      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00666-CR



                              Manuel Gaspar Martinez, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 9034093, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Manuel Martinez guilty of (1) aggravated assault with a deadly weapon

and (2) injury to a child. See Tex. Pen. Code Ann. § 22.02(a)(2) (West Supp. 2004-05),

§ 22.04(a)(3) (West 2003). Martinez pleaded true to the enhancement allegations, and the jury

assessed punishment of 99 years’ imprisonment on the first count and 20 years’ on the second count.

               On appeal, Martinez contends that (1) the evidence presented at trial was factually

insufficient to support the verdict, (2) the trial court abused its discretion by allowing a witness to

be improperly impeached with an alleged “extraneous bad act,” and (3) the trial court abused its

discretion by allowing a lay witness to testify as to legal conclusions regarding the competency of

a child witness to testify. For the following reasons, we affirm the conviction.
                                          BACKGROUND

                Lisa Sanchez and her two-year-old daughter, S.S., came to live with Martinez in the

summer of 2002. Sanchez testified that Martinez was mean to S.S. throughout the time they lived

together; however, the allegations of abuse centered around Thanksgiving 2002.

                Sanchez, Martinez, and S.S. spent Thanksgiving at the home of Martinez’s sister.

Sanchez testified that Martinez was angry with her because he felt that she was “checking out” his

nephew. Her testimony indicated that Martinez directed his anger towards S.S. when they arrived

home that evening. Sanchez testified that, over the course of the holiday weekend, Martinez

repeatedly struck S.S. on her torso, face, arm, and bottom using his hand, fist, and a belt. These

physical attacks were accompanied by yelling, screaming, and calling S.S. various obscenities. She

testified that on Friday, Martinez put S.S. in the corner for several hours and struck her with his hand

or belt if she moved in the slightest; that on Saturday, Martinez again placed S.S. in the corner for

four or five hours and struck her on the lower back and bottom with his hand or belt until her bottom

was red and swollen; and that on Sunday, the beatings and verbal abuse continued.

                By Monday, December 2, Sanchez determined that she had to leave Martinez’s house

with her daughter and call the police. Martinez refused to let her use the telephone and would not

allow Sanchez to take S.S. with her. She left the home and called the police from a pay phone on

the corner. During the call, an upset Sanchez indicated that Martinez was keeping her from her child

and that she was in need of police assistance in order to get her child back. During the initial 911

call, Sanchez did not mention any physical abuse of her child or herself.




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                When Corporal Randall Milstead of the Austin Police Department responded to

Sanchez’s call, he found her outside a grocery store about a block from Martinez’s home. Corporal

Milstead testified that when he arrived on the scene, Sanchez was visibly upset and crying. It was

during this first meeting that Sanchez told the officer that Martinez had been beating her daughter

and that she wanted to get her daughter back. Corporal Milstead left Sanchez at his vehicle and

proceeded with another officer to Martinez’s home.

                After initially resisting, Martinez’s father ultimately allowed the officers to enter. By

this time, Martinez had left the premises. Corporal Milstead found the victim curled up on the floor

in one of the bedrooms. He picked her up and brought her to her mother. Corporal Milstead testified

that S.S. seemed happy to see her mother and did not appear to be afraid of her.

                EMS then arrived to administer emergency medical care to S.S. and to transport her

to the hospital. The paramedic who examined the child found that she had widespread bruising on

her eyes, cheeks, legs, and arms and had hair loss. He testified that in his opinion these injuries were

consistent with Sanchez’s report of abuse. At the Children’s Hospital emergency room, the child

was treated by Dr. George Edwards who diagnosed her as suffering from child abuse (non-accidental

child trauma) and alopecia (baldness). Dr. Edwards testified at trial that the injuries he observed and

treated were consistent with the history relayed to him by Sanchez and that the injuries were

consistent with the child having been struck with hands, a belt, and possibly other blunt objects over

a period of several days. He testified that the hair loss was likely caused by S.S. being forcibly lifted

by her hair, and that it was highly unlikely that any sort of malnutrition, head lice, or head lice

treatment would have caused such localized hair loss.

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               The Austin Police Department assigned Detective Martin Taylor to the case. His

investigation included a videotaped interview with the child, statements from Martinez’s father, the

child’s medical records, and videotaped interviews with Martinez’s two children. Detective Taylor

concluded that Martinez was the cause of the child’s injuries. This conclusion was based on his

investigation, including the child’s testimony, which was consistent with Sanchez’s allegations of

abuse. In his report, Detective Taylor noted that the child did not fear Sanchez. No forensic

evidence, such as fingerprints or DNA from the belt, was collected. Neither party requested such

evidence or testing.

