                             NUMBER 13-08-00225-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JAYSON (JASON) MARTINEZ,                                                      Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


  On appeal from the 107th District Court of Cameron County, Texas.


                          MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza
       On April 7, 2008, appellant, Jayson (Jason) Martinez, was convicted of:            (1)

intentionally or knowingly causing serious injury to a child, a first degree felony; (2)

recklessly causing injury to a child, a state jail felony; and (3) aggravated assault with a

deadly weapon, a second degree felony. See TEX . PENAL CODE ANN . § 22.02(a)(1), (b)

(Vernon Supp. 2008), § 22.04(a)(1), (3), (e), (f) (Vernon Supp. 2008). Martinez was

sentenced to ten years’ imprisonment for the first degree felony, one year’s imprisonment

for the state jail felony, and ten years’ imprisonment for the second degree felony, with the

sentences to run concurrently. See id. §§ 12.32-.35 (Vernon Supp. 2008) (setting forth

felony sentencing ranges). On appeal, Martinez contends by four issues that: (1) the
evidence was legally insufficient to support his conviction for recklessly causing injury to

a child; (2) the evidence was factually insufficient to support his conviction for aggravated

assault with a deadly weapon; (3) the trial court erred by severing his case from that of four

co-defendants; and (4) the trial court erred by disallowing certain testimony by Martinez.

We affirm.

                                                I. BACKGROUND

         Martinez, along with co-defendants Mayra Alejandra Luna, Omar Maldonado,

Joshua John Frost, and Francisco De Leon III, were indicted by a Cameron County grand

jury on August 22, 2007.1 The allegations contained in the indictment arose from an

incident that occurred on June 7, 2007. On October 29, 2007, the trial court granted the

State’s motion to sever Martinez’s case from that of the other co-defendants. The guilt

phase of Martinez’s trial commenced on March 18, 2008.

         The evidence was undisputed that on June 7, 2007, a white pickup truck

approached a blue Chevrolet Monte Carlo at the corner of F Street and Buchanan Street

in Harlingen, Texas. Norma Martinez (“Norma”) was driving the Monte Carlo, and Jesse

Garcia was seated in the front passenger seat. Riding as passengers in the rear seat were

Norma’s daughter Maria Martinez Cortez (“Maria”), Maria’s ten-month-old daughter A.T.,

Maria’s two-year-old daughter A.O., and Maria’s future husband Ezzie Cortez. The white

pickup truck contained Martinez, Luna, Maldonado, Frost, De Leon, and Tuwana Clay.

         As the truck pulled up alongside the car, an altercation arose between Clay and one

of the occupants of the Monte Carlo. Maria testified at trial that Clay shouted “‘[g]et off [sic]

the car, bitch,’” and “‘[s]top the car. Get off [sic] the car.’” The truck passed the car, made


        1
           The indictm ent alleged six counts against all five defendants: (1) intentionally or knowingly causing
serious bodily injury to A.T., a child, see T EX . P EN AL C OD E A N N . § 22.04(a)(1) (Vernon Supp. 2008); (2)
intentionally or knowingly causing bodily injury to A.O., a child, see id. § 22.04(a)(3); (3) aggravated assault
with a deadly weapon as to Maria Martinez Cortez, see id. § 22.02(a)(2) (Vernon Supp. 2008); (4) aggravated
assault with a deadly weapon as to Jesse Garcia, see id.; (5) endangering a child by “throwing stones, bricks,
or pieces of concrete at or through the window of the autom obile occupied by [A.T.] and [A.O.],” see id. §
22.041(c) (Vernon Supp. 2008); and (6) endangering a child by “initiating or participating in gang-related
crim inal actions or violence . . . that either directly through violence itself, or through retaliation for previous
crim inal acts, brought injury to [A.T.], [A.O.], or Jesse Garcia,” see id.

                                                         2
a U-turn, and then approached the Monte Carlo from behind. At that point, according to

Maria, “[w]e saw the gentleman in the back [of the truck] start throwing bricks at my car.

