                                                                                pd-1624-14
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                            Transmitted 2/19/2015 7:10:12 PM
                                                              Accepted 2/20/2015 8:10:50 AM
                                                                                ABEL ACOSTA
                                    No. PD-1624-14                                      CLERK

                                    No. PD-1625-14

                              (Appeal No. 05-13-01112-CR)
                              (Appeal No. 05-13-01113-CR)

         IN THE COURT OF CRIMINAL APPEALS
               OF THE STATE OF TEXAS

                              CRUZ FRANCO MARTINEZ,

                                     Appellant/Petitioner

                                           v.

                               THE STATE OF TEXAS,

                               Appeal from Dallas County


                              PETITIONER’S PETITION FOR
                               DISCRETIONARY REVIEW



                                    Christian T. Souza
                                     Attorney at Law
                               State Bar Number 00785414
                               4303 N. Central Expressway
                                   Dallas, Texas 75205
                                   Tel. (214) 862-7462
                                   Fax (214) 696-0867
                               E-Mail: ctsouza@gmail.com




February 20, 2015
          February 20, 2015
            IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge

Dominique Collins
Criminal District Court Number Four
133 N. Riverfront Blvd.
Dallas, Texas 75207

Parties to the Judgment

The State of Texas

Cruz Franco Martinez (Trial No. F12-63640/PD-1624-14/PD-1625-14)
J Cruz Martinez (Trial No. F12-61549)
Cruz Franco Martinez A/K/A Cruz Martinez, J. Cruz Martinez, Cruz
      Martinez Franco (Appeal Nos. 05-13-01112-CR/05-13-01113-CR)
Defense Counsel at Trial

Russ Hendrichs
P.O. Box 190983
Dallas, Texas 75219
State’s Attorney at Trial

Shawnkeedra Houston-Martin, Assistant District Attorney
Shequitta Kelly, Assistant District Attorney
Dallas County Criminal District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
Petitioner’s Attorneys on Appeal in the Fifth District Court of Appeals

Lynn Richardson, Chief Public Defender
Katherine A. Drew, Assistant Public Defender
Taylor Horton



                                                                          2
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
State’s Attorneys on Appeal in the Fifth District Court of Appeals

Craig Watkins, Dallas County District Attorney
Patricia Poppoff Noble, Assistant District Attorney
Dallas County Criminal District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

Petitioner’s Attorney on Petition for Discretionary Review in the Texas
Court of Criminal Appeals

Christian T. Souza
4303 N. Central Expressway
Dallas, TX 75205

State’s Attorneys on Petition for Discretionary Review

Lisa C. McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711-3046

Patricia Poppoff Noble
Assistant District Attorney
Dallas County Criminal District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                                                      3
                        TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL……………………...2

INDEX OF AUTHORITIES……………………………………………...…5

STATEMENT REGARDING ORAL ARGUMENT……………………….7

STATEMENT OF THE CASES…………………………………………….7

STATEMENT OF PROCEDURAL HISTORY……………...……………..8

QUESTION FOR REVIEW……………………………………..…………..9

ARGUMENT

  Question

  Whether harm from the use of evidence that a defendant exercised his
  constitutional rights to remain silent must be evaluated under the rule
  that applies to constitutional error. (RR3: 97-98; APX-2).

  A.    Background………………………………………………………..9

  B.    Ruling in Court of Appeals…………………………….………...11

  C.    Type of Judgment Sought……………………...………..….……13

PRAYER FOR RELIEF………………………...………………….……....15

CERTIFICATE OF WORD COUNT…………………......….......……......16

CERTIFICATE OF SERVICE………………......….…………......…….....16

APPENDIX-1 (COURT OF APPEALS OPINION AND JUDGMENTS)

APPENDIX-2 (EXCERPT OF TESTIMONY)



                                                                            4
                                INDEX OF AUTHORITIES

        CASES

Doyle v. Ohio,
      426 U.S. 610 (1976) ......................................................................…..12

Ex parte Heidelberg,
      No. AP-75,263; 2006 Tex. Crim. App. LEXIS 2538 (Nov. 15,
      2006)……………………………………………………...…………14

