Martinez v. State

924 S.W.2d 693, 1996 Tex. Crim. App. LEXIS 70, 1996 WL 269204

• Court: Court of Criminal Appeals of Texas
• Decided: May 22, 1996
• Docket: 71818
• Status: Published

Opinions

OPINION

MEYERS, Judge.

Appellant, Johnny Joe Martinez, was convicted of capital murder in January, 1994.¹ TexPenal Code ANN. § 19.03(a)(2). During the punishment phase, the jury affirmatively answered the special issue set forth in Texas Code of Criminal Procedure art. 37.071 § 2(b) and negatively answered the special issue set forth in Article 37.071 § 2(e). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071 § 2(g). Direct appeal is automatic. Tex.Code CrimPROCANN. art. 37.071 § 2(h). We will affirm.

Appellant raises six points of error. He does not challenge the sufficiency of the evidence to support the jury’s verdict- finding him guilty of capital murder. However, he does contend the evidence is insufficient to support the jury’s affirmative answer to the special issue on future dangerousness. We will address the points as they are presented to us.

Looking at the evidence in the light most favorable to the jury’s verdict, the record reveals the following facts. Appellant took the stand on his own behalf at the guilVinno-cence phase of trial. According to appellant, he and a friend left Kingsville around 5:15 p.m. on July 14, 1993, and headed toward Corpus Christi. They stopped on the way out of town to buy a 12-paek of beer and began drinking it. After they arrived in Corpus, and over the course of the evening, the pair stopped at a number of nightclubs and allegedly consumed multiple alcoholic drinks.² They were soon joined by a third person. The trio was headed to yet another club when they met a man named Ernest Wortmann and engaged him in conversation. Wortmann decided to join the trio at the next nightclub. However, Wortmann was having car trouble, so appellant rode with him in case his car broke down along the way. By the time the group closed down the last bar, appellant had allegedly consumed twelve to thirteen alcoholic drinks.

According to appellant, the group then decided to go to a park on North Beach. Appellant again rode with Wortmann and the two stopped at a 7-11 convenience store where the deceased was working the early morning shift of July 15, 1993. Upon arriving at the 7-11, Wortmann entered the store and asked to use the telephone. Wortmann then apparently went back outside and told appellant that the car needed to cool down. Appellant suggested that the two go to the beach, but entered the store first to use the restroom. Before leaving the store, appellant and Wortmann are seen on the security videotape shoplifting several items. Back outside, appellant and Wortmann engaged in conversation and Wortmann allegedly told appellant that he was recently out of prison for robbing stores. Appellant jokingly suggested that he rob the 7-11. While standing by the car, the two discussed how easy it would be to rob the store, so appellant decided to rob it. Appellant testified that, while he normally did not carry a knife, he had a small knife with him that evening. He stated that he entered the store with the intent to steal money, but only intended to use the knife to scare the clerk.

The videotape then depicted appellant reentering the store. Appellant is shown apparently asking the deceased for something and when the deceased partially turned away, appellant grabbed him around the neck and put the knife to his throat. Appellant then forced the deceased around the counter and into the cash register area. The video revealed that appellant had one arm in a choke hold around the deceased’s neck and his other hand pressing the knife into the deceased’s throat. The deceased opened the cash register and appellant took the money. Appellant then stabbed the deceased approximately two or three times before the deceased fell facedown and motionless on the floor. Appellant then thrust the knife into the deceased’s back several more times before exiting the store.

When asked why he stabbed the deceased, appellant answered, “I don’t know. That’s a question I will never be able to answer.” He said that he did not intend to kill the deceased. In fact, he told the jury that he did not even remember stabbing the deceased as many times as he did.³

Appellant further told the jury that he got scared after the stabbing and just started running. He stated that he ran to the beach, got down on his hands and knees, and started crying. He testified that he was not sure what he did with the knife, but that he turned himself in shortly thereafter. Appellant also admitted to the jury that he had lied about several remarks he made in his statements to police.⁴