. . . We just saw a lot of guys get out from the back of the pickup truck and start throwing

bricks from the truck.” Maria stated that she recognized Martinez and De Leon as among

the people riding in the truck. Maria stated that Garcia, who was in the front passenger

seat of the Monte Carlo, then got out of the car and “started yelling that the babies were

in the car,” at which point he was struck on his hand by a brick. Maria testified that

Martinez then “[r]an up to my car” and “[w]ith his hand, he started breaking my side

window.” Next, according to Maria, Martinez “look[ed] inside my car” and “picked up a brick

and went to the back of my car and threw it in.” Maria stated that the brick “glazed [sic] me

on my . . . right side. . . . I got down and it hit my daughter [A.T.] in the back of the head.”

Maria further stated that a second brick was thrown into the car through the back window

that struck Cortez on his back and A.O. on her foot. She stated that the only people

behind the car at the time were Martinez and De Leon. Maria testified that A.T. suffered

a fractured skull and was taken to Valley Baptist Medical Center where she underwent

surgery to repair her head injuries.

       Both Cortez and Norma corroborated Maria’s testimony. Cortez noted that the

passengers of the truck “[s]tarted throwing, I guess, pieces of concrete” at the Monte Carlo

and that Martinez then approached the car and “[s]tarted hitting the side window.” Cortez

then observed Martinez throw a brick through the back window, and noted that it struck

A.T. Cortez stated that a second rock came through the back window but that it did not hit

anyone.

       Norma, Maria’s mother, testified that Luna was driving the truck and that she heard

Clay yell at someone in the Monte Carlo. Norma stated that Martinez approached the car,

started hitting the passenger side window with his hand, and then “threw a rock” through

the rear window. When asked if anyone was hit by the first rock thrown by Martinez,

Norma responded: “My daughter [Maria] got a little bit like scratched, but it went straight

                                               3
to [A.T.]’s head.” Norma also noted that she observed De Leon throw the second brick

which struck Cortez in the back.

        Testifying on his own behalf, Martinez stated that he did not know that there were

children in the Monte Carlo. Martinez admitted that he “tried to throw” a “big rock” at the

car but stated that “it was so heavy that it just landed in the front of the truck.” Martinez

placed the blame for the children’s injuries on his companions in the truck—specifically

Tuwana Clay—as evidenced by the following exchange on direct examination:

        Q.       These rocks that were thrown that we have here in evidence, two of
                 which were inside their—the vehicle that these little kids were in, was
                 it the intention of—to your knowledge, of the people that you were
                 with to throw rocks at these little kids?

        A.       My knowledge, I’m pretty sure they were reckless. They were just
                 careless, and they were probably trying to hurt Maria, the girls. That’s
                 what I—that’s my speculations [sic]. I mean, nobody else had
                 problems with nobody in that vehicle, just—I just wanted to talk to
                 Jesse when I saw him. I didn’t know he was in the vehicle until he got
                 out. So if anybody—

        Q.       Tuwana had problems with Maria, right?

        A.       Yes, sir.

        The jury found Martinez guilty of intentionally or knowingly causing serious injury to

A.T., recklessly causing injury to A.O., and aggravated assault with a deadly weapon as

to Maria.2 See id. §§ 22.02(a)(2), 22.04(a)(1), (a)(3). The jury then imposed sentences of

ten, one, and ten years’ imprisonment, respectively, and the trial court ordered the

sentences to run concurrently. This appeal followed.

                                                II. DISCUSSION

A.      Legal Sufficiency—Reckless Injury to a Child

        By his first issue, Martinez contends that the evidence adduced at trial was legally



        2
          Before the jury rendered its verdicts on Counts I, II and III of the indictm ent, the trial court granted
Martinez’s m otion for directed verdict on Counts IV (aggravated assault with a deadly weapon as to Garcia)
and V (endangering a child by “throwing stones, bricks, or pieces of concrete at or through the window of the
autom obile occupied by [A.T.] and [A.O.]”). Further, because the State abandoned Count VI of the indictm ent
(endangering a child by “initiating or participating in gang-related crim inal actions”), the trial court dism issed
that count.

                                                         4
insufficient to support his conviction for recklessly causing injury to A.O. In conducting a

legal sufficiency review, 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. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim.

