Martinez, Robert John Anthony

CAUSE NO.

IN THE
ORIGINAL
COURT OF CRIMINAL APPEALS

OF TEXAS

ROBERT JOHN ANTHONY MARTINEZ

Petitioner
COURTOF CRWAUPPBLS
vs.
DEC 04 2015
THE STATE OF TEXAS

Respondent Abel Acosia, Ctefc

PETITION FOR DISCRETIONARY REVIEW

! : L'l'J 0/. --,
ON APPEAL FROM THE THIRTEENTH COURT OF APPEALS ». ,
Abe/ Acosia, Clerk
AT CORPUS CHRTSTI, TEXAS

CAUSE NO. 13-13-00714-CR

ROBERT JOHN ANTHONY MARTINEZ

TDCJ# 1908811

3899 State Hwy. 98
New Boston,TX 75570

Petitioner, Pro Se
 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Honorable Janet Leal Trial Court Judge, 103rd Judicial
District, Cameron County, Texas

Luis V.. Saenz Cameron County District Attorney
964 E. Harrison St.
Brownsville,TX 78520

Ismael H. Hinojosa Trial Counsel For State

Edna H. Dinsdale Trial Counsel For State

Jennifer M. Avendano Appellate Counsel For State

Edward Stapleton, Trial Counsel For Petitioner
Sara Stapleton 2401 Wildflower, Suite C
Brownsville,TX 78526

Philip Cowen Appellate Counsel For Petitioner
500 E. Levee Street
Brownsville,TX 78520

Robert John Anthony Martinez Petitioner, Pro Se
3899 State Hwy. 98
New Boston,TX 75570

li
 TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ii

TABLE OF CONTENTS iii

INDEX OF AUTHORITIES ... iv

STATEMENT REGARDING ORAL ARGUMENT. . .. v

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 2

GROUNDS FOR REVIEW 3,4
Ground One: The Court of Appeals erred in finding that the Trial
Court's ruling was proper when it ruled that Petitioner's
oral statement to police was not taken in violation of
Article 38.22 of the Code of Criminal Procedure, and
then allowed the statement into evidence during his
jury trial.
Ground Two: The Court of Appeals erred in finding that the Trial
Court did not abuse it's discretion in denying Peti
tioner's motion for mistrial when the prosecutor's
comments during the punishment phase of trial rose to
the level of prosecutorial misconduct, and prejudicial
determination of the jury's punishment.

PRAYER FOR RELIEF 9

CERTIFICATE OF SERVICE 10

UNSWORN DECLARATION 10

APPENDIX .11

"A"). Memorandum Opinion of the Thirteenth Court of Appeals

in
 INDEX OF AUTHORITIES

* FEDERAL CASES page

Missouri v. Siebert, 542 U.S. 600,604(2004) 4,6

STATE CASES

Armendariz v. State, 123 S.W.3d 401,404(Tex.Crim.App.2003) 5
Hawkins v. State, 135 S.W.3d 72,76-77(Tex.Crim.App.2004) 7
Hubert v. State. 312 S.W.3d 554,557(Tex.Crim.App.2010) 5
Martinez v. State, 272 S.W.3d 615(Tex.Crim.App.2008) 6
Vasquez v. State, 453 S.W.3d 555,564(Tex.App.2014)., 5
Xu v. State, 191 S.W.3d 210,215(Tex.App.San Antonio 2005) 5

* STATE STATUTES

Texas Code of Criminal Procedure, Art. 38.22 3,4
Texas Health and Safety Code §481.121 4

IV
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument in this case. Petitioner believes

oral argument would be helpful because of the complex nature of the

grounds in this case. Petitioner's case contains issues that are

unsettled in the courts of appeal.

v
 STATEMENT OF THE CASE

Petitioner was charged by indictment for the offense of murder.

All proceedings were held in the 103 Judicial District Court, Cam

eron, Texas. The Honorable Janet Leal presiding. A motion to suppress

hearing, regarding an oral statement made by Petitioner, was held on

October 15,2013. Petitioner's motion was denied by the trial court

by signed order on October 23,2013. Petitioner pleaded not guilty

and proceeded to a trial on the merits, which began with a jury be

ing selected on October 28,2013. Petitioner was found guilty of murder

on November 4,2013. Petitioner was subsequently sentenced, by the

same jury, to 50 years in the Texas Department of Criminal Justice -

Correction Institutional Division on November 5,2013.
 STATEMENT OF PROCEDURAL HISTORY

The Thirteenth Court of Appelas affirmed Petitioner's conviction

on August 31,2015. No motion for rehearing was filed with that court.

Petitioner timely filed a motion for extension of time with this

Court, which was granted, and the time, to file a Petition for Dis

cretionary Review was extended to November 30,2015. This timely

petition now ensues.
 GROUNDS FOR REVIEW

1. The Court of Appeals erred in finding that the trial court's ru
ling was proper when it ruled that Petitioner's oral statement to
police was not taken in violation of Article 38.22 of the Code of
Criminal Procedure, and then allowed the statement into evidence
during his jury trial.

