In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00388-CR
JOSE LUIS MARTINEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas Trial Court No. 10568, Honorable Steven Emmert, Presiding
July 13, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.
A jury convicted Appellant Jose Luis Martinez, Jr. of murder1 and assessed his
punishment at 70 years’ confinement in prison and a fine of $10,000. Through a single
issue, Appellant argues his term of confinement is grossly disproportionate to the gravity
of the offense, constituting cruel and unusual punishment. We overrule Appellant’s issue
and affirm the judgment of the trial court.
1 See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2019). Background
At approximately 11:20 p.m. on August 20, 2016, Texas Department of Public
Safety trooper Jesse Cerda was monitoring traffic by radar from his patrol vehicle near
Pampa, Texas. He detected a westbound vehicle traveling approximately 13 miles per
hour above the posted speed limit. It is undisputed Appellant was the driver and lone
occupant of that vehicle. Cerda activated the lights on his cruiser and began pursuit.
Appellant did not stop.
With Cerda following, Appellant ran two red lights, turning west on U.S. Highway
60 at the second light. Before Appellant turned, Cerda observed the brake light on
Appellant’s pickup activate briefly, as well as the right turn indicator. This showed Cerda
that Appellant was alert; “that he had . . . some knowledge of what he was doing.”
Cerda remained in pursuit. He observed Appellant was traveling over 70 miles per
hour in a 55 mile per hour zone. According to the testimony of a Department of Public
Safety crash reconstructionist, the speed of Cerda’s vehicle reached 106 miles per hour.
Appellant’s vehicle crossed the median and entered the east-bound traffic lanes, where
he struck an oncoming car driven by C.B., and which was occupied by H.M.B., and their
two daughters, J.B., age 13, and H.B., age 11. J.B. died as a result of injuries received
in the collision. Trial evidence suggested Appellant did not brake, swerve, or slow down
before the collision.
Appellant was transported by helicopter to an Amarillo hospital. Because
Appellant refused to voluntarily provide a blood sample, troopers obtained a search
warrant, and thereby, a specimen of Appellant’s blood. Appellant’s blood sample was
2 tested by Department forensic scientists who presented the results at trial. According to
their testimony, the alcohol concentration in Appellant’s blood placed him near the legal
threshold of intoxication. Additional testimony showed the blood sample contained a low
concentration of Xanax, an anti-anxiety medication.
Appellant was charged with murder. The indictment alleged Appellant:
did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to-wit; driving a vehicle at another occupied moving vehicle, that caused the death of J.B., and the defendant was then and there in the course of intentionally and knowingly committing a felony, to-wit: Evading Arrest/Detention with a Vehicle, and said death of J.B. was caused while the defendant was in the course of and in furtherance of the commission or attempt of said felony, against the peace and dignity of the State.
Appellant’s recorded statement, taken by a Texas Ranger, was played for the jury
during the guilt-innocence phase of trial. Appellant told the ranger he had no memory
after about 7:00 p.m. on the night of the collision. He recalled prior to that time being with
his brother in Perryton, Texas. According to Appellant he drank two screwdrivers.
The jury found Appellant guilty of murder. At the punishment phase of trial, the
State presented evidence of Appellant’s considerable offense history. It consisted of five
years’ deferred adjudication community supervision for sexual assault, community
supervision for misdemeanor assault with bodily injury, deferred adjudication community
supervision for failure to register as a sex offender, and at least two other convictions for
driving while intoxicated. Appellant testified he had been drinking on the night of the
sexual assault offense and at the time of the assault with bodily injury offense. Appellant
testified he was an alcoholic. On cross-examination, Appellant stated he was not aware
3 of the facts of the underlying offense “because of the alcohol and the Xanex [sic] that was
in my system at the time[.]”
In closing argument, the State asked the jury to assess a sentence of life in prison.
The jury assessed punishment at 70 years’ confinement and made a deadly weapon
finding. The trial court imposed sentence accordingly and included in the judgment the
deadly weapon finding. Appellant’s amended motion for new trial was overruled by
operation of law.
