Charles Eugene Martinez v. the State of Texas ( 2024 )

Opinion issued May 30, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00390-CR
NO. 01-22-00391-CR
———————————
CHARLES EUGENE MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case Nos. 1464975, 1464976
MEMORANDUM OPINION
A jury convicted appellant, Charles Eugene Martinez, of two counts of the
second-degree felony offense of sexual assault of a child and assessed his
punishment at fifteen years’ confinement for each count.1 The trial court ordered the
sentences to run consecutively.
In five issues, Martinez argues that (1) the trial court erred by admitting
extraneous offense testimony from child victims other than the complainant; (2) the
trial court erred by excluding the testimony of a witness concerning the
complainant’s truthfulness; (3) the trial court erred by failing to grant Martinez’s
motion for mistrial following an improper closing argument by the prosecutor;
(4) the trial court erred by denying four of Martinez’s challenges for cause; and
(5) Martinez was denied his right to a speedy trial. We affirm.
Background
In 2008, M.M. (“Matthew”) and his then-wife decided to adopt two sisters
from Estonia, the complainant M.S.M. (“Megan”) and K.M. (“Katherine”).2 Megan
was eleven years old at the time, and Katherine was thirteen. Shortly after Matthew
adopted Megan and Katherine, he and his wife divorced, and he was granted
conservatorship over the girls.
1
See TEX. PENAL CODE § 22.011(a)(2)(C). Trial court cause number 1464976
resulted in appellate cause number 01-22-00390-CR. Trial court cause number
1464975 resulted in appellate cause number 01-22-00391-CR.
2
In this opinion, we refer to the complainant, her family members, and two
extraneous offense witnesses by pseudonyms to protect their privacy.
2
Matthew and the girls moved into a house in the Willowbrook area of Houston
in 2009. Their neighbors were Charles Martinez and his wife, Michelle. Matthew
found Martinez to be outgoing and welcoming, and they quickly developed a
friendship. Matthew began attending Bible study at Martinez’s house, and he also
became involved with a local baseball team that Martinez played for and went on
fishing trips with Martinez. Martinez represented that he was an evangelist, and he
traveled frequently as part of his ministry. Martinez’s faith and friendly demeanor
caused Matthew to place trust in him.
At first, to Matthew’s knowledge, Martinez had a “normal relationship” with
Megan. Megan would often take care of Martinez’s dogs when he traveled. Martinez
also frequently invited Matthew and his daughters over for dinner, and Megan would
sometimes go over early and help Michelle prepare the meal. Martinez also owned
horses that were stabled at a ranch in Waller County, and Martinez’s family and
Matthew’s family would ride horses together.
When Megan was around fourteen years old in 2011, Matthew started feeling
suspicious about the relationship between Martinez and Megan. One day, Matthew
returned home from work and could not find Megan. He repeatedly called both
Megan and Martinez, and neither one of them answered. Finally, Martinez answered
his phone and told Matthew that he was with Megan, and they had been riding horses
together. When Matthew expressed confusion over why Megan was with Martinez
3
riding horses, Martinez responded that Megan had told him that she had permission
and he did not know that Matthew was unaware of this. No other adult—such as
Michelle—was present. Although Megan and Martinez reassured Matthew that
nothing inappropriate had happened, Matthew spoke with Martinez and Michelle
about his concerns and decided that his family’s relationship with the Martinez
family needed to slow down.
Over the next several years, relations between the families slowly and
gradually warmed up. Megan would still take care of Martinez’s dogs when he
traveled, and she would sometimes help Michelle with things around the house, but
Matthew tried to avoid having Megan be alone with Martinez. After the 2011
incident, Matthew did not give permission for Megan to go to the ranch alone with
Martinez.
Megan turned seventeen in the summer of 2014. The following March,
Matthew’s current wife L.M. (“Laura”) reviewed their family cell phone bill and
discovered that Megan and Martinez had been calling and texting each other over a
hundred times a month at all times of the day, including late at night. The quantity
of text messages led Matthew to believe that Martinez and Megan were
communicating about more than whether Megan could take care of Martinez’s dogs,
and Matthew decided to speak to Megan about the situation. Matthew and Laura
were unable to see any text messages from Martinez on Megan’s phone because
4
Megan said that she had deleted them. Matthew asked Megan whether Martinez had
done anything to her, and although she did not answer at first, she finally said, “Yes,
he did it.” Matthew took Megan to the police, and an investigation into Martinez
began. Authorities filed a complaint against Martinez on April 16, 2015, and he was
indicted for two counts of sexual assault of a child on October 13, 2015.
The cases against Martinez were reset multiple times over the next several
years for various reasons, including pretrial discovery matters, Hurricane Harvey,
and the COVID-19 pandemic. On October 28, 2021, shortly before a trial setting in
November 2021, and more than six years after Martinez was indicted, Martinez
moved to dismiss the indictments on speedy trial grounds. After a short non-
evidentiary hearing on November 11, 2021, the trial court denied the motion, stating,
“I know I’ve called this case to trial several times and y’all weren’t ready.” Four
days later, on November 15, 2021, voir dire began, but the parties were unable to
pick a jury and trial was reset for May 2022.
At trial, Megan testified that her first impression of Martinez was that he was
a nice, welcoming man. She got to know him, Michelle, and their adult daughter
Kristen, who lived out of state when Megan first met the Martinez family.3 Megan
3
Although Megan was not sure of the dates, she did remember that Kristen and her
son lived with Martinez and Michelle at some point. She also testified that she
discussed the possibility of babysitting for Kristen with Matthew. Megan did not
remember talking to Kristen about the possibility of living with her.
5
considered her relationship with Michelle to be a friendly one, but she did not view
Michelle as a maternal figure. Megan did not receive texts or calls from Michelle
using Martinez’s phone.
Megan testified that when she was in eighth grade, she arrived home from
school one day and Martinez was outside and asked her if she wanted to ride horses
at the ranch in Waller County. Megan did not inform Matthew about this trip, but
she also did not believe that Matthew would have a problem with her going because
they trusted Martinez and their families were good friends. After spending an hour
or two riding horses, Martinez took Megan to a trailer on the property, laid her down
on a bed, undressed her, and had vaginal intercourse with her. Shortly after this,
Matthew called both Megan and Martinez. Martinez told Matthew that Megan had
received permission to go to the ranch that day, which was not true. After the phone
call, Martinez spoke with Megan and told her not to tell anyone—specifically, her
parents—what had happened, and they also discussed what they would tell Matthew
when they arrived back at Megan’s house.
After this incident, Megan continued to have contact with Martinez, primarily
at his house. Martinez was “really nice” to her, “made [her] feel great,” and brought
her gifts from his travels. When Megan had disagreements with Matthew, she would
go to Martinez, who would “be there for [her]” and would “be on [her] side.” Megan
agreed that she frequently got in trouble at home, and she would occasionally sneak
6
out of the house at night. At one point she wanted to move into Martinez’s house,
and she had discussions with Martinez and Michelle about this, but they told her that
she could not leave her parents’ house before she was eighteen.
Megan estimated that she and Martinez had intercourse on four occasions over
the next several years, and he would sometimes touch her inappropriately after Bible
study meetings. The incidents of intercourse occurred at Martinez’s house. Michelle
was present at the house for at least one incident, although Megan did not see her.
Megan testified that the last occasion occurred in early 2015, after she had turned
seventeen. Megan also testified that she and Martinez texted each other up until the
time her parents found out in March 2015. Some of these texts concerned innocent
topics such as Martinez’s dogs, but other texts were flirtatious and included
declarations of love. Megan deleted all the texts at Martinez’s insistence.
During the guilt-innocence phase of trial, the State called two witnesses—
A.S. (“Alice”) and C.H. (“Crystal”)—to testify concerning extraneous sexual assault
of a child offenses allegedly committed against them by Martinez. See TEX. CODE
CRIM. PROC. art. 38.37, §§ 2(b), 2-a (permitting, in trials for certain sexual offenses
and under certain circumstances, evidence that defendant committed separate sexual
offense “for any bearing the evidence has on relevant matters,” including
defendant’s character). Alice testified that she met Martinez and Michelle at a
Christian ranch for adolescents in Brazoria County around her thirteenth or
7
fourteenth birthday in January 2000 or 2001. The first night she was present at the
ranch, she woke up to Martinez touching her breasts underneath her shirt. Martinez
touched her vagina over her underwear, but something in the house startled him and
he left the bedroom. The following day, after Michelle left the house, Martinez
touched Alice inappropriately a second time and only stopped because Michelle
returned home. Alice’s parents picked her up from the ranch later that day, and she
immediately told them what had happened.
Crystal was around seven or eight years old in the early 1990s when Martinez
started dating her mother. Crystal and her mother would sometimes stay with
Martinez at his ranch in Brazoria County. On one occasion, when Crystal was around
eight years old and her mother was out of town, Martinez put his fingers inside her
vagina and then had vaginal intercourse with her. She testified that on three other
occasions, Martinez placed his fingers in her vagina while her mother was in the
shower. Crystal told her mother about what had happened several years later.
Martinez called several witnesses to testify on his behalf, including his
daughter Kristen, his mother, and other acquaintances. These witnesses testified
concerning the layout of and the furniture in Martinez’s current house and the house
in Brazoria County, Kristen’s relationship with Megan, Michelle’s relationship with
Megan, what was located at the Waller County ranch, storage of a trailer owned by
8
Martinez, how sound carries in both Martinez’s current house and the Brazoria
County house, and the frequency of Martinez’s travels.
Michelle also testified on Martinez’s behalf. She testified that Martinez
traveled seven or eight times a year for his ministry, both within the United States
and internationally, and that he also traveled for his baseball team. Michelle
presented bank records, credit card records, travel documents, and pictures to
corroborate Martinez’s out-of-town trips. Michelle also testified that Martinez did
not own the ranch where his horses were stabled, and he never stored a trailer at that
property. She further testified that in early 2015, Megan approached her and
Martinez about problems she was having with Matthew and asked if she could move
into their house, but Michelle and Martinez responded that she could not because
she was underage.
Michelle testified that she would sometimes text with Megan while using
Martinez’s phone, and sometimes this would occur late at night. When Martinez
texted Megan, he would encourage her to stay out of trouble and would share
scripture passages with her. This behavior concerned Michelle, and she discussed
this with Martinez, but she did not remember what his response was to her concerns.
