                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                           No. 04-14-00565-CR

                                  Rodolfo MARTINEZ-SALINAS,
                                            Appellant

                                                   v.

                                           The STATE of Texas,
                                                 Appellee

                      From the 49th Judicial District Court, Webb County, Texas
                               Trial Court No. 2009-CRP-000403-D1
                         Honorable Elma T. Salinas-Ender, Judge Presiding

Opinion by:       Jason Pulliam, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: November 4, 2015

AFFIRMED

           A jury found appellant Rodolfo Martinez-Salinas guilty of intoxication manslaughter and

three counts of intoxication assault. Based on the jury’s recommendation, the trial court sentenced

Martinez-Salinas to twenty years’ confinement for intoxication manslaughter and ten years’

confinement on each count of intoxication assault. The trial court ordered all sentences to run

concurrently. On appeal, Martinez-Salinas contends the trial court erred by: (1) refusing to admit

into evidence the deposition of Ignacio Carrillo, who was with Martinez-Salinas at the time of the

accident; (2) limiting the direct examination of a witness who at one time was an attorney for Tri-
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National, Inc., Martinez-Salinas’s employer; and (3) providing answers to jury communications

without using reasonable diligence to secure the presence of himself and his attorney and without

first submitting the answers to him and his attorney for possible objections. We affirm the trial

court’s judgment.

                                                      BACKGROUND

           According to witnesses at trial, while working for Tri-National, Martinez-Salinas and

Ignacio Carrillo were in a Volvo tractor truck 1 when they struck a Honda Accord driven by Liz

Hernandez and occupied by two young children. The impact was violent, causing the Honda

Accord to swerve and strike a Challenger tractor trailer driven by Leonardo Camarillo. The Volvo

tractor truck also struck the Challenger tractor trailer. Ms. Hernandez and the children were

seriously injured; Mr. Camarillo, who was not wearing his seatbelt, died at the scene. Martinez-

Salinas was injured and taken to the hospital; Carrillo was thrown from the tractor truck, but was

relatively uninjured.

           Shortly after the accident, blood samples were taken from Martinez-Salinas and Carrillo,

which established Carrillo had no alcohol in his blood, but Martinez-Salinas had 0.15 grams of

alcohol per 100 milliliters of blood, almost twice the legal limit of 0.08. Investigators determined

Martinez-Salinas was driving the Volvo tractor truck that caused the accident, based in part on

Martinez-Salinas’s admission, orally and in writing on the day of the accident.               However,

Martinez-Salinas later retracted this admission, claiming he admitted he was the driver only to

protect Carrillo, his sister’s boyfriend.

           After a jury found Martinez-Salinas guilty on all counts, and the trial court sentenced him

in accordance with the jury’s recommendations, Martinez-Salinas perfected this appeal.



1
    We refer to the vehicle as a “tractor truck” because no trailer was attached to it.

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                                             ANALYSIS

       Martinez-Salinas raises three issues challenging his conviction. Two of the issues concern

the trial court’s refusal to admit certain evidence. The third issue pertains to the trial court’s

responses to two jury communications. We will address each challenge in turn.

                                     1. EVIDENTIARY ISSUES

       In his first two issues, Martinez-Salinas contends the trial court erred by: (1) refusing to

admit into evidence the deposition of Carrillo, who Martinez-Salinas ultimately alleged was

driving the Volvo tractor truck at the time of the accident; and (2) limiting examination of an

attorney who represented Tri-National for a brief time during the civil litigation.

                                        Standard of Review

       An appellate court reviews a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). “Because trial courts are in the best

position to decide questions of admissibility, appellate courts uphold a trial court’s admissibility

decision when that decision is within the zone of reasonable disagreement.” Cameron, 241 S.W.3d

at 19; see Martinez, 327 S.W.3d at 736. An appellate court may not reverse a trial court’s decision

to admit or exclude evidence solely because the court disagrees or would have decided the matter

differently. See Cameron, 241 S.W.3d at 19.

                                            Application

Carrillo Deposition:

       In his first issue, Martinez-Salinas contends the trial court erred by refusing to admit into

evidence the deposition of Carrillo, which was taken during the civil litigation arising from the

accident. Specifically, Martinez-Salinas argues the trial court should have admitted the deposition

as a prior inconsistent statement because Martinez-Salinas’s entire defense was based on his
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contention that Carrillo was driving at the time of the accident. 2 Therefore, Martinez-Salinas

contends the trial court’s refusal to admit his deposition testimony was “crippling to the defense.”

