Joe Martinez v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00074-CR
JOE MARTINEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2017-1416-C2
MEMORANDUM OPINION
The grand jury indicted Joe Martinez for eight counts of indecency with a child
younger than fourteen years of age by contact. The State amended the indictment on two
occasions and the trial proceeded on eight counts of indecency with a child younger than
seventeen years of age.
After a jury trial, the jury convicted Martinez on all eight counts of the indictment,
assessed punishment on each count at confinement for twenty years, and imposed a fine
of $5,000 on each count. The trial court sentenced Martinez accordingly and ordered that
the sentences in relation to counts II and III were to run consecutively; otherwise, the
sentences were to run concurrently. We reverse and render in part and affirm in part.
Jane Doe (J.D.) is the individual named by the State as the person upon whom
Martinez committed the offenses alleged in the indictment. Jane Doe is a pseudonym.
J.D. was born on August 8, 1989. She first met Martinez through a program called
Young Marines. Young Marines is a disciplinary program as well as a program for young
adults or children who want to join the military when they become adults. Martinez
started the Greater Waco Young Marines program in Waco.
Disciplinary problems led J.D.’s older brother, Tony, to join the Young Marines.
J.D. joined the Young Marines when she was in the fourth grade and around ten years
old. J.D. joined, not because of disciplinary reasons, but because she wanted to do
something with her brother.
Rebecca Martinez is J.D.’s mother. At some point, Rebecca met Martinez and later,
on December 31, 2001, they were married. J.D. testified that Martinez made her
uncomfortable even before her mother married him. He “excessively complement[ed]
my body, my looks, my blond hair, hugging me differently than I had been hugged
before, holding me differently, rubbing my back differently.” J.D. told her mother that
Martinez made her uncomfortable, but her mother became angry with her and told her
that she was wrong, and that Martinez had done nothing wrong.
Martinez v. State Page 2
J.D. testified about an incident that took place about six months after Rebecca and
Martinez married; J.D. was twelve years old and in the sixth grade at the time. Martinez
began to scratch her back as he had done before. However, this time instead of scratching
J.D.’s back on the outside of her t-shirt, as he had always done, he put his hand under her
shirt. Martinez scratched back and forth from her bra line to the top of her basketball
shorts; J.D. had just begun to wear a bra. As he scratched J.D.’s back, Martinez put his
fingers under her bra strap and “went from side to side on my back and then he went to
the side.” J.D. further testified that “[w}here my side and my arm were meeting, it
stopped his hand from fully going around.” That incident is not one of the offenses
charged in this case.
J.D. did not tell her mother about the incident. However, she did tell Tony. Tony
suggested that J.D. talk to Rebecca; she did. Martinez was present at the time of the
conversation. Martinez and Rebecca told J.D. that she was just hormonal and
overreacting. Even after that conversation, Martinez continued to support J.D. in her
activities and in her academics; he referred to as his favorite.
J.D. also testified that from the time that J.D. was twelve until she was fourteen,
Martinez continued to touch her “as far as rubs, scratches, tickles on my back over my
shirt or with my feet or my legs.” However, J.D. said that Martinez did nothing
“inappropriate” to her during that time.
Martinez v. State Page 3
According to J.D., things changed in the fall of her freshman year when J.D. was
around fourteen. Martinez, as he had done many times before, began to rub J.D.’s feet
and her legs up to her knee. This time, though, something different happened. Instead
of stopping at J.D.’s knee, Martinez began to rub J.D.’s inner thigh and moved up her
thigh and, “[as] he would rub my thigh, every so often he might drag his fingers from the
front sides up my vagina and down and then go back to rubbing my leg.” J.D. could not
recall how many times that Martinez touched her vagina on this occasion, but she did
remember that it was several times, more than one but not over five.
When asked how often Martinez touched her in this way, J.D. testified, “[n]ot
often. Two to three times a year for two to three years.” She clarified her answer: “I
would say two years,” around eight times.