She agreed that although she worked, Martinez and his ministry was the primary
source of income for the family.
9
The jury found Martinez guilty of two counts of sexual assault of a child and
assessed his punishment at fifteen years’ confinement for each count.4 The trial court
ordered the sentences to run consecutively. This appeal followed.
Admission of Extraneous Offense Evidence
In his first issue, Martinez contends that the trial court erred by admitting
extraneous offense testimony from Alice and Crystal. He acknowledges that the
current version of Code of Criminal Procedure article 38.37 permits this category of
testimony, but he argues that the version in effect at the time of the alleged
extraneous offenses did not, and therefore the trial court should not have admitted
this testimony.
Code of Criminal Procedure article 38.37 governs the admissibility of
extraneous offenses or acts in trials of defendants for certain offenses, including
sexual assault of a child. See TEX. CODE CRIM. PROC. art. 38.37, § 2(a)(1)(D). When
this provision was originally enacted in 1995, it provided that “[n]otwithstanding
Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes,
wrongs, or acts committed by the defendant against the child who is the victim of the
alleged offense shall be admitted for its bearing on relevant matters,” including
(1) the state of mind of the defendant and the child and (2) the previous and
4
A grand jury had also charged Martinez with sexual assault of a disabled person
against Katherine. That offense was not tried in the underlying proceeding.
10
subsequent relationship between the defendant and the child. Act of May 29, 1995,
74th Leg., R.S., ch. 318, § 48(a), 1995 Tex. Gen. Laws 2734, 2748–49 (codified at
TEX. CODE CRIM. PROC. art. 38.37, § 1) (emphasis added). The bill enacting this
article provided that the new statute “applies to any criminal proceeding that
commences on or after the effective date of this Act, regardless of whether the
offense that is the subject of the proceeding was committed before, on, or after the
effective date of this Act.” Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 48(b),
1995 Tex. Gen. Laws 2734, 2749.
Article 38.37 has been amended several times. Two of these amendments are
relevant to Martinez’s arguments in this appeal. In 2013, the Legislature added a
second section to article 38.37. In addition to allowing the admission of other
extraneous offenses against the child who is the victim of the charged offense, newly
added section 2 provided that in a trial for certain offenses including sexual assault
of a child:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2-a,5 evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) [listing eight
different offenses under the Penal Code plus an attempt or conspiracy
to commit one of the listed offenses] may be admitted in the trial of an
5
Article 38.37, section 2-a, requires the trial court to hold a hearing outside the
presence of the jury to determine whether the evidence likely to be admitted at trial
“will be adequate to support a finding by the jury that the defendant committed the
separate offense beyond a reasonable doubt.” Act of May 17, 2013, 83d Leg., R.S.,
ch. 387, § 1, 2013 Tex. Gen. Laws 1167, 1168 (codified at TEX. CODE CRIM. PROC.
art. 38.37, § 2-a).
11
alleged offense described by Subsection (a)(1) or (2) for any bearing
the evidence has on relevant matters, including the character of the
defendant and acts performed in conformity with the character of the
defendant.
Act of May 17, 2013, 83d Leg., R.S., ch. 387, § 1, 2013 Tex. Gen. Laws 1167, 1167–
68 (codified at TEX. CODE CRIM. PROC. art. 38.37, § 2); Belcher v. State, 474 S.W.3d
840, 844 (Tex. App.—Tyler 2015, no pet.) (stating that 2013 amendments to article
38.37 allow admission of “evidence that the defendant has committed certain
offenses against a nonvictim of the charged offense”). The Legislature specified that
this change in law “applies to the admissibility of evidence in a criminal proceeding
that commences on or after the effective date of this Act,” September 1, 2013. Act
of May 17, 2013, 83d Leg., R.S., ch. 387, § 2–3, 2013 Tex. Gen. Laws 1167, 1168.
In 2021, the Legislature amended Penal Code section 21.02, the continuous
sexual abuse of a young child statute, to expand the applicability of that offense to
include an offense committed against “a disabled individual.” Act of May 19, 2021,
87th Leg., R.S., ch. 221, §§ 1.01–.02, 2021 Tex. Gen. Laws 478, 478–79 (codified
at TEX. PENAL CODE § 21.02). The enacting legislation included “conforming
amendments” to numerous statutes throughout the Texas Codes to reflect the change
in language of Penal Code section 21.02 from “continuous sexual abuse of young
child” to “continuous sexual abuse of young child or disabled individual.”
One of the statutes so amended was article 38.37, section 2(a), which had
stated that it applied to the trial of a defendant for certain offenses, including
12
“Continuous Sexual Abuse of Young Child.” Under the 2021 amendments, article
38.37, section 2(a), was changed to read that one of the applicable offenses was Penal
Code “Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled
Individual).” Act of May 19, 2021, 87th Leg., R.S., ch. 221, § 2.12, 2021 Tex. Gen.
Laws 478, 486. The Legislature made no other changes to article 38.37. In enacting
the 2021 amendments, the Legislature provided that “[t]he change in law made by
this Act applies only to an offense committed on or after the effective date of this
Act,” September 1, 2021, while an offense “committed before the effective date of
this Act is governed by the law in effect on the date the offense was committed, and
the former law is continued in effect for that purpose.” Act of May 19, 2021, 87th
Leg., R.S., ch. 221, §§ 3.01–.02, 2021 Tex. Gen. Laws 478, 498.
On appeal, Martinez argues that although his trial occurred in May 2022, “the
offenses for which [he] was on trial did occur long before September 1, 2021,” and
therefore the version of article 38.37 “in effect at the time the alleged offenses were
committed controls.” He argues that the 2021 amendment “refers all offenses
committed before its effective date to the law in place at the time the offense was
committed,” and the version of article 38.37 “in effect at the time the offenses in this
case are alleged to have occurred did not allow for the jury to hear evidence of sexual
abuse perpetrated on non-complaining witnesses.” We disagree.
13
The indictments alleged that Martinez committed two offenses of sexual
assault of a child on or about July 6, 2012, and July 6, 2013. At that time, the 2013
amendment to article 38.37 allowing admission of extraneous offenses committed
against children other than the complainant had not yet gone into effect. However,
in enacting the 2013 amendment, the Legislature provided “[t]he change in law made
by this Act applies to the admissibility of evidence in a criminal proceeding that
commences on or after the effective date of this Act.” Act of May 17, 2013, 83d Leg.,
R.S., ch. 387, § 2, 2013 Tex. Gen. Laws 1167, 1168 (emphasis added). The 2013
amendment became effective on September 1, 2013. The grand jury indicted
Martinez for the underlying charged offenses on October 13, 2015. Because this
criminal proceeding commenced after the 2013 amendment became effective on
September 1, 2013, the 2013 amendment applies to this proceeding.
The 2021 amendment to article 38.37 does not change this conclusion. The
primary focus of this amendment was to expand Penal Code section 21.02—
criminalizing continuous sexual abuse—to apply to disabled individuals in addition
to children younger than fourteen. Act of May 19, 2021, 87th Leg., R.S., ch. 221,
§§ 1.01–.02, 2021 Tex. Gen. Laws 478, 478–79. The Legislature then amended
multiple statutes in multiple codes that cross-referenced section 21.02, including
article 38.37, to reflect the change to section 21.02. See Act of May 19, 2021, 87th
Leg., R.S., ch. 221, §§ 2.01–.28, 2021 Tex. Gen. Laws 478, 480–98. The Legislature
14
stated: “The change in law made by this Act applies only to an offense committed
on or after the effective date of this Act. An offense committed before the effective
date of this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose.” Act of May
19, 2021, 87th Leg., R.S., ch. 221, § 3.01, 2021 Tex. Gen. Laws 478, 498 (emphasis
added).
By beginning the paragraph with “[t]he change in law made by this Act,” the
Legislature specified that the change made by the 2021 amendment—the expansion
of the reach of Penal Code section 21.02 to cover continuous sexual abuse of
disabled individuals—only applies to offenses committed after the amendment
became effective on September 1, 2021, but does not apply to offenses committed
before that date. In this case, the offenses were committed years before September
1, 2021, but this case does not involve continuous sexual abuse of a young child or
a disabled individual. The 2021 amendment to article 38.37 simply has no effect on
the underlying offenses or the trial of these offenses. The 2021 legislation cannot
reasonably be read as providing that the 2013 amendment, which had been in effect
for eight years by that point and had been applicable to criminal proceedings that
commenced after September 1, 2013, suddenly would no longer have any effect if
the offense was committed prior to September 1, 2013.
15
We hold that because this criminal proceeding commenced after September
1, 2013, the trial court did not err by concluding that the 2013 amendment allowing
admission of extraneous offense evidence by non-complaining child witnesses under
certain circumstances applies to this case.
We overrule Martinez’s first issue.6
Exclusion of Witness Testimony
In his second issue, Martinez argues that the trial court erred by excluding the
testimony of Susan Sweeney, a Fort Bend County Assistant District Attorney, who
believed that Megan had lied under oath while acting as a witness during an
unrelated criminal proceeding. Martinez contends that Sweeney should have been
6
Martinez argues on appeal that the 2013 amendment is an impermissible ex post
facto law because the relevant extraneous offenses allegedly occurred around 1992
and 2000, well before the Legislature enacted article 38.37 and then amended it to
apply to the testimony of non-complaining child witnesses. Other Texas
intermediate appellate courts have rejected such challenges to article 38.37, section
2. See, e.g., Baez v. State, 486 S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet.
ref’d) (concluding that article 38.37, section 2(b), was not impermissible ex post
facto law because it “does not allow extraneous offense evidence to be offered as
substantive evidence of guilt”; State “must still satisfy its burden of proof as to each
element of the offense”; and statute does not “alter[] the legal rules of evidence to
allow less or different testimony than the law required at the time of the commission
of the [offense] in order to convict the defendant”); Robisheaux v. State, 483 S.W.3d
205, 214–15 (Tex. App.—Austin 2016, pet. ref’d) (adopting reasoning from Baez);
Ryder v. State, 514 S.W.3d 391, 401–02 (Tex. App.—Amarillo 2017, pet. ref’d)
(agreeing with Baez); see also Alvarez v. State, 491 S.W.3d 362, 368 n.3 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (noting that article 38.37 is evidentiary
rule that enlarges scope of child’s admissible testimony but “leaves untouched the
amount or degree of proof required for conviction” and therefore applying article
38.37 “does not implicate ex post facto concerns”) (quotations omitted).
