                               MEMORANDUM OPINION
                                       No. 04-09-00458-CR

                                 America Elizabeth MARTINEZ,
                                            Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                     From the 49th Judicial District Court, Webb County, Texas
                              Trial Court No. 2008-CRN-000543-D1
                            Honorable Jose A. Lopez, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

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

Delivered and Filed: April 13, 2011

AFFIRMED

           A jury found appellant America Elizabeth Martinez guilty of murder, and she was

sentenced to forty years confinement in the Texas Department of Criminal Justice–Institutional

Division. On appeal, Martinez argues the trial court erred by: (1) denying her motion for new

trial; (2) denying her motion for instructed verdict; (3) denying her motion to quash the

indictment; (4) admitting out-of-court statements of a child witness; and (5) denying her request

for a self-defense jury instruction. We affirm the trial court’s judgment.
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                                          BACKGROUND

       Martinez and Alfredo Torres had a common-law marriage. The record shows that on the

evening of June 2, 2008, Martinez, Torres, and three other individuals, Emmanuel Munoz, Jorge

Rivas, and Adriana Martinez, were drinking alcohol and using cocaine at Martinez’s apartment.

Over the course of the evening, an argument ensued between Martinez and Torres, which ended

in Martinez stabbing Torres in the chest, causing his death.

       Officer Samuel Reyes of the Laredo Police Department was dispatched to Martinez’s

apartment to investigate an overdose call. When he arrived, Officer Reyes discovered Torres had

a stab wound. At trial, Officer Reyes testified Martinez told him she got into an argument with

Torres. Martinez said Torres went outside after their argument, and she later found him lying

dead outside.

       Efrain Torres, Torres’s nephew, was upstairs at a friend’s apartment the night of the

incident. At trial, Efrain testified one of his friends told him there was a man covered in blood

downstairs.     He then discovered Torres’s body lying on the ground outside of Martinez’s

apartment. Efrain stated he saw Martinez using a garden hose to wash off Torres’s body. He

said he called an ambulance from a neighbor’s apartment and then carried Torres’s body into

Martinez’s apartment. Efrain also mentioned that Martinez tried to flee the scene, but a friend of

his blocked her truck so she could not leave.

       Jorge Rivas and Emmanuel Munoz, two of the individuals present at Martinez’s

apartment the night of the incident, testified Martinez and Torres began arguing about their

daughter. Munoz testified he saw Martinez pick up a small knife from the kitchen table and

threaten Torres with it. Martinez and Torres followed Rivas and Munoz outside the apartment as




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they were leaving. As they drove away, Rivas and Munoz testified they saw Martinez lunging

towards Torres, making him fall backwards.

       Martinez was arrested and charged with murder. She was taken to the Laredo Police

Department. Detective Greg Cantu and Detective Primo Guzman interviewed Martinez. At trial,

Detective Cantu testified that at the scene, Martinez mentioned she argued with Torres, who left

the apartment, and she found him dead about twenty minutes later. Martinez told Detective

Cantu she thought Torres had overdosed. Detective Cantu also testified he spoke to Martinez’s

eight-year old son, Arath De Anda. De Anda told him he heard Torres scream, and that Martinez

ran inside the apartment soon thereafter. Detective Cantu subsequently learned De Anda had

been taken to Mexico by his biological father.

       Detective Guzman testified Martinez admitted stabbing Torres.          Martinez admitted

placing a knife against his chest, but claimed Torres flung himself onto the knife. The police

were unable to find the murder weapon, which Martinez described as a pocket-knife. Detective

Guzman testified Martinez denied Torres threatened her.

       Dr. Corrine E. Stern of the Webb County Medical Examiner’s Office conducted Torres’s

autopsy. She testified Torres died from a stab wound to the left upper anterior chest wall that

penetrated to the heart. Dr. Stern testified that based on the depth of the wound penetration,

Torres’s injury was not likely caused by someone running into a knife.

       Based on the foregoing evidence, the jury found Martinez guilty of Torres’s murder.

