      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00248-CR



                               Rigoberto Martinez Jr., Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 60968, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Rigoberto Martinez, Jr., guilty of murder, see Tex. Penal Code

Ann. § 19.02(b)(1) (West 2007), and sentenced him to forty years’ imprisonment. In three issues,

Martinez argues that the trial court erred in (1) denying his request for a jury instruction on the

lesser-included offense of manslaughter; (2) overruling his Rule 403 objection to two photographs

of the victim; and (3) failing to give him the correct amount of credit for time served in the county

jail. Because we conclude that the trial court made a clerical error on the judgment, awarding

Martinez one fewer day of credit for time served than it should have, we modify the trial court’s

judgment and affirm the judgment as modified.


                                        BACKGROUND

               On the evening of January 11, 2007, Goldsin Nimnuan was at his residence in

Bell County with his next-door neighbor, Jennifer Figuera. Figuera was in the kitchen cooking
dinner. Sometime later, Martinez arrived. Martinez was from California but was temporarily in

Texas visiting his aunt and uncle and planning to help his grandmother, who was also visiting Texas,

return to California safely. Martinez’s aunt and uncle lived near Nimnuan, and his uncle and

Nimnuan were friends. His uncle took him to Nimnuan’s house on a couple of occasions, and

Martinez stopped by Nimnuan’s house by himself on another occasion. When Martinez arrived at

Nimnuan’s house on January 11, 2007, he was alone. Sometime later that evening, two more of

Nimnuan’s friends, Patrick Bennett and Elliot Mars, also arrived at the residence.

               While Figuera cooked and spent time on the computer, the four men moved between

the living room and one of the two bedrooms in the house, spending their time rolling dice and

watching parts of a movie. Some of the men, including Nimnuan and Martinez, smoked marijuana

and ingested cocaine. At about 2:00 a.m., Figuera went to sleep in the remaining bedroom. About

an hour later, Bennett and Mars left. Martinez testified at trial that after the other men left, he and

Nimnuan sat on the couch talking and watching television. Nimnuan then offered him more cocaine,

which Martinez accepted. Martinez testified that as soon as he sniffed the cocaine, he felt his nose

burn and his eyes begin to water. While he tried wiping his eyes and getting the cocaine out of his

nose, he began cursing loudly at Nimnuan, accusing him of giving him bad cocaine. He testified that

Nimnuan said many things in response, one of them being, “I wouldn’t do you like that, man.”

               Martinez testified that while he continued cursing at Nimnuan and trying to wipe his

eyes, he felt “a body get close” to him and felt himself getting hit in the face. He then felt Nimnuan

on top of him, pinning down his shoulder. He testified that he broke free from Nimnuan and then

saw Nimnuan reach for something on the floor or in the couch. The next thing he saw was Nimnuan



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rise up with a gun in his hand. Martinez pushed Nimnuan, knocking the gun out of his hand. At that

point, Martinez grabbed the gun. Nimnuan then threw a table at him and came toward him with a

knife. Martinez testified that when he saw the knife, he jumped to his left and “heard a shot go off.”

He testified that he did not realize he pulled the trigger. Nimnuan fell forward and grabbed onto the

leg of Martinez’s pants, attempting to pull himself up. Martinez tried unsuccessfully to push

Nimnuan away. He testified that when he saw that Nimnuan still had the knife, he shot him again.

He did not know how many times he shot Nimnuan, but he remembered “waving” the gun around,

pulling the trigger. Nimnuan fell to the floor, and Martinez ran out the front door.

               Figuera remained in the bedroom during the entire incident. She testified as to what

she heard. She was first awakened by the sound of an argument between Nimnuan and someone else

in the living room. She heard Nimnuan say, “You know I wouldn’t play you like that. I treated you

like family.” She also heard him say, “Where you want to handle this at? Do you want to handle

it outside?” She heard the voice of another man responding to Nimnuan, but she could not hear what

the man said. She assumed the voice of the other man was that of Martinez because she knew it was

not the voice of either Bennett or Mars, who both had strong accents. Thinking that the argument

would soon be over, she went back to sleep. A short time later, she was awakened again, this time

by the sound of gunshots. She testified that she heard four of five gunshots in quick succession,

followed by the sound of the front door creaking. As soon as she heard the gunshots, she hid

between the bed and wall in the bedroom. She had her phone with her. She was unsure of whether

the gunshots she heard were real or just part of a movie that she heard playing in the living room,

so she called Mars to find out if he was still at the house, and if so, whether he knew what was



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happening. Mars answered his phone and told Figuera that he was at home. Figuera told him that

she thought she heard gunshots, and she asked him to come back to the house. He told her he would

be there in about twenty minutes. Figuera moved into the bedroom closet to wait. At one point, she

went to the bedroom door and opened it slightly. Through the opening, she saw a beer bottle lying

on the floor, which she testified was unusual because Nimnuan would normally not leave a bottle

on the floor. She returned to the closet. A short time later, Mars called her and told her that he was

parked across the street. Figuera, too afraid to go out the bedroom door, climbed out the bedroom

window and ran across the street to Mars’s car. When Figuera and Mars noticed that Nimnuan’s

front door was left slightly open, Figuera called the police.

