                                                                                                ACCEPTED
                                                                                            03-14-00802-CR
                                                                                                    6026008
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       7/10/2015 5:01:01 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK

           C ASE N UMBER 03-14-00802-CR
                                                               FILED IN
                                                        3rd COURT OF APPEALS
P EDRO E LIZONDO M ARTINEZ , J R .                  C OURT AUSTIN,
                                                            OF A PPEAL
                                                                     TEXASS
                                                        7/10/2015 5:01:01 PM
               Appellant
                                                          JEFFREY D. KYLE
VS .                                        T HIRD D ISTRICT OF Clerk
                                                                   T EXAS

T HE S TATE   OF   T EXAS                                    AUSTIN , T EXAS


          On appeal from the 26th Judicial District Court
                        Williamson County, Texas
                       Cause Number 13-1936-K26



              A PPELLANT ’ S B RIEF

                     Oral argument is not requested
               unless requested by the State or this Court




                                     M R . E LLIC S AHUALLA
                                     Counsel for Appellant
                                     State Bar Number 24057365
                                     600 W. 13th St.       Austin, Texas 78701
                                     ph (512) 921-8247     fax (512) 451-5882
                                     email ellic@sahuallalaw.com
             I DENTITY OF PARTIES & C OUNSEL
Tr i a l Pa r t i e s
T HE S TATE OF T EXAS                            MR. PEDRO ELIZONDO MARTINEZ, JR.
                                                 Defendant

Tr i a l C o u n s e l
M R . G EOFFREY P URYEAR                         M R . E LLIC S AHUALLA
Counsel for the State                            Counsel for Appellant
State Bar Number 24054396                        State Bar Number 24057365
405 Martin Luther King, Box 1                    600 W. 13th St.       Austin, Texas 78701
Georgetown, Texas 78626                          ph (512) 921-8247     fax (512) 451-5882
ph (512) 943-1234 fax (512) 943-1255             email ellic@sahuallalaw.com
email gpuryear@wilco.org


A p p e l l a t e Pa r t i e s
MR. PEDRO ELIZONDO MARTINEZ, JR.T HE S TATE OF T EXAS
Appellant

Appellate Counsel
M R . E LLIC S AHUALLA                           T HE H ONORABLE J ANA D UTY
Counsel for Appellant                            Counsel for the State
State Bar Number 24057365                        State Bar Number 24000244
600 W. 13th St.       Austin, Texas 78701        405 Martin Luther King, Box 1
ph (512) 921-8247     fax (512) 451-5882         Georgetown, Texas 78626
email ellic@sahuallalaw.com                      ph (512) 943-1234 fax (512) 943-1255
                                                 email jprezas@wilco.org




                                 Appellant’s Brief, 03-14-00802-CR
                                          Page 1 of 25
                                  T ABLE OF C ONTENTS
Index of Authorities .................................................................................................3
    Cases ......................................................................................................................3
    Statutes & Rules....................................................................................................3
Statement of the Case..............................................................................................4
Statement Regarding Oral Argument..................................................................5
Issues Presented ........................................................................................................6
Statement of Facts ....................................................................................................7
Summary of the Argument ................................................................................. 11
Argument.................................................................................................................. 12
    Issue One—Legal Sufficiency of Deadly Weapon Finding......................... 12
         a. Legal Sufficiency ................................................................................. 12
         b. Vehicles as Deadly Weapons .............................................................. 12
         c. Reckless Driving .................................................................................. 13
         d. Capability of Causing Death or Serious Bodily Injury................... 16
         e. Remedy ................................................................................................. 17
    Issue Two—Injured Constable Testimony .................................................... 18
         a. Preservation of Evidentiary Error.................................................... 18
         b. Relevance.............................................................................................. 18
         c. Prejudice ............................................................................................... 19
         d. Review of Evidentiary Error ............................................................. 20
         e. Harm Analysis ..................................................................................... 21
         f. Remedy ................................................................................................. 22
Prayer......................................................................................................................... 23
Certificate of Compliance ................................................................................... 24
Certificate of Service ............................................................................................ 25