2. The Court of Appeals erred in finding that the trial court did
not abuse it's discretion in denying Petitioner's motion for mis
trial when the prosecutor's comments during the punishment phase of
trial rose to the level of prosecutorial misconduct, and prejudiced
the jury's determination of punishment.
 GROUNDS FOR REVIEW

GROUND ONE: The Court of Appeals erred in finding that the trial
court's ruling was proper where it ruled that Peti
tioner's oral statement to police was not taken in vio
lation of Article 38.22 of the Code of Criminal Procedure

and then allowed the statement into evidence during his
jury trial.

The trial court in this case held a suppression hearing regarding

Petitioner's oral statements to police. This hearing took place on

October 15,2013. Petitioner's issue presented to the Thirteenth Court

of Appelas deals with Article 38.22 of the Code of Criminal Procedure

and because this issue deals with midstream Miranda warnings, the

proper standard of review is found in Missouri v. Seibert, 542 U.S.

600,604(2004). The midstream Miranda tactic is also referred to as

"question first, warn later." See id. at 610.

Petitioner was arrested on November 20,2012, in connection with the

stabbing of Angel Perez. However, Petitioner was initially charged

with possession of marijuana. See Tex. Health and Safety Code § 481.

121. Upon his arrest, Petitioner was questioned by police on multiple

occasions, first in regards to the possession of marijuana charge.

Next, Petitioner was questioned about cell phones, and only then did

police notify Petitioner, that they were investigating the instant

offense. After prolongrd questioning for over a day, Petitioner fin

ally says that he stabbed Perez.

In this issue, to the Thirteenth Court of Appeals, Petitioner ar

gued that his videotaped statement was taken in violation of Article

38.22 of the Code of Criminal Procedure, and that the trial court
committed error by admitting the statement into evidence during trial.

In finding that the trial court's ruling was proper, and overruling

Petitioner's claim on appeal, the Court of appeals decision conflicts

of other Court of Appeals' decisions on the same issue. Further, the

Court of Appelas decision conflicts with applicable decisions of the

Court of Criminal Appeals and the Supreme Court of the United States

on an important question of state or federal law, and because of this

the Court should grant review.

A trial court's suppression ruling is reviewed under a bifurcated

standard. Hubert v. State, 312 S.W.3d 554,557(Tex.Crim.App.2010).

Appellate courts must view all of the evidence in the light most fa

vorable to the ruling. Vasquez v. State, 453 S.W.3d 555,564(Tex.App.

Houston[14DistrictJ 2014, pet.. granted) . At a suppression hearing,
the trial judge is the sole factfinder. Id. Regarding findings of

fact, especially where those findings are based on an evaluation of

credibility and demeanor, the trial court's rulings are reviewed

under an abuse of discretion standard. See Xu v. State, 191 S.W.3d

210,215(Tex.App.-San Antonio 2005). Almost total deference is affor

ded to a trial court's determination of historical facts supported

by the record. Id. However, "the trial court's resolution of mixed
questions of law and fact, which does not turn on an evaluation of

credibility and demeanor, is reviewed de novo." Xu, 191 S.W.3d at

215. The Court of Appeals is obligated to"uphold the trial court's

ruling on appellant's motion to suppress if that ruling was supported

by the record and was correct under any theory of law applicable to

the case." Armendariz v. State, 123 S.W.3d 401,404(Tex.Crim.App.

2003)(en banc).

The facts in Petitioner's case are clear. As stated, Petitioner
was initially arrested and charged with possession of marijuana. Pe

titioner was questioned by police for the possession charge and inf

ormed he was being held regarding "another" investigation as well.

At no time was Petitioner informed that he was being held in conn

ection to the murder .of Angel Perez. However, police continued to

question Petitioner regarding "other" issues. Only after questioning
Petitioner multiple times, and while questioning Petitioner about

some cell phones connected to this case, do the police inform Peti

tioner that they are investigating him for the instant offense. It

is clear from the record that when Petitioner was read his rights
during this second to last interview that hewwas not aware of the

investigation into the instant offense. During this questioning,
when Petitioner inculpated himself, is when the police move to sani

tize their behavior and have the statement done on videotape covering
up their misbehavior so as to meet the requisites of 38.22. The re

quirements of 38.22 are not met if the prior statements were not

videotaped. It is clear in this case that the police did not meet

the requirements set out in Code of Criminal Procedure, Article

38.22. In overruling this issue, the Court of Appeals' decision con
flicts with this court's decision in Martinez v. State, 272 S.W.3d

615(Tex.Crim.App.2008). Additionally,.the Court of Appeals' decision
conflicts with the Supreme Court of the United States' decision in

Missouri v. Siebert, 542 U.S. 600(2004). Because of these conflicts,
This Court should grant review in this case.

GROUND TWO: The Court of Appeals erred in finding that the trial
court did not abuse it's discretion in denying Peti
tioner's motion for mistrial when the prosecutor's
comments during the punishment phase of trial rose to
 the level of prosecutorial misconduct, and prejudiced
the jury's determination of punishment.

During the punishment phase of Petitioner's trial, the lead pro

secutor decided to tell the jury how diffucult a life he had growing

up. While questioning Petitioner, the prosecutor took offense to

Petitioner's comment that he "would imagine that the prosecutor had

a perfect life growing up." In response to this comment, the prose

cutor then began to tell him his life story. Trial counsel objected

to this as to relevance, and the objection was sustained by the

trial court. However, the prosecutor was not done telling his story,

so ignoring the court's ruling, he continued to belittle the Peti

tioner and proceeded to compare his life to Petitioner's. After trial

counsel objected two more times, because the prosecutor refused to

stop telling his story, a bench hearing was held on the issue. During

the bench conference, the trial court again told the prosecutor to

move on to another line of questioning. Trial counsel moved for a

mistrial, which was denied by the trial court.

