NUMBER 13-17-00609-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN ALBERTO MORALES MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes Memorandum Opinion by Justice Hinojosa
A jury convicted appellant Juan Alberto Morales Martinez of two separate counts
of injury to a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.04(a)(1). By
three issues, Martinez argues that the trial court erred by: (1) not including the lesser-
included instruction of criminal negligence; (2) failing to submit accomplice witness
instructions; and (3) allowing the State to use improper argument during its closing in the punishment phase. We affirm.
I. BACKGROUND
A. Initial Investigation at the Hospital
At trial, Hidalgo County Sheriff’s Office Investigator Anna Delia Mendez testified
that she responded to a call from Edinburg Children’s Hospital regarding a possible injury
to a child. Investigator Mendez arrived at the hospital and learned that A.M. 1 , a
3-month-old infant, had “fractures to her body and it was a nonaccidental trauma.”
Investigator Mendez observed that A.M. had bruising to the right side of her head above
her ear, a swollen right arm, and bruises on her chest area. Mendez also observed that
R.M., A.M.’s identical twin sister, “also had bruising on her body.” Eventually, authorities
learned that A.M. had approximately thirty fractures in different stages of healing
throughout her body, and R.M. had sixteen fractures throughout her body in the same
healing stages.
Dr. Raquel Vargas-Whale, Medical Director of the Child Abuse Program at Driscoll
Children’s Hospital, also testified at trial. Dr. Vargas-Whale leads a team that is “tasked
for assessing children whenever there is a concern for abuse.” Dr. Vargas-Whale
examined both A.M. and R.M. Regarding the girls’ injuries, Dr. Vargas-Whale confirmed
that A.M. had approximately thirty fractures throughout her body. She explained that,
given the number of fractures, she was concerned that the baby might have a metabolic
bone disease. Further tests, however, revealed that the child’s vitamin D, calcium,
magnesium, and phosphorus levels were normal. Dr. Vargas-Whale also ordered a
1 We use initials to protect the identities of minor children. See TEX. R. APP. P. 9.8.
2 “very large DNA genetic panel” that ruled out genetic disorders like osteogenesis
imperfecta which can result in fractures in children. Dr. Vargas-Whale testified that A.M.
did not have any additional fractures after her placement in a different home.
B. Investigation of Defendant Martinez
Jonathan Flores, a Major Crimes Investigator with the Hidalgo County Sheriff’s
Office, interviewed Martinez, the girls’ father. Investigator Flores testified that after he
read Martinez his Miranda rights in Spanish, Martinez gave the following voluntary written
statement:
My name is Juan Alberto Martinez and I want to say that on Thursday, September 24, 2015[,] I got home from work at 5:30. I got home angry. My wife asked me why I was angry and I got angrier and we started arguing. I went to bathe and saw that my two daughters were in their crib in the bathroom. When I went into the bathroom I closed the door. I saw that one of the girls was on top of the other one. I took her by the arm and pulled her hard to one side. The baby began to cry. I want to say that the baby whose arm I pulled was [A.M.]. I went in to bathe and a few hours later my wife told me that [A.M.]’s arm was hurt. I told my wife that we would take her to the hospital in the morning. I also want to add that in the past I have slapped [A.M.] and [R.M.] because they cry a lot. I want to say that a few days before I grabbed [A.M.] by the feet and picked her up. [A.M.] was hanging upside down by her feet. [A.M.] started crying when I did that. I want to say that I have also pulled [R.M.]’s arm in the past. I want to say that my wife Azucena is incapable of hurting our girls because she loves them very much.
Investigator Flores testified that he re-read this statement to Martinez before
Martinez willingly signed it. Investigator Flores further stated that Martinez initialed his
waiver of several rights, such as his right to remain silent and his right to an attorney, after
signing the statement. These rights were typewritten in Spanish.