Analysis
Appellant does not challenge the evidence of his guilt; indeed, he admits all the
evidence presented against him is true. Rather, Appellant argues his 70-year sentence
of confinement is grossly disproportionate, constituting cruel and unusual punishment.
The offense of murder is a first-degree felony punishable by imprisonment for life or for
any term of not more than 99 years or less than 5 years. TEX. PENAL CODE ANN.
§§ 19.02(c), 12.32 (West 2019). As applicable here, a person commits murder if he
commits a felony, other than manslaughter, and in the course of the commission he
commits an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(3).
A person commits the offense of evading arrest or detention if he intentionally flees
from a person he knows is a peace officer attempting lawfully to arrest or detain him. TEX.
PENAL CODE ANN. § 38.04(a) (West 2016). A violation of section 38.04 is a third degree
felony if another suffers serious bodily injury as a direct result of an attempt by the officer
from whom the actor is fleeing to apprehend the actor while the actor is in flight. TEX.
4 PENAL CODE ANN. § 38.04(b)(2). The offense is a second-degree felony “if another suffers
death as a direct result of an attempt by the officer from whom the actor is fleeing to
apprehend the actor while the actor is in flight.” TEX. PENAL CODE ANN. § 38.04(b)(3).
It is undisputed the sentence imposed was within the range of punishment
authorized by the Legislature. Generally, a sentence within the statutory range of
punishment for an offense is not excessive, cruel, or unusual punishment. Winchester v.
State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet. ref’d). When examining
sentences for non-capital felonies like murder, the Court of Criminal Appeals has
described “the sentencer’s discretion to impose any punishment within the prescribed
range to be essentially ‘unfettered.’” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim.
App. 2006) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)). As
the court continued, “Subject only to a very limited, exceedingly rare, and somewhat
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00388-CR
JOSE LUIS MARTINEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas Trial Court No. 10568, Honorable Steven Emmert, Presiding
July 13, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.
A jury convicted Appellant Jose Luis Martinez, Jr. of murder1 and assessed his
punishment at 70 years’ confinement in prison and a fine of $10,000. Through a single
issue, Appellant argues his term of confinement is grossly disproportionate to the gravity
of the offense, constituting cruel and unusual punishment. We overrule Appellant’s issue
and affirm the judgment of the trial court.
1 See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2019). Background
At approximately 11:20 p.m. on August 20, 2016, Texas Department of Public
Safety trooper Jesse Cerda was monitoring traffic by radar from his patrol vehicle near
Pampa, Texas. He detected a westbound vehicle traveling approximately 13 miles per
hour above the posted speed limit. It is undisputed Appellant was the driver and lone
occupant of that vehicle. Cerda activated the lights on his cruiser and began pursuit.
Appellant did not stop.
With Cerda following, Appellant ran two red lights, turning west on U.S. Highway
60 at the second light. Before Appellant turned, Cerda observed the brake light on
Appellant’s pickup activate briefly, as well as the right turn indicator. This showed Cerda
that Appellant was alert; “that he had . . . some knowledge of what he was doing.”
Cerda remained in pursuit. He observed Appellant was traveling over 70 miles per
hour in a 55 mile per hour zone. According to the testimony of a Department of Public
Safety crash reconstructionist, the speed of Cerda’s vehicle reached 106 miles per hour.
Appellant’s vehicle crossed the median and entered the east-bound traffic lanes, where
he struck an oncoming car driven by C.B., and which was occupied by H.M.B., and their
two daughters, J.B., age 13, and H.B., age 11. J.B. died as a result of injuries received
in the collision. Trial evidence suggested Appellant did not brake, swerve, or slow down
before the collision.
Appellant was transported by helicopter to an Amarillo hospital. Because
Appellant refused to voluntarily provide a blood sample, troopers obtained a search
warrant, and thereby, a specimen of Appellant’s blood. Appellant’s blood sample was
2 tested by Department forensic scientists who presented the results at trial. According to
their testimony, the alcohol concentration in Appellant’s blood placed him near the legal
threshold of intoxication. Additional testimony showed the blood sample contained a low
concentration of Xanax, an anti-anxiety medication.
