                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                           No. 04-17-00605-CR

                                        Julian Andrew MARTINEZ,
                                                 Appellant

                                                   v.

                                          The STATE of Texas,
                                                Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR5210
                         The Honorable Laura Lee Parker, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: September 26, 2018

AFFIRMED

           A jury convicted Julian Martinez for the offense of murder in the shooting death of Amanda

Acosta, which occurred in March 2016. Based upon the jury’s recommendation, the trial court

sentenced Martinez to thirty years’ imprisonment. On appeal, Martinez challenges the sufficiency

of the evidence supporting his conviction. Martinez additionally contends the trial court erred by

denying his motion for new trial and not holding a hearing on the motion; the State failed to

disclose exculpatory evidence; and he was denied the right to a unanimous verdict. We affirm.
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                                               BACKGROUND

           The night of March 14, 2016, Martinez attended a party with Manuel Escamilla. During

the party, Martinez had a physical altercation with Raven Moreno, who attended the party with

Amanda Acosta. The homeowner where the party took place ordered the party attendees to leave,

and Martinez and Moreno continued arguing outside as Moreno and Acosta walked to their

vehicle, a black Jeep. Escamilla, also identified as “Big Meech,” testified he entered his own

vehicle and heard gunshots, although he could not identify from where the shots originated.

Moreno and Acosta had entered the Jeep. Acosta sat in the rear passenger seat, where a bullet

traveled through the back of the vehicle and hit Acosta, killing her.

           Shortly thereafter, Martinez entered Escamilla’s vehicle holding a handgun. Escamilla

testified Martinez fired the handgun from the front passenger’s seat of Escamilla’s vehicle, and

Escamilla then drove away from the scene. Travis Erickson, another party attendee, testified he

saw Martinez with a handgun. Erickson additionally testified he heard a gunshot from the

passenger’s side of the car that he saw Martinez enter.

           Escamilla testified that he and Martinez spoke the following day at Escamilla’s home.

According to Escamilla, Martinez admitted to shooting someone the night before and also showed

Escamilla a news report of the incident, which identified Acosta as the victim. Also according to

Escamilla, Martinez had once showed Escamilla a handgun, and told Escamilla it was a Glock .40

caliber.

           During the investigation of the incident, officers found a .40 caliber bullet shell at the scene.

Additionally, Detective Dustin Duffin testified he located four bullet holes in the Jeep. According

to Detective Duffin, the bullet hole located in the back hatch of the Jeep was caused by either a

9mm or .40 caliber bullet. Medical Examiner, Dr. William McClain recovered a bullet from

Acosta’s body. Dr. McClain testified the bullet entered Acosta’s back and traveled downward
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toward the front of her body. Dr. McClain further testified the bullet was “medium caliber,” and

Detective Mark Duke confirmed the bullet recovered by Dr. McClain was a .40 caliber bullet.

                                                      ANALYSIS

                                          Sufficiency of the Evidence

         In his first issue, Martinez contends the evidence is insufficient to support his conviction

for murder. 1 Specifically, Martinez argues the witnesses’ testimonies failed to link him to the

offense because the evidence is insufficient to link Martinez to the murder weapon.

Standard of Review

         When examining the sufficiency of the evidence, we consider all the evidence in the light

most favorable to the conviction to determine whether, based on the evidence and reasonable

inferences therefrom, a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012).                     The standard is the same for both direct and

circumstantial cases. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).

         As the factfinder, the jury is the exclusive judge of witness credibility and the weight of

the evidence. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). The jury is permitted

to draw reasonable inferences from the evidence so long as the inferences are supported by the

record. Id. Further, the reconciliation of conflicts in the evidence is within the factfinder’s

exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). If a record supports

conflicting inferences, we presume the factfinder resolved the conflicts in favor of the prevailing



1
  In his brief, Martinez specifically contends the evidence is factually insufficient to support his conviction. However,
the Texas Court of Criminal Appeals abolished factual-sufficiency review. See Brooks v. State, 323 S.W.3d 893, 894-
95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J., concurring); see also Howard v. State, 333 S.W.3d
137, 138 n.2 (Tex. Crim. App. 2011); Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet.
ref’d). We construe Martinez’s argument to challenge whether the evidence presented at trial is legally sufficient to
support Martinez’s conviction and address issue one as such.

