                           NUMBER 13-07-00136-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


JUSTIN MARTINEZ,                                                         Appellant,

v.

THE STATE OF TEXAS,                                                       Appellee.


     On appeal from the 214th District Court of Nueces County, Texas.


                       MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Yañez and Benavides
              Memorandum Opinion by Justice Benavides

       Justin Martinez, the appellant, was charged by a grand jury with burglary of a

habitation with the intent to commit theft. See TEX . PENAL CODE ANN . § 30.02 (Vernon

2003). The indictment included a repeat felony offender enhancement. See id. § 12.42

(Vernon Supp. 2008). On February 6, 2007, a jury found him guilty of burglary of a
habitation. See id. § 30.02. The jury assessed punishment of seventeen years in prison.

The trial court denied Justin’s motion for new trial.1 Justin raises two issues on appeal:

(1) whether the evidence was factually sufficient to support the conviction; and (2) whether

the trial court abused its discretion in denying his motion for new trial. We affirm.

                                      I.   FACTUAL SUFFICIENCY

        In his first issue on appeal, Justin argues that the identification testimony presented

at trial was insufficiently certain to justify the jury’s verdict. The identification testimony,

placing Justin at the scene on the day in question, changed through the course of the

investigation. Justin asserts that the evidence is factually insufficient because “this type

of vacillating testimony is not reliable enough to prove the [a]ppellant guilty beyond a

reasonable doubt.” We disagree.

A.      Standard of Review

        When performing a factual sufficiency review, we review all of the evidence in a

neutral light. Watson v. State, 240 S.W.3d 404, 414 (Tex. Crim. App. 2006). We must (1)

review the evidence submitted in support of the verdict to determine whether, though

legally sufficient, it is “‘so weak’ that the jury’s verdict seems ‘clearly wrong and manifestly

unjust,’” and (2) considering conflicting evidence, determine whether “the jury's verdict,

though legally sufficient, is nevertheless against the great weight and preponderance of the

evidence.” Id. at 414-15 (internal citations omitted). A jury verdict is clearly wrong and

manifestly unjust when it “‘shocks the conscience’” or “‘clearly demonstrates bias.’” Zuniga

v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004), overruled on other grounds by



        1
           In this case, there are three Cansecos and two Martinezes; we will refer to each person by his or
her first nam e to avoid confusion.
                                                     2
Watson, 204 S.W.3d at 405, 417. To a very limited extent, we may substitute our judgment

for that of the jury on determinations of credibility and weight. Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006). However, we may not reverse a fact finder’s

decision merely because we would have decided differently or disagree with the result.

See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

B.      Discussion

        Miguel Canseco, the victim in this case, testified for the State. On September 4,

2006, in the late afternoon while he was away from his home, Miguel’s house was broken

into, and several items belonging to him were removed, including two televisions, men’s

clothing, approximately $800 in cash, and other items.

        During the time these events occurred, Miguel was exercising his visitation rights

with his two-year-old daughter whose mother is Valerie Martinez.2 Miguel typically would

pick his daughter up at Valerie’s house and return her to the house later in the day.

        On September 4, 2006, Valerie was not at home when Miguel attempted to return

his daughter at the end of his time with her. He was finally able to meet Valerie sometime

around 5:00 p.m. that afternoon. After dropping his daughter off with Valerie, he went to

his mother’s house, where he found his mother and sister visibly upset. Thirty minutes

later, he returned to his own home and found the front door kicked in and the house

ransacked.

        Genesis Canseco, Miguel’s sister, testified that on September 4, 2006, she was

living with her mother. That afternoon, upon hearing a knock, she answered the door.



        2
        Valerie Martinez and Justin Martinez are not related to each other by blood or by m arriage. They
do, however, have two other children together.
                                                   3
Justin Martinez was at the door. Genesis knew Justin through Valerie. He appeared mad

and wanted to see her brother, Miguel. Genesis told Justin that Miguel was not there.

Justin seemed very upset, was yelling and gesturing, and was demanding that Genesis tell

him where to find Miguel. She saw a male passenger in the car that Justin had arrived in,

but he never got out of the car. Before he left, Justin said, “You better tell [Miguel] to stay

away from Valerie.”