Martinez then perfected this appeal.

                                   MOTION FOR NEW TRIAL

       Martinez first contends the court erred in failing to conduct an evidentiary hearing on her

motion for new trial and in denying the motion. Martinez argues she is entitled to a new trial



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based on newly-discovered evidence that questions the credibility of the medical examiner, and

because the court erred in allowing the medical examiner to testify on matters outside the scope

of her field of expertise and matters outside of her report. We disagree.

        The grant or denial of a motion for new trial is within the discretion of the trial court.

Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, in reviewing the trial court’s

decision to grant a hearing on a motion for new trial, we use an abuse of discretion standard.

State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We reverse a trial court’s

ruling with regard to a motion for new trial only when its decision is so clearly wrong as to lie

outside the zone of reasonable disagreement. Id. at 695 n.4.

        A defendant is not entitled to a hearing on a motion for new trial unless the motion and

supporting affidavits reflect that reasonable grounds exist for granting a new trial. Espinoza v.

State, 185 S.W.3d 1, 6 (Tex. Crim. App. 2005). Reasonable grounds exist for granting a motion

for new trial upon newly-discovered evidence only when the motion meets the requirements of

article 40.001 of the Texas Code of Criminal Procedure, which provides that “[a] new trial shall

be granted an accused where material evidence favorable to the accused has been discovered

since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2006). Interpreting this statute, the

Texas Court of Criminal Appeals has held that a defendant is entitled to have a motion for new

trial granted if:

        (1) the newly discovered evidence was unknown to him at the time of trial; (2) his
        failure to discover the new evidence was not due to his lack of due diligence; (3)
        the new evidence is admissible and not merely cumulative, corroborative,
        collateral, or impeaching; and (4) the new evidence is probably true and will
        probably bring about a different result in a new trial.




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Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); see also Keeter v. State, 74

S.W.3d 31, 36–37 (Tex. Crim. App. 2002). A matter is collateral if it seeks only to test a

witness’s general credibility. Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984).

       In her motion for new trial, Martinez alleged she was entitled to a new trial based on

newly-discovered evidence, specifically newspaper articles of an Alabama case discussing the

death of a baby. The articles questioned the integrity of the autopsy performed by Dr. Stern, the

Webb County Medical Examiner who performed Torres’s autopsy, and stated that the Alabama

autopsy was called into question by the Alabama Department of Forensic Science. We hold the

accounts in the newspaper articles seek only to question Dr. Stern’s general credibility and are,

therefore, merely collateral and impeaching. See Wallace, 106 S.W.3d at 108. Accordingly, the

trial court did not err in denying the motion for new trial on the basis of newly discovered

evidence. See Keller, 662 S.W.2d at 365.

       Martinez also contends the court erred in denying her motion for new trial for allowing

the medical examiner to testify on matters outside the scope of her field of expertise and to

matters not covered by her written report. However, Martinez never challenged the medical

examiner’s qualifications during trial. See Croft v. State, 148 S.W.3d 533, 544 (Tex. App.—

Houston [14th Dist.] 2004) (noting that failure to object to expert’s qualifications waives

assertion of error on appeal). Martinez also fails to show that allowing the medical examiner’s

testimony resulted in a different outcome at trial. Another witness placed the knife in Martinez’s

hand, and Martinez’s own confession tape included her account on how she stabbed Torres.

       Accordingly, Martinez has failed to show reasonable grounds for granting a new trial, or

show how the outcome of the trial would have changed based on the newly-acquired evidence.

We overrule Martinez’s first point of error.



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                              MOTION FOR INSTRUCTED VERDICT

       Martinez argues the court erred in denying her motion for instructed verdict because the

evidence was insufficient to support her conviction, and there was no evidence Martinez acted

with the required intent to cause Torres’s death. A challenge to the denial of a motion for

instructed verdict is actually a challenge to the legal sufficiency of the evidence. McDuff v.