         During Carrillo’s testimony at trial, he denied driving the tractor truck at the time of the

accident, testifying instead that Martinez-Salinas was driving. During cross-examination, trial

counsel for Martinez-Salinas asked Carrillo if he remembered “giving deposition testimony at a

lawyer’s office.” Carrillo said he did not. Counsel inquired further, specifically asking if Carrillo

remembered “showing up on September 9th of 2008 and talking to a lawyer Sandra Laurel.”

Again, Carrillo stated he did not remember.

         Subsequently, Martinez-Salinas’s counsel offered for admission into evidence Carrillo’s

deposition from the civil litigation. At a bench conference, counsel stated the deposition was being

offered to refute any potential hearsay objection as a prior inconsistent statement. Counsel stated:

         And this particular exhibit, Your Honor, is being offered under Rule 801, which
         says that the statement isn’t hearsay because it’s inconsistent with the declarant’s
         testimony. He already denied giving any deposition testimony. He already denied
         giving any deposition whatsoever, and so this statement is inconsistent with his
         testimony. It was given under oath, subject to the penalty of perjury at a trial
         hearing or other proceeding or in a deposition, and so it’s admissible as not being
         hearsay.

         In response, the State objected to admission of the deposition in its entirety, arguing the

deposition could not be admitted as a whole simply because it is sworn testimony. The State

argued that only portions of the deposition that were inconsistent with any trial testimony could be

admitted. The trial court sustained the State’s objection and advised Martinez-Salinas’s counsel

that he would “have to go point by point.”



2
  Although Martinez-Salinas also refers in his brief to other rules of evidence — specifically Rule 803(5), recorded
recollection exception to the hearsay rule, and Rule 804(a) and (b), former testimony exception to the hearsay rule —
he provides no argument or analysis with regard to the application of these rules in this case. Rather, Martinez-Salinas
merely quotes the rules in the “Summary of the Argument” portion of his brief. Therefore, any argument to be
construed from Martinez-Salinas’s reference to Rules of Evidence 803(5) and 804(a) and (b) will not be addressed as
insufficiently briefed. See TEX. R. APP. P. 38.1.

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       Martinez-Salinas’s counsel continued his cross-examination of Carrillo. Again, counsel

asked if Carrillo remembered giving deposition testimony related to the accident. Carrillo

responded, stating “If I did, sir, I might did, but I don’t remember. It’s been a long time.” Counsel

pressed, asking, “So your [sic] saying that it — that it didn’t happen or that you don’t remember

giving your testimony.” Carrillo specifically stated, “I didn’t say it didn’t happen. It might happen,

but I don’t remember. It’s been a long time.” Upon subsequent examination with regard to

whether he remembered giving specific statements during a deposition, Carrillo at times gave

testimony suggesting he remembered giving a deposition, but claimed he could not remember

answering any of the specific deposition questions posed by Martinez-Salinas’s counsel.

       Under Texas Rule of Evidence 802, hearsay is not admissible evidence. TEX. R. EVID.

801(d), 802. Texas Rule of Evidence 801(e)(1)(A) provides an exemption to the hearsay rule,

stating, a witness’s prior statement is not hearsay if he “testifies at the trial … and is subject to

cross-examination concerning the [prior] statement, and the statement is: (A) inconsistent with the

declarant’s testimony, and was given under oath ....” TEX. R. EVID. 801(e)(1)(A). Thus the Rule

801 exemption, when applied in conjunction with Rule 802, allows admission of only those

portions of the deposition that were inconsistent with Carrillo’s trial testimony. See TEX. R. EVID.

801(e)(1)(A), 802.

       Despite the trial court’s admonition, Martinez-Salinas’s counsel failed to designate any

specific deposition statement that was inconsistent with Carrillo’s trial testimony. Counsel did not

request that the trial court admit into evidence any specific inconsistent deposition statement.

Counsel simply requested admission of the entire deposition taken in the civil litigation. Based

upon counsel’s failure to follow the directive of Rule 801(e)(1)(A), the trial court did not abuse its

discretion by denying admission into evidence of Carrillo’s entire deposition.



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         Second, Rule 801(e)(1)(A) applies to statements made under oath that are inconsistent with

trial testimony. Martinez-Salinas’s counsel sought to admit Carrillo’s deposition into evidence as

proof that he gave a deposition. As a whole exhibit, the deposition does not fall within the ambit

of Rule of Evidence 801 and 802. In addition, the record reveals Carrillo did not deny that he gave

a deposition in the civil litigation. Rather, counsel for Martinez-Salinas asked Carrillo if he could

remember giving a deposition, and Carrillo stated he could not remember giving a deposition in

the civil litigation. Therefore, Carrillo did not make an inconsistent statement under oath.