A trial court's ruling on a motion for mistrial is reviewed under

an abuse of discretion standard. H^awkins_ y_._...^t§te^_l_35__S^_W;_3d_72J 76-

77_£Tex._Crim.Ap_P_-_200_4_). It is clear from the record that the trial
court abused it's discretion in this case. The Court of Appeals erred

in finding that the trial court's ruling was appropriate. Discretion

ary review by this Court is necessary.

The prosecutor's continual attack on Petitioner was calculated to

hurt Petitioner. The Court of Appeals acknowledged that "the pro

secutor's comments and disregard for the trial court's rulings were

improper", however found that "their severity was slight." Petitioner
tends to disagree with this assessment, considering he received a

50-year prison sentence. This is hardly a "slight sentence." The

Court of Appeals went on to conclude that, "the trial court gave the

proper instruction and asked the jury to disregard, stating that the

comments were irrelevant to the situation at hand." However, it is

prosecutor's life story. The prosecutor is a trial officer, and any

comment made by him is considered highly by the jury. The fact that

he was able to come out of his neighborhood lifestyle demeaned Pet

itioner's heartfelt testimony about how hard his life was. Further,

the Court of Appeals claims, "Martinez points to no place in the

record where it would be obvious that the jury failed to follow the

trial court's instructions. There is no evidence presented that the

jury hold the statements made against Martinez in any way." Peti

tioner wonders how he would be able to elicit such information from

the jurors. Even if he were able to learn of such information, it

would not be admissible on appeal. Nothing that takes place during

jury deliberation is allowed as evidence on appeal. Petitioner was

unable to meet the standard set out by the Court of Appeals. Peti

tioner was clearly prejudiced by the prosecutor's comments in this
r'

motion for mistrial. The Court of Appeals erred in overruling this

issue.
 PRAYER FOR RELIEF

i. ^ VJ. t.lwLI\.L L/LUV U UllUb l» 11.-1. t. u O u j . '> c l uli L uj.UvLwwj.unui.j J- >_> v ^- ^« »* j- m.

this case. In doing so, Petitioner prays that this case be over

turned, and remanded to the trial court for a new trial.

Respectfully submitted,

W # ^r
ROBERT JOHN ANTHONY MARTINEZ
TDCJ# 1908811
3899 State Hwy. 98
New Boston,TX 75570

Petitioner, Pro Se
 CERTIFICATE OF SERVICE

I, Robert John Anthony Martinez, hereby certifies that a true and

correcy copy of this Petition for Discretionary Review was served,

via the United States Postal Service, addressed to: Jennifer M.

Avendana, Assistant District Attorney, 964 E. Harrison St., Brownsville,

Texas 78520, on this _„_2L.„_„ day of November, 2015.

ROBERT JOHN ANTHONY MARTINEZ
Petitioner, Pro Se

UNSWORN DECLARATION

I, Robert John Anthony Martinez, TDCJ No. 1908811, being presently

incarcerated at the Berry Telford Unit, TDCJ-CID at Bowie County,

Texas, verifies and declares under penalty of perjury that the fore

going statements are true and correct to the best of my knowledge.

Executed on this cj_ day of November, 2015.

Robert John Anthony Martinez
TDCJ# 1908811
3899 State Hwy. 98
New Boston,TX 75570

Petitioner, Pro Se

10
APPENDIX

11
 THE THIRTEENTH COURT OF APPEALS

13-13-00714-CR

ROBERT JOHN ANTHONY MARTINEZ A/K/A ROBERTO MARTINEZ A/K/A ROBERT
JOHN MARTINEZ A/K/A ROBERT MARTINEZ
v.

THE STATE OF TEXAS

On Appeal from the
103rd District Court of Cameron County, Texas
Trial Cause No. 2013-DCR-0177-D

JUDGMENT

THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court

orders the judgment of the trial court AFFIRMED.

We further order this decision certified below for observance.

August 31, 2015
 NUMBER 13-13-00714-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT JOHN ANTHONY MARTINEZ a/k/a
ROBERTO MARTINEZ a/k/a
ROBERT JOHN MARTINEZ a/k/a
ROBERT MARTINEZ, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides

By four issues, appellant Robert John Anthony Martinez a/k/a Roberto Martinez

a/k/a Robert John Martinez a/k/a Robert Martinez appeals his conviction for murder.

See Tex. Penal Code Ann. § 19.02 (West, Westlaw through Ch.462015 R.S.). Martinez
 alleges by four issues that: (1) his second oral statement to police was taken in violation

of Article 38.22 of the Code of Criminal Procedure and should not have been allowed into

evidence during his jury trial; (2) the trial court committed error by not including an
instruction in the jury charge on the voluntariness of Martinez's statement; (3) the trial
court made comments on the definition of reasonable doubt during the State's voir dire,
thereby amounting to an improper comment on the weight of the evidence; and (4) the
prosecutor's comments during the punishment phase of the trial amounted to misconduct

and a mistrial should have been granted. We affirm.

I. Background

On November 19, 2012, Martinez stabbed Angel Perez with a knife and killed him.