3 C. Testimony of Martinez’s Wife, Azucena Valdivia Rodriguez
Azucena Valdivia Rodriguez, Martinez’s common law wife, testified at trial. She
explained that she met Martinez in Mexico through mutual friends when she was
seventeen years old and he was thirty-five. She moved to the United States with him
when she was eighteen. She became pregnant with their son Bryan when she was
nineteen and at age twenty became pregnant with their twin girls.
Azucena testified that she and Martinez had a troubled relationship. According to
Azucena, Martinez believed that the twin girls were not his biological children. Martinez
believed that Azucena had had an affair with a neighbor because the girls were light-
complexioned, unlike Martinez. Thus, Azucena stated that he “rejected” the baby girls
and treated them differently than he treated their son. She testified that Martinez “would
throw [the girls] up in the air and he would slap them.” She elaborated that he “would
grab [A.M.] from her arm and throw her in the air.” When asked to provide more
explanation regarding the slapping, she testified that he would hit the three-month-old
infants “on the face” “with his open hand.” She testified that the girls would cry after
these occurrences.
Azucena admitted to the jury that she “was a coward” for not reporting her husband
to authorities for his mistreatment of their daughters. She explained to the jury that she
had pleaded guilty to injury to a child by omission, a second-degree felony, and would be
serving twenty years in the Texas Department of Criminal Justice. See TEX. PENAL CODE
ANN. § 22.04(b).
4 D. Trial: Discussion on the Lesser Included Jury Charge
The parties had the following exchange regarding the lesser included jury
instructions:
COURT: Okay. Where are we at on the charge . . . ?
STATE: Judge, I have a draft of it. . . . We text messaged last night in regards to any lesser included offenses. [Defense counsel] mentioned she wanted to include recklessness and negligence. I mean, Judge, I can see maybe the recklessness but I don’t see—
COURT: I don’t see—
STATE: —negligence.
COURT: —any of that. I don’t see how you get recklessness. He didn’t testify to anything.
DEFENSE: On recklessness, Judge?
COURT: Uh-huh.
DEFENSE: On recklessness he testified—I mean the evidence showed that through his statement that he—the actions that he did throwing up the child or grabbing could be seen as reckless certainly.
COURT: Okay.
DEFENSE: I tend to agree with [the State] with regard to the criminal negligence. I guess, my position in wanting to include it was just out of an over[-]abundance of caution.
COURT: Yeah. Well, I can see that because I forgot about—I was just kind of focused on what he testified to and he didn’t testify to anything but—yeah, if the statement is—if his statement is considered, obviously, then the recklessness is there. So, yes, it would have to be part of the jury charge.
STATE: Okay.
5 COURT: Okay. As far as an instruction.
DEFENSE: Okay.
The final jury charge included an instruction on the lesser-included offense of
recklessness, but not criminal negligence. Martinez failed to object to this omission
before the charge was submitted to the jury. In short, although Martinez wanted to
include the lesser included instruction of criminal negligence “out of abundance of
caution,” he failed to object to its omission.
E. Argument During Punishment Phase
Martinez contends that the State erred when it argued the following during the
punishment phase of the trial:
Did he accept responsibility? Because if you don’t own up to what you do, you can’t ask for mercy. Because the decision that the 12 of you make— that you give him an opportunity depending on your decision to harm again. So the decision that you make—it almost puts you in the same place that Azucena was.
Defense counsel objected, arguing that the statement was prejudicial. The court
overruled the objection. Martinez contends that “the State was placing the jurors in the
shoes of Azucena (the twins[’] mother) and essentially, having them assess a sentence
a protective Azucena would assess.”
The jury found Martinez guilty of two counts of injury to a child, a first-degree felony,
and assessed two separate life sentences. See TEX. PENAL CODE ANN. §§ 12.32,
22.04(a)(1). This appeal followed.
6 II. ANALYSIS
A. Lesser-Included Instruction
“In a prosecution for an offense with lesser included offenses, the jury may find
the defendant not guilty of the greater offense, but guilty of any lesser included offense.”
