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                                 MEMORANDUM OPINION

                                        No. 04-09-00020-CR

                                    Roger Edward MARTINEZ,
                                            Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CR-6235B
                              Honorable Mary Roman, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: September 9, 2009

AFFIRMED

           A jury found Roger Edward Martinez guilty of robbery-bodily injury. In two issues on

appeal, Martinez contends the trial court erred in: (1) refusing to include the lesser-included offense

of Class-A misdemeanor assault in the jury charge, and (2) accepting an incomplete and ambiguous

jury verdict that did not include the signature of the jury foreman. We affirm the trial court’s

judgment.
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                                           BACKGROUND

       Joe Adame was at home with his mother when Pedro “Chomps” Lugo came to his house and

offered to sell him a flat screen plasma TV for $200.00. Although Adame initially was willing to

make the purchase, he decided not to buy the TV after his mother advised against it. When Adame

told Chomps he decided not to buy the TV, Chomps became upset and left.

       Several hours later, Chomps returned to Adame’s house with his cousin, Martinez. Adame

went outside to speak to both men. Chomps accused Adame of disrespecting him earlier that day,

and Adame apologized for any perceived disrespect. According to Adame, when he reached out to

shake Chomps’s hand, Martinez stepped up and hit him in his mouth, knocking him to the ground.

At trial, Adame testified Chomps and Martinez began hitting and kicking him while he was on the

ground, and then Chomps instructed Martinez to take his neck chains. Martinez then ripped

Adame’s chains off his neck, and Chomps and Martinez ran away.

       When the police arrived, Adame told Officer Michael Gonzalez that Chomps and Martinez

robbed him; Adame, however, could only supply the officer with Martinez’s first name, Roger.

After searching the area, the police were unable to locate either suspect or the stolen neck chains.

Detective Gilbert Tovar led the investigation on the case and discovered that the two suspects were

cousins. Adame and his mother subsequently identified Chomps and Martinez from a photo line-up

as the two assailants; Martinez was indicted for the offense of robbery-bodily injury and the

indictment contained a repeat offender enhancement allegation. After three days, a jury found

Martinez guilty of robbery-bodily injury, and the trial court assessed a sentence of twenty-five years

imprisonment.




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                                   LESSER -INCLUDED OFFENSE

       In his first issue, Martinez contends the trial court erred in denying his request to include the

lesser-included offense of Class-A misdemeanor assault in the jury charge. The trial court overruled

his request and submitted the jury charge without the instruction.

       We review a jury charge error under the standard set forth in Almanza v. State, 686 S.W.2d

157 (Tex. Crim. App. 1984). Under Almanza, we must first determine whether error exists in the

jury charge. See id. at 171; see also Airline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

Second, we must determine whether sufficient harm was caused by the error to require reversal. Id.;

see also Airline v. State, 721 S.W.2d at 351.

       An offense is considered a lesser-included offense if the proof of the charged offense includes

the proof required to establish the lesser-included offense. TEX . CODE CRIM . PRO . art. 37.09 (Vernon

2006). We use a two-step approach to determine whether a defendant is entitled to a jury instruction

of a lesser-included offense. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The

first step in the analysis is a question of law, and we must use a pleadings approach to decide

whether a party may be entitled to a lesser-included offense instruction. See Hall at 535. Under the

pleadings approach, we must compare “the elements of the offense as they are alleged in the

indictment or information with the elements of the potential lesser-included offense.” See id. at

535-36. The second step in our analysis asks “whether there is evidence that supports giving the

instruction to the jury[,]” and we consider “anything more than a scintilla of evidence [to be]

sufficient to entitle a defendant to a lesser charge.” See id. at 536. “In other words, the evidence

must establish the lesser-included offense as a ‘valid, rational alternative to the charged offense.’”




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Hall, 225 S.W. 3d at 536; see also Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)

(quoting Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997)).

       Here, the State indicted Martinez for robbery-bodily injury and alleged that he “while in the

course of committing theft of property and with intent to obtain and maintain control of said

property, did intentionally, knowingly, and recklessly cause bodily injury to Joe Adame . . . by

STRIKING THE COMPLAINANT WITH THE HAND OF THE DEFENDANT.” After comparing

the elements of robbery-bodily injury as alleged in the indictment with the elements of Class-A

misdemeanor assault, we conclude that Class-A misdemeanor assault is a lesser-included offense

of robbery-bodily injury. See Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980)

(highlighting that each form of robbery, either robbery committed by causing bodily injury or by

threatening imminent bodily injury, includes a form of assault, either by causing bodily injury or

threat, as a lesser offense); Nottingham v. State, No. 07-08-0131-CR, 2009 WL 224075, at *1 (Tex.