16
allowed to testify concerning Megan’s character for truthfulness under Rule of
Evidence 608.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). The
trial court abuses its discretion if it acts without reference to any guiding rules or
principles or if it acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664,
669 (Tex. Crim. App. 2019). We will uphold the court’s decision if it was within
“the zone of reasonable disagreement.” Beham, 559 S.W.3d at 478 (quotations
omitted).
A party may attack or support the credibility of a witness by “testimony about
the witness’s reputation for having a character for truthfulness or untruthfulness, or
by testimony in the form of an opinion about that character.” TEX. R. EVID. 608(a).
With an exception not relevant here, “a party may not inquire into or offer extrinsic
evidence to prove specific instances of the witness’s conduct in order to attack or
support the witness’s character for truthfulness.” TEX. R. EVID. 608(b).
When a witness testifies concerning another witness’s reputation, that
testimony “must be based on discussion with others about the subject, or on hearing
others discuss the person’s reputation, and not just on personal knowledge.”
Smallwood v. State, 471 S.W.3d 601, 609 (Tex. App.—Fort Worth 2015, pet. ref’d)
(op. on reh’g) (quotations omitted); see Adanandus v. State, 866 S.W.2d 210, 226
17
(Tex. Crim. App. 1993). The testimony cannot be based upon specific acts of
conduct of the witness “but rather upon a synthesis of ‘observations and discussions
which results in a conclusion as to the individual’s reputation.’” Garza v. State, 18
S.W.3d 813, 824 (Tex. App.—Fort Worth 2000, pet. ref’d) (quoting Adanandus, 866
S.W.2d at 226). “To be an appropriate reputation witness, the witness must have a
substantial familiarity with the reputation of the person about whom the witness is
supposed to testify.” Id.; see Smallwood, 471 S.W.3d at 609 (quotations omitted).
During a hearing outside the presence of the jury, Martinez argued that he
should be allowed to call Susan Sweeney, an assistant district attorney in Fort Bend
County, to testify concerning her opinion of Megan’s truthfulness. Sweeney testified
that she had been involved in prosecuting a case against Ahmed Altae, Megan’s
husband, in 2018. During her investigation, she discussed Altae and his family,
including Megan, with multiple police officers, prosecutors, and other witnesses.
Sweeney also listened to numerous jail calls, including calls between Altae and
Megan, calls between Altae and other people, and calls between Altae’s co-
defendants and people potentially involved with those co-defendants. Sweeney
called Megan to testify in one of Altae’s bond hearings. Based upon Sweeney’s
investigation, she believed that Megan lied while under oath. Sweeney refused to
testify concerning Megan’s motivation, but she agreed that Megan’s testimony
helped Altae.
18
Sweeney also testified that she became aware that Megan had failed to appear
in court at one point and had cut off her ankle monitor. She did not agree that she
considered these facts when she formed her belief that Megan had lied under oath.
Sweeney stated: “I see them as separate from the statements under oath. I don’t know
what conclusions one would draw from that conduct or if they can be ascribed to
[Megan].” When asked if it was her “belief that [Megan] lies under oath,” Sweeney
responded, “It’s my belief that she lied under oath in that hearing with regard to, I
believe, two topics.” When defense counsel asked whether she believed that Megan
“lies under oath when it benefits someone that she cares about,” Sweeney responded
that use of the word “lies” in counsel’s question “suggests that it’s a prediction, a
habit, a frequent circumstance.” Sweeney stated that her opinion “is that [Megan]
lied on that particular occasion regarding what I recall being two topics.”
Sweeney further testified that, at one point, Megan lied to police officers. She
agreed that “there are at least two occasions where [she knew] that [Megan] lied.”
Sweeney agreed that the lie to police officers also benefitted Altae, but she did not
know Megan’s motivation for lying on that occasion. Sweeney testified: “She lied
on two occasions that I’m aware of.”
The State had the following exchange with Sweeney:
Q. [D]o you have an opinion on [Megan’s] reputation for having a
character for truthfulness or untruthfulness in the community in
general?
19
A. I do not.
Q. And, Ms. Sweeney, do you have an opinion on your own about
[Megan’s] propensity for truthfulness in general?
A. I do not.
On re-direct examination, Sweeney did not agree that she had an opinion that Megan
“has a propensity to lie,” stating again that she “know[s] about those two occasions”
and she “believe[d] that [Megan] lied on those two occasions.”
The trial court stated:
So based on what I’m hearing in the testimony of the witness is that
Ms. Sweeney does not believe the two occasions in which she believes
the complainant in our case was not being truthful is sufficient for her
to draw an opinion. That’s what she just testified to, that she doesn’t
think that’s sufficient information for her to testify as a character
witness on her opinion of the truthfulness of [Megan].
So if you’re asking to then still call [Sweeney] as a witness for the
purpose of impeaching [Megan] to show that, in fact, [Sweeney] really
has some type of opinion that [Megan’s] not truthful, it’s clearly not
allowed by the rules to get into specific instances of conduct—opening
the door to get into specific instances of conduct. That would be the
only way you could try to impeach [Megan] to say, you know, the jury
can really believe [Sweeney] thinks [Megan’s] not truthful in general.
The fact that the witness—that [Megan] has lied under oath based on
[Sweeney’s] opinion I don’t think is sufficient to establish, in and of
itself, character. Again, it has to come from a witness that has a basis
for their opinion, a reliable basis, and [Sweeney] said she does not have
a reliable basis for that opinion.
The trial court did not allow Martinez to call Sweeney as a witness.
On appeal, Martinez argues that Sweeney’s testimony should have been
admitted because neither the Rules of Evidence nor caselaw require “that the witness
20
have an opinion that prevails in a certain size community.” Caselaw also does not
specify “which community nor does it narrow the confines of [Rule] 608 to only
general community reputation opinion.” Martinez argues that Sweeney discussed
Megan’s reputation for truthfulness with multiple people, and her testimony met the
requirements of Rule 608.
Sweeney acknowledged that during the prosecution of the case against Altae,
she spoke with other people—including prosecutors, police officers, and
witnesses—about Megan, although she did so “[m]ore with regard to the facts of the
case.” She did not testify that she spoke to other people about Megan’s reputation
for truthfulness. Importantly, although Sweeney testified that she believed that
Megan lied under oath on “two topics” during a bond hearing in Altae’s case, she
also unequivocally stated that she did not have an opinion on Megan’s “reputation
for having a character for truthfulness or untruthfulness in the community in
general.” She also testified that she did not have an opinion “on [her] own” about
Megan’s “propensity for truthfulness in general.”
We agree with the State that Martinez did not establish that Sweeney’s
testimony was admissible under Rule 608. Sweeney specifically testified that she
did not have an opinion about Megan’s reputation for truthfulness or untruthfulness,
and she did not have an opinion of her own about Megan’s propensity for
truthfulness. See TEX. R. EVID. 608(a) (“A witness’s credibility may be attacked or
21
supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character.”). Instead, Sweeney believed, based on her investigation during Altae’s
prosecution, that Megan did not tell the truth on two instances while under oath at a
bond hearing in Altae’s case. However, under Rule 608, “a party may not inquire
into or offer extrinsic evidence to prove specific instances of the witness’s conduct
in order to attack or support the witness’s character for truthfulness.” TEX. R. EVID.
608(b); Garza, 18 S.W.3d at 824 (stating that permissible testimony under Rule 608
cannot be based upon “specific acts of conduct of the witness whose credibility is
being attacked”).
We hold that the trial court did not abuse its discretion by excluding
Sweeney’s testimony concerning Megan’s truthfulness. See TEX. R. EVID. 608.
We overrule Martinez’s second issue.
Improper Closing Argument
In his third issue, Martinez argues that the trial court erroneously denied his
motion for mistrial made after the prosecutor suggested during closing argument that
Martinez had also abused his wife.
Proper jury argument generally falls within four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d
22564, 570 (Tex. Crim. App. 2008). “It is the duty of trial counsel to confine their
arguments to the record; reference to facts that are neither in evidence nor inferable
from the evidence is therefore improper.” Id. (quoting Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973)); see Freeman v. State, 340 S.W.3d 717,
728 (Tex. Crim. App. 2011) (“Improper references to facts that are neither in
evidence nor inferable from the evidence are generally designed to arouse the
passion and prejudice of the jury and, as such, are inappropriate.”). “[E]rror exists
when facts not supported by the record are interjected in the argument,” but this error
is not reversible “unless, in light of the record, the argument is extreme or manifestly
improper.” Brown, 270 S.W.3d at 570.
When, as here, the trial court instructs the jury to disregard improper jury
argument, the proper analysis on appeal is whether the trial court erred by denying
the defendant’s motion for mistrial. Williams v. State, 417 S.W.3d 162, 175 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d); see Hawkins v. State, 135 S.W.3d 72,
76–77 (Tex. Crim. App. 2004). We review a trial court’s ruling on a motion for
mistrial for an abuse of discretion. Young v. State, 591 S.W.3d 579, 595 (Tex.
App.—Austin 2019, pet. ref’d) (quotations omitted). We must uphold the trial
court’s ruling if it was within the zone of reasonable disagreement. Archie v. State,
221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Williams, 417 S.W.3d at 175.
23
A mistrial is the trial court’s remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful and
futile.” Hawkins, 135 S.W.3d at 77 (quotations omitted). “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.” Id.;
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (“A mistrial is an
appropriate remedy in extreme circumstances for a narrow class of highly prejudicial
and incurable errors.”) (quotations omitted); Williams, 417 S.W.3d at 175 (“A
mistrial is an extreme remedy and should be exceedingly uncommon.”). “A mistrial
is required only when the impropriety is clearly calculated to emotionally inflame
the jurors’ minds and is of such a character as to suggest the impossibility of
withdrawing the impression produced on the jurors’ minds . . . .” Williams, 417
S.W.3d at 175.
In most instances, an instruction to disregard will cure the error. Id.; see
Freeman, 340 S.W.3d at 727–28 (“An instruction to disregard will generally cure
error if a prosecutor mentions facts outside the record.”). We generally presume that
the jury followed the trial court’s instructions. Griffin v. State, 571 S.W.3d 404, 417
(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d).
