Oliver Q. Martinez v. The State of Texas

Houston, Texas – Criminal Defense lawyer represented defendant charged with aggravated assault of a public servant.

Around midnight on July 14, 2016, Sergeant I. Hernandez of the Houston

Police Department responded to a kidnapping report. Martinez was the suspect. The

vehicle, a Lexus, reportedly involved in the kidnapping was located at a Houston

motel. Sergeant Hernandez and eight other police officers went to the motel where

they found the Lexus parked in front of Room 134. Sergeant Hernandez spoke with

motel management and determined that someone matching Martinez's description

was in Room 134. Sergeant Hernandez and two other officers made a tactical

approach, standing to the side of the room's door. The other officers took cover

behind nearby parked cars. Sergeant Hernandez knocked on the door and announced

that they were Houston police officers.

At trial, Sergeant Hernandez testified that he then heard the sound of a rifle

"racking,” meaning that he heard the sound of a round being put "into the chamber

of the weapon.” The officers "immediately began to take fire from [Martinez].”

Sergeant Hernandez and the other officers jumped back for safety. Sergeant

Hernandez called for backup, including a SWAT team. Sergeant Hernandez testified

that Martinez continued to fire "indiscriminately” at the officers. Sergeant

3

Hernandez and the other officers stood behind vehicles in the parking lot as Martinez

continued to shoot at them. Sergeant Hernandez could hear rounds hitting the

vehicles and going over his head.

Martinez continued shooting sporadically at the officers for over an hour and

a half. The officers never returned fire. Ultimately, the SWAT team took Martinez

into custody. Investigators determined that Martinez had fired 105 rounds at the

officers, using both an AK-47 rifle, from which 90 rounds were fired, and a 9-

millimeter handgun, from which 15 rounds were fired.

Martinez was charged with the offense of aggravated assault of a public

servant. The indictment alleged that, on July 14, 2016, Martinez had "unlawfully,

intentionally and knowingly threatened [Sergeant Hernandez] with imminent bodily

injury . . . while [Sergeant Hernandez] was lawfully discharging an official duty, by

using and exhibiting a deadly weapon, namely A FIREARM, knowing that [Sergeant

Hernandez] was a public servant.” The indictment also included two enhancement

paragraphs.

The jury found Martinez guilty of the charged offense of aggravated assault

of a public servant. The trial court ruled that the enhancement allegations in the

second paragraph would not be submitted to the jury. Martinez pleaded "not true” to

the enhancement allegations in the first paragraph, which alleged that, before the

4

commission of the primary offense, Martinez had been convicted of the felony

offense of aggravated assault on March 20, 1998.

To prove the enhancement allegations in the first paragraph, the State offered

into evidence a pen packet, authenticated by a custodian of records for the Texas

Department of Criminal Justice. The pen packet contained (1) a judgment of

conviction, dated March 20, 1998, reflecting that Oliver Martinez had been

convicted of the offense of aggravated robbery, (2) photographs of Martinez, and (3)

a card with Martinez's fingerprints.

During the punishment phase, the State called fingerprint identification expert

Deputy D. Medina of the Harris County Sherriff's Office. She testified that, earlier

that day, she had taken Martinez's fingerprints to use as a comparison. Deputy

Medina stated that she had compared those fingerprints with the fingerprints on the

card in the pen packet for the 1998 aggravated-assault conviction. She testified that

the fingerprints that she had taken from Martinez matched the fingerprints on the

card in the pen packet.

Although not used for enhancement purposes, Deputy Medina also testified

that the fingerprints that she had obtained from Martinez matched the fingerprints

from other criminal cases in which Martinez had been convicted. Deputy Medina

testified that Martinez's fingerprints matched prints from another pen packet for a

conviction for the offense of felon in possession of a weapon. Martinez's fingerprint

5

also matched the fingerprint on a judgment of conviction for the felony offense of

organized crime. And Deputy Medina testified that Martinez's fingerprint matched

the print on two separate judgments of conviction reflecting that Martinez had been

twice convicted of the offense of assault of a family member.

The jury was instructed that, if it found the allegations in the first enhancement

paragraph to be true, it would then assess Martinez's punishment at confinement in

prison for not less than 15 years nor more than 99 years or life, and it could also

assess a fine of up to $10,000. See TEX. PENAL CODE § 12.42(c)(1) (providing that

punishment range for first-degree felony enhanced by prior felony conviction is life

imprisonment or any term between 15 and 99 years plus maximum $10,000 fine);

id. § 22.02(b)(2)(B) (stating that aggravated assault of public servant is first-degree

felony). After finding the allegations in the first enhancement paragraph to be true,

the jury assessed Martinez's punishment at life in prison and a $10,000 fine. This

appeal followed.

Sufficiency of the Evidence

In one issue, Martinez challenges the sufficiency of the evidence to support

the jury's finding of true for the allegations in the first enhancement paragraph,

which alleged that Martinez had been convicted of the felony offense of aggravated

assault on March 20, 1998.

6

A. Standard of Review

"To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex.

Crim. App. 2007). "No specific document or mode of proof is required to prove

these two elements.” Id. To review the sufficiency of the evidence linking a

defendant to a prior conviction used for enhancement purposes, an appellate court

considers all the evidence in the light most favorable to the factfinder's finding and

determines whether a rational trier of fact could have found the essential elements

beyond a reasonable doubt. Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim. App.

2016).