At trial, Martinez testified in his own defense and stated that he and his friends were at a

gathering when they heard that Perez and Perez's friends were breaking into vehicles in
their neighborhood and stealing car radios. Martinez and his friends left the gathering in
search of Perez and his friends. Martinez encountered Perez and confronted him.

According to Martinez's statement, Martinez and Perez then engaged in a physical
altercation. Martinez claims that Perez was overpowering him during their altercation.
Martinez stated that he stepped back, pulled out a knife, and when Perez approached
him again, Martinez stabbed him. Perez was stabbed more than eighteen times,
including a fatal stab wound to his heart. Martinez said he dropped the knife and left the

scene, knowing the police would arrive shortly. Martinez was apprehended thefollowing
morning at a friend's home and initially charged with possession of marijuana. See Tex.

Health and Safety Code § 481.121 (West, Westlaw through Ch. 46 R.S. 2015).
 Upon his arrest, Martinez was questioned by investigators from the San Benito

Police Department. Initially, the purpose of the questioning was to gather information

about some cell phones that had been located relating to the murder. The officers

testified during a motion to suppress hearing that Martinez had been read his Miranda

warnings before each interview, but that the first interview was not videotaped because

they were just gathering information regarding the phones. During the first interview,

Martinez began asking questions regarding the stabbing of Perez and then Martinez

stated to them that he had stabbed Perez. Investigators immediately stopped the
interview and set up a video recording for the subsequent interview in compliance with
article 38.22 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art.

38.22 (West, Westlaw through Ch. 46 R.S. 2015). Police again read Martinez his

Miranda rights on the video and Martinez gave the investigators more details about his
altercation with Perez.

The State indicted Martinez with Perez's murder. Following a jury trial, Martinez

was convicted of murder and the jury assessed punishment at fifty-years in the Texas

Department of Criminal Justice—Institutional Division. This appeal followed.

II. Statement Taken in Violation of Article 38.22

By his first issue, Martinez alleges that the videotaped statement was taken in

violation of Article 38.22 of the Code of Criminal Procedure and the trial court committed

error by admitting the statement into evidence during the trial. See Tex. Code Criminal

Proc. Ann. art. 38.22. The voluntariness of the statement was challenged during a

hearing on a motion to suppress held prior to the start of Martinez's jury trial.
 A. Standard of Review

We review a trial court's suppression ruling under a bifurcated standard. Hubert

v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of

the evidence in the light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555,

564 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). At a suppression hearing, the
trial judge is the sole factfinder. Id. Regarding findings of fact, especially when those

findings are based on an evaluation of credibility and demeanor, we reviewthe trial court's

rulings under an abuse of discretion standard. See Xu v. State, 191 S.W.3d 210, 215

(Tex. App.—San Antonio 2005, no pet.); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). We afford almost total deference to a trial court's determination of historical

facts supported by the record. See id. However, "the trial court's resolution of mixed

questions of law and fact, which does not turn on an evaluation of credibility and
demeanor, is reviewed de novo." Xu, 191 S.W.3d at 215. The court of appeals is

obligated to "uphold the trial court's ruling on appellant's motion to suppress if that ruling
was supported by the record and was correct under any theory of law applicable to the

case." Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc).
B. Applicable Law

Statements made by defendants to lawenforcement are governed byArticle 38.22

of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22. Under

Article 38.22, "no written statement made by an accused as a result of custodial

interrogation is admissible as evidence against him in any criminal proceeding unless it

is shown" that he received the required warnings as determined by Miranda v. Arizona.

Id. § 2; Miranda v. Arizona, 384 U.S. 436 (1966). Additionally, no oral statement made
 as a product of custodial interrogation shall be admissible against a defendant unless:

(1) an electronic recording, which may include motion picture, video tape,
or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the
warning in Subsection (a) of Section 2 above and the accused knowingly,
intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the
operator was competent, and the recording is accurate and has not been
altered;

(4) all voices on the recording are identified;

(5) not later than the 20th daybefore the dateofthe proceeding, the attorney
representing the defendant is provided with a true, complete, and accurate
copy of all recordings of the defendant made under this article.

Tex. Code Crim. Proc Ann. art. 38.22(§ 3)(a)(1). The warnings contained in section 2
of Article 38.22 are as follows:

(a) the accused, prior to making a statement, either received from a
magistrate the warning provided in Article 15.17 of this code or received
from the person to whom the statement is made a warning that:
(1) he has a right to remain silent and not make any statement at all and
that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and
during any questioning;

(4) if he unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making ofthe statement, knowingly,
intelligently, and voluntarily waived the rights set out in the warning
prescribed Subsection (a) of this section.

Id. at § 2. However, the Court of Criminal Appeals has held that "for oral statements
 made as a result of custodial interrogation to be admissible, the warnings given prior to
those statements need to only 'substantially comply' with the warnings set out in art.
38.22, § 2(a)." Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) (en banc);
see also Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.—Texarkana 2014, pet. refd).
There have been cases where the Miranda safeguards have been misused.

Miranda, 384 U.S. 436. In Missouri v. Siebert, the defendant was deliberately not given
her Miranda warnings until after she gave a confession. 542 U.S. 600 (2004).
Following the defendant's initial confession without any Miranda warnings, the officers
gave her a short break and then went over the same information again, this time following
the proper warnings. Id. The Supreme Court held that this "question first" technique
was not acceptable because it deliberately attempts to go around giving a defendant
notice of his rights under the Miranda standard. Id.

