AFFIRMED AS MODIFIED and Opinion Filed April 26, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01549-CR
MICHAEL MAURICIO MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-75117-N
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Carlyle
Michael Mauricio Martinez appeals his conviction for burglary of a
habitation. We affirm as modified in this memorandum opinion. See TEX. R. APP. P.
47.4.
Michael Foster and James Jernigan live in a zero-lot-line house with a small
fenced-in back yard. The yard has a stone path leading approximately twenty feet
from the back door of the house to a detached private garage. The garage, though
detached, is the primary entry point to the house because it is the only way to access
the house from the driveway without having to walk completely around the block.
On the morning of January 4, 2019, Jernigan walked out the back door and
noticed he could not open the pass-through door to the garage. He and Foster walked
around the block and discovered someone had broken into the garage, barricaded the
pass-through door, ransacked Foster’s car, and taken their property.
Foster and Jernigan called police and reviewed footage from their security
cameras from around 4:17 a.m. The footage showed a man later identified as
Martinez cautiously creep into the garage with a cigarette dangling out of the right
side of his mouth, holding a pistol in a lazy form of what police would call a “low
ready” position, in both hands and pointing straight down instead of at a 45-degree
angle downward. As Martinez crept further into the garage, he appeared to notice
the camera, and in one deft motion of his golf-gloved left hand, moved his gold-
framed gradient lens sunglasses1 from the top of his head down over his eyes while
pulling his maroon sweatshirt hood up over his head. Martinez wore no glove on his
right hand, but did sport red shoes, dark jeans slung low to expose a baggy bright
blue pair of boxer briefs, and an oval belt buckle.
The State indicted Martinez for burglary of a habitation, TEX. PENAL CODE
§ 30.02(c)(2), with an enhancement paragraph alleging a prior felony conviction.
The State later added a deadly weapon enhancement as a special issue. Martinez
entered pleas of “not guilty” to the charge and “not true” to the enhancement
1
A gradient lens is shaded darker on top than on bottom, and in this case, the bottom part of Martinez’s
sunglasses was nearly clear, or at most, a Hunter S. Thompson-esque amber.
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paragraph. The jury found him guilty, found that he used or exhibited a deadly
weapon during the offense, found that he had a prior felony conviction, and assessed
punishment at twenty-five years’ confinement.
SUFFICIENT EVIDENCE SUPPORTS THE HABITATION FINDING
Martinez first contends the evidence does not support his conviction. We
review evidentiary sufficiency under the familiar Jackson v. Virginia2 standard,
viewing all evidence in the light most favorable to the verdict to determine whether
the factfinder was rationally justified in finding guilt beyond a reasonable doubt. See
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
To prove Martinez committed burglary of a habitation as charged, the State
had to show Martinez entered a “habitation” without the effective consent of the
owner and attempted, committed, or intended to commit theft. See TEX. PENAL CODE
§ 30.02(a). Martinez does not challenge the sufficiency of the evidence supporting
the jury’s finding that he burglarized the garage; he challenges only whether the
garage qualifies as a “habitation” under the statute.
“Habitation” is defined by the penal code as “a structure or vehicle that is
adapted for the overnight accommodation of persons,” including “each separately
secured or occupied portion of the structure or vehicle” and “each structure
appurtenant to or connected with the structure or vehicle.” TEX. PENAL CODE
2
443 U.S. 307 (1979).
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§ 30.01(1). Although the penal code does not define the phrase “appurtenant to,” we
explained in Jones v. State that it means “belonging to; accessory or incident to;
adjunct, appended or annexed to,” noting that “[a] thing is ‘appurtenant’ to
something else when it stands in relation of an incident to a principal and is
necessarily connected with the use and enjoyment of the latter.” 690 S.W.2d 318,
319 (Tex. App.—Dallas 1985, pet. ref’d) (quoting Appurtenant, Black’s Law
Dictionary 94 (rev. 5th ed. 1979)). Using that definition, we held that a detached
residential garage was “a structure appurtenant to” a residence, thus falling within
the statutory definition of a “habitation.” Id.
