ACCEPTED
13-14-00512-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/28/2015 1:31:57 PM
DORIAN RAMIREZ
CLERK
No. 13-14-512-CR
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF4/28/2015
TEXAS1:31:57 PM
AT CORPUS CHRISTI DORIAN E. RAMIREZ
Clerk
CHRISTOPHER MARTINEZ,
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE.
ON APPEAL FROM THE 214TH DISTRICT COURT
NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Appellee
ORAL ARGUMENT IS REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................2
Reply Point No. 1
The evidence is legally sufficient to prove all elements of criminal
mischief. ..........................................................................................................2
Reply Point No. 2
Martinez has failed to prove ineffective assistance of trial counsel. .........4
I. Statement of Facts. ...........................................................................4
II. Ineffective Assistance of Counsel. .................................................5
III. Miranda Requirements. ...............................................................7
IV. Reasonable Trial Strategy and Lack of Prejudice. ....................9
PRAYER ....................................................................................................... 11
RULE 9.4 (i) CERTIFICATION .................................................................. 11
CERTIFICATE OF SERVICE ..................................................................... 12
i
INDEX OF AUTHORITIES
Cases
Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007). ........................ 10
Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002). ...........................8
Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984). .........................8
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ............................3
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). ..........................8
Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001). ...............................7
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005). ......................6
Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003). ...................... 10
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ................................3
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). ...................... 6, 7
Keaton v. State, 755 S.W.2d 209 (Tex. App.–Houston [1st Dist.] 1988, pet.
ref'd). ................................................................................................................9
Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012). ........................7
Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002). ....................................7
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012). ................................8
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). ..........................6
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013). ...............................8
Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526 (1994). ......................8
State v. Stevenson, 958 S.W.2d 824 (Tex. Crim. App. 1997). ........................8
ii
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). .............. 5, 6
Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995). ............................7
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). ....................... 5, 6
Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990). .........................6
Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). ............................................................................................................ 7, 9
Statutes & Rules
Tex. Pen. Code § 28.03. ...................................................................................2
iii
NO. 13-14-512-CR
CHRISTOPHER MARTINEZ, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS
BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT
First Issue – Eyewitness testimony that Martinez slashed the victim’s
tires was sufficient to support the present conviction for Criminal Mischief.
Second Issue – Martinez failed to prove that his trial attorney was
ineffective for failing to seek to suppress his statements to the police, both
because he failed to prove the merits of a motion to suppress, and because he
failed to show that the statements hurt his defense.
1
ARGUMENT
Reply Point No. 1
The evidence is legally sufficient to prove
all elements of criminal mischief.
A person commits the offense of Criminal Mischief if, without the
effective consent of the owner, he intentionally or knowingly damages or
destroys the tangible property of the owner. Tex. Pen. Code § 28.03 (a)(1).
The offense is a State Jail Felony if the amount of pecuniary loss is $1,500
or more but less than $20,000. Tex. Pen. Code § 28.03 (b)(4)(A).
In the present case, Martinez was indicted for, and found guilty of,
Criminal Mischief, and specifically for damaging a vehicle by cutting the
tires, causing a loss of more than $1,500. (CR pp. 5, 68)
At trial, Gabriel Leal, a bouncer at the club that Martinez had just left,
testified that he saw Martinez “damaging a vehicle” by “stabbing tires” (RR
vol. 3, pp. 17-19), though Leal also admitted that Martinez’s back was
toward him at the time and what he actually saw was Martinez’s arm
“making a back-and-forth swinging motion.” (RR vol. 3, pp. 19, 20).
Ruben Barrera, the owner of the vehicle, testified that he had taken it
to the club that night, and that he later went outside to find all four tires had
been slashed. (RR vol. 3, pp. 53-54). When he was shown photographs of
the slashed tires, Barrera testified that these “fairly and accurately portray
2
what happened to [his] vehicle that night.” (RR vol. 3, p. 54) Those
photographs show flat tires that would appear to render the vehicle
practically undrivable. (SX 3-5) Barrera then had the vehicle towed to his
house, and had the tires replaced for over three thousand dollars. (RR vol. 3,
pp. 56-57).