App. 2003). We must 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 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a

reasonable doubt; rather, when faced with conflicting evidence, we must presume that the

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

resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

         Legal 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); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d). Under

a hypothetically correct jury charge, Martinez committed the offense of recklessly causing

injury to a child if he (1) recklessly (2) caused bodily injury (3) to a child 14 years of age or

younger. See TEX . PENAL CODE ANN . § 22.04(a)(3), (c)(1). “Bodily injury” means “physical

pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (Vernon Supp.

2008).

         Martinez’s sole argument in his first issue is that the evidence was legally insufficient

to establish that A.O. suffered any “bodily injury.”3 In support of this argument, Martinez

points to Cortez’s testimony that the second rock thrown into the Monte Carlo did not hit

anyone. However, Maria testified that the second rock “hit [A.O.’s] foot” and that, as a

result, A.O. “had a couple of scratches.” The State also notes that A.T.’s hospital records,


         3
           By his first issue on appeal, Martinez does not dispute the sufficiency of the evidence as to his state
of m ind or as to A.O.’s age.

                                                        5
which were received into evidence without objection by defense counsel, contained a

statement by A.T.’s treating physician that “the other sister [A.O.] was injured” by some of

the pieces of rock. See TEX . R. EVID . 902(10)(a) (providing for the self-authentication of

business records accompanied by an affidavit). The jury may have inferred from these

pieces of evidence that A.O. suffered physical pain, and therefore, bodily injury. See

Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.–Corpus Christi 1988, pet. ref’d) (“The

fact of a physical intrusion on the body in the form of a cut or scrape can itself be sufficient

evidence of the associated physical pain necessary to show ‘bodily injury.’”) (citing Bolton

v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981)).

       Although Maria’s testimony and the medical records conflict with Cortez’s statement

that the second rock thrown into the car did not hit anyone, we must defer to the jury’s

resolution of the conflict in favor of the prosecution. See Turro, 867 S.W.2d at 47. Viewing

the evidence in the light most favorable to the verdict, we conclude that a rational jury could

have found beyond a reasonable doubt that A.O. suffered a “bodily injury.” Sanders, 119

S.W.3d at 820. Martinez’s first issue is overruled.

B.     Factual Sufficiency—Aggravated Assault

       By his second issue, Martinez argues that the evidence adduced at trial was

factually insufficient to support his conviction for the aggravated assault of Maria. In

conducting a factual sufficiency review, we consider the evidence in a neutral light.

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). The verdict is to be set

aside only if: (1) it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and manifestly unjust; or (2) it is against the great weight and preponderance

of the evidence. Id. at 415 (citing Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App.

2000)). To reverse a verdict for factually insufficient evidence, we must “explain in exactly

what way the State’s evidence, while legally sufficient, is nevertheless too weak to

withstand scrutiny, or in exactly what way we perceive the conflicting evidence greatly to

preponderate against conviction.” Id. at 414.

                                               6
        Factual sufficiency, like legal sufficiency, is measured by the elements of the offense

as defined by a hypothetically correct jury charge. Malik, 953 S.W.2d at 240; Adi, 94

S.W.3d at 131. Under a hypothetically correct jury charge, Martinez committed the offense

of aggravated assault with a deadly weapon if he (1) intentionally, knowingly, or recklessly,

(2) caused bodily injury to another, and (3) used or exhibited a deadly weapon during the

commission of the assault. See TEX . PENAL CODE ANN . § 22.01(a)(1), § 22.02(a)(2).

        Martinez specifically contends by his second issue that the evidence was factually

insufficient because “the State did not delve into what the meaning of graze and scrape

mean in relation to bodily injury.”4 Martinez refers here to Maria’s testimony that a rock

thrown by Martinez “glazed [sic] me on my . . . right side” and her later statement that the

rock “just barely—it barely scraped me. I just had like a little bruise.” Martinez does not

point to any conflicting evidence which would indicate that Maria did not suffer bodily injury.

