                                                                                       ACCEPTED
                                                                                   06-15-00216-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              6/30/2016 2:26:09 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK




                                                                  FILED IN
                                                           6th COURT OF APPEALS
        No. 06-15-00216-CR                                   TEXARKANA, TEXAS
                                                           6/30/2016 2:26:09 PM
                                                               DEBBIE AUTREY
                                                                   Clerk
                       In the
                Sixth Court of Appeals
                    At Texarkana

                Lorenzo Martinez v. The State of Texas


           Original Proceeding from the 102nd District Court,
              The Honorable Bobby Lockhart, Presiding


     APPELLANT’S REPLY BRIEF ON THE MERITS


                                      Name           Jonathan Smolarz
                                     Address         602 Pine Street
                                                     Texarkana, TX 75501
                              Telephone No.          (903) 277-9213
                               Facsimile No.         (903) 496-0354
                              Email Address          jrsmolarz@gmail.com
                                        Attorney for Appellant for Appeal Only



ORAL ARGUMENT IS NOT REQUESTED
                                           TABLE OF CONTENTS
                                                                                                                              Page

I.     INDEX OF AUTHORITIES ................................................................................. iii
II.    ARGUMENT.............................................................................................................. 1
       A.        The Trial Court Erred By Allowing Testimony From A Victim Not
                 Named In The Indictment. ............................................................................ 1
                 1.         In General ............................................................................................. 1
                 2.         The Opinion in Cantu v. State Specifically
                            Does Not Allow Victim Impact Testimony
                            From Other Potential Victims. .......................................................... 2
                 3.         The State Mis-Applies Espinosa v. State. ............................................. 5
                 4.         Other Relevant Caselaw. ..................................................................... 7
       B.        The Erroneously Admitted Testimony Affected Defendant’s Substantial
                 Rights and Was Not Harmless Error. ........................................................... 8
III.   PRAYER .................................................................................................................... 10
IV.    CERTIFICATE OF SERVICE.............................................................................. 12




                                                                ii
                                      I.           INDEX OF AUTHORITIES
Cases


Espinosa v. State, 194 S.W.3d 703 (Tex. App. –Houston
[14th Dist.] 2006, no pet.).............................................................................................. 1, 2, 8
Ford v. State, 919 S.W.2d 107 (Tex. Crim.App.1996) .......................................................... 8
Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ....................................... 9, 10
Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App.
1990) ......................................................................................................................................... 6
Moreno v. State, 38 S.W.3d 774, 777 (Tex. App.—Houston
[14th Dist.] 2001, no pet. h.)(plurality opinion) .................................................................. 1
Richardson v. State, 83 S.W.3d 332, 360–61 (Tex. App.-
Corpus Christi 2002, pet. ref'd)......................................................................................... 7, 8
Sanders v. State, 25 S.W.3d 854, 857 (Tex.App.-Houston
[14th Dist.] 2000), pet. dism'd, improvidently granted, 56
S.W.3d 52 (Tex.Crim. App.2001) ......................................................................................... 6

Statutes
Tex. Code Crim. Proc. art. 37.07, § 3(a) .......................................................................... 1, 6
Tex. R. App. Proc. 44.2(a) ..................................................................................................... 9
Tex. R. App. Proc. 44.2(b)..................................................................................................... 9




                                                                       iii
                                    II.      ARGUMENT

          A.    The Trial Court Erred By Allowing Testimony From A Victim Not
                Named In The Indictment.

                1.     In General
          The State’s interpretation of caselaw on victim-impact testimony at the

punishment phase would lead to absurd effects and harm Defendant’s due process

rights.

          It is true that the trial court at punishment phase can admit any evidence

presented by the State it deems, in its discretion, relevant to sentencing.1 However,

this is not an untethered right. “Victim impact evidence is designed to remind the jury

of the foreseeable consequences the crime has on the community and the victim's

family and friends.”2 The wording here is important because Moreno v. State, and its

progeny, does not use the phrase – “other victims”.

          Actually, Cantu v. State, infra, specifically precludes this interpretation, which

protects a Defendant’s due process of a fair punishment hearing. “The danger of

unfair prejudice to a defendant inherent in the introduction of "victim impact"

evidence with respect to a victim not named in the indictment on which he is being

tried is unacceptably high.”3 Victim-impact testimony is only allowed for those not

named in the indictment – even victim impact testimony can be limited if the
1
  See Tex. Code Crim. Proc. art. 37.07, § 3(a); Moreno v. State, 38 S.W.3d 774, 777 (Tex. App.—
Houston [14th Dist.] 2001, no pet. h.)(plurality opinion).
2
   Espinosa v. State, 194 S.W.3d 703 (Tex. App. –Houston [14th Dist.] 2006, no pet.) (emphasis
added).
3
  Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997)(emphasis added).