When determining whether the trial court abused its discretion in denying a
motion for mistrial due to improper jury argument, we consider and balance three
factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of
24
the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the trial court); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction).7 Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011);
Williams, 417 S.W.3d at 176.
During closing argument, the prosecutor stated:
We heard from his own wife, Michelle, that she had concerns about her
husband texting [Megan]. And let’s talk about Michelle for a minute. I
actually kind of feel bad for her. I think she’s stuck in a horrible
situation and there’s not much she can do about it. I mean, she had
concerns her husband was texting this teenager and there was nothing
she could do about it. She’s not allowed to do anything in that home.
And so when they talk about whether she [Michelle] could hear them
[Martinez and Megan] having sex downstairs or not, unfortunately, it’s
possible she heard them and there’s nothing she could do about it
because he’s her only source of income from these mysterious donors.
And he’s abusive. If he’s abusing an 8-year-old and a 15-year-old,
there’s nothing to say that he’s also not abusing her.
7
Martinez argues that because the prosecutor’s statements “were so far outside the
record, they should be characterized as ‘unsworn testimony of the prosecutor.’” He
further argues that the statements affected his “substantial constitutional rights,” and
as a result, we should apply the harm standard for constitutional errors and reverse
unless we determine that the error was harmless beyond a reasonable doubt. See
TEX. R. APP. P. 44.2(a). The Court of Criminal Appeals, however, has noted that
“most comments that fall outside the areas of permissible argument will be
considered to be error of the nonconstitutional variety.” Brown v. State, 270 S.W.3d
564, 572 n.2 (Tex. Crim. App. 2008). The court further stated that “[c]omments
upon matters outside the record, while outside the permissible areas of jury
argument, do not appear to raise any unique concerns that would require us to assign
constitutional status.” Id. Martinez has not cited to any authority holding that
arguments such as the one made by the prosecutor in this case implicate a
defendant’s constitutional rights, and we therefore decline Martinez’s invitation to
apply the constitutional standard of harm found in Rule 44.2(a).
25
Defense counsel objected to this argument and asked the trial court to instruct the
jury to disregard the prosecutor’s last comment. The court sustained the objection
and stated, “Disregard the prosecutor’s last comment.” The court denied defense
counsel’s request for a mistrial. When the prosecutor resumed argument, he
discussed the text messages between Megan and Martinez, and he did not further
mention any suggestion that Martinez had also abused Michelle.
On appeal, the State first acknowledges that “[a]rguably, the prosecutor’s
argument was improper,” but it later “assumes, but does not concede, that the trial
prosecutor’s argument was improper.” The State then argues that the trial prosecutor
did not accuse Martinez of abusing Michelle, but “instead, he merely floated the
possibility as an explanation for why Michelle would have testified as she did.” We
note that there is no testimony or documentary evidence in the record that Martinez
abused Michelle in any manner. We therefore assume, without deciding, that the
prosecutor’s statement during closing argument did not constitute either summation
of the evidence or a reasonable deduction from the evidence and was therefore
improper. See Brown, 270 S.W.3d at 570 (listing summation of evidence and
reasonable deduction from evidence as two of four general areas of permissible jury
argument); see also Griffin, 571 S.W.3d at 417–18 (stating that when trial court
sustains objection to argument and instructs jury to disregard, propriety of argument
“is not the focus of our inquiry” on appeal, and we instead assume argument was
26
improper and determine whether trial court abused its discretion by denying motion
for mistrial). We thus address whether the prejudice from this statement was
incurable such that a mistrial was required.
1. Severity of the misconduct
In examining the severity of the improper argument, we review whether it
appears that the argument was a “willful and calculated effort on the part of the State
to deprive [the defendant] of a fair and impartial trial. See Williams, 417 S.W.3d at
176 (quoting Brown, 270 S.W.3d at 573). Martinez argues that the prosecutor’s
comments were “false, misleading, inflammatory, and shocking,” and the prosecutor
attacked both Martinez and Michelle, “the witness most vital to the defense.”
Prosecutors are allowed to argue that defense witnesses “are not worthy of
belief.” Graves v. State, 176 S.W.3d 422, 431 (Tex. App.—Houston [1st Dist.] 2004,
pet. stricken) (quoting Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App.
1993)); George v. State, 117 S.W.3d 285, 288 (Tex. App.—Texarkana 2003, pet.
ref’d) (“A comment on the credibility of a witness is permissible.”). “Jury argument
that vouches for or questions the credibility of a witness is proper if it involves a
reasonable deduction from the evidence.” Graves, 176 S.W.3d at 431 (citing George,
117 S.W.3d at 288). For example, proper argument can include suggesting that a
defense witness has a financial incentive to lie on the defendant’s behalf if such a
motive can be reasonably deduced from the evidence. Id. at 431–32.
27
The prosecutor therefore could have permissibly called the credibility of
Michelle—Martinez’s wife—into question. But the prosecutor went too far in
speculating that if Martinez is “abusing an 8-year-old and a 15-year-old, there’s
nothing to say that he’s also not abusing [Michelle].” As noted above, there was no
evidence in the record that Martinez was abusive to Michelle. We therefore turn to
the remaining two factors to determine whether this statement was so egregious that
it was impossible to withdraw any prejudicial effect.
2. Measures adopted to cure the misconduct
Here, after the trial court sustained defense counsel’s objection to the State’s
argument, counsel requested that the court instruct the jury to disregard the
prosecutor’s last comment. The trial court stated, “Disregard the prosecutor’s last
comment.”
“In most instances, an instruction to disregard the remarks will cure the error.”
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Garcia v. State, 943
S.W.2d 215, 217 (Tex. App.—Fort Worth 1997, no pet.) (“Almost any improper
argument may be cured by an instruction to disregard.”). “[O]nly in the most
egregious cases” involving an “extremely inflammatory statement” will a court
conclude that an instruction to disregard the improper argument was an insufficient
response by the trial court. Williams, 417 S.W.3d at 176. We presume that the jury
obeys instructions given by the trial court. Griffin, 571 S.W.3d at 421.
28
Although the prosecutor’s comment was inappropriate and exceeded the
bounds of permissible jury argument, we do not agree with Martinez that the
comment was so egregious and inflammatory that any prejudicial effect could not
be cured by an instruction to disregard. Furthermore, when considering the closing
arguments as a whole, we conclude that the trial court did more than give an “off-
handed” instruction to disregard. On four other instances throughout argument,
including during argument given by both the State and the defense, the trial court
reminded the jury that the attorneys’ statements were argument, not evidence.
Specifically, in response to other objections based on improper jury argument,
the trial court instructed the jurors that “you are the exclusive judges of the facts
proved. This is argument, it is not evidence. So you decide those things.” During
defense counsel’s argument, the trial court stated, “Again, you’ll get the written
instructions in the jury charge. What the attorneys are not [sic] telling you is not
evidence. It’s just an argument to persuade you one way or the other. You’ll have
the official jury instructions.” Almost immediately after this instruction, in response
to another objection, the court stated: “Again, this is not evidence. It’s just an
argument. All right? So you heard the evidence. You determine the facts proven.
Not the attorneys.” Finally, shortly before the argument at issue in this appeal, the
trial court stated: “Once again, this is not evidence. It’s an argument. You’ll be the
29
judges of what facts were proven during the trial. All right? What they’re saying is
not evidence.”
In addition to the trial court’s instructions to the jury during other parts of the
argument, the trial court also instructed the jurors in the written charge that during
their deliberations, “you must not consider, discuss, nor relate any matters not in
evidence before you.” This Court has previously considered similar additional
instructions—both oral and contained in the written charge—in assessing the
efficacy of the trial court’s curative measures in response to improper jury argument.
See Griffin, 571 S.W.3d at 421; Williams, 417 S.W.3d at 179. In fact, we may
“presume from the cumulative weight” of the trial court’s instructions “that the jury
understood that the State’s improper comments were not evidence, and that its
decision should be based only on the evidence.” Williams, 417 S.W.3d at 179.
Additionally, in analyzing this factor, we may also consider whether the
prosecutor revisited the improper argument following defense counsel’s objection.
Id. at 179–80. Here, after the trial court instructed the jury to disregard the
prosecutor’s comment, the prosecutor talked further about the text messages
between Megan and Martinez and discussed Megan’s detailed testimony, Megan’s
medical records, and the extraneous offense allegations. The prosecutor did not,
however, again suggest that Martinez had abused Michelle as well.
30
When considering the entire jury argument and all the instructions given to
the jury by the trial court, we conclude that the State’s objected-to comment was not
so egregious or inflammatory that it rendered the trial court’s instruction to disregard
ineffective. See Griffin, 571 S.W.3d at 421; Williams, 417 S.W.3d at 179–80.
3. Certainty of conviction absent misconduct
The State presented strong evidence supporting the conviction. Matthew and
Megan testified concerning their family’s friendly relationship with Martinez and
his family. Although the families were close, Matthew had developed concerns over
the years, particularly after he learned that Martinez took Megan to the Waller
County ranch to ride horses with no other adults present and without Matthew’s
permission. A few years after that incident, Matthew and Laura reviewed their cell
phone bill and discovered numerous calls and text messages between Megan and
Martinez. When confronted about this, Megan disclosed that Martinez had sexually
abused her.
Megan testified that she sometimes had a difficult relationship with Matthew,
but Martinez would “be there for [her]” and would “be on [her] side.” She also
testified that Martinez sexually abused her on four occasions, including once at the
Waller County ranch and three times at Martinez’s house. Although she could not
provide specific dates for any of these occasions, she described in detail what
31
happened, where in Martinez’s house they were, and whether Michelle was home at
the time.
In addition to Megan’s testimony, the State also presented testimony from
Alice and Crystal that Martinez had sexually abused them when they were children.
The incidents involving Alice and Crystal involved some similarities to the incidents
involving Megan. For example, Alice was a similar age to Megan at the time of the
abuse, and she testified that the abuse occurred at a ranch. Both Alice and Crystal
testified that on at least one occasion, other people were in the house at the time.
Martinez did present evidence contradicting the testimony of Megan, Alice,
and Crystal. He presented evidence concerning his travel schedule, Megan’s
relationships with Michelle and his daughter Kristen, the layout of the relevant
houses, his behavior with Megan during and after Bible study meetings, whether he
kept a trailer at the Waller County property, and how sound traveled in the relevant
houses. Although Michelle was an important witness for him, she was not the sole
witness to testify on his behalf, and many of the topics that she testified about were
also testified to by other defense witnesses, including witnesses who were not family
members of Martinez.