State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Montgomery v. State, 198 S.W.3d 67, 84

(Tex. App.—Fort Worth 2006, pet. ref’d). We use the standard set forth in Jackson v. Virginia

to review a sufficiency claim. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010);

443 U.S. 307 (1979). We view the evidence in a light most favorable to the jury’s verdict

whenever a defendant challenges the sufficiency of the evidence supporting his or her

conviction. Brooks, 323 S.W.3d at 902. We must defer to the jury’s findings and may not

reweigh the evidence to set aside the verdict simply because we disagree with it. Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (citing Cain, 958 S.W.2d at 407).

Resolution of conflicts in the evidence is within the exclusive province of the jury, and the jury

may choose to believe all, some, or none of the testimony or evidence presented. Heiselbetz v.

State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995); Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

       To prove a defendant committed the offense of murder, the State must establish the

defendant intentionally or knowingly caused the victim’s death, or intended to cause serious

bodily injury to the victim and committed an act clearly dangerous to human life that caused the

victim’s death. TEX. PENAL CODE ANN. § 19.02(b)(1)–(3) (West 2003). Proof of a culpable

mental state invariably depends on circumstantial evidence, and the jury may determine the




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defendant’s mental state from evidence of the defendant’s acts, words, or conduct. Montgomery

v. State, 198 S.W.3d 67, 87 (Tex. App.—Fort Worth 2006, pet. ref’d).

       At trial, the jury heard the testimony of nine law enforcement officers, including

Detective Guzman, who testified that Martinez admitted stabbing Torres. The jury also heard

testimony from Jorge Rivas and Emmanuel Martinez, who testified about Martinez’s and

Torres’s argument, the altercation with the knife in the kitchen, and the subsequent attack by

Martinez on Torres outside of the apartment. They testified Martinez was the aggressor and

Torres backed away from Martinez moments before his death. Another witness, Efrain Torres,

testified Martinez “poured” water on the body of the victim and tried to flee the scene, all of

which reflect consciousness of guilt. See Smith v. State, No. PD-0298-09, 2011 WL 309654, at

*17 n.39 (Tex. Crim. App. Feb. 2, 2011) (citing Cawley v. State, 166 Tex. Crim. 37, 310 S.W.2d

340, 342 (1957) (noting that evidence of flight is corroborating circumstance indicative of

consciousness of guilt)).

       The jury also saw Martinez’s taped statement, in which she provided different accounts

of events, including having found Torres’s body on the ground twenty minutes after their

argument, before she finally admitted stabbing Torres. Finally, the medical examiner testified

the depth of the wound was so deep that it was unlikely Torres ran into the knife, as Martinez

claimed.

       The jury is the sole judge of the credibility of the witnesses and of the strength of the

evidence and may choose to believe or disbelieve any portion of the witnesses’ testimony.

Heiselbetz, 906 S.W.2d at 504; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Here, it was within the jury’s province to believe the law enforcement and lay witnesses’

testimonies as well as the rest of the evidence pointing to Martinez’s guilt in Torres’s murder.



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       Giving deference to the jury’s determination of credibility and weight given to the

evidence, we hold the evidence is sufficient to support the jury’s verdict. See Brooks, 323

S.W.3d at 902. Therefore, the court correctly denied Martinez’s motion for instructed verdict,

and we overrule her second point of error.

                               MOTION TO QUASH INDICTMENT

       Martinez next argues the court erred in denying her motion to quash the indictment

because the indictment failed to provide Martinez with adequate notice of the crime charged.

Specifically, Martinez contends the indictment did not list or describe the weapon used in the

murder.

       A trial court’s decision denying a motion to quash an indictment is reviewed de novo.

Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Once a motion to quash is

timely filed, the indictment must be analyzed to determine whether it states on its face the facts

necessary to allege that an offense was committed, to bar a subsequent prosecution for the same

offense, and to give the accused notice of the precise offense with which he is charged.

DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (citing American Plant Food v.

