Hussein Martinez A/K/A Jose Martinez v. State ( 2002 )

                                   NUMBER 13-00-678-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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HUSSEIN MARTINEZ A/K/A JOSE MARTINEZ,                          Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                         On appeal from the 24th District Court

                                 of Calhoun County, Texas.

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                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                Opinion by Justice Rodriguez

A jury found appellant, Hussein Martinez, also known as Jose Martinez, guilty of murder and assessed punishment at ninety-nine years in the Institutional Division of the Texas Department of Criminal Justice.  We affirm.

Appellant=s counsel has filed a brief in which he concluded that this appeal is wholly frivolous and without merit.  In the brief, counsel discusses the record, and reviews jurisdiction, pre-trial matters, voir dire, opening statement, the State=s case-in-chief, Martinez=s case-in-chief, objections ruled adversely to Martinez, the court=s charge, argument of counsel, sufficiency of the evidence, and punishment.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 744-45 (1967), and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel does, however, raise three arguable points of error which we now address.

By his first point, Martinez contends the trial court erred in not allowing a witness to assert his Fifth Amendment privilege in the jury=s presence.  Angel Bernon, a co-defendant, was called to testify. Counsel for Bernon objected to his client being called as a witness, and Bernon invoked his Fifth Amendment privilege against self incrimination outside the presence of the jury.  A witness=s Fifth Amendment privilege against self incrimination overrides a defendant=s right of compulsory process of witnesses under the Sixth Amendment.  Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986).  A defendant has no right to have a witness invoke his Fifth Amendment privilege in the presence of a jury.  Id. Once the potential witness indicates that he will invoke his constitutional privilege, the court need not call him to the stand before the jury.  See id.  Furthermore, rule 513 of the Texas Rules of Evidence provides A[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.@  Tex. R. Evid. 513(b).  Therefore, the court did not err when he denied Martinez=s counsel=s request to call Bernon to the stand in the jury=s presence. Martinez=s first arguable point of error fails. 

By his second point, Martinez contends the trial court erred in allowing testimony regarding his gang membership.  At the punishment phase, the State called Steve Devillies, a supervisor with the City of Pasadena Police Department Gang Task Force. Officer Devillies testified that Martinez was a member of the South Side Chucos, a gang known for a litany of crimes, and that Martinez associated with gang members.  Gang membership can be offered by the State as evidence of a defendant=s character, which is relevant to punishment.  Tex. Code Crim. Proc. Ann. art. 37.07(3)(a)(1) (Vernon Supp. 2002); Beasley v. State, 902 S.W.2d 452, 455-56 (Tex. Crim. App. 1995); Anderson v. State, 901 S.W.2d 946, 949-50 (Tex. Crim. App. 1995).  Martinez=s second arguable point of error fails.

Finally, by his third point, Martinez contends the trial court erred by admitting  statements about his gang membership; statements made more than two years earlier during an unrecorded, oral, custodial interrogation. During the punishment phase, the State called Officer John R. Bangilan to testify regarding gang admissions made by Martinez on September 20, 1996.  Martinez admitted then that he was a member of the South Side Chucos, Aassociated with a gang from Pasadena called the Ruthless Assassins.@

AGenerally, a statement or confession, as contemplated by Miranda and article 38.22, relates to a crime already committed.@  Norrid v. State, 925 S.W.2d 342, 345 (Tex. App.BFort Worth 1996, no pet.).  The complained-of statements were made in 1996.  The murder for which Martinez was convicted occurred on April 24, 1999.  Furthermore, the admission of improper evidence is harmless if the same facts are proved by other proper testimony.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  In this case, the same gang evidence was provided earlier through the testimony of Officer Devillies.  No objection was made to that testimony.  Thus, error, if any, was waived.  Accordingly, Martinez=s third arguable point of error fails.

In Pension v. Ohio, 488 U.S. 75 (1988), the Supreme Court advised appellate courts that upon receiving a Afrivolous appeal@ brief, they must conduct Aa full examination of all the proceeding[s] to decide whether the case is wholly frivolous.@  Id. at 80.  We have, likewise, reviewed the record and, finding nothing that would arguably support an appeal, agree with counsel that the appeal is wholly frivolous.  See Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). 

Counsel provided Martinez with a copy of the brief and advised him of his right to file a pro se brief. The time for filing his brief has elapsed and no such response has been received by this Court.  Accordingly, the judgment of the trial court is AFFIRMED.

Additionally, in accordance with Anders, counsel has requested permission to withdraw as counsel for Martinez. See Anders, 386 U.S. at 744. We grant Martinez=s attorney=s motion to withdraw.  Furthermore, we order him to notify Martinez of the disposition of his appeal and of the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).                                                          

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 2nd day of May, 2002.