             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00235-CR
      ___________________________

FRANCISCO NOEL MARTINEZ, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 5
           Tarrant County, Texas
         Trial Court No. 1544967


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                   I. Introduction

      Appellant Francisco Noel Martinez was convicted of assault causing serious

bodily injury to a family member, a Class A misdemeanor. See Tex. Penal Code Ann.

§ 22.01(a)(1). Punishment was assessed by the trial court at 200 days in the Tarrant

County Jail.1


      1
       The judgment reflects in two places that punishment was assessed by the jury.
The reporter’s record, however, reflects that the State offered Martinez 200 days in
Tarrant County Jail, that he accepted the State’s offer, and that the trial court
sentenced him as follows:

      [PROSECUTOR]: I offer 200 days, Your Honor.

            THE COURT:          All right.       And that is your understanding,
      [defense counsel]?

                [DEFENSE COUNSEL]: Yes, Your Honor.

                THE COURT: And that is your understanding, Mr. Martinez?

                THE DEFENDANT: Yes, Your Honor.

            THE COURT: And that’s what you wish to do, is take that rather
      than go to a punishment hearing with the jury?

                THE DEFENDANT: Yes, Your Honor.

            THE COURT: All right. Based on that, the jury having found
      you guilty, I’ll set your punishment at 200 days in the Tarrant County
      Jail.

We have authority to correct a judgment below to make the record “speak the truth”
when we have the necessary data and information to do so. Asberry v. State, 813
S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the
judgment to reflect that the punishment was assessed by the trial court. See Hopper v.

                                             2
      Martinez raises two issues, both of which contend that the trial erred by failing

to instruct the jury that evidence of an extraneous offense could only be considered

for limited purposes. No error occurred. Evidence of the extraneous offense came

before the jury through questions asked of Martinez by his own counsel. At the time

the evidence was introduced, Martinez’s counsel did not request an instruction

limiting the purposes for which the evidence could be considered by the jury.

Further, his counsel never requested that a limiting instruction be submitted in the

charge. We affirm the judgment as modified.

                                   II. Background

      Martinez assaulted his former girlfriend, Complainant, while moving out of an

apartment that they once had shared.2 The jury heard testimony not only of the

assault that was the basis of the charge against him but also of prior instances of

Martinez’s abuse of Complainant.

      During their three-year relationship, Martinez and Complainant had one child

together. Martinez’s defensive theory centered on the contention that Complainant

had fabricated the assault allegation against him as a means of obtaining sole custody

of their child. According to Martinez’s defensive theory, Complainant falsely claimed

State, 483 S.W.3d 235, 241 (Tex. App.—Fort Worth 2016, pet. ref’d) (modifying
judgment to reflect that the trial court assessed punishment).
      2
       Martinez does not challenge the sufficiency of the evidence underlying his
conviction. Therefore, we outline only those facts necessary to give his complaints
context.


                                          3
an assault and planned to use Martinez’s arrest and incarceration to prevent him from

appearing at the hearing in Tarrant County on Complainant’s motion to obtain sole

managing conservatorship of their child.

      Martinez chose to testify. He contended that he did not learn of the assault

charge against him until he was told of it while being held in the Parker County Jail.

Apparently, to explain why he was being held in Parker County, Martinez’s counsel

solicited the following responses from him during direct examination:

      Q. How did you end up in Parker County?

             A. I was reporting for probation.

           Q. Why did you go and report for probation? Was it your
      normal time to report?

             A. Correct.

            Q. So the normal routine; you were going in to report. What
      were you on probation for?

            A. I was on probation for a controlled substance, possession of a
      controlled substance.

             Q. How long had you been on probation?

             A. For about four months.

             Q. So you had recently just got on probation.

             A. Yes, ma’am.

             Q. And you were doing your normal reporting.

             A. Yes, ma’am.


                                           4
      Q. And you reported and -- how long were you going to be
placed on probation?

      A. Three years.

      Q. You had three years of probation.

      A. Yes, ma’am.

      Q. So [Complainant] was aware of all of this?

      A. Correct.

      Q. She knew who your probation officer was?

      A. I’m not aware if she did or not.

      Q. So when you went to report for probation, what happened?

      A. They told me that I had a warrant for my arrest.

      Q. Is that the reason that you were taken into custody?

      A. Oh, no, no, no. That day I failed a UA.[3]

      Q. So they UA’d you that day, and you failed?

      A. Yes, ma’am.

      Q. And what was -- why did you fail?

      A. For amphetamines.

      Q. And why were you taking amphetamines?

     A. I was basically self-medicating because I couldn’t get my
Adderall. I didn’t have insurance at the time, so . . .


“UA” refers to a urinalysis.
3




                                   5
             Q. So you were -- you’re prescribed Adderall.

             A. Correct.

             Q. How long had you been taking Adderall?

             A. For about a year recently. Before that, ever since I was in, like,
      third grade.

             Q. Since third grade?

             A. Yeah.

      Martinez’s counsel never requested an instruction limiting the purposes for

which the jury could consider the offense for which he was placed on probation. The

State cross-examined Martinez on his theory that Complainant was “trying to pull a

fast one on [him] by having this hearing [on the child custody matter] while [he was]

in custody.” The State asked Martinez a number of questions without objection

confirming that he was on felony probation for possession of a controlled substance.

