COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JUAN MARTINEZ, § No. 08-23-00070-CR
Appellant, § Appeal from the
v. § 34th Judicial District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20230D00029)
MEMORANDUM OPINION
A jury convicted Appellant Juan Martinez of two counts of intoxication manslaughter with
a vehicle, see TEX. PENAL CODE ANN. § 49.08(b), and one count of intoxication assault with a
vehicle. See TEX. PENAL CODE ANN. § 49.07(c). On appeal, Martinez brings a challenge solely
against the sentence imposed on the assault conviction, while also challenging the trial court’s
ruling on his objection to the State’s opening statement. We modify the trial court’s judgment to
reflect a sentence of ten years’ confinement as to the intoxication assault conviction only, and
affirm the judgment as modified.
BACKGROUND
Martinez neither challenges the sufficiency of the evidence supporting his convictions nor
disputes the underlying facts of the case. Accordingly, only to provide a useful context for the appeal, we recite the factual record briefly and in the light most favorable to the verdict. See Banda
v. State, 768 S.W.2d 294 (Tex. Crim. App. 1989) (en banc) (stating “a brief recitation of the facts
in the light most favorable to the verdict is useful” even where the appellant does not bring a
sufficiency challenge).
Martinez was indicted on two counts of intoxication manslaughter with a vehicle (Counts
I and II), one count of intoxication assault with a vehicle (Count III), and two counts of
manslaughter (Counts IV and V). Each count alleged that, on December 7, 2019, Martinez
operated a motor vehicle while intoxicated, causing the death of two individuals, and further
causing serious bodily injury to a third individual.
The evidence at trial established a two-vehicle collision on Highway Loop 375 in El Paso.
On the occasion, Martinez drove his vehicle, a Toyota 4Runner, eastbound in a westbound lane of
Loop 375 West. As a result, he crashed, head-on, into another vehicle, a Toyota Corolla, traveling
westbound in the same lane. A driver and two passengers rode in the Corolla—a woman, a man,
and a 6-year-old child.
Matthew Dover, a United States Border Patrol agent with emergency medicine training,
testified at trial he was dispatched to the scene to render aid and generally assist other responding
units. Agent Dover described that when he arrived at the site of the collision, he saw a 4Runner
facing east and a Corolla facing north. Initially, he approached the Corolla to do a quick triage.
Because he found the passenger side of the vehicle had caved in, he could not access the male
passenger who made audible sounds while asking for help. Agent Dover next ran to the vehicle’s
other side and opened the driver-side door. There, he found a female slumped in her seat, appearing
lifeless. As he pulled the female driver from the vehicle, he heard agonal breathing, or “a last
breath type of situation.” He placed her on a backboard, and soon located a faint and weak pulse.
2 Aided by a bystander and other responders, he initiated cardiopulmonary resuscitation (CPR) to
assist the injured female. When the fire department arrived, he turned over her care to the
firefighters. Although she was transported from the scene to a hospital, she was declared dead on
arrival. Agent Dover soon returned to the passenger side of the Corolla. By then, the male
passenger had already been extricated by others. Cutting the airbag that blocked his view, he
looked inside the vehicle’s compartment to assess whether any other passenger needed help. He
next described to the jury that he only found the lower half of a child in the rear seat. As a result,
he perceived the child as an obvious death on scene.
At trial, the medical examiner opined that the child’s death was caused by “multiple blunt
injuries, including complete transection of the torso.” As to the female passenger who received
CPR at the scene, the medical examiner opined that she died as a result of multiple blunt-force
injuries consistent with being involved in a vehicle collision. The man survived the accident but
sustained multiple fractures to both legs, a laceration to his perineum, and pelvic fractures. He
spent weeks hospitalized in a critical care unit and underwent multiple operations. Over the course
of several months, he underwent therapy and regained his ability to walk with the assistance of a
cane.
Along with these witnesses, the State presented evidence establishing that Martinez’s blood
alcohol content (BAC) was tested within hours after the collision, and the lab results established a
BAC of 226 milligrams per deciliter, or 2.8 times higher than the legal limit of .08. A crash-
reconstruction expert concluded that Martinez caused the accident by driving his vehicle in the
wrong direction on the highway, colliding head-on with the Corolla. Additionally, multiple
witnesses identified Martinez as the driver of the Toyota 4Runner, which was registered in his
3 name. The State also presented evidence that Martinez told an officer he was coming back from
Juarez where he had been drinking “a lot.”