         Under these facts, Carrillo did not give any specified inconsistent statement at trial to

initiate Rule 801(e)(1)(A). On this basis, the trial court did not abuse its discretion by denying

admission of Carrillo’s deposition as a prior inconsistent statement.

         We therefore overrule Martinez-Salinas’s first issue.

Attorney Deposition:

         In his second issue, Martinez-Salinas contends the trial court erroneously limited his

counsel’s cross-examination of an attorney who, for a time during the civil litigation, represented

Tri-National, Inc., the company that employed Martinez-Salinas and Carrillo. Martinez-Salinas

contends the trial court erred by refusing to allow him to ask the attorney about certain statements

Carrillo allegedly made to her a few days after the accident, which he asserts are inconsistent with

Carrillo’s trial testimony. In his brief, Martinez-Salinas, again, cites to Rule 801(e)(1)(A), the

prior inconsistent statement exemption from the hearsay rule, provided in rule 802. See TEX. R.

EVID. 801(e)(1)(A), 802. However, at trial, Martinez-Salinas argued only that the statements

(those he now references in his brief) were admissible “[t]o impeach the testimony of Ignacio

Carrillo. . . .”

         We have reviewed Martinez-Salinas’s brief with regard to this issue and hold it presents

nothing for our review because it is inadequately briefed. In the portion of the brief relating to this
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issue, which comprises two pages, Martinez-Salinas: (1) states the issue — as set out above; (2)

cites Rule 801(e)(1)(A) of the Rules of Evidence and a single case which holds that prior

inconsistent statements that constitute hearsay may be admitted for purposes of impeachment with

proper limiting instructions; and (3) sets out a list of six statements he contends Carrillo made to

the attorney during a post-accident interview, statements he contends he should have been

permitted to ask about for purposes of impeaching Carrillo. Martinez-Salinas provides a single

record citation to his “bill of review,” which is comprised of twenty-nine statements under the title

“Summary of Interview of Ignacio Carrillo” and describes the document as statements made by

Carrillo to the attorney a few days after the accident.

       However, Carrillo provides no argument or analysis within this issue. Carrillo provides no

argument to show the trial court’s ruling was an abuse of discretion. Martinez-Salinas simply

provides a list of statements which he summarily concludes he should have been permitted to

question the witness-attorney about. Martinez-Salinas does not provide argument as to how or

whether these statements are inconsistent with Carrillo’s trial testimony or how they would

impeach him. Martinez-Salinas provides no citation to the record to establish Carrillo testified

contrary to the referenced statements.

       Rule 38.1(i) of the Texas Rules of Appellate Procedure provides that an appellant’s brief

“must contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” TEX. R. APP. P. 38.1. Thus, Rule 38.1(i) requires Martinez-Salinas

to provide this court with a discussion of the facts and the authorities relied upon. See id. Martinez-

Salinas fails to analyze the issue as intended by the rule. The brief, conclusory statements provided

do not satisfy the briefing requirements of Rule 38.1. See id. Although we must construe briefing

requirements liberally and reasonably, a party asserting error on appeal must put forth some

specific argument and analysis showing that the record and the law support his contentions. See
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Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). When the appellant fails to discuss the

evidence supporting his claim or apply the law to the facts, he presents nothing for review. See id.

         We therefore hold Martinez-Salinas has waived this issue due to his failure to comply with

Rule 38.1(i).

         Even if Martinez-Salinas properly presented appellate argument for review, any point of

error utilizing this challenge would fail. To fall within the mandates of Rule 801(e)(1)(A), an

alleged prior inconsistent statement sought to be admitted must have been “given under penalty of

perjury at a trial, hearing, or other proceeding—except a grand jury proceedings—or in a

deposition.” TEX. R. EVID. 801(e)(1)(A)(ii). The statements referred to by Martinez-Salinas in

this issue were made by Carrillo during an interview with his employer’s attorney and the

employer’s terminal manager. Thus, Rule 801(e)(1)(A)(ii) is inapplicable. For this reason,

Martinez-Salinas’s argument would fail on the substantive merits.

                                      2. JURY COMMUNICATION ISSUE

         Relying upon Article 36.27 of the Texas Code of Criminal Procedure, Martinez-Salinas

contends the trial court erred when, during jury deliberations, it: (1) answered two questions from

the jury without first using reasonable diligence to secure the presence of Martinez-Salinas and his

attorney and without first submitting the questions and answers to Martinez-Salinas and his

counsel for possible objections; and (2) failed to read the answers to the questions in open court

and without his express waiver. 3

         During deliberations, the jury sent out a note to the trial court asking the court if it could

“see the deposition by [the attorney for Tri-National, Inc.] for possible review if possible.”