                                              Appellant’s Brief, 03-14-00802-CR
                                                         Page 2 of 25
                            I NDEX OF AUTHORITIES
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 12
Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003) .................................... 14–16
Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005) ........................... 13–17, 19
Foley v. State, 327 S.W.3d 907 (Tex. App.—Corpus Christi 2010, no pet.) .... 16, 17
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 14
Jackson v. Virginia, 443 U.S. 307 (1979).............................................................. 12, 15
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) ................................. 21, 22
Mann v. State, 13 S.W.3d 89 (Tex. App.—Austin 2000, pet. granted) ...... 13–16, 19
Mann v. State, 58 S.W.3d 132 (2001)............................................................. 13–16, 19
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ..................................... 20
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................... 18, 19
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) .......................................... 21
Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) ..................................... 17
Pointe v. State, 371 S.W.3d 527 (Tex. App.—Beaumont 2012, no pet.) .......... 14, 15
Powell v. State, 189 S.W.3d 285 (Tex. Crim. App. 2006) ......................................... 19
Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) .................. 20
Sierra v. State, 280 S.W.3d 250 (Tex. Crim. App. 2009).............................. 12–17, 19
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ........................................ 12
Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995)................................ 13, 15, 16
Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997)..................................... 19


S t a t u t e s & Ru l e s
T EX . P EN. C ODE A NN. § 1.07 (a)(17)(B) (West 2011) ....................................... 12
T EX . R. A PP. PROC. 33.1 (a) ................................................................................... 18
T EX . R. A PP. PROC. 44.2 (b) .................................................................................. 21
T EX . R. E VID. 401 ................................................................................................... 18
T EX . R. E VID. 403 ................................................................................................... 19


                                            Appellant’s Brief, 03-14-00802-CR
                                                      Page 3 of 25
                 S TATEMENT OF THE C ASE
      The appellant, Pedro Elizondo Martinez, Jr. (“Martinez”), proceeded to
trial on an indictment for driving while intoxicated third or more on November
17, 2014. 2 R.R. at 4. The indictment also alleged that Martinez used a motor

vehicle as a deadly weapon during the commission of the offense. 3 R.R. at 7.
On November 19, 2014, the jury convicted Martinez and found the deadly
weapon allegation true. 3 R.R. at 181. Following the punishment phase of trial

the next day, which included proof of multiple prior felony DWI convictions
that had resulted in a single prior “pen trip” (enhancing punishment to that of a
second degree felony), the jury sentenced Martinez to 17 years of incarceration
with no fine. 4 R.R. at 82. That conviction is the basis of this appeal.




                              Appellant’s Brief, 03-14-00802-CR
                                       Page 4 of 25
 S TATEMENT R EGARDING O RAL A RGUMENT
      The appellant is not requesting oral argument because the issues presented
in this appeal are not novel and the record is straightforward. However, if the
State requests oral argument or this court believes it would help resolve this

matter, the appellant would like an opportunity to appear and argue.




                            Appellant’s Brief, 03-14-00802-CR
                                     Page 5 of 25
                                 I SSUES P RESENTED
         Martinez presents two issues on appeal:

I s s u e O n e D e a d l y We a p o n F i n d i n g

Wa s t h e e v i d e n c e l e g a l l y s u f f i c i e n t t o s u p p o r t a d ea d l y we a p o n
finding?


I s s u e Two In j u r e d C o n s t a b l e Te s t i m o n y

D i d t h e t r i a l c o u r t a b u s e i t s d i s c r e t i o n by p e r m i t ti n g t e s t i m o n y
a b o u t a n i n j u r e d c o n s t a b l e ove r M a r t i n e z ’s o b j e c t i o n s t o
r e l e va n c e a n d p r e j u d i c e, a n d d i d t h a t c a u s e h a r m a f f e c t i n g

M a r t i n e z ’s s u b s t a n t i a l r i g h t s ?