When we consider the entire record, including the evidence supporting the
conviction and the entirety of the closing arguments, we cannot conclude that the
trial court abused its discretion by denying Martinez’s motion for mistrial. See
32
Archie, 340 S.W.3d at 739; Williams, 417 S.W.3d at 175–76, 180–81. Although the
State’s comment was improper, the trial court gave multiple curative instructions
throughout the closing argument reminding the jury that the attorneys’ statements
were argument, not evidence, and there is no indication that the jury ignored these
instructions or ignored the court’s instruction to disregard the specific comment at
issue in this appeal. See Williams, 417 S.W.3d at 181. Because a reasonable trial
court could have concluded that its instructions cured any prejudice caused by the
State’s argument, we hold that the trial court did not abuse its discretion by denying
the motion for mistrial. See id. at 180–81 (“Our task is not to determine whether we
disagree with the trial court’s ruling, but whether the trial court’s determination was
beyond the zone of reasonable disagreement.”).
We overrule Martinez’s third issue.
Denial of Challenges for Cause
In his fourth issue, Martinez contends that the trial court erred by denying four
challenges for cause made after the prospective jurors stated during voir dire that
they could not consider probation in a sexual assault of a child case.
A prospective juror can be challenged for cause by the defendant if he has a
bias or prejudice “against any of the law applicable to the case upon which the
defense is entitled to rely.” TEX. CODE CRIM. PROC. art. 35.16(c)(2); Comeaux v.
State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014). The trial court must excuse the
33
prospective juror if bias or prejudice would impair the juror’s ability to carry out his
oath and instructions in accordance with the law. Comeaux, 445 S.W.3d at 749.
Before the court excuses the prospective juror, the law must be explained to him and
the defendant must show that the prospective juror “understood the law and still
could not overcome his prejudice.” Id. When the trial court denies a valid challenge
for cause—thus forcing the defendant to use a peremptory strike on a venire member
who should have been removed—the defendant is harmed if he would have used that
peremptory strike on another objectionable juror. Id. at 750.
“Both the State and defense are entitled to jurors who can consider the entire
range of punishment for the particular statutory offense—i.e., from the maximum to
the minimum and all points in between.” Cardenas v. State, 325 S.W.3d 179, 184
(Tex. Crim. App. 2010). Jurors must be able to consider both a situation in which
the minimum punishment is appropriate and a situation in which the maximum
punishment would be appropriate. Id. “A question committing a juror to consider the
minimum punishment is both proper and permissible.” Id. However, if counsel
“attempts to commit a veniremember to consider the minimum sentence based on
specific evidentiary facts,” counsel asks an improper commitment question. Id.A juror who states that he cannot consider the minimum punishment for a
particular offense is subject to a challenge for cause. Id. at 185. Either the opposing
party or the trial court may “examine the juror further to ensure that he fully
34
understands and appreciates the position that he is taking, but unless there is further
clarification or vacillation by the juror,” the trial court must grant a challenge for
cause if the juror states that he cannot consider the full range of punishment. Id.;
Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999) (“When the record
reflects that a venireman vacillates or equivocates on his ability to follow the law,
the reviewing court must defer to the trial court.”).
During voir dire, the trial court informed the venire that the punishment range
for sexual assault of a child, a second-degree felony, was from probation to twenty
years’ confinement. The court emphasized that the punishment range is wide
because “[w]e don’t know how these things can happen in certain cases,” and
probation may be an appropriate punishment in one case, but a twenty-year sentence
may be appropriate in another case. The court asked:
Now, the question about the low end. We’re talking about the low end.
Because it’s a second-degree felony and the State Legislature has given
us a wide range of punishment, you have to be fair and consider it. You
cannot say, “I’m not going to consider it,” because you’re not being
fair. So the question is: Can—how many persons just cannot consider
whether probation is appropriate in a sexual assault case of a child, just
can’t even consider it? Not give. When I say “consider,” go in the jury
room and say, “Hm, based on what I heard, is probation appropriate”?
Several prospective jurors raised their hands, including prospective jurors 20, 48,
50, and 55. When specifically asked by the trial court, each of these jurors responded
that they would not consider probation.
35
During its portion of voir dire, the State presented the following hypothetical
in an attempt to rehabilitate the prospective jurors on this matter:
Now, Judge Jones asked everyone a little bit ago whether they could
consider the full range of punishment and asked everyone to raise their
hand if they could not consider the lower range of punishment or the
upper range, including probation. All we’re asking is whether you can
keep an open mind going into this trial and say that you can follow the
law and simply consider the full range of punishment. We’re not asking
you to give it. We’re asking you to consider. Just keep an open mind.
Considering might just mean thinking—considering it for five seconds
and moving on and saying, “No, probation is not appropriate in this
case now that I’ve heard all of the evidence.”
All we’re asking is, you can’t go into the trial before you’ve heard any
evidence and say, “I don’t care what I hear at this trial, I’m never giving
probation.” And to give a hypothetical, there are cases sometimes
where even our office will offer a probation to someone that is charged
with sexual assault of a child. That might sound strange, but here’s a
hypothetical for you. And you might not agree with it, but it’s just a
hypothetical. A 16-year-old and a 20-year-old fall madly in
love8 . . . with each other. Their parents didn’t know about it, but the
20-year-old male takes care of that 16-year-old. He never abuses her in
terms—legally, it may be considered abuse because they wind up
having sex one night, but it was consensual. The 16-year-old never feels
forced or threatened by this 20-year-old. She winds up getting pregnant
and they wind up getting married.
And when the parents find out about this child that she has, they get
upset, and they call the police and charges are filed because a 20-year-
old cannot have sex with a 16-year-old under the law. This 20-year-old
is a pillar of his community. He gives to charity, he’s never been in
trouble, he doesn’t do drugs, he’s going to school, he’s doing all the
right things. He slipped up and didn’t necessarily do things the right
way under what the law says.
8
At this point, defense counsel objected on the basis that the State was asking an
“[i]mproper commitment question, trying to give the jury a specific fact situation.”
The trial court overruled the objection.
36
Can everyone see a situation where you might consider, consider,
probation in a case like that? Okay. So that’s my point. We’re saying
you don’t know the facts of this case yet. All you know is that we’re
alleging there’s a victim under the age of 17, a person under the age of
17. But without knowing all the facts, we’re just asking you to not close
off your mind so that we can have a fair jury.
The State then directed its questioning to the prospective jurors who had
indicated that they could not consider probation and asked, “So with that in
mind . . . does that change your answer at all to whether you could consider
probation?” Several of the prospective jurors responded that they had not changed
their minds, but the State had the following exchanges with prospective jurors 20,
48, 50, and 55:
The State: Okay. Juror 20?
Juror 20: Yes.
The State: Okay. So Juror 20, you’re saying you would at least be
able to go into the trial with an open mind and consider the
full range not knowing the evidence yet?
Juror 20: Yes.
....
The State: Juror 48?
Juror 48: Yes.
The State: Thank you, sir. Are you able to consider the full range of
punishment?
Juror 48: Yes.
The State: Juror 50?
Juror 50: Based on what you described, yes.
37
The State: Thank you, sir. Juror 55?
Juror 55: Yes.
The State: You are able to consider the full range?
Juror 55: Yes.
After voir dire concluded, defense counsel challenged prospective jurors 20,
48, 50, and 55 for cause. The trial court denied each of these challenges, noting that
the four prospective jurors had been rehabilitated on whether they could consider
probation.9 After the jury was selected, the trial court asked whether there were any
objections to the seating of the jury. Defense counsel requested additional
peremptory challenges, stating that he had to use peremptory challenges against
prospective jurors 20, 48, 50, and 55 instead of against other objectionable members
of the venire who ended up on the jury. The trial court denied this request.
To the extent Martinez argues on appeal that the trial court improperly
attempted to rehabilitate the prospective jurors who had stated that they could not
consider probation as punishment in a sexual assault of a child case, we note that the
Court of Criminal Appeals has held that when a prospective juror states that he
9
After defense counsel challenged prospective juror 20 for cause, the parties and the
trial court discussed the propriety of the State’s hypothetical and whether the
prospective jurors expressed an ability to consider probation only in the factual
scenario described in the hypothetical. The trial court stated: “I understand your
argument, [defense counsel], but that’s not how I understood their responses, to be
limited to that particular hypothetical situation, but that it would open their minds
that there could be a set of different circumstances to allow them to say, ‘Now I can
keep an open mind and consider the full range, it depends on the evidence, I need
to wait and hear that,’ is what I heard.”
38
cannot consider the minimum punishment for a particular offense, “[t]he opposing
party or trial judge may then examine the juror further to ensure that he fully
understands and appreciates the position that he is taking.” See Cardenas, 325
S.W.3d at 185 (emphasis added); see also Gardner v. State, 733 S.W.2d 195, 210
(Tex. Crim. App. 1987) (stating that trial court’s intervention in voir dire
proceedings is “[u]sually . . . warranted for purposes of clarification and
expedition,” and trial court’s comments during voir dire constitute reversible error
only when comments “are reasonably calculated to benefit the State or prejudice the
defendant’s rights”). Thus, the trial court may permissibly play a role in ensuring
that prospective jurors understand the law.
Martinez also argues that the hypothetical used by the State was inappropriate
and “improperly committed [the prospective jurors] to a pie-in-the-sky set of facts.”
The law “allows the use of a hypothetical to ascertain the views of the prospective
jurors on issues pertinent to a fair determination of the case.” Atkins v. State, 951
S.W.2d 787, 789 (Tex. Crim. App. 1997). However, using hypotheticals is only
proper to explain the law; parties may not use hypotheticals to “commit the jurors to
particular circumstances.” Id.; see Standefer v. State, 59 S.W.3d 177, 179 (Tex.
Crim. App. 2001) (“[A]n attorney cannot attempt to bind or commit a prospective
juror to a verdict based on a hypothetical set of facts.”) (quotations omitted). Because
jurors must be able to consider the full range of punishment, parties “may commit
39
jurors to consider the entire range of punishment for the statutory offense.”
Cardenas, 325 S.W.3d at 184; Standefer, 59 S.W.3d at 181 (stating that questions
concerning juror’s ability to consider full range of punishment are commitment
questions “but are nevertheless proper”). Although a “question committing a juror
to consider the minimum punishment is both proper and permissible,” counsel may
not “commit a veniremember to consider the minimum sentence based on specific
evidentiary facts.” Cardenas, 325 S.W.3d at 184.