State, 508 S.W.2d 598, 603 (Tex. Crim. App. 1974)); Rotenberry v. State, 245 S.W.3d 583, 586

(Tex. App.—Fort Worth 2007, pet. ref’d). This requirement is codified in article 21.11 of the

Texas Code of Criminal Procedure:

       An indictment shall be deemed sufficient which charges the commission of the
       offense in ordinary and concise language in such a manner as to enable a person
       of common understanding to know what is meant, and with that degree of
       certainty that will give the defendant notice of the particular offense with which
       he is charged, and enable the court, on conviction, to pronounce the proper
       judgment.

TEX. CODE CRIM. PRO. ANN. art. 21.11 (West 2009). Additionally, the Texas Constitution

requires the notice provided to the accused be clear from a reading of the indictment. TEX.


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CONST. art. I, § 10; Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987); Moore v.

State, 532 S.W.2d 333, 335 (Tex. Crim. App. 1976).

          The indictment must be viewed as a whole in order to determine if the offense is

sufficiently charged in the indictment. DeVaughn, 749 S.W.2d at 67 (citing Dennis v. State, 647

S.W.2d 275, 279 (Tex. Crim. App. 1983); Church v. State, 552 S.W.2d 138, 140 (Tex. Crim.

App. 1977). Additionally, the notice offered by the indictment must be examined in a light most

favorable to the accused, keeping in mind his presumption of innocence under the constitution.

DeVaughn, 749 S.W.2d at 68 (citing King v. State, 594 S.W.2d 425, 426 (Tex. Crim. App.

1980)).

          The indictment in this case stated, in pertinent part:

          . . . on or about the 3rd day of June, 2008, A.D., and anterior to the presentment of
          this indictment, in the County and State aforesaid, America Elizabeth Martinez
          did then and there intentionally or knowingly cause the death of an individual,
          namely Alfredo Torres, by stabbing Alfredo Torres in the chest.

It is clear from a reading of the indictment that sufficient information is stated to enable Martinez

to prepare an adequate defense. See TEX. CONST. art. I, § 10; TEX. CODE CRIM. PRO. ANN. art.

21.11; DeVaughn, 49 S.W.2d at 67. The indictment provides the date of the offense, the

culpable mental state, the statutory elements of the offense, see TEX. PENAL CODE ANN.

§ 19.02(b)(1)–(3) (West 2003), and describes who did what to whom. Martinez claims she did

not have proper notice because the indictment did not describe the weapon used to commit the

offense. Yet, we find the words in the indictment, “by stabbing Alfredo Torres in the chest,” to

provide Martinez with sufficient notice to prepare a defense under the constitution, the code of

criminal procedure, and interpretive case law. See id. We therefore hold that the trial court did

not err in denying Martinez’s motion to quash, and overrule this point of error.




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                           ADMISSION OF OUT-OF-COURT STATEMENT

       Martinez next contends that she was not allowed to cross-examine her eight-year-old son,

whose statements were presented through a detective at trial, and she was thereby denied the

right to face-to-face confrontation as guaranteed by the Sixth Amendment. See Crawford v.

Washington, 541 U.S. 36, 59 (2004). The statements in question were made by Martinez’s eight-

year-old son to a detective on the night of the murder. The child was taken to Mexico by his

biological father the following day. At trial, the detective testified as follows:

       He [defendant’s eight-year-old son] said that he woke up. He went to the kitchen
       to get a glass of water and he heard America Martinez and Alfredo Torres, his
       parents, outside arguing. And he heard a yell. Somebody screamed out. He said
       it was his dad that screamed out and saw America run into his house … he said
       that he ran into his aunt’s room and woke her up and told her what was going on,
       what happened. He also mentioned that he – when he heard that and saw his
       mom, and he looked outside and saw his dad lying on the ground.

       Consistent with the Sixth Amendment’s Confrontation Clause guarantee, a testimonial

hearsay statement may be admitted in evidence against a defendant “only where the declarant is

unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id.