Ford v. State,
      73 S.W.3d 923 (Tex.Crim.App. 2003) .......................................…….13

Fuller v. State,
       363 S.W.3d 583 (Tex.Crim.App. 2012)………………………...…..13

Heidelberg v. State,
      144 S.W.3d 535 (Tex. Crim. App. 2004)………………..………….14

Mendoza v. State,
     959 S.W.2d 321, 325-26 (Tex.App.—Waco 1997, pet. ref’d)…....…13

Miranda v. Arizona,
     426 U.S. 610 (1966)…………………………..……………………..11

Sanchez v. State,
     707 S.W.2d 575 (Tex. Crim. App. 1986)……………………………12

Snowden v. State,
     353 S.W.2d 815, 818-25 (Tex.Crim.App. 2011)……………………14

        CONSTITUTIONAL PROVISIONS

TEX. CONST. Art. I § 10…………………………………………………….12

U.S. Const. amend. V…………………………………………...………….11

U.S. Const. amend. XIV……………………………………………………11

                                                                                                   5
         STATUTES AND RULES

TEX. CODE CRIM. PROC. art. 11.07…………………………………..……..14

TEX. PENAL CODE § 22.021………………………………………………….7

TEX. R. APP. P. 33.1………………………………………………………...13

TEX. R. APP. P. 44.2(a) ........................................................................ …12-14

TEX. R. APP. P. 44.2(b) ..................................................................................12

TEX. R. APP. P. 66.3(c) ..................................................................................14

TEX. R. APP. P. 66.3(d) ..................................................................................14

TEX. R. APP. P. 78.1(d)…………………………………….....………….…14




                                                                                                          6
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      Comes now Petitioner/Appellant Cruz Franco Martinez and

respectfully submits this Petition for Discretionary Review of the judgments

and opinion of the Fifth District Court of Appeals affirming his convictions

in Nos. PD-1624-14 and PD-1625-14 (Court of Appeals Nos. 05-13-01112-

CR and 05-13-01113-CR).

             STATEMENT REGARDING ORAL ARGUMENT

      The trial court admitted proof that Petitioner invoked his right to

remain silent when that right was explained to him after he was arrested.

The Court of Appeals presumed that there were errors in that ruling, but it

found them to be harmless under the rule that applies to non-constitutional

errors. Oral argument is not necessary, because the State already agrees that

an assessment of harm must be undertaken according to the constitutional

standard.

                      STATEMENT OF THE CASES

      A jury found Petitioner guilty on his pleas of not guilty concerning

two instances of aggravated sexual assault of a child under age 14, and the

jury set punishment in both cases at confinement for life in the Institutional

Division of the Texas Department of Criminal Justice. TEX. PENAL CODE §

22.021(a)(1)(B)(iii). (CR1: 8, 65, 73; CR2: 14, 69, 72; RR2: 6-10; RR5:

                                                                            7
29). On November 25, 2014, the Fifth District Court of Appeals affirmed

Petitioner’s convictions.1 State v. Martinez, Nos. 05-13-01112-CR and 05-

13-01113-CR; 2014 WL 6678118 (Tex.App.—Dallas Nov. 25, 2014); 2014

Tex. App. LEXIS 12754 (Tex.App.—Dallas Nov. 25, 2014). See Opinion

and Judgments in Appendix-1 (APX-1) at 1, 10-11.

                 STATEMENT OF PROCEDURAL HISTORY

       The unpublished opinion of the Fifth District Court of Appeals was

entered on November 25, 2014. See APX-1. On December 12, 2014,

Petitioner timely filed his Motion to Extend Time to File his Petition for

Discretionary Review, for both cases, which this Court granted on December

12, 2014, allowing until February 27, 2015. Petitioner timely filed his

Petition on February 19, 2015.




1
 The Court of Appeals affirmed with modifications as to judgment recitations concerning
sex offender registration and the age of the complainants being under 14 years old. See
APX-1 at 1, 10-11.