Martinez appropriately acknowledges our holding in Jones but contends it
should not control here, arguing it was wrongly decided. Instead, he suggests we
should take guidance from later cases decided by our sister courts, which he contends
establish additional criteria for determining whether a residential garage qualifies as
a “habitation.” See, e.g., Andrus v. State, 495 S.W.3d 300, 305 (Tex. App.—
Beaumont 2016, no pet.); Shakesnider v. State, 477 S.W.3d 920, 923 (Tex. App.—
Houston [14th Dist.] 2015, no pet.); Darby v. State, 960 S.W.2d 370, 371–72 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d). We disagree with Martinez’s
characterization of those cases, which do not conflict with our analysis in Jones. We
are bound by our precedent holding that a detached residential garage is as a
“habitation” under the burglary statute. See Jones, 690 S.W.2d at 319. And, the
characteristics of this garage, that it is the only way to enter the house from the
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driveway without having to walk around the whole block, reinforce that conclusion.
The evidence is sufficient to support the jury’s finding that Martinez burglarized a
habitation.
SUFFICIENT EVIDENCE SUPPORTS THE DEADLY WEAPON FINDING
Martinez next contends the evidence does not support the jury’s finding that
he used or exhibited a deadly weapon during the burglary. See TEX. CODE CRIM.
PROC. art. 42A.054(b). The term “use” in this context means “any employment of a
deadly weapon, even simple possession, if such possession facilitates the associated
felony.” Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004) (quoting
Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). The term “exhibit”
requires that the weapon be “consciously shown, displayed, or presented to be
viewed.” Id. (quoting Patterson, 769 S.W.2d at 941).
“The purpose of the deadly weapon provision is to discourage and deter felons
from taking and using deadly weapons with them as they commit their crimes.”
Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2013) (citing Coleman, 145
S.W.3d at 655–56 (Cochran, J., concurring) (discussing history and rationale of the
deadly-weapon provision)). This “deterrence rationale works only if the actor makes
a conscious decision to ‘use’ or ‘exhibit’ the weapon to assist in committing the
felony.” Thus, to sustain a deadly weapon finding, there must be some evidence
suggesting the weapon helped facilitate the associated felony. Id. at 865.
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Here, the evidence included video footage showing Martinez entering the
garage while holding a firearm with both hands. Martinez argues the firearm did not
facilitate the burglary because he was able to accomplish the burglary without
confronting anyone with the weapon. But the jury could rationally conclude the
firearm emboldened Martinez to commit the burglary and assisted him by providing
protection against the potential threat of homeowner resistance during the crime.
We are similarly unpersuaded by Martinez’s argument, based on Cates v.
State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003), that the evidence could not
establish he used or exhibited the firearm as a deadly weapon because he did not
place anyone in “actual danger.” He endangered Foster and Jernigan by breaking
into their garage with a deadly weapon while they were home. But most notably,
Cates and its progeny address the extent to which vehicles can be used as deadly
weapons. See id.; see also Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App.
2005). Vehicles are not deadly weapons per se. Firearms are. TEX. PENAL CODE §
1.07(a)(17)(A).
The analysis required to triangulate when a vehicle is used as a deadly weapon
is whether, “in the manner of its use or intended use [the vehicle] is capable of
causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). In that context, a
deadly-weapon finding requires evidence that the defendant’s driving placed others
in actual, not just hypothetical, danger. See Cates, 102 S.W.3d at 738; Drichas, 175
S.W.3d at 798. But in cases dealing with firearms, the focus is on whether the firearm
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facilitated the associated felony, regardless of whether the defendant encountered a
third party while using the gun. See, e.g., Coleman, 145 S.W.3d at 655; Gale v. State,
998 S.W.2d 221, 224 (Tex. Crim. App. 1999); Patterson, 769 S.W.2d at 942; see also
Plummer, 410 S.W.3d at 859 (noting a deadly-weapon finding is permitted “when a
jury could infer, in the absence of actual harm or threat, that the weapon ‘facilitated’
the associated felony.”). The evidence supports the finding that the firearm Martinez
exhibited while committing this crime was a deadly weapon.
THE TRIAL COURT ACTED WITHIN ITS DISCRETION TO DENY MARTINEZ’S MOTIONS FOR
CONTINUANCE AND MISTRIAL
Martinez next contends the trial court abused its discretion by denying his
motion for continuance and his related motion for a mistrial. To obtain reversal based
on a denied continuance, Martinez must show both that the denial was erroneous and
that it caused actual and specific prejudice to his defense. Gonzales v. State, 304
S.W.3d 838, 843 (Tex. Crim. App. 2010); Renteria v. State, 206 S.W.3d 689, 699
(Tex. Crim. App. 2006). This requires a showing that “the case made for delay was
so convincing that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest in
delay of the trial.” Gonzales, 304 S.W.3d at 843 (quoting George E. Dix & Robert
O. Dawson, 42 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 28.56 (2d
ed. 2001)). The record must also show “with considerable specificity how the
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defendant was harmed by the absence of more preparation time than he actually
had.” Id. (quoting Dix et al., supra).