                                               Arg 1
evidence has some bearing on “defendant’s personal responsibility or moral

culpability.”4 The State wants to interpret this standard cited in Espinosa v. State as a

conduit to allow additional victim impact testimony. However, the context clearly

shows that defendant’s personal responsibility or moral culpability is a limiting

factor-i.e. the testimony must meet this standard (after it is deemed proper victim

impact testimony) or the testimony is not allowed.

                  2.      The Opinion in Cantu v. State Specifically Does Not Allow
                          Victim Impact Testimony From Other Potential Victims.
          The State relies heavily on Espinosa v. State, but the facts are fundamentally

different than the case at issue. The facts and reasoning in Cantu v. State are more

analogous here.

          In Cantu v. State, a jury convicted Defendant of capital murder of Ertman, a

female. However, another girl, [Daughter] Pena, was murdered by the same group of

people at the same time and place as Ertman. The State did not name [Daughter]

Pena in the indictment-only Ertman. At the punishment hearing, Mother Pena

testified to, among many other things, how the death of her daughter affected the

other members of [Daughter] Pena’s family. Mother Pena (or [Daughter Pena’s]

family) was not present during the murders of [Daughter] Pena and Ertman, and,

therefore, was not a potential victim. Mother Pena and [Daughter] Pena’s family were

not named in the indictment. The court held that testimony of Mother Pena regarding


4
    Espinosa v. State, 194 S.W.3d 703 (Tex. App., 2006).

                                                  Arg 2
“[(Daughter) Pena’s] good character, activities she enjoyed and the impact of her on

her family” was irrelevant because “appellant was not on trial for her murder [and] …

[Daughter] Pena … is not the ‘victim’ for whose death appellant has been indicted

…”5

       The court uses the same law cited by the State-the trial court cannot allow

victim impact testimony regarding a (1) victim (2) not named in the indictment (3) on

which he is being tried.6 [Daughter] Pena was obviously a victim (assuming facts are

true) because she was murdered during the same occurrence as Ertman. Mother Pena

was not present during the crime stated in the indictment and was not a potential

victim. Therefore, any testimony from non-victim Mother Pena about potential victim

[Daughter] Pena cannot be about “[(Daughter) Pena’s] good character, activities she

enjoyed and the impact of her on her family”. Here, Connie, Michael Robinson,

Caitlyn Robinson, and Devin [Unknown Last Name] were all present and potential

victims. Pursuant to the plain language of the law, the trial judge cannot allow victim

impact testimony regarding Michael Robinson, Caitlyn Robinson, and Devin

[Unknown Last Name]. Connie might have been able to state the actions others took

from her observations, but she could not on the effect of the offenses stated in the

indictment on other victims present. Any deviation into such testimony is irrelevant


5
 Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) (emphasis added).
6
 Id.(“The danger of unfair prejudice to a defendant inherent in the introduction of "victim impact"
evidence with respect to a victim not named in the indictment on which he is being tried is
unacceptably high)(emphasis added).

                                               Arg 3
and unfairly prejudicial. Mother Pena might be able to testify to circumstances of the

offense (if Mother Pena had any relevant testimony), and the court might even allow

the “evidence concerning [Daughter Pena’s] sexual assault, robbery and murder”

because the evidence is “admissible as same transaction contextual evidence.”7

       The Cantu court does not leave any wiggle room and uses harsh and definitive

language-risks of unfair prejudice is unacceptably high, irrelevant, and such evidence

serves no purpose other than to inflame the jury.8 Therefore, admitting any such

testimony can lead to substantially harming the constitutional rights of the Defendant.

       The admission of this type of testimony would lead to absurd results such as

leading to unfair punishment hearing.

       The admission of such evidence would open the door to admission of
       victim impact evidence arising from any extraneous offense committed
       by a defendant. Extraneous victim impact evidence, if anything, is more
       prejudicial than the non-extraneous victim impact evidence found by this
       Court to be inadmissible in Smith, supra.9

       The Court in Cantu v. State refers to “the context of the special issues under

Art. 37.071”.10 Courts in non-capital cases have recognized that any improper victim

impact testimony from a potential victim not named in the indictment risks an unfair

punishment hearing.11 Caselaw has explicitly extended the reasoning from capital cases



7
  Id.(emphasis added).
8
  Id.
9
  Id.(emphasis added)(citations omitted).
10
   Id.
11
   Id. at 711(emphasis added).

                                            Arg 4
to non-capital cases.12 Therefore, the reasoning stated here applies in the non-capital

case at issue here.

               3.      The State Mis-Applies Espinosa v. State.
       The State mis-applies the facts and law in Espinosa v. State. The wife of the

Officer was not a potential victim, which is a fundamentally different fact scenario

than in Espinosa v. State. Therefore, Espinosa v. State cannot be interpreted to allow the

victim impact testimony at issue here.

