Affirmed as Modified; Opinion Filed November 25, 2014.




                                           Court of Appeals
                                                             S     In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-13-01112-CR
                                                        No. 05-13-01113-CR

CRUZ FRANCO MARTINEZ A/K/A CRUZ MARTINEZ, J. CRUZ MARTINEZ, AND J.
                CRUZ MARTINEZ FRANCO, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                               On Appeal from the Criminal District Court No. 4
                                            Dallas County, Texas
                             Trial Court Cause Nos. F12-63640-K and F12-61549-K

                                                              OPINION
                                       Before Justices Bridges, Francis, and Myers 1
                                                Opinion by Justice Myers
           Appellant Cruz Franco Martinez 2 was convicted by a jury of two cases of aggravated

sexual assault of a child under the age of fourteen, and the jury subsequently assessed a

punishment of life imprisonment in both cases, which the trial court ordered to run concurrently.

In two issues, appellant argues that (1) the trial court erred by admitting testimony that appellant

contends was a comment on his post-arrest, post-Miranda silence, thereby violating the Fifth and

Fourteenth Amendments and Article I, section 10 of the Texas Constitution; and (2) there is

insufficient evidence in the record to support the trial court’s orders for appellant to pay court

     1
        Justice David Lewis was a member of the original panel and participated in the submission of this case; however, he did not participate in
this opinion. Justice David Bridges has reviewed the record and the briefs in this case. See TEX. R. APP. P. 41.1(a).
     2
       Appellant’s name is spelled “Cruz Franco Martinez” in the parties’ briefs and in the indictment and judgment in 05–13–01112–CR. It is
spelled “J. Cruz Martinez” in the indictment and judgment in 05–13–01113–CR. In the notices of appeal, appellant signed his name as “Cruz
Martinez.” Meanwhile, appellant’s wife testified that his name was “J. Cruz Martinez Franco,” and appellant also testified that this was his name.
Lacking documentation regarding appellant’s true name, we include all of the aforementioned names in the heading of this case.
costs. As modified, we affirm.

                                           DISCUSSION

                                 Post-arrest, Post-Miranda Silence

       In his first issue, appellant contends the trial court erred by admitting testimony that

commented on appellant’s post-arrest, post-Miranda silence, thereby violating appellant’s Fifth

and Fourteenth Amendment rights. In his second issue, appellant argues that the admission of

this testimony also violated appellant’s rights under Article I, section 10 of the Texas

Constitution.

       As part of its case-in-chief, the State called Detective Lisette Rivera of the Dallas Police

Department. Rivera had been assigned to investigate the allegations against appellant. During

Rivera’s testimony, the State posed the following questions:

       Q. [PROSECUTOR:] Okay, and did you also make an attempt to talk to the
       defendant?

       A. [RIVERA:] I did.

       Q. And did he talk to you?

               [DEFENSE COUNSEL]: Objection on the comment of the defendant’s
       right to remain silent, Judge.

                THE COURT: Overruled.

       Q. [PROSECUTOR:] Did you talk—were you able to talk to the defendant?

       A. Whenever I attempted to speak with him, he was under arrest or he was read
       his Miranda rights. And at that time, he exercised those rights and chose not to
       speak with me.

       Q. Did you talk to anyone else involved in the case besides the two victims?

       A. Yes.

       Q. Was that the mom?

       A. Yes, I spoke with the mother.

       Q. Okay.

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       A. And I spoke with several other witnesses.

               [PROSECUTOR]: Okay. Pass the witness, Your Honor.

       A trial judge’s decision on the admissibility of evidence is reviewed under an abuse of

discretion standard and will not be reversed if it is within the zone of reasonable disagreement.

Davis v. State, 329 S.W.3d 798, 813–14 (Tex. Crim. App. 2010); Russeau v. State, 291 S.W.3d

426, 438 (Tex. Crim. App. 2009).

       Appellant contends the trial court erroneously admitted testimony regarding his post-

arrest, post-Miranda silence, thereby violating the Fifth and Fourteenth Amendments of the

United States Constitution and Article I, section 10 of the Texas Constitution. He argues that the

error invited the jury to draw negative inferences against appellant in a situation where the

State’s case rested on the testimony, and the credibility, of the two complainants. He also argues

that it is “quite possible” that the jury used the above testimony as evidence of guilt.