A short while after the stabbing, Police Officer Kureska was dispatched to the Sandy Shores Hotel in reference to an individual who called the police saying he was involved in the convenience store crime. Upon arriving at the hotel, the officer entered the lobby and observed appellant-sitting on a couch in the presence of two security guards. Kures-ka testified at trial that appellant was very calm and quiet and seemed somewhat withdrawn. Kureska said appellant was cooperative and did not appear to be under the influence of alcohol. A hotel employee and one of the security guards also confirmed that appellant did not appear to have the smell of alcohol on his breath. The hotel employee further noted that appellant’s clothes did not appear sandy or wet. During the trip to the police station, appellant asked Officer Ilse, “Is the guy I stabbed dead?”

At the police station appellant was taken to a room where he came into contact with Sergeant R.L. Garcia. Garcia stated that appellant was angry and told the officer that he had stabbed a man and wanted to talk to the officer “now.” Garcia noted that this was said in an insistent and demanding tone. However, during the actual interview, appellant was cooperative and understanding. Appellant even attempted to help officers locate the knife he had used to stab the store clerk. Garcia noted that appellant did smell of alcohol, but he did not believe appellant was intoxicated.

At the punishment stage of trial, the State presented no additional evidence. Appellant, on the other hand, called long time friend, Verna Rodriguez, to testify to appellant’s non-violent character. However, Rodriguez also told the jury that appellant grew up in a violent neighborhood and frequently got in disputes with people in which he would argue verbally. According to appellant’s younger brother, David Martinez, appellant dropped out of school in the 10th grade⁵ and joined a job training program, but appellant never finished the program. Martinez also recalled that his brother was involved in a school fight. Finally, the county jail coordinator testified that the jail did not have any “significant” problems with appellant. The coordinator stated that appellant’s jail record included three minor write-ups including a “disagreement” with a guard.

In his first point of error, appellant contends that the evidence was insufficient to support the jury’s affirmative answer to the special issue on future dangerousness. In reviewing the sufficiency of the evidence at the punishment, it is well-settled that we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have made the finding of future dangerousness beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.), cert. denied, — U.S. —, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994).⁶ The circumstances of the offense alone may be sufficient to sustain the jury’s affirmative answer to the issue on future dangerousness. Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.), cert. denied, — U.S.-, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). It may be helpful in the instant ease to examine those cases in which we have found the evidence insufficient. However, we note that each ease must be resolved on its own facts. Id.

In Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987), the defendant entered a grocery store and, without warning, shot a clerk and fired at the store owner. He then went behind the counter and stole both of the victims’ purses. In Roney v. State, 632 S.W.2d 598 (Tex.Crim.App.1982), the defendant, without provocation, shot a grocery store clerk during a robbery, but after he had received the money. Another clerk testified at trial that the victim had his hands raised when he was shot. In Beltran v. State, 728 S.W.2d 382 (Tex.Crim.App.1987), during a robbery of a tortilleria, the defendant shot the victim immediately after she handed him the money from the cash drawer. In each of these instances, we acknowledged that the killings were senseless and unnecessary. However, we nevertheless held the circumstances of the offenses were not so brutal as to prove in and of themselves that any of the three defendants posed a continuing threat to society. See Dinkins, supra.

The circumstances in the instant ease are distinguishable from these cases. In each of the above cases, the defendant utilized a gun to commit murder — an instrument which can potentially be used from across a room or at a very close range and which often results in death resulting from a single shot, even if not well-aimed. See Warren v. State, 562 S.W.2d 474 (Tex.Crim.App.1978) (defendant entered home unarmed, but when owner unexpectedly came home, found defendant, and pulled a gun, defendant “just shut his eyes and shot.”). In the present case, on the other hand, appellant’s weapon of choice was a knife — a weapon which, by virtue of its very nature, forces the user to be in such close proximity to his victim that he is often touching him or comes into contact with him on each blow. Furthermore, the character of the weapon is such that several thrusts are often utilized in order to ensure death — each additional thrust potentially indicating to any rational juror that such a personal act requires a wanton and callous disregard for human life. Cf. Dinkins, supra (evidence of future dangerousness found sufficient where one victim was shot twice at extremely close range and she was either kneeling or sitting). Also present in the instant case, which was not present in the aforementioned cases, is the fact that the deceased here was lying facedown on the floor when most of the knife wounds were inflicted. A rational jury could perceive this as showing a wanton and callous disregard for human life.