Martinez moved for a one-week continuance after the State disclosed
additional evidence on the Friday before his Monday trial.3 The evidence included
twenty-two surveillance photos, a surveillance video, and a recorded police
interview with Charly Garcia, a witness the State intended to call during the
punishment stage. Garcia was the complainant in an aggravated assault case against
Martinez and helped police identify Martinez as the suspect in several unrelated
property crimes. Based on Garcia’s identification in those cases, police were able to
recognize Martinez as the suspect in the surveillance video taken from Foster’s and
Jernigan’s garage.
Martinez was previously aware police identified him based on information
provided by Garcia. In fact, the State had already provided Martinez with a copy of
the police interview in which Garcia identified Martinez in surveillance videos taken
from other property crimes. In any event, the newly disclosed interview, which
Martinez could not access before the trial began,4 lasted approximately eleven
minutes and did not discuss the burglary.
3
The State disclosed the evidence immediately after receiving it from a police detective who did not
timely provide it upon request.
4
Martinez was able to access the other newly disclosed evidence on the Friday before the trial, but the
disc containing the Garcia interview would not play because of a technical issue.
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The trial court granted Martinez a three-hour recess to review the new Garcia
interview but denied his motion for a one-week continuance. The trial court also
ordered the State to cooperate with Martinez during the recess to provide any
information he needed. After the recess, Martinez renewed his motion for a
continuance and moved for a mistrial, arguing the State had “ambushed him” with
the additional evidence. The trial court denied those motions, noting both that it gave
Martinez three hours to review the additional evidence and that it would allow
“liberal cross-examination as to all those matters so the jury [would] know about all
[his] allegations of misconduct by the state, including law enforcement.”
On appeal, Martinez argues the three-hour recess was insufficient because he
spent most of that time learning new details about the process by which police
identified him as a suspect in the burglary. He complains he did not have an
“opportunity to adjust trial strategy,” “reconstruct cross-examination,” or “question
potential jurors about identification” during voir dire. But even with the immense
hindsight in completing appellate briefing, Martinez does not explain how his trial
strategy or questioning would have changed if he had been granted additional time.
See id.
Moreover, Martinez told the trial court he wanted to avoid making
identification an issue, because it would open the door for the State to discuss his
other crimes. In fact, at Martinez’s request, the trial court ordered the State to avoid
eliciting detailed testimony about the identification process. Martinez does not
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explain how the newly disclosed evidence, which he contends is relevant to the
identification process, was material to his defense in light of his successful strategy
to limit the introduction of such evidence.
Martinez’s bare assertion that he lacked time to effectively review and utilize
the new evidence does not establish actual and specific prejudice. See Heiselbetz v.
State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). Thus, the trial court did not
abuse its discretion by denying Martinez’s request for a one-week continuance. Id.
And because Martinez fails to show actual prejudice resulting from the denied
continuance, he likewise fails to show the trial court abused its discretion by denying
his motion for a mistrial. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999) (mistrial appropriate “when error is so prejudicial that expenditure of further
time and expense would be wasteful and futile.”).
THE TRIAL COURT ACTED WITHIN ITS DISCRETION TO ALLOW TESTIMONY ABOUT
WHETHER A DETACHED GARAGE CAN QUALIFY AS A HABITATION
Martinez next contends the trial court erred by allowing police testimony
concerning whether a garage can qualify as a habitation. During its case-in-chief, the
State asked Detective Darren Allen whether and why, based on his training,
experience, and knowledge as a property crimes detective, a detached garage can be
considered a habitation. Martinez objected that the question was one of fact for the
jury and that “it is irrelevant what this -- this detective thinks that building is or is
not.” After the trial court overruled the objection, Allen testified: “In the field, . . . a
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detached garage is considered a habitation. A habitation is a building designed for
overnight, and anything on the property, including the, you know, garage that are
[sic] secured are [sic] considered part of the habitation.” Allen went on to explain
that the garage at issue was on the main property and was appurtenant to Foster’s
and Jernigan’s house.
We review a trial court’s decision to admit evidence for abuse of discretion
and will reverse only if the decision falls outside the zone of reasonable
disagreement. Tillman v. State, 354 S.W.3d 425(Tex. Crim. App. 2010). Martinez
contends Allen offered improper opinion testimony, supplanting the jury’s
determination of whether the garage was a habitation. See Ortiz v. State, 834 S.W.2d
343, 348 (Tex. Crim. App. 1992). The State contends Martinez failed to preserve that
issue, because his objections in the trial court were limited to relevance and whether
the State’s question called for an answer that would invade the province of the jury—
an invalid objection under Texas law following the adoption of evidentiary rule 704.