       Gina Canseco, Miguel’s mother, also testified. Gina said that, when Justin came

to the door of her house on September 4, 2006, “[h]e was very upset” and was threatening

Miguel. She was afraid for her son’s safety. She told Miguel about Justin’s actions and

threats before Miguel left her house on September 4, 2006.

       Juan David Alvarado, then Miguel’s neighbor, testified he was at home cooking

supper on September 4, 2006. He heard a loud noise, looked out his kitchen window, and

saw a car backed up into the driveway by Miguel’s house. He saw someone who

resembled Miguel place a television inside the car. Because these events occurred during

daylight hours, Alvarado thought it was Miguel placing the television in the car, and thought

Miguel must be moving out of the house. Later, Alvarado identified Justin from a photo

lineup as the man who he saw at Miguel’s house carrying the television. Alvarado also

pointed Justin out at trial as one of the men he had seen at Miguel’s house that day.

       Sergeant James Lerma, a patrolman with seven years experience with the Corpus

Christi Police Department, was dispatched to Miguel’s house to “take the initial report.”

Miguel met him outside the house, and while speaking with Lerma, confirmed the dispatch

call. Lerma also spoke with Gina Canseco, Miguel’s mother, who was “very upset” when

he talked with her. Lerma walked the scene, noticed that the house had been ransacked,



                                              4
and “could tell [the front door] had been kicked open.” Lerma also noticed that a dresser

looked as though a television had been removed from it and a cable line had been

disconnected. Lerma tried to contact some neighbors, but none were available. Lerma

“called [the] identification section to come and process the scene.”

       Diego Rivera, a crime scene technician with the Corpus Christi Police Department,

responded to Lerma’s call. Rivera examined the house, specifically looking for fingerprints

on the dresser and its top, a nightstand top, and the front door. Rivera was unable to find

any fingerprints.

       Valerie Martinez testified on Justin’s behalf.    At one point, she was Justin’s

neighbor, which explains how they met. She and Miguel had an “off-again-on-again”

relationship, and when the relationship was “off,” she sometimes would date Justin. During

2006, she occasionally lived with Miguel at his house, including during the summer of

2006, but did not live there during September 2006.

       According to Miguel, Valerie never had a key to his house, though she claimed she

did. On September 4, 2006, she asked Justin to take her to Miguel’s house to pick up

some of her “stuff,” items Miguel had supposedly taken from her while she was not living

with him. Justin picked her up in his mother’s car, and he had a friend with him. When

they arrived at Miguel’s house, according to Valerie, the front door was unlocked, so she

did not need to use her key. She noticed no damage to the door or its frame, and it was

unnecessary to break down the door to get inside. She testified that no one accidently

knocked the door off its frame. Valerie went through the closet and drawers to find her

things, and also removed two television sets her mother had purchased for her. She did

not “ransack” the house nor did she see or remove any cash. As a matter of fact, she



                                            5
testified, if Miguel had any money, he would have kept it in the bank. Valerie also stated

that Miguel is a very jealous person. On cross-examination, Valerie confirmed that she had

never spoken to the police or the district attorney’s office about the story she was telling

during the trial. However, Valerie had not been hiding or avoiding the police or district

attorney’s office.

        There was ample testimony placing Justin at the scene of the crime. Valerie’s

testimony provides an explanation for some, but not all, of the items missing from the

home. Viewing all of the evidence in a neutral light, we cannot say that the evidence is “‘so

weak’ that the jury’s verdict seems ‘clearly wrong and manifestly unjust,’” nor can we say

that “the jury's verdict, though legally sufficient, is nevertheless against the great weight

and preponderance of the evidence.” See Watson, 240 S.W.3d at 414-15. We overrule

Justin’s first issue.

                                        II.   MOTION FOR NEW TRIAL

        Justin filed a motion for new trial, arguing that an unauthorized conversation

between Rivera, Officer Lerma, and two jurors occurred.                             Justin argues that the

conversation violated article 36.22 of the code of criminal procedure, which prohibits

conversations with jurors “about the case on trial except in the presence and by the

permission of the court.” See TEX . CODE CRIM . PROC . ANN . art. 36.22 (Vernon 2006). The

trial court denied the motion, but decided to punish Lerma and Rivera by suspended fines.3

Justin argues that the trial court committed error by denying his motion for new trial.




