                            NUMBER 13-14-00512-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CHRISTOPHER MARTINEZ,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


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


                        MEMORANDUM OPINION
               Before Justices Garza, Benavides and Perkes
                 Memorandum Opinion by Justice Garza

      Appellant Christopher Martinez was convicted of criminal mischief causing more

than $1,500 but less than $20,000 in damage, a state jail felony. See TEX. PENAL CODE

ANN. § 28.03(a), (b)(4)(A) (West, Westlaw through 2013 3d C.S.). On appeal, he argues

that the evidence was insufficient to support his conviction and that his trial counsel

provided ineffective assistance. We affirm.
                                      I. BACKGROUND

       Martinez was accused of slashing the tires of a vehicle belonging to Ruben Barrera

on May 11, 2014. Gabriel Leal testified he was employed as a bouncer at El Dorado, a

bar in Corpus Christi, on that date. According to Leal, “[t]wo individuals were brought out

twice because of verbal altercations inside the bar” that night. Leal identified Martinez as

one of the individuals. Leal stated that he asked Martinez’s brother to leave the bar, and

that Martinez left at the same time as his brother. When Martinez’s brother “mentioned

that he was going to go get a gun and return back to the bar,” Leal notified his manager,

who contacted the police. Leal saw that the two men “left the bar to the left,” but he did

not maintain visual contact with the two men. “About two minutes later,” Leal walked

outside “to look for them to make sure they didn’t return . . . .” Leal started looking inside

the cars that were parked in the parking lot. Leal testified that he then “looked further

down the road” and “saw the individual damaging a vehicle while the other one was

parked in the car.” He elaborated that Martinez was “stabbing the tire” of a Hummer while

Martinez’s brother sat inside his vehicle.

       According to Leal, the area where the Hummer was situated was illuminated and

nothing was blocking his view of Martinez. However, he conceded that Martinez had his

back toward him when he observed him damaging the tire. Leal stated that, about ten or

fifteen minutes later, he was asked by police to come to Entourage, another bar a short

distance away, to identify who he saw damaging the tire. He knew Martinez was the one

who damaged the tire because he “was wearing the same attire that I saw him wearing

when he came into the bar.”

       On cross-examination, Leal stated that the El Dorado parking lot was crowded that



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night. He was standing “[a] good hundred yards” from where the Hummer was situated.

When asked whether he “personally” saw Martinez slashing the tires, Leal replied: “I just

saw a forward and backward motion. I don’t know what he did to the vehicle or to the tire.

I was not there personally right by him.”

       Casey Henry, a Corpus Christi police officer, testified that he responded to a

disturbance at El Dorado. He asked the bouncer what had happened, and the bouncer

explained “that he observed a gentleman come out and the tires were slashed on a

Hummer, and then he saw them leave in a white Mustang with a tan convertible top.”

Police located the white Mustang a short distance away in the parking lot of Entourage.

When Henry arrived at the scene, he removed Martinez from the passenger side of the

vehicle, patted him down, and found a knife in Martinez’s right pocket. The knife was

entered into evidence. On cross-examination, Henry acknowledged that the knife was

not tested for fingerprints, and that he did not observe any “tire residue” on the knife. A

portion of a video recording of the traffic stop at Entourage and subsequent events from

Henry’s patrol car was played for the jury and entered into evidence without objection.

       Ruben Barrera testified that he and his Hummer were at El Dorado on the night in

question. After the bouncer told him that he needed to go outside, Barrera noticed that

all four tires on his vehicle had been slashed. Additionally, there was a “dent on the

window seal.” According to Barrera, the dent was not there before he went into El Dorado

that evening. He stated it cost “over three thousand dollars” to repair the vehicle, and

that he paid a $495 deductible to his insurance company. Barrera testified that he has

never met Martinez.

       Richard Gutierrez, a claims adjuster employed by Progressive Insurance, testified



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that he estimated it would cost $493.44 to replace each tire. He testified that he believed

the tires “were in excess of 20 inches” in size and that they were the “kind of those off-

road kind of souped up tires that you would see, like, on a vehicle with a lift kit.” State’s

Exhibit 7, a written estimate prepared by Gutierrez, listed under “Estimate Totals” the

figures of $2,463.55 for parts, $716 for labor, and $349.86 for “additional costs.”