       In Espinosa v. State, two police officers and the Defendant exchanged gun fire in

a public area. A witness, Ms. Bowden, was in her car “three car lengths away from the

shooting”.13 The State did not name Ms. Bowen in the indictment, but the State (most

likely) did name the Officer in the indictment.14

       As for the first witness, Ms. Bowden, the State asks her what she saw during

and immediately after the shooting, why she moved to the floor of her car, and why

she was scared during the shooting. Defendant objected. The court overruled the

objection but admonished the State to not elicit victim impact testimony-the trial

court “told the prosecutor he could not ask how the event made [Ms. Bowden] feel or

whether it caused her trauma in the future.”15


12
   Salazar v. State, 90 S.W.3d 330 (Tex.Crim.App.2002)(footnote 5)(“ … its logic applies equally to
non-capital cases).
13
   Id. at 711.
14
   Appellant recognizes that the opinion does not specifically state whether the (1) Officer or (2) the
Officer’s wife were named in the indictment, but Appellant believes that the context makes it
probable.
15
   Id. at 711.

                                                Arg 5
        This testimony solely described her “personal observances.”16 The court held

that such testimony did not amount to victim-impact testimony and was admissible.

        It would have been improper victim impact evidence if Ms. Bowden testified to

how any potential injury to Ms. Bowden affected others-or the foreseeable

consequences of other victims or non-victims family members. Here, Connie was a

victim named in the indictment. Michael Robinson, Caitlin Robinson, and Devin

[Unknown Last Name] were present, but the State did not name them in the

indictment.

        In other words, Ms. Bowden testified to the circumstances of the offense as to

what she observed and heard at the time of the shooting and how she felt at the time

of the crime-not the foreseeable consequences of the crime (1) on herself, (2) a

potential victim not named in the indictment, (3) other family members, or (4) the

community.17

        Secondly, the State mainly cites Espinosa v. State mainly for this following

Officer’s testimony. The Officer, who was named in the indictment, testified to the

foreseeable consequences of his injury on his wife (who was not named in the

indictment). The Officer testified about “his wife's fear for her husband's life while




16
   Id. at 711; Tex. Code Crim. Proc. Art. 37.07 § 3(a); Miller-El v. State, 782 S.W.2d 892, 896 (Tex.
Crim. App. 1990); Sanders v. State, 25 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000), pet.
dism'd, improvidently granted, 56 S.W.3d 52 (Tex.Crim. App.2001).
17
   Id. at 711.

                                                 Arg 6
working as a police officer”.18 The court held that this testimony was proper victim

impact testimony.

       The State proclaims that “although the wife was not named as the victim in the

indictment, it was held that the trial court did not abuse its discretion in admitting this

testimony from the officer.”19 This interpretation is in direct contravention to the law

the court cites in the case. The court does not indicate that the court was overturning

the law. Therefore, the court’s opinion must be in line with the law cited, which is

“victim not named in the indictment on which he is being tried”.20

       Here, Connie’s testimony refers to the other potential victims. This testimony

allowed the State to usurp its constitutional and statutory burdens, which unfairly

prejudiced the Defendant’s due process rights of a fair punishment hearing. The

Defendant pleaded guilty to a crime against one victim – the one stated in the

indictment.

               4.      Other Relevant Caselaw.
       The State also cites Salazar v. State and Richardson v. State.21 In Salazar v. State, the

court heard testimony from the victim’s parents in the murder trial. This is testimony

from a relative of a victim, and the relative was not a victim themselves. The court

analyzed the prejudicial effect of a video montage of the victim at issue, which is


18
   Id. at 711. .
19
   Appellee’s Brief at Page 8.
20
   Id.(Tex. Crim. App. 1997)(emphasis added)
21
   Salazar v. State, 90 S.W.3d 330 (Tex.Crim.App.2002); Richardson v. State, 83 S.W.3d 332, 360–61
(Tex. App.-Corpus Christi 2002, pet. ref'd).

                                                Arg 7
different than the case at issue here. In Richardson v. State, again, the children were not

present when the murder occurred and were not victims of any potential crime. This

court specifically states that Cantu v. State is “distinguishable and not inconsistent with

this opinion”. In any event, the court held the testimony of the doctor regarding the

children (non-victims) was admissible.22

        In Ford v. State, the jury at the punishment hearing heard testimony whether to

give a death sentence. Four people were present during the murder and therefore,

potential victims: Myra Concepcion (Mother), Armando, Myra, and Lisa.23 Armando

died from a gunshot. The Defendant was indicted for the offenses for all four victims,

which is a different scenario than presented here. All of the victims may have

introduced, in the discretion of the trial judge, “relevant victim impact evidence [that

included] the physical, psychological, or economic effects of a crime on the victim or

the victim's family.”24 The court held the testimony was proper.