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party and therefore defer to that determination. Jackson, 443 U.S. at 319; Hooper v. State, 214

S.W.3d 9, 12 (Tex. Crim. App. 2007). Direct evidence and circumstantial evidence are equally

probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as

the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13.

Discussion

       A person commits the offense of murder if he:

       commits or attempts to commit a felony, other than manslaughter, and in the course
       of and in furtherance of the commission or attempt, or in immediate flight from the
       commission or attempt, he commits or attempts to commit an act clearly dangerous
       to human life that causes the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). Here, the indictment alleged two alternative

predicate felonies underlying the felony murder charge: aggravated assault with a deadly weapon

and deadly conduct.

       A person commits an assault if the person “intentionally, knowingly, or recklessly causes

bodily injury to another[.]” Id. § 22.01(a)(1). The Penal Code defines “bodily injury” to mean

“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West Supp.

2017). An assault is elevated to an aggravated assault if the person “uses or exhibits a deadly

weapon during the commission of the assault.” TEX. PENAL CODE ANN. § 22.02(a)(2). A firearm

is a deadly weapon per se. See id. § 1.07(a)(17)(A). A person commits the offense of deadly

conduct “if he knowingly discharges a firearm at or in the direction of one or more individuals.”

Id. § 22.05(b)(1).

       The evidence presented during trial showed that Martinez possessed a .40 caliber handgun.

Two witnesses, Erickson and Escamilla, testified Martinez had a handgun following the altercation

outside the party on March 14, 2016. Erickson testified he heard a gunshot from the vehicle in


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which Martinez was a passenger. Escamilla testified Martinez shot at least one round while sitting

in the passenger’s seat of Escamilla’s car. The bullet hole through the back of the Jeep Acosta was

sitting in was identified as being consistent with a .40 caliber bullet, and the bullet recovered from

Acosta’s body was a .40 caliber bullet. Additionally, Escamilla testified Martinez acknowledged

shooting Acosta during a conversation the day after the offense.

       Viewing the evidence in the light most favorable to the verdict and assuming the jury

resolved any conflicts in favor of the verdict, we conclude that a rational jury could have found

beyond a reasonable doubt that Martinez fired a .40 caliber handgun at or in the direction of one

or more individuals. Alternatively, viewing the evidence in the light most favorable to the verdict

and assuming the jury resolved any conflicts in favor of the verdict, we conclude there was

sufficient evidence for the jury to find Martinez intentionally or knowingly caused bodily injury

to Acosta and used or exhibited a deadly weapon while doing so.

       Accordingly, we hold the evidence was legally sufficient to support the jury’s guilty verdict

for the offense of felony murder against Martinez.

       Issue one is overruled.

                                 Amended Motion for New Trial

       In his second and third issues, Martinez contends the trial court erred by not holding a

hearing on his motion for new trial and by allowing his motion for new trial to be overruled by

operation of law. In his discussion of issues two and three, Martinez specifically refers to his

Amended Motion for New Trial and his claim of newly discovered evidence contained within that

motion. Martinez argues he should have been granted a new trial based on a Brady violation. See

Brady v. Maryland, 373 U.S. 83 (1963).




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Standard of Review

       We review a trial court’s denial of a motion for new trial for an abuse of discretion. Burch

v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). The trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could support the trial

court’s ruling. Id. This is a deferential standard of review that requires us to view the evidence in

the light most favorable to the trial court’s ruling. Id. In determining whether the trial court abused

its discretion, we do not substitute our own judgment for that of the trial court, and we uphold the

trial court’s ruling if it is within the zone of reasonable disagreement. Id.

Discussion

       A defendant may file a motion for new trial “before, but no later than [thirty] days after,

the date when the trial court imposes or suspends [a] sentence in open court.” TEX. R. APP. P.