                                          Appellant’s Brief, 03-14-00802-CR
                                                   Page 6 of 25
                     S TATEMENT OF FACTS
      The indictment in this case charged Martinez with driving while
intoxicated third or more and the use of a vehicle as a deadly weapon during the
offense. 3 R.R. at 7. At trial, the evidence relevant to this appeal showed that a

Rodolfo Pena, a Williamson County Sheriff ’s Deputy, was dispatched to an
accident along a stretch of North Interstate 35 for a welfare check. 3 R.R. 23. He
did not witness the accident, and noted only that Martinez’s vehicle had

apparently collided with the retaining wall. 3 R.R. at 24–26. Pena also testified
that traffic “was light” that night. 3 R.R. at 28. His contact with the scene was
brief, and Pena ultimately referred the investigation to arriving Georgetown
Police Department officers and left for another call. 3 R.R. at 25.

      Those responding officers—John Cochran and his field training officer,
David McDonald—did not observe the accident either, of course. 3 R.R. 32–33
& 56. Cochran soon determined that the accident had occurred after Martinez
hydroplaned, causing him to strike the retaining wall. 3 R.R. at 34 & 58. The truck
suffered moderate frontend damage, but Mr. Martinez was uninjured. 3 R.R. at
39–40. After noting some signs of intoxication, he asked Martinez to perform
the standard field sobriety tests, which Martinez refused. 3 R.R. at 42–45. No
breath or blood test was ever obtained, either. 3 R.R. at 94.

      As for the traffic on the roadway and the danger posed by Martinez’s

accident, Cochran testified only that motor vehicles “can cause serious bodily
injuries . . . and fatalities.” 3 R.R. 50. However, having arrived some time after

                             Appellant’s Brief, 03-14-00802-CR
                                      Page 7 of 25
the accident, Cochran testified generally and hypothetically that there were other
cars on the roadway “that evening” and “on a Wednesday evening around 9:30”

it was “common for families to be out on the road.” 3 R.R. at 51. He made no
reference to the cause of the accident, the conditions on the roadway, or any
actual people who may have been endangered; instead, his conclusion was based
on the fact that the defendant was involved in an accident and that his vehicle
was theoretically “capable of causing a collision with another vehicle.” Id.

       As the lead investigator, the person who completed the accident report,
and someone who had experienced hydroplaning as a driver, Cochran did testify
that the accident in this case—hydroplaning—was not caused by something
Martinez did, but by the loss of tire grip in the wet conditions. 3 R.R. at 59. His
accident report stated that the cause of the accident was that Martinez’s vehicle
had left its lane. 3 R.R. at 60. (It did, however, list use of alcohol and failure to
control speed as “possible contributing factors.” 3 R.R. at 89–90.)

       Only two pieces of evidence addressed the accident as it happened. The
first came in the form of hearsay about another officer named Morris who was
apparently attending to another call across the freeway. He saw the accident
happen and reported simply “there’s been a motor vehicle accident and this is
where it is” to dispatch. 3 R.R. at 57. The other direct account came from
Martinez himself. State’s Exhibit 7 included video from the backseat of
Cochran’s vehicle, where Martinez was heard rhetorically asking what he could

have done after he began hydroplaning, answering “I couldn’t step on the brake.”


                              Appellant’s Brief, 03-14-00802-CR
                                       Page 8 of 25
Cochran conceded that Martinez’s reaction was the proper one during a
hydroplane. 3 R.R. at 102.

      Cochran’s field training officer, David McDonald, added nothing about
the accident except for an unrelated anecdote that was objected to by defense

counsel. The exchange went as follows:
      [McDonald]: I’ve worked—actually been on scene a couple of times. A
      constable working overtime one morning was hit in the rear—
      [Defense]: Objection, Your Honor, relevance and more prejudicial than
      probative.

      [State]: Your Honor, it’s going to the fact that we have alleged a deadly weapon
      in this offense, and it goes to the fact that a motor vehicle is capable of causing
      serious bodily injury or death.

      [Defense]: Once again, as we explored with the other officer, Judge, we need
      to talk about this case, not what has happened in any other case. That’s not
      relevant and the danger of undue prejudice is too great to go into other cases
      that may have happened.

      [State]: If I may, Your Honor. The vehicle was stopped on a lane of traffic,
      and if this officer does have information—

      [Court]: Overruled. Move on.
      [State]: Thank you, Your Honor.

