# Martinez v. State

> Court of Criminal Appeals of Texas · May 22, 1996 · 924 S.W.2d 693

URL: https://www.frixlaw.com/law-library/cases/9772718

## Case

- **Full name:** Johnny Joe MARTINEZ, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 22, 1996
- **Citations:** 924 S.W.2d 693; 1996 Tex. Crim. App. LEXIS 70; 1996 WL 269204
- **Precedential status:** Published
- **Opinion:** Concurring in part by Maloney
- **Judges:** Meyers, Baird, Maloney, Clinton, Overstreet
- **Cited by:** 176 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772718

## How later opinions describe it (automated extraction)

- holding that a jury charge tracking language of particular statute is proper - 19 - 04-13-00771-CR charge because “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on the part of the trial judge”
- finding that a rational jury could perceive that the use of a knife to repeatedly stab a fallen victim showed a wanton and callous disregard for human life, sufficient to merit an affirmative answer to the future dangerousness issue
- holding that jury charge tracking language of particular statute is proper charge on statutory issue because "[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on the part of the trial judge."
- holding that jury charge tracking language of 6 particular statute is proper charge because “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on the part of the trial judge”
- holding that a jury charge tracking language of particular statute is proper charge because “[f]ollowing the law as it is set out by the Texas Legislature will not be deemed error on the part of the trial judge”

## Opinion text

MALONEY, Judge,
concurring and dissenting.
The majority holds the evidence sufficient to support the jury’s affirmative answer to the second special issue based on the facts of the offense alone. This opinion will probably set precedent ensuring that never again will there be facts that this Court will find insufficient to support an affirmative answer to the second special issue. Because such is contrary to caselaw and flies in the face of the principles underlying Furman and Jurek, I dissent to the majority’s resolution of point of error one, but concur in affirming appellant’s conviction.
I.
We should remain always cognizant of the confines of Furman and Jurek in reviewing sufficiency of the evidence. Heiselbetz v. State, 906 S.W.2d 500, 515 (Tex.Crim.App.1995). In Heiselbetz , the jury’s affirmative answer to the second special issue, rested “virtually on the fact that the offense was a double murder of a mother and child by strangulation.” Id. at 513 (Maloney, J., concurring). In a case where the death penalty is based virtually, if not exclusively, on the *707 facts of the offense alone, we must recall the circumstances giving rise to our current death penalty statute:
... the Texas death penalty scheme was amended by the Legislature to more narrowly identify the offenses implicating the death penalty and focus the jury’s decision-making process at sentencing_ Accordingly, not every capital murder calls for imposition of the death penalty; it may be imposed only upon a narrow factfinding by the jury who answers yes to two or three specific questions. This Court emphasized in Keeton v. State, 724 S.W.2d 58, 64 (Tex.Crim.App.1987):
... we are bound by the law to make certain that the death penalty is not “wantonly or freakishly” imposed, and that the purposes of the jury’s consideration of the [ ] special issues ... are accomplished. Every murder committed in the course of robbery is in some way cold-blooded and senseless. Each such murder does not, however, merit the death penalty, our most final punishment.
It is against this historical backdrop that we should review sufficiency of the evidence on the special issues, keeping in mind that the Legislature has narrowly defined the circumstances under which a defendant is deathworthy. For this reason, a defendant is not automatically sentenced to death upon a conviction of capital murder. The State is still required to prove the special issues beyond a reasonable doubt, separate and in addition to proving the defendant’s guilt.
Id. at 515 (Maloney, J., concurring) (emphasis added). If the facts of the offense alone are generally sufficient to prove deathworthiness, there would be no need for the special issues.
While this Court has recognized that the facts of the offense alone can, where shocking enough, support an affirmative answer to the second special issue, eases in which the facts alone have been held to support such verdict stand in stark contrast to the facts of the instant case. A sampling of these cases are described below in order to illuminate the contrast between them and the instant case.
II.
In King v. State, 631 S.W.2d 486, 504 (Tex.Crim.App.), cert. denied, 459 U.S. 928 , 103 S.Ct. 238 , 74 L.Ed.2d 188 (1982), the defendant and a co-defendant abducted a young couple at gunpoint and forced them into their truck. They drove to a secluded area and beat the young man repeatedly in the head with the butt of a shotgun, causing his death. The defendant and his cohort spent the remainder of the night, several hours, taking turns sexually assaulting the girl. They let her go, but threatened death if she went to the police.
We said:
... Considering the random selection of his young victims, the calculated, remorseless brutality of the manner in which he obliterated another human life and the levity with which he exploited the terror he generated in the female witness to this atrocity, this Court cannot say that the jury would have been unjustified in returned their verdict of “yes” to the second special issue based alone on the facts of the offense.
Id.
The kidnaping and murder of three victims was held sufficient to alone support the jury’s finding of future dangerousness in Cass v. State, 676 S.W.2d 589, 593 (Tex.Crim.App.1984). There, the victims were held hostage for two days while the defendant and his accomplices prepared a common grave. The victims were gagged and bound, sedated with tranquilizers and each shot between seven and nine times. A .45 caliber machine gun was one of the weapons used. According to the defendant’s confession, when one of the victims tried to escape from the grave, the defendant shot him in the back of the head, drug him back to the grave and “threw him in.” We said “the shocking circumstances of the offense established and appellant’s primary role in it surely evince a ‘most dangerous aberration of character’ ” such that “we [could] not say the jury was unjustified in returning their verdict of ‘yes’ to the second special issue based alone on the facts of the *708 offense.” Id. In Guerra v. State, 771 S.W.2d 453 (Tex.Crim.App.1988), cert. denied, 492 U.S. 925 , 109 S.Ct. 3260 , 106 L.Ed.2d 606 (1989), the Court viewed the facts alone as heinous enough to support an affirmative answer to the second issue:
The evidence shows that appellant and his companion armed themselves with pistols on the day of the offense. Without provocation, appellant cold-bloodedly shot Officer Harris three times in the head and then began shooting at various bystanders, including Herlinda Garcia and Vera Flores. While effecting his escape, appellant also killed Jose Armijo, Sr., who was innocently sitting in his car with his two small children. Clearly the facts of this brutal and heinous offense are sufficient in and of themselves to justify the jury’s affirmative answer to the second special issue.
Id. at 462.
In Willis v. State, 785 S.W.2d 378, 387 (Tex.Crim.App.1989), cert. denied, 498 U.S. 908 , 111 S.Ct. 279 , 112 L.Ed.2d 234 (1990), we held “the nature of this offense is so-extreme that a rational trier of fact could have reasonably answered the second special issue in the affirmative based solely on the facts of the offense.” We described the offense as follows:
The facts of this crime demonstrate an utter disregard for human life; indeed, they depict a man so determined to murder the very people with whom he earlier socialized that he effectively sealed off their escape routes by pouring an acceler-ant on the door jams to their bedrooms and on the front and back doors to the house immediately before sending the house up in flames. Appellant succeeded in killing two women, and seriously endangering the life of his own cousin. When the fire fighters began to arrive, appellant did not volunteer the information that two women were trapped inside the smoldering house. Instead, he impassively smoked cigarettes while watching the fire fighters battle the blaze.
Id. at 386-87.
In Madden v. State, 799 S.W.2d 683 (Tex.Crim.App.1990), cer t. denied, 499 U.S. 954 , 111 S.Ct. 1432 , 113 L.Ed.2d 483 (1991), we held the facts alone supported the affirmative finding on the second issue:
Appellant not only murdered Herbert Me-gason in the course of robbing him, but he also brutally murdered Herbert’s son Gary. Gary’s right foot and both hands were “hog-tied”, his throat severed execution style, and his arms had numerous defensive wounds. Both bodies were disposed of in a creek and carefully hidden by brush. Although there was no evidence that the violence against the Megasons was long in contemplation and planning or originally intended by appellant [citations omitted], the facts evidence a crime committed by someone with a total lack of regard for human life, [citations omitted] We conclude without consideration of the other punishment evidence presented by the State, the extremely violent nature of this offense was sufficient to sustain the jury’s affirmative answer to the second punishment issue.
Id. at 694.
In Cantu v. State, 842 S.W.2d 667 (Tex.Crim.App.1992), cer t. denied, 509 U.S. 926 , 113 S.Ct. 3046 , 125 L.Ed.2d 731 (1993), the defendant attacked a ninety-four year old woman in the front yard of her home, sexually assaulting her and beating her head against the concrete causing her death:
In this case, appellant dragged the screaming 94-year-old victim across her patio and then threw her over a four-foot-high chain link fence. Appellant then sexually assaulted the victim both vaginally and anally. During the course of the assault, appellant penetrated -the victim with a large piece of wire, causing severe lacerations to her vagina. After raping the victim, appellant bashed the victim against the cement causing the fatal injuries to the victim’s head. There were also multiple impact injuries to the victim’s neck, trunk, and extremities.
Id. at 675-76. We viewed these facts as sufficient to support the jury’s finding of future dangerousness. Id. at 676.
In Vuong v. State, 830 S.W.2d 929, 935 (Tex.Crim.App.), cert. denied, 506 U.S. 997 , 113 S.Ct. 595 , 121 L.Ed.2d 533 (1992), we *709 stated the jury’s affirmative answer to the second special issue was supportable solely on the evidence presented at guilt/innocence. In that case, the defendant entered a pool room and cafe armed with a semi-automatic rifle. The defendant proceeded through the establishment firing his weapon. Of eleven shots fired, he struck seven patrons, killing two. He was described as taking deliberate aim at his unarmed victims. Id. at 933.
Although the State offered no evidence of the defendant’s future dangerousness other than the facts of the offense in Sonnier v. State, 913 S.W.2d 511, 517 (1995), we upheld the verdict:
Appellant heinously murdered M. Flowers and her two-year-old son. M. Flowers’ murder involved needless and vicious brutality; Appellant stabbed, strangled, bludgeoned her head with the claw of a hammer, and crushed her neck by stomping it. The condition of the apartment suggested that appellant followed M. Flowers, stabbing and beating her throughout her apartment as she apparently struggled for her life and the lives of her children. The murder of P. Flowers, an infant still learning to speak, was wanton; the infant was fatally stabbed through the heart as he lay on his bed and his body was dragged to the bathroom where it was tossed in the bathtub atop his mother’s corpse. He was stabbed eight times. The