      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00192-CR



                                    Tony Martinez, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-10-0284, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Tony Martinez pleaded guilty to eleven counts of the offense of aggravated

sexual assault of a child. See Tex. Penal Code § 22.021. The jury assessed punishment at 99 years’

imprisonment and a fine of $6,000 on each count, and the district court ordered that the sentences

in counts one through six would run concurrently with each other, the sentences in counts seven

through eleven would run concurrently with each other, and that the concurrent sentences in counts

one through six would run consecutively with the concurrent sentences in counts seven through

eleven. In three points of error on appeal, Martinez asserts that the State made an improper argument

during its closing argument, that Martinez’s trial counsel rendered ineffective assistance by failing

to object to the improper argument, and that the judgments of conviction mistakenly reflect that

Martinez pleaded not guilty to each count of the indictment. We will modify the judgments to reflect

that Martinez pleaded guilty. As modified, we will affirm the judgments.
                                         BACKGROUND

                Martinez pleaded guilty to charges that he had sexually assaulted his stepdaughter

on multiple occasions beginning when his stepdaughter was eight years old and continuing until she

was twelve years old. At the punishment hearing, the jury heard evidence concerning the nature

and surrounding circumstances of the offenses, including testimony from the victim, her mother, and

the investigating officers. We will discuss the evidence in more detail below as it is relevant to

Martinez’s points of error. At the conclusion of the hearing, the district court sentenced Martinez

in accordance with the jury’s verdict as noted above. This appeal followed.


                                            ANALYSIS

Improper argument

                In his first point of error, Martinez asserts that the prosecutor made an improper

closing argument that, in Martinez’s view, amounted to a comment on Martinez’s decision not to

testify. The allegedly improper argument was the following:


        He has no remorse. Jeri [Skrocki, one of the investigating officers,] gave him the
        chance to apologize and all he expressed was the fact that he was sorry he got caught.
        His actions after he committed these crimes over all of those years, his actions
        showed that he has absolutely no remorse for what he has done. He has shown you
        that he is completely indifferent to the misery that he has caused.


As Martinez acknowledges in his brief, trial counsel made no objection to this argument at the time

it was made. Accordingly, any alleged error in the argument has been waived. See Tex. R. App.

P. 33.1; Estrada v. State, 313 S.W.3d 274, 302-03 (Tex. Crim. App. 2010). We overrule Martinez’s

first point of error.

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Ineffective assistance of counsel

                In his second point of error, Martinez asserts that trial counsel rendered ineffective

assistance by not objecting to the allegedly improper argument by the prosecutor. According to

Martinez, if counsel had objected, the objection would have been sustained and the jury instructed

to disregard the argument. In Martinez’s view, the failure to object prejudiced his defense by

allowing the jury to consider in its deliberations his refusal to testify.

                To establish that he received ineffective assistance of counsel, Martinez must prove

by a preponderance of the evidence that (1) counsel’s performance fell below an objective standard

of reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. See Strickland v. Washington,

466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Kuhn

v. State, 393 S.W.3d 519, 537 (Tex. App.—Austin 2013, pet. ref’d). Thus, the “benchmark for

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686.

                To prove deficient performance, the defendant must show “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland, 466 U.S. at 687; Perez v. State, 310 S.W.3d 890, 892-93

(Tex. Crim. App. 2010). “To satisfy this prong of the analysis, a defendant ‘must show that counsel’s

representation fell below an objective standard of reasonableness’ based upon ‘prevailing

professional norms.’” Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 688). “For this



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performance inquiry we consider all of the circumstances, with ‘a strong presumption that counsel’s

conduct [fell] within the wide range of reasonable professional assistance.’” Id. (quoting Strickland,

466 U.S. at 688-89).

               If the defendant proves that counsel’s performance was deficient, he must further

demonstrate that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.

“This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Id. Therefore, “[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather,

a defendant must show that there is a reasonable probability, meaning a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have been different

but for the unprofessional errors of counsel. Id. at 687.

               For a claim of ineffective assistance of counsel to succeed on appeal, the record must

demonstrate both deficient performance by counsel and prejudice suffered by the defendant.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An ineffective-assistance claim

must be “firmly founded in the record” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). “Direct appeal is usually an inadequate vehicle for raising such a claim because

the record is generally undeveloped.” Id. This statement is true with regard to the “deficient

performance” prong of the inquiry, when counsel’s reasons for failing to do something do not

appear in the record. Id. 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



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(Tex. Crim. App. 2003)). If trial counsel is not given that opportunity, then the appellate court

should not find deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)). In other words, in the absence of a record explaining the reasons for

counsel’s decisions, we will not find counsel’s performance deficient if any reasonably sound

strategic motivation can be imagined. See Garcia, 57 S.W.3d at 440.