The inappropriate touching stopped when J.D. started driving; she stayed away
from Martinez. Also, J.D. began to put up barriers such as putting a pillow between her
legs, wrapping herself tightly in a blanket, and other things. Also, Rebecca laid down
several rules about what J.D. could do around Martinez including what clothing that she
could wear, leg rubs, and positioning when Martinez gave J.D. driving instructions.
Finally, J.D. moved out of the house when she was eighteen.
Madison VanMeter and J.D. were friends. Madison recalled that at some point,
she, J.D. and J.D.’s sister, Brittany, had a conversation. As best we can tell from the record,
this conversation took place before the State became involved. Madison began discussing
Martinez v. State Page 4
a personal matter that was pending in the District Attorney’s office; she had made an
outcry in which she asserted that she had been sexually abused by her stepfather.
Madison’s situation contained similar allegations to those of J.D. J.D. became very
emotional and began to cry when Madison discussed her own situation.
During those conversations, J.D. telephoned her brother, Tony. After the phone
calls with Tony, J.D. contacted the Advocacy Center. The staff at the Advocacy Center
advised J.D. to confront Martinez in the hopes that he would admit to the abuse and
apologize. They would take another approach if he did not admit to and apologize for
the abuse.
J.D., Tony, Rebecca, Brittany, and Martinez met at Martinez’ house. J.D.
confronted Martinez. According to J.D., Martinez said, “If I knew the things that I had
done bothered you for this long, then I would have apologized sooner.” J.D. asked
Martinez if he knew that he had a problem. Martinez shook his head “yes” as he began
to cry. J.D. testified that she accepted the apology and had closure.
On November 30, 2009, when J.D. was twenty years old, she gave birth to a
daughter. J.D. was afraid that Martinez might harm her daughter if he were around her;
J.D. decided to talk about what Martinez had done to her. She talked to her daughter’s
father, Daniel Weiss, and Daniel’s mother, Mary Weiss. Daniel and Mary both testified
that J.D. never told them that Martinez touched her vagina, just that Martinez had
touched her “inappropriately.”
Martinez v. State Page 5
Later, J.D.’s sister, Brittany, gave birth to a daughter. Brittany and her daughter
lived with Martinez and Rebecca. J.D. felt that her niece needed to be protected and she
decided to contact the police.
Apparently, before she contacted the police, both the Texas Department of Family
and Protective Services, Child Protection Services, and the Robinson Police Department
became involved. The agencies became involved in April 2014. Jarvis Lewis handled the
referral for CPS. Sergeant Michael Noel investigated the case for the Robinson Police
Department.
Lewis testified that CPS received a referral based on an outcry that J.D. had made.
J.D. testified that she did not contact CPS. Lewis’s concern was for J.D.’s young niece
who was living in Martinez’s home. On April 11, 2014, Lewis interviewed Rebecca and
Brittany and put a safety plan into effect out of concern for the safety of Brittany’s
daughter. Under the safety plan, Brittany and her daughter were to move in with her
brother, Tony, and his wife.
Lewis interviewed Martinez the next day. After the interview, Martinez agreed to
vacate the home so that Brittany and her young daughter could move back into the home.
Later, Lewis interviewed J.D. and after the interview, he forwarded the case to law
enforcement.
Michael Noel, then a sergeant with the Robinson Police Department Criminal
Investigation Division, received the referral in April 2014. Noel interviewed J.D., Tony,
Martinez v. State Page 6
Madison, Rebecca, Mary Weiss, and Martinez. Over Martinez’s objection, Noel testified
that he noticed no inconsistencies or “red flags” in the statements made by J.D., Tony,
Weiss, or Madison when compared to other statements that they had made or when
compared to each other’s statements. To the contrary, Sergeant Noel felt that Rebecca
was neither forthcoming nor honest. It was clear to Sergeant Noel that Rebecca had a
negative opinion of J.D. Sergeant Noel also found inconsistencies in statements that
Martinez gave to him and those that Martinez gave to CPS.
At the conclusion of his investigation, Sergeant Noel felt that he had enough
probable cause to arrest Martinez for indecency with a child by touching J.D.’s vagina;
the trial of this case ensued.
