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Date: 03-06-2020

Case Style:

David Richardo Martinez v. The State of Texas

Case Number: 05-18-01107-CR

Judge: Cory L. Carlyle

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Kimberly Duncan
John Creuzot

Defendant's Attorney:

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Brothers Ismael and Daniel Mendez went together to Lupita’s Café in Dallas
on the evening of November 16, 2016. Appellant David Martinez, his common-law
wife, Adriana Ortega, Martinez’s friend, Silvino Arevalo, and Ortega’s friend
Tanisha Macias, were also at Lupita’s that night. According to Daniel, Macias
approached the brothers while they were playing pool, began flirting with Ismael,
and asked the brothers if they wanted “to have a good time.”1 Although the brothers
told her they were just there to play pool, Macias continued to interact with them.
And soon she began demanding they give her money and buy her drinks to
compensate her for her time. When the brothers refused, she became belligerent, and
the brothers decided to leave.
Footage from Lupita’s security cameras, which was admitted into evidence at
Martinez’s trial, showed that as the brothers were leaving, Macias followed and
appeared to hit the back of Ismael’s head with a bottle. That prompted Lupita’s
security guard to kick Macias out of the establishment. Macias refused to leave, so
the security guard began forcibly dragging her outside as Ismael watched briefly
with amusement before he and Daniel walked briskly to Daniel’s car. Once outside,
Macias got up and punched the security guard in the face. The security guard began
spraying her with mace, at which point Ortega also began fighting with the security
1 A police officer testified at trial that Macias’s cell phone was associated with an internet advertisement for prostitution.
guard. Martinez and Arevalo soon exited Lupita’s, and Martinez briefly restrained
the security guard, while Arevalo helped Macias to her feet, and all four began
walking toward a black Chrysler 300.
Meanwhile, the Mendez brothers were driving through the parking lot in
Daniel’s white Chrysler 300. Daniel drove slowly past the exit to Lupita’s, just as
Martinez was restraining the security guard, and Ismael (who was in the passenger
seat) opened the passenger door. It is unclear what, if anything, Ismael said as they
drove by, but the security guard testified the Mendez brothers “were making fun of
the girls for getting kicked out” as they left. In any event, the Mendez brothers
continued driving through the parking lot, turned left onto Oates Drive, and then
turned right onto Ferguson Road. Less than half a minute later, a black Chrysler 300
was seen turning onto Ferguson Road in the same direction as the Mendez brothers.
According to Lupita’s security footage, Ortega and Macias were in the back seat of
that black car, while Arevalo was in the front passenger seat, and Martinez was
According to Daniel, he stopped at a stoplight at the intersection of Ferguson
and Gus Thomasson Road shortly after leaving Lupita’s. A car pulled up next to
them, and the passenger in the front seat began shooting at them from the window.
Daniel said the bullets went through his window and barely missed his head. Ismael
told him to drive, so he took off. He drove fast because they were being shot at, and
he did not stop until they crashed into another car in Garland, near the intersection
of Broadway Boulevard and Centerville Road.
About this time, Ismael dialed 911 from his cellphone, which ultimately was
found on the floorboard of Daniel’s car. Daniel asked Ismael if he was okay. Ismael
said he was, but both were soon pulled from the car. According to Daniel,
Martinez—whom he identified at the trial—pulled him out, put a gun to his head,
and demanded the gold chains Daniel was wearing. Security footage from Lupita’s
confirms Daniel was in fact wearing gold chains that night. Daniel said he gave him
the jewelry, after which Martinez hit him in the back of the head with his gun.
Ismael suffered a worse fate. According to Daniel, Ismael was pulled out of
the car by Arevalo at the same time he was being pulled out by Martinez. Arevalo
shot Ismael in the head, and Martinez and Arevalo fled the scene. Ismael died in
Daniel’s arms.
A recording of the 911 call from Ismael’s phone was admitted into evidence
at the trial, along with the following transcript:
 “Keep going” 00:01  Male screaming 00:04  “Get out” 00:05  “You alright?” 00:19 “Yea Im okay” 00:20 “yuh…” inaudible 00:21  Male voice screaming 00:25  “aight . . .”  “Youre dead B” 00:35  “Give me that money” 00:38  “hurry up Ill beat yo ass” 00:40  “hurry up ho” 00:42
 “Give me that bread . . .” 00:43  Gunshot 00:46-00:47  “yea wassup” 00:50  Male screaming 1:00 “oh my God”  Male screaming “Please don’t do this” 1:17  Male screaming “No” and “Please don’t do this” back and forth repeatedly  Car in background driving off 1:25  Male screaming “Nooooo” 1:38  “Please don’t die!” 1:39  “Please don’t do this to me” 1:51  Male sobbing

