
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00611-CR


Toni Martinez, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-08-201403, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted appellant Toni Martinez of the offense of injury to a child.  See
Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2008).  Punishment was assessed at eighteen years'
imprisonment.  In two points of error, Martinez asserts that the jury charge given during punishment,
as mandated by article 37.07, section 4(a), of the code of criminal procedure, is unconstitutional
under the due-course-of-law provisions of the Texas Constitution and the due-process clause of the
United States Constitution.  We will affirm the judgment of conviction.

BACKGROUND
		The underlying facts of this case are not disputed on appeal.  The jury heard evidence
that, on March 8, 2008, Martinez's two-year-old son was rushed by ambulance to the hospital.  His
injuries included retinal hemorrhaging and a subdural hematoma, i.e., a blood clot between the brain
and the skull.  Doctors performed emergency neurosurgery, which involved "the extreme measure
of removing a portion of the skull."  One of the doctors who treated the child testified that the child
had suffered a "traumatic brain injury," and the child "would probably be dead were it not for the
medical interventions that took place after he was brought to the hospital."  The child was diagnosed
with shake-impact syndrome, also known as shaken-baby syndrome.
		Martinez was interviewed by Child Protective Services.  The investigator who
interviewed Martinez, Coty Stanley, testified that Martinez told her that she had "lost her temper"
with the child, "shook him," and "took him then into the bathroom and threw him into the tub." 
According to Stanley, "She said that he hit the tub bottom first and she began hitting him over
the head openhanded."  Then, Stanley continued, Martinez "noticed that something wasn't right, his
eyes were glazed over, and that's when she had called for an ambulance."
		Martinez was subsequently charged with the first-degree felony offense of injury to a
child.  The indictment alleged that Martinez intentionally or knowingly caused serious bodily injury
to the child and that she used or exhibited a deadly weapon during the commission of the offense,
namely her hand.  The jury found Martinez guilty of the lesser-included offense of recklessly causing
serious injury to a child, a second-degree felony.  The jury also found that Martinez used or exhibited
a deadly weapon during the commission of the offense.  Martinez was sentenced to eighteen years'
imprisonment.  This appeal followed.

STANDARD OF REVIEW
		In evaluating Martinez's complaint of charge error, we apply the two-pronged test
set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).  We first
determine whether error exists.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);
Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.--Austin 2008, pet. ref'd).  If error exists,
we then evaluate the harm caused by the error.  Ngo, 175 S.W.3d at 743; Swearingen, 270 S.W.3d
at 808.

ANALYSIS		Because of the deadly weapon finding in this case, the jury charge on punishment
included the following language as mandated by article 37.07, section 4(a), of the code of criminal
procedure:

5.
	Under the law applicable in this case, if the defendant is sentenced to a term
of imprisonment, he will not become eligible for parole until the actual time served
equals one-half of the sentence imposed or 30 years, whichever is less, without
consideration of any good conduct time he may earn.  If the defendant is sentenced
to a term of less than four years, he must serve at least two years before he is eligible
for parole.  Eligibility for parole does not guarantee that parole will be granted.

6.
	Under the law applicable in this case, the defendant, if sentenced to a term of
imprisonment, may earn time off the period of incarceration imposed through
the award of good conduct time.  Prison authorities may award good conduct time
to a prisoner who exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation.  If a prisoner engages in misconduct,
prison authorities may also take away all or part of any good conduct time earned
by the prisoner.

7.
	It is also possible that the length of time for which the defendant will be
imprisoned might be reduced by the award of parole.

8.
	It cannot accurately be predicted how the parole law and good conduct time
might be applied to this defendant if he is sentenced to a term of imprisonment,
because the application of these laws will depend on decisions made by prison and
parole authorities.

	You may consider the existence of the parole law and good conduct time.
However, you are not to consider the extent to which good conduct time may
be awarded to or forfeited by this particular defendant.  You are not to consider the
manner in which the parole law may be applied to this particular defendant.

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2008).
		Martinez, while acknowledging that the above paragraphs are "required by Texas
law," nevertheless asserts that the statutory language is erroneous and unconstitutional because it
misled the jury into believing that Martinez's sentence could be shortened by earning good-conduct
time, when in fact, because of the deadly weapon finding, good-conduct time has no effect on her
parole-eligibility date, and she is not eligible for mandatory supervision.  See Tex. Gov't Code Ann.
§ 508.149(a)(1) (West Supp. 2008) (providing that inmate may not be released to mandatory
supervision if inmate is serving sentence for offense that contains affirmative finding under
article 42.12, section 3g(a)(2), code of criminal procedure).
		Martinez's arguments have already been addressed by the court of criminal appeals. 
See Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002).  In Luquis, the court held that a
trial court does not err by giving the above instructions, see id. at 363, and that the above instructions
do not violate a defendant's due-process or due-course-of-law rights.  See id. at 364-68.  The Luquis
court recognized that there may be some cases in which the parole-law instruction "may be
misleading as applied to the facts in a particular case."  Id. at 367.  However, in such a case, there
must be evidence in the record that the parole-law instruction "was calculated to mislead [the] jury
or that there is a reasonable probability that it did mislead [the] jury."  Id.  Nothing in the record
suggests that this is such a case.
		Martinez acknowledges the court's decision in Luquis, but criticizes the court's
reasoning and asks this Court to "revisit" the issue.  However, this Court is bound by the precedent
of the court of criminal appeals and has no authority to disregard or overrule its decisions.  See State
ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971); Wiley v. State, 112 S.W.3d
173, 175 (Tex. App.--Fort Worth 2003, pet. ref'd). 
		We overrule Martinez's first and second points of error. 

CONCLUSION
		We affirm the judgment of the district court.

						____________________________________________
						Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   August 21, 2009
Do Not Publish