       Martinez’s aunt, Juanita Rangel, testified in his defense that she was at El Dorado

that night, that she saw Martinez and his brother leave the bar and get into their car, and

that she did not see them destroy or slash anything.

       The jury convicted Martinez as charged, and after hearing evidence on

punishment, the trial court sentenced him to fifteen months in state jail. The judgment of

conviction also requires Martinez to pay $495 in restitution to Barrera and $554 in court

costs. This appeal followed.

                                      II. DISCUSSION

A.     Sufficiency of the Evidence

       By his first issue, Martinez contends that the evidence was insufficient to support

his conviction. In reviewing the sufficiency of evidence supporting a conviction, we

consider the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We give deference to “the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214



                                             4
S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). When the

record of historical facts supports conflicting inferences, we must presume that the trier

of fact resolved any such conflicts in favor of the prosecution, and we must defer to that

resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010).

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A hypothetically correct jury charge in this case would

state that Martinez is guilty of the charged offense if he intentionally or knowingly cut the

tires of Barrera’s vehicle without the effective consent of Barrera, thereby causing

pecuniary loss in the amount of $1,500 or more but less than $20,000. See TEX. PENAL

CODE ANN. § 28.03(a), (b)(4)(A).

       Martinez does not dispute that the evidence supported the jury’s implicit findings

as to the dollar value of damage done to the Hummer and as to the lack of effective

consent of Barrera. Instead, he argues that (1) “[n]o one saw the condition of the Hummer

before [Leal] saw [Martinez] next to it,” (2) “there was never any testimony about residue

on the knife or whether the knife was capable of causing the damage to the tires,” and (3)

there was no evidence of any motive Martinez may have had to damage Barrera’s

property. We agree with these individual propositions; however, we disagree that the

evidence was insufficient to support the conviction.




                                              5
       First, Martinez is correct that there was no testimony establishing the condition of

the Hummer’s tires prior to the time Martinez was seen next to them. However, Barrera

appeared to suggest that he drove his Hummer to El Dorado that night,1 and the jury

could have reasonably inferred from this fact that the tires were intact prior to Leal’s

observation. See Hooper, 214 S.W.3d at 13. Additionally, Leal testified that he observed

Martinez “damaging” the vehicle and “stabbing” its tire. Although Leal admitted he was

“[a] good hundred yards away” from the Hummer at the time, he stated that the area was

illuminated and his view was not blocked. Leal later conceded on cross-examination that

he “just saw a forward and backward motion” and he did not “know what he did to the

vehicle or to the tire” because he “was not there personally right by him.” However, the

jury was entitled to believe his earlier testimony. See Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008) (“Because the jury is the sole judge of a witness’s credibility,

and the weight to be given the testimony, it may choose to believe some testimony and

disbelieve other testimony.”).

       Second, Martinez is correct that there was no evidence that the knife found in his

pocket contained any residue left by the tires, and there was no testimony that the knife

was capable of causing the damage to the tires. However, it is undisputed that Martinez

was, in fact, in possession of a knife when police stopped him and his brother in their

vehicle; and, as noted, Leal testified that he observed Martinez stabbing the tire shortly

before Martinez was found with the knife. Even in the absence of any direct testimony

that this particular knife was capable of causing the observed damage, the jury could




        1 When the prosecutor asked Barrerra “did you and your Hummer go to [El Dorado] that night,”

Barrera replied “Yes.”

                                                 6
have reasonably made that inference because Leal observed Martinez making a “back-

and-forth swinging motion” next to the Hummer a short time before Martinez was found

with a knife and the tires were found to be slashed.

       Finally, Martinez is also correct that there was no evidence of any motive that he

may have had for damaging Barrera’s property. But motive is not an element of criminal

mischief. See TEX. PENAL CODE ANN. § 28.03. Accordingly, the absence of any motive

evidence does not render the evidence insufficient to support the verdict. See Hacker,

389 S.W.3d at 865 (noting that only the “essential elements of the crime” are considered

in a sufficiency analysis).

       Viewing all of the evidence in the light most favorable to the verdict, we find that a

rational juror could have found the essential elements of the offense beyond a reasonable

doubt. See id. Martinez’s first issue is overruled.

