                                  NO. 07-04-0083-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                SEPTEMBER 30, 2004

                         ______________________________


                       CANDELARIO MARTINEZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B14878-0303; HONORABLE ED SELF, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Following his plea of not guilty, appellant Candelario Martinez was convicted by a

jury of failure to stop and render aid, and the court assessed punishment at five years

confinement, probated for five years, and a $5000 fine. In presenting this appeal, counsel
has filed an Anders1 brief in support of a motion to withdraw. We affirm and grant

counsel's motion to withdraw.


       On the evening of January 25, 2003, the victim was helping friends haul a hay bale

to one of their homes, when the bale rolled off the truck and landed in the middle of the I-

27 service road. While attempting to load the bale back onto the truck, the victim was

struck by a vehicle driven by appellant. Appellant slowed down after striking the victim, but

did not stop. Instead, he drove home, phoned his daughter, and “instructed her to call

someone.” When DPS Trooper Guadalupe DeLuna arrived at the scene he located the

victim, flanked by his friends, lying in the bar ditch. According to DeLuna, the victim’s

“breathing was real shallow,” “he was injured pretty bad,” and “he was just lying there

unresponsive.” Emergency personnel responded to the scene and transported the victim

to the hospital, where he later died from his injuries. Testing of the blood sample taken

from the victim on the night of the offense revealed that it “contained 0.23 grams of alcohol

per 100 ml.”


       After leaving the crime scene, DeLuna went to appellant’s house and talked to him

about the accident. Appellant admitted that “he was the one that was involved in the

accident . . . ‘north of town,’” and that “he knew he had hit somebody.” Appellant then

voluntarily accompanied officers to the hospital where he provided them with a specimen




       1
           See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                              2
of his blood for purposes of determining blood alcohol content. Testing of appellant’s

blood revealed “No alcohol detected.”


       The Hale County Grand Jury returned a two count indictment against appellant

alleging manslaughter in count one and failure to stop and render aid in count two. At trial,

appellant testified and vigorously asserted the defense that the victim’s negligence in being

intoxicated and standing on the roadway at night mitigated appellant’s responsibility for,

if not directly resulted in, the victim’s demise. With regard to count two, appellant claimed

that he did not stop and render aid because he was afraid that the victim’s friends “were

going to beat [him] up or hurt [him] or even kill [him].” In its charge, the court instructed the

jury on the law related to manslaughter and its lesser included offense, criminally negligent

homicide. The court also included an instruction on the affirmative defense of duress. By

its verdict, the jury found in favor of appellant as to count one, but rejected the duress

defense associated with count two.


       By his brief, counsel certifies that he diligently reviewed the record and, in his

opinion, it reflects no reversible error or grounds upon which an appeal can be predicated.

Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). He,

thus, concludes the appeal is frivolous and without merit. In the brief, counsel discusses

why, under the controlling authorities, there is no error in the court's judgment. See High

v. State, 573 S.W.2d 807, 813 (Tex. Cr.App. 1978).




                                               3
       We discern from the record that, in addition to providing appellant with a copy of the

motion to withdraw, counsel also included a letter informing appellant that, in his view, the

appeal is without merit. In the letter, counsel notified appellant of his right to review the

record and file a pro se response. Appellant did not avail himself of that right, and the

State did not favor us with a brief. Nevertheless, since this is an Anders case, we must

conduct an independent examination of the record for error.2 See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).


                                    1. The Indictment


       The indictment properly alleges the offenses of manslaughter and failure to stop and

render aid. See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003) and Tex. Trans. Code

Ann. § 550.021(c) (Vernon 1999).3 Assuming arguendo that errors did exist in the

indictment, the error could not be raised on appeal because appellant did not file a pretrial

motion alleging error in it. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp.

2004-05). Thus, we find no arguable error in the indictment.




       2
        While recognizing the tenets of a memorandum opinion, we deem the facts of this
case to present one of the “certain instances” warranting a detailed explanation of what our
independent review entailed. Morales v. State, ___ S.W.3d ___, No. 13-03-035-CR, 2004
WL 1854213, at *1 (Tex.App.–Corpus Christi August 19, 2004, no pet. h.)
       3
       Considering appellant was acquitted of manslaughter, we will focus our analysis to
the remaining count of failure to stop and render aid.

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                                      2. Pretrial Motions


       The record reflects the trial court entered a standard discovery order imposing upon

the State the continuing duty to disclose to appellant various matters relevant to the

preparation of his defense. Additionally, the order encouraged the parties “to avoid filing

motions that duplicate any of” its provisions. No pretrial motions appear in the record. The

docket sheet reflects that, while a pretrial hearing was called for June 9, 2003, neither

appellant nor his attorney appeared. Considering the breadth of the court’s discovery

order, and given the absence of any pretrial rulings adverse to appellant, we discern no

error in the pretrial proceedings.


                                         3. Voir Dire


       A review of the voir dire examination shows that some venire members were

acquainted with various potential State witnesses. However, in every case, the members

indicated their relationships with the potential witnesses did not “rise to such a level that

[they] would have difficulty being fair and impartial if [the witnesses] were to testify.”

Neither the State nor appellant exercised any challenges for cause. Thus, the trial court

could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex.Cr.App.

2001)(noting that denial of a proper challenge for cause is error because the make up of

the jury affects its decision).      Furthermore, the trial court did not limit appellant’s

questioning of the jury.    See Nunfio v. State, 808 S.W.2d 482, 485 (Tex.Cr.App.

1991)(holding that error in the denial of a proper question which prevents the intelligent

                                               5
exercise of peremptory challenges is an abuse of discretion, not subject to harm analysis).

