                            NUMBER 13-03-00388-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


RAUL ADAM MARTINEZ, JR.,                                                    Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 248th District Court
                          of Harris County, Texas.


               MEMORANDUM OPINION ON REMAND

    Before Chief Justice Valdez and Justices Yañez and Benavides
      Memorandum Opinion on Remand by Chief Justice Valdez

      This case is before us on remand from the Texas Court of Criminal Appeals. See

Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008). A jury found appellant, Raul

Adam Martinez, Jr., guilty of the offense of capital murder, and the trial court assessed

punishment at life imprisonment. See TEX . PENAL CODE ANN . §§ 12.31(a)(2), 19.03(a)

(Vernon Supp. 2009). By a single issue, Martinez asserts that his videotaped statement

should not have been admitted into evidence at trial because Miranda warnings were not
given at the beginning of the interrogation process. See Miranda v. Arizona, 384 U.S. 436,

445 (1966).

         On original submission, this Court, after applying Justice Souter’s plurality opinion

in Missouri v. Seibert, 542 U.S. 600 (2004), concluded that the admission of the videotaped

statement was not constitutional error because it was made after a proper and functional

Miranda warning. Martinez v. State, 204 S.W.3d 914, 921 (Tex. App.–Corpus Christi

2006), rev’d, 272 S.W.3d 615 (Tex. Crim. App. 2008). One justice dissented, concluding

that: (1) Martinez’s statement was inadmissible because it was “obtained pursuant to a

deliberate two-step interrogation technique used to undermine the effectiveness of Miranda

warnings”; and (2) the admission of the videotaped statement was harmful. Id. at 922

(Yañez, J., dissenting).

         The court of criminal appeals granted Martinez’s petition for discretionary review and

concluded that Martinez’s videotaped statement was inadmissible because “officers did not

apprise Martinez of his Miranda rights when they began his custodial interrogation and

failed to apply any curative measures in order to ameliorate the harm caused by the

Miranda violation.” Martinez, 272 S.W.3d at 627. Accordingly, the court reversed and

remanded, directing us to conduct a harm analysis. Id. We reverse and remand for a new

trial.

                                   I. FACTUAL BACKGROUND

         In the early morning hours of August 3, 2002, two men, one carrying a rifle and one

carrying a pistol, approached Alfredo Balderas Loredo (“Balderas”), Gustavo Camilo, and

Manuel Arriaga Molina (“Arriaga”) in the back parking lot of a Houston apartment complex.

Balderas and Camilo described the gunmen as Hispanic males and identified the man

carrying the rifle as short and heavy and the man carrying the pistol as tall and skinny.

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       At trial, Balderas testified that the gunmen approached him and demanded money.

The man with the rifle held it to Balderas’s stomach, while the man with the pistol pointed

his weapon at Camilo and Arriaga. Balderas also testified that he pushed the rifle away

from his stomach and Arriaga moved to “help” him but was shot in the stomach. Balderas

stated that the men then shot Camilo in the stomach, “knocked” Balderas to the ground,

took his wallet, shot him in the neck, and fled. Arriaga died a few hours after the incident.

Ballistics evidence indicated that all shots fired during the incident originated from a

handgun.

       Neighbors, Elizabeth Mercado and Percy Johnson, testified that they lived across

the street from the apartment complex. Johnson stated that on the night of the shootings,

he saw a four-door Pontiac Grand Am drive into the apartment’s parking lot; Mercado

testified that the vehicle was red. Johnson stated that he saw two men exit the vehicle,

then saw the vehicle reverse and park on the street in front of the apartment complex. A

short time later, Mercado and Johnson heard two gunshots and saw two “Chicano” men,

one “fat” and one “skinny,” return to the vehicle and enter on the passenger’s side; then

the vehicle drove away.