       The State responds that (1) the trial court did not err because the State’s question was not

objectionable as an impermissible comment on appellant’s silence; (2) appellant’s objection to

the State’s question as commenting on the defendant’s right to remain silent was not sufficient to

preserve his federal and state constitutional arguments for appellate review; and (3) appellant

waived any error in the witness’s allegedly improper comment by failing to object and request an

instruction to disregard. The State also contends that the overwhelming nature of the evidence

against appellant, and the fact that there was only a single, isolated reference to appellant’s post-

arrest, post-Miranda silence, rendered harmless any potential error from Detective Rivera’s

allegedly improper comment on appellant’s exercise of his right to silence. We will focus our

attention on the State’s arguments regarding harm.

       Assuming appellant’s complaints were preserved for appellate review, and that the trial

court erred by admitting the complained-of evidence, appellant was not harmed. See TEX. R.


                                                 –3–
APP. P. 44.2(b). The improper admission of evidence is non-constitutional error that an appellate

court disregards unless the error affected an appellant’s substantial rights. Id.; Barshaw v. State,

342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim.

App. 2007) (using harm analysis in rule of appellate procedure 44.2(b) in determining that

evidence of appellant flashing a gang sign was harmless). We will not overturn a criminal

conviction for non-constitutional error if, after examining the record as a whole, we have fair

assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342

S.W.3d at 93.

       In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the error but on whether the error had a substantial or injurious effect or influence

on the jury’s verdict. Id. at 93–94. We review the entire record to ascertain the effect or

influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis “we examine the entire

trial record and calculate, as much as possible, the probable impact of the error upon the rest of

the evidence”). We consider all of the evidence that was admitted at trial, the nature of the

evidence supporting the verdict, and the character of the alleged error and how it relates to

evidence in the record. Barshaw, 342 S.W.3d at 94; Motilla v. State, 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002). We may also consider the jury instructions, the parties’ theories of the case,

closing arguments, voir dire, and whether the State emphasized the error. Barshaw, 342 S.W.3d

at 94; Motilla, 78 S.W.3d at 355–56.

       In this case, the evidence showed that appellant and Onesima Martinez had been married

for thirty-two years and are the parents of six children––five daughters and a son. Three of their

daughters, MCM, JM, and MFM, testified that appellant, their biological father, sexually abused

them as children. MCM and JM were the complainants in 05–13–01112–CR and 05–13–01113–

                                                –4–
CR, respectively, while MFM testified as a rebuttal witness for the State.

       MCM, twenty years old at the time of trial, testified that appellant started sexually

abusing her when she was eight or nine years old. MCM described an incident where appellant

came into her bedroom when she was sleeping, got into bed with her, and started “like pulling

my clothes down.” He put his fingers in her vagina, and MCM recalled that this hurt. After a

few or perhaps two minutes, he forced her over to her side, grabbed her from behind, and put his

penis inside of her. MCM could feel appellant’s penis moving in and out of her vagina. The

following day, he behaved as though nothing had happened. MCM also recalled an incident

where appellant rubbed her breasts under her clothes, kissed her, touched her vagina with his

penis, and then had sexual intercourse with her.

       MCM testified that appellant “was a very violent person and aggressive.” She described

an incident where her mother packed clothing and told appellant she and the children were going

to leave him. He got furious and started hitting her. When MCM’s brother tried to intervene,

appellant turned around “and start[ed] beating him up.” Appellant threatened to kill Onesima

and the children if they called the police. He also threatened to kill himself. MCM testified that

she and her sister would hide under the beds when appellant became violent. She also recalled

an occasion when appellant and Onesima had been arguing, and Onesima went into the room

MCM shared with her sister, saying, “[L]et’s go, let’s go, he’s getting his guns.” They fled the

house in their pajamas and bare feet, staying with an uncle before Onesima eventually moved

back in with appellant.