      [Court]: You may answer the question.
      [McDonald]: I believe it was in 2012. We worked an accident on I-35 about a
      mile up from where this accident occurred. A deputy constable was working
      an overtime gig providing traffic control for a construction site, and he was hit
      in the rear as he was parked with his emergency lights activated by what was
      determined to be an intoxicated driver and he was seriously injured and sent
      to the hospital.

3 R.R. at 119–20.


                                 Appellant’s Brief, 03-14-00802-CR
                                          Page 9 of 25
       After the conclusion of McDonald’s testimony, the state rested its case in
chief, and defense counsel moved for a directed verdict on the deadly weapon

issue. 3 R.R. at 128. Counsel provided the court with supporting case law and
argued that the state had not “presented even a scintilla of evidence that
show[ed] how the defendant operated his vehicle at the time of the offense.” Id.
The crux of the defendant’s position was that although a vehicle as such could
always theoretically be a deadly weapon, in the defendant’s case the only evidence
of the defendant’s driving was that the accident had not been his fault and that
he had reacted prudently upon hydroplaning, and there was no evidence that
anyone was present and actually in any danger whatsoever. 3 R.R. at 129; id. at
132–33. The state responded that “that the way the vehicle was driven . . .

hydroplaning after ingesting amounts of alcohol, the level of traffic . . ., the time
of day [and] day of the week” supported a deadly weapon finding. 3 R.R. at 131.
The court denied the motion for directed verdict. 3 R.R. at 134.

       Both sides then rested and closed and the case was submitted to the jury.
3 R.R. at 136. The court’s charge included the statutory definition of “deadly
weapon” and a fairly standard instruction requiring the jury to determine beyond
a reasonable doubt whether the defendant’s vehicle had been used as one during
the offense. 3 R.R. at 141–43. After arguments and deliberation, the jury returned
a verdict of guilty and an affirmative deadly weapon finding. 3 R.R. at 180–81.

       Following evidence and deliberations in the punishment phase of trial, the

jury assessed punishment at 17 years of incarceration with no fine. 4 R.R. at 82.


                              Appellant’s Brief, 03-14-00802-CR
                                      Page 10 of 25
             S UMMARY OF THE A RGUMENT
      The arguments raised by this appeal cover two issues: the legal sufficiency
of the deadly weapon finding and the admission of McDonald’s testimony about
the injured constable.

      The evidence was legally insufficient to support a deadly weapon finding
because there is, at most, a mere modicum of evidence that supports the two

sub-issues required for a deadly weapon finding in a case of this variety. As to
the first, there was scant evidence that the defendant drove in a reckless manner;
he was not grossly intoxicated, broke no traffic laws, was not at-fault for the
single-car accident he was involved in, and reacted correctly to the hazardous
situation as it developed. And as to the second, nothing was introduced that
demonstrated that Martinez’s vehicle was capable of causing death or serious
bodily injury; there was no evidence at all of any other person actually
endangered by the accident beyond pure speculation. The insufficiency of this
evidence warrants deletion of the deadly weapon finding from the judgment.

      McDonald’s testimony, which was timely and specifically objected to, was
not relevant, and based on the appropriate balancing test, any probative value it

had was substantially outweighed by the danger of unfair prejudice. After
performing a harm analysis, there can be no fair assurance that the disputed
testimony had no or only slight effect on the jury’s decisions, and thus, on

defendant’s substantial rights. That warrants reversal and remand for a new trial.



                             Appellant’s Brief, 03-14-00802-CR
                                     Page 11 of 25
                                    A RGUMENT
I s s u e O n e L e g a l S u f f i c i e n c y o f D e a d l y We a p o n F i n d i n g

T h e e v i d e n c e wa s l e g a l l y i n s u f f i c i e n t t o s u p p o r t a d e a d l y
we a p o n f i n d i n g

        a. Legal Sufficiency

        Legal sufficiency is tested by deciding whether—viewing the evidence in

the light most favorable to the verdict—any rational jury could have found the
issue true beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 896 (Tex.
Crim. App. 2010) (applying standard announced in Jackson v. Virginia, 443 U.S.
307 (1979)). The “most favorable to the verdict” language means that sufficiency
review must defer to the jury’s determinations of weight and credibility and
resolve any conflicting evidence in favor of the verdict. Jackson, 443 U.S. at 318–
19; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d
at 912. However, there must still be enough evidence to permit a rational jury to
find the issue beyond a reasonable doubt, so a mere modicum of probative

evidence is still insufficient. Jackson, 443 U.S. at 320.