                                                                                     8
                        QUESTION FOR REVIEW

                                 Question

       Whether harm from the use of evidence that a defendant exercised
       his constitutional rights to remain silent must be evaluated under
       the rule that applies to constitutional error. (RR3: 97-98; APX-2).

                               ARGUMENT

      The Fifth Court of Appeals applied the standard for non-constitutional

error in evaluating harm from the errors in allowing evidence that Appellant

invoked his right to remain silent. Petitioner asks this Court to agree with

the State and Petitioner that the errors should be assessed for harm as

constitutional error.

A. Background

      Petitioner had five daughters and one son. (RR3: 83; RR4: 12). The

State presented evidence that Petitioner sexually abused three of his

daughters: MCM, JM, and MFM. (RR3: 17-24, 58-65; RR4: 37, 39-42,

54). MCM, who was 20 years old at the time of trial, was the complainant

in PD-1624-14; JM, who was 23 years old at the time of trial, was the

complainant in PD-1625-14; and MFM, who testified as a rebuttal witness,

was 31 years old at the time of trial. (CR1: 8; CR2: 14; RR3: 13, 56; RR4:

31, 39-42). MCM told the jury that the sexual abuse started when she was

eight or nine years old; JM testified that she endured abuse from when she

was about seven years old until she was 14; and MFM told the jury that it
                                                                             9
began for her when she was about 13. (CR1: 8; CR2: 14; RR3: 15, 22-23,

37, 43, 58-59, 60-65, 67, 76, 94). Petitioner denied sexually abusing his

daughters, and he disputed that he created an atmosphere of fear in the

household including through physical abuse. (RR4: 7, 9-10, 12, 15, 17, 21-

22, 24–31, 46-52, 67-68).       Petitioner explained: 1) the complainants

wanted to get him out of the house because he was too strict and because he

screamed at them, 2) the complainants were under the influence of MFM,

who threatened a decade earlier to put Petitioner in jail, and 3) the

complainants thought that they could obtain immigration documentation by

testifying against Petitioner. (RR4: 9-12, 17, 21, 23-24, 30).

      Despite the seriousness and duration of the alleged abuse, none of the

girls spoke out until adulthood. (CR1: 36-38; CR2: 8; RR3: 20, 80). MCM

told the jury that her outcry was motivated in part to protect a younger

sister who was already eight years old at the time of MCM’s outcry in

2012. (CR1: 14-16; RR4: 20, 30-32). MCM and JM each told the jury that

they were not aware that the other was being abused. (RR3: 34, 70).

Petitioner’s wife testified that she did not know about or suspect any sexual

abuse in the home. (RR3: 90–91, 94; RR5: 11). Also, there was no forensic

evidence. (RR5: 29).

      The State, in its case-in-chief, called a police detective with little

apparent purpose; the detective merely discussed her own background,
                                                                           10
explained “on or about” allegations, and told the jury that she spoke with

Petitioner’s children and mother. (RR3: 95–99). See Excerpt of Testimony

in Appendix-2 (APX-2). The record shows as follows at the end of the

detective’s testimony:

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

          A:      I did.

          Q:      And did he talk to you?

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

                The Court: Overruled.

          Q:      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 Miranda2 rights. And at that
                 time, he exercised those rights and chose not to speak
                 with me.

    (RR3: 97–98). See APX-2.

B. Ruling in Court of Appeals

         Petitioner demonstrated in the Court of Appeals that use of the

detective’s testimony violated Petitioner’s “implicit assurance” due process

right and his right to silence under the Fifth Amendment and Article I § 10

of the Texas Constitution. (Br. App. at 8-13). U.S. CONST. amends. V,

2
    Miranda v. Arizona, 384 U.S. 436, 448 (1966).
                                                                          11
XIV; TEX. CONST. Art. I § 10; Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d

91, 96 S. Ct. 2240 (1976); Sanchez v. State, 707 S.W.2d 575, 580

(Tex.Crim.App. 1986). The State noted that mere custody triggers the right

to silence in Texas. Sanchez, 707 S.W.2d at 582. (Br. State at 12).