               Witnesses for Martinez, primarily family members, all testified that they had never

seen Martinez strike or unreasonably discipline the child and that they did not believe Sanchez to

be a truthful person. Several of these witnesses testified that they had seen Sanchez pull, shake, or

strike her daughter on a number of occasions and that Sanchez often left the child at home in the

evenings while going out to clubs. Some family members testified that Sanchez did not feed her

daughter, which caused them to question the health of the child. Several of these witnesses

acknowledged that they had concerns for the safety of the child and had observed bruises and scrapes

on her body; however, none had contacted the police or child protective services regarding those

concerns. All of the witnesses, with the exception of Martinez’s father, testified that they were not

in Martinez’s home during Thanksgiving weekend, when the abuse occurred. Martinez’s father was

present but testified that he did not hear or witness any of the conduct that Sanchez testified to

because he was in his own room.




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                                           DISCUSSION

Factual Sufficiency

                In his first issue, Martinez contends that the evidence is factually insufficient to

support his conviction. In a factual sufficiency review, all the evidence is considered equally,

including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v.

State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no writ.). Due deference must be accorded

the fact finder’s determinations, particularly those concerning the weight and credibility of the

evidence, but the reviewing court may disagree with the result when necessary to prevent a manifest

injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed

factually insufficient to sustain the conviction if the proof of guilt is too weak or if the contrary

evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga v. State, 144

S.W.3d 477, 484-85 (Tex. Crim. App. 2004); see Johnson, 23 S.W.3d at 11. Appellate courts are

not free to set aside a jury verdict merely because the reviewing judges feel that a different result is

more reasonable. Id. at 29-30. If an appellate court determines that evidence is factually insufficient,

it may not substitute its own ruling to render judgment but must remand for a new trial. Clewis v.

State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

                To support Martinez’s conviction for aggravated assault, the evidence must support

a finding that he knowingly or intentionally caused bodily injury to S.S. and exhibited a deadly

weapon during the course of such conduct. Tex. Pen. Code Ann. § 22.02(a)(2) (West Supp. 2004-

05); Lane v. State, 151 S.W.3d 188 (Tex. Crim. App. 2004). To support his conviction for injury

to a child, the evidence must support a finding that he knowingly or intentionally caused bodily


                                                   5
injury to S.S., whose status as a child was undisputed. Tex. Pen. Code Ann. § 22.04(a)(3) (West

2003).

               Martinez argues that the State’s case rests solely on the testimony of Lisa Sanchez.

He argues that his witnesses, through their testimony, discredited Sanchez to such an extent that the

jury could not have based its verdict on her testimony and that any remaining evidence to support

the verdict was wholly insufficient. We disagree.

               It is well settled that when reviewing fact questions, deference is given to the jury’s

determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481;

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Sanchez and other State witnesses

offered testimony supporting the theory that Martinez knowingly or intentionally caused bodily

injury to S.S. and that, under the circumstances, his hands qualified as deadly weapons. Martinez’s

witnesses characterized Sanchez as untruthful and suggested that she was in fact the person who had

caused the bodily injury to her daughter. The jury believed the State’s evidence, credited its theory,

and did not find Martinez’s evidence convincing or credible. It was within the realm of the jury to

make such a determination, especially in a case with very little physical or direct evidence.

Therefore, we cannot substitute our judgment regarding the sufficiency of the evidence for that of

the jury. See Clewis, 922 S.W.2d at 133. We overrule Martinez’s first point of error.


Improper Impeachment

               In his second point of error, Martinez contends that the trial court allowed defense

witness Oscar Martinez to be improperly impeached upon cross-examination with an alleged



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“extraneous bad act.” Martinez argues that the trial court abused its discretion in allowing the State,

over various objections, to question Oscar Martinez regarding an alleged phone call to a Sandra

Lazoria. The State alleged that during the phone call, Oscar Martinez told Lazoria not to speak to

the police or otherwise cooperate with the investigation into the matter of S.S.’s abuse. Although

the record shows that counsel for Martinez made several objections to the State’s line of questioning,

he did not obtain an adverse ruling on his objection to using “extraneous bad acts” to improperly

impeach. He thus failed to preserve error.

                Even had the error been preserved, the trial court did not abuse its discretion by

allowing the questions. The trial court’s decision to admit evidence is reviewed under an abuse of

discretion standard. An appellate court may reverse a trial court’s decision for an abuse of discretion

only when it appears that the court applied an erroneous legal standard or when no reasonable view

of the record could support the trial court’s conclusion under the correct law and the facts viewed

in the light most favorable to its legal conclusion. Dubose v. State, 915 S.W.2d 493, 497-98 (Tex.

Crim. App. 1996). Stated another way, a ruling will not be reversed unless it falls outside the zone

of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

                Generally, the use of specific instances of conduct in order to impeach a witness is

prohibited. Tex. R. Evid. 608(b). The credibility of a witness may be attacked, however, by

evidence that the witness is slanting his testimony against or in favor of a party as a result of personal

interest or bias in the cause. Tex. R. Evid. 613(b). The court of criminal appeals specifically allows

for legitimate exploration of those matters indicating the friendship or leaning of witnesses, and




                                                    7
those associated with them, toward any party or issue involved. Hinojosa v. State, 788 S.W.2d 594,

600 (Tex. App.—Corpus Christi 1990, writ. ref’d) (citing Gunn v. State, 252 S.W. 172, 178 (Tex.

