Raul Martinez v. State ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00485-CR
Raul Martinez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 1010920, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
Appellant Raul Martinez appeals his conviction for aggravated assault. See Tex. Pen. Code
Ann. ' 22.02(a) (West, 1994). The jury acquitted appellant of the offense of aggravated sexual assault and
retaliation charged in counts I and III of the indictment, but convicted appellant of aggravated assault as
charged in count II. The trial court assessed punishment at fifteen years= imprisonment, after rejecting as
insufficient the evidence offered to support the two prior California felony convictions alleged for
enhancement of punishment.
Points of Error
Appellant advances four points of error. In the first two points of error, appellant claims
that the trial court erred in overruling his pretrial motion to suppress the knife seized in a warrantless search
of appellant=s bag in a motel room in violation of (1) the Fourth Amendment to the United States
Constitution and (2) article I, section nine of the Texas Constitution. In the third and fourth points of error,
appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for aggravated
assault. We will affirm the conviction.
Background and Facts
On December 17, 1999, in the early morning hours, Austin Police Officers Robert
Hightower and Noel Guerin responded to a disturbance call at the St. Elmo Motel on South Congress
Avenue. The motel night manager directed them to room number nine from which yelling or screaming was
still emanating. The manager informed the officers that a man and a woman had checked into that room
earlier.
Officer Hightower knocked on the door and appellant answered. Appellant was asked to
step outside and was placed in the custody of Officer Guerin who at some point handcuffed him. Hightower
entered the motel room and encountered R.O., the complainant, who was upset and crying. She had a
bruised face and blackened eye. The complainant reported that appellant had assaulted her the night before
in another motel in Austin while threatening her with a knife, that she was forced at knife point to stay in a
van all day while appellant sold pottery, and that they had then checked into the St. Elmo Motel. The
complainant revealed to Officer Hightower that appellant again hit her while threatening her with a knife.
According to Hightower, she directed him to a duffel bag in the room from which he removed a knife.
Hightower then talked with appellant outside the motel room. Appellant admitted that he had hit the
complainant but denied that he ever used a knife. Appellant was arrested.
The complainant, a forty-two-year-old woman, testified that she was divorced at the time of
the trial. She stated that while separated from her husband, she met appellant on a Greyhound bus travelling
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from Killeen to San Antonio, possibly in January 1999. Several months later, she telephoned appellant and
they began to communicate with each other. They lived together for two months at his mother=s house in
San Antonio. Later, they began to have difficulties. Appellant accused her of looking at other men and he
would pull her hair. They separated. In mid-December 1999, appellant came to Killeen where the
complainant was staying. They drove in a van to Nuevo Laredo, Mexico, so appellant could pick up some
pottery that he was going to sell along the roadway. They came to Austin and checked into Motel 71.
About 3:00 a.m. on August 16, 1999, the complainant stated that appellant became angry because he did
not like the coffee she fixed. When she told him to fix it himself, appellant, while displaying a knife, hit her
about the head and face. He threatened to kill the complainant. Sometime the next day, the complainant
attempted to show her bruises to the manager of the motel but appellant pulled her away. He forced her at
knife point into the van and made her stay there all day while he sold pottery. Later in the day, they
checked into the St. Elmo Motel. The complainant could not remember what they argued about, but
appellant again beat her and hit her while displaying the knife and threatening to kill her. She related that
appellant forced her face down on the bed and he raped her anally. In the process, she claimed that she
was cut on her back several times with the knife which left scars. When the motel manager telephoned the
room about the noise, the complainant stated she yelled, Acall the police@ so the manager could hear her
while he was talking to appellant.
When the police arrived and Officer Hightower entered the room, the complainant stated
that she went to appellant=s duffel bag and gave the knife to the officer.1 The complainant acknowledged
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The knife was introduced into evidence during the complainant=s testimony.
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that at the time she did not tell the officers about the sexual assault or the cuts on her back because she was
too embarrassed. She had cleaned herself and the cuts on her back before the officers arrived. Further, the
complainant did not reveal the sexual assault to Denise Bunton, a victim-witness counselor for the police
department or to Officer Keith Walker who took her statement at the police department. Later, she did
reveal the sexual assault to Connie Geerhart, a police Victim Services Counselor. Bunton, Walker, and
Geerhart all testified as State=s witnesses as to their contact with the complainant. Geerhart stated thatwhen
she learned from the complainant of the sexual assault, she took a brief statement from the complainant at
the direction of the sex crimes unit. She described the complainant as being tearful, upset and embarrassed.
There was no physical or medical examination of the complainant. At the time of the trial, photographs
were taken of the scars on the complainant=s back, which she claimed were from cuts suffered during the
sexual assault.