TEX. CRIM. PROC. CODE ANN. § 37.08. Martinez’s first issue contends that the trial court
erred by not including the lesser-included offense of criminal negligence because there
was more than a scintilla of evidence to justify this instruction.
1. Standard of Review and Applicable Law
To determine whether a lesser-included offense instruction should be given, we
apply a two-part test. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016); Hall
v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). “The first step is to determine
whether the requested instruction pertains to an offense that is a lesser-included offense
of the charged offense, which is a matter of law.” Bullock, 509 S.W.3d at 924. “Under
this first step of the test, an offense is a lesser-included offense if it is within the proof
necessary to establish the offense charged.” Id.; see also TEX. CODE CRIM. PROC. ANN.
art. 37.09.
“The second step in the analysis asks whether there is evidence in the record that
supports giving the instruction to the jury.” Bullock, 509 S.W.3d at 924 (citing Sweed v.
State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)). “Under this second step, a defendant
is entitled to an instruction on a lesser-included offense when there is some evidence in
the record that would permit a jury to rationally find that, if the defendant is guilty, he is
guilty only of the lesser-included offense.” Id. at 925. The evidence must establish that
7 the lesser-included offense is a valid, rational alternative to the charged offense. Id.
Because this is a question of fact that depends on the evidence presented at trial,
we review the record as a whole to make this determination. Salazar v. State, 474
S.W.3d 832, 836 (Tex. App.—Corpus Christi-Edinburg 2015, no pet.); Sweed, 351
S.W.3d at 67–68. “Anything more than a scintilla of evidence may be sufficient to entitle
a defendant to a jury instruction on a lesser-included offense.” Hall, 225 S.W.3d at 536.
“Although this threshold showing is low, ‘it is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense, but rather, there must be some
evidence directly germane to the lesser-included offense for the finder of fact to consider
before an instruction on a lesser-included offense is warranted.’” Sweed, 351 S.W.3d at
67–68 (citations omitted). “[T]he standard may be satisfied if some evidence refutes or
negates other evidence establishing the greater offense or if the evidence presented is
subject to different interpretations.” Id. at 68.
If there is error, we perform a harm analysis. “The erroneous refusal to give a
requested instruction on a lesser-included offense is charge error subject to an Almanza
harm analysis.” Nangurai v. State, 507 S.W.3d 229, 234 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d); Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (en banc)
(op. on reh’g). In this case, the defense did not object to the omission of the lesser
included instruction, so we look for egregious harm. Nangurai, 507 S.W.3d at 234;
Almanza, 686 S.W.2d at 171.
2. Analysis
Having reviewed the record, we conclude that Martinez meets the first part of the
8 lesser-included instruction test. Bullock, 509 S.W.3d at 924. An offense “is a lesser-
included offense if it is within the proof necessary to establish the offense charged.”
Bullock, 509 S.W.3d at 924; see also TEX. CODE CRIM. PROC. ANN. art. 37.09. Article
37.09(3) of the Texas Code of Criminal Procedure provides that one offense is a lesser-
included of a greater offense if it differs from the greater “only in the respect that a less
culpable mental state suffices to establish its commission.” TEX. CODE CRIM. PROC. ANN.
art. 37.09(3). Because a negligent mens rea is a less culpable state of mind than an
intentional mens rea, the first prong of this test is met. See Guzman v. State, 188 S.W.3d
185, 190 (Tex. Crim. App. 2006).
The second part of the test requires us to determine whether there is evidence that
Martinez only caused injury to his children through negligence. Bullock, 509 S.W.3d at
925. Based on our review, we conclude that this possibility is not supported by the
record. Martinez’s voluntary statement admitting that he “slapped” his daughters,
“pulled” his daughters’ arms, “grabbed” one baby by her feet and hung her upside down,
shows more than a negligent state of mind. Martinez also acknowledged that he
committed these acts because the girls “cried a lot”—indicating the intent of his actions.