               Meanwhile, after Martinez fled Nimnuan’s home, he ran to the home of his aunt and

uncle. When he arrived, he went to the backyard, where he took the gun out of his sweatshirt pocket

and hid it between a chain-link fence and a piece of metal. He then removed his sweatshirt before

ringing the doorbell. His aunt let him inside the house and told him to go to his room. He went to

his room and called his brother in California to tell him what had happened. After ending the phone

call with his brother, he removed his clothes, including a pair of gloves he was wearing, and put

them in the washer. When he removed his gloves, he noticed that he had a cut on his left hand,

which stung and was bleeding. He testified that he assumed he had been stabbed by Nimnuan or had

accidentally shot himself. He took a shower, put on clean clothes, and sat in his room, looking out

the window toward Nimnuan’s house. He testified that he was looking for police or Nimnuan, who

he was not sure was dead. He fell asleep sitting on the floor and was awakened later by the sound

of police cars outside the house. After officers entered his home, he was taken out to a police car



                                                  4
while detectives searched the house and yard. Detectives found Martinez’s clothes in the washer,

his sweatshirt on a stove in the backyard, and the gun wedged against the backyard fence. Martinez’s

sweatshirt had blood on it, and detectives found a knife in one of the sweatshirt’s pockets. At trial,

Martinez admitted that the knife found in his sweatshirt belonged to him. Officers arrested Martinez.

               Nimnuan was found dead on the floor of his home. Detectives did not find a knife

at the crime scene. A medical examiner testified that Nimnuan was shot a total of four times—once

in the top of the head from a distance of one to six inches; once in the back, right shoulder from a

distance of ten inches to two feet; once in the back, left shoulder from a distance of ten inches to

two feet; and once in the lower neck from a distance further than any of the others.

               Martinez was indicted for Nimnuan’s murder. At trial, the court charged the jury on

self-defense. The jury rejected the self-defense theory and convicted Martinez of murder, sentencing

him to forty years in prison. This appeal followed.


                                          DISCUSSION

Lesser-Included Offense

               In his first issue, Martinez contends that the trial court erred in denying his request

for a jury instruction on the lesser-included offense of manslaughter. We use an abuse of discretion

standard in reviewing the trial court’s ruling on a request for a lesser-included offense instruction.

See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). A defendant is entitled to

a jury instruction on a lesser offense if (1) the offense is a lesser-included offense under




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article 37.09 of the Texas Code of Criminal Procedure,1 and (2) the record contains some evidence

that would permit a rational jury to find the defendant guilty only of the lesser-included offense. See

Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005).

                Martinez meets the first prong of the test because manslaughter is a lesser-included

offense of murder. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (West 2007); Schroeder v. State,

123 S.W.3d 398, 400 (Tex. Crim. App. 2003). However, Martinez does not meet the second prong

of the test because there is no evidence that would permit a rational jury to find him guilty only of

manslaughter. A person commits manslaughter if “he recklessly causes the death of an individual.”

See Tex. Penal Code Ann. § 19.04 (West 2007). A person acts recklessly “with respect to

circumstances surrounding his conduct or the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result

will occur.” See id. § 6.03(c) (West 2007).


       1
           Article 37.09 states:

                An offense is a lesser included offense if:

                (1) it is established by proof of the same or less than all the facts
                required to establish the commission of the offense charged;

                (2) it differs from the offense charged only in the respect that a less
                serious injury or risk of injury to the same person, property, or public
                interest suffices to establish its commission;

                (3) it differs from the offense charged only in the respect that a less
                culpable mental state suffices to establish its commission; or

                (4) it consists of an attempt to commit the offense charged or an
                otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2007).

                                                   6
               Martinez contends that his testimony that he did not intend to fire the first shot is

some evidence that he acted recklessly. That evidence, he argues, combined with his testimony that

the remaining three shots were fired in self-defense, would allow the jury to find him guilty only of

manslaughter. However, the jury was charged on self-defense, and it rejected that theory. Even if

it had not, Martinez’s testimony about the first shot is not evidence that he acted recklessly. During

direct examination, Martinez testified about firing the first shot as follows:


               Martinez:       Like I said, I was getting up at the moment. I was
                               kind of hunched over and I was standing up. And
                               when I seen the knife, I moved to my left, kind of like
                               jumped to my left a little and I just heard a shot go off.