The Texas Court of Criminal Appeals has also held that this "two-step" or
"question-first" technique is not acceptable. In Martinez v. State, the Court of Criminal

Appeals held that questioning the defendant without the proper-warnings, and then
coming back and questioning him again with proper warnings rendered the second

statement inadmissible. 272 S.W.3d 615, 627 (Tex. Crim. App. 2008). However, there
are situations where a police officer does not initially warn a defendant of his rights that
the court of criminal appeals found not to be a "question-first" situation. In Carter v.

State, the arresting officer conversed with the defendant briefly, at which time the

defendant made an incriminating statement. 309 S.W.3d 31, 33-35 (Tex. Crim. App.
2010). The officer immediately realized he had not read the suspect his Miranda rights
and stopped the interview in order to warn him. Id. at 33. The trial court in that case

6
 found that "the failure of Trooper Henderson to warn Carter before those two questions
were asked wassimply an oversight" and the court of criminal appealsaffirmed the ruling,
stating the facts "do not necessarily exemplify the deliberate 'question-first, warn later'
gamesmanship so obvious in Seiberf'. Id. at 34-35, 41.

"Courts should determine 'whether the evidence shows that [the interrogating
officer] deliberately employed a two-step 'question-first, warn later' interrogation
technique to circumvent [the] appellant's Miranda protections.'" Vasquez, 453 S.W.3d
at 569 (citing Carter, 309 S.W.3d at 38). To make this determination will "'invariably turn
on the credibility of the officer's testimony in light of the totality of the circumstances
surrounding the interrogation." Carter, 309 S.W.3d at 39(citing United States v. Stewart,
536 F.3d 714, 720-21 (7th Cir. 2008)). "This is a factual finding entitled to deference on
appeal' and reviewed only for clear error." Id. (citing Stewart, 536 F.3d at 720-21).
C. Discussion

Martinez argues that his 38.22 warnings were given "mid-stream", that he was

interviewed multiple times before his 38.22 warnings were given, and even when the
warnings were given, they did not comply with article 38.22. See Tex. Code Crim. Proc

Ann. art. 38.22.

"The State, as the proponent of the evidence of appellant's confession, bears the

burden of establishing its admissibility." Vasquez, 453 S.W.3d at 567. "It is also the

State's burden to establish a valid waiver of Miranda rights by a preponderance of the

evidence." Id. During the pre-trial hearing on Martinez's motion to suppress, the State

called two officers who were part of the initial and videotaped interrogation of Martinez:

Captain Mario Perea and Detective Israel Ambriz of the San Benito Police Department.
 Both officers stated that Martinez was read his 38.22/Miranda warnings prior to both
interrogations. See Tex. Code Crim. Proc Ann. art. 38.22; Miranda, 384 U.S. 436.
Both officers stated that the initial interrogation was not videotaped because they were
gathering information regarding cell phones in the custody of San Benito Police

Department, not information about Perez's murder. However, both men testified

Martinez was properly warned prior to the commencement ofanyquestioning.
Martinez's trial counsel questioned the officers regarding Martinez's understanding
of the warnings and if there were any promises made to him for giving the statement.
Captain Perea felt Martinez understood and waived his rights because Martinez
continued to talk to them. Perea also stated the videotape was made in order to comply
with article 38.22. See Tex. Code Crim. Proc Ann. art. 38.22. Detective Ambriz stated

that no one promised Martinez a reduction of charges for his cooperation and even though
the first interrogation was not written or videotaped, Ambriz felt he would be able to testify
about it in court based on his credibility. Martinez's trial counsel arguedthat the video
confession should be suppressed based on Seibert and the "question-first, warn-later"
behavior, but the trial court stated on the record that itdid not believe it was a "two-tiered"

interrogation and denied the motion to suppress. See Seibert, 542 U.S. at 600.

Additionally, Martinez testified in his own defense during the guilt-innocence -
portion of his jury trial. He was questioned about the offense by both his own trial
counsel and the State. During his testimony, Martinez admitted tostabbing Perez during
their altercation.

Based on the record from the motion to suppress hearing and the trial transcript,
as well as the findings ofthe trial court on the record, we do not find that the videotaped

8
 confession was a product of the "question-first, warn-later" technique prohibited by
Seibert and its progeny. See Seibert, 542 U.S. at 600. As a result, the trial court's

ruling was proper, and we overrule Martinez's first issue.

III. Voluntariness Jury Instruction

By his second issue, Martinez states the trial court committed error by not sua
sponte including an instruction on the voluntariness of his statement in the jury charge.
A. Standard of Review

In reviewing a challenge to a jury charge, we first must determine if the jury charge
contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error
is found, we then 'analyze the harm resulting from the error." Id. If "an error is

preserved with a timely objection...then the jury-charge error requires reversal if the
appellant suffered some harm as a result of the error." Sanchez v. State, 376 S.W.3d

767, 774 (Tex. Crim. App. 2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985)). But if the "defendant never presents a proposed jury instruction (or
fails to object to the lack of one), any potential error in the charge is reviewed only for
'egregious harm' underAlmanza." Oursbourn v. State, 259S.W.3d 159,174 (Tex. Crim.