        b. Vehicles as Deadly Weapons

        A “deadly weapon” includes “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” T EX . P EN.
C ODE A NN. § 1.07 (a)(17)(B) (West 2011). A motor vehicle can be a deadly

weapon in a felony DWI case if the manner in which it was actually used was
capable of causing death or serious bodily injury. Sierra v. State, 280 S.W.3d 250,

                                   Appellant’s Brief, 03-14-00802-CR
                                           Page 12 of 25
254–55 (Tex. Crim. App. 2009); Mann v. State, 58 S.W.3d 132, 132 (2001)
(adopting Mann v. State, 13 S.W.3d 89, 91–92 (Tex. App.—Austin 2000)). That

involves a two-part analysis: the manner of the vehicle’s use, and whether that it
made capable of causing death or serious bodily injury. Sierra, 280 S.W.3d at 255.

       c. Reckless Driving

       Although there is no specific benchmark for assessing driving in this
context, the principal issue is generally “whether a defendant’s driving was
reckless or dangerous during the commission of a felony.” Id. at 255. Other
factors may include violation of traffic laws and fault for any collision. Id. at 256.

       In Sierra, the defendant’s driving was reckless because the defendant was
speeding and made no effort to brake in a situation where an unimpaired driver

would have, causing an accident. Id. In Tyra, the defendant’s driving was reckless
because the defendant was “too drunk to control the vehicle.” Tyra v. State, 897
S.W.2d 796, 798 (Tex. Crim. App. 1995). In Mann, the defendant’s driving was

reckless because the defendant was incredibly intoxicated and crossed over into
opposing traffic, avoiding an accident only because an oncoming vehicle
successfully “took evasive action.” Mann, 13 S.W.3d at 92. In Drichas, the

defendant’s driving was reckless because the defendant almost struck a police
officer then sped and ran stop signs, ultimately leading police from multiple
agencies on a fifteen minute high speed chase in which the vehicle was frequently

out of control and culminating in a “bailout” that sent the driverless truck into



                               Appellant’s Brief, 03-14-00802-CR
                                       Page 13 of 25
a parked van, which it pushed into a mobile home. Drichas v. State, 175 S.W.3d
795, 797–98 (Tex. Crim. App. 2005).

       It is worth noting that while some of these cases point to intoxication as
a factor indicating reckless driving, in each, the level of intoxication was great

and directly caused dangerous driving. As noted in an opinion concurring with
Mann, intoxication, “in and of itself, should not be enough to authorize a finding
of the use of a deadly weapon.” Mann, 58 S.W.3d at 133 (Johnson, J., concurring,
joined by Price and Cochran, JJ.). The Sierra court prominently pointed to that
rationale and a lower court’s rejection of the argument that the “single factor of
intoxication [was] ‘the most dangerous and reckless of them all,’” while
admittedly declining to settle the issue. Sierra, 280 S.W.3d at 256.

       By contrast, in Cates, the defendant’s driving was not reckless because the
evidence showed only that the defendant may have been speeding but properly
stopped at a traffic light. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App.
2003). And in Pointe, the defendant’s driving was not reckless because although
another driver testified to not seeing the defendant before a collision, that was
not enough to support the conclusion that the defendant was speeding or did
not have headlights on. Pointe v. State, 371 S.W.3d 527, 532 (Tex. App.—Beaumont

2012, no pet.). That is, “while a jury may draw multiple reasonable inferences
from the evidence, it cannot draw conclusions based on speculation.” Id. (citing
Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)).




                              Appellant’s Brief, 03-14-00802-CR
                                      Page 14 of 25
      In this case, there was little evidence of Martinez’s driving. He consumed
a few beers at some time that evening and hydroplaned while driving later, which

led to a single-vehicle accident. There was also the non-expert opinion of Officer
Cochran (who did not see the accident or perform an accident reconstruction)
that intoxication or failure to control speed may have been “contributing factors”
to the accident. Yet there is no evidence any traffic laws were broken, and
Cochran admitted that Martinez’s driving did not cause the hydroplane and that
Martinez responded correctly to the hazardous situation when it occurred.