Here, the State informed the venire that there are some factual situations in
which even it will offer probation to someone charged with sexual assault of a child.
The State then presented a hypothetical that contained specific facts, albeit not a
factual scenario analogous to this case. At the end of the hypothetical, the prosecutor
stated:
Can everyone see a situation where you might consider, consider,
probation in a case like that? Okay. So that’s my point. We’re saying
you don’t know the facts of this case yet. All you know is that we’re
alleging there’s a victim under the age of 17, a person under the age of
17. But without knowing all the facts, we’re just asking you to not close
off your mind so that we can have a fair jury.
The State then asked, “So with that in mind . . . does that change your answer at all
to whether you could consider probation?” Prospective jurors 20, 48, 50, and 55
answered that they could consider the full range of punishment.
Although the State’s hypothetical contained “specific evidentiary facts,” the
State did not ask the prospective jurors whether they could consider probation in that
40
factual scenario. Instead, the State used the hypothetical as an example of a situation
where considering probation might be an appropriate punishment and emphasized
that the prospective jurors “don’t know the facts of this case yet.” The State then
asked prospective jurors if their answer had changed on whether they could consider
probation. We conclude that the State’s hypothetical question did not improperly
commit prospective jurors to “consider the minimum sentence based on specific
evidentiary facts.” See id.Martinez also cites this Court’s opinion in Berwick v. Wagner for the
proposition that a prospective juror who is “unequivocally biased or prejudiced
cannot revive his eligibility by recanting an earlier expression of bias or prejudice.”
See 509 S.W.3d 411, 422–23 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(quoting Smith v. Dean, 232 S.W.3d 181, 190 (Tex. App.—Fort Worth 2007, pet.
denied)). He argues that because each prospective juror “expressed his bias and
prejudice and unequivocally stated he could not be fair,” it was thus “improper for
the trial court to attempt to revive his eligibility.” However, the Court of Criminal
Appeals has allowed parties to try to rehabilitate a prospective juror that has
expressed a bias against a phase of the law, such as by stating that he cannot consider
the full range of punishment. See, e.g., Cardenas, 325 S.W.3d at 185 (“The opposing
party or trial judge may then examine the juror further to ensure that he fully
understands and appreciates the position that he is taking, but unless there is further
41
clarification or vacillation by the juror, the trial judge must grant a challenge for
cause if the juror states that he cannot consider the full range of punishment.”);
Barefoot v. State, 596 S.W.2d 875, 885–86 (Tex. Crim. App. 1980) (concluding that
prospective juror was not challengeable for cause on basis that he could not give
minimum punishment in murder case when, after rehabilitation by State, juror stated
that he “could consider the minimum punishment in a proper case”).
We conclude that the State properly rehabilitated prospective jurors 20, 48,
50, and 55, and we hold that the trial court did not err by denying Martinez’s
challenges for cause to these four prospective jurors.
We overrule Martinez’s fourth issue.
Speedy Trial
Finally, in his fifth issue, Martinez argues that he was denied his right to a
speedy trial. He argues that he was indicted in October 2015 but the first attempt at
selecting a jury did not occur until November 2021, more than six years later. He
contends that the trial court erroneously denied his motion to dismiss the indictment.
A. Governing Law
In all criminal prosecutions, both the state and federal constitutions guarantee
the defendant the right to a speedy trial. See U.S. CONST. amend. VI; TEX. CONST.
art. I, § 10; State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). A speedy
trial protects three interests of the defendant: freedom from oppressive pretrial
42
incarceration, mitigation of the anxiety and concern accompanying public
accusation, and avoidance of impairment to the defendant’s defense. Cantu v. State,
253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
In analyzing a speedy trial claim, we consider four factors: (1) the length of
the delay; (2) the State’s reason for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) prejudice to the defense because of the length of delay.
Barker v. Wingo, 407 U.S. 514, 530 (1972); Balderas v. State, 517 S.W.3d 756, 767
(Tex. Crim. App. 2016). The State bears the burden of justifying the length of delay,
but the defendant bears the burden of proving assertion of the right and showing
prejudice. Cantu, 253 S.W.3d at 280; State v. Moreno, 651 S.W.3d 399, 407 (Tex.
App.—Houston [1st Dist.] 2022, no pet.). The defendant’s burden on the latter two
factors “varies inversely” with the State’s degree of culpability for the delay. Cantu,
253 S.W.3d at 280; Moreno, 651 S.W.3d at 407. “Thus, the greater the State’s bad
faith or official negligence and the longer its actions delay a trial, the less a defendant
must show actual prejudice or prove diligence in asserting his right to a speedy trial.”
Cantu, 253 S.W.3d at 280–81.
The analysis under Barker is triggered by a delay that is unreasonable enough
to be “presumptively prejudicial.” Id. at 281; Doggett v. United States, 505 U.S. 647,
652 n.1 (1992) (noting that, in this context, presumptive prejudice “does not
necessarily indicate a statistical probability of prejudice; it simply marks the point at
43
which courts deem the delay unreasonable enough to trigger the Barker enquiry”).
Although there is no set length of delay which triggers the Barker analysis, courts
have generally held that delays approaching one year are unreasonable enough.
Balderas, 517 S.W.3d at 768; Cantu, 253 S.W.3d at 281. The extent to which the
delay exceeds the minimum amount of time needed to trigger the analysis “factors
into our assessment of the first Barker factor.” Balderas, 517 S.W.3d at 768; see
Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (stating that because
three-and-a-half-year delay between arrest and trial “stretched far beyond the
minimum needed to trigger the enquiry,” length of delay weighed heavily in favor
of finding violation of right).
Once the Barker analysis is triggered, we must analyze the speedy trial claim
by first weighing the strength of each factor and then balancing their relative weights
in light of the conduct of both the prosecution and the defendant. Cantu, 253 S.W.3d
at 281. No single factor is necessary or sufficient to establish a violation of the
speedy trial right. Dragoo, 96 S.W.3d at 313. Instead, the factors are related, and we
must consider them together “along with any other relevant circumstances.” Cantu,
253 S.W.3d at 281. Because dismissal of the charging instrument is a “radical
remedy,” we must apply the Barker test “with common sense and sensitivity to
ensure that charges are dismissed only when the evidence shows that a defendant’s
44
actual and asserted interest in a speedy trial has been infringed.” Id. “The
constitutional right is that of a speedy trial, not dismissal of the charges.” Id.We apply a bifurcated standard of review in addressing speedy trial claims.
Lopez, 631 S.W.3d at 113–14. We give almost total deference to the trial court’s
historical fact findings that are supported by the record, and we draw reasonable
inferences from those facts necessary to support the findings. Balderas, 517 S.W.3d
at 767–68. When the trial court denies a speedy trial motion, we presume that the
court resolved any disputed factual issues in favor of the State, and we defer to
implied fact findings that are supported by the record. Cantu, 253 S.W.3d at 282.
We should not consider record evidence that was not before the trial court when it
made its ruling. Balderas, 517 S.W.3d at 768. Review of the individual Barker
factors necessarily involves both fact determinations and legal conclusions, but “the
balancing test as a whole is a purely legal question that we review de novo.” Lopez,
631 S.W.3d at 114; Balderas, 517 S.W.3d at 768.
B. Analysis of Barker v. Wingo Factors
1. Length of delay
Martinez was arrested in April 2015 and indicted in October 2015. He moved
to dismiss the charges against him in October 2021. This delay was six years from
the date of indictment and six-and-a-half years from the date of arrest. See Gonzales
v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014) (“The length of the delay is
45
measured from the time the accused is arrested or formally accused.”). Both parties
agree that the length of the delay is enough to trigger the analysis under Barker. See
Balderas, 517 S.W.3d at 768 (“In general, courts deem delay approaching one year
to be unreasonable enough to trigger the Barker enquiry.”) (quotations omitted).
Moreover, because this delay “stretched far beyond the minimum needed to trigger
the inquiry,” this first factor “weighs heavily in favor of” finding that a violation of
Martinez’s speedy-trial right occurred. See id.; Dragoo, 96 S.W.3d at 314; see also
Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (“[A]ny speedy trial
analysis depends first upon whether the delay is more than ‘ordinary’; if so, the
longer the delay beyond that which is ordinary, the more prejudicial that delay is to
the defendant.”).
2. State’s reason for the delay
We assign different weights to different reasons the State provides to justify
the delay. Balderas, 517 S.W.3d at 768; Dragoo, 96 S.W.3d at 314; Zamorano, 84
S.W.3d at 649. “Some reasons are valid and serve to justify an appropriate delay.”
Balderas, 517 S.W.3d at 768; Gonzales, 435 S.W.3d at 810 (“Unjustifiable reasons
for delay count towards the ‘length of delay,’ while justifiable reasons for delay do
not.”); Ussery v. State, 596 S.W.3d 277, 285 (Tex. App.—Houston [1st Dist.] 2019,
pet. ref’d) (“A valid delay should not weigh against the State at all.”) (quotations
omitted).
46
A deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government
rather than with the defendant. Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay.
Barker, 407 U.S. at 531. We must consider whether the government or the defendant
“is more to blame for the delay,” and delay caused by either the defendant or his
counsel weighs against the defendant. Balderas, 517 S.W.3d at 768 (alterations and
internal quotations omitted); State v. Davis, 549 S.W.3d 688, 699 (Tex. App.—
Austin 2017, no pet.) (“Delay caused by the defendant or his counsel weighs against
the defendant. Delay caused by law enforcement or the prosecution weighs against
the State.”) (citations omitted). “In the absence of an assigned reason for the delay,
a court may presume neither a deliberate attempt on the part of the State to prejudice
the defense nor a valid reason for the delay.” Dragoo, 96 S.W.3d at 314.
On appeal, Martinez acknowledges that “[n]othing in the record suggests that
the prosecutor deliberately tried to delay the trial to gain any tactical advantage.” He
argues that, nevertheless, “the State still caused significant delays.”
The Harris County District Attorney’s Office filed a criminal complaint
against Martinez on April 16, 2015. It is unknown when Martinez was arrested, but
he posted bond on April 20, 2015, and the trial court placed him on pretrial
supervision. A grand jury indicted Martinez for two counts of sexual assault of a
47
child against Megan on October 13, 2015. A grand jury also indicted Martinez for
sexual assault of a disabled person against Megan’s sister Katherine in January 2016.