               Because Martinez is arguing that counsel was ineffective in failing to object to

improper jury argument, he must first show that the argument was in fact improper. See Kuhn,

393 S.W.3d at 538. If a jury argument was proper, counsel cannot be ineffective in failing to object

to it.1 Id. at 538-39 (citing Richards v. State, 912 S.W.2d 374, 379 (Tex. App.—Houston

[14th Dist.] 1995, pet. ref’d)). But even if the argument was improper, Martinez must further show

that (1) the failure to object to the improper argument constituted deficient performance; and (2) he

was prejudiced by that failure. Id. at 539.

               In this case, the allegedly improper argument was the prosecutor’s claim that Martinez

lacked remorse. “Under some circumstances, a comment concerning a defendant’s lack of remorse

constitutes a comment on the defendant’s failure to testify.” Snowden v. State, 353 S.W.3d 815, 817

n.4 (Tex. Crim. App. 2011) (citing Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992)).

“Prosecutorial comment on an accused’s failure to testify violates his state and federal constitutional




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          Proper jury argument generally falls within one of four areas: (1) summation of the
evidence, (2) reasonable deductions from the evidence, (3) answers to an argument of opposing
counsel, and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.
App. 2008); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

                                                  5
privileges against self-incrimination.” Id. (citing Moore v. State, 849 S.W.2d 350, 351 (Tex. Crim.

App. 1993)).

               However, “[i]n order for a comment to violate a defendant’s right against

self-incrimination, the language used must be ‘manifestly intended or . . . of such a character that

the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.’”

Id. (quoting Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). We review the

language used from the standpoint of the jury. Staley v. State, 887 S.W.2d 885, 895 (Tex. Crim.

App. 1994). “The fact the language might be construed as an implied or indirect allusion to a

defendant’s failure to testify is not sufficient.” Id. “Language that can reasonably be construed

to refer to a failure to present evidence other than from the defendant’s own testimony does not

amount to comment on failure to testify.” Swallow, 829 S.W.2d at 225. For example, an argument

that could reasonably be construed as a reference to a statement made by the defendant, in which

he expresses no remorse for his conduct, is not a direct comment on the defendant’s failure to

testify, but is instead a reference to evidence elicited during trial. See Staley, 887 S.W.2d at 896.

Accordingly, if there is evidence in the record supporting the prosecutor’s argument that the

defendant lacked remorse, the argument is proper. See Howard v. State, 153 S.W.3d 382, 386

(Tex. Crim. App. 2004); Davis v. State, 782 S.W.2d 211, 222-23 (Tex. Crim. App. 1989); Fearance

v. State, 771 S.W.2d 486, 514 (Tex. Crim. App. 1988).

               Here, we conclude that there is evidence in the record supporting the prosecutor’s

argument that Martinez lacked remorse. Specifically, the victim’s mother, Claudia Martinez,

testified that after her daughter had made her outcry, she confronted Martinez about the abuse.



                                                  6
According to Claudia, Martinez denied assaulting her daughter, refused to apologize or take

responsibility for what had happened, and showed no remorse for his actions. Additionally, after his

arrest, Martinez provided a statement to Detective Strocki in which Martinez showed what could

reasonably be construed as a lack of remorse. Strocki testified that Martinez did not apologize for

his actions. Instead, according to Strocki, Martinez told him that he and his stepdaughter had what

Martinez believed to be a consensual romantic relationship and that he did not believe this

relationship was wrong. Additionally, Martinez told Strocki that, “next time,” he “would have been

smarter and told her that we needed to wait.” Moreover, the victim testified that, even after the

sexual abuse had ended, Martinez still wanted their “relationship” to continue. According to the

victim, “In his mind we really had a relationship, like a boyfriend girlfriend relationship even though

he was married to my mother.” This and other evidence could reasonably be construed as a lack of

remorse on the part of Martinez. Accordingly, the prosecutor’s argument was a proper summation

of the evidence presented at trial, and counsel could not be ineffective for failing to object to it. We

overrule Martinez’s second point of error.


Clerical errors in written judgments of conviction

                In his third point of error, Martinez argues that the judgments of conviction for

each count of the indictment mistakenly reflect that Martinez pleaded “not guilty” to each count.

We agree. The record reflects that Martinez pleaded “guilty” to each count. We sustain Martinez’s

third point of error.

                This Court has the authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28

                                                   7
(Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).

Accordingly, we modify each of the eleven judgments of conviction to reflect that Martinez pleaded

“guilty” to each count of the indictment.


                                            CONCLUSION

               As modified, the judgments of conviction are affirmed.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Modified and, as Modified, Affirmed

Filed: July 31, 2013

Do Not Publish




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