Appellant called two witnesses to discredit the complainant. Chetan Pattel, an employee at
Motel 71, testified that no woman showed her a bruised face on December 16, 1999. Donnie Charles
Jennings, an employee of South Point Auto Sales, testified that on December 16, 1999, appellant came to
his place of employment to sell pottery. Jennings saw the complainant in the front passenger seat of the van
and later outside the van. Appellant offered no other evidence. During jury argument, appellant=s counsel
acknowledged that the evidence showed appellant had committed simple assault by hitting the complainant
with his hand.
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The Motion to Suppress
The trial court overruled appellant=s pretrial motion to suppress the knife taken from
appellant=s duffel bag in a motel room. As noted, appellant claims that the search and seizure were in
violation of both the federal and state constitutions and the trial court erred in its pretrial ruling. However,
when the knife was offered into evidence at trial as State=s exhibit number two, appellant=s counsel expressly
stated, ANo objection, Your Honor.@ When a pretrial motion to suppress evidence is overruled, an accused
need not subsequently object to the admission of the same evidence at trial in order to present error.
Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985). However, when an accused
affirmatively asserts or expressly states during the trial that he has Ano objection@ to the admission of the
complained-of evidence, he waives any error in the admission of the evidence despite the ruling on the
motion to suppress evidence. Id.; see also Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.
1986); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983); Hardin v. State, 951 S.W.2d
208, 210 (Tex. App.CHouston [14th Dist.] 1997, no pet.); Tuffiash v. State, 948 S.W.2d 873, 876 (Tex.
App.CSan Antonio 1997, pet. ref=d). Thus, in the instant case, appellant waived any error in the trial
court=s ruling on the motion to suppress evidence. The first and second points of error are overruled. Next,
we turn to the third contention that the evidence is not legally sufficient to support the jury=s verdict.
Legal SufficiencyCStandard of Review
The standard for reviewing the legal sufficiency of the evidence is whether, viewing the
evidence in the light most favorable to the jury=s verdict, any rational trier of fact could have found beyond a
reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307,
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319 (1979); Lane v. State, 933 S.W.2d 504, 407 (Tex. Crim. App. 1996); Skillern v. State, 890
S.W.2d 849, 879 (Tex. App.CAustin 1994, pet. ref=d). The standard of review is the same in both direct
and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green
v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). The evidence, viewed in this light and all
reasonable inferences drawn therefrom, are evaluated in this review. See Alvarado v. State, 912 S.W.2d
199, 207 (Tex. Crim. App. 1995). It is important to remember that all the evidence the jury was permitted
to consider, properly or improperly, must be taken into account in determining the legal sufficiency of the
evidence. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.CAustin
1997, no pet.). In analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not
realign, disregard, or weigh the evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.CAustin
1997, no pet.).
The jury is the exclusive judge of the facts proved, the credibility of the witnesses, and of the
weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Adelman v.
State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of any
witness=s testimony and reconcile any conflicts in the evidence. Fuentes v. State, 991 S.W.2d 267, 271
(Tex. Crim. App. 1999). In reviewing the evidence for legal sufficiency, the appellate court must presume
that the trier of fact resolved any conflicting inferences in favor of the prosecution and must defer to that
resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). The evidence is not insufficient
merely because the defendant presented a different version of the events. Id. at 47-48.
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Count II of the Indictment
Appellant was charged with aggravated assault. See Tex. Pen. Code Ann. ' 22.02(a)(2)
(West 1994).2 Count II of the indictment alleged:
And the Grand Jury further presents that on or about the 16th day of December
A.D. 1999, and before the presentment of this indictment in the County of Travis and State
of Texas, RAUL MARTINEZ did then and there intentionally, knowingly, and recklessly
cause bodily injury to [R.O.] by striking her with his hand, and RAUL MARTINEZ did
then and there use and exhibit a deadly weapon, to-wit: a knife, that in the manner of its use
or intended use was capable of causing death or serious bodily injury, during the
commission of this offense,
Paragraph II
2
Section 22.02(a)(2) provides: A(a) a person commits an offense if the person commits an
assault as defined in section 22.01 and the person: (2) uses or exhibits a deadly weapon during the
commission of the assault.@ Tex. Pen. Code Ann. ' 22.02(a)(2) (West 1994). In pertinent part,
section 22.01 provides: A(a) a person commits an offense if the person: (1) intentionally, knowingly,
or recklessly causes bodily injury to another including the person=s spouse; (2) intentionally or
knowingly threatens another with imminent bodily injury, including the person=s spouse; . . . .@ See
Tex. Pen. Code Ann. ' 22.02(a)(1), (2) (West Supp. 2001). Section 1.07(a)(17) of the Penal Code
provides: A>Deadly weapon= means: (A) a firearm or anything manifestly designed, made, or adapted
for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.@ See Tex. Pen. Code Ann. '
1.07(a)(17) (West 1994).