      These facts are worlds apart from those in Sierra, Tyra, Mann, or Drichas,
which involved high levels of intoxication, at-fault accidents, traffic violations,
and patently dangerous situations that threatened numerous drivers. The only
similar factor is intoxication. However, in cases like Tyra and Mann, much was
made about the extreme extent of those defendants’ intoxication. Here, the
evidence demonstrated that while Martinez may have been legally intoxicated, it
was at a low level and did not cause the accident or hinder his reaction to it.

      At best, Martinez’s case provides Jackson’s insufficient “mere modicum” of
evidence of reckless driving. It is much more akin to Cates, where there may have
been speeding but other factors indicated safe driving, and Pointe, where there
was so little evidence from which to draw after-the-fact inferences about the
defendant’s driving that doing so was an exercise in rank speculation. Just like
those cases, the evidence of Martinez’s driving does not establish recklessness.




                              Appellant’s Brief, 03-14-00802-CR
                                      Page 15 of 25
      d. Capability of Causing Death or Serious Bodily Injury

      The second inquiry—capability of causing death or serious bodily
injury—is about the circumstances the vehicle is used in. “[A] deadly weapon

finding requires evidence that others were endangered, and not merely a
hypothetical potential for danger if others had been present.” Mann, 13 S.W.3d
at 92; accord Sierra, 280 S.W.3d at 256; Drichas, 175 S.W.3d at 798–99. That means
there must be “evidence that another motorist was on the highway at the same
time and place as the defendant when the defendant drove in a dangerous
manner.” Drichas, 175 S.W.3d at 799.

      In Tyra, others were endangered because the defendant actually killed
someone. Tyra, 897 S.W.2d 799. In Sierra and Mann, others were endangered
because there was direct evidence that those defendants almost struck other
motorists. Sierra, 280 S.W.3d at 25; Mann, 13 S.W.3d at 92.

      By contrast, in Cates, no others were endangered because the evidence did
not show whether there was anyone else on the road with the defendant at the
time of the accident. Cates, 102 S.W.3d at 738. And in Foley, no others were
endangered because the evidence showed that the closest person to the accident
was sixty feet away inside a building and did not show whether there was anyone
else on the road at the time of the accident. Foley v. State, 327 S.W.3d 907, 916

(Tex. App.—Corpus Christi 2010, no pet.).

      In Martinez’s case, unlike in Tyra, no one was killed or even injured. And

whereas Sierra and Mann highlighted other motorists who were actually put in


                             Appellant’s Brief, 03-14-00802-CR
                                     Page 16 of 25
danger, there was no evidence at all that others were endangered at the time of
Martinez’s accident. The only eyewitness account of the incident came from an

officer on the other side of the highway behind a concrete barrier. The hearsay
testimony about what that officer told dispatch made no mention at all of any
people or vehicles at the time, and that officer was at least as safe some distance
away with a concrete retaining wall between him and Martinez as the office
worker some distance away inside a building in Foley.

       There was testimony that there was light traffic in the area when officers
arrived. Not only does “light” fail to inspire confidence that other drivers were
endangered, the testimony offered to establish traffic during the accident—that
there was traffic at other times that evening and that it was common for families
to be on the road at that day and time—was quite literally the sort of conjecture
that Sierra, Drichas, and Mann prohibit. In Martinez’s case, as with Cates, there was
simply no evidence (not even a modicum) that anyone was actually endangered
by the driving in question, which renders the evidence insufficient to show that
Martinez’s vehicle as-used was capable of causing death or serious bodily injury.

       e. Remedy

       The proper remedy for an improper deadly weapon finding is for the
reviewing court to simply delete it. Plummer v. State, 410 S.W.3d 855, 856 (Tex.
Crim. App. 2013); Drichas, 175 S.W.3d at 798. That is the correct result here,

where the issue should never have even been submitted to the jury over
Martinez’s motion for directed verdict on the matter.