In his first issue on appeal, Martinez asserts that the evidence is insufficient to
support “Counts 1 through 6 of the indictment, therefore this Court should vacate Counts
1 through 6.” He contends that “[t]he State failed to prove the elements of indecency with
a child because it did not admit evidence of any illegal conduct prior to the end of 2014.”1
We take the essence of Martinez’s argument to be based upon J.D.’s testimony that
Martinez did nothing inappropriate to her between the back rubbing incident when she
was twelve years old and the first time that he rubbed her vagina when she was about
fourteen. Therefore, Martinez claims that because, according to J.D.’s testimony, there
1We believe that Martinez intended to refer to “the end of 2004” instead of 2014, because in the body of his
argument he maintains that “any counts that allegedly occurred prior to the end of August 2004 must be
vacated due to legally insufficient evidence.”
Martinez v. State Page 7
are no events to tie to the “on or about” dates alleged in the first six counts of the
indictment, the evidence is insufficient to support convictions on those counts.
The State counters that the “on or about” language in the indictment permits them
to prove a date other than that alleged so long as the date is anterior to the indictment
and within the statute of limitations applicable to the offense. Therefore, claims the State,
the evidence is sufficient to support conviction on all eight counts of the indictment.
We note that Martinez’s complaint is not one about notice, but, rather, is directed
at the sufficiency of the evidence.
We review a challenge to the sufficiency of the evidence under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland
2010, pet. ref'd). Under the Jackson standard, we review all the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.
In our review, we consider all evidence admitted at trial, including any evidence
that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex.
Crim. App. 2013). We defer to the factfinder's role as the sole judge of the witnesses'
credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899.
This standard accounts for the factfinder's duty to resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Jackson,
Martinez v. State Page 8
443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved any
conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778.
We measure sufficiency of the evidence by the elements of the offense as defined
in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). The hypothetically correct jury charge is one that “accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State's burden
of proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Id.Absent circumstances not relevant here, it is not necessary for the State to allege a
specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997).
The general proposition in cases that involve “on or about” dates in indictments is set
forth by the court in Sledge: “It is well settled that the ‘on or about’ language of an
indictment allows the State to prove a date other than the one alleged in the indictment
as long as the date is anterior to the presentment of the indictment and within the
statutory limitation period.” Id. at 256 (citing Thomas v. State, 753 S.W.2d 688, 693 (Tex.
Crim. App. 1988). The Sledge court also quoted the following from Thomas: “[w]here an
indictment alleges that some relevant event transpired ‘on or about’ a particular date, the
accused is put on notice to prepare for proof that the event happened at any time within
Martinez v. State Page 9
the statutory period of limitations.” Sledge v. State, 953 S.W.2d at 256 (quoting Thomas v.
State, 753 S.W.2d at 693) (emphasis added).
In Sledge, the State charged Sledge, in a two-count indictment, with the offenses of
aggravated sexual assault and indecency with a child. The State alleged that the offenses
occurred “on or about” August 31, 1988. The State used the date of August 31, 1988,
because that was the last time that the alleged victim and defendant had any contact.
However, at trial, the State proved that the alleged misconduct occurred in 1986 and 1987.
Against Sledge’s claim that the evidence was insufficient due to the conflicting date in
the indictment and the proof, the court held that the State could properly proceed on the
earlier dates and that the evidence was sufficient to support the conviction. Sledge v. State,
953 S.W.2d 253 (Tex. Crim. App. 1997).
The court in Sledge disagreed with the appellant’s claim that the evidence was
insufficient. The court disagreed because “the dates of the offenses proven—1986 and
1987—are anterior to the presentation of the indictment . . . and are within the ten year
limitation period.” Sledge v. State, 953 S.W.2d at 256 (emphasis added).
The defendant in Sanchez v. State, 400 S.W.3d 595 (Tex. Crim. App. 2013) solicited
sex online from an undercover agent who pretended to be “Molly,” a fifteen-year-old girl.
The solicitations began in a chat room in April 2004. The defendant repeatedly asked
“Molly” if she would have sex with him. These conversations took place off and on for
two years and focused on sex.
Martinez v. State Page 10
On January 24, 2006, “Molly” agreed to meet the defendant at her home and have
sex. Rather than meet “Molly,” the defendant met the undercover agent.