Rather, he argues that the words “graze” and “scrape” are ambiguous and that “[i]t was

incumbent on the [S]tate to clarify [Maria’s] words and hone in on the elements in the

charge.” We disagree that Maria’s words required any clarification. The Texas Court of

Criminal Appeals has noted that the statutory definition of bodily injury “appears to be

purposefully broad and seems to encompass even relatively minor physical contacts so

long as they constitute more than mere offensive touching.” Lane v. State, 763 S.W.2d

785, 786 (Tex. Crim. App. 1989). Here, Maria testified that she was “glazed [sic]” or

“scraped” by the projectile thrown by Martinez, and Norma testified that Maria was “a little

bit like scratched” by the rock. Viewing the evidence in a neutral light, this testimony is

probative of the physical contact necessary to show “bodily injury.” See Goodin, 750

S.W.2d at 859 (citing Bolton, 619 S.W.2d at 167).

        Without any conflicting evidence, we cannot say that the jury’s verdict on this count

was clearly wrong, manifestly unjust, or against the great weight and preponderance of the


         4
           By his second issue on appeal, Martinez does not dispute the sufficiency of the evidence as to his
state of m ind or as to whether he used or exhibited a deadly weapon.

                                                     7
evidence. See Watson, 204 S.W.3d at 415. Accordingly, we conclude that the evidence

was factually sufficient to support Martinez’s conviction of aggravated assault as to Maria.

Martinez’s second issue is overruled.

C.     Propriety of Severance

       By his third issue, Martinez contends that the trial court erred by granting the State’s

motion to sever because the State “does not have standing to ask for a severance to

protect the rights of co-defendants.”

       Article 36.09 of the Texas Code of Criminal Procedure provides in relevant part that

“[t]wo or more defendants who are jointly or separately indicted or complained against for

the same offense or any offense growing out of the same transaction may be, in the

discretion of the court, tried jointly or separately as to one or more defendants.” TEX . CODE

CRIM . PROC . ANN . art. 36.09 (Vernon 2007). However, the court must order a severance

“in cases in which, upon timely motion to sever, and evidence introduced thereon, it is

made known to the court that there is a previous admissible conviction against one

defendant or that a joint trial would be prejudicial to any defendant.” Id.

       Here, the State filed a motion to sever Martinez’s case from those of his co-

defendants on October 23, 2007. The motion noted that: (1) Martinez’s record showed

that he had a prior felony conviction; (2) Maldonado and De Leon did not have prior felony

convictions; (3) a joint trial would therefore be “prejudicial” to Maldonado and De Leon; and

(4) Martinez’s counsel informed the court that he did not oppose the severance.

       Martinez does not dispute any of the facts alleged in the State’s motion to sever.

Instead, he baldly asserts that “granting [a motion to sever] when the State asks for it, and

not the defendant, is an abuse of discretion because the law requires that it only be

asserted by a defendant.” However, Martinez does not provide any authority, and we can

find none, supporting this position. Indeed, the plain language of article 36.09 states that

it is generally within the discretion of the trial court to grant or deny a motion to sever. See

id. According to the statute, the only situation where the court loses that discretion is when

                                               8
a defendant timely files a motion to sever, introduces evidence thereon, and the trial court

finds that there is a previous admissible conviction against one defendant or that a joint

trial would be prejudicial to any defendant—in such cases the court must grant the motion

to sever. See id. There is no provision in the statute, though, forbidding the trial court from

granting a motion to sever simply because the motion was originally filed by the State.

         We therefore conclude that the trial court did not err by granting the State’s motion

to sever. Accordingly, Martinez’s third issue is overruled.5

D.       Disallowance of Testimony

         By his fourth issue, Martinez asserts that the trial court erred by disallowing certain

testimony. Prior to Martinez’s direct examination at trial, his trial counsel asked the trial

court for permission to inquire into “the reason for the bad blood between [Martinez] and

[Garcia].” The following exchange took place:

         THE COURT:                           All right. Bring in the jury.

         [State’s attorney]:                  Your Honor, before they do that, I want to go
                                              ahead and just remind defense counsel
                                              concerning our motion in limine about
                                              referencing or talking about any prior bad acts or
                                              any other extraneous offenses.

         THE COURT:                           Of the defendant?

         [State’s attorney]:                  Of the defendant and his interaction with either
                                              relatives of some of the victims here or with the
                                              victims themselves.

         THE COURT:                           Okay. What do you mean interaction? That’s
                                              something else.



