                            NUMBER 13-17-00361-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


AARON MICHAEL MARTINEZ,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                            MEMORANDUM OPINION

           Before Justices Rodriguez, Contreras, and Hinojosa
              Memorandum Opinion by Justice Rodriguez
      Appellant Aaron Michael Martinez was convicted of assault and injury to a child.

By one issue, Martinez asserts that the trial court “risked a Brady violation” by not, sua

sponte, continuing an ongoing trial to allow him to review newly produced recordings of

his jail telephone calls.   Because we conclude that Martinez did not preserve his

complaint for review, we affirm.
                                    I.     BACKGROUND

       A Victoria County grand jury indicted Martinez on two counts. Count one charged

Martinez with aggravated assault with a deadly weapon for striking a woman on the head

with a thermos, a felony of the second degree. See TEX. PENAL CODE ANN. § 22.02(a)(2),

(b) (West, Westlaw through 2017 1st C.S.). Count two charged Martinez with causing

bodily injury to a child by pulling his daughter’s hair, a felony of the third degree. See id.

§ 22.04(a)(3), (f) (West, Westlaw through 2017 1st C.S.).

       On May 22, 2017, prior to the start of trial, the attorneys informed the trial court

that there had been some confusion over the state of Martinez’s plea. The assistant

district attorney (“ADA”) explained that on the morning of May 17, 2017, she offered

Martinez a plea deal of two years’ confinement in exchange for his plea of guilty, which

he refused. However, the attorneys explained that on the afternoon of the same day, the

case came up for announcements, and Martinez surprised the State and defense counsel

by pleading guilty. Martinez’s counsel responded to the guilty plea by claiming that it

was not made knowingly and voluntarily. The trial court did not accept the plea, and the

hearing concluded.

       According to the ADA, Martinez’s surprise plea led her to review the recordings of

Martinez’s jail calls from that Wednesday. She found that Martinez placed a call shortly

after his plea. During that call, Martinez indicated he wanted to accept the State’s offer.

The ADA told the trial court that she reached out to Martinez’s counsel for clarification on

Martinez’s wishes, but she did not hear back. The ADA also stated that she spoke with




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Martinez’s fiancée about his interest in the plea offer. No resolution was reached, and

the ADA retracted her offer on the Friday before trial.

       When, on the morning of trial, the parties concluded their arguments concerning

this plea process, the court inquired how Martinez wished to plead. Martinez entered a

plea of not guilty, and the case proceeded to voir dire.

       The following day, before the jury was brought in, lead counsel for Martinez

requested that the State provide copies of all of Martinez’s jail call recordings “in the event

that they have some Brady information in them.” The trial court ordered that the jail call

recordings be produced by that afternoon. The State tendered the requested recordings

as ordered, as well as a recording of the call between the ADA and Martinez’s fiancée.

Martinez requested no continuance to review the produced material.

       The jury found Martinez guilty under count one of the lesser-included offense of

misdemeanor assault and guilty under count two of the charged offense of injury to a

child. The jury assessed punishment under count one as one year’s confinement and a

$1,000 fine. The jury assessed punishment under count two as eight years’ confinement

and a $2,500 fine.

       At no time during the trial proceedings did counsel for Martinez indicate that the

jail recordings contained any exculpatory content or object that Martinez’s Brady rights

had been violated. Martinez appeals his conviction.

                                     II.    DISCUSSION

       By his sole issue, Martinez argues that the trial court should have, sua sponte,

granted him a continuance to review the jail call recordings for exculpatory content.


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Martinez claims that by failing to do so, the trial court created the risk of a Brady violation

and therefore reversibly erred. Martinez does not identify any exculpatory content that

the recordings contained; indeed, the only content that was described during trial

proceedings was a call describing Martinez’s desire to plead guilty. But Martinez insists

that a squandered possibility—i.e., that exculpatory information might have been

contained in the jail recordings, had they been reviewed—is enough to show reversible

error. But see Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (quoting

United States v. Agurs, 427 U.S. 97, 109–10 (1976)) (holding that “the mere possibility

that an item of undisclosed information might have helped the defense, or might have

affected the outcome of the trial, does not establish” a reversible Brady violation).

       In response, the State points out that Martinez has produced no authority for his

assertion that the trial court reversibly erred by not granting him a continuance sua sponte.

Instead, the State argues that it was Martinez’s burden to preserve error by requesting a

continuance to review the recordings, but he did not do so. We agree with the State.

       Under Brady v. Maryland, “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. 83, 87 (1963). However, when Brady material is “disclosed at

trial, the defendant’s failure either to object to the admission of the evidence on this basis

or to request a continuance waives the error ‘or at least indicates that the delay in

receiving the evidence was not truly prejudicial.’” Rubio v. State, 534 S.W.3d 20, 27

(Tex. App.—Corpus Christi 2017, pet. ref’d) (quoting Perez v. State, 414 S.W.3d 784, 790


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(Tex. App.—Houston [1st Dist.] 2013, no pet.)); see Fears v. State, 479 S.W.3d 315, 327

n.7 (Tex. App.—Corpus Christi 2015, pet. ref’d) (holding that the appellant waived Brady

error, if any, by failing to request a continuance); Young v. State, 183 S.W.3d 699, 706

(Tex. App.—Tyler 2005, pet. ref’d) (same); Gutierrez v. State, 85 S.W.3d 446, 452 (Tex.

App.—Austin 2002, pet. ref’d) (same).

       Here, Martinez belatedly requested the jail call recordings on the morning of trial,

and he did not request a continuance so that he could obtain the recordings before trial

commenced. The State promptly produced the recordings that afternoon, but again,

Martinez did not request a continuance to allow time for review.        Instead, Martinez

allowed the trial to proceed, uninterrupted by a continuance or a Brady objection.

Because Martinez failed to object or request a continuance, we conclude that he has

waived any error. See Rubio, 534 S.W.3d at 27; see also TEX. R. APP. P. 33.1(a).

                                   III.    CONCLUSION

       We affirm the judgment of the trial court.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

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

Delivered and filed the
21st day of June, 2018.




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