs of Garcia's neck area and conducted a video recorded interview of just over five minutes in length. Santiago asked Garcia questions about what had happened. Garcia described Martinez as being "now my ex," but she also clarified that they had a seven-year old child together. She said that Martinez had lived with her for months, and then he would leave. She said he moved out of their home in February when he learned that he had had a child with another woman. Garcia described that Martinez had returned home drunk after he had left their home at 1:30 p.m., and he failed to pick up their son from her workplace at 5 o'clock. Although he sent her messages, he did not return home for hours. Once he returned, she and Martinez talked about their relationship. She described that she had gone throughMartinez's phone and discovered messages from another woman and from his mother in which he mentioned that he was planning to leave with a truck they owned together.

Garcia described that an argument broke out when she confronted Martinez. She claimed they argued in front of their son and it became heated to the point that Martinez started pushing her and throwing her on the couch. She tried to get her son to leave the room, but Martinez would not let him go, and instead, he pushed their son onto their couch. As their argument continued, she slapped Martinez and tried to leave with her son. Martinez then grabbed her by her neck and threw her at a door, where she hit the back of her head. Garcia tried to leave again, but Martinez blocked her and their son. After a struggle, Garcia was able to get to the bedroom, but Martinez pursued her there and he threw her onto the bed. As their argument continued, Martinez threw her against a wall. She claimed that Martinez then decided to call 911 because he wanted her to return rings that he had given her.

When asked whether she had felt pain, Garcia responded that she felt pain when he bashed her head into a window, when Martinez grabbed her by the neck, and when he threw her against a wall in the bedroom. On the recording, she mentioned she currently had a headache. She admitted to slapping Martinez when he confronted her during their altercation. Completing her statement, she denied threatening Martinez in any way adding that he weighed over 230 to 250 pounds while she weighed 115 pounds.

Trial Proceedings

The State presented an information charging Martinez with family violence assault causing bodily injury. In two paragraphs, the information charged that Martinez intentionally, knowingly, or recklessly caused bodily injury to Garcia (1) by grabbing her neck with his hand; and (2) by pushing Garcia's body with his hand causing her head to strike a window. Prior to trial, the Statefiled a pleading titled, "Notice of Potential Brady Material," providing notice to defense counsel about contact with Garcia³ on September 21, 2016. The notice stated that Garcia had admitted that Martinez placed his hands on her, but she refused to comment about whether she had felt pain. Additionally, the State notified Martinez that Garcia claimed that "the police and District Attorney's office [were] blowing the entire incident out of proportion." Lastly, the notice stated that Garcia told the State that she had told Martinez's attorney that she did not want to prosecute the case and she was "extremely upset that the District Attorney's office ha[d] not dropped the case."

On April 25, 2017, the trial court called the case for a jury trial. After presenting Officers Guzman and Santiago, and admitting photographs of Garcia taken at the scene, the State next called Garcia to the stand to testify in its case-in-chief. Garcia identified Martinez as her spouse and testified that they had a seven-year-old son together. She was then asked whether she had provided a witness statement to officers on the night of August 1, 2016. After she responded with "I believe so, yes," the prosecutor stated he had no further questions. On cross-examination, defense counsel only asked a few short questions about her employment. On redirect, the State eventually asked Garcia to explain what happened between herself and Martinez on the date in question. Garcia claimed she went through Martinez's cell phone after he had returned home and had fallen asleep on their couch. When she found calls from another woman, she woke him up. She described that she threw the phone at him and slapped him to wake him up. Although Martinez was startled, she said he merely looked at her as he awoke from his sleep. Garcia claimed that Martinez never touched her.

At that point, the State offered Garcia's video statement (State's Exhibit 8), as a priorinconsistent statement but the trial court sustained Martinez's objection. Interrupting questioning of Garcia, the State recalled Officer Santiago to authenticate the recording. When the State offered the recording a second time, Martinez objected on several grounds including hearsay, Rule 403, and lack of foundation pursuant to Rule 613. Following a discussion outside the jury, the trial court allowed the State to recall Garcia. Garcia answered a series of questions about whether she made certain statements to police officers who had questioned her on August 1, 2016. Garcia primarily responded by stating that she was not sure of her prior statements or that she did not recall her earlier responses. She admitted, however, that she told the officers that Martinez had pushed her onto the bed and up against the wall, but she added that her statement was not true. The State then re-offered Garcia's recorded statement as an inconsistent statement. The court permitted its admission over Martinez's hearsay objection but only after the State produced a redacted copy.⁴

When cross-examined, Garcia further admitted that she had been angry with Martinez, she had thrown her phone at him while he slept, and she had slapped him. She also claimed that Martinez pushed her as a reaction and to get away from her, and when he did, she then fell back and tripped. Garcia testified that she had been exaggerating when she told the police officer that Martinez had grabbed her by the throat and had thrown her into a wall. She further added that her statement to the officer was not truthful. When asked at the end of her testimony whether she loved Martinez, Garcia answered "[y]es."

Following Garcia's testimony, the State called Stephanie Karr, executive director of the Center Against Sexual and Family Violence. Karr briefly described her educational background, her training pertaining to her position as executive director, and further mentioned she had beenemployed with the center for 18 years. When the State asked that Karr be certified as an expert witness, Martinez objected on lack of foundation. The trial court permitted her to answer further questions subject to changing its ruling.

As an expert in the field of family violence, the State asked her to describe how victims of assault family violence commonly react when asked to testify. Karr testified that the reaction of survivors can range from denial that the event ever took place, protection of the aggressor, or an unwillingness to proceed with the prosecution. But Karr added that each individual is unique. Karr admitted that she never met with Garcia, nor did she listen to her trial testimony. She further explained that survivors can be intimidated by their aggressor, and in order to protect themselves and other family members, they may choose to restate certain facts. When asked further questions, Martinez again objected to lack of foundation and the trial court sustained his objection. The State asked no further questions. After the State rested its case, Martinez moved for a directed verdict, which the court denied.

Martinez testified in his own defense. He described that he had been drinking on the day of the incident, but he claimed he did not smell of alcohol. He claimed he had arrived home around 10 p.m. and fell asleep on the couch. He was awakened, but he did not know...