          5
             In the portion of his appellate brief addressing his third issue, Martinez alludes to a “problem ”
involving the order of trial, suggesting that “the [S]tate determ ined the order of trial” in the instant case. See
T EX . C OD E C R IM . P R O C . A N N . art. 36.10 (Vernon 2007) (“If a severance is granted, the defendants m ay agree
upon the order in which they are to be tried, but if they fail to agree, the court shall direct the order of the
trial.”). Martinez does not argue that he and the other defendants agreed upon the order of trial; instead,
Martinez suggests that he “was harm ed per se because he was not allowed to set up his story against his
alleged fellow assailants, whom the [S]tate appeared to exonerate at trial.” The State argues that Martinez
failed to preserve this issue because Martinez’s trial counsel m ade no objection when the trial court
announced Martinez’s case first. See T EX . R. A PP . P. 33.1(a). Even if the issue were properly preserved, we
note that Martinez has directed us to no authority indicating that a trial court com m its reversible error by setting
the order of trial in the absence of any agreem ent am ong the defendants. The issue is therefore waived. See
T EX . R. A PP . P. 38.1(i).

                                                           9
       [State’s attorney]:          Well, there are other—the bad, the other stuff,
                                    the interaction consider—or is about prior bad
                                    acts. Apparently, there’s been other arguments,
                                    fighting. . . .

       [Martinez’s attorney]:       I have no intention of bringing up anything bad
                                    about my own client, Judge. The only thing I’m
                                    going to bring out the fact is that why he was
                                    after this guy Jesse Garcia. And that was
                                    because Jesse Garcia was involved in a
                                    stabbing of a close personal friend of his, like a
                                    brother, a couple of days earlier; and he wanted
                                    to ask him about whether or not that was. . . .

       THE COURT:                   Okay. That had something to do with this
                                    incident?

       [Martinez’s attorney]:       Yes. Well, no. The stabbing didn’t. It happened
                                    a couple of days before. A shooting.

       THE COURT:                   Okay.

       [Martinez’s attorney]:       But that was the reason for Jayson Martinez to
                                    approach this guy Jesse Garcia.

       [State’s attorney]:          Once again, Your Honor, he’s talking about prior
                                    bad acts.

       [Martinez’s attorney]:       Well, not bad act of my client. . . .

       THE COURT:                   Okay. Well, I’ll sustain the [S]tate’s objection to
                                    bringing that out. You can go ahead and elicit
                                    testimony about chasing . . . Jesse Garcia and
                                    confronting him just to ask him about something,
                                    but don’t go into the specifics of what that is.

       [Martinez’s attorney]:       All right. Just so that I’m clear, do I say
                                    that—can Jayson Martinez ask him about the
                                    shooting of the friend?

       THE COURT:                   No. I’ll sustain that part of the objection.

       Martinez alleges that, by sustaining the State’s objection, the trial court deprived him

of his constitutional due process right to present a defense. See U.S. CONST . amend. XIV;

TEX . CONST . art. I, § 10. Martinez explains on appeal that “[t]his defense took the form of

explaining that both [Martinez] and Jesse [Garcia] were no where [sic] near the vehicles

when the rocks were thrown which caused the harm.”

       Generally, we review a trial court’s decision to admit or exclude evidence under an

                                             10
abuse of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim.

App. 2008). However, we need not do so here because Martinez failed to preserve the

issue for our review. Texas Rule of Evidence 103(a)(2) provides that an error may not be

predicated upon a ruling which excludes evidence unless: (1) a substantial right of a party

is affected; and (2) the substance of the evidence was made known to the court by offer

of proof or was apparent from the context within which questions were asked. TEX . R.

EVID . 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). Here, although

Martinez’s counsel explained to the trial court that Martinez could testify as to an alleged

prior stabbing or shooting by Garcia, there was no offer of proof made as to Martinez’s

testimony regarding his or Garcia’s positions during the incident in question. Because the

substance of the evidence sought to be admitted was not made known to the trial court,

and was not apparent from the context, Martinez has failed to preserve the issue for

appellate review. See TEX . R. EVID . 103(a)(2); TEX . R. APP. P. 33.1(a). His fourth issue is

overruled.

                                      III. CONCLUSION

       We affirm the judgment of the trial court.




                                                    _______________________
                                                    DORI CONTRERAS GARZA,
                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 25th day of June, 2009.




                                             11