21.4(a). A defendant’s motion may be amended without leave any time within the thirty-day limit

so long as the trial court has not already ruled on the motion. Id. at 21.4(b); see Shamim v. State,

443 S.W.3d 316, 325 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). However, a defendant

may not amend his motion for new trial “outside of the thirty-day time limit, even with leave of

the [trial] court,” if the State properly objects. State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim.

App. 2013); see also Shamim, 443 S.W.3d at 325 (“Once the [thirty]-day period expires, a

defendant may not amend or enlarge his original motion to include additional claims, unless the

State fails to make a timely objection to the amendment.”). However, “[t]he fact that the new trial

is based on newly discovered evidence has no impact on the appellate timetable.” Licon v. State,

99 S.W.3d 918, 926 (Tex. App.—El Paso 2003, no pet.). Additionally, [e]vidence presented to

the trial court in support of [an] untimely amended motion for new trial may not be considered

part of the record on appeal.” Id.



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         In this case, the trial court sentenced Martinez on June 16, 2017. Therefore, Martinez’s

motion for new trial, along with any amendments to that motion for new trial, were due on or

before July 17, 2017. 2 On July 14, 2017, Martinez filed a timely Motion For New Trial, asserting

the trial court “misdirected the jury as to the law, and/or committed an error material to the defense

and injurious to the rights of the Defendant[;] … [t]he verdict was contrary to the law and the

evidence[; and] … [he] was denied effective assistance of counsel.”

         Subsequently, on August 29, 2017 — forty-three days after the date on which the motion

for new trial and any amendments were due — Martinez filed his First Amended Motion for New

Trial, asserting for the first time that “[t]he newly discovered evidence, presented herein, entitles

Mr. Martinez to relief.” Although the State did not object to Martinez’s untimely amendment of

his motion for new trial, we find no authority to support a contention that a trial court abuses its

discretion by allowing an untimely amended motion for new trial to be overruled by operation of

law. Further, although case law indicates a trial court may rule on an untimely amended motion

for new trial absent the State’s objection, we have found no authority indicating that a trial court

must do so.

         Accordingly, we conclude the trial court did not abuse its discretion by not granting a

hearing on Martinez’s amended motion for new trial or by allowing Martinez’s motion for new

trial to be overruled by operation of law.

         Issues two and three are overruled.




2
 The thirtieth day, July 16, 2017, fell on a Sunday. Therefore, the deadline to file a motion for new trial was July 17,
2017.

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                                       Exculpatory Evidence

          In issues four and five, Martinez contends he was denied due process of law when the State

failed to disclose exculpatory evidence as required by Brady v. Maryland. See Brady v. Maryland,

373 U.S. 83 (1963).

Discussion

          A defendant’s due process rights under the Fourteenth Amendment are violated when a

prosecutor, whether in good or bad faith, fails to disclose evidence favorable to the defense that

creates a probability sufficient to undermine confidence in the outcome of the proceeding. Thomas

v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc) (quoting U.S. v. Bagley, 473 U.S.

667, 682 (1985)); see also Brady, 373 U.S. at 87. The purpose of the Brady rule is to avoid an

unfair trial. Id. at 86–88. To establish a due process violation based on Brady, the defendant must

show: (1) the evidence was not disclosed; (2) the undisclosed evidence was favorable to the

defendant; and (3) the undisclosed evidence was material to either guilt or punishment. Pena v.

State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).

          However, as noted in our discussion of issues two and three above, “[e]vidence presented

to the trial court in support of [an] untimely amended motion for new trial may not be considered

part of the record on appeal.” Licon v. State, 99 S.W.3d at 926. Martinez’s untimely filed amended

motion for new trial was not sufficient to preserve error. Therefore, the appellate record before

this court does not support Martinez’s issue on appeal, and Martinez presents nothing for our

review.

          Accordingly, issues four and five are overruled.




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                                             Unanimity

       In his sixth issue, Martinez contends his rights to a unanimous jury verdict were violated

because the jury was allowed to convict him on either theory of felony murder without having to

decide which theory they believed.