               Defense:        Okay. Was there any other gun in the room besides
                               the one you had in your hand?

               Martinez:       No.

               Defense:        Okay. Did you intend to pull the trigger at that
                               moment?

               Martinez:       I didn’t realize that I pulled the trigger. I just heard a
                               shot go off.

               Defense:        Okay. What happened next?

               Martinez:       As soon as the shot went off, well, he kind of tumbled
                               and kind of like was falling forward.

               Defense:        Did you see whether the shot struck [Nimnuan]?

               Martinez:       No. I thought about it real fast, like you get probably
                               like a split second to think about it, but I don’t know
                               if I shot him or not.




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During cross-examination, Martinez testified again about firing the first shot:


               Prosecution:    Okay. So you move over to the left, he’s right here,
                               you’ve got a gun in your right hand. What happens
                               next?

               Martinez:       When I was getting up and I moved to my left, he got
                               closer and the gun just went off.

                                                ...

               Martinez:       When I went to my left, I was getting up, and I just
                               went like that. I just picked up my hands and it went
                               off.


               The court of criminal appeals addressed a similar situation in Schroeder v. State,

123 S.W.3d 398 (Tex. Crim. App. 2003). In that case, the defendant testified that he and his wife

were arguing and “wrestling around” with a gun when he was suddenly on top of her, things became

quiet, and he saw her eyes fluttering. Id. at 399. He testified that he must have “blacked out or

something,” and that he did not remember shooting her. Id. The court of criminal appeals held that

the defendant’s testimony was not evidence of recklessness because it did not establish that at the

time of the firing of the gun, the defendant was aware of, but consciously disregarded, a substantial

and unjustifiable risk that his wife would die as a result of his conduct. Id. at 401. Thus, the

defendant was not entitled to a charge on the lesser-included offense of manslaughter.

               In the case before us, Martinez’s own version of events establishes that he was

unaware of the result of his conduct. His testimony shows that he was incognizant of both shooting

the gun and whether the bullet struck Nimnuan. He was therefore unaware of the risk of causing

Nimnuan’s death when he pulled the trigger the first time. Like the court of criminal appeals stated

                                                 8
in Schroeder, “it is difficult to understand how a person may ‘consciously disregard’ a risk of which

he is unaware.” Id. Thus, Martinez’s testimony about firing the first shot does not establish that he

acted recklessly and cannot support a charge on the lesser-included offense of manslaughter. Id.

Accordingly, we conclude that the trial court did not abuse its discretion in refusing to submit an

instruction on manslaughter, and we overrule Martinez’s first issue.


Photographs of Victim

               In his second issue, Martinez contends that the trial court erred in overruling his

objection to the admission of two photographs of the victim. Specifically, Martinez argues that the

prejudicial effect of the photographs substantially outweighs their probative value. The photos of

which Martinez complains are State’s Exhibits 23 and 24, which are close-up photos of Nimnuan

taken at the crime scene. We use an abuse of discretion standard in reviewing a trial court’s decision

to admit or exclude evidence.2 Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). The

trial court abuses its discretion only when its decision lies outside the “zone of reasonable

disagreement.” Id.

               Martinez bases his argument on Rule 403 of the Texas Rules of Evidence, which

states that relevant evidence may be excluded if its probative value is substantially outweighed by


       2
          Martinez contends that because the trial court did not give its reasoning for overruling his
objection to the photos, we should use a de novo standard of review in our Rule 403 analysis. We
disagree. First, Martinez does not cite to any legal authority in support of his position. See Tex. R.
App. P. 38.1(h) (requiring appropriate citations to authorities). Second, a trial judge is not required
to place any findings or conclusions into the record when engaging in a Rule 403 analysis, nor did
Martinez request that the court do so. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
App. 1997). Rather, once Rule 403 is invoked, a trial judge is presumed to engage in the required
balancing test. Id. at 195-96. Accordingly, we reject Martinez’s argument.

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the danger of unfair prejudice. See Tex. R. Evid. 403. Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than prejudicial.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). A Rule 403 analysis should

include, but is not limited to, the following four factors: (1) the probative value of the evidence;

(2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible

way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the

evidence. Id.

                When Rule 403 is raised in the context of photographs, we should consider several

factors, including, but not limited to, the following: (1) the number of photographs; (2) the size of

the photograph; (3) whether it is in color or black and white; (4) the detail shown in the photograph;

(5) whether the photograph is gruesome; (6) whether the body is naked or clothed; and (7) whether

the body has been altered since the crime in some way that might enhance the gruesomeness of the

photograph to the appellant’s detriment. Id.