       In lieu of reaching the merits, the Fifth Court of Appeals affirmed

Petitioner’s convictions on the bases that:

      • The State’s case was strong.

      • The testimony in question was isolated.

      • The State did not attempt to exploit the error.

 See APX-1 at 6-7.

      In finding that the error was harmless, Court of Appeals explained

“we have a fair assurance the error did not influence the jury.” See TEX. R.

APP. P. 44.2(b) (allowing an appellate court to affirm non-constitutional

error when it has a fair assurance that the error did not influence the jury or

did so only slightly); compare TEX. R. APP. P. 44.2(a) (requiring reversal for

constitutional error when an appellate court cannot determine beyond a

reasonable doubt that the error made no contribution to the conviction or

punishment). See APX-1 at 4. The Court of Appeals did not explain why it

disagreed with Appellant and the State, who agreed that the question was

whether the error contributed to the verdict. (Br. App. at 13; Br. State at


                                                                             12
22). TEX. R. APP. P. 44.2(a); see e.g., Mendoza v. State, 959 S.W.2d 321,

325-26 (Tex.App.—Waco 1997, pet. ref’d) (applying the Rule 44.2(a)

constitutional standard in assessing harm from a comment on the

defendant’s post-arrest silence).

C. Type of Judgment of Sought

      In order to affirm on the basis that the error was harmless under the

wrong standard, the Fifth Court of Appeals skipped the merits and the

State’s waiver issues. See APX-1 at 3. The merits were understandably

bypassed. See discussion, supra, in Part B at 11-12. However, if left with

no choice but to conduct a harm analysis under Rule 44.2(a), the Court of

Appeals might not so readily dismiss the State’s waiver arguments:

Petitioner’s “right to silence” objection was too general, and he did not

request to cure with an instruction. TEX. R. APP. P. 33.1(a)(1), 44.2(a). (Br.

State at 12-14).

      Considering the outstanding harm and waiver issues, this Court should

grant review and summarily remand. See Fuller v. State, 363 S.W.3d 583,

589 (Tex.Crim.App. 2012) (noting that this Court normally defers to the

Court of Appeals to have the initial opportunity to assess harm); Ford v.

State, 305 S.W.3d 530, 532-33 (Tex.Crim.App. 2009); Ford, 305 S.W.3d at

540-41 (Price, J. Concurring) (illustrating that consideration of preservation

                                                                           13
issues in this Court is most appropriate when done in order to declare the

error preserved so this Court may proceed unencumbered to the merits).

      Moreover, the interests of judicial economy would be served. If the

Court of Appeals determines that the errors were not waived, and

discretionary review is not sought by the State, this Court would expend no

further resources. But if the Court of Appeals determines that the errors

were waived, Petitioner would have every reason to ask this Court to

consider another petition for discretionary review, and assuming that it

would not be granted on a run of the mill preservation question, or if granted

but Petitioner does not prevail, Petitioner would be well-positioned to seek

habeas relief in this Court. TEX. CODE CRIM. PROC. art. 11.07; Heidelberg v.

State, 144 S.W.3d 535 (Tex.Crim.App. 2004); Ex parte Heidelberg, 2006

No. AP-75,263; Tex. Crim. App. LEXIS 2538 (Nov. 15, 2006).

      For the reasons shown, this Court should grant review on Petitioner’s

Question, reverse the judgments of the Court of Appeals affirming the

convictions, and summarily remand to the Court of Appeals with

instructions to apply the constitutional standard for assessing harmless error.

TEX. R. APP. P. 44.2(a), 66.3(d), 66.3(f), 78.1(d); see Snowden v. State, 353

S.W.2d 815, 818-25 (Tex.Crim.App. 2011) (providing that the emphasis in

review for harm from error in allowing commenting on the right to silence

                                                                            14
should be on the nature of the error and on the impact of the ruling and that

consideration about the source of the error and whether the State should be

deterred are no longer appropriate).

                            PRAYER FOR RELIEF

      Petitioner respectfully prays that this Court grant his Petition for

Discretionary Review and reverse the judgment of the Fifth Court of

Appeals and remand to the Court of Appeals to reconsider its holding in

light of this Court’s decision.