        B.      The Erroneously Admitted Testimony Affected Defendant’s
                Substantial Rights and Was Not Harmless Error.

        “If the appellate record in a criminal case reveals constitutional error that is

subject to harmless error review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt that




22
   Richardson v. State, 83 S.W.3d 332, 361 (Tex. App.-Corpus Christi 2002, pet. ref'd).
23
   Ford v. State, 919 S.W.2d 107 (Tex. Crim.App.1996).
24
   Espinosa v. State, 194 S.W.3d 703 (Tex. App., 2006).

                                                 Arg 8
the error did not contribute to the conviction or punishment.”25 “Any other error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”26 "[O]verruling an objection to evidence will not result in reversal when

other such evidence was received without objection, either before or after the

complained-of ruling."27

       The State points to the testimony of one other potential victim, Savannah, who

was not listed in the indictment. Even assuming for the sake of argument that the trial

court admitted the same or similar evidence without objection through a different

witness, Savannah’s testimony does not refer to all the victims. Savannah testifies

solely about herself and not about Michael Robinson, Caitlin Robinson, and Devin

[Unknown Last Name]-other potential victims not named in the indictment. Connie’s

erroneously admitted victim impact statement refers to the entire family. Therefore,

there is no same or similar testimony regarding all of the potential victims present,

and the testimony does not fall under Leday v. State regarding Michael Robinson,

Caitlin Robinson, and Devin [Unknown Last Name].

       Also, in Cantu v. State, the court found the testimony to be improper but

ultimately harmless because the State did not emphasize Mother Pena’s victim impact

testimony. Here, the State emphasized it – as discussed at length in Appellant’s

Original Brief.

25
   Tex. R. App. Proc. 44.2(a).
26
   Tex. R. App. Proc. 44.2(b).
27
   Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

                                               Arg 9
           In any event, Leday v. State28, which the State relies on, states it is not clear

whether caselaw has decided whether any alleged “missed objection” is a waiver or

harmless error. It is Appellant’s contention that such is a waiver. The State must

address all sections, and Tex. R. App. Proc. 44.2(b) requires that the State must prove

any alleged “missed objection” is harmless. Therefore, the State waived its argument

for harmless error since the State relies on irrelevant caselaw.

           The courts use harsh and definitive language to describe the egregious harm

this type of testimony can have. The courts use the following phrases-risk of unfair

prejudice is unacceptably high, irrelevant, and such evidence serves no purpose other

than to inflame the jury. Therefore, Appellant further contends that any testimony,

regardless of any alleged same or similar testimony, that the admission of the

testimony is so harmful than any other same or similar testimony cannot cure the

error. As such, there should be an exception to Leday v. State where such recognized

egregious harm to a Defendant’s substantial rights that no other same or similar

testimony can cure such an egregious error.

           Therefore, the error caused harm to Appellant’s substantial rights.

                                     III.     PRAYER

           It is for the reasons stated herein that Appellant requests this Court, based

upon the errors committed by the trial court that unfairly prejudiced the Defendant



28
     Id. at 717.

                                            Arg 10
and deprived him of a fair trial, to reverse his conviction, and order Appellant be

granted a new trial.



                                      Respectfully submitted,


                                      By:   _/s/ Randle Smolarz____________
                                            Randle Smolarz
                                            Texas Bar No. 24081154
                                            602 Pine Street
                                            Texarkana, Texas 75501
                                            (903) 277-9213
                                            (903) 496-0354 facsimile
                                            jrsmolarz@gmail.com

                                            Attorney for Appellant
                                            Lorenzo Martinez




                                      Arg 11
                       IV.     CERTIFICATE OF SERVICE

       In accordance with the Texas Rules of Appellate Procedure I certify that a copy
of this Appellant’s Reply Brief was served on Respondent State of Texas through
counsel of record, Kelley Crisp and Lauren Richards by acceptable methods under the
Texas Rules of Civil Procedure.


                                               /s/ Randle Smolarz
                                              Randle Smolarz
                                              Texas Bar No. 24081154
                                              602 Pine Street
                                              Texarkana, Texas 75501
                                              (903) 277-9213
                                              (903) 496-0354 facsimile
                                              jrsmolarz@gmail.com


                  V.         CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellant’s Reply
Brief on the Merits contains 2,206 words (excluding the caption, table of contents,
table of authorities, signature, proof of service, certification, and certificate of
compliance). This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text, except for footnotes which are in 12-point
typeface. In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.


                                               /s/ Randle Smolarz
                                              Randle Smolarz
                                              Texas Bar No. 24081154
                                              602 Pine Street
                                              Texarkana, Texas 75501
                                              (903) 277-9213
                                              (903) 496-0354 facsimile
                                              jrsmolarz@gmail.com




                                       Arg 12