3
 Although Martinez-Salinas states the trial court answered two jury communications and responses, in the argument
portion of his brief, he references only a single jury communication and response. Accordingly, this Court will address
only the single communication identified in the brief.

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According to Martinez-Salinas, the note was referring to Carrillo’s deposition, which the trial court

refused to admit into evidence. In response, the trial court advised the jury in writing that “[a]ll of

the exhibits that were admitted into evidence have been provided to you. Please continue your

deliberations.” The jury’s note and the trial court’s response appear in the clerk’s record; there is

no mention of the note or response in the reporter’s record.

       Article 36.27 provides that if the jury desires to communicate with the court, it may do so

in a writing prepared by the foreman and submitted to the court through the bailiff. TEX. CODE

CRIM. PROC. ANN. art. 36.27 (West 2006). The Article provides that when responding, the trial

court “shall answer any such communication in writing,” but before doing so “shall use reasonable

diligence to secure the presence of the defendant and his counsel, and shall first submit the

question” and the trial court’s proposed answer to the defendant and his counsel for potential

objections and exceptions. Id. However, if the trial court is unable to secure the presence of the

defendant and his counsel, it may answer the jury’s question as it deems proper. Id. The Article

further states the communication “shall be read in open court unless expressly waived by the

defendant,” and this reading should be recorded by the court reporter. Id.

       The Texas Court of Criminal Appeals’ decision in Word v. State, 206 S.W.3d 646 (Tex.

Crim. App. 2006), is directly on point and disposes of this issue. In Word, the clerk’s record

included two written questions propounded by the jury to the trial court and the trial court’s written

responses to those questions. Id. at 648. The record was silent on the procedures used by the trial

court in responding to the questions. Id. The reporter’s record included no reference to the

questions or the trial court’s response, and nothing in the record reflected whether the appellant

objected to the trial court’s answers or even when the appellant became aware of the

communications between the trial court and the jury. Id.



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       On direct appeal, the appellant argued for the first time that the trial court violated the

mandates of Article 36.27, by failing to notify him of the questions propounded by the jury and

that he, therefore, had no chance to object to the trial court’s answers to the questions. Id. The

court of appeals, relying on prior decisions from the Texas Court of Criminal Appeals, “presumed

on the silent record” that the trial court complied with Article 36.27 and therefore held the appellant

“procedurally defaulted on any claim that the trial court’s answers to the jury questions were

improper since nothing in the record showed that appellant objected to them.” Id. (citing Word v.

State, No. 11-03-00403-CR, 2005 WL 994690, at *7 (Tex. App.—Eastland Apr. 28, 2005)).

       On petition for discretionary review, the appellant argued that when the record is silent,

appellate courts should presume the trial court failed to comply with Article 36.27. Id. at 651. The

court declined to adopt this position, relying on its previous decision in Green v. State, 912 S.W.2d

189 (Tex. Crim. App. 1995). Word, 206 S.W.3d at 651–52. Rather, the court held that its decision

in Green, that “[i]n the absence of a showing to the contrary in the record, we presume the trial

court’s response was in open court and in appellant’s presence” as required by Article 36.37, is

consistent with rules of appellate procedure that generally require the complaining party to present

a record showing properly preserved, reversible error. Id. (quoting Green, 912 S.W.2d at 192).

Accordingly, because the record in Word did not affirmatively establish the trial court failed to

comply with the requirements of Article 36.27, the Court of Criminal Appeals held the appellant

“procedurally defaulted any claimed violation of Article 36.27 and any objection to the trial court’s

answers to the jury questions.” Id. at 652. With regard to the reporter’s failure to report the

proceedings, the court held the appellant failed to preserve any error with an objection. Id. Thus,

in Word, the Texas Court of Criminal Appeals reiterated its’ holding that an appellate court will

presume the trial court complied with Article 36.37 in the absence of a record to the contrary. See

id.
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       Here, as in Word, the record is silent as to whether the trial court complied with the

mandates of Article 36.27, and there is nothing in the record to show Martinez-Salinas objected to

the reporter’s failure to report as set out in the article. Following Word, this court must presume

the trial court’s response to the jury communication was in open court and in Martinez-Salinas’s

presence. On this basis, Martinez-Salinas “procedurally defaulted any claimed violation of Article

36.27 and any objection to the trial court’s answers to the jury questions.” See id. at 651–52.

                                          CONCLUSION

       For the reasons stated, we overrule Martinez-Salinas’s issues raised on appeal.

Accordingly, we affirm the trial court’s judgment.


                                                  Jason Pulliam, Justice

Do No Publish




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