Accordingly, we find no error in failing to include this instruction. And because we
determine there was no error, no harm analysis is required. 2 We overrule this issue.
2 But even if there was error, it is harmless. We note that the court included the lesser-included instruction of “recklessly” on the jury charge and that the jury declined to convict on that lesser-included instruction. “Reckless” is a less culpable state of mind than “intentional” but more culpable than “negligent.” TEX. PEN. CODE ANN. § 6.02(d); Guzman v. State, 188 S.W.3d 185, 190 (Tex. Crim. App. 2006).
9 B. The Accomplice Witness Instructions
Martinez’s second issue asserts that the trial court egregiously harmed Martinez
because it did not submit accomplice witness instructions to the jury.
“A witness can be an accomplice as a matter of fact or as a matter of law.” Ash
v. State, 533 S.W.3d 878, 884 (Tex. Crim. App. 2017). The evidence produced at trial
determines whether a defendant is entitled to an accomplice-witness instruction. Id.
(citing Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013)). “If the record
contains evidence that a witness may have been an accomplice, the issue should be
submitted to the jury to decide whether the witness was an accomplice as a matter of
fact.” Id. If the witness has been charged with the same offense as the defendant or a
lesser-included offense, then the witness is an accomplice as a matter of law. Zamora,
411 S.W.3d at 510. A witness is an accomplice as a matter of law if there is “no doubt
or the evidence clearly shows” that the witness is an accomplice. Paredes v. State, 129
S.W.3d 530, 536 (Tex. Crim. App. 2004).
“Trial courts are obliged to instruct juries on ‘the law applicable to the case,’ which
includes the statutory definitions that affect the meaning of the elements of the offense.”
Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); see also TEX. CODE CRIM.
PROC. ANN. art. 36.14. In analyzing a jury charge issue, we first determine whether error
exists. See Almanza, 686 S.W.2d at 174; Tottenham v. State, 285 S.W.3d 19, 30 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). If we find error, then we consider whether
the error was harmful under the appropriate standard. Tottenham, 285 S.W.3d at 30;
10 see also Warner v. State, 245 S.W.3d 458, 461 (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 for reversal.”). Under Almanza, the appellate court applies
either the “some harm” standard if the complaint was preserved for appeal, or the
“egregious harm” standard if complaint was not preserved for appeal. Almanza, 686
S.W.2d at 171.
Martinez’s attorney did not object to the jury charge. Therefore, any potential
error in the charge is reviewed only for “egregious harm.” See Oursbourn v. State, 259
S.W.3d 159, 174 (Tex. Crim. App. 2008). “This is a difficult standard to meet and
requires a showing that the defendants were deprived of a fair and impartial trial.” Nava
v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). “[T]he error must have affected
the very basis of the case, deprived the defendant of a valuable right, or vitally affected a
defensive theory.” Id. In determining whether egregious harm is shown, we look at the
entire jury charge, the state of the evidence, the arguments of counsel, and any other
relevant information revealed by the whole record of the trial. Id. This analysis is fact-
specific and done on a case-by-case basis. Arrington v. State, 451 S.W.3d 834, 840
(Tex. Crim. App. 2015).
“Under the egregious harm standard, the omission of an accomplice witness
instruction is generally harmless unless the corroborating (non-accomplice) evidence is
‘so unconvincing in fact as to render the State's overall case for conviction clearly and
significantly less persuasive.’” State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App.
2016). In assessing the strength of the non-accomplice evidence, we examine: (1) its
11 reliability or believability, and (2) the strength of its tendency to connect the defendant to
the crime. Id.
Azucena was charged with injury to a child by omission, which is a lesser included
offense of Martinez’s injury to a child charge. See TEX. PENAL CODE ANN. § 22.04(b).
Thus, Azucena was an accomplice witness as a matter of law. Zamora, 411 S.W.3d at
510; see also TEX. CODE CRIM. PROC. ANN. art. 38.14 (“a conviction cannot be had upon
the testimony of an accomplice unless corroborated by other evidence tending to connect
the defendant with the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.”). The failure to include an accomplice
witness instruction was thus error. Zamora, 411 S.W.3d at 510.