       No suspects emerged in this case until the department received a Crime Stoppers

tip identifying Martinez and James Ruiz as primary suspects. When presented with a

photo array, Balderas identified Martinez as the short, heavy man who had pointed a rifle,

and Ruiz as the tall, skinny man who had wielded a pistol. Camilo only identified Martinez

as a gunman. No guns, stolen wallets, or a red Pontiac were ever located. However, the

jury heard evidence that Martinez owned a green Chevrolet Malibu as well as a “shotgun”

similar to the rifle used in the robbery. Officer Marcario Sosa testified that Chevrolet

Malibus and Pontiac Grand Ams “have similarities” because they are manufactured by

General Motors.
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       After Martinez was identified as a suspect, Officer Sosa arrested him and took him

to the police station.1 Upon arriving at the police station, Officer Sosa and his partner,

Officer Toby Hernandez, questioned Martinez about the robbery and murder; however, no

Miranda warnings were given at the scene of the arrest or at the police station. Martinez

denied knowing anything about the incident. Shortly thereafter, the officers took Martinez

to a police polygraph examiner and a polygraph test was administered. After the test,

Officer Sosa informed Martinez that he had failed the polygraph exam. Martinez was then

taken to municipal court where a magistrate gave him Miranda and other statutory

warnings. Next, Martinez was taken to the Houston Police Department’s central holding

station. At the holding station, Officer Sosa repeated the Miranda warnings and then

questioned Martinez; this interrogation was videotaped.

                                     II. PROCEDURAL BACKGROUND

       Before trial, Martinez filed a motion to suppress his videotaped statement. At the

suppression hearing, Martinez claimed that he had not received Miranda warnings either

when he was arrested or before the polygraph examination. The trial court concluded that

Martinez had voluntarily and knowingly waived his right to remain silent and admitted the

videotaped statement.

       Upon review, the court of criminal appeals described the contents of the video as

follows:

       At the beginning of the video, appellant stated that he had become aware of
       certain facts about the crime through the polygraph examiner. Although
       before the polygraph appellant asserted that he was not aware of the robbery
       and murder, on the videotape appellant discussed pertinent information
       regarding the crime. Appellant further stated that he was not one of the
       assailants who had robbed and shot the victims, but rather was a “lookout”
       person. He maintained that he had remained in the backseat of his Chevy
       Malibu throughout the incident. Appellant had initially stated that there were

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           Jam es Ruiz was not arrested because at the tim e he was identified as a suspect, he was deceased.
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       only three persons involved, but after Officer Sosa informed him of conflicting
       information, he then stated that there were four persons involved in the
       incident. Appellant also asserted that the individual who was actually
       carrying the rifle resembled appellant and that they could easily have been
       mistaken for each other.

Martinez, 272 S.W.3d at 618. The court of criminal appeals then concluded:

              It is evident that the officers treated the videotaped interrogation as a
       continuation of the first . . . Officer Sosa referred to the first interrogation and
       restated what he had told appellant during the first interview. While the
       questions and answers from the first round of interrogation are not in the
       record, we can conclude from Officer Sosa’s reference to the first
       interrogation that appellant could reasonably assume that a continuity
       existed between the two interrogations.

              On the video, Officer Sosa began by reading the Miranda warnings to
       appellant. He then asked appellant if he understood his rights, and appellant
       replied affirmatively. Both officers, however, failed to inform appellant that,
       based on the lack of Miranda warnings, any prior statement made during a
       previous interrogation, including the polygraph exam, could not be used
       against him.

Id. at 625-26 (footnotes omitted). Accordingly, the court of criminal appeals deemed the

videotaped statement inadmissible and reversed and remanded. Id. at 627. On remand,

we determine whether the admission of Martinez’s videotaped statement contributed to the

jury’s guilty verdict.

                                      II. HARM ANALYSIS

A.     Standard of Review

       The admission of incriminating statements made during a custodial interrogation

where no proper Miranda warnings were given constitutes constitutional error. See TEX .

R. APP. P. 44.2(a); Akins v. State, 202 S.W.3d 879, 891-92 (Tex. App.–Fort Worth 2006,

pet. ref’d.). Constitutional error requires reversal “unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.” TEX .

