                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00328-CR

                                Carlos Omar MARTINEZ RIVERA,
                                            Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 229th Judicial District Court, Starr County, Texas
                                    Trial Court No. 05-CRS-324
                          Honorable Alex William Gabert, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: May 15, 2019

AFFIRMED

           A jury found appellant Carlos Omar Martinez Rivera (“Martinez Rivera”) guilty of murder

and sentenced him to fifty years’ confinement, plus a fine and court costs. Martinez Rivera appeals

from the trial court’s judgment on the jury verdict. We affirm.

                                               Background

           Martinez Rivera was a member of a group of migrants travelling to the United States

without authorization in August 2005. Martinez Rivera and several other members of the migrant

group were members of the Mara Salvatrucha gang, also known as “MS-13.”
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        At around 8:00 p.m. on August 9, 2005, coyotes 1 transported the migrant group to a house

in Miguel Alemán, México. When a gang member named Yogi complained to the coyotes at the

house about how the migrants had been transported, the coyotes took him into another room, beat

him, and removed him from the house in a bag or a quilt. Members of the migrant group presumed

the coyotes killed Yogi. One migrant heard Martinez Rivera tell the other gang members: “They

knocked down the hometown boy” or “home boy,” meaning the coyotes “had beat [Yogi] or they

had done something to him.” The gang members, including Martinez Rivera, left the house and

encountered Mexican police, who returned them to the house and then assisted the coyotes in

transporting the migrant group to the river at around 11:30 p.m.

        At around midnight, two guides who worked for the coyotes but who had not been at the

house in Miguel Alemán led the migrant group across the river and under a border fence near the

town of Roma, Texas. As the group was walking towards the border fence, one of the guides

walked onto the highway to ensure there were no cars. As the guide did so, one migrant overheard

Martinez Rivera ask another gang member named Julio “why wouldn’t he hit him with a rock?”

Later, just after one of the guides helped Martinez Rivera pass under the border fence, Martinez

Rivera struck the guide on the head with a stick. One witness testified Martinez Rivera struck the

guide first, and Julio “finished throwing [the guide] to the ground.” Another witness testified Julio

first struck the guide two or three times before Martinez Rivera took the stick from Julio’s hands

and struck the guide another two or three times while the guide was on the ground. Several

migrants who observed the incident ran towards Roma and alerted police.




1
  The witnesses and counsel referred to the persons who smuggled the migrant group into the United States as
“coyotes.” Some of the witnesses used “coyote” and “guide” interchangeably, while one witness explained a “coyote”
is a boss and a “guide” is a worker.


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       At around 3:00 a.m., Starr County Sheriff’s Investigator Israel Rios was dispatched to the

scene, where he observed the guide’s “severely beaten” deceased body. The Starr County Justice

of the Peace testified the victim’s body was located about twenty yards from the border fence,

inside the United States. The doctor who performed the autopsy testified the victim’s injuries were

consistent with blunt force trauma to the head caused by a stick or a bat.

       Later that morning, Border Patrol agents located and arrested Martinez Rivera and another

migrant in Roma. When Martinez Rivera fell asleep while in Border Patrol custody, the other

migrant signaled to a Border Patrol agent and told him Martinez Rivera killed the guide. Both

Martinez Rivera and the other migrant were charged with the guide’s death, but charges against

the other migrant were dropped in exchange for his testimony against Martinez Rivera. The jury

also heard from two other witnesses who were part of the migrant group.

       A jury convicted Martinez Rivera of murder and sentenced him to fifty years’ confinement.

Years later, Martinez Rivera filed an application for writ of habeas corpus in the trial court, and

the trial court determined Martinez Rivera, through no fault of his own, was denied his right to

appeal. The trial court granted Martinez Rivera the right to file an out-of-time appeal. This appeal

followed.

                                    Improper Jury Argument

       In his first issue, Martinez Rivera argues the trial court erred in permitting the prosecutor

to state his “purely personal opinion . . . that [Martinez Rivera] is guilty” during closing arguments.

In response, the State argues Martinez Rivera failed to preserve his issue for appeal or,

alternatively, the prosecutor’s argument was not improper and did not prejudice Martinez Rivera.

A.     Relevant facts

       Martinez Rivera argues the following statement made by the prosecutor during his closing

argument was improper:


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       We’re here about this defendant Carlos Omar Martinez Rivera. That’s who we,
       that’s who you all have to try. That question. Did he do it? Did he participate? And
       ladies and gentlemen, I tell you that he did. Don’t pick and choose that story that
       they want you to believe.

Immediately after the prosecutor made the statement, Martinez Rivera’s counsel objected:

       Your Honor, we are going to object to that prior statement on using the State of
       Texas to, in other words, “I tell you that he did.” That’s improper argument, that’s
       putting the State of Texas up on—for credibility and that’s just improper argument.