This examination drew only one objection at the time the State asked and Martinez

answered “no” to the following question: “Well, so was -- was that what caused you

to fail the drug test, was because [Complainant] was trying to have this hearing to

establish custody?” The objection was as follows: “I’m going to object to her

question. She’s -- talking about failing a drug test, the relevance of failing a drug test

[while] in [] custody prevented him from showing up to the custody hearing.”

Subsequent questions by the State to confirm that Complainant’s actions did not

cause Martinez to fail the drug test drew no objection.


                                            6
      When the parties rested and closed, the trial court asked defense counsel, “Do

you see anything in the charge?” Martinez’s counsel responded, “No.” The charge

instructed the jury that it could consider an extraneous offense committed by

Martinez only if it believed beyond a reasonable doubt that he had committed the

offense. The charge also stated: “You are further instructed that you may consider all

relevant facts and circumstances that would assist you in determining whether the

actor committed the offense of assault bodily injury -- family violence[,] including

testimony or evidence regarding the nature of the relationship between the actor and

the alleged victim.”

      During closing, the State challenged the basis of Martinez’s defensive theory

that Complainant had acted deviously in attempting to obtain custody of their child by

noting that it would be reasonable to obtain custody from a person who had assaulted

her and “who’s on felony probation in Parker County.”

      The State made a similar argument challenging Martinez’s theory by noting that

Complainant had no control over Martinez’s incarceration in Parker County: “Did

[Complainant] have any control over him being on felony probation?                Did

[Complainant] know when his drug tests were coming up? Did [Complainant] force

him to take an amphetamine to make him fail his drug test? Did [Complainant] have

any control over all of this?” The final reference to felony probation came when the

State noted that Complainant had acted reasonably in getting her child out of the

situation created by Martinez’s probation and the revocation of that probation. The

                                          7
State argued that Martinez should take responsibility for his actions. None of the

State’s arguments drew an objection from Martinez’s counsel.

                              III. Standard of Review

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id.

                            IV. Appellant’s Contentions

      Martinez sorts evidence of extraneous offenses into two categories. First, he

acknowledges that evidence of other assaults that he may have committed against

Complainant was admissible under Texas Code of Criminal Procedure article 38.371.4

But he argues that nonrelational evidence of extraneous offenses may not be used to

establish character and may be admitted only for the limited purposes found in Texas

Rule of Evidence 404(b), “such as proving motive, opportunity, intent, preparation,


      4
       Article 38.371(b) provides,

      In the prosecution of an offense described by Subsection (a), subject to
      the Texas Rules of Evidence or other applicable law, each party may
      offer testimony or other evidence of all relevant facts and circumstances
      that would assist the trier of fact in determining whether the actor
      committed the offense described by Subsection (a), including testimony
      or evidence regarding the nature of the relationship between the actor
      and the alleged victim.

Tex. Code Crim Proc. Ann. art. 38. 371(b).


                                           8
plan, knowledge, identity, absence of mistake, or lack of accident.” See Tex. R. Evid.

404(b)(1), (2).5   Martinez’s argument continues that the trial court should have

instructed the jury to limit its consideration of his felony conviction for possession of

a controlled substance and of his failure to pass the urinalysis to only those purposes

allowed under rule 404. He argues, “Without this instruction the jury in this matter

may have considered the Appellant’s drug usage and subsequent placement upon

probation for a drug[-]related felony as character conforming pattern evidence.” It

also appears to be Martinez’s argument that the trial court has an independent duty to

give such a limiting instruction so that the charge correctly states the law as required

by article 36.14 of the Texas Code of Criminal Procedure.



       Texas Rule of Evidence 404 provides,
       5



       (b) Crimes, Wrongs, or Other Acts.

              (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
              not admissible to prove a person’s character in order to show that
              on a particular occasion the person acted in accordance with the
              character.

              (2) Permitted Uses; Notice in Criminal Case. This evidence
              may be admissible for another purpose, such as proving motive,
              opportunity, intent, preparation, plan, knowledge, identity,
              absence of mistake, or lack of accident. On timely request by a
              defendant in a criminal case, the prosecutor must provide
              reasonable notice before trial that the prosecution intends to
              introduce such evidence—other than that arising in the same
              transaction—in its case-in-chief.

Tex. R. Evid. 404(b).