                                            Respectfully submitted,

                                            / s / Christian T. Souza

                                            Christian T. Souza
                                            SBN: 00785414

                                            4303 N. Central Expressway
                                            Dallas, Texas 75205
                                            Tel. (214) 862-7462
                                            Fax (214) 696-0867
                                            E-mail: ctsouza@gmail.com

                                            Attorney for Petitioner




                                                                          15
                    CERTIFICATE OF WORD COUNT

      I hereby certify that the word count in this document is 2,442. The

word count relies on Microsoft Word for Mac version 14.2.2.


                                    / s / Christian T. Souza
                                    Christian T. Souza


                       CERTIFICATE OF SERVICE

       A copy of this Petition for Discretionary Review has been e-mailed to
Patricia P. Noble, Assistant District Attorney, Dallas County, in lieu of
service of paper copy, at pnoble@dallascounty.org, and it has been sent to
Lisa C. McMinn, State Prosecuting Attorney, at information@spa.texas.gov,
also in lieu of service of paper copy.


                                    / s / Christian T. Souza
                                    Christian T. Souza




                                                                         16
                                           APPENDIX -1

                                   Opinion of Court of Appeals

                                            State v. Martinez, 

  Nos. 05-13-01112-CR and 05-13-01113-CR; 2014 WL 6678118

(Tex.App.—Dallas Nov. 25, 2014); 2014 Tex. App. LEXIS 12754 

                            (Tex.App.—Dallas Nov. 25, 2014).

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. A
       	 s 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.

                                                –2–

       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–

                                           APPENDIX -2

                                  Excerpt of Reporter’s Record

                                            State v. Martinez, 

  Nos. 05-13-01112-CR and 05-13-01113-CR; 2014 WL 6678118 

(Tex.App.—Dallas Nov. 25, 2014); 2014 Tex. App. LEXIS 12754

                            (Tex.App.—Dallas Nov. 25, 2014).

                                                                          95


 1                 MS. HOUSTON-MARTIN:     State calls


 2 Detective Rivera.


 3                 THE COURT:    All right.


 4                 (Witness sworn.)


 5                 THE COURT:    You may be seated.


 6                      DETECTIVE LISETTE RIVERA,


 7 having been first duly sworn, testified as follows,


 8                           DIRECT EXAMINATION


 9 BY MS. HOUSTON-MARTIN:


10      Q.    Good afternoon.


11      A.    Good afternoon.


12      Q.    Can you please introduce yourself to the jury.


13      A.    I'm Detective Lisette Rivera.        That's R-i-v-e-r-a.


14      Q.    And where are you currently employed?


15      A.    I am currently employed with the Dallas Police


16 Department as a detective.


17      Q.    And could you give the jury some of your training and


18 background, how you came to be a police officer?


19      A.    Okay.   I've been with the Dallas Police Department


20 approximately 13 years.      I started in the police academy.     It's


21 about eight months of training, laws, physical training,


22 different scenarios, things like that.      After that, I went to


23 patrol.   I had to do six months of -- I did training with an


24 officer, and then after that, I was on the streets for about


25 six years.





                 ANDREA L. REED, DEPUTY COURT REPORTER

                                                                       96


 1      Q.   Okay.     And at some point, were you a detective in the


 2 child abuse unit?


 3      A.   I was.


 4      Q.   And how long were you in the child abuse unit?


 5      A.   For about five-and-a-half years.


 6      Q.   And what were your duties in the child abuse unit as


 7 a detective?


 8      A.   With child abuse, I was in charge of investigating


 9 the physical sexual abuse of children, also the deaths and


10 homicides of children by parents and caretakers.


11      Q.   And what division do you currently work in?


12      A.   I work for the -- it's intelligence -- criminal


13 intelligence division.


14      Q.   Okay.     Were you the detective assigned to the case


15 against J. Cruz Martinez?


16      A.   Yes, ma'am.


17      Q.   And how did you become involved in that case -- or


18 those cases?