We, therefore, find no arguable error in the voir dire proceedings.


                                 4. Opening Statements


       As a general rule, a timely and reasonably specific objection is required to preserve

error for appellate review. Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217

(Tex.Cr.App. 2002). Although each side presented opening statements, neither objected

to the other’s. Appellant has, thus, waived any error in the State’s opening statement. Id.

Moreover, we find no arguable error in the State’s opening statements.


                    5. Legal and Factual Sufficiency of the Evidence


       It is a fundamental rule of criminal law that one cannot be convicted of a crime

unless it is shown beyond a reasonable doubt that the defendant committed each element

of the alleged offense. U. S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03

(Vernon Supp. 2004-05); Tex. Pen. Code Ann. 2.01 (Vernon 2003). In conducting a legal

sufficiency review, we must determine whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612

(Tex.Cr.App. 2001). As an appellate court, we may not sit as a thirteenth juror, but must

uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum


                                             6
of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988). In measuring

the sufficiency of the evidence to sustain a conviction, we measure the elements of the

offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex.Cr.App. 1997).


       After conducting a legal sufficiency review, we may proceed with a factual

sufficiency review. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). As an

appellate court, we view all the evidence in a neutral light, favoring neither party. Johnson

v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). We will set aside the verdict only if: (1) it is

so weak as to be clearly wrong and unjust; or (2) the adverse finding is against the great

weight and preponderance of the available evidence. Id. It is the exclusive province of the

jury to determine the credibility of the witnesses and the weight to be given their testimony,

and unless the record demonstrates a different result is appropriate, we must defer to the

jury's determination. Id. at 8.


       Appellant admitted he drove the vehicle that struck and killed the victim. He also

conceded that he did not stop to check on the welfare of the victim. Measuring appellant’s

testimony against a hypothetically correct jury charge, we conclude it established that (1)

he was involved in an accident resulting in injury to or death of a person; and that he did

not (2) immediately stop the vehicle at, or immediately return it to, the scene of the

accident or as close to the scene as possible; and (3) remain at the scene of the accident

until he had complied with his duty to give information and render aid. See Tex. Trans.


                                              7
Code Ann. § 550.021(a). Therefore, appellant’s testimony alone demonstrated beyond a

reasonable doubt the elements of the offense of failure to stop and render aid.

Furthermore, appellant’s only defense to the charge with which he was convicted was that

of duress. See Tex. Pen. Code Ann. § 8.05(a). This, however, the jury was free to believe

or disbelieve. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Cr.App. 2001)(holding that it

is the jury that accepts or rejects reasonably equal competing theories of a case). Given

appellant’s obvious interest in the outcome of the trial, and the State’s witnesses’ testimony

that they did not threaten appellant, a rational jury was entitled to find that he had not

proven his affirmative defense by a preponderance of the evidence. See Tex. Pen. Code

Ann. § 2.04(d). In short, the proof of appellant’s guilt is not so obviously weak as to

undermine confidence in the jury’s determination. See King, 29 S.W.3d, 556, 563.

(Tex.Cr.App. 2000). Neither do we find that the proof of guilt, although adequate if taken

alone, is greatly outweighed by contrary proof. Id. We, thus, find no arguable factual or

legal sufficiency ground of error.


                                     6. Closing Argument


        Appellant made no objections to the State’s closing arguments; therefore, he

waived any error. See Tucker v. State, 990 S.W.2d 261, 262 (Tex.Cr.App. 1999).

Furthermore, we find no arguable error in the State’s closing arguments.




                                              8
                                  7. Punishment Phase


       Again, a timely and reasonably specific objection is required to preserve error for

appellate review. Tex. R. App. P. 33.1(a); Hull, 67 S.W.3d at 217. Appellant did not object

during the punishment phase on any basis; therefore, he waived any challenge to the

sentence imposed. See Rhodes v. State, 934 S.W.2d 113, 120 (Tex.Cr.App. 1996).

Furthermore, the five year probated sentence and $5000 fine were within the range of

punishment prescribed by statute. See Tex. Trans. Code Ann. § 550.021(c). Resultantly,

we find no arguable error in the punishment phase.


                           8. Ineffective Assistance of Counsel


       A claim of ineffective assistance of counsel is reviewed under the standard set out

in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under

that standard, a defendant must establish that: (1) counsel's performance was deficient

because it fell below an objective standard of reasonableness; and (2) a reasonable

probability sufficient to undermine confidence in the outcome existed that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. Rylander

v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003). Failure to make the required showing

of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021,

115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Any allegation of ineffective assistance of

counsel must be firmly founded in the record, and the record must affirmatively

                                             9
demonstrate the alleged ineffectiveness.          Thompson v. State, 9 S.W.3d 808, 813

(Tex.Cr.App. 1999). Generally, the record on direct appeal will not be sufficient to show

that counsel's conduct was so deficient as to meet the first prong of the Strickland standard

as the reasonableness of counsel's choices often involves facts that do not appear in the

record. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Instead, an

application for a post-conviction writ of habeas corpus is usually the appropriate manner

in which to raise and develop claims based on ineffective assistance of counsel. Id. Here,

the record contains no evidentiary support for any claim of ineffective assistance of

counsel. To the contrary, we conclude that the fact that appellant was acquitted of

manslaughter, the higher degree offense charged in count one, is at least some evidence

of trial counsel’s effectiveness. Thus, having found no non-frivolous issues, we agree with

counsel that the appeal is without merit. Currie v. State, 516 S.W.2d at 684.


       Accordingly, the judgment of the trial court is affirmed, and counsel's motion to

withdraw is granted.



                                          Don H. Reavis
                                            Justice

Do not publish.




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