Martinez challenges the sufficiency of the evidence to show that he
actually cut the tires in question, stressing that the sole witness, Leal, was
not close enough to see what Martinez was doing when he made a swinging
motion next to the tires.
In analyzing legal sufficiency, the reviewing court should “determine
whether the necessary inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most
favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.
App. 2007)). “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Clayton, 235 S.W.3d at 778 (quoting Hooper,
214 S.W.3d at 13).
In the present case, Leal clearly testified that he saw Martinez cutting
the tires. However, even if Leal merely assumed that Martinez was cutting
3
them based on the swinging motion in question, but could not see the tires
actually being cut, the surrounding circumstances were clearly sufficient for
the jury to infer that Martinez did cut the tires and cause the damage in
question. Common sense suggests that the victim drove his car to the club
with functional tires that had not been slashed, and that the tires were
slashed while it was in the parking lot at the club. The fact that Martinez
was seen making a slashing motion toward the tires while the vehicle was
parked there is sufficient to infer that he slashed the tires, and thus
committed Criminal Mischief.
Martinez’s first issue on appeal should be overruled.
Reply Point No. 2
Martinez has failed to prove ineffective assistance of trial counsel.
Martinez complains that his trial attorney was deficient in failing to
move to suppress certain statements that he made to police after his vehicle
was stopped and before he had been Mirandized.
I. Statement of Facts.
Officer Chrystal Rodriguez testified to making a traffic stop of
Martinez’s vehicle and taking him out of that vehicle. (RR vol. 3, pp. 39-40)
Officer Rodriguez also testified that, after Martinez was pulled out of the
vehicle and before he was placed under arrest, she had a conversation with
4
him about where he came from and if he was involved in the incident they
were investigating. (RR vol. 3, pp. 41-42)
Officer Jerry Lockhart also testified to stopping the vehicle, and
pulling Martinez out and patting him down. (RR vol. 3, pp. 45-46)
Lockhart then put Martinez in the back seat of his patrol unit. (RR vol. 3,
pp. 46-47)
Officer Casey Henry testified that he performed the pat-down on
Martinez and found a knife in his pocket. (RR vol. 3, pp. 28-29) After he
recovered the knife, Officer Henry questioned Martinez and the other
occupant to see if they were involved in the incident. (RR vol. 3, p. 32)
The DVD that Martinez complains should have been suppressed was
admitted to show Martinez’s behavior in front of the patrol car. (RR vol. 3,
p. 49) Martinez points to no testimony or other indication that he was under
arrest at the time the recording was made.
II. Ineffective Assistance of Counsel.
On appeal, to prove ineffective assistance of trial counsel an appellant
must show that counsel's assistance fell below an objective professional
standard of reasonableness and counsel's actions thereby prejudiced
appellant's defense. Strickland v. Washington, 466 U.S. 668, 687–88, 692,
104 S.Ct. 2052 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
5
App. 1999). To prove prejudice, an appellant must show by a preponderance
of the evidence that but for counsel's unprofessional error, the outcome of
his trial would have been different. Jackson v. State, 973 S.W.2d 954, 956
(Tex. Crim. App. 1998).
The reviewing court should consider the totality of counsel's
representation in light of the particular circumstances of the case and
presume that counsel acted competently and made decisions based on a
reasonable trial strategy. See Strickland, 466 U.S. at 689, 695, 104 S.Ct.
2052; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). To
rebut this presumption, the basis for any allegation of ineffectiveness must
be firmly founded and affirmatively demonstrated in the record. Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d
at 813.
Accordingly, a direct appeal is generally an “inadequate vehicle for
raising such a claim because the record is generally undeveloped.”
Goodspeed, 187 S.W.3d at 392. Trial counsel “should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective.”
Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003)). Absent that opportunity, deficient performance should be found
only if the trial counsel's conduct was “so outrageous that no competent
6
attorney would have engaged in it.” Menefield v. State, 363 S.W.3d 591,
593 (Tex. Crim. App. 2012) (quoting Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001)).
When an ineffective assistance claim alleges that counsel was
deficient in failing to object to the admission of evidence, the defendant
must show, as part of his claim, that the evidence was inadmissible. Ortiz v.