B. Analysis

Prima facie proof of a prior conviction is made by the introduction of the prior

judgment and sentence. Davy v. State, 525 S.W.3d 745, 752 (Tex. App.—Amarillo

2017, pet. ref'd) (citing Johnson v. State, 583 S.W.2d 399, 403 (Tex. Crim. App.

1979)). The State may prove the existence of a prior conviction with a certified

judgment and sentence or any document that is the functional equivalent of the

judgment and sentence. See Martin v. State, 227 S.W.3d 335, 337 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). To be used for enhancement purposes, the prior

conviction must be a conviction that became final before the date of the commission

7

of the primary offense. See Russell v. State, 790 S.W.2d 655, 657 (Tex. Crim. App.

1990); see also TEX. PENAL CODE § 12.42(c)(1) (enhancing punishment for firstdegree felony if accused has been finally convicted of non-state-jail felony).

Here, the State's evidence included a pen packet authenticated by a custodianof-records affidavit for the Texas Department of Criminal Justice. The affidavit

stated that "true and correct copies of information provided on inmate MARTINEZ,

OLIVER” were attached. Attached to the affidavit were (1) a prior judgment of

conviction naming "Oliver Martinez” as the defendant, (2) photographs of Martinez,

and (3) a fingerprint card. The judgment, from the 351st District Court of Harris

County, was signed on March 20, 1998. It reflected that Martinez was convicted of

the offense of aggravated assault. Under the heading "Terms of the Plea Bargain,”

the judgment stated, "4 year[s] TDCJ-ID,” and it reflected that the punishment

imposed on Martinez was four years in prison.

Martinez does not dispute that the State offered sufficient evidence to prove

the existence of the 1998 conviction. Instead, Martinez disputes whether the State

offered sufficient evidence to prove that the 1998 conviction was a final conviction.

Martinez recognizes that the 1998 conviction resulted from a plea bargain with the

State, but he asserts that "it is unclear if there was an agreed recommendation by the

State at the time of the plea or whether [he] had the right to appeal this conviction.”

8

Martinez also asserts that none of the State's evidence indicates whether he appealed

the prior conviction.

Once the State adduces prima facie proof of an enhancement conviction, the

finality of the prior conviction is presumed if the record is silent regarding finality.

Davy, 525 S.W.3d at 752 (citing Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App.

2007)). At that point, the defendant assumes the burden of proving the prior

conviction was not final. Id.; see Ashley v. State, 527 S.W.2d 302, 305 (Tex. Crim.

App. 1975) ("[W]hen a conviction appears to be final on its face, the burden of

showing the same to be not final is on the defendant.”).

Here, the State offered sufficient evidence to prove the existence of the 1998

conviction, and the record is otherwise silent regarding finality. That is, the evidence

adduced did not raise a question about a lack of finality. For instance, nothing in the

record indicates that Martinez appealed the 1998 conviction. Cf. Tate v. State, 414

S.W.3d 260, 265 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Thus, Martinez's

March 20, 1998 conviction for aggravated assault is presumed to be final, and

Martinez did not rebut that presumption. See Davy, 525 S.W.3d at 752.

The State was also required to link the 1998 conviction to Martinez. The State

may establish a link between a defendant and the prior conviction by offering expert

testimony connecting the fingerprints from the documentary evidence of the prior

conviction with the defendant's known fingerprints. See Banks v. State, 158 S.W.3d

9

649, 652 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd); Fontenot v. State, 704

S.W.2d 126, 127 (Tex. App.—Houston [1st Dist.] 1986, no pet.).

Fingerprint expert Deputy Medina testified that the fingerprints she obtained

from Martinez earlier that day matched the fingerprints in the pen packet for the

1998 aggravated-assault conviction. She stated that the two sets of fingerprints were

the "same” and that the fingerprints in the pen packet belonged to Martinez—the

defendant in this case. The pen packet also contained two photographs of Martinez,

comprised of a front- and side-view of his face. See Littles v. State, 726 S.W.2d 26,

32 (Tex. Crim. App. 1987) (op. on reh'g) (holding that combination of expert

testimony concerning fingerprint comparison and photographs in pen packet from

earlier conviction, which jury could use for comparison to appellant, was sufficient

evidence to show link between appellant and earlier conviction).

Viewing the evidence in the light most favorable to the jury's findings, we

conclude that a rational trier of fact could have found the allegations in the first

enhancement paragraph to be true beyond a reasonable doubt. Accordingly, we hold

that the evidence was sufficient to support the jury's finding of true.

We overrule Martinez's sole issue.

Modification of Judgment

Martinez also contends that the trial court's judgment should be modified to

correct several non-reversible errors in the judgment. We agree.

10

The judgment incorrectly states that Martinez pleaded true to the first

enhancement paragraph when the record shows that he pleaded not true. The

judgment also incorrectly states that Martinez pleaded true to the second

enhancement paragraph and that the jury found the second enhancement paragraph

to be true. But the record reflects that Martinez did not enter a plea to the second

enhancement paragraph and that the jury did not make a finding for that paragraph

because the trial court did not permit the second enhancement paragraph to be

submitted to the jury. Finally, the judgment incorrectly reflects that the trial court

assessed Martinez's punishment when the record shows that his punishment was

assessed by the jury.

We have the authority to modify a judgment to make the record speak the truth

when we have the necessary information before us to do so. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App. 1993); Nolan v. State,

39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Accordingly,

we modify the trial court's judgment to reflect (1) that Martinez pleaded not true to

the first enhancement paragraph; (2) that Martinez's plea and the finding on the

second enhancement paragraph are not applicable; and (3) that the jury assessed

Martinez's punishment.

As modified, we affirm the judgment of the trial court.