Error in admitting evidence in violation of a defendant’s right of confrontation is constitutional

error that necessitates reversal, unless the reviewing court determines beyond a reasonable doubt

that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a);

Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010); Wood v. State, 299 S.W.3d

200, 214 (Tex. App.—Austin 2009, pet. filed).             When determining specifically whether

constitutional error may be declared harmless beyond a reasonable doubt under Crawford several

factors are relevant. The relevant factors to consider are: 1) what was the importance of the out-

of-court statement to the State’s case; 2) was the out-of-court statement cumulative of other

evidence; 3) did evidence exist corroborating or contradicting the out-of-court statement on



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material points; and 4) what was the overall strength of the prosecution’s case. Crawford, 541

U.S. at 52. The reviewing court must determine the likelihood that the constitutional error was

actually a contributing factor in the jury’s deliberations in arriving at the verdict. In other words,

did the error adversely affect the integrity of the process leading to the conviction? Langham,

305 S.W.3d at 582 (citing Crawford, 541 U.S. at 52). After considering the relevant factors and

determining whether the testimony was a likely contributing factor in the jury’s deliberations, the

reviewing court then must determine whether there is a reasonable possibility that the Crawford

error moved the jury from non-persuasion to persuasion on a particular issue. The reviewing

court must be satisfied beyond a reasonable doubt that the error did not contribute to the

conviction before it can affirm it. Crawford, 541 U.S. at 52; Langham, 305 S.W.3d at 52.

       After applying the relevant Crawford factors to the complained of testimony, and

considering whether the testimony was a likely contributing factor, we hold that even if the

admission of the evidence was erroneous under the Sixth Amendment, such error did not move

the jury from non-persuasion to persuasion nor did it contribute to the conviction.              The

detective’s testimony about what the child said did not provide evidence that was substantially

different from that of other trial witnesses. In addition, the tapes of Martinez’s interrogation,

which were admitted into evidence, showed Martinez admitted arguing with Torres, holding a

knife to his chest, and running into the house after he was stabbed–this evidence is extremely

similar to the testimony provided by the detective. This evidence was also corroborated by

testimony from Jorge Rivas and Emmanuel Munoz, State’s witnesses who were present on the

day of the murder.

       Accordingly, we hold that even if the admission of the detective’s testimony was

erroneous, it did not contribute to the conviction.        Because we conclude the out-of-court



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statement did not contribute to the conviction, we find the admission of evidence harmless.

Thus, we overrule Martinez’s point of error.

                                 SELF-DEFENSE JUSTIFICATION

       Finally, Martinez argues the court erred in refusing to include a self-defense instruction in

the jury charge because the evidence showed Martinez was fearful of Torres. No self-defense

jury instruction should be given unless evidence is admitted supporting the defense. Johnson v.

State, 715 S.W.2d 402, 406 (Tex. Crim. App. 1986).

       An individual has the right to use deadly force in self-defense against another “when and

to the degree [the actor] reasonably believes the deadly force is immediately necessary to protect

[the actor] against the other’s use or attempted use of unlawful deadly force.” TEX. PENAL CODE

ANN. § 9.32(a)(2)(A) (West 2003). In this case, the issue of self-defense was raised in the

opening statement of the defense, but not again until the charge conference. Martinez argues

evidence presented at trial showed she was fearful of Torres because he was drunk. Yet, a

review of the entire record shows no evidence that Martinez ever showed any signs of

fearfulness, even in the face of Torres’s drunken state.

       There is no evidence in the record that Martinez feared for her well-being or that a

situation made it “immediately necessary” for her to use deadly force against Torres to protect

herself. See id. In fact, when questioned by the detectives, Martinez admitted to Detective

Guzman that Torres did not threaten her the night of the incident. Martinez also admitted telling

Torres to stop screaming because she was going to stab him with a knife. Accordingly, we find

no evidence in the record supporting the self-defense claim. See Jordan v. State, 782 S.W.2d

524, 527 (Tex. Crim. App. 1989) (noting Texas law allows self-defense charged only when

raised by evidence). We overrule Martinez’s last point of error.



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                                        CONCLUSION

      In sum, we overrule Martinez’s points of error and affirm the trial court’s judgment.



                                                           Marialyn Barnard, Justice


Do Not Publish




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