        3
          See T EX . C OD E C R IM . P R O C . A N N . art. 36.22 (Vernon 2006) (providing the punishm ents that are
available for violating article 36.22).



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A.     Standard of Review

       We apply the abuse of discretion standard when reviewing a trial court’s decision

on a motion for new trial. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

Without substituting our judgment for the trial court’s, we must determine whether the trial

court’s decision was unreasonable or arbitrary. Id. at 208. We (1) view the evidence in the

light most favorable to the ruling, and (2) “presume that all reasonable factual findings that

could have been made against the losing party were made against that losing party.” Id.

at 208. We “must defer to any reasonable implied factual findings that the trial court might

have made in denying a motion for new trial.” Id. at 211. “The trial court is the sole judge

of the credibility of the testifying jurors. Where there is conflicting evidence on an issue of

fact as to jury misconduct, the trial judge determines the issue and there is no abuse of

discretion in overruling the motion for new trial.” Salazar v. State, 38 S.W.3d 141, 148

(Tex. Crim. App. 2001).

       An unauthorized conversation about the case between a juror and another person

gives rise to a presumption of injury to the defendant and a new trial may be in order.

Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997). However, the State may

rebut the presumption of harm. Id. A new trial will not be warranted unless there has been

injury to the defendant. Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985).

“Examples of methods of proving there has been no injury include a showing by the State

that the case was not discussed or a showing that nothing prejudicial to the accused was

said.” Id. We will find that a trial court has abused 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. at 208.



                                              7
B.     Discussion

       During a post-trial hearing, Diana Amesquita, a juror in the case, explained that

during the guilt or innocence phase, she and another juror were riding in the elevator with

Lerma and Rivera following their testimony. Rivera allegedly said to them, “Ladies, did I

dazzle you?” The two jurors responded that they were not allowed to discuss anything.

Lerma then said, “Ah, so they invoked the rule.” Then, the jurors reiterated that they were

not able to discuss anything, and, according to Amesquita, Lerma replied, “It’s weird that

at the grand jury you can discuss almost anything.”

       Amesquita was the only juror to testify at the post-trial hearing. She said she

thought that Rivera was merely flirting with her and the other juror in the elevator, who was

also a female. She confirmed that none of the comments or conversations influenced her

in reaching a decision regarding Justin’s guilt or innocence or during the sentencing phase.

She did not give greater weight to the State’s evidence or to Justin’s evidence as a result

of Rivera’s comment. She did not consider Lerma’s comments to imply that there was

additional information about the case that he was not allowed to raise in his testimony.

Amesquita and the other juror did not discuss these comments between themselves nor

with other jurors. Amesquita did not know whether the comments had an effect on the

other juror’s decisions at either phase of the trial.

       Without substituting our judgment for the trial court’s, viewing the evidence in the

light most favorable to the ruling, and “presum[ing] that all reasonable factual findings that

could have been made against the losing party were made against that losing party,” we

hold that the trial court did not abuse its discretion in overruling Justin’s motion for new trial.

See Charles, 146 S.W.3d at 208. Here, the trial court determined, as the sole judge of



                                                8
Amesquita’s credibility, that no misconduct had occurred. See Salazar, 38 S.W.3d at 148.

The State successfully rebutted the presumption of injury to Justin by demonstrating that

nothing prejudicial to him was discussed. See Thomas, 699 S.W.2d at 853. The trial court

impliedly found, by denying the motion for new trial, that no injury to Justin occurred, even

though the trial court decided to punish Lerma and Rivera, and we must defer to the

implied finding. See Charles, 146 S.W.3d at 211. We cannot find that “no reasonable view

of the record could support the trial court's ruling,” id. at 208; therefore, we overrule Justin’s

second issue.

                                       III.   CONCLUSION

       Having overruled both of Justin’s issues on appeal, we affirm the trial court’s

judgment.


                                                            __________________________
                                                            GINA M. BENAVIDES,
                                                            Justice

Do not publish.
See TEX . R. APP. P. 47.2(b)

Memorandum Opinion delivered and
filed this the 26th day of February, 2009.




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