Ortiz, 834 S.W.2d at 348. Assuming without deciding that Martinez preserved the
issue, we discern no abuse of discretion.5
Both lay and expert witnesses may offer opinion testimony. See TEX. R. EVID.
701, 702; Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). “[A]s a
general rule, observations which do not require significant expertise to interpret and
5
Accordingly, we do not address Martinez’s alternative argument that, to the extent his counsel failed
to preserve the issue, his counsel was constitutionally ineffective. See TEX. R. APP. P. 47.1.
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which are not based on a scientific theory can be admitted as lay opinions if the
requirements of Rule 701 are met.” Osbourn, 92 S.W.3d at 537. “This is true even
when the witness has experience or training.” Id. “It is only when the fact-finder may
not fully understand the evidence or be able to determine the fact in issue without
the assistance of someone with specialized knowledge that a witness must be
qualified as an expert.” Id. Allen’s testimony did not require significant expertise to
interpret and was not based on a scientific theory. Moreover, the jury could
understand the evidence without needing specialized assistance. Thus, to the extent
Allen offered opinion testimony, it was governed by the requirements of Rule 701.
See id.
Under Rule 701, lay opinion testimony is admissible if it is both “rationally
based on the witness’s perception” and “helpful to clearly understanding the
witness’s testimony or to determining a fact in issue.” TEX. R. EVID. 701. Allen
rationally based his testimony on personal knowledge gained through investigation
of the burglary and experience as a property crimes detective. See Fairow v. State,
943 S.W.2d 895, 898 (Tex. Crim. App. 1997) (perception requirement under Rule
701 can be satisfied by personal knowledge acquired through experience).
And the trial court could have concluded Allen’s lay testimony would help the
jury in determining whether Martinez burglarized a habitation. The mere fact that
Allen’s testimony embraced an ultimate issue for the jury does not make it
objectionable. See TEX. R. EVID. 704; Ex parte Nailor, 149 S.W.3d 125, 135 (Tex.
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Crim. App. 2004) (police may offer lay opinion testimony on an ultimate issue under
Rule 701). Because the trial court could reasonably conclude Allen’s testimony
satisfied both requirements of Rule 701, it did not abuse its discretion by allowing
it.
But even if the trial court had erred by allowing the testimony, any error would
be harmless because it did not affect Martinez’s substantial rights. See TEX. R. APP.
P. 44.2. Substantial rights are not affected by erroneously admitted evidence where,
after examining the record as a whole, we have fair assurance the error either did not
influence the jury or influenced it only slightly. Solomon v. State, 49 S.W.3d 356,
365 (Tex. Crim. App. 2001).
Even without Allen’s testimony, the evidence against Martinez was
overwhelming. As he concedes, there is no genuine dispute that he burglarized the
garage. There is likewise no dispute that the garage was located on residential
property, a mere twenty feet from the back door of Foster’s and Jernigan’s home.
Photographs of the property introduced at trial showed the garage’s position relative
to the zero-lot-line house. And testimony provided that the garage was the primary
access point to the house because it was the only way to enter the home from the
driveway. This evidence clearly established the garage was a “habitation” under our
precedent. See Jones, 690 S.W.2d at 319. After reviewing the record as a whole, we
are convinced Allen’s testimony did not affect Martinez’s substantial rights because
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it had no more than a slight influence on the jury. Solomon, 49 S.W.3d at 365
(interpreting TEX. R. APP. P. 44.2(b)).
THE JUDGMENT SHOULD ACCURATELY REFLECT MARTINEZ’S PLEA
Finally, we note that the judgment erroneously reflects a “true” plea to the
enhancement paragraph. The record establishes Martinez entered a “not true” plea.
We therefore modify the judgment to reflect a “not true” plea and affirm the
judgment as modified. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.
App.—Dallas 1991, pet. ref’d).
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191549F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL MAURICIO On Appeal from the 195th Judicial
MARTINEZ, Appellant District Court, Dallas County, Texas
Trial Court Cause No. F19-75117-N.
No. 05-19-01549-CR V. Opinion delivered by Justice Carlyle.
Justices Myers and Osborne
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
The statement “PLEADED TRUE” in reference to the “1st
Enhancement Paragraph” is removed and replaced with the statement
“PLEADED NOT TRUE.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 26th day of April, 2021.
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