                              Appellant’s Brief, 03-14-00802-CR
                                      Page 17 of 25
I s s u e Two In j u r e d C o n s t a b l e Te s t i m o n y

T h e t r i a l c o u r t a b u s e d i t s d i s c r e t i o n by p e r m i t t i n g t e s t i m o n y
a b o u t a n i n j u r e d c o n s t a b l e ove r M a r t i n e z ’s o b j e c t i o n s t o
r e l e va n c e     and        p r e j u d i c e,      w h i ch      caused   har m     affecting
M a r t i n e z ’s s u b s t a n t i a l r i g h t s

         a. Preservation of Evidentiary Error

         Any error related to the admission of evidence must be preserved by a
timely objection at trial. T EX . R. A PP. PROC. 33.1 (a). Here, when Officer
McDonald offered his story about the constable who was once seriously injured
by a drunk driver at nearly the same location, counsel objected that the testimony
was not relevant and that it was more prejudicial than probative.

         b. Relevance

         Procedurally admissible evidence must still be relevant for admission.
Evidence is relevant if it makes “any fact that is of consequence” to the case
“more probable or less probable.” T EX . R. E VID. 401. The test is whether a
reasonable person would find the evidence helpful in resolving a matter of
consequence to the trial. Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App.
1990). Officer McDonald’s testimony was in no way relevant—it concerned a

situation and parties wholly disconnected from Martinez’s case and had no
bearing on the probability of any fact that mattered to the case.




                                          Appellant’s Brief, 03-14-00802-CR
                                                     Page 18 of 25
      c. Prejudice

      Even relevant evidence may still be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” T EX . R. E VID. 403. Weighing probative
value against prejudice is done by balancing
      (1) how probative the evidence is; (2) the potential of the evidence to impress
      the jury in some irrational way; (3) the time the proponent will need to develop
      the evidence; and (4) the proponent’s need for the evidence, i.e., whether other
      evidence is available and whether the fact of consequence is related to a
      disputed issue.

Montgomery, 810 S.W.2d at 378; accord Powell v. State, 189 S.W.3d 285, 287 (Tex.
Crim. App. 2006). Once a Rule 403 objection has been made, a trial court must

perform this balancing test; if the record is silent on that point, an appeals court
must presume the trial court did so but simply did not put it on the record.
Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997).

      Even if the injured constable testimony was relevant, applying the
balancing test to Martinez’s case still weighs in favor of exclusion. The evidence

has no probative value whatsoever. Its purpose was to support the deadly weapon
allegation, but as Sierra, Drichas, and Mann all expressly hold, that cannot be done
through hypothetical or speculative testimony; what happened once in another

situation was of no consequence to Martinez’s case. Yet the evidence did have
the potential to impress the jury in an irrational way by directly connecting
Martinez’s accident, which harmed no one, with an accident involving an entirely


                                Appellant’s Brief, 03-14-00802-CR
                                        Page 19 of 25
different person, place, and time in which a law enforcement officer was seriously
injured and hospitalized. While the time the prosecution needed to develop the

evidence was relatively short, which favors admission, other evidence was readily
available to support the deadly weapon issue if it was supportable, such as the
testimony of Officer Morris, who was said to have been an eyewitness to the
accident but did not testify at trial. On balance, with three of the four factors
militating against admissibility (and arguably the three most important factors at
that), the testimony should have been excluded.

      d. Review of Evidentiary Error

      Admissibility decisions by a trial court are reviewed for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval
v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). Admitting
evidence is an abuse of discretion if the decision on admissibility “lies outside
the zone of reasonable disagreement.” Martinez, 327 S.W.3d at 736. In Martinez’s
case, the disputed testimony could not legally have affected the outcome of the
deadly weapon finding, which (as discussed at length as part of Martinez’s first
point of error) cannot be based on a hypothetical scenario about what could
have happened. As a result, there can be no reasonable disagreement about

whether the testimony was relevant and certainly none about its prejudicial
nature. The court abused its discretion by admitting it.