19      A.   One of the reports was generated by a patrol officer.


20 9-1-1 was called.     The report was generated.   Those officers


21 then come to our office, which are then assigned by a


22 supervisor.


23      Q.   Okay.     And so you were still in child abuse around


24 October of 2012?


25      A.   Yes.





                   ANDREA L. REED, DEPUTY COURT REPORTER

                                                                        97


 1      Q.   Okay.     And once you were assigned these cases, did


 2 you talk to both the complainants, Juanita Martinez and Maria


 3 del Carmen Martinez?


 4      A.   Yes.


 5      Q.   Okay.     Can you tell the jury how you come up with the


 6 -- well, once you file the case, is that when you get it to the


 7 D.A.'s office?


 8      A.   Yes, ma'am.


 9      Q.   Okay.     So how do you come up with the on-or-about


10 date that's listed in the indictment?


11      A.   Whenever I speak with the victims and they describe


12 the abuse, though I'll usually ask when it started.       They'll


13 say ages, you know, six, seven, eight years old.       I'll ask when


14 it stopped.   They'll give me a range, 11, 12, 13.      So I use


15 that date range.


16      Q.   Okay.     But it's not like they told you an exact date


17 that these things happened?       They just told you the age ranges


18 that the abuse occurred?


19      A.   Correct.


20      Q.   Okay.     And did you also make an attempt to talk to


21 the defendant?


22      A.   I did.


23      Q.   And did he talk to you?


24                   MR. HENRICHS:    Objection on the comment of the


25 defendant's right to remain silent, Judge.





                 ANDREA L. REED, DEPUTY COURT REPORTER

                                                                            98


 1                      THE COURT:   Overruled.


 2      Q.      (BY MS. HOUSTON-MARTIN)       Did you talk -- were you


 3 able to talk to the defendant?


 4      A.      Whenever I attempted to speak with him, he was under


 5 arrest or he was read his Miranda rights.           And at that time, he


 6 exercised those rights and chose not to speak with me.


 7      Q.      Did you talk to anyone else involved in the case


 8 besides the two victims?


 9      A.      Yes.


10      Q.      Was that the mom?


11      A.      Yes, I spoke with the mother.


12      Q.      Okay.


13      A.	     And I spoke with several other witnesses.


14                      MS. HOUSTON-MARTIN:    Okay.   Pass the witness,


15 Your Honor.


16                              CROSS-EXAMINATION


17 BY MR. HENRICHS:


18      Q.      Ma'am, the two ladies that you spoke to, Juanita and


19 Carmen, they came together to your -- to your facility; is that


20 correct?


21      A.      Initially, no, sir.


22      Q.      Okay.     Did they come together to your facility,


23 though?     Were they together the day you interviewed Juanita?


24      A.      No, sir.


25      Q.      Okay.     You interviewed Juanita on a videotape, did





                   ANDREA L. REED, DEPUTY COURT REPORTER

                                                                               99


 1 you not?


 2      A.      Correct.


 3      Q.      Okay.     You didn't say on the videotape, your sister


 4 is over in the other office or something to that effect?


 5      A.      I believe she came with other family members.


 6      Q.      But she was there at the same time more or less?


 7      A.      But the other sister, the other victim was not there


 8 that day.


 9      Q.	     Okay.


10                      MR. HENRICHS:     No further questions, Judge.


11                      MS. HOUSTON-MARTIN:     Nothing further.


12                      THE COURT:     May this witness be excused?


13                      MS. HOUSTON-MARTIN:     No objection from the


14 State.


15                      MR. HENRICHS:     No objection.


16                      THE COURT:     You may be excused, ma'am.


17                      THE WITNESS:     Thank you.


18                      THE COURT:     All right.     State, call your next


19 witness.


20                      MS. HOUSTON-MARTIN:     State calls Heather Sims.


21                      THE COURT:     All right.     Can you put your right


22 hand up for me, please.


23                      (Witness sworn.)


24                      THE COURT:     All right.     You may be seated.


25                                   HEATHER SIMS,





                   ANDREA L. REED, DEPUTY COURT REPORTER