       JM, MCM’s twenty-three-year-old sister, testified that she was about seven years old

when appellant started sexually abusing her. According to her testimony, the abuse began when,

on a day she was not attending school because she was sick, appellant took her into his bedroom,

put her on the bed, “and started messing around with me.” Appellant “would put his hand on my

                                               –5–
breast, or he would start going down towards my vagina over my clothes.” As JM grew older,

the abuse escalated to the point where appellant was touching her vagina and breasts under her

clothes, sucking on her breasts, and biting her nipples. By the time JM was eight or nine,

appellant was licking and sucking her vagina. When JM was around eleven years of age,

appellant started inserting his penis into her vagina, and he continued to have sexual intercourse

with JM approximately twice a week, almost every week, until she was around twelve or thirteen

years old. The last incident she could recall occurred one night when JM was asleep. Appellant

entered her room, covered her mouth “really hard,” held her down, and pulled down her clothes.

He got on top of her and moved his penis in and out of her vagina. She testified that this hurt

and that she cried because she was scared, but appellant continued covering her mouth. When he

suddenly stopped, he told her “not to say anything or he would hurt us.”

       JM testified that she still feared appellant. She noted that “[w]e had a lot of domestic

violence in the house where [appellant] would be drinking, and he would get aggressive.”

Appellant threatened to kill everyone in the house if they called the police, including himself,

and JM believed these threats because he had two rifles in the house. One night she woke to the

sound of a rifle being fired into the air. JM also testified that appellant would beat her or her

sisters, her brother, even her mother, and that he once hit JM in the mouth (causing it to bleed)

when he asked her a question and she did not know how to respond.

       Appellant denied that he had sexual relations with any of his daughters. He testified that

MCM and JM had been influenced by their older sister, MFM. He suggested that they were

fabricating the allegations against him because his daughters––according to Onesima, five of

their children had been born in Mexico and were brought to the United States as children in

1994––hoped “to get their papers” by testifying against him. When asked what papers he was

referring to, appellant replied, “Immigration.” He also testified that they wanted him out of the

                                               –6–
house because they desired “to bring men into the house, and I would not allow that.”

       The State’s rebuttal witness, MFM, MCM’s and JM’s thirty-one-year-old sister, testified

that she was appellant’s oldest child, and had a permit to reside in the United States. She

testified that when her family first came to the United States, they slept in a single room, and

shared a bed, because the house where they lived was occupied by other people. MFM recalled

it was around this time, when MFM was about thirteen years of age, that appellant first abused

her sexually––grabbing her under her clothes, sticking his finger in her vagina, and sucking on

her breasts. When appellant did this, MFM would hit him and tell him “grosero,” which MFM

translated as “like being dirty.” She testified that she was the only one who would hit back at

him when he grabbed at her.

       Like her younger sisters, MFM testified that appellant had a violent temper. She recalled

he had been violent toward her, her brother, and their mother. After one violent incident, MFM

threatened to call the police, but she decided not to do so because appellant told her that “he had

to get out sometime, and he was going to hurt my mom where she couldn’t walk, and was going

to take my baby sister away.”

       The record also shows that Detective’s Rivera’s statement quoted above was the only

reference at trial to appellant’s post-arrest, post-Miranda silence. There were no follow-up

questions regarding appellant’s invocation of his right to remain silent, nor did the State attempt

to portray appellant’s post-arrest, post-Miranda silence as some sort of admission of guilt, or

suggest that appellant’s guilt could be inferred from his invocation of the right to remain silent.

The State never attempted to impeach appellant regarding his post-arrest, post-Miranda silence

when he testified, nor was it mentioned in the State’s closing argument. Given the strength of

the State’s case against appellant––three of his biological daughters testified that they were

sexually abused by him when they were children––and the fact that there was only a single,

                                               –7–
isolated reference to appellant’s post-arrest, post-Miranda silence, we have a fair assurance that

the statement about which appellant complains did not influence the jury, or influenced it only

slightly. We overrule appellant’s first and second issues.