State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Specifically, to satisfy the
Strickland test and prevail on an ineffective assistance claim premised on
counsel's failure to file a motion to suppress, an appellant must defeat the
presumption of proper police conduct and show that the motion to suppress
would have been granted. Jackson v. State, 973 S.W.2d 954, 956–57 (Tex.
Crim. App. 1998); Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston
[14th Dist.] 2012, no pet.).
III. Miranda Requirements.
Under Miranda and Texas law, a “custodial interrogation” is defined
as “questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of [her] freedom of action in any
significant way”; in other words, a custodial interrogation is one in which a
detainee's freedom of movement is restrained to the degree associated with a
formal arrest and not a mere investigative detention. Thompson v. Keohane,
7
516 U.S. 99, 107, 116 S.Ct. 457 (1995); State v. Ortiz, 382 S.W.3d 367, 372
(Tex. Crim. App. 2012); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.
App. 1996). A person is in custody only if, under the circumstances, a
reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest. State v. Saenz, 411
S.W.3d 488, 496 (Tex. Crim. App. 2013) (citing Stansbury v. California,
511 U.S. 318, 114 S.Ct. 1526 (1994)).
A traffic stop, by itself, does not constitute “custody” for purposes of
Miranda. Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138 (1984);
State v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997). And “the
mere fact that the suspect becomes the focus of a criminal investigation does
not convert a roadside stop into an arrest.” Stevenson, 958 S.W.2d at 829.
The Supreme Court reasoned that questioning during a traffic stop mitigates
the danger presented under Miranda because traffic stops are presumptively
brief and temporary, unlike a police station interrogation, and are more open
and take place in public, which lessens the police dominance over a
defendant. See Berkemer, 468 U.S. at 437–38.
In addition, Martinez was not in custody merely because he was
removed from his vehicle, nor was he necessarily in custody when he was
placed in the back of the officers’ patrol car. See Balentine v. State, 71
8
S.W.3d 763, 771 (Tex. Crim. App. 2002) (defendant not in custody even
though he was handcuffed and placed in back of patrol car because those
actions were reasonably necessary to ensure the officer's safety) ; Wert v.
State, 383 S.W.3d 747, 753-54 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (citing Balentine); Keaton v. State, 755 S.W.2d 209, 210 (Tex. App.–
Houston [1st Dist.] 1988, pet. ref'd) (officer's placement of traffic-stop
suspect into back of patrol car to ask for license and registration was not
custodial interrogation under Miranda ).
Accordingly, Martinez has failed to show that he was in custody at the
time he made the statements in question and that a motion to suppress should
have been granted.
IV. Reasonable Trial Strategy and Lack of Prejudice.
However, even if Martinez could have suppressed these statements, he
fails to show that the statements were harmful or that his trial attorney was
not exercising reasonable trial strategy in refraining from filing a motion to
suppress.
The DVD in question does not appear to have even been made a part
of the appellate record. It is the appealing party's burden to ensure that the
record on appeal is sufficient to resolve the issue he presents, and reviewing
courts cannot assume or speculate about the contents of exhibits or other
9
materials that are not contained in the appellate record. Amador v. State,
221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (citing Guajardo v. State, 109
S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003)).
Moreover, the admissions that Martinez points to in his brief - that the
suspects had been to the club that night, and that Martinez owned the knife
found in his pocket – had little or no impact on Martinez’s defense against
the present charge.
Martinez’s presence at the club was confirmed by Leal’s testimony,
was not disputed, and was affirmatively used by the defense through the
testimony of Martinez’s aunt. The sole witness called for the defense,
Juanita Rangel, admitted that Martinez was at the club in question that night,
but claimed to have walked out with him and seen him get into his vehicle
without slashing the victim’s tires. (RR vol. 4, pp. 6-7)
In addition, the knife was found on Martinez and admission of
ownership was irrelevant.
Accordingly, Martinez’s trial attorney may well have decided that
there was no reason to seek to suppress his statements to the police.
Martinez’s second issue on appeal should be overruled.
10
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,037.
/s/Douglas K. Norman
___________________
Douglas K. Norman
11
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed this 28th day of
April, 2015, to Appellant’s attorney, Mr. Donald B. Edwards.
/s/Douglas K. Norman
___________________
Douglas K. Norman
12