Daniel, who is employed as an armored service technician,2 carries a gun at
work and keeps a separate gun in his car.3 But he testified he did not use his gun that
night because it would not have helped. According to Daniel, his gun remained
unloaded in his glove compartment throughout the encounter with Martinez and
Multiple eyewitnesses testified about the accident and its aftermath. The
driver of the car Daniel crashed into said she saw a black car pull up behind Daniel’s
car. She saw two people get out of the black car and run toward Daniel’s car. As she
started to walk over to Daniel’s car to gather insurance information, she heard two
gunshots coming from the area near the black car. She turned away and ran to a
nearby store to call the police.
2 According to Daniel, he picks up money from banks and works on ATM machines. 3 He testified he carries a Glock 9 at work, but that gun was at home on the night of the murder. An empty plastic gun case for a Glock 9 was found in Daniel’s trunk.
Another witness testified she was on her way to buy cigarettes when she heard
the crash. In her rearview mirror, she saw a black car pull up behind Daniel’s car.
Two men got out of the black car. One moved quickly to the driver’s side of Daniel’s
car while the other went to the passenger side. She said she heard two or three
gunshots, saw the two men jump back into the black car, and then saw the black car
speed off.
A third eyewitness said she heard the crash from her nearby apartment. She
looked outside and saw a black car parked near Daniel’s car. She saw two men who
looked Hispanic get out of the black car, and then she heard two gunshots. The two
men got back into the black car and drove away.
In addition to Ismael, several people called 911 about the events of that night.
One caller said there were two or three vehicles shooting at each other. Another
caller said he witnessed the shooting and followed the suspect’s dark vehicle for
some time before eventually losing sight.
Police responding to the scene took photographs showing among other things:
(1) bullet defects in the rear bumper, trunk, drivers-side rear door, and passenger
side front door of Daniel’s car; (2) an unfired .40-caliber round found under a floor
mat in Daniel’s car; (3) Daniel’s .40-caliber Smith & Wesson pistol, which was
unloaded and in the glove compartment of his car; (4) Ismael’s body, which was
lying outside the passenger-side front door of Daniel’s car; and (5) Daniel, who was
missing the gold chains he was wearing at Lupita’s. In addition, police found a bullet
fragment lodged in the seat of Daniel’s car.
In the initial aftermath of the murder, Daniel could not identify any suspects.
But based on security footage from Lupita’s, information from witnesses, footage
from other cameras showing the suspect vehicle following Daniel’s vehicle shortly
before the crash, and information obtained from Macias’s cellphone (which she
apparently dropped in the parking lot during her confrontation with the security
guard), detectives were able to identify Martinez, Arevalo, Ortega, and Macias as
the occupants of the black Chrysler 300 that left Lupita’s traveling in the same
direction as the Mendez brothers.
Based on data obtained from Martinez’s cellphone provider, detectives were
able to track the general location of Martinez’s cellphone on the night of the murder.
Detectives testified that Martinez’s phone connected to a tower in the general
vicinity of Lupita’s before the murder, that it “followed the basic route to the crash
site” and “the scene of the murder,” and that it ended up near Martinez’s residence.
Police arrested Martinez, Ortega, and Macias together, and Arevalo was
arrested at a different location. Search warrants were issued for both Martinez’s
car—which was a black Chrysler 300c—and his residence. The searches were
conducted approximately a week after the murder. In Martinez’s car, police found
boots appearing to match those worn by Macias at Lupita’s on the night of the
murder. And their search of Martinez’s residence yielded, among other things, two
guns and a variety of ammunition. More specifically, police found a Springfield
pistol and a Zastava “AK-type” gun. The Zastava was found on top of a black
bandanna suspended under a coffee table. Although it was loaded and accessible, a
police officer testified the Zastava “appeared to be for kind of a display purposes in
a lot of ways” and “was kind of something that you would think of as collectible for
them.” Police also found drugs at Martinez’s house.
Martinez was indicted for capital murder in the course of a robbery. At a July
2018 pretrial hearing on the State’s motion to pre-admit evidence, the trial court
admitted for all purposes two photos showing the guns found at Martinez’s
residence. Martinez subsequently filed a pretrial motion in limine seeking to limit
any trial references to the guns and drugs found at his residence, arguing that such
references would be irrelevant under Texas Rule of Evidence 402 and unfairly
prejudicial under Rule 403. And when the State sought to introduce additional
photographs of the guns at trial, in the course of witness testimony concerning the
search of Martinez’s residence, Martinez objected, and the following bench
conference was held on the record (with emphasis added):
[DEFENSE COUNSEL]: Motion in limine, talking about the

THE COURT: Okay. We talked about the fact that they’re going to be able to ascertain that the gun was the firearm that was used.