Crim. App. 1922)). To establish interest, bias, or motive, the court of criminal appeals has held that

one must first establish a “specific connection between the witness testimony and the cause,

disclosing an actual bias or motive.” Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App.

1995). This nexus must be demonstrated by laying a proper foundation. Id. This foundation is laid

by first informing the witness of the circumstances supporting a claim of bias or interest, and then

giving the witness an opportunity to explain or deny such circumstances. Id; see Tex. R. Evid.

613(b).

                Oscar Martinez is appellant’s brother. Because this close relationship had been

previously discussed and established, the jury could potentially infer bias or motivation to slant

testimony. During voir dire examination of the witness, the State made clear that the purpose of

questioning the witness about the alleged telephone call was to explore the possible bias of Oscar

Martinez. During Oscar Martinez’s cross-examination, the specific instance was clearly described

for him; he had an opportunity to explain or deny, as required by the rule; and he did deny the

specific instance. Because contrary testimony was never offered, the witness was never actually

impeached on the basis of this alleged specific instance of conduct. Therefore, there was no

improper impeachment. We hold that Martinez did not preserve this error for appeal, and if he had,

the trial court did not abuse its discretion in allowing the line of testimony on the grounds that it was

an attempt to show the witness’s bias towards Martinez. We overrule Martinez’s second point of

error.


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Improper Admission of Lay Witness Testimony

                Martinez’s final point of error is that the trial court erred in admitting the lay witness

testimony of Detective Taylor. Martinez argues that Detective Taylor’s testimony called for a legal

conclusion and therefore could have been offered only by an expert witness, which Taylor was not.

Specifically, Martinez objected to Detective Taylor being asked about the competency of S.S. to

testify. The trial court allowed Detective Taylor to answer questions regarding the competency of

child witnesses in general.

                The admissibility of evidence is within the discretion of the trial court, and we will

not reverse absent an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.

2001). It is undisputed that Detective Taylor was testifying as a lay witness. Therefore, his

testimony under the rules was to be limited to those opinions or inferences which are (a) rationally

based on the perceptions of the witness, and (b) helpful to a clear understanding of the witness’s

testimony or the determination of a fact in issue. Tex. R. Evid. 701. Martinez claims that Detective

Taylor’s testimony regarding the competency of child witnesses to testify was inadmissible under

this rule because (1) the fact that the victim did not testify was never a “fact in issue,” and (2) there

were no ambiguities in the witness’s testimony that this testimony clarified for the jury.

                However, Martinez clearly made S.S.’s failure to testify a fact in issue. While

questioning Detective Taylor, Martinez repeatedly made reference to the fact that the victim had not

testified at trial, and noted that “we’ll get to that,” which opened the door to Detective Taylor’s

testimony on the subject. When defense counsel pursues a subject that would ordinarily be outside

the realm of proper comment by the prosecutor, the defendant has opened the door and creates a right


                                                    9
of reply for the State. Credille v. State, 925 S.W.2d 112, 116 (Tex. App.—Houston [14th Dist.]

1996, writ. ref’d). It has been recognized that the “rule of optional completeness” addresses such

situations where a party has “opened the door.” Tex. R. Evid. 107; Fuentes v. State, 991 S.W.2d

267, 279 (Tex. Crim. App. 1999). This rule permits the introduction of otherwise inadmissible

evidence when that evidence is necessary to fully and fairly explain a matter “opened up” by the

adverse party, for the purpose of reducing the possibility that the jury might receive a false

impression from hearing only a part of some act, conversation, or writing. Credille, 925 S.W.2d at

116. At trial, Martinez opened the door to the question of why the victim did not testify, and

Detective Taylor’s testimony regarding the competency of child witnesses was appropriate to clarify

the issue.

                Detective Taylor’s testimony was also admissible under Rule 701. A lay witness’s

testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own

experiences or observations. Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002) (citing

to Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997)). The same court pointed out that,

as a general rule, observations that do not require significant expertise to interpret and that are not

based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met.

Id. at 537. This is true even when the witness has experience or training. Id. It is clear from the trial

court record that Detective Taylor had personal experience in the child abuse unit with child

witnesses and their ability or inability to testify. His testimony was based on inferences he had made

as a result of his personal experience and observations working in that unit and was not based on

scientific theory. Common sense also dictates that a three-year-old child may not be fit to testify.


                                                   10
Therefore, it was not an abuse of discretion for the trial court to admit Detective Taylor’s testimony.

We overrule Martinez’s third point of error

               Having overruled all of Martinez’s points of error, we affirm the trial court’s

judgment.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: March 10, 2005

Do Not Publish




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