The jury returned a verdict of guilty on Counts I, II, and III of the indictment. The trial
court had instructed the jury not to proceed to consider Counts IV and V unless they found
Martinez not guilty under Counts I and II. Accordingly, the jury did not return a verdict as to
Counts IV and V. When the trial proceeded to a punishment phase, the State presented evidence
through one witness and Martinez presented testimony through four family members. At the
conclusion of evidence, the jury assessed punishment at 15 years’ confinement in TDCJ, with no
fine, both as to Count I and Count II, respectively. As to Count III, the jury assessed punishment
of ten-years’ confinement in TDCJ with no fine. As a part of its recommendation for Count III,
however, the jury further found that because Martinez had never been convicted of a felony, it
recommended the suspension of the term of confinement and placement on community
supervision.
The trial court entered two different judgments of conviction. The first concerned Counts
I and II and imposed the recommended sentence of 15 years’ confinement in TDCJ, with each
sentence to run concurrently. As to Count III, the trial court entered a judgment sentencing
Martinez to 15 years’ confinement in TDCJ, probated for ten years. The State dismissed Counts
IV and V. This appeal followed.
ISSUES
Martinez presents two issues on appeal. First, he argues the trial court erred in sentencing
him to 15 years’ confinement for Count III because the sentence exceeded the statutory maximum.
Second, Martinez contends the trial court erred in overruling his objection to the State’s argument
during its opening statement. We consider each issue in turn.
4 SENTENCING
In his first issue, Martinez contests the trial court’s imposition of 15-years’ confinement in
TDCJ as to Count III, asserting the sentence exceeds the statutory maximum. He seeks a reversal
of the judgment as to Count III, and a remand of the case back to the trial court for a new sentencing
trial.
A. Standard of Review and Applicable Law
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JUAN MARTINEZ, § No. 08-23-00070-CR
Appellant, § Appeal from the
v. § 34th Judicial District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20230D00029)
MEMORANDUM OPINION
A jury convicted Appellant Juan Martinez of two counts of intoxication manslaughter with
a vehicle, see TEX. PENAL CODE ANN. § 49.08(b), and one count of intoxication assault with a
vehicle. See TEX. PENAL CODE ANN. § 49.07(c). On appeal, Martinez brings a challenge solely
against the sentence imposed on the assault conviction, while also challenging the trial court’s
ruling on his objection to the State’s opening statement. We modify the trial court’s judgment to
reflect a sentence of ten years’ confinement as to the intoxication assault conviction only, and
affirm the judgment as modified.
BACKGROUND
Martinez neither challenges the sufficiency of the evidence supporting his convictions nor
disputes the underlying facts of the case. Accordingly, only to provide a useful context for the appeal, we recite the factual record briefly and in the light most favorable to the verdict. See Banda
v. State, 768 S.W.2d 294 (Tex. Crim. App. 1989) (en banc) (stating “a brief recitation of the facts
in the light most favorable to the verdict is useful” even where the appellant does not bring a
sufficiency challenge).
Martinez was indicted on two counts of intoxication manslaughter with a vehicle (Counts
I and II), one count of intoxication assault with a vehicle (Count III), and two counts of
manslaughter (Counts IV and V). Each count alleged that, on December 7, 2019, Martinez
operated a motor vehicle while intoxicated, causing the death of two individuals, and further
causing serious bodily injury to a third individual.
The evidence at trial established a two-vehicle collision on Highway Loop 375 in El Paso.
On the occasion, Martinez drove his vehicle, a Toyota 4Runner, eastbound in a westbound lane of
Loop 375 West. As a result, he crashed, head-on, into another vehicle, a Toyota Corolla, traveling
westbound in the same lane. A driver and two passengers rode in the Corolla—a woman, a man,
and a 6-year-old child.
Matthew Dover, a United States Border Patrol agent with emergency medicine training,
testified at trial he was dispatched to the scene to render aid and generally assist other responding
units. Agent Dover described that when he arrived at the site of the collision, he saw a 4Runner
facing east and a Corolla facing north. Initially, he approached the Corolla to do a quick triage.
Because he found the passenger side of the vehicle had caved in, he could not access the male
passenger who made audible sounds while asking for help. Agent Dover next ran to the vehicle’s
other side and opened the driver-side door. There, he found a female slumped in her seat, appearing
lifeless. As he pulled the female driver from the vehicle, he heard agonal breathing, or “a last
breath type of situation.” He placed her on a backboard, and soon located a faint and weak pulse.
2 Aided by a bystander and other responders, he initiated cardiopulmonary resuscitation (CPR) to
assist the injured female. When the fire department arrived, he turned over her care to the
firefighters. Although she was transported from the scene to a hospital, she was declared dead on
arrival. Agent Dover soon returned to the passenger side of the Corolla. By then, the male
passenger had already been extricated by others. Cutting the airbag that blocked his view, he
looked inside the vehicle’s compartment to assess whether any other passenger needed help. He
next described to the jury that he only found the lower half of a child in the rear seat. As a result,
he perceived the child as an obvious death on scene.