                Exhibits 23 and 24 were identified by Heath Crum, the police officer who took the

photos. Crum testified that the photos fairly and accurately represented the crime scene as it looked

when officers arrived. Exhibit 23 is a close-up photo of Nimnuan’s chest, face, and left arm. The

photo depicts a bullet wound in Nimnuan’s neck, blood on the floor behind his head, and blood on

his neck and shoulder. Exhibit 24 is a close-up photo of the right side of Nimnuan’s head, neck, and

shoulder. It depicts a bloody wound to his head, blood on the floor behind his head, and blood on

his neck and shoulder.

                After reviewing the photos, we conclude that the Rule 403 factors weigh in favor of

admissibility. First, the photos have substantial probative value. They are probative of the crime

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scene and the injuries received by Nimnuan, see Shuffield, 189 S.W.3d at 788, and they are also

probative of the State’s theory that Martinez’s actions were intentional and not done in self-defense.

In the State’s closing argument, the prosecutor argued that Martinez’s self-defense claim was not

credible based on several details shown in the photos, including where Nimnuan’s body was found,

the direction the blood ran from his wounds, the cut on his head, and the location of the bullet

wounds. Second, the photographs had very little potential to impress the jury in an irrational way

because they are not overly gruesome. See id. at 787-88 (close-up photos of shotgun blasts to

victim’s head and face not overly gruesome). Third, the State took very little time in developing the

photos. The testimony about the photos consists of less than one page out of three volumes of trial

testimony. Fourth, the State needed the photos because there were no other close-up, crime-scene

photos of Nimnuan’s wounds and the blood pattern from the wounds.

               In addition to the general Rule 403 factors, the factors relating to photographs in

particular also weigh in favor of admissibility. The first factor, the number of photos offered, weighs

in favor of admissibility because there are only two photos, both of which are the only photos of their

kind. Although the State offered several other photos of the crime scene that included Nimnuan’s

body, none of them were close-up photos of Nimnuan’s wounds. Regarding the second and third

factors—the size of the photos and whether they are in color or black and white—we note that the

photos in the record appear to be black-and-white copies of the originals and are approximately eight

by eleven inches. We assume that the original photos were in color. Although the second and third

factors do not weigh in favor of admissibility, they do not render the photos inadmissible. See id.

at 787-88 (upholding admission of color photos of bullet wounds to victim’s head and face);



                                                  11
Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997) (upholding admission of eight-by-

ten-inch photos depicting multiple stab wounds to victim’s body). The fourth factor, whether the

photos are gruesome, also weighs in favor of admissibility. The photos show blood on Nimnuan’s

neck, shoulder, and behind his head. One of the photos depicts a wound in Nimnuan’s neck, and the

other photo shows a bloody wound near the top of his head. Although the photos are somewhat

gruesome, they are no more gruesome than the facts of the offense itself. See Williams, 958 S.W.2d

at 196. The fifth and sixth factors—whether the body in the photo is naked or clothed and whether

the body was altered after the crime—further weigh in favor of admissibility. Nimnuan is clothed

in both photos, and there is nothing in the record to suggest that his body was altered after the crime.

               Considering all of the relevant factors, we conclude that the trial court did not abuse

its discretion in determining that the probative value of the photos was not substantially outweighed

by the danger of unfair prejudice. Accordingly, we overrule Martinez’s second issue.


Credit for Time Served

               In his third issue, Martinez argues that the trial court erred in failing to award him the

correct amount of credit toward his sentence for the time he had already served in the county jail.

The record shows that Martinez was arrested for Nimnuan’s murder on January 12, 2007, and that

his sentence was imposed on March 28, 2008. The judgment credited Martinez for time served from

January 13, 2007 to March 28, 2008. The same day the judgment was entered, the trial judge signed

a document filed by Martinez titled, “Defendant’s Request for Jail Time Credit,” which claimed

credit for January 12, 2007 through March 28, 2008. The record makes it clear that Martinez was

entitled to credit for time served from January 12, 2007 through March 28, 2008. Thus, the trial


                                                  12
court made an apparent clerical error in the judgment in awarding Martinez credit for one fewer day

than he was entitled. Accordingly, we modify the trial court’s judgment to award credit starting from

January 12, 2007, rather than January 13, 2007.


                                         CONCLUSION

                  Because we hold that the trial court did not abuse its discretion either in denying

Martinez’s request for a jury instruction on the lesser-included offense of manslaughter or in

overruling his Rule 403 objection to two photographs of the victim, and because we find an error in

the judgment with regard to the credit awarded to Martinez for time served, we modify the

trial court’s judgment to award credit for time served starting on January 12, 2007, rather than

January 13, 2007, and we affirm the trial court’s judgment as modified. See Tex. R. App. P. 43.2(b).




                                             ___________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Modified and, as Modified, Affirmed

Filed: April 3, 2009

Do Not Publish




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