The charge against Katherine was not tried in the underlying proceeding.
The appellate record contains little documentation of what occurred in the
case throughout the end of 2015, 2016, and the beginning of 2017. The trial court
ordered Martinez to submit to DNA testing in October 2015, ordered him to submit
to HIV testing in December 2015, and granted him permission to travel outside of
Harris County in December 2015, June and July 2016, October and November 2016,
and April 2017.
In June 2017, Martinez moved for a continuance, arguing that the State had
not provided him with a copy of Katherine’s statement, and questions had arisen
involving Katherine’s competency, which required expert evaluation.10 The trial
court granted this motion. The trial court’s docket sheet reflects that during the
period between indictment and the granting of the June 2017 motion for continuance,
the case was reset eight times on Martinez’s request, twice by the court, and once on
the agreement of both parties. The “case reset forms” corresponding to these resets
are not included in the appellate record.
10
The State notified Martinez that it intended to use hearsay statements by Katherine
as extraneous offense evidence in the underlying proceeding involving the charges
against Megan. Ultimately, however, Katherine did not testify, and the jury did not
hear any evidence that Martinez had allegedly sexually abused her.
48
In August 2017, Hurricane Harvey hit the Houston area, causing widespread
flooding, property damage, and significant disruption to court operations in Harris
County. In the year following Hurricane Harvey, the case was reset an additional
seven times. The docket sheet reflects that five of these resets occurred with the
agreement of both parties, and two resets were by the court. Two of the “case reset
forms” for these resets are contained in the appellate record. On March 26, 2018, the
case was reset until April 5, 2018. On the portion of the form stating “Reset by,”
boxes are checked next to “Court” and “Defense.” The form also notes that “[defense
attorney] arguing before [court of appeals] in Brazoria County.” The docket sheet
entry for this date states, “Reset By Agreement Of Both Parties, 4/05/2018 09:00
AM Pre-Trial Motions.” On April 5, 2018, the case was reset for a suppression
hearing on September 21, 2018, and a jury trial on October 22, 2018. The “Reset by”
portion of the case reset form again has check marks next to “Court” and Defense,”
and the docket sheet again states that the case was “Reset By Agreement Of Both
Parties.”
In September 2017, Megan was charged with an offense in Fort Bend County.
In October 2018, the State provided two Brady notifications, informing Martinez
that (1) Megan had been charged with an offense; (2) her bond for that pending
49
charged had been revoked because she cut off her ankle monitor and absconded;11
and (3) Sweeney believed that Megan had lied under oath during a bond hearing for
her husband. Around the same time that the State provided these notifications, and
shortly before the October 22, 2018 trial setting, Martinez filed a motion for
production of evidence, seeking information concerning Katherine’s competency.
Martinez also moved for a continuance based on the need to investigate the charges
against Megan. Martinez requested that the State produce recordings of phone calls
between Megan and her husband while her husband was in jail. The trial court
granted the motion for continuance and the motion requiring the State to produce the
jail call recordings and evidence relating to Megan’s criminal charge. The case was
then reset for a pretrial hearing on February 15, 2019, and a jury trial on March 25,
2019.
The case was reset four more times throughout 2019 and early 2020. On each
occasion, the case reset form indicated that the case was reset by “Court” and
“Defense.” The docket sheet states that three of these resets were “By Agreement Of
Both Parties,” and one reset was by the court. The last of these resets, approved on
January 6, 2020, reset the case for trial on May 4, 2020.
11
The record does not indicate when the State made contact again with Megan after
she absconded, but Martinez represents that Megan’s whereabouts were unknown
for around a year and a half.
50
In March 2020, the COVID-19 pandemic began and caused significant
disruption to the judicial system, with nearly all jury trials delayed for months
throughout the state. On October 5, 2020, the case was reset for trial on January 11,
2021. The reset form stated that the case was reset by “Defense.” Although the
record contains no form resetting the case from January 11, 2021, to a later date, it
is undisputed that trial did not occur on this date. On February 4, 2021, Martinez
filed an unopposed motion for continuance, arguing that his daughter Kristen, “a
material witness in this cause,” was working as a nurse for COVID patients in El
Paso and could not travel to Houston for trial. The trial court granted the motion for
continuance, and the case was reset for trial on August 16, 2021.
On July 7, 2021, the State and Martinez filed a joint motion for continuance.
The prosecutor informed the court that his wife was scheduled to give birth ten days
before the August trial setting, and defense counsel informed the court that, in
reliance on the prosecutor’s conflict, he had agreed to assist in the care of his young
grandchildren during the week of the trial setting. The trial court granted the joint
motion and reset the trial for October 18, 2021.
Four days before the October 18, 2021 trial setting, Martinez again moved for
a continuance. Defense counsel argued that a continuance was necessary because he
had had surgery in September 2021 and was not yet physically able to participate in
a jury trial; arrangements needed to be made for Kristen, who lived in Arizona and
51
was undergoing a high-risk pregnancy, to travel to Houston; and counsel had an
appellate argument scheduled in Eastland. The trial court granted the motion and
reset the case for a pretrial hearing on October 29, 2021, and a jury trial on November
15, 2021. Martinez moved to dismiss the indictment on speedy trial grounds on
October 28, 2021, the day before the scheduled pretrial hearing.
At the speedy trial hearing and on appeal, Martinez argues that some of the
delays were attributable to the State, specifically delay relating to the charge
involving Katherine. He argues that the State intended to use that case as an
extraneous offense in the underlying proceeding, but the State allegedly did not
provide Martinez with a copy of Katherine’s statement—requiring Martinez to move
for a continuance in June 2017—and did not comply with other discovery requests
concerning Katherine’s competency—requiring Martinez to file a motion for
production of evidence in October 2018. As further evidence of delay caused by the
State, Martinez points to Megan’s pending criminal charge in 2017 and 2018. At
some point while that charge was pending, Megan severed her ankle monitor and
absconded, leaving her whereabouts unknown to the State for nearly a year-and-a-
half. In October 2018, Martinez filed a motion for production, seeking information
concerning the pending charge against Megan as well as recordings of jail calls
involving Megan and her husband, and a motion for continuance. The trial court
granted this motion for continuance.
52
The trial court did not make written findings concerning Martinez’s speedy-
trial motion. However, the court stated on the record that it did not believe that any
delay caused by researching Katherine’s competency, trying to determine whether
she qualified as a disabled person, and reviewing over 300 jail calls between Megan
and her husband raised a speedy-trial concern.
To the extent the State delayed in producing Katherine’s statement and
evidence concerning her competency, such as information concerning what testing
had been done with Katherine and the results of those tests, there is no evidence that
any delay was deliberate or the result of bad faith. See Richardson v. State, 631
S.W.3d 269, 276 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). Thus, at most,
this delay weighs slightly against the State. See id. However, with respect to the
delay caused by the production and review of the jail calls between Megan and her
husband, this was a discovery request initiated by Martinez, and this delay is more
appropriately attributable to the defense, and not to the State. See Davis, 549 S.W.3d
at 703 (balancing delay from State’s motion for continuance for completion of DNA
testing against defense’s initiation of request for DNA testing, benefit of having
testing, and court’s decision to have “everything tested for DNA” before retrial of
defendant). Additionally, Megan absconded while on bail for a pending charge, and
the State was unable to locate her for approximately eighteen months. A “missing
53
witness” is a “valid reason” that “should serve to justify appropriate delay.”
Gonzales, 435 S.W.3d at 809–10 (quotations omitted).
The appellate record reflects that Martinez filed several motions for
continuance throughout the case, including a motion for continuance mere weeks
before filing his motion to dismiss, and the case reset forms and the trial court’s
docket sheet reflect that numerous resets were made at Martinez’s request. These
delays were attributable to Martinez. See Laird v. State, —S.W.3d—, No. 03-21-
00631-CR, 2023 WL 8852509, at *5–6 (Tex. App.—Austin Dec. 22, 2023, pet.
ref’d); see also Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003)
(“[G]iven defense counsel’s statements to the trial court regarding [the defendant’s]
motions for continuance, the trial court could have reasonably concluded that [the
defendant] himself was responsible for several months of the delay.”); Cavitt v.
State, 507 S.W.3d 235, 245 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)
(considering that trial court’s docket sheet indicated that trial had been “reset by
agreement of both parties” and indicated that “several of the previous resets were
done at defendant’s request” and concluding that “the record evidence about who
was responsible for the trial delay is at best neutral”).
Martinez also acknowledges that two “major catastrophes” contributed to the
delay of his trial: Hurricane Harvey and the COVID-19 pandemic. In conducting a
speedy trial analysis, this Court has concluded that the disruption to the Harris
54
County court system caused by Hurricane Harvey was a valid reason that justified
delay. See Ussery, 596 S.W.3d at 286 (noting that damage from Hurricane Harvey
was valid reason for delay which should not weigh against State). Our sister
intermediate appellate courts have not reached a uniform conclusion concerning
whether delays caused by the pandemic should weigh against the State or be neutral,
but courts reasoning that the delay should weigh against the State have concluded
that this delay should not weigh heavily. See, e.g., Laird, 2023 WL 8852509, at *5
(“To the extent that the pandemic and related court closures weigh against the State,
they do so but slightly.”); see also State v. Conatser, 645 S.W.3d 925, 930 (Tex.
App.—Dallas 2022, no pet.) (“Delay caused by the onset of a pandemic cannot be
attributed as fault to the State.”).
In sum, there were multiple periods of delay throughout this case with
multiple causes. There is evidence that the State delayed in producing Katherine’s
statement and evidence concerning her competency, although there was no evidence
that this delay was done deliberately or in bad faith. There is also evidence that the
defense contributed to several periods of delay by filing motions for continuances,
requesting resets of the trial setting, and requesting and reviewing jail calls between
Megan and her husband. Finally, there is evidence that delay was caused by factors
outside the control of all parties and the trial court: Hurricane Harvey and the
pandemic. We therefore conclude that this factor is neutral.