Martinez, however, did not request the accomplice witness instruction or object to
its omission. Accordingly, we evaluate whether the failure to include the instruction
constitutes egregious harm. Oursbourn, 259 S.W.3d at 174. Based on our full review
of the record, it does not. Martinez’s voluntary statement to law enforcement officials
provides corroborating, non-accomplice evidence. See TEX. CODE CRIM. PROC. ANN. art.
38.14; Ambrose, 487 S.W.3d at 598. In his statement, Martinez asserted that the night
before the girls went to the hospital, he came home from work angry. After arguing with
his wife, he went to the restroom to shower and saw his twin three-month-old girls, R.M.
and A.M., in a crib. He recalled that he saw that A.M. on top of R.M. so he “took [A.M.]
by the arm and pulled her hard to one side.” He remembered that A.M. cried after he did
that. Later that evening, when his wife Azucena told him that A.M.’s arm was hurt, he
12 decided to wait to take the baby to the hospital in the morning. Martinez also informed
Investigator Flores that he had slapped his infant girls in the past because they “cried a
lot.” Further, he admitted to grabbing A.M. by the feet and hanging her upside down,
which made her cry. He also admitted to pulling R.M.’s arm in the past. He stated that
his wife was “incapable of hurting our girls because she loves them very much.”
Investigator Flores’s testimony indicated that he properly admonished Martinez of
his Miranda rights in Spanish prior to taking Martinez’s statement. Further, Martinez
initialed the Spanish translations informing him of his right to counsel and to remain silent.
Thus, we find Martinez’s statement to be reliable and believable. See Ambrose, 487
S.W.3d at 58. We also find Martinez’s voluntary statement strong enough to connect
him to the crime of injury to a child. See id. Because Martinez’s voluntary statement is
convincing and does not “render the State's overall case for conviction clearly and
significantly less persuasive,” we overrule this issue. See Ambrose, 487 S.W.3d at 598.
C. Improper Argument
By his third issue, Martinez argues that the State used improper argument during
closing argument. During its punishment argument, the State’s prosecutor made the
following argument regarding Martinez:
Did he accept responsibility? Because if you don’t own up to what you do, you can’t ask for mercy. Because the decision that the 12 of you make— that you give him an opportunity depending on your decision to harm again. So the decision that you make—it almost puts you in the same place that Azucena was.
Martinez’s counsel objected that this argument was prejudicial. The court overruled his
objection. Defense counsel did not request that the statement be stricken from the
13 record or that the trial court declare a mistrial.
On appeal, he argues that the “State was placing the jurors in the shoes of
Azucena (the twins[’] mother) and essentially, having them assess a sentence a
protective Azucena would assess. It was not a proper argument.”
Jury argument is confined to four permissible areas: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument
of opposing counsel; or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d
205, 213 (Tex. Crim. App. 2000). “Appellate courts should not hesitate to reverse when
it appears the State has departed from one of these areas in argument and has engaged
in conduct calculated to deny the accused a fair and impartial trial.” Wilson v. State, 938
S.W.2d 57, 59 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla v. State, 78
S.W.3d 352 (Tex. Crim. App. 2002).
Improper argument constitutes reversible error if: (1) the argument is violative of
a statute; (2) it injects a new and harmful fact into the case; or (3) it is manifestly improper,
harmful, and prejudicial to the rights of the accused. Id.; see also TEX. R. APP. P. 44.2(a)-
(b). In assessing the harm of improper jury argument during the punishment phase, the
appellate court must balance the following factors: (1) the severity of the misconduct (ie:,
its prejudicial effect); (2) curative measures; and (3) the punishment assessed. Martinez
v. State, 17 S.W.3d at 677, 692–93 (Tex. Crim. App. 2000).