The trial court responded: “Proceed with the argument, I’ll rule on it after the argument.”

       At the conclusion of the prosecutor’s closing argument, Martinez Rivera’s counsel

requested a curative instruction:

       Your Honor, I am going to ask that the court instruct the jury—I presume that the
       court granted my objections during the argument, uh, and I am going to ask that
       you instruct them that his statement that he knows that they did it is not something
       that they should consider. He’s in effect testifying. He has pretty much implied to
       the jury that he perhaps, as being intimately aware of what goes on in these cases,
       he may know something that they were not—that they didn’t hear, and so he has
       placed himself as a witness by saying that he knew, and they need to be instructed
       that that has no bearing, that it’s not important, that it was a misstatement on his
       part, and I ask the court to instruct them as such.

In response, the prosecutor proposed the trial court reiterate to the jury that “what the lawyers say

during argument is not evidence,” and Martinez Rivera’s counsel agreed: “Whatever instructions

you give, even if it’s a repetition of that one, I suppose, it would be something better than nothing.”

The trial court then gave the jury the following additional instruction:

       Whatever the attorneys may say to you, as I have said to you in the past, is not
       evidence and it’s not to be considered at all for purposes of a determination as to
       guilt or innocence. The attorneys never did raise their hands to say I’m telling you
       the truth so you have to disregard whatever they may say.

The trial court dismissed the jury to deliberate, and Martinez Rivera’s counsel moved for a mistrial.

The trial court denied the motion.




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B.      Waiver

        As an initial matter, we consider whether Martinez Rivera preserved his issue for appellate

review. To preserve a complaint of improper jury argument, a defendant must urge his objection

until he obtains an express or implicit adverse ruling. Hinojosa v. State, 433 S.W.3d 742, 761 (Tex.

App.—San Antonio 2014, pet. ref’d) (citing TEX. R. APP. P. 33.1(a); Mathis v. State, 67 S.W.3d

918, 926–27 (Tex. Crim. App. 2002)). In addition to objecting to the improper statement, the

defendant must request a curative instruction if the error is curable and make a motion for a

mistrial. See id.

        The State argues Martinez Rivera failed to preserve his issue because trial counsel’s

objection “was too vague and untimely.” We disagree. Martinez Rivera’s counsel objected during

the prosecutor’s closing argument and again after the prosecutor finished his argument. It is clear

from the record that trial counsel objected on the basis that the prosecutor was testifying to his

personal opinion about Martinez Rivera’s guilt. Trial counsel also properly requested a curative

instruction, which was given, and a mistrial, which was denied. Accordingly, we conclude

Martinez Rivera’s first issue is preserved for appellate review and turn now to the merits.

C.      Standard of review and analysis

        Where, as here, the trial court implicitly sustains the defense objection to improper jury

argument and grants the requested curative instruction, the only adverse ruling to be reviewed is

the trial court’s denial of the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex.

Crim. App. 2004) (en banc). We review the trial court’s denial of the motion for mistrial for abuse

of discretion and will only reverse in extreme circumstances in which the prejudice was incurable.

Id. at 77.

        A prosecutor’s argument is permissible if it is: (1) summation of the evidence; (2)

reasonable deduction from the evidence; (3) an answer to the argument of defense counsel; or (4)


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a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007). However,

“[a] prosecutor may not convey to the jury during argument that [he] possesses specialized

knowledge or expertise about a contested factual issue in the case.” Garcia v. State, 246 S.W.3d

121, 145 (Tex. App.—San Antonio 2008, pet. ref’d) (citing Jackson v. State, 17 S.W.3d 664, 675

(Tex. Crim. App. 2000)). “Such comments pose a danger of influencing the jury’s opinion in

deciding the issue.” Id.

       Martinez Rivera argues the prosecutor’s statement—“I tell you that he did it”—was

improper because it is the prosecutor’s personal opinion. The State responds the prosecutor’s

statement was reasonably deduced from the facts and was made in response to Martinez Rivera’s

argument that Julio (not Martinez Rivera) committed the crime. Assuming, as it appears the trial

court did, that the prosecutor’s statement was improper, we consider whether Martinez Rivera was

harmed by balancing three factors: “(1) the severity of the misconduct (prejudicial effect), (2)

curative measures, and (3) the certainty of the punishment assessed absent the misconduct

(likelihood of the same punishment being assessed).” See Hawkins, 135 S.W.3d at 77.