A different conclusion could be drawn herein by comparing our holding in (Sammie) Smith v. State, 779 S.W.2d 417 (Tex.Crim.App.1989). In this case, the defendant committed murder in the course of a sexual assault. The evidence in the case showed that the defendant had been spraying several apartments for insects. At one point in time, he confided to a yardman the hope “that while he was there spraying the apartments ... that one of these girls live in, that maybe he would get lucky and one of them would want to lay him when he went inside the apartment to spray.” Id. at 420. After gaining entry to the deceased’s apartment, the defendant tied the deceased to the headboard of her bed and sexually assaulted her. Id. at 419. He then untied her and stabbed her fourteen times in the chest and back. In a written confession, the defendant explained: “After I raped her, I decided to kill her and kind of went crazy for a few minutes.” Id. A forensic pathologist presented testimony attempting to account for this latter behavior. He explained to the jury that when a person is stabbed, he starts bleeding internally. This then causes less blood or oxygen-poor blood to go to the heart resulting in heart failure and other physical manifestations like the person making odd noises and foaming at the mouth. A defendant might then engage in a behavior of “over-kill[ing]” as an attempt to make the victim’s body stop reacting in this manner.

We noted in Smith that the defendant’s “hot-blooded nature” and the fact that he was looking for someone to have sex with, coupled with the presumption that the defendant did eventually commit the offense, supported an inference that the defendant was actually searching for potential “victims” on that day. However, we inexplicably held that the inferences that the jury might have drawn from this behavior and the defendant’s comments were not sufficient to support the jury’s affirmative answer to the issue on future dangerousness.

Notwithstanding the Smith decision, the series of events in the instant ease is distinguishable. In the current scenario, evidence exists in the record that appellant and Wort-mann went to two or three different 7-11’s, ostensibly because they were supposed to reconnect with their friends, but were not sure quite where this was to happen. While this could have been interpreted as neutral behavior by the jury, a rational jury could also have inferred that they were looking for a place to commit a robbery. Furthermore, appellant admitted that he and Wortmann discussed how easy it would be to commit a robbery where they were — obviously a discussion of illegal activity. Then, with the admitted intention of using his knife to threaten or scare the clerk, appellant entered the store intent upon committing a robbery. Again, a rational jury could have concluded that this manifested an intent to use an admittedly potentially deadly weapon and could evidence a total disregard for the sanctity of human life.

Finally, while testimony was offered in Smith as to why the defendant might have stabbed his victim so many times, no such explanation was given in the present case except for appellant’s simple statement that he did not know why he stabbed the deceased.

In addition to the above, the State also showed that, while appellant did not have an apparent adjudicated history of criminal behavior, he intentionally and habitually disobeyed the law with behavior such as his blatant (and apparently frequent) underage drinking and shoplifting. His actions in lying to the police about the actual events of the crime likewise show a complete disrespect for the law and authority.⁷

Given the brutal facts of the stabbing itself, including the fact that the majority of the knife thrusts were into the back of an already fallen -victim; the conflicting testimony as to why appellant decided to commit a robbery; the number of lies that he told the police; and his apparent disregard for the law and authority; we conclude that a rational jury could have determined beyond a reasonable doubt that appellant would be a continuing threat to society. Dinkins, supra. Point of error one is overruled.

Appellant complains in his second and third points of error that the trial court erred in refusing to submit a charge to the jury that a person found guilty of capital murder and assessed a life sentence must serve thirty-five (35) calendar years before becoming eligible for parole. He alleges that this was in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Appellant relies primarily on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as his authority-

In (Robert) Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.), cert. denied, — U.S.-, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), similar issues were presented to this Court. Pursuant to the presentation of those issues, we engaged in a comprehensive discussion of Simmons as it relates to the law in Texas. We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial, thus, it is not error for a trial court to refuse to admit testimony concerning parole. See Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we “absolutely rejectfed]” the premise that Simmons has been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction which is the subject of these points was appropriately refused by the trial court. Smith, supra. Appellant has given us no reason to revisit our analysis of Smith or provided us with any reason why Smith should not control in this case. See Broxton v. State, 909 S.W.2d 912 (Tex.Crim.App.1995). Points of error two and three are overruled.