On appeal, the court set out the general rule that we have set out above. The court
then wrote: “What that means in the instant case is that the State could have obtained a
conviction for any solicitations by appellant to ‘Molly’ that occurred on or before the date
in the indictment up to the statute of limitations cutoff date.” Sanchez v. State, 400 S.W.
3d at 600 (emphasis added). The court continued, “no conduct the State attempted to
prove occurred outside that time frame.” Id.
The cases that we have discussed have a common denominator: the State proved
that a relevant event or occurrence transpired that was tied to the “on or about” date. The
case before us is different as to some of the counts in the indictment.
Because of the nature of the record in this case, in order to provide a framework
from which we can determine the dates involved, it is necessary that we begin with the
time when, according to J.D., Martinez placed his fingers under J.D.’s bra strap. The
evidence shows that event occurred when J.D. was twelve years old and in the sixth
grade. Based upon J.D.’s date of birth, the testimony that J.D. was twelve years old and
in the sixth grade when Rebecca and Martinez were married in December 2001, and J.D.’s
testimony that the event took place about six months after Rebecca and Martinez married,
it appears that this event occurred in the summer 2002. As far as the record here reveals,
that incident did not give rise to any criminal charges.
Martinez v. State Page 11
J.D. testified, without contradiction, that nothing inappropriate happened after the
bra incident until the fall of her freshman year when she was “about” fourteen years old.
It was then that Martinez began to touch J.D.’s vagina through her underwear. As J.D.
testified, “leg rubs turned into inappropriate genital touching.” He touched “me
inappropriately on my vagina.”
In the fall of 2004, J.D. was “about” fourteen (she was fifteen in August 2004) and
was a freshman. Count VI of the indictment reflects that the date of the offense covered
by Count VI is August 1, 2004. That corresponds to the time that J.D. says that the abuse
happened—in the fall of her freshman year when she was “about” fourteen. J.D. testified
that Martinez touched her vagina two or three times a year for two years after that. Count
VII alleges a date of January 1, 2005. In Count VIII the State alleged a date of August 1,
2005. We have outlined the testimony as to specific events tied to those dates and those
dates satisfy the general rule in that they are anterior to the presentation of the indictment
and within any applicable limitations period.
Earlier in this opinion, we acknowledged the general rule that “on or about”
language in an indictment allows proof that an event occurred anterior to the
presentment of the indictment and within the appropriate period of limitations.
Nevertheless, as we have noted, there must be some relevant event tied to that “on or
about” language.
Martinez v. State Page 12
The “on or about” dates alleged in Counts I through V of the indictment are,
respectively: January 1, 2002, August 1, 2002, January 1, 2003, August 1, 2003, and January
1, 2004. There is no evidence in this record to show that there is some relevant event tied
to the allegations in Counts I through V of the indictment. In fact, J.D. testified to the
contrary when she said that nothing inappropriate happened before the times alleged in
Count VI in the indictment. Although J.D. testified that Martinez touched her
inappropriately on her vagina, she said that did not begin until she was “about” fourteen,
a freshman, and in the ninth grade. In effect, J.D. essentially and effectively denied the
existence of the allegations in the first five counts of the indictment in this case.
Again, the State has relied on the general rule as to “on or about” language in
indictments. We agree with the State as to the allegations contained in Counts VI, VII,
and VIII. J.D. testified that after her freshman year, Martinez continued to touch her
inappropriately on her vagina for a period of at least two years thereafter. The dates of
the offenses proven in Counts VI, VII, and VIII are anterior to the presentment of the
indictment and within any limitations period.
Martinez also contends that there is no evidence of any prohibited sexual contact.
He argues that the witnesses all testified about “inappropriate” touching, not contact
with J.D.’s breast, anus, or vagina. Dr. William Lee Carter, a psychologist, testified that
a person might use different statements depending on who that person is talking to.
“Inappropriate touching” can have a very broad meaning. Dr. Carter testified that the
Martinez v. State Page 13
question to ask is “is she talking about the same matter to all those different parties.” We
believe that J.D. explained what she meant by inappropriate touching. As J.D. testified,
“leg rubs turned into inappropriate genital touching.” She further testified that Martinez
touched “me inappropriately on my vagina.” J.D. was very explicit about what she meant
by inappropriate touching.