                                           Court Costs

       In his third issue, appellant contends there is insufficient evidence in causes 05–13–

01112–CR and 05–13–01113–CR for the trial court’s orders, included in the judgments in these

cases, for appellant to pay $493 in court costs because there is no evidence to support the specific

costs assessed by the court. Each clerk’s record includes a “Bill of Costs Certification” signed

by the deputy district clerk and certified by the district clerk, a computer printout that itemizes

the costs assessed in each case, and an explanation of the abbreviations used in the itemization.

Appellant nonetheless argues that the computer printouts do not qualify as bills of costs because

there is no indication the computer printouts were ever filed in the trial court or brought to

attention of the trial court before the costs were included in the judgments. These complaints

have been previously considered and rejected. See Johnson v. State, 423 S.W.3d 385, 391–96

(Tex. Crim. App. 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.––Dallas 2013,

pet. ref’d). We overrule appellant’s third and fourth issues.

                                   Modification of Judgments

       The judgments incorrectly state that the “Sex Offender Registration Requirements do not

apply to the Defendant,” and they do not state the age of the victim at the time of the offense.

Appellant’s convictions for aggravated sexual assault of a child under the age of fourteen are

among those defined as a “[r]eportable conviction or adjudication” for purposes of the sex

offender registration statute. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A). As a person

who has a reportable conviction or adjudication, appellant is subject to the registration

requirements of that program. See id. art. 62.051.

                                                –8–
       As alleged in the indictments and proven in this case, the victims were younger than

fourteen years of age on the alleged dates of the offenses. Because there is sufficient evidence to

support the convictions in each case, and because the offenses in each case required a showing

that the age of the victim was younger than fourteen, on our own motion we modify the

judgments in 05–13–01112–CR and 05–13–01113–CR to show that the sex offender registration

requirements apply and that the age of the victim at the time of the offense was younger than

fourteen years of age. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30

(Tex. App.––Dallas 1991, pet. ref’d) (appellate court has authority to modify incorrect judgments

sua sponte when the necessary information is available to do so); see also Tyler v. State, 137

S.W.3d 261, 267–68 (Tex. App.––Houston [1st Dist.] 2004, no pet.) (authority to modify

judgment not dependent upon a party’s request); Ruiz v. State, No. 05–12–01703–CR & 05–12–

01704–CR, 2014 WL 2993820, at *12 (Tex. App.––Dallas June 30, 2014, no pet.) (not

designated for publication) (modifying judgments to show applicability of sex offender

registration requirements and that age of victim at time of offense was younger than 14 years of

age because evidence was sufficient to support convictions in each of the counts, which required

a showing that age of victim was younger than fourteen years of age); Medlock v. State, No. 05–

11–00668–CR, 2012 WL 4125922, *1–2 (Tex. App.––Dallas Sept. 20, 2012, no pet.) (mem. op.,

not designated for publication) (same); Johnson v. State, No. 05–06–00037–CR, 2007 WL

60775, at *7 (Tex. App.––Dallas Jan. 10, 2007, no pet.) (not designated for publication) (same).

       As modified, the trial court’s judgments are affirmed.

                                                            / Lana Myers/
                                                            LANA MYERS
                                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47
131112F.U05

                                               –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CRUZ FRANCO MARTINEZ, Appellant                    On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-13-01112-CR        V.                       Trial Court Cause No. F12-63640-K.
                                                   Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                       Bridges and Francis participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Sex Offender Registration Requirements do not apply to the Defendant. TEX.
       CODE CRIM. PROC. chapter 62” should be changed to “Sex Offender Registration
       Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62”

       “The age of the victim at the time of the offense was” should be changed to “The
       age of the victim at the time of the offense was younger than 14 years of age”

As MODIFIED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.

       Judgment entered this 25th day of November, 2014.




                                            –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CRUZ FRANCO MARTINEZ, Appellant                    On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-13-01113-CR        V.                       Trial Court Cause No. F12-61549-K.
                                                   Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                       Bridges and Francis participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Sex Offender Registration Requirements do not apply to the Defendant. TEX.
       CODE CRIM. PROC. chapter 62” should be changed to “Sex Offender Registration
       Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62”

       “The age of the victim at the time of the offense was” should be changed to “The
       age of the victim at the time of the offense was younger than 14 years of age”

As MODIFIED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.

       Judgment entered this 25th day of November, 2014.




                                            –11–