Standard of Review and Applicable Law

       We review alleged jury-charge error in two steps: first, we determine whether error exists;

if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Ngo v.

State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); see Price v. State, 457 S.W.3d 437, 440

(Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g)).

       “Under our state constitution, jury unanimity is required in felony cases, and, under our

state statutes, unanimity is required in all criminal cases.” Id. at 745.; see also Leza v. State, 351

S.W.3d 344, 356 (Tex. Crim. App. 2011) (“Jury unanimity is required on the essential elements of

the offense but is generally not required on the alternate modes or means of commission.”).

Although “the jury must unanimously agree about the occurrence of a single criminal offense, ...

they need not be unanimous about the specific manner and means of how that offense was

committed.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011); see also Pizzo v. State,

235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Ngo, 175 S.W.3d at 745–46.

       The trial court properly charges a jury with a general verdict form when an “indictment

[does] not allege different offenses but only allege[s] different ways of committing the same

offense.” Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1982) (op. on

reh’g); accord Zavala v. State, 401 S.W.3d 171, 182 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d). Importantly, however, alternative methods of committing the same offense are properly

submitted in the disjunctive, in a general verdict form, if the evidence is legally sufficient to
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support a finding of the offense under any of the theories submitted. Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991).

       The Texas Court of Criminal Appeals’s case, White v. State, 208 S.W.3d 467 (Tex. Crim.

App. 2006), is instructive on this issue. In White, the defendant was convicted of felony murder

under section 19.02(b)(3). Id. at 467. The evidence presented at trial supported that White was

driving a stolen car during a high-speed chase when his vehicle collided with another vehicle,

killing the other driver. Id. The two paragraph indictment alleged White caused the victim’s death

during the commission of a state-jail felony, either unauthorized use of a motor vehicle or evading

arrest or detention in a vehicle. Id. at 467–68. “The jury charge authorized the jury to convict

appellant if it unanimously found that he caused the victim’s death during the commission of either

one of these two felonies without having to unanimously find which felony appellant was

committing.” Id. at 468.

       The White court explained the term felony under section 19.02(b)(3):

       The term “felony” is clearly an element of Section 19.02(b)(3), thus requiring a jury
       to unanimously find that the defendant committed a “felony.” And, in cases like
       this, where some of the jurors might believe that the defendant committed felony A
       and the rest of the jurors might believe that he committed felony B, the jury has
       unanimously found that the defendant committed a “felony.” In addition, the
       transitive verb of the portion of Section 19.02(b)(3) at issue here is “commits”
       followed by the term “felony.” This indicates that the prohibited conduct about
       which a jury must be unanimous is that the defendant commit a “felony,” and not
       one specific felony out of a combination of felonies.

Id. (internal citations omitted); see also Jefferson v. State, 189 S.W.3d 305, 312–14 (Tex. Crim.

App. 2006).

Discussion

       Here, Martinez was charged with felony murder in a two-count indictment with “felony A”

being aggravated assault with a deadly weapon and “felony B” being deadly conduct. Thus,

because Martinez’s indictment alleged two felonies under section 19.02(b)(3), the actual felonies
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of aggravated assault with a deadly weapon and deadly conduct are not elements on which the jury

must be unanimous. See White, 208 S.W.3d at 469; Contreras, 312 S.W.3d at 584. Rather,

“[t]hese felonies constitute the manner or means that make up the ‘felony’ element of Section

19.02(b)(3).” White, 208 S.W.3d at 469; see also Jefferson, 189 S.W.3d at 311 n.7 (explaining the

unanimity question turns on whether a particular term in the statute is an element and thus requires

unanimity, or whether the term is “an underlying brute fact or means of committing an element”

and does not require juror unanimity). Here, the jury was instructed that both aggravated assault

and deadly conduct are felony offenses, and as in White, the jury found unanimously that Martinez

committed a “felony.” Therefore, we conclude Martinez’s complaint on appeal lacks merit.

       Issue six is overruled.

                                          CONCLUSION

       For the preceding reasons, we affirm the trial court’s judgment.


                                                  Irene Rios, Justice

DO NOT PUBLISH




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