App. 2008). The failure to preserve jury-charge error is not a bar to appellate review,
but rather it establishes the degree of harm necessary to the reversal. Warner v. State,
245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

To determine harm, we consider four factors: (1) the charge itself, (2) the state of

the evidence, including contested issues and the weight of the probative evidence, (3)
arguments of counsel, and (4) any other relevant information revealed by the trial record

as a whole. Trejo v. State, 313 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2010,
 pet. refd) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To

establish both egregious or "some" harm, the "appellant must have suffered actual, rather

than theoretical, harm." Warner, 245 S.W.3d at 461. Neither party bears the burden

on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
If the "error in the charge was the subject of a timely objection in the trial court,

then reversal is required if the error is 'calculated to injure the rights of the defendant,'

which means no more than that there must be some harm to the accused from the error."

Id. (citing Almanza, 686 S.W.2d at 171). When an "appellant d[oes] not object to the
charge, the error does not result in reversal 'unless itwas so egregious and created such

harm that appellant was denied a fair trial.'" Warner, 245 S.W.3d at 461 (citing Almanza,

686 S.W.2d at 171). "Egregious harm deprives appellant of a fair and impartial trial."
Trejo, 313 S.W.3d at 871 (citing Almanza, 686 S.W.2d at 171). "Errors that result in

egregious harm are those that affect the 'very basis of the case,' 'deprive the defendant

of a valuable right,' or 'vitally affect a defensive theory.'" Warner, 245 S.W.3d at 461-62

(citing Hutch, 922 S.W.2d at 171).

B. Applicable Law

Martinez alleges that the trial court committed harm by not including an instruction
on the voluntariness of his statement in the jury charge. There was no objection to the

jury charge by Martinez's trial counsel. We first conduct a review to establish if there

was: (1) error in the jury charge and (2) if there was error, was the error egregious harm

to Martinez.

Section 6 of article 38.22 states:

Upon the finding by the judge as a matter of law and fact that the statement

10
 was voluntarily made, evidence pertaining to such matter may be submitted
to the jury and it shall be instructed that unless the jury believes beyond a
reasonable doubt that the statement was voluntarily made, the jury shall not
consider such statement for any purpose nor any evidence obtained as a
result thereof.

Tex. Code Crim. Proc Ann. art. 38.22 § 6. Section 7 of article 38.22 states "when the

issue is raised by the evidence, the trial judge shall appropriately instruct the jury,
generally, on the law pertaining to such statement." Id. at § 7. Additionally, under

article 38.21, "A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion." Oursbourn, 259 S.W.3d at 169 (citing Tex. Code Crim. Proc Ann. art.

38.21).

A defendant would be "entitled to an instruction on voluntariness of his statement

under art. 38.22 § 6, if he introduces evidence at trial from which a reasonable jury could

find that the statement was not voluntarily made." Vasquez, 225 S.W.3d at 545. "If a

reasonable jury could find that the facts, disputed or undisputed, rendered him unable to

make a voluntary statement, he is entitled to a general voluntariness instruction when he

has raised a question of the voluntariness of his statement." Oursbourn, 259 S.W.3d at

176. When the defendant "presents evidence raising a voluntariness question, the

prosecution must controvert that evidence and prove voluntariness by a preponderance

of the evidence." State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (en

banc). However, the prosecution "is not put to this burden unless a defendant presents

evidence that raises a voluntariness question." Id.

C. Discussion

Although Martinez's trial counsel questioned the two police officers who testified

11
 during the motion to suppress hearing regarding the voluntariness of Martinez's

statements, the issue of voluntariness was not raised during the trial. There was no

evidence put before the jury to give rise to the idea that Martinez had not voluntarily
cooperated with the officers based on his own free will. The State presented evidence

that Martinez was given the proper warnings required under the law and knowingly,
intelligently, and voluntarily waived those rights. See Tex. Code Criminal Proc Ann.

art. 38.22 § 2. In order for Martinezto be entitled to a jury instruction on the voluntariness

of his statement, he must have presented evidence during the trial to say his statement

was not voluntarily given. For an issue to be "raised by the evidence", there must be a

genuine factual dispute. Oursbourn, 259 S.W.3d at 176.

At no time did this occur. Martinez even testified in his own defense during the
trial and never made a claim that he did not receive his warnings, did not voluntarily give
his statement, or did not wish to cooperate with the investigation. Additionally, Martinez

cites to no place in the record from the trial to show where he presented any evidence
requiring the instruction on voluntariness.

A "trial judge has an absolute sua sponte duty to prepare a jury charge that

accurately sets outthe law applicable to the specific offense charged." Id. at 179 (citing
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). "But it does not

inevitably follow that he has a similar sua sponte duty to instruct the jury on all potential

defensive issues, lesser-included offenses or evidentiary issues. These are issues that

frequently depend upon trial strategy and tactics." Id. (citing Delgado v. State, 235

S.W.3d at 249). Although Martinez claims the trial court should have included this

proposed instruction on its own, without more evidence elicited during testimony, the trial

12
 court did not violate its duty to include defensive issues in the jury charge. See id.
Therefore, there was no error in the jury charge. We overrule Martinez's second issue.