[DEFENSE COUNSEL]: Well, I think the motion in limine for the firearms that were found in the house, result to it being prejudicial because they’re not the firearm that was used.

THE COURT: That was not what I said. What I said was -- you said it was guns and drugs and stuff.


THE COURT: I said the guns were prejudicial and had no probative value. With regard to the gun, they should be able to get into the fact they looked for the murder weapon and did not find a murder weapon. And the way they ascertained that was because they searched the house.

[DEFENSE COUNSEL]: What if we stipulated there was a search for the murder weapon, because that’s the point they want to make.

[STATE COUNSEL]: We’re allowed to present our case however we want.

It is unclear whether the record accurately reflects what was said during that
exchange. Based on context, it seems highly likely the trial court either said or
intended to say the drugs “were prejudicial and had no probative value.” In any
event, the trial court overruled Martinez’s objections, admitted the photographs for
all purposes, and allowed the State to publish the photographs while questioning its
witness concerning the search of Martinez’s residence. The State asked its witness
to look through the pictures and describe the various items found at Martinez’s
home. Notably, the State did not ask many follow-up questions about the items found
in the home until it got to the photograph of the Zastava “AK-type” gun:
Q. All right. Based on your training and experience as a police officer, what kind of weapon is this?

A. Well, it’s a -- I would consider it a rifle, but it’s not as a traditional rifle would shooting a rifle [r]ound. But it’s dealt to be a pistol grip weapon, some would consider maybe a pistol but it’s more of a rifle, shooting a rifle ammunition.

Q. Is it an automatic or semi-automatic?

A. It’s a semi-automatic.

Q. Okay. What does that mean when you say semi-automatic?

A. That means you have to pull the trigger every time for it to discharge and an automatic weapon, there’s a selector switch typically on those weapons. So you can switch from automatic to semiautomatic. And automatic -- once you press the trigger once, it will just continue to fire at a very rapid rate. And a semi-automatic, which most weapons are, you have to pull the trigger each time for it to fire a round.

Q. What do we see at the top of this rifle?

A. That’s the magazine after we had taken it out to see if it was loaded.

Q. And was it loaded?

A. It was.

THE COURT: Can I see the attorneys? (Bench conference held off the record.)

After the bench conference, the State moved on to its next exhibit—the
Springfield pistol. The State asked no follow-up questions about the pistol. Although
another State witness later testified neither of the guns fired the bullet fragment
found lodged in the seat of Daniel’s car,4 the State did not elicit any other testimony
4 Defense counsel renewed its 403 objection during the witness’s testimony, contenting the guns were irrelevant and intended to inflame the jury.
concerning its efforts to locate the murder weapon. In fact, we note that the State
presented no testimony concerning any efforts it took to search for weapons at
Arevalo’s residence, despite the fact that the State acknowledged he was the shooter.
Moreover, the State elicited no testimony concerning whether either of the guns
found at Martinez’s residence could have been the one Martinez allegedly used to
rob Daniel.
Although the State did not refer to the guns during its closing argument, it
appears the photographs of the guns may have been visible to jurors during that
closing, based on Martinez’s closing argument:
The first thing I’d like to do is just address these right here. I came in this morning, and I saw them all laying out here, and I knew they had nothing to do with [the witness] who was on the stand today. And that just reminded me of, wow, they’re here, why those three guns are there. So I’d like to tell you [what] y’all need to know about those guns.