Appellant was charged with murder. The indictment alleged Appellant:
did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to-wit; driving a vehicle at another occupied moving vehicle, that caused the death of J.B., and the defendant was then and there in the course of intentionally and knowingly committing a felony, to-wit: Evading Arrest/Detention with a Vehicle, and said death of J.B. was caused while the defendant was in the course of and in furtherance of the commission or attempt of said felony, against the peace and dignity of the State.
Appellant’s recorded statement, taken by a Texas Ranger, was played for the jury
during the guilt-innocence phase of trial. Appellant told the ranger he had no memory
after about 7:00 p.m. on the night of the collision. He recalled prior to that time being with
his brother in Perryton, Texas. According to Appellant he drank two screwdrivers.
The jury found Appellant guilty of murder. At the punishment phase of trial, the
State presented evidence of Appellant’s considerable offense history. It consisted of five
years’ deferred adjudication community supervision for sexual assault, community
supervision for misdemeanor assault with bodily injury, deferred adjudication community
supervision for failure to register as a sex offender, and at least two other convictions for
driving while intoxicated. Appellant testified he had been drinking on the night of the
sexual assault offense and at the time of the assault with bodily injury offense. Appellant
testified he was an alcoholic. On cross-examination, Appellant stated he was not aware
3 of the facts of the underlying offense “because of the alcohol and the Xanex [sic] that was
in my system at the time[.]”
In closing argument, the State asked the jury to assess a sentence of life in prison.
The jury assessed punishment at 70 years’ confinement and made a deadly weapon
finding. The trial court imposed sentence accordingly and included in the judgment the
deadly weapon finding. Appellant’s amended motion for new trial was overruled by
operation of law.
Analysis
Appellant does not challenge the evidence of his guilt; indeed, he admits all the
evidence presented against him is true. Rather, Appellant argues his 70-year sentence
of confinement is grossly disproportionate, constituting cruel and unusual punishment.
The offense of murder is a first-degree felony punishable by imprisonment for life or for
any term of not more than 99 years or less than 5 years. TEX. PENAL CODE ANN.
§§ 19.02(c), 12.32 (West 2019). As applicable here, a person commits murder if he
commits a felony, other than manslaughter, and in the course of the commission he
commits an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(3).
A person commits the offense of evading arrest or detention if he intentionally flees
from a person he knows is a peace officer attempting lawfully to arrest or detain him. TEX.
PENAL CODE ANN. § 38.04(a) (West 2016). A violation of section 38.04 is a third degree
felony if another suffers serious bodily injury as a direct result of an attempt by the officer
from whom the actor is fleeing to apprehend the actor while the actor is in flight. TEX.
4 PENAL CODE ANN. § 38.04(b)(2). The offense is a second-degree felony “if another suffers
death as a direct result of an attempt by the officer from whom the actor is fleeing to
apprehend the actor while the actor is in flight.” TEX. PENAL CODE ANN. § 38.04(b)(3).
It is undisputed the sentence imposed was within the range of punishment
authorized by the Legislature. Generally, a sentence within the statutory range of
punishment for an offense is not excessive, cruel, or unusual punishment. Winchester v.
State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet. ref’d). When examining
sentences for non-capital felonies like murder, the Court of Criminal Appeals has
described “the sentencer’s discretion to impose any punishment within the prescribed
range to be essentially ‘unfettered.’” Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim.
App. 2006) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)). As
the court continued, “Subject only to a very limited, exceedingly rare, and somewhat
amorphous Eighth Amendment gross-disproportionality review, a punishment that falls
within the legislatively prescribed range, and that is based upon the sentencer’s informed
normative judgment, is unassailable on appeal.” Ex parte Chavez, 213 S.W.3d at 323-
24. Within the context of proportionality challenges, the United States Supreme Court
has noted that the severity and irrevocability of murder distinguishes it from other crimes.