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And the Grand Jury further presents that on or about the 16th day of December
A.D. 1999, and before the presentment of this indictment in the County of Travis and State
of Texas, RAUL MARTINEZ did then and there intentionally and knowingly threaten
[R.O.] with imminent bodily injury and did then and there use and exhibit a deadly weapon,
to-wit: a knife, that in the manner of its use or intended use was capable of causing death or
serious bodily injury, during the commission of this offense,
Count II of the indictment charged conjunctively two theories of assault, both of which were
alleged to be aggravated assault by use or exhibition of a deadly weapon, to wit: a knife. In submitting
count II to the jury, the two theories were submitted disjunctively, which is legally permissible. See
Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991). The jury instructions included
definitions of a deadly weapon, bodily injury, and serious bodily injury. The court also submitted the lesser
included offense of assault by causing bodily injury to the complainant (by striking her with his hand).
The jury returned a general verdict: AWe, the Jury, find the Defendant, Raul Martinez, guilty
of the offense of aggravated assault as alleged in count II of the indictment.@ When different theories of the
offense are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one
of the theories. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997); Fuller v. State,
827 S.W.2d 919, 931 (Tex. Crim. App. 1992); Kitchens, 823 S.W.2d at 257-58; Robertson v. State,
16 S.W.3d 156, 159 n.3 (Tex. App.CAustin 2000, pet. ref=d).
Appellant=s Argument
Recognizing Jackson v. Virginia as setting the standard of review for legal sufficiency
challenges, appellant concedes that he committed the simple assault charged in count II, paragraph one, but
urges that there is Aabsolutely no evidence@ to show that a knife was used or exhibited to constitute an
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aggravated assault. Appellant misreads the record or believes that all testimony concerning the knife is to be
excluded because the knife itself was improperly admitted into evidence. As noted, in determining a
sufficiency of evidence challenge, all the evidence the jury was permitted to consider, properly or
improperly, must be taken into account. See Garcia, 919 S.W.2d at 378. As to the offense charged in
paragraph two of count II of the indictment, appellant urges that there was no credible evidence of any
threats. Testimony as to threats came from the complainant who was alone with appellant at the time. The
issue of credibility is one for the jury, and we are required to view the evidence in the light most favorable to
the jury=s verdict. Jackson, 443 U.S. at 319. Next, appellant claims the evidence fails to show that a
deadly weapon was used or exhibited. Appellant does not brief this assertion. He cites no authorities
except Jackson and does not call our attention to any part of the court reporter=s record to support his
contention. There has been no compliance with the briefing rules. See Tex. R. App. P. 38.1.
Discussion
Nevertheless, we observe that a knife is not a deadly weapon per se. Moreno v. State,
755 S.W.2d 866, 868-69 (Tex. Crim. App. 1988); Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim.
App. 1978); Hatchett v. State, 930 S.W.2d 844, 848 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).
For the purposes of the aggravated assault statute, a knife can be shown to be a deadly weapon by the
manner of its use or intended use and its capacity to produce death or serious bodily injury. Garcia v.
State, 17 S.W.3d 1, 4 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d); Sweeten v. State, 686 S.W.2d
680, 683 (Tex. App.CCorpus Christi 1985, no pet.). Some of the factors that may be considered to
establish the necessary proof are the size, shape, and sharpness of the knife, the manner of its use or
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intended use, the capability of the knife to cause death or serious bodily injury, the close proximity of the
complainant to the knife, words of the accused, and the complainant=s fear of her life. See Davis v. State,
22 S.W.3d 638, 641 (Tex. App.CFort Worth 2000, pet. ref=d); Hatchett, 930 S.W.2d at 848. Threats
by the accused may be conveyed by action, conduct, and words. See McCowan v. State, 664 S.W.2d
355, 357 (Tex. Crim. App. 1984). The infliction of knife wounds and the testimony of expert witnesses as
to the capacity of the knife to cause death or serious bodily injury may be factors to consider, but they are
not required. See DeLeon v. Sate, 865 S.W.2d 139, 141 (Tex. App.CCorpus Christi 1993, no pet.); see
also Hester v. State 909 S.W.2d 174, 179 (Tex. App.CDallas 1998, no pet.). The factors are non-
exclusive. Each case must be examined on its own facts. Garcia, 17 S.W.3d at 4. The jury makes the
determination from all the facts. Hatchett, 930 S.W.2d at 848. And it must be remembered that the plain
language of section 1.07(a)(17)(B) of the Penal Code Adoes not require that the actor actually intend death
or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it
would be capable of causing death or serious bodily injury.@ McCain v. State, 22 S.W.3d 497, 503 (Tex.