App.—Amarillo Jan. 30, 2009, pet. ref’d) (recognizing some courts hold that simple assault is a

lesser-included offense of robbery); see also TEX . PEN . CODE § 22.01(a)(1) (Vernon Supp. 2008);

TEX . PEN . CODE § 29.02(a) (Vernon 2003).

       To complete our analysis, however, we must determine whether some evidence exists to

convict Martinez only of the lesser offense of Class-A misdemeanor assault. See Hall, 225 S.W.3d

at 536. Here, the record does not contain evidence that would permit a rational jury to find that

Martinez was guilty of only a Class-A misdemeanor assault. See Hall, 225 S.W.3d at 536; Forest,

989 S.W.2d at 367. Adame testified that Martinez punched him in the mouth, and the blow knocked

him to the ground. Adame testified that while on the ground, Martinez continued to hit and kick him

and then ripped off his chains from his neck. Although Martinez argues that the theft occurred after


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the assault was completed, Adame testified that Martinez was directed to take his chains as Martinez

was hitting and kicking him. On cross examination, Adame further testified that the chains were

taken while the assault was “still” happening. Because the evidence fails to depict that Martinez

could be guilty of only a Class-A misdemeanor assault, the trial court properly excluded the lesser-

included offense of Class-A misdemeanor assault. See TEX . CODE. CRIM . PROC. art. 37.09 (Vernon

2006); Hall, 225 S.W.3d at 535; Forest, 989 S.W.2d at 367. Accordingly, we overrule Martinez’s

first issue.

                         INCOMPLETE AND AMBIGUOUS JURY VERDICT

        In his second issue on appeal, Martinez contends the trial court erred in accepting an

incomplete and ambiguous jury verdict. According to Martinez, the jury verdict was incomplete and

ambiguous because the jury verdict form did not contain the signature of the foreperson of the jury.

The State, however, contends that Martinez waived this issue for appeal because Martinez did not

file a motion for new trial.

        We agree with the State that Martinez waived this issue for appeal. To preserve an issue for

appeal, the appellant must make a timely and specific objection. TEX . R. APP . P. 33.1(a). Here,

Martinez did not make an objection to the verdict when it was rendered, but instead, he raised the

issue for the first time when he filed his appellate brief; as a result, Martinez waived the complaint.

See Shelton v. State, 441 S.W.2d 536, 538 (Tex. Crim. App. 1969) (holding that because appellant

did not make an objection to the verdict when it was rendered at trial, appellant waived his

contention that the verdict was incomplete because the verdict forms at the guilt and penalty stages

of trial had two different foreman signatures); Finch v. State, No. 07-03-0045-CR, 2003 WL

22909180, at *3 (Tex. App.—Amarillo Dec. 10, 2003, pet. struck) (not designated for publication)


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(holding that because appellant did not object to the verdict when it was rendered, appellant waived

his argument regarding an incomplete jury verdict that did not instruct the jury about a lesser-

included offense); Renner v. State, 758 S.W.2d 890, 891 (Tex. App.—Corpus Christi 1988, pet.

ref’d) (holding that the defendant waived any alleged errors in the verdict forms because he did not

give the trial court an opportunity to correct them).

       Even if the error was not waived, a verdict must be upheld when its meaning can be

reasonably ascertained. Brinson v. State, 570 S.W.2d 937, 939 (Tex. Crim. App. 1978) (holding that

a jury verdict must be upheld so long as its meaning can be reasonably ascertained); Luna v. State,

70 S.W.3d 354, 359 (Tex. App.—Corpus Christi 2002, pet. ref’d); Perez v. State, 21 S.W.3d 628,

631 (Tex. App.—Houston [14th Dist.] 2000, no pet.). When ascertaining the verdict’s meaning, we

will liberally construe the verdict. Luna, 70 S.W.3d at 359; Perez, 21 S.W.3d at 631.

       Here, after liberally construing the verdict, we can reasonably ascertain that the jury intended

to find Martinez guilty. See Brinson, 570 S.W.2d at 939; Luna, 70 S.W.3d at 359; Perez, 21 S.W.3d

at 631. When the jury returned from deliberations, the trial judge asked whether the jury had reached

a unanimous verdict. The jury foreperson stated that the jury had reached a unanimous verdict and

handed the verdict form to the deputy. The trial judge then stated, “The Verdict Form reads: We,

the Jury, find the defendant, Roger Edward Martinez, guilty of robbery as charged in the indictment.”

After the verdict was read, none of the jury members expressed any dissent, and there was no request

to poll the jury. Based on these facts, we must presume the guilty verdict was that of each of the

jurors. See TEX . CODE CRIM . PRO . art. 37.04 (Vernon 2006); Shelton, 441 S.W.2d at 538.

Accordingly, we overrule Martinez’s second issue on appeal.




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                                       CONCLUSION

     Based on the foregoing, we affirm the trial court’s judgment.

                                                         Marialyn Barnard, Justice

DO NOT PUBLISH




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