At trial, the medical examiner opined that the child’s death was caused by “multiple blunt
injuries, including complete transection of the torso.” As to the female passenger who received
CPR at the scene, the medical examiner opined that she died as a result of multiple blunt-force
injuries consistent with being involved in a vehicle collision. The man survived the accident but
sustained multiple fractures to both legs, a laceration to his perineum, and pelvic fractures. He
spent weeks hospitalized in a critical care unit and underwent multiple operations. Over the course
of several months, he underwent therapy and regained his ability to walk with the assistance of a
cane.
Along with these witnesses, the State presented evidence establishing that Martinez’s blood
alcohol content (BAC) was tested within hours after the collision, and the lab results established a
BAC of 226 milligrams per deciliter, or 2.8 times higher than the legal limit of .08. A crash-
reconstruction expert concluded that Martinez caused the accident by driving his vehicle in the
wrong direction on the highway, colliding head-on with the Corolla. Additionally, multiple
witnesses identified Martinez as the driver of the Toyota 4Runner, which was registered in his
3 name. The State also presented evidence that Martinez told an officer he was coming back from
Juarez where he had been drinking “a lot.”
The jury returned a verdict of guilty on Counts I, II, and III of the indictment. The trial
court had instructed the jury not to proceed to consider Counts IV and V unless they found
Martinez not guilty under Counts I and II. Accordingly, the jury did not return a verdict as to
Counts IV and V. When the trial proceeded to a punishment phase, the State presented evidence
through one witness and Martinez presented testimony through four family members. At the
conclusion of evidence, the jury assessed punishment at 15 years’ confinement in TDCJ, with no
fine, both as to Count I and Count II, respectively. As to Count III, the jury assessed punishment
of ten-years’ confinement in TDCJ with no fine. As a part of its recommendation for Count III,
however, the jury further found that because Martinez had never been convicted of a felony, it
recommended the suspension of the term of confinement and placement on community
supervision.
The trial court entered two different judgments of conviction. The first concerned Counts
I and II and imposed the recommended sentence of 15 years’ confinement in TDCJ, with each
sentence to run concurrently. As to Count III, the trial court entered a judgment sentencing
Martinez to 15 years’ confinement in TDCJ, probated for ten years. The State dismissed Counts
IV and V. This appeal followed.
ISSUES
Martinez presents two issues on appeal. First, he argues the trial court erred in sentencing
him to 15 years’ confinement for Count III because the sentence exceeded the statutory maximum.
Second, Martinez contends the trial court erred in overruling his objection to the State’s argument
during its opening statement. We consider each issue in turn.
4 SENTENCING
In his first issue, Martinez contests the trial court’s imposition of 15-years’ confinement in
TDCJ as to Count III, asserting the sentence exceeds the statutory maximum. He seeks a reversal
of the judgment as to Count III, and a remand of the case back to the trial court for a new sentencing
trial.
A. Standard of Review and Applicable Law
An unauthorized sentence is illegal and has no legal effect. See Ex parte Rich, 194 S.W.3d
508, 512 (Tex. Crim. App. 2006). Whether a sentence exceeds the range of punishment authorized
by statute is a question of law that we review de novo. See Yazdchi v. State, 428 S.W.3d 831, 837
(Tex. Crim. App. 2014).
Relevant to this case, intoxication assault while operating a motor vehicle is a third-degree
felony punishable by a term of not more than ten years or less than two years. See TEX. PENAL.
CODE ANN. § 49.07 (a)(1), (c); TEX. PENAL. CODE ANN. § 12.34(a). “Absent a sentence not
authorized by the applicable statute, a trial court may not alter a sentence assessed by a jury[.]”
State v. Aguilera, 165 S.W.3d 695, 697 (Tex. Crim. App. 2005) (en banc). A trial court or
reviewing court that has jurisdiction over a case may always notice and correct an illegal sentence,
regardless of whether the defendant timely objected to the sentence. Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003) (en banc).
B. Analysis
Under Count III, Martinez was charged with intoxication assault while operating a motor
vehicle, causing serious bodily injury to another, and the jury found him guilty of the charge. After
the punishment phase concluded, the trial court instructed the jury that Count III was punishable
by “a term of imprisonment for no less than two years and no more than ten years,” and a fine of
5 not more than $10,000, or none at all. The jury recommended punishment at ten years’ confinement
with no fine. The jury further recommended Martinez’ sentence be suspended, and placement on
community supervision. However, when imposing the sentence as to Count III, the trial court’s
written judgment provided for a sentence of 15 years’ confinement in TDCJ, which was then
suspended, and Martinez was placed on community supervision for ten years.