Martinez’s counsel went on to urge jurors to ignore the guns found at Martinez’s
home and focus instead on the gun found in Daniel’s glove compartment, which he
theorized the Mendez brothers used to shoot at Martinez’s car. Counsel did not deny
that Martinez drove the car that pursued Daniel and Ismael. But he contended
Arevalo acted alone when he shot Ismael, and the evidence was not strong enough
to hold Martinez responsible for the murder as a party or conspirator.
The jury disagreed, finding Martinez guilty of capital murder, and the trial
court gave him a mandatory sentence of life without the possibility of parole.
Martinez appeals, contending the trial court abused its discretion by overruling his
objection to the photographs and corresponding testimony concerning the guns
found at his residence.
Standards of Review
We review a trial court’s ruling on an objection under Rule 403 for abuse of
discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial
court abuses its discretion when it acts arbitrarily or unreasonably. Id. Accordingly,
we will “not reverse a trial judge whose ruling was within the zone of reasonable
disagreement.” Id.
Admitting evidence in violation of Rule 403 is a non-constitutional error that
is considered harmless as long as it does not affect substantial rights. See TEX. R.
APP. P. 44.2; Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002) (holding
that any error in admitting photograph that may have been unfairly prejudicial under
Rule 403 was harmless). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.”
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). We consider
everything in the record when assessing the likelihood that the jury’s decision was
adversely affected by such an error, including “testimony, physical evidence, jury
instructions, the State’s theories and any defensive theories, closing arguments, and
voir dire, if applicable.” Id. “Important factors include the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case, and may include whether
the State emphasized the error and whether overwhelming evidence of guilt was
present.” Id. Ultimately, we will not reverse “if, after examining the record as a
whole, we have a fair assurance that [the error] did not influence the jury, or
influenced [it] only slightly.” Hayes, 85 S.W.3d at 816.
Although it was unfairly prejudicial to admit photographs of the guns while informing the jury that they were found at Martinez’s residence, the error was harmless.