“Appellate courts have specifically held that it is improper for a prosecutor to ask
members of the jury to place themselves in the shoes of the victim.” Boyington v. State,
14 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (citing United States
v. Cook, 592 F.2d 877 (5th Cir. 1979); Chandler v. State, 689 S.W.2d 332 (Tex. App.—
Fort Worth 1985, no pet.)). In Boyington v. State, a case involving arson, the prosecutor
argued as follows:
This is called a punishment hearing. That is why you are here today. If you are going to go back there and show leniency, that's fine. But please have a good reason for it. Because what would you do if this happened to your family? You know, all of you have got families here and you have got kids and you have got a home. How would you feel if your home was firebombed one night and you saw your children on fire? What do you think should happen to a person like Barron Lee Boyington, that does something like that? And it is your opportunity to say, “Barron Lee Boyington, you have no right to do what you did to that Anderson family, and we aren't going to put up with it.” So please put yourself in that place when you are deciding this. Put yourself in the place of that Anderson family and imagine that was your family that was firebombed in the middle of the night. Imagine that it was your son that had his legs on fire. Imagine that it was your home that was burned out. Would you want mercy shown? Would you want leniency shown?
And please keep in the forefront of your mind just like it was your family that received the fire bomb and you are in a den at 3:00 a.m. on a hot summer evening. Keep that in the forefront of your mind and just think what you would want to happen in that situation. (Emphasis in original).
Boyington, 738 S.W.2d at 709. The Houston appeals court held that defense counsel’s
failure to object to the argument was reversible error because “this argument openly
pleads with the jury to abandon its objectivity in deciding the case.” Id.; see Linder v.
State, 828 S.W.2d 290, 303 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd).
Here, during the punishment proceedings, the prosecutor urged the jury to
consider whether Martinez showed accountability for his actions regarding his daughters’
15 injuries. 3 The State also implied that the jurors were faced with a similar situation as
Martinez’s wife: whether to protect these two children from harm. The prosecutor
contended that Azucena could have protected her daughters from harm but she chose
not to; the jurors now had to choose to protect the girls with their sentencing
recommendation. Specifically, the State argued, “Because the decision that the 12 of
you make . . . you give him an opportunity depending on your decision to harm again.
So the decision that you make—it almost puts you in the same place that Azucena was.”
We agree with Martinez that the comment complained of here was improper and
the trial court’s failure to sustain his objection constituted error. See Brandley v. State,
691 S.W.2d 699, 712 (Tex. Crim. App. 1985); Todd v. State, 598 S.W.2d 286, 297 (Tex.
Crim. App. 1980). The remark did not attempt to summarize the evidence, encourage a
reasonable deduction from the evidence, propose an answer to opposing counsel’s
argument, or make a plea for law enforcement. Cannady, 11 S.W.3d at 213.
Although we find error, we cannot say it was harmful. Wilson, 938 S.W.2d at 59;
TEX. R. APP. P. 44.2(a)-(b). Our reading of the record as a whole concludes that this
comment was isolated. In this case, the prosecutor did not ask jurors to put themselves
into the victims’ shoes; rather, she encouraged jurors to put themselves in the place of
the victims’ mother. This is a slight distinction from the Boyington case, where the State
urged the jurors to place themselves directly in the victims’ position. Boyington, 738
S.W.2d at 709. Further, unlike Boyington, this argument was not repeated. In light of
3 The State claims that the objection at trial did not match Martinez’s appellate complaint. We disagree. At trial, defense counsel objected that the prosecutors’ argument was “prejudicial.” We conclude that this preserved error for improper jury argument. See TEX. R. APP. P. 33.1.
16 these facts, we do not perceive this comment to have been violative of a mandatory
statute, or as having injected new or harmful facts to the accused into the trial, or extreme
or manifestly improper. See Wilson, 938 S.W.2d at 59; see also TEX. R. APP. P. 44.2(a)-
(b). We overrule this issue.
III. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 20th day of June, 2019.