                                           9
  V. Martinez’s counsel did not request a limiting instruction when Martinez
   testified about an extraneous offense. Thus, the trial court did not err by
   failing to include a jury instruction describing the limitations of rule 404.

       Martinez sought no limiting instruction when his counsel solicited the

testimony that he committed an extraneous offense. At that instant, the jury could

consider the offense for whatever purpose it wished, and the trial court had no duty

to attempt to unring the bell by instructing the jury on the limitations found in rule

404.

       Martinez does not distinguish or even mention the opinion of the Texas Court

of Criminal Appeals that disposes of his claim. Hammock v. State dealt with the effect

of not requesting a limiting instruction when evidence of an extraneous offense was

first offered. 46 S.W.3d 889 (Tex. Crim App. 2001). In Hammock, the court of

criminal appeals dealt with an argument “that the trial court should have submitted an

instruction to the jury stating that evidence of previous charges and convictions could

not be considered as evidence of guilt in the instant offense.” Id. at 892.

       Hammock first cites Texas Rules of Evidence 105(a) and its provision requiring

a request for a limiting instruction: “When evidence which is admissible as to one

party or for one purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly.” Id. at 892 (emphasis added) (citing Tex. R.

Evid. 105(a)). Rule 105, in Hammock’s view, “seems to place the relevant timing for a

limiting instruction request at the moment the evidence is admitted.” Id. at 893.

                                           10
Without an immediate check on the purposes for which the jury can consider an

extraneous offense, a later charge instruction asks the jury to do the impossible and

first consider evidence for all purposes and then consider the same evidence for only

a limited purpose:

          Allowing the jury to consider evidence for all purposes and then telling
          them to consider that same evidence for a limited purpose only is asking
          a jury to do the impossible. If a limiting instruction is to be given, it
          must be when the evidence is admitted to be effective.

Id. at 894. The court of criminal appeals asked when the request for an instruction

was appropriate and indicated that the request should occur when “it was apparent

that a limiting instruction was proper.” Id. at 895.

          Here, Martinez’s counsel specifically asked him what he was on probation for.

Presumably, she knew what her client would say in response to her questions. If she

wanted to limit the purposes for which the jury could have considered the Parker

County offense, that need was apparent when she solicited the testimony from her

client.

          Hammock also disposes of Martinez’s argument that the trial court had an

independent duty to instruct the jury on the limited purposes for which an extraneous

offense may be considered under rule 404. The trial court had no duty to give a sua

sponte limiting instruction because any duty to instruct the jury could arise only if

there had been a timely request for a limiting instruction. See id. In other words,

without a timely request for a limiting instruction, an instruction never became part of


                                             11
the law applicable to the case—“a limiting instruction on the evidence was not ‘within

the law applicable to the case’”—and the trial court was not required to include a

limiting instruction in the charge to the jury under article 39.14’s requirements. See id.;

see also Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) (“[l]f a defendant

does not request a limiting instruction . . . at the time that evidence is admitted, then

the trial judge has no obligation to limit the use of that evidence later in the jury

charge.”); Scott v. State, No. 02-14-00183-CR, 2015 WL 3523155, at *5 (Tex. App.—

Fort Worth June 4, 2015, pet. ref’d) (mem. op., not designated for publication) (same);

Freeman v. State, 413 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d) (same); Taylor v. State, No. 02-11-00092-CR, 2012 WL 955383, at *7 (Tex.

App.—Fort Worth Mar. 22, 2012, no pet.) (mem. op., not designated for publication)

(same).6

      The trial court did not err by failing to give an instruction that Martinez never

requested. The trial court had no independent duty to rectify any failure by Martinez’s

      6
        Martinez’s argument relies primarily on Jones v. State, which he incorrectly
identifies as an opinion of the court of criminal appeals. 119 S.W.3d 412, 425–27
(Tex. App.—Fort Worth 2003, no pet.). Martinez cites Jones for the proposition that
including two limiting instructions in the charge on the issue of extraneous offenses is
not error. That argument begs the question. The question before us asks whether the
trial court erred by failing to submit an additional 404(b) instruction without any
attempt by Martinez to limit the purposes for which the jury could consider the
extraneous offense. Without that request, the trial court did not err by failing to
submit the additional instruction Martinez has now decided he wanted. Whether two
limiting instructions may be appropriate in some cases does not translate into error by
failing to submit two instructions when the appellant fails to lay the predicate to
obtain one of those instructions.


                                            12
counsel to request an instruction by sua sponte instructing the jury on the parameters

of rule 404. We therefore overrule Martinez’s two issues.

                                  VI. Conclusion

      Having determined that the judgment incorrectly states in two places that

punishment was assessed by the jury, we modify those two places in the judgment to

reflect that punishment was assessed by the trial court. Having overruled Martinez’s

two issues, we affirm the judgment as modified.



                                                    /s/ Dabney Bassel
                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 28, 2019




                                         13