R. APP. P. 44.2(a). In conducting this analysis in the context of a Miranda error, we must


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judge the magnitude of the error in light of the evidence as a whole to determine the

degree of prejudice to the defendant resulting from that error. Jones v. State, 119 S.W.3d

766, 777 (Tex. Crim. App. 2003); see Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim.

App. 2000). In other words, “[w]e must review whether the admission of appellant’s

statement contributed to the jury’s verdict of guilty in this cause, regardless of whether

there is evidence independent of the statement that is otherwise sufficient to sustain the

jury’s verdict of guilt.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001).

       In determining whether constitutional error in the admission of evidence is harmless,

we consider several factors, including: (1) the importance of the evidence to the State’s

case; (2) whether the evidence was cumulative of other evidence; (3) the presence or

absence of other evidence corroborating or contradicting the evidence on material points;

(4) the overall strength of the State’s case; and (5) any other factor, as revealed by the

record, that may shed light on the probable impact of the error on the mind of the average

juror. See Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). Other cases

indicate that we may consider additional factors such as the source and nature of the error,

the emphasis placed upon the evidence by the State, the probable collateral implications

of the error, the weight a juror may have placed on the evidence, and whether finding the

error harmless would encourage the State to repeat the conduct. See Higginbotham v.

State, 807 S.W.2d 732, 735 (Tex. Crim. App. 1991); Harris v. State, 790 S.W.2d 568, 587

(Tex. Crim. App. 1989). A constitutional error does not contribute to the conviction or

punishment if the jury’s verdict would have been the same even if the erroneous evidence

had not been admitted. Clay, 240 S.W.3d at 904.

B.     Analysis

       We first note that the State offered evidence of Martinez’s guilt independent of his


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videotaped statement by offering the testimony of eyewitnesses who identified Martinez

from a photo array. The jury also heard evidence that Martinez’s car and shotgun were

similar to the ones used in the robbery. While this evidence is compelling and indicates

the strength of the State’s case, “harmlessness [is] not determined solely on the basis of

whether there [is] sufficient evidence, independent of the defendant’s inadmissible

statement, for a reasonable jury to reach the same conclusion which it . . . reached with

the statement.” McCarthy, 65 S.W.3d at 55 (citing Satterwhite v. Texas, 486 U.S. 249

(1988)). “We must review whether the admission of appellant’s statement contributed to

the jury’s verdict in this cause, regardless of whether there is evidence independent of the

statement that is otherwise sufficient to sustain the jury’s verdict.” Id.

       In his videotaped statement, Martinez gave varying explanations as to the events

surrounding the robbery and murder. Martinez first stated that he and two other individuals

were involved; however, he later told police that a fourth individual participated. Martinez

also changed his story about who was driving. Despite these inconsistencies, in each

version of the events, Martinez maintained that he sat in the backseat of the car as a

“lookout,” did not get out of the car during the incident, and did not personally shoot

anyone. He also stated that he knew that the other individuals in the car were going to “do

a lick,” which Martinez defined as commit a robbery, and that he knew that a weapon would

be used in the commission of the robbery.

       After the trial court read to the jury a charge instructing it on the law of parties and

the law of conspiracy, the State, in closing argument, stated:

              The charge gives you four ways to find this defendant guilty of capital
       murder. Now, those four ways that are based on the charge and the
       evidence presented in this case, y’all [sic] can consider as a group.
       Basically—and y’all [sic] don’t have to agree on which way the capital murder
       was committed. Three of y’all [sic] can think it occurred one way. Six of y’all
       [sic] can think it occurred another way. Three of y’all [sic] can think it

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       occurred a third way, but as long as twelve of you agree that a capital murder
       occurred, this defendant is guilty of capital murder.

              Let me talk to you about the first way. That the defendant was the
       shooter, the defendant specifically intended to cause the death of Mr.
       [Arriaga]. . . .