In a single issue, Martinez contends the trial court abused its discretion by
overruling his objection under Rule 403, because the probative value of the evidence
concerning the guns found at his residence was outweighed by its potential for unfair
prejudice. We agree.
Although relevant evidence is presumptively admissible, Rule 403 provides
that relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
To evaluate Martinez’s objection, the trial court was thus required to
balance (1) the inherent probative force of the proffered [evidence] along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
In this context, the phrase “probative value” means more than relevance; it
“refers to the inherent probative force of an item of evidence—that is, how strongly
it serves to make more or less probable the existence of a fact of consequence to the
litigation—coupled with the proponent’s need for that item of evidence.” Id. at 641.
If the proponent of the evidence “has other compelling or undisputed evidence to
establish the proposition or fact that the item of evidence goes to prove, the probative
value of the item of evidence will weigh far less than it otherwise might in the
probative-versus-prejudicial balance.” Id.
The phrase “unfair prejudice” in this context means “a tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
one.” Id. For example, evidence that “arouses the jury’s hostility or sympathy for
one side without regard to the logical probative force of the evidence” may be
unfairly prejudicial. Id.
Here, in response to Martinez’s objection, the State did not explain why the
photographs of the guns—in combination with testimony explaining that they were
found during a search of Martinez’s residence—were probative with respect to any
issue of consequence in the trial. When Martinez offered to stipulate that the State
conducted a thorough search for the murder weapon, the State responded: “We’re
allowed to present our case however we want.”
The State is generally “entitled to prove its case free from any defendant’s
option to stipulate the evidence away,” the State is nevertheless restrained by Rule
403’s restriction on unfairly prejudicial evidence, and a defendant’s offer to stipulate
to facts can be relevant to the Rule 403 analysis. Old Chief v. United States, 519 U.S.
172, 189–192 (1997); see also Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App.
2000) (“[A] defendant’s stipulation to a previous conviction should suffice when it
carries the same evidentiary value as the judgments of prior convictions, yet
substantially lessons the likelihood that the jury will improperly focus on the
previous conviction or the defendant’s ‘bad character.’”). Thus, saying, “We’re
allowed to present our case however we want,” is (at best) an incomplete answer to
whether evidence should be admitted over an objection under Rule 403.
Nevertheless, in overruling Martinez’s objection under Rule 403, the trial
court alluded to previous discussions suggesting the evidence was introduced to
establish that the State searched for the murder weapon. The fact that police may
have searched for the murder weapon, however, was neither a necessary nor
contested issue at the trial. And even if it were, there were many ways the State could
have demonstrated a thorough search for the murder weapon without presenting
photographic evidence of guns that had no apparent connection to the crime for
which Martinez was charged.
If the murder weapon had been located at Martinez’s house, then evidence of
that fact would likely be probative, because it would tend to connect Martinez to the
crime. But the State did not even hint to the trial court that the guns found at
Martinez’s residence—and particularly the “AK-Type” rifle—could have been
connected to the crime.5 In fact, the trial court appeared to allow the evidence for the
sole purpose of showing the State had determined, in its search for the murder
weapon, that the guns were not involved in the shooting.
And the evidence had obvious potential for unfair prejudice. In a case where
Martinez was accused of participating in an armed robbery and murder, showing
jurors images of a loaded “AK-Type” rifle, while telling them Martinez displayed
that rifle prominently in his home, invited jurors to draw conclusions about
Martinez’s character that could improperly influence their decision about Martinez’s
participation in Ismael’s murder.
We thus conclude both that the evidence had only negligible probative force
on the issue for which it was offered—to prove the State searched for the weapon it
contended Arevalo used to kill Ismael—and that the State did not need to introduce
5 The State argues for the first time on appeal that the evidence was also probative because multiple gunshots were fired at Daniel’s car, and Daniel testified Martinez used a gun to rob him; thus, the evidence shows Martinez “had access to firearms that could have been involved in the offense.” As the State points out, we can affirm on any legal theory applicable to the case and supported by the record, even if it was not raised below. See Calloway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988) (“If the decision is correct on any theory of law applicable to the case it will not be disturbed.”). But we will not affirm on a theory first raised on appeal if the appellant was not fairly called upon to develop the factual record on which the issue turns. See State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013) (“If the alternative legal theory that an appellee proffers for the first time on appeal as a basis to affirm a trial court’s otherwise faulty judgment turns upon the production of predicate facts by the appellant that he was never fairly called upon to adduce during the course of the proceedings below, then application of the Calloway rule to affirm that otherwise faulty judgment works a manifest injustice. An appellee’s alternative legal theory should not be considered ‘law applicable to the case’ under these circumstances, and this is so regardless of whether the appellee was the defendant or the State at the trial court level.”). Here, because the State did not attempt at trial to connect the guns found at Martinez’s house to the robbery, Martinez was not fairly called upon to refute such a connection. Indeed, Martinez could have asked Daniel whether either of the guns found at his house looked like the one Martinez allegedly used to rob him, and our analysis under Rule 403 could very well turn on Daniel’s answer to that question. Under these facts, we decline to consider the State’s alternative theory for affirming the trial court’s ruling. See id.
that evidence (if any) on that issue. When weighed against the inherent risk of unfair
prejudice presented by the evidence, it was an abuse of discretion to overrule
Martinez’s objection under Rule 403. See id.
But that does not end our inquiry. Even though the evidence should have been
excluded, the trial court’s error was harmless in light of the entire record, which
contains overwhelming evidence of Martinez’s guilt. See Schmutz, 440 S.W.3d at
Video evidence shows Martinez was driving the black Chrysler 300 that
followed the Mendez brothers in the aftermath of a dispute between Ismael and
Martinez’s friends, with Arevalo in the passenger seat. Daniel testified Arevalo
began shooting at them from Martinez’s car at the intersection of Ferguson and Gus
Thomasson. Martinez then chased the Mendez brothers all the way to Garland, as
Arevalo continued to shoot at them. This testimony is corroborated by multiple
inward facing bullet defects in the back and side of Daniel’s car, as well as
Martinez’s cellphone data showing he followed the general path from Lupita’s to the
murder scene.
Daniel further testified that, after the crash, Martinez pulled him out of the car
and robbed him of his gold chains at gunpoint, as Ismael was being pulled out of the
car and shot by Arevalo. This testimony is corroborated by, among other things: (1)
photographs and testimony showing that, after the shooting, Daniel no longer had
the gold chains he was seen wearing moments earlier at Lupita’s; (2) Ismael’s 911
call, which recorded one or more men demanding money from the brothers before
gunshots were heard and a car was heard driving away; (3) Martinez’s cellphone
data that placed him near the scene at the approximate time of the murder; and (4)
multiple eyewitnesses who testified that two men got out of a black car that pulled
up near Daniel’s car, that gunshots followed, and that the two men got back into the
black car and drove away.
Martinez did not dispute that he drove the car that chased the Mendez brothers
as Arevalo shot at them. Nor did he dispute that he was at the scene when Arevalo
murdered Ismael. Rather, he disputed only whether he could be held responsible for
Arevalo’s actions. The State did not emphasize the guns found at Martinez’s home
during its closing. And Martinez pointed out, both through cross-examination and in
closing arguments, that the guns had nothing to do with Ismael’s murder—a
contention the State did not dispute. On this record, we conclude the jury’s verdict
was not meaningfully influenced by unfair prejudice related to the evidence of guns
found at Martinez’s residence. See Schmutz, 440 S.W.3d at 39; Hayes, 85 S.W.3d at
816. We therefore overrule Martinez’s sole issue on appeal.
Modification of the Judgment
We note that the trial court’s judgment states the offence of conviction as
Martinez with murder in the course of committing or attempting to commit robbery.
See TEX. PENAL CODE § 19.03(a)(2). The court’s charge matches the indictment. We
therefore modify the judgment to remove reference to “TERRORISTIC THREAT”
and add reference to “ROBBERY” as the predicate crime for capital murder. See
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.

Outcome: Having overruled Martinez’s sole issue, we affirm as modified.

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