       In this case, any prejudicial effect was minimal, given that Martinez Rivera complains of

a single statement “embedded within other remarks that invited the jury to draw a legitimate

inference from” the evidence. See Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011)

(emphasis in original) (holding trial court did not abuse its discretion in denying mistrial based on

prosecutor’s comment on defendant’s failure to testify). Specifically, the prosecutor made the

statement as part of a broader argument that the eye witness testimony demonstrates Martinez

Rivera, with or without the assistance of Julio, murdered the guide. In addition, the trial court

promptly addressed any prejudice with a curative instruction reminding the jury that counsel’s

statements are not evidence and should not be considered.




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        Finally, as will be discussed further below, the weight of the evidence against Martinez

Rivera suggests it is very likely he would have been assessed the same punishment regardless of

the prosecutor’s statement. Several witnesses testified Martinez Rivera was a member of the Mara

Salvatrucha gang and was attempting to enter the United States without authorization when he

struck the victim in retaliation for the presumed murder of another gang member. On this record,

Martinez Rivera has failed to show the jury likely would decide the issue of punishment differently.

Therefore, because Martinez Rivera has not demonstrated harm, we conclude the trial court did

not abuse its discretion in denying Martinez Rivera’s motion for mistrial based on the prosecutor’s

statement.

        Martinez Rivera’s first issue is overruled.

                                Ineffective Assistance of Counsel

        In his second issue, Martinez Rivera argues his trial counsel was ineffective for failing to

request a sudden passion instruction during the punishment phase of the trial. The State responds

the silent record on appeal does not support a conclusion that Martinez Rivera’s trial counsel was

ineffective, and, in any event, Martinez Rivera was not entitled to a sudden passion instruction.

A.      Standard of review

        To prevail on a claim of ineffective assistance of counsel, Martinez Rivera must establish

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

standard of reasonableness; and (2) Martinez Rivera was prejudiced by trial counsel’s defective

performance. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). To determine whether trial counsel’s performance was

deficient, we look to the totality of the representation and the particular circumstances of the case.

Id. at 813.




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B.     Analysis

       To demonstrate ineffective assistance of counsel based on failure to request a sudden

passion instruction, Martinez Rivera must demonstrate he was entitled to the instruction, there was

no possible trial strategy for not requesting the instruction, and Martinez Rivera was prejudiced.

Newkirk v. State, 506 S.W.3d 188, 192 (Tex. App.—Texarkana 2016, no pet.). “[M]erely showing

that a sudden-passion instruction would have given the jury another sentencing [option] is not

enough to demonstrate prejudice under Strickland.” Id. at 197. Rather, Martinez Rivera “must

demonstrate a reasonable probability that, but for counsel’s failure to request the sudden-passion

instruction, he would have received a less harsh sentence.” Id. at 197–98 (citing Potts v. United

States, 566 F. Supp. 2d 525, 537 (N.D. Tex. 2008)).

       Assuming without deciding Martinez Rivera was entitled to a sudden passion instruction

and would have received it had his trial counsel requested it, we consider whether Martinez Rivera

established the jury would have imposed a less harsh sentence. The jury heard the following

evidence. Several members of the migrant group testified Martinez Rivera was a member of the

Mara Salvatrucha gang. One witness testified he heard Rivera tell other gang members, referring

to a gang member who was beaten and presumably killed by the coyotes: “They knocked down

the hometown boy” or “home boy.” Later, the same witness overheard Rivera asking another gang

member “why wouldn’t he hit him [one of the guides] with a rock?”

       Each of the migrant witnesses testified the victim was not present at the house in Miguel

Alemán and did not threaten or injure Martinez Rivera or anyone else. One witness testified he did

not believe Martinez Rivera or the other gang members were afraid of the victim, and another

witness testified Martinez Rivera struck the victim for “revenge.” Three witnesses testified they

personally observed Martinez Rivera strike the victim with a stick. Each of these witnesses testified

the victim fell to the ground, and there was no evidence the victim fought back. There also was no


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evidence that Martinez Rivera sustained any injuries. The victim, in contrast, was “severely

beaten.”

       In light of this evidence, we conclude the jury had before it sufficient evidence to determine

a sentence of fifty years’ imprisonment was warranted. See id. at 198–99 (holding evidence that

defendant told others he was going to kill the victim and then did so, lack of evidence of a mutual

struggle, and evidence that victim was retreating when killed was sufficient to conclude defendant

was not prejudiced by lack of sudden passion instruction). Therefore, even assuming Martinez

Rivera was entitled to a sudden passion instruction, Martinez Rivera has failed to establish a

reasonable probability that, but for his trial counsel’s failure to request the instruction, he would

have received a less harsh sentence.

       Martinez Rivera’s second issue is overruled.

                                            Conclusion

       Because we overrule Martinez Rivera’s issues on appeal, we affirm the trial court’s

judgment.

                                                  Liza A. Rodriguez, Justice

DO NOT PUBLISH




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