                             Appellant’s Brief, 03-14-00802-CR
                                     Page 20 of 25
       e. Harm Analysis

       Improper admission of evidence is a non-constitutional error, so when an
abuse of discretion has been shown, the next step is a harm analysis to determine

whether the error affected any “substantial rights.” Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002); see T EX . R. A PP. P ROC. 44.2 (b) (standards for non-
constitutional errors). Inadmissible evidence does not affect any substantial
rights “if the appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.”
Motilla, 78 S.W.3d at 355 (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998)). That determination is made by considering
       everything in the record, including any testimony or physical evidence admitted
       for the jury’s consideration, the nature of the evidence supporting the verdict,
       the character of the alleged error and how it might be considered in
       connection with other evidence in the case. The reviewing court may also
       consider the jury instructions, the State’s theory and any defensive theories,
       closing arguments and even voir dire, if applicable. We have also recognized
       that whether the State emphasized the error can be a factor.

Id. at 355–56.

       Martinez’s case was a “total refusal” DWI with no field sobriety, breath,
or blood test evidence and no overwhelming proof of intoxication from other
factors. While Martinez does not challenge the bare sufficiency of that evidence,
it was a close, vigorously disputed trial. By connecting Martinez’s non-injury case
with a wholly separate matter that involved substantial injuries to a law

enforcement officer, the prosecution inflamed the jury against Martinez. It may
have influenced both the affirmative deadly weapon finding and the finding of

                                 Appellant’s Brief, 03-14-00802-CR
                                         Page 21 of 25
guilt itself, either of which is much more than a “slight effect” in case like this.
Yet as discussed above, it is not evidence that could have legally supported either

issue, and it certainly was not invited by any defensive theory. Although the state
did not emphasis the testimony in argument, the prosecutor’s speaking response
to counsel’s objection highlighted the testimony for the jury. The inadmissible
testimony as a whole likely affected the jury’s decision-making, and therefore,
Martinez’s substantial rights.

       f. Remedy

       If a court cannot assure itself that inadmissible evidence had no or only
slight effect on the verdict, the proper remedy is reversal and remand for a new
trial. Johnson, 967 S.W.2d at 417. That is the appropriate outcome here.




                                 Appellant’s Brief, 03-14-00802-CR
                                         Page 22 of 25
                                   P RAYER
      Martinez moves this court reverse the judgement of the trial court and
remand the case for a new trial there. Alternatively, if this court finds only that
the evidence was legally insufficient to support at a deadly weapon finding, then

Martinez moves this court to modify the judgment in this case by deleting the
deadly weapon finding.

                                                         R ESPECTFULLY S UB MITTED,




                                             M R . E LLIC S AHUALLA
                                             Counsel for Appellant
                                             State Bar Number 24057365
                                             600 W. 13th St.       Austin, Texas 78701
                                             ph (512) 921-8247     fax (512) 451-5882
                                             email ellic@sahuallalaw.com




                             Appellant’s Brief, 03-14-00802-CR
                                     Page 23 of 25
            C ERTIFICATE OF C OMPLIANCE
      I certify that the parts of this document not excluded under T EX . R. A PP.
P ROC. 9.4 (i)(1) contain a total of 4,159 words according to the word count of
the computer program used to prepare the document.




                                             M R . E LLIC S AHUALLA
                                             Counsel for Appellant
                                             State Bar Number 24057365
                                             600 W. 13th St.       Austin, Texas 78701
                                             ph (512) 921-8247     fax (512) 451-5882
                                             email ellic@sahuallalaw.com




                             Appellant’s Brief, 03-14-00802-CR
                                     Page 24 of 25
                C ERTIFICATE OF S ERVICE
      I certify that on July 10, 2015, a true and correct copy of this document
was served on the Honorable Jana Duty (whose address is 405 Martin Luther
King, Box 1, Georgetown, Texas 78262) through the electronic filing manager.




                                            M R . E LLIC S AHUALLA
                                            Counsel for Appellant
                                            State Bar Number 24057365
                                            600 W. 13th St.       Austin, Texas 78701
                                            ph (512) 921-8247     fax (512) 451-5882
                                            email ellic@sahuallalaw.com




                            Appellant’s Brief, 03-14-00802-CR
                                    Page 25 of 25