We hold that the evidence is insufficient to support the convictions on Counts, I,
II, III, IV, and V. We, therefore, sustain Martinez’s first issue on appeal as it relates to
those counts and enter a judgment of acquittal. We overrule Appellant’s first issue on
appeal as it relates to Counts VI, VII, and VIII and hold that the evidence is sufficient to
support convictions on those counts.
In his second issue on appeal, Martinez asserts that the trial court abused its
discretion when it allowed Sergeant Noel to testify, over objection, about any “red flags”
or inconsistencies that he noticed during the interviews that he conducted in this case.
Investigator Noel testified in detail about his training and ability in the field of deception
detection. He noticed no “red flags” or inconsistencies in the things told him by those
whom he interviewed except for Rebecca and Martinez.
We review a trial court's decision to admit evidence under an abuse of discretion
standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Walker v. State, 406
S.W.3d 590, 593 (Tex. App.—Eastland 2013, pet. ref'd). A court abuses its discretion if its
decision lies outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667,
Martinez v. State Page 14
682 (Tex. Crim. App. 1992). We disregard nonconstitutional errors that do not affect
substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error
has a substantial effect or influence on the jury's verdict. Casey v. State, 215 S.W.3d 870,
885 (Tex. Crim. App. 2007). However, we will not reverse a conviction for the erroneous
admission of evidence if, after we have reviewed the whole record, we have fair
assurance that the error did not influence the jury, or had but a slight effect upon it. Cobb
v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002).
Even if we were to hold that the trial court abused its discretion when it admitted
Sergeant Noel’s testimony, which we do not, we would not reverse on that ground.
Except for Martinez, each of the people about whom Sergeant Noel spoke also testified
before the jury. The jurors had the opportunity to hear and observe each of the witnesses
as they testified. J.D.’s detailed account of the events remained consistent throughout the
years. Although J.D. often used the term “inappropriately touched” in her various
outcries, at trial she explained that term as “inappropriate genital touching” and
“inappropriately touched my vagina.”
Insofar as Martinez is concerned, the jury saw and heard a recording of Sergeant
Noel’s interview with Martinez; the jury could draw its own conclusions as to Martinez’s
credibility.
Because the jurors heard and saw the witnesses testify in open court, and because
the jurors saw Martinez’s interview with Sergeant Noel, those jurors could form their
Martinez v. State Page 15
own judgment as to the credibility of the witnesses and the weight to be given to their
testimony.
We hold that even if the trial court erred when it allowed Sergeant Noel’s
testimony, as Martinez claims, we are convinced that the error did not have a substantial
effect or influence upon the jury’s verdict. We overrule Martinez’s second issue on
appeal.
The jury charge is the subject of Martinez’s third issue on appeal. In its charge to
the jury, the trial court instructed the jury that: “‘Pseudonym’ means a set of initials or a
fictitious name chosen by a victim to designate the victim in all public files and records
concerning the offense, including police summary reports, press releases, and records of
judicial proceedings.”
In the application paragraph relative to each of the eight counts in the indictment
the trial court asked, in part, whether Martinez “engage[d] in sexual contact with Jane
Doe, a pseudonym, by touching the genitals of Jane Doe, a pseudonym. . .” Martinez
argues that such language is tantamount to the trial court’s repeatedly referring to J.D. as
a victim when that was a contested issue in the case.
When this case went to trial, article 57.01 of the Texas Code of Criminal Procedure
defined “pseudonym” as meaning “a set of initials or a fictitious name chosen by a victim
to designate the victim in all public files and records concerning the offense, including
police summary reports, press releases, and records of judicial proceedings.” TEX. CODE
Martinez v. State Page 16
CRIM. PROC. 57.01(2); repealed by Acts 2019, 86th Leg., ch. 469 (H.B. 4173) §3.01(2), eff.
Jan. 2, 2021. The trial court’s instruction tracked that statutory provision.