              The second way, based on that jury charge, is he held the shotgun
       while Ruiz shot Mr. [Arriaga] during the course of committing that aggravated
       robbery. . . .

              The third way is the conspiracy to commit capital murder. Basically
       that the murder with those loaded weapons should have been anticipated by
       Martinez as a result of carrying out that conspiracy. That means they sat in
       the car and said, [“]Let’s go get a lick,[”] with loaded guns, and you go out
       there with loaded guns, you can reasonably anticipate that someone’s going
       to die as a result of that. . . .

              The fourth way is as a party, as a lookout to that capital murder,
       again, promote, assist in the commission of the offense, he solicits,
       encouraged, directed or aided. If you believe this defendant’s statement,
       you take everything he says as true, says it here twice on this tape: [“]I was
       a lookout. I was sitting in the car, looking around, knowing that these guys
       were going to get a lick.[”] You’re a lookout and you’re guilty of capital
       murder.

       The State’s closing argument emphasized Martinez’s erroneously admitted

statement by instructing the jury that it could reach a guilty verdict by finding that Martinez

participated in the robbery and murder as a gunman, as a co-conspirator, or as a “lookout.”

No evidence other than Martinez’s statement was presented to establish that Martinez was

a “lookout.”

       “A defendant’s statement, especially a statement implicating [him] in the commission

of the charged offense, is unlike any other evidence that can be admitted against the

defendant.” Id. at 55-56 (citing Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (“[A]

defendant's own confession is probably the most probative and damaging evidence that

can be admitted against him. . . . [T]he admissions of a defendant come from the actor

himself, the most knowledgeable and unimpeachable source of information about his past

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conduct.”).

       In McCarthy, the court of criminal appeals held that the erroneous admission of the

defendant’s statement into evidence was harmful, even though the State offered ample

evidence of the defendant’s guilt from sources independent of his statement. Id. The court

noted that although the defendant’s statement did not place the murder weapon in the

defendant’s hands, it was “powerful enough to establish her guilt of capital murder either

as a party or as a conspirator.” Id. at 56. Although Martinez’s statement was not used by

the State as extensively as that in McCarthy, its use here was just as damaging.

Martinez’s statement, if believed, established his presence at the location of the robbery

and murder, his involvement as a “lookout,” and his knowledge of an intent to “do a lick.”

Thus, as in McCarthy, the State used Martinez’s statement as direct evidence of his guilt

as a party or co-conspirator. Id. at 54. As McCarthy notes,

       A confession is likely to leave an indelible impact on a jury. “If the jury
       believes that a defendant has admitted the crime, it will doubtless be
       tempted to rest its decision on that evidence alone, without careful
       consideration of the other evidence in the case. Apart, perhaps, from a
       videotape of the crime, one would have difficulty finding evidence more
       damaging to a criminal defendant’s plea of innocence.”

Id. at 56 (quoting Fulminante, 499 U.S. at 313 (Kennedy, J., concurring)).

       Moreover, because we are to consider any other factor, as revealed by the record,

that may shed light on the probable impact of the error on the mind of the average juror,

we note that, during its deliberations, the jury requested Martinez’s videotaped statement,

among other items, for review. See Clay, 240 S.W.3d at 904.

       In light of the foregoing, we cannot conclude, beyond a reasonable doubt, that the

jury’s verdict would have been the same if Martinez’s statement had not been admitted.

See id.; McCarthy, 65 S.W.3d at 56. Because we are unable to conclude that Martinez’s

statement did not contribute to the jury’s verdict of guilt, we hold that its admission was not
                                              9
harmless. Accordingly, we sustain Martinez’s sole issue on appeal.

                                    III. CONCLUSION

      We reverse the judgment of the trial court and remand for a new trial. See TEX . R.

APP. P. 43.2(d); McCarthy, 65 S.W.3d at 56.

                                               ________________________
                                               ROGELIO VALDEZ
                                               Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed
the 13th day of May, 2010.




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