IV. Comments Made by the Trial Court During Voir Dire

By his third issue, Martinez complains that the trial court violated "his Sixth

Amendment right to jury determination" and violated Rule 605 of the Texas Rules of

Evidence by commenting on reasonable doubt during the State's voir dire, thereby
committing fundamental error. See U.S. Const, amend. VI; Tex. R. Evid. 605 (West,
Westlaw through Ch. 46 R.S. 2015).

A. Standard of Review and Applicable Law

In order to "preserve a complaint of improper voir dire for appellate review, the

appellant must make a timely and specific objection and receive an adverse ruling from
the trial court." Fears v. State, No. 13-13-00111-CR, S.W.3d , 2015 WL
1869792, at *15 (Tex. App.—Corpus Christi Apr. 23, 2015, pet. filed); see Archie v. State,

221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Tex. R. App. P. 33.1 (West, Westlaw

through Ch. 46 R.S. 2015). "Here, because appellant did not object, he has waived his

complaint on appeal except for fundamental error." Fears, 2015 WL 1869792 at *15;

see Archie, 221 S.W.3d at 699. The proper test for "determining whether an error during
voir dire is fundamental, and therefore may be raised for the first time on appeal, is

whether the error involves a violation of a right that is 'waivable only' or a denial of an

absolute, systematic requirement."1 Fears, 2015 WL 1869792 at *15; see Aldrich v.

1 "Examples of rights thatare waivable-only include the rights to assistance ofcounsel, the right to
trial by jury, and a right ofappointed counsel to have ten daysoftrial preparation which a statutespecifically
made waivable-only." Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (en banc). "Absolute
systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal
statute's being in compliance with the Separation of Powers Section of the state constitution." Id.

13
 State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). "This Court has held in the past
that the right to an impartial judge is an absolute, systematic requirement that may be
raised for the first time on appeal if the judge's comments are 'so egregious as to deem
the judge biased.'" Fears, 2015 WL 1869792 at 15; see Hernandez v. State, 268 S.W.3d

176, 185-86 (Tex. App—Corpus Christi 2008, no pet.).

Under Texas Rule of Evidence 605, "a judge may not testify in a proceeding over
which the judge is presiding." Tex. R. Evid. 605; see Hensarling v. State, 829 S.W.2d

168, 171 (Tex. Crim. App. 1992) (en banc). In order to determine if the trial court

testified, "the question should be whether the judge's statement of fact is essential to the

exercise of some judicial function or is the functional equivalent of witness testimony."
Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990). However, "substantial

rights are not affected by the erroneous admission of evidence 'ifthe appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the

jury, or had but a slight effect.'" Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002).

B. Discussion

Martinez complains of an exchange between the trial court and a prospective juror

during the State's portion of voir dire. A potential juror posed a question about

reasonable doubt: about knowing someone was guilty but not having the requisite proof.

The trial court asked a follow up question to clarify the prospective juror's question and

then stated the following:

Court: Okay. I guess the - there is no definition for beyond a
reasonable doubt. When you say you know he did it, I'm not
sure how someone knows he did it if there was no proof that

14
 he did it, because then you don't know. You might think he
might have done it. There may be something in your mind
that believes he might have done it, but you don't know he did
it unless the proof was there. So ifthe proof is not there, then
you don't really know it. You believe it or you think, maybe,
but I guess that's what's throwing me off, is ifyou know it, then
how can you know it if the proofs not there?

Court: Okay. The state's got to prove it beyond a reasonable doubt.
If they don't prove it beyond a reasonable doubt, then that's
different. But I guess what threw me is when you say, "I
know he did it." Well if you know someone did it, then there
must have been proof there, because if not, you wouldn't
know it. You would think it, you might guess it, but you don't
know it. I mean, ifthe proof's there and you know it, then that
would be beyond a reasonable doubt if you know it. If you
don't know it and you think it, then there may not be enough
proof.

It is apparent from the comments made by the trial court that it was exercising its
judicial function by clarifying a confusion in the law. See Hammond, 799 S.W.2d at 746.

The juror was unsure of how to arrive at a proper disposition based on information that

had been provided. The trial court was within its duty to try to rectify that confusion,

while not making any specific comments on the evidence in the case or stating improper

assumptions ofthe law. Although it is the right of Martinez to have an impartial, unbiased

judge, the trial court did not show any partiality towards the State or bias against Martinez.

Additionally, as the State argues in its brief, the trial court was not functioning as a

witness in the case because no evidence had been presented to the jury yet. In looking
at the record as a whole, even if these comments would have amounted to error, the error

was slight and did not influence the jury's verdict. The trial court encouraged the jurors

to have proof, rather than just a feeling or emotion, in order to get beyond a reasonable

15
 doubt. The trial court did not comment on its beliefs regarding the case and therefore

caused no fundamental error. Martinez's third issue is overruled.

V. Prosecutor Misconduct

By his fourth issue, Martinez claims the trial court committed error by not granting
a mistrial when the prosecutor allegedly engaged in misconduct during the punishment
portion of the trial.

A. Standard of Review and Applicable Law

We review a trial court's ruling on a motion for mistrial for an abuse of discretion.

Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004) (en banc). The
"question of whether a mistrial should have been granted involves most, if not all, of the

same considerations that attend a harm analysis." Id. at 77. "Harm analysis is

employed only when there is error, and ordinarily, error occurs only when the trial court

makes a mistake." Id. at 76. "A mistrial is the trial court's remedy for improper conduct

that is 'so prejudicial that expenditure of further time and expense would be wasteful and

futile.'" Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert, denied,

529 U.S. 1070, 120 S.Ct. 1680 (2000)). The trial court acts with an appellate function:

"determining whether improper conduct is so harmful that the case must be redone." Id.

Harm analysis is done "in light of the trial court's curative instruction." Id. "Only in

extreme circumstances, where the prejudice caused by the improper argument is

incurable," will a mistrial be required. Thomas v. State, 461 S.W.3d 305, 310 (Tex.

App.—Fort Worth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7; Whitney v.

State, 396 S.W.3d 696, 704 (Tex. App.—Fort Worth 2013, no pet.).

16
 The Court of Criminal Appeals found that the "Mosley factors should be used to

evaluate whether the trial court abused its discretion in denying a mistrial...[in cases] in
which constitutional rights are not implicated" Hawkins, 135 S.W.3d at 77. The Mosley
factors are used by balancing these three factors: (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the certainty of the punishment
assessed absent the misconduct (likelihood of the same punishment being assessed)."
Id. (citing Martinez, 17 S.W.3d at 693-94); see Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998), cert, denied, 526 U.S. 1070, 119 S.Ct. 1466 (1999). "An
instruction to disregard an improper jury argument is generally sufficient to cure harm."

Thomas, 461 S.W.3d at 311; see Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000), cert, denied, 532 U.S. 944, 121 S.Ct. 1407 (2001). "On appeal, a reviewing
court presumes that the jury followed the trial court's instruction in the manner presented."

Id.; see Archie, 340 S.W.3d at 741. "Although the presumption is refutable, the

defendant must rebut the presumption by pointing to evidence that the jury failed to follow
the trial court's instruction." Id.; see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.
App. 2005).

B. Discussion

Martinez argues that the prosecutor's confrontation with him during his testimony
in the punishment phase of the trial warranted a mistrial. The following statements
occurred:

State: Why do you say it's so hard?

Martinez: Because it is. I mean, you have - I mean, I would imagine
you had a perfect life growing up.

17
 State: You think I had a perfect life growing up?

State: I'll tell you a little bit about myself, Mr. Martinez. Igrew up in
a neighborhood in Houston. It was interracial. Do you
know what interracial means?

Defense: Objection, Your Honor. Relevance.

Court: Sustained.

State: He asked about my life, Judge.

Court: I understand. Sustained. Let's move on.

State: It was Hispanics and Blacks in this neighborhood. We had
sirens going off every night.

Defense: Your Honor, this is the same.

Court: All right. Sustained. Let's move on.

State: We had the Ku Klux Klan living at the corner of my
neighborhood.

Defense: Your Honor, objection. Your Honor, may we approach?
(At the bench, on the record):

Defense: We're going to ask that [the prosecutor] be admonished to
respond to your rulings.

State: He asked about my life. He said I had a perfect life growing
up.

Court: I understand that.

Defense: But we have -

Court: I've already sustained the objection. Let's move on.

State: Yes, Your Honor.

Court: I do not want to hear any more.

18
 Court: And I don't want to have to admonish you.

Court: So let's move on from that line of questioning.

Court: I'll instruct the jury to disregard.

Defense: And we move for a mistrial.

Court: That will be denied.

(End of bench discussion):

Court: All right, Ladies and Gentlemen, you are to disregard the last
statements being made by the state as far as his life. That's
irrelevant to this trial, and we'll concentrate on the situation at
hand. Let's move on.

"On appeal, we generally presume the jury follows the trial court's instructions in

the manner presented.'' Thrift, 176 S.W.3d at 224. "The presumption is refutable, but

the appellant must rebut the presumption by pointing to evidence that the jury failed to

follow the trial court's instruction." Id. Normally, "a prompt instruction to disregard will

cure error associated with an improper question and answer." Ovalle v. State, 13

S.W.3d 774, 783 (Tex. Crim. App. 2000) (en banc).

Using the Mosley factors to analyze the complained-of conduct, we first look to the

severity of any misconduct. Hawkins, 135 S.W.3d at 77 (citing Martinez, 17 S.W.3d at

693-94). Although the prosecutor's comments and disregard for the trial court's rulings

were improper, their severity was slight. After the complained of confrontation, the State

moved on to a different line of questioning and the exchange was not emphasized in the

19
 closing remarks. Second, we look at the curative measures taken by the trial court.
The trial court gave the proper instruction and asked the jury to disregard, stating that the
comments were irrelevant to the situation at hand. Third, we look to the likelihood of the

same punishment being assessed absent any improper remarks. Martinez points to no

place in the record where itwould be obvious that the jury failed to follow the trial court's

instructions. There is no evidence presented that the jury held the statements made

against Martinez in any way. Even though he was given a lengthy prison sentence, the

State had asked for life imprisonment. Thefact that Martinez admitted to stabbing Perez
from the witness stand and the number of wounds Perez received most likely led to the
term of years he received. We find there was no abuse of discretion by the trial courtfor
denying the motion for mistrial. We overrule Martinez's fourth issue.

VI. Conclusion

We affirm the trial court's judgment.

GINA M. BENAVIDES,
Justice

Do not publish.
Tex. R. App. P. 47.2 (b).

Delivered and filed the
31 st day of August, 2015.

20
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