In Martinez, the Texas Court of Criminal Appeals wrote: “Following the law as it
is set out by the Texas Legislature will not be deemed error on the part of a trial judge.”
Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing Riddle v. State, 888
S.W.2d 1, 8 (Tex. Crim. App. 1994) (a jury charge that tracks the language of a particular
statute is a proper charge on the statutory issue).
Martinez relies on Talkington v. State, 682 S.W.2d 674, 675 (Tex. App.—Eastland
1984, pet. ref’d). In Talkington, the issue was whether the sexual encounter, which
admittedly occurred, was consensual. Nevertheless, in its jury charge, the trial court
referred to the complainant several times as the “victim.” There was no issue as to the
use of the term “pseudonym” in Talkington because that term was not used in the jury
charge in that case.
Because the trial court followed the law as set out by the legislature, it did not err.
We overrule Martinez’s third issue on appeal.
In his fourth issue on appeal, Martinez complains that statutory provisions
regarding the admissibility of unadjudicated offenses during the punishment phase of a
criminal case are unconstitutional.
During the punishment phase of the trial, the trial court admitted evidence of an
unadjudicated offense as related in an outcry made by Brittany’s two-and one-half year-
Martinez v. State Page 17
old daughter. She had made an outcry wherein she said that her Poppop tickled her on
her “hiney.” “Hiney” was the word that she used to describe her vagina; “Poppop” is
Joe Martinez.
The Texas Code of Criminal Procedure Art. 37.07(3)(a) provides that, at the
punishment stage of trial:
…[e]vidence may be offered by the state and the defendant as
to any matter the court deems relevant to sentencing,
including but not limited to the prior criminal record of the
defendant,…and, notwithstanding Rules 404 and 405, Texas
Rules of Evidence, any other evidence of an extraneous crime
or bad act that is shown beyond a reasonable doubt by
evidence to have been committed by the defendant or for
which he could be held criminally responsible, regardless of
whether he has previously been charged with or finally
convicted of the crime or act…
TEX. CODE CRIM. P. ART. 37.07(3)(a)(1) (West 2019).
Martinez urges us to hold that article 37.07 of the Texas Code of Criminal
Procedure is unconstitutional in that it violates his right to due process. Martinez lays
out three reasons for his claim that the statute is unconstitutional and deprives either him
or defendants in general of due process rights: (1) it deprives defendants of their
constitutional right to an indictment; (2) defendants are not afforded the same evidentiary
rights at the punishment phase that they are afforded at the trial on guilt/innocence; and,
(3) the standard for determining guilt of unadjudicated offenses is relaxed during the
punishment phase.
Martinez v. State Page 18
Article 37.071 of the Texas Code of Criminal Procedure, applicable to capital cases,
contains similar unadjudicated offense provisions as those found in article 37.07. TEX.
CODE CRIM. P. ART. 37.071(2)(a)(1) (West 2019).
The appellant in Banda, a capital case, claimed that the “introduction of
unadjudicated extraneous offenses at the punishment phase, violates his rights to due
process, equal protection, and a reliable sentencing process.” The court noted that it had
“repeatedly held that unadjudicated offenses may be introduced during capital
sentencing.” Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994). In view of the
court’s holding in Banda, we are not inclined to hold otherwise as to article 37.07. (See also
Parker v. State, 51 S.W.3d 719 (Tex. App. —Texarkana 2001, no pet.) (“Furthermore, Article
37.07, as enacted by the Legislature, allows each individual sentencing court to dictate
what evidence may be presented at the punishment phase of a trial. Any matter the court
deems relevant to sentencing is admissible.” Id. at 726). We overrule Martinez’s fourth
issue on appeal.
We enter a judgment of acquittal as to Count I, Count II, Count III, Count IV, and
Count V of the indictment. Otherwise, we affirm the judgment of the trial court.
JIM R. WRIGHT
Senior Chief Justice
Martinez v. State Page 19
Before Chief Justice Gray,
Justice Smith, and
Justice Wright2
Reversed and rendered in part and affirmed in part
Opinion delivered and filed April 27, 2022
Do not publish
[CR25]
2
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Martinez v. State Page 20