B.     Ineffective Assistance of Counsel

       By his second issue, Martinez argues that his trial counsel provided ineffective

assistance, thereby depriving him of his Sixth Amendment right to counsel, when counsel

failed to seek suppression of certain statements Martinez made to police. See U.S.

CONST. amend. VI.

       To obtain a reversal of a conviction for ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense, resulting

in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. State, 278

S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). “Deficient performance means that ‘counsel made errors so serious that



                                             7
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting

Strickland, 466 U.S. at 687).

      The appellant bears the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). He must overcome the strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance and that counsel’s actions could be

considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008) (noting that, “unless there is a record sufficient

to demonstrate that counsel’s conduct was not the product of a strategic or tactical

decision, a reviewing court should presume that trial counsel’s performance was

constitutionally adequate”).    Counsel’s effectiveness is judged by the totality of the

representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851.

      Martinez appears to argue that his trial counsel erred by failing to object to the

admission and publication to the jury of part of a video recording from Henry’s patrol car,

in which Martinez was asked whether he had been to El Dorado and in which he admitted

that he has a pocket knife. He claims that the statements were inadmissible because

they were made as a result of a custodial interrogation and he was not given Miranda

warnings before making them. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West,

Westlaw through 2013 3d C.S.); Miranda v. Arizona, 384 U.S. 436 (1966). In arguing that



                                            8
he was prejudiced by the admission of this evidence, Martinez notes that the prosecutor

referred to his statement regarding the knife in her closing argument.2 He also asserts

that, “[i]n addition to the incriminatory comments, the jury was prejudiced by the

intoxicated appearance of [Martinez], his attempts to foist blame on his brother being ‘the

crazy one,[’] and the admission of being involved in altercations at both El Dorado and

Entourage.”

        Even assuming that the video evidence was inadmissible, we cannot conclude that

Martinez’s trial counsel was ineffective in failing to lodge an objection thereto.                         An

allegation of ineffectiveness must be firmly founded in the record; that is, the record must

affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835

(Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6. “[T]rial counsel should ordinarily

be afforded an opportunity to explain his actions before being denounced as ineffective.”

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “Absent such an

opportunity, an appellate court should not find deficient performance unless the

challenged conduct was ‘so outrageous that no competent attorney would have engaged

in it.’” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

        Here, Martinez did not file a motion for new trial asserting ineffective assistance;

therefore, there is nothing in the record establishing why his trial counsel decided not to

object.3    Martinez contends that “[t]here can be no sound trial strategy in allowing


        2  In her closing argument, the prosecutor remarked: “[Defense counsel] said that someone could
have put [the knife] in [Martinez’s] right pocket. There’s absolutely no evidence of that, no testimony of
that. In fact, [Martinez] in the back seat of the patrol car admitted that he has a pocket knife to open steaks
at work.”
        3  We note that challenges requiring development of a record to substantiate a claim, such as
ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE
CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2013 3rd C.S.); Cooper v. State, 45 S.W.3d 77, 82
(Tex. Crim. App. 2001).

                                                      9
incriminatory comments from the accused to be admitted to the jury,” but we disagree.

First, the allegedly “incriminatory” aspects of the video were established by other

evidence at trial—in particular, Leal and Rangel testified that Martinez was present at El

Dorado that night, and Henry testified that he discovered the knife in Martinez’s pocket.

Second, counsel may have decided not to object to the approximately four-minute-long

video excerpt on legitimate strategic grounds; in particular, he may have sought to avoid

directing the jury’s attention to the video, or he may have believed that the video portrayed

Martinez in a sympathetic light. Without any evidence in the record as to the reasons for

counsel’s actions, we cannot speculate as to whether the decision was actually based on

sound legal strategy. We can, however, state with certainty that counsel’s decision was

not “so outrageous that no competent attorney would have engaged in it.” Goodspeed,

187 S.W.3d at 392.

       Because Martinez has failed to overcome the strong presumption that his trial

counsel’s conduct fell within the wide range of reasonable professional assistance, his

second issue is overruled. See Thompson, 9 S.W.3d at 813; see also Strickland, 466

U.S. at 689; Jaynes, 216 S.W.3d at 851.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.



                                                    DORI CONTRERAS GARZA,
                                                    Justice

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

Delivered and filed the
4th day of June, 2015.

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