Ham v. State, 355 S.W.3d 819, 825-26 (Tex. App.—Amarillo 2011, pet. ref’d) (citing
Graham v. Florida, 560 U.S. 48, 69, 130 S. Ct. 2011, 176 L. Ed.2d 825 (2010) (recognizing
a line between homicide and other serious violent offenses against the individual: for a
murder victim, life is over)).
Evaluation of the proportionality of a sentence of a term of years requires a court
assess the severity of the sentence in light of the harm caused or threatened the victim,
5 the offender’s culpability, and the offender’s prior adjudicated and unadjudicated
offenses. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing Graham,
560 U.S. at 60); Noyes v. State, No. 07-16-00229-CR, 2018 Tex. App. LEXIS 3572, at *6
(Tex. App.—Amarillo May 21, 2018, no pet.) (mem. op., not designated for publication)
(citing Graham, 560 U.S. at 60). In the rare case where this threshold comparison gives
rise to an inference of gross disproportionality of sentence, the court then compares the
defendant’s sentence with the sentences received for similar crimes in this jurisdiction
and sentences received in other jurisdictions. Simpson, 488 S.W.3d at 323; Noyes, 2018
Tex. App. LEXIS 3572, at *6.
We therefore look to the harm Appellant caused the victims, his culpability, and his
prior offense record. Appellant’s criminal record notes at least two prior convictions for
driving while intoxicated. On August 20, 2016, Appellant again chose to consume alcohol
before driving; he also consumed Xanax. As he drove toward Amarillo to visit his
girlfriend, he chose to exceed the speed limit and ignore the continued direction of law
enforcement to pull over and stop. He chose to disregard two red traffic signals, although
he was cognizant enough to tap his brakes and signal a turn. He chose to evade law
enforcement by accelerating his vehicle to a speed that was substantially above the legal
limit. Despite the instruction of a pursuing trooper to pull over, Appellant drove his vehicle
into the opposite lane of traffic, where he collided with a vehicle occupied by a family of
four. The collision resulting from Appellant’s conduct caused severe harm on the family
and ended the life of thirteen-year-old J.B.
H.B. testified that as their car came to rest following the impact, he saw J.B.
“hanging out of the car and . . . panicked. I begged her to wake up but she couldn’t. I
6 unbuckled her seat belt, took her out of the car and laid her on the side of the road.”
When C.B. was asked how her daughter’s death affected her, she testified, “Some days
you force yourself to breathe.”
With apparent regard for the culpability consideration, Appellant argues he does
not remember evading arrest or detention, nor did he remember anything else about the
offense. Appellant presents evidence he was remorseful and grew “teary-eyed” while
discussing the events with a Texas Ranger at the county jail. While this might serve as
evidence of remorse during the mitigation/punishment stage at trial, on appeal it has little
relevance to the constitutional disproportionality of sentence theory Appellant advances.
Simpson, 488 S.W.3d at 324.
Because the Legislature declares the public policy of this state through the laws it
enacts, “the Legislature possesses the sole authority to establish criminal offenses and
designate applicable penalties.” Martinez v. State, 323 S.W.3d 493, 501 (Tex. Crim. App.
2010). The Penal Code provisions here demonstrate it is the public policy of this State
that a person convicted of murder may be sentenced to spend up to the remainder of his
life in prison. Appellant’s sentence of confinement was not the maximum possible and
fell within the range established by the Legislature. Appellant has not shown, nor can we
conclude, that his sentence of confinement for a term of 70 years for murder supports an
inference of gross disproportionality. In light of the facts presented, we conclude
Appellant’s sentence does not offend the Eighth Amendment. Accordingly, it is
unnecessary to take up the second prong of the analysis, comparing Appellant’s sentence
with those received by other offenders in this jurisdiction and with the sentences imposed
for the same crime in other jurisdictions. Appellant’s issue is overruled.
7 Conclusion
Having overruled Appellant’s sole issue on appeal, we affirm the judgment of the
trial court.
Lawrence M. Doss Justice
Do not publish.