The State concedes the trial court’s judgment imposing 15 years’ confinement for Count
III exceeded the maximum allowable punishment and, thus, it was not authorized by law. To this
extent, the State argues the judgment should be reformed to reflect the jury’s assessment of ten
years’ confinement for Count III, not 15 years’ confinement. See TEX. CODE CRIM. PROC. ANN.
art. 42.01 § 1(7) (stating the trial court’s judgment shall reflect the verdict of the jury); Lafrienza
v. State, No. 08-13-00121-CR, 2015 WL 4985349, at *6 (Tex. App.—El Paso Aug. 21, 2015, pet.
ref’d) (holding “an appellate court is authorized to reform or modify the judgment to conform to
the record of the proceedings and to render an appropriate judgment”). Based on our review of the
record, we agree.
Accordingly, we sustain Martinez’s first issue. We modify the punishment portion of the
trial court’s judgment as to Count III to reflect ten years’ confinement in TDCJ, which is suspended
and probated for ten years.
JURY ARGUMENT
In his second issue, Martinez contends the trial court erred in overruling his objection to
the State’s opening remarks. Specifically, Martinez argues that, during the State’s opening
statement, it made an improper argument by asking the jury to find him guilty.
At the start of the guilt/innocence phase of trial, the State presented its opening statement.
As the prosecutor completed her opening remarks, the following exchange occurred:
6 THE STATE: At the end of this trial, ladies and gentleman, we are sure, we are confident, as the State, that you will find—
DEFENSE COUNSEL: Objection, Your Honor. This is getting into opening argument now as opposed to an opening statement. I think she has already said all the evidence that they are going to present. Then she should sit down.
THE COURT: Well, she can summarize what she anticipates asking— So go ahead. –what she thinks the evidence will show.
THE STATE: At the end of the trial, Your Honor, we hope you find the defendant guilty.
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: All right. Overruled.
Martinez contends the State made improper jury argument during its opening statement.
We review a trial court’s rulings on opening statements for an abuse of discretion. See
Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. [Panel Op.] 1978) (character and extent of
opening statement subject to trial court’s discretion). During an opening statement, “[t]he State’s
attorney shall state to the jury the nature of the accusation and the facts which are expected to be
proved by the State in support thereof.” TEX. CODE CRIM. PROC. ANN. art. 36.01(3); see also
Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.—Fort Worth 1995, pet. ref’d). In reviewing
whether improper comments by the prosecutor during opening statement constitute reversible
error, appellate courts have determined whether, when viewed in conjunction with the record as a
whole, the statement was so prejudicial as to deny appellant a fair trial. Herrera v. State, 915
S.W.2d 94, 97 (Tex. App.—San Antonio 1996, no pet.); Brockway v. State, 853 S.W.2d 174, 176
(Tex. App.—Corpus Christi 1993, pet. ref’d). A reviewing court should apply the factors set out
in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc), and consider: (1) the
7 magnitude of the prejudicial effect of the State’s remarks; (2) the effectiveness of any cautionary
instruction by the trial court; and (3) the strength of the evidence supporting the conviction.
From our review of the opening statement in its entirety and record as a whole, the State
summarized what the evidence would show during its remarks. The prosecutor then stated that
after hearing the evidence, she was confident the jury would return a verdict of guilty. We conclude
that the opening statement was proper and in accord with the statute. TEX. CODE CRIM. PROC. ANN.
art. 36.01(3).
Even if we were to conclude the challenged comments fell outside the scope of Article
36.01(3), we hold that Martinez failed to establish such error was harmful. See Mosley, 983 S.W.2d
at 259. Martinez asserts the State’s remarks served no purpose but to influence the jury’s decision-
making process and the trial court offered no measures to cure the misconduct. In responding, the
State contends the comments were connected to the summation of the anticipated evidence and, in
any event, the trial court had instructed the jury of the State’s burden and the presumption of
innocence that applied to Martinez. Thus, we agree with the State. Notably, Martinez does not
dispute the evidence presented at trial supports his conviction. Nor does he otherwise direct this
Court to any error that might have affected the certainty of his convictions. Thus, we further
conclude that any error in the State’s opening statement was harmless.
Accordingly, we overrule Martinez’s second issue.
CONCLUSION
We modify the punishment portion of the trial court’s judgment as to Martinez’s conviction
of intoxication assault causing serious bodily injury while operating a motor vehicle (Count III
only), such that the judgment imposes a sentence of ten years’ confinement in TDCJ and no fine,
8 with such term of confinement suspended and he is placed on community supervision for ten years.
We otherwise affirm the judgment as modified.
GINA M. PALAFOX, Justice
November 7, 2023
Before Palafox, J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.), sitting by assignment
(Do Not Publish)