55
3. Defendant’s assertion of his right to speedy trial
Although the defendant “has no duty to bring himself to trial,” as that is the
State’s duty, the defendant does have the responsibility to assert his right to a speedy
trial. Cantu, 253 S.W.3d at 282. This factor is “closely related” to the other three
Barker factors “because the strength of his efforts will be shaped by them,” that is,
“[t]he more serious the deprivation, the more likely a defendant is to complain.” Id.at 282–83 (quoting Barker, 407 U.S. at 531). Thus, the defendant’s assertion of his
right to speedy trial—or his failure to assert the right—is “entitled to strong
evidentiary weight in determining whether the defendant has been deprived of that
right.” Balderas, 517 S.W.3d at 771; Cantu, 253 S.W.3d at 283.
A defendant’s lack of a timely demand for a speedy trial “indicates strongly
that he did not really want one.” Balderas, 517 S.W.3d at 771. The longer a delay
becomes, “the more likely a defendant who wished a speedy trial would be to take
some action to obtain it.” Dragoo, 96 S.W.3d at 314 (quotations omitted). Thus,
“inaction weighs more heavily against a violation the longer the delay becomes.”
Balderas, 517 S.W.3d at 771 (quoting Dragoo, 96 S.W.3d at 314). We also must
consider how the defendant asserts the speedy trial right. Moving for dismissal of
the charging instrument instead of a speedy trial “will generally weaken a speedy-
trial claim because it shows a desire to have no trial instead of a speedy one.” Cantu,
253 S.W.3d at 283. If a defendant fails to seek a speedy trial before moving for
56
dismissal of the charges, “he should provide cogent reasons for this failure.” Id.Repeated requests for a speedy trial “weigh heavily in favor of the defendant,” but
the failure to make such requests “supports an inference that the defendant does not
really want a trial, he wants only a dismissal.” Id.Four days prior to the October 18, 2021 trial setting, Martinez moved for a
continuance. The trial court granted the continuance, and the case was reset for a
pretrial hearing on October 29, 2021, and set for trial on November 15, 2021. On
October 28, 2021, Martinez filed a motion to dismiss the indictments on speedy trial
grounds. Martinez sought dismissal of the charges with prejudice. There is no
indication in the appellate record that Martinez asserted his speedy-trial right on any
other occasion.12
The indictment against Martinez was pending for more than six years before
he asserted his right to a speedy trial. This length of delay in asserting the right to a
speedy trial “indicates strongly that [Martinez] did not really want” a speedy trial.
See Balderas, 517 S.W.3d at 771; Dragoo, 96 S.W.3d at 314 (“[T]he longer delay
becomes, the more likely a defendant who wished a speedy trial would be to take
12
On appeal, Martinez argues that he asserted his speedy trial right via his trial
counsel, who “showed his eagerness to move the trial schedule along by
aggressively pursuing discovery,” including by “fil[ing] no less than three motions
for production of evidence.” Martinez cites no authority for the proposition that
defense counsel’s attempts to obtain discovery constitute an assertion of the right to
speedy trial.
57
some action to obtain it.”) (quotations omitted). Moreover, when Martinez asserted
his right to a speedy trial in late October 2021, the case was set for trial mere weeks
later in mid-November. Martinez also did not request a speedy trial; instead, he
moved for dismissal of the indictment. This action weakens Martinez’s speedy trial
claim “because it shows a desire to have no trial instead of a speedy one.” See Cantu,
253 S.W.3d at 283. We conclude that this factor weighs in favor of the State. See
Balderas, 517 S.W.3d at 771; Cantu, 253 S.W.3d at 283.
4. Prejudice to defendant because of length of delay
Pretrial delay “is often both inevitable and wholly justifiable,” so we must
examine “whether and to what extent the delay has prejudiced the defendant.” Cantu,
253 S.W.3d at 285 (quoting Doggett, 505 U.S. at 656). We analyze prejudice in light
of the three interests that the speedy-trial right was designed to protect:
(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) limiting the possibility that the defense will be
impaired. Balderas, 517 S.W.3d at 772. The third interest “is the most important
because the fairness of the criminal-justice system is distorted when a defendant is
unable to adequately prepare his defense.” Id.; Cantu, 253 S.W.3d at 285. The
defendant bears the burden to make “some showing of prejudice,” but he need not
show “actual prejudice.” Balderas, 517 S.W.3d at 772. “Conclusory assertions are
58
not sufficient to carry a defendant’s burden to show that he was prejudiced by delay.”
Ussery, 596 S.W.3d at 289.
We note that “[e]xcessive delay presumptively compromises the reliability of
a trial in ways that neither party can prove or identify.” Balderas, 517 S.W.3d at 772;
Gonzales, 435 S.W.3d at 812; see also Doggett, 505 U.S. at 652 (“[T]he presumption
that pretrial delay has prejudiced the accused intensifies over time.”). “In such
instances, the defendant is absolved from the requirement to demonstrate prejudice.”
Gonzales, 435 S.W.3d at 812; see Doggett, 505 U.S. at 655–56 (“While such
presumptive prejudice cannot alone carry a Sixth Amendment claim without regard
to the other Barker criteria, it is part of the mix of relevant facts, and its importance
increases with the length of delay.”) (internal citation omitted). However, the
“presumption of prejudice is extenuated by the defendant’s acquiescence in the
delay.” Dragoo, 96 S.W.3d at 315 (alterations and internal quotations omitted); see
Gonzales, 435 S.W.3d at 815 (“When a defendant has timely asserted his right to a
speedy trial, it is a difficult task for the State to prove that the defendant acquiesced
in the delay.”).
In his motion to dismiss, Martinez relied almost entirely on the presumption
of prejudice caused by the six-year delay between indictment and his assertion of
the speedy trial right in his motion. Martinez attached no evidence to his motion, but
he did argue that “[t]here are no actual dates for the alleged offenses” and he “has
59
attempted to use debit cards and travel records to attempt to reconstruct a three year
time period three years after the events.” During a hearing on several pre-trial
motions, the trial court addressed Martinez’s motion to dismiss and admitted two
exhibits: a timeline of relevant events following Martinez’s indictment and records
from Fort Bend County relating to Megan’s 2017 arrest. The court also took judicial
notice of its file. No witness testified during the speedy-trial portion of this pretrial
hearing, and defense counsel did not make any specific arguments about prejudice.
On appeal, Martinez again relies upon the presumption of prejudice resulting
from the lengthy delay before trial. He also argues that “[t]he effect of such a delay
on witness’s memories was keenly felt in this trial,” noting that both Megan and
Matthew repeatedly stated during their testimony that they could not recall certain
information. Martinez argues that the citations that he provided for these instances
“serve as examples and are by no means an exhaustive list of the time when these
key witnesses could not provide information to the jury due to memory problems
caused, at least in part, by the length of time between the events in question and the
trial.” Martinez does not point to any instances in which defense witnesses were
unable to recall specific events. See Barker, 407 U.S. at 521 (“Delay is not an
uncommon defense tactic. As the time between the commission of the crime and
trial lengthens, witnesses may become unavailable or their memories may fade. If
the witnesses support the prosecution, its case will be weakened, sometimes
60
seriously so. And it is the prosecution which carries the burden of proof.”); Rivera
v. State, 990 S.W.2d 882, 892 (Tex. App.—Austin 1999, pet. ref’d) (“The
unavailability of some witnesses and forgetfulness of others could, of course, benefit
[the defendant] by weakening the State’s case. Time can damage either side’s case,
and it is often impossible to determine which side has been prejudiced more
severely.”).
Martinez also does not make any arguments concerning the other interests that
the speedy-trial right was designed to protect: preventing oppressive pretrial
incarceration and minimizing the anxiety and concern of the accused. See Balderas,
517 S.W.3d at 772. The appellate record reflects that the complaint was filed against
Martinez on April 16, 2015, and his bail was approved on April 20, 2015. Although
Martinez’s bail was revoked at least twice, the record indicates that bail was
reinstated almost immediately each time, and therefore Martinez spent nearly all, if
not all, of the pendency of the case free from pretrial incarceration. The record also
reflects that Martinez requested and received permission to travel throughout Texas
and out of state—sometimes for lengthy periods of time—nine times throughout the
pendency of the case.
Due to the length of delay in this case, a presumption of prejudice exists. See
id. However, the “presumption of prejudice is extenuated by the defendant’s
acquiescence in the delay.” Dragoo, 96 S.W.3d at 315 (alterations and internal
61
quotations omitted). As we have noted above, Martinez himself was responsible for
significant portions of the delay by requesting multiple resets and filing several
motions for continuance. The presumption of prejudice, therefore, has been rebutted.
See Hopper v. State, 520 S.W.3d 915, 929 (Tex. Crim. App. 2017) (“Any
presumptive prejudice due to the passage of time was extenuated by appellant’s
acquiescence in the delay and even further extenuated by appellant’s failure to
employ a remedy that would have guaranteed him a speedy trial.”). Martinez has
failed to demonstrate any prejudice as a result of the delay. Although he points to
multiple instances where Megan and Matthew were unable to recall information,
they were both witnesses for the prosecution. He points to no instances in which
defense witnesses experienced similar memory recall problems. Furthermore, he
presented no evidence in the trial court—and does not argue on appeal—that he
suffered oppressive pretrial incarceration or any anxiety or concern beyond that
typically experienced by a person facing criminal charges. We conclude that this
factor weighs against Martinez.
5. Balancing of factors
Having analyzed each of the Barker factors, we now must balance them. See
Balderas, 517 S.W.3d at 773. The length of the delay—six years between indictment
and Martinez’s assertion of the speedy trial right—weighs heavily in favor of finding
a speedy trial violation. However, although at least part of the delay could be
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attributed to the State, the defense also contributed to the delay by seeking resets and
moving for continuances, and factors outside the control of both parties also
contributed to the delay. This factor is neutral in the analysis. Next, Martinez waited
six years to assert his right to a speedy trial, and he did so within weeks of a trial
setting by seeking dismissal of the indictments against him. This factor weighs in
favor of the State. Finally, Martinez’s acquiescence in the delay rebutted any
presumption of prejudice caused by the length of the delay, and he presented no
evidence that his defense had been compromised by the delay or that he had suffered
from oppressive pretrial incarceration or anything beyond minimal anxiety and
concern. Upon balancing the Barker factors, we conclude that Martinez’s right to a
speedy trial was not violated. We hold that the trial court did not err by denying
Martinez’s motion to dismiss the indictments on speedy trial grounds.
We overrule Martinez’s fifth issue.
Conclusion
We affirm the judgments of the trial court.
April L. Farris
Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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