Crim. App. 2000).
In the instant case, some pertinent questions went unasked. The complainant did, however,
testify that the knife was Along@ when opened. Officer Hightower testified it was a locked blade knife and
that he took the knife into custody for safety reasons. The complainant testified that during the assault
appellant held the knife to her throat, neck, and later her stomach, while threatening to kill her; that she
feared for her life and prayed that God would forgive her sins. She testified that during the sexual assault
appellant used the knife to cut her back from which she suffered scars. The knife was introduced into
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evidence and the jury had an opportunity to see and examine the knife, and to listen to the description of the
manner of its use or intended use. See Sweeten, 686 S.W.2d at 685. The jury also had the opportunity to
determine the capability of the knife to cause death or serious bodily injury. Moreover, the knife was
exhibited during the commission of the offense and facilitated the offense.
Viewing the evidence in the light most favorable to the jury=s verdict, we conclude that any
rational trier of fact could have found beyond a reasonable doubt all the essential elements of each theory of
the offense charged. The third point of error is overruled.
Factual SufficiencyCStandard of Review
In his last point of error, appellant challenges the factual sufficiency of the evidence to
sustain the conviction. His chief argument appears to be that the complainant was not a credible witness.
A review of the factual sufficiency of the evidence begins with the presumption that the
evidence supporting the judgment was legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.
Crim. App. 1996). In such a review, we consider the evidence without employing the prism of Ain the light
most favorable to the verdict.@ Id. at 129. A reviewing court must consider all the evidence impartially,
comparing evidence that tends to prove the existence of a disputed fact or facts with evidence that tends to
disprove that fact or those facts. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). All
the evidence is viewed in a neutral light favoring neither side. Westbrook v. State, 29 S.W.3d 103, 111
(Tex. Crim. App. 2000). In the factual sufficiency analysis, it must be remembered that the trier of the fact
is the sole judge of the weight and credibility of the testimony. Santellan, 939 S.W.2d at 164. Appellate
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courts should be on guard not to substitute their own judgment in these matters for that of the trier of fact.
Id.; see also Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
Recently, the Court of Criminal Appeals modified the standard of review in factual
sufficiency cases to encompass both formulations utilized in civil jurisprudence. Johnson v. State, 23
S.W.3d 1, 10-11 (Tex. Crim. App. 2000). A[E]vidence can be factually insufficient if (1) it is so weak as to
be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and
preponderance of the available evidence.@ Id. at 11. More recently, in Vasquez v. State, 67 S.W.3d 229,
236 (Tex. Crim. App. 2002), the court stated:
In reviewing factual sufficiency, we will look at all the evidence in a neutral light, and will
reverse only if the evidence supporting guilt is so obviously weak as to render the
conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when
taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as
to render the conviction clearly wrong or manifestly unjust.
Id. (citing Johnson, 23 S.W.3d at 11).
Appellant=s Argument
In an attempt to show that the complainant was not a credible witness, appellant points out
that, at trial, the complainant testified the allegations she made to the officers at the scene were that appellant
was drunk, on drugs, and had stolen the pottery he was selling; that her testimony about the assaults was
inconsistent; that she was impeached by other witnesses regarding her claims that she displayed her bruises
to the management at Motel 71, and was kept a prisoner in the back of the van on December 16, 1999;
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and furthermore the complainant had a history of criminal, medical, and psychiatric problems, and had
suffered from self-inflicted wounds.
The complainant was not an ideal witness for the prosecution. Her testimony, however,
about the assaults with the use or exhibition of a knife was largely uncontradicted. Officer Hightower found
a battered and bruised woman with a black eye. A knife was found among appellant=s possessions in the
motel room. Appellant denied the use of a knife, but admitted the assault with his hands. The credibility of
the witnesses was an issue for the jury. The jury may accept some of a witness=s testimony and reject the
balance. Fuentes, 991 S.W.2d at 271. We must be appropriately deferential to avoid substituting our own
judgment for that of the fact finder. Vasquez, 67 S.W.3d at 236. After examining all the evidence in a
neutral light, we find the evidence supporting guilt is not so weakCnor is the contrary evidence so
overwhelmingly strongCas to render the jury=s verdict clearly wrong and manifestly unjust. Accordingly, we
overrule the fourth point of error.
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The judgment is affirmed.
John F. Onion, Jr., Justice
Before Justices Kidd, Patterson and Onion*
Affirmed
Filed: September 26, 2002
Do Not Publish
*
Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).
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