                                                                         ACCEPTED
                                                                     13-14-00512-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                4/28/2015 1:31:57 PM
                                                                   DORIAN RAMIREZ
                                                                              CLERK




              No. 13-14-512-CR
                                        FILED IN
                                13th COURT OF APPEALS
         IN THE COURT OF APPEALS
                             CORPUS CHRISTI/EDINBURG, TEXAS
 FOR   THE THIRTEENTH DISTRICT OF4/28/2015
                                   TEXAS1:31:57 PM
             AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk



       CHRISTOPHER MARTINEZ,
             APPELLANT,

                       v.

          THE STATE OF TEXAS,
               APPELLEE.


ON APPEAL FROM THE 214TH DISTRICT COURT
        NUECES COUNTY, TEXAS

          BRIEF FOR THE STATE


                  Douglas K. Norman
                  State Bar No. 15078900
                  Assistant District Attorney
                  105th Judicial District of Texas
                  901 Leopard, Room 206
                  Corpus Christi, Texas 78401
                  (361) 888-0410
                  (361) 888-0399 (fax)
                  douglas.norman@co.nueces.tx.us

                  Attorney for Appellee


    ORAL ARGUMENT IS REQUESTED
                                      TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................2

Reply Point No. 1
The evidence is legally sufficient to prove all elements of criminal
mischief. ..........................................................................................................2

Reply Point No. 2
Martinez has failed to prove ineffective assistance of trial counsel. .........4

         I. Statement of Facts. ...........................................................................4
         II. Ineffective Assistance of Counsel. .................................................5
         III. Miranda Requirements. ...............................................................7
         IV. Reasonable Trial Strategy and Lack of Prejudice. ....................9

PRAYER ....................................................................................................... 11

RULE 9.4 (i) CERTIFICATION .................................................................. 11

CERTIFICATE OF SERVICE ..................................................................... 12




                                                          i
                                    INDEX OF AUTHORITIES

                                                       Cases

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007). ........................ 10

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002). ...........................8

Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984). .........................8

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ............................3

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). ..........................8

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001). ...............................7

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005). ......................6

Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003). ...................... 10

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ................................3

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). ...................... 6, 7

Keaton v. State, 755 S.W.2d 209 (Tex. App.–Houston [1st Dist.] 1988, pet.
ref'd). ................................................................................................................9

Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012). ........................7

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002). ....................................7

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012). ................................8

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). ..........................6

State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013). ...............................8

Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526 (1994). ......................8

State v. Stevenson, 958 S.W.2d 824 (Tex. Crim. App. 1997). ........................8

                                                           ii
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). .............. 5, 6

Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995). ............................7

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). ....................... 5, 6

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990). .........................6

Wert v. State, 383 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). ............................................................................................................ 7, 9

                                              Statutes & Rules

Tex. Pen. Code § 28.03. ...................................................................................2




                                                          iii
                             NO. 13-14-512-CR

CHRISTOPHER MARTINEZ,                  §    COURT OF APPEALS
        Appellant,                     §
                                       §
V.                                     §     FOR THE THIRTEENTH
                                       §
THE STATE OF TEXAS,                    §
         Appellee.                     §     DISTRICT OF TEXAS

                         BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      First Issue – Eyewitness testimony that Martinez slashed the victim’s

tires was sufficient to support the present conviction for Criminal Mischief.

      Second Issue – Martinez failed to prove that his trial attorney was

ineffective for failing to seek to suppress his statements to the police, both

because he failed to prove the merits of a motion to suppress, and because he

failed to show that the statements hurt his defense.




                                       1
                                ARGUMENT

                            Reply Point No. 1
                 The evidence is legally sufficient to prove
                    all elements of criminal mischief.

      A person commits the offense of Criminal Mischief if, without the

effective consent of the owner, he intentionally or knowingly damages or

destroys the tangible property of the owner. Tex. Pen. Code § 28.03 (a)(1).

The offense is a State Jail Felony if the amount of pecuniary loss is $1,500

or more but less than $20,000. Tex. Pen. Code § 28.03 (b)(4)(A).

      In the present case, Martinez was indicted for, and found guilty of,

Criminal Mischief, and specifically for damaging a vehicle by cutting the

tires, causing a loss of more than $1,500. (CR pp. 5, 68)

      At trial, Gabriel Leal, a bouncer at the club that Martinez had just left,

testified that he saw Martinez “damaging a vehicle” by “stabbing tires” (RR

vol. 3, pp. 17-19), though Leal also admitted that Martinez’s back was

toward him at the time and what he actually saw was Martinez’s arm

“making a back-and-forth swinging motion.” (RR vol. 3, pp. 19, 20).

      Ruben Barrera, the owner of the vehicle, testified that he had taken it

to the club that night, and that he later went outside to find all four tires had

been slashed. (RR vol. 3, pp. 53-54). When he was shown photographs of

the slashed tires, Barrera testified that these “fairly and accurately portray


                                        2
what happened to [his] vehicle that night.” (RR vol. 3, p. 54) Those

photographs show flat tires that would appear to render the vehicle

practically undrivable. (SX 3-5) Barrera then had the vehicle towed to his

house, and had the tires replaced for over three thousand dollars. (RR vol. 3,

pp. 56-57).

      Martinez challenges the sufficiency of the evidence to show that he

actually cut the tires in question, stressing that the sole witness, Leal, was

not close enough to see what Martinez was doing when he made a swinging

motion next to the tires.

      In analyzing legal sufficiency, the reviewing court should “determine

whether the necessary inferences are reasonable based upon the combined

and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.

App. 2007)). “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Clayton, 235 S.W.3d at 778 (quoting Hooper,

214 S.W.3d at 13).

      In the present case, Leal clearly testified that he saw Martinez cutting

the tires. However, even if Leal merely assumed that Martinez was cutting


                                      3
them based on the swinging motion in question, but could not see the tires

actually being cut, the surrounding circumstances were clearly sufficient for

the jury to infer that Martinez did cut the tires and cause the damage in

question. Common sense suggests that the victim drove his car to the club

with functional tires that had not been slashed, and that the tires were

slashed while it was in the parking lot at the club. The fact that Martinez

was seen making a slashing motion toward the tires while the vehicle was

parked there is sufficient to infer that he slashed the tires, and thus

committed Criminal Mischief.

      Martinez’s first issue on appeal should be overruled.

                           Reply Point No. 2
   Martinez has failed to prove ineffective assistance of trial counsel.

      Martinez complains that his trial attorney was deficient in failing to

move to suppress certain statements that he made to police after his vehicle

was stopped and before he had been Mirandized.

                           I. Statement of Facts.

      Officer Chrystal Rodriguez testified to making a traffic stop of

Martinez’s vehicle and taking him out of that vehicle. (RR vol. 3, pp. 39-40)

Officer Rodriguez also testified that, after Martinez was pulled out of the

vehicle and before he was placed under arrest, she had a conversation with



                                      4
him about where he came from and if he was involved in the incident they

were investigating. (RR vol. 3, pp. 41-42)

      Officer Jerry Lockhart also testified to stopping the vehicle, and

pulling Martinez out and patting him down.          (RR vol. 3, pp. 45-46)

Lockhart then put Martinez in the back seat of his patrol unit. (RR vol. 3,

pp. 46-47)

      Officer Casey Henry testified that he performed the pat-down on

Martinez and found a knife in his pocket. (RR vol. 3, pp. 28-29) After he

recovered the knife, Officer Henry questioned Martinez and the other

occupant to see if they were involved in the incident. (RR vol. 3, p. 32)

      The DVD that Martinez complains should have been suppressed was

admitted to show Martinez’s behavior in front of the patrol car. (RR vol. 3,

p. 49) Martinez points to no testimony or other indication that he was under

arrest at the time the recording was made.

                   II. Ineffective Assistance of Counsel.

      On appeal, to prove ineffective assistance of trial counsel an appellant

must show that counsel's assistance fell below an objective professional

standard of reasonableness and counsel's actions thereby prejudiced

appellant's defense. Strickland v. Washington, 466 U.S. 668, 687–88, 692,

104 S.Ct. 2052 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.


                                      5
App. 1999). To prove prejudice, an appellant must show by a preponderance

of the evidence that but for counsel's unprofessional error, the outcome of

his trial would have been different. Jackson v. State, 973 S.W.2d 954, 956

(Tex. Crim. App. 1998).

      The reviewing court should consider the totality of counsel's

representation in light of the particular circumstances of the case and

presume that counsel acted competently and made decisions based on a

reasonable trial strategy. See Strickland, 466 U.S. at 689, 695, 104 S.Ct.

2052; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). To

rebut this presumption, the basis for any allegation of ineffectiveness must

be firmly founded and affirmatively demonstrated in the record. Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d

at 813.

      Accordingly, a direct appeal is generally an “inadequate vehicle for

raising such a claim because the record is generally undeveloped.”

Goodspeed, 187 S.W.3d at 392. Trial counsel “should ordinarily be afforded

an opportunity to explain his actions before being denounced as ineffective.”

Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003)). Absent that opportunity, deficient performance should be found

only if the trial counsel's conduct was “so outrageous that no competent


                                      6
attorney would have engaged in it.” Menefield v. State, 363 S.W.3d 591,

593 (Tex. Crim. App. 2012) (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)).

      When an ineffective assistance claim alleges that counsel was

deficient in failing to object to the admission of evidence, the defendant

must show, as part of his claim, that the evidence was inadmissible. Ortiz v.

State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Specifically, to satisfy the

Strickland test and prevail on an ineffective assistance claim premised on

counsel's failure to file a motion to suppress, an appellant must defeat the

presumption of proper police conduct and show that the motion to suppress

would have been granted. Jackson v. State, 973 S.W.2d 954, 956–57 (Tex.

Crim. App. 1998); Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston

[14th Dist.] 2012, no pet.).

                        III. Miranda Requirements.

      Under Miranda and Texas law, a “custodial interrogation” is defined

as “questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of [her] freedom of action in any

significant way”; in other words, a custodial interrogation is one in which a

detainee's freedom of movement is restrained to the degree associated with a

formal arrest and not a mere investigative detention. Thompson v. Keohane,


                                      7
516 U.S. 99, 107, 116 S.Ct. 457 (1995); State v. Ortiz, 382 S.W.3d 367, 372

(Tex. Crim. App. 2012); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.

App. 1996). A person is in custody only if, under the circumstances, a

reasonable person would believe that his freedom of movement was

restrained to the degree associated with a formal arrest. State v. Saenz, 411

S.W.3d 488, 496 (Tex. Crim. App. 2013) (citing Stansbury v. California,

511 U.S. 318, 114 S.Ct. 1526 (1994)).

      A traffic stop, by itself, does not constitute “custody” for purposes of

Miranda. Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138 (1984);

State v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim. App. 1997). And “the

mere fact that the suspect becomes the focus of a criminal investigation does

not convert a roadside stop into an arrest.” Stevenson, 958 S.W.2d at 829.

The Supreme Court reasoned that questioning during a traffic stop mitigates

the danger presented under Miranda because traffic stops are presumptively

brief and temporary, unlike a police station interrogation, and are more open

and take place in public, which lessens the police dominance over a

defendant. See Berkemer, 468 U.S. at 437–38.

      In addition, Martinez was not in custody merely because he was

removed from his vehicle, nor was he necessarily in custody when he was

placed in the back of the officers’ patrol car. See Balentine v. State, 71


                                      8
S.W.3d 763, 771 (Tex. Crim. App. 2002) (defendant not in custody even

though he was handcuffed and placed in back of patrol car because those

actions were reasonably necessary to ensure the officer's safety) ; Wert v.

State, 383 S.W.3d 747, 753-54 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) (citing Balentine); Keaton v. State, 755 S.W.2d 209, 210 (Tex. App.–

Houston [1st Dist.] 1988, pet. ref'd) (officer's placement of traffic-stop

suspect into back of patrol car to ask for license and registration was not

custodial interrogation under Miranda ).

      Accordingly, Martinez has failed to show that he was in custody at the

time he made the statements in question and that a motion to suppress should

have been granted.

            IV. Reasonable Trial Strategy and Lack of Prejudice.

      However, even if Martinez could have suppressed these statements, he

fails to show that the statements were harmful or that his trial attorney was

not exercising reasonable trial strategy in refraining from filing a motion to

suppress.

      The DVD in question does not appear to have even been made a part

of the appellate record. It is the appealing party's burden to ensure that the

record on appeal is sufficient to resolve the issue he presents, and reviewing

courts cannot assume or speculate about the contents of exhibits or other


                                      9
materials that are not contained in the appellate record. Amador v. State,

221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (citing Guajardo v. State, 109

S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003)).

      Moreover, the admissions that Martinez points to in his brief - that the

suspects had been to the club that night, and that Martinez owned the knife

found in his pocket – had little or no impact on Martinez’s defense against

the present charge.

      Martinez’s presence at the club was confirmed by Leal’s testimony,

was not disputed, and was affirmatively used by the defense through the

testimony of Martinez’s aunt. The sole witness called for the defense,

Juanita Rangel, admitted that Martinez was at the club in question that night,

but claimed to have walked out with him and seen him get into his vehicle

without slashing the victim’s tires. (RR vol. 4, pp. 6-7)

      In addition, the knife was found on Martinez and admission of

ownership was irrelevant.

      Accordingly, Martinez’s trial attorney may well have decided that

there was no reason to seek to suppress his statements to the police.

      Martinez’s second issue on appeal should be overruled.




                                      10
                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 2,037.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      11
                      CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed this 28th day of

April, 2015, to Appellant’s attorney, Mr. Donald B. Edwards.



                                 /s/Douglas K. Norman
                                 ___________________
                                 Douglas K. Norman




                                      12