In point of error four, appellant claims the trial court erred in refusing to grant his request to submit the mitigation special issue to the jury only in the event the jury answered special issue number one on future dangerousness in the affirmative. Appellant claims that this was a violation of “the Due Process Clause of the United States Constitution and the right to effective assistance of counsel as guaranteed by Article [sic] of the United States Constitution.” Appellant cites no authority for his proposal. We hold this point to be multifarious and inadequately briefed, thus presenting nothing for review. Tex.R.App.Proc. 74(f). Point of error four is overruled.

Appellant avers in point five that the trial court erred in refusing to define the word “militates” in the punishment charge. We disagree. Words which are not statutorily defined are to be given their usual meanings and no specific instructions are required. Garcia v. State, 887 S.W.2d 846, 859 (Tex.Crim.App.1994), cert. denied, — U.S. —, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). “Militate” is such a word that can be given its ordinary meaning. Point of error five is overruled.

In related point six, appellant contends that the trial court erred in denying his request to substitute the word “militates” for the term “mitigates” in paragraph four of the punishment charge.⁸ Appellant argues that the word, as it is statutorily used, communicates a message opposite to that.intended. As appellant phrases it:

Use of the word “mitigates” with the phrase “against the imposition of the death penalty” creates a double negative and tells the jury to consider the evidence with a view toward softening their tendency not to give the death penalty rather than a view toward lessening their desire to give the death penalty.

[Emphasis in original.]

Appellant concedes in his brief that the trial court’s instruction essentially tracks the statutory language of Texas Code of Criminal Procedure article 37.071 § 2(d)(1). Following the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge. See Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994), cert. denied, — U.S. -, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995) (A jury charge which tracks the language of a particular statute is a proper charge on the statutory issue). Appellant’s sixth point of error is overruled.

Finding no reversible error, we affirm the judgment of the trial court.

CLINTON, J., dissents.

1 . The crime was committed in July, 1993.

2 . Appellant testified that he had not eaten anything prior to the trip and that he did not eat any food at the nightclubs.

3 .According to testimony from the medical examiner, the deceased received two stab wounds to the neck, both of which were fatal. Each wound pierced an artery causing the deceased to lose a great deal of blood in a very short period of time. Plus, one wound to the top of the shoulder appeared somewhat irregular in that it could have been caused by a twisting of the knife or by more than one blow to the same area. Defensive cuts and scratches were apparent on the deceased’s hands. Before the deceased died, he was able to call for an ambulance.

4 . Appellant is shown to have given conflicting statements at different times as to the exact course of events after he exited the store. In one, Wortmann was driving slowly in order for him to jump into the car, while in another, Wortmann had taken off and appellant went running after him.

5 . Appellant testified that he was not having problems in school, he just preferred to skip school and go down to Corpus Christi, so he eventually dropped out.

6 . The jury is permitted to look at several factors in its review of future dangerousness including, but not limited to:

1. the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;

2. the calculated nature of the defendant’s acts;

3. the forethought and deliberateness exhibited by the crime’s execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant's age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the offense;

7. psychiatric evidence; and

8. character evidence.

Barnes, supra.; Keeton, supra. These factors are also helpful in this Court's evaluation of the sufficiency of the evidence of future dangerousness.

7 . Finally, while other evidence such as psychological testimony was not presented, the absence of this evidence does not automatically undermine a jury’s affirmative answer to the punishment issue on future dangerousness. Dinkins, 894 S.W.2d at 358 (and cases cited therein).

8 . Paragraph four reads as follows:

You shall consider all evidence submitted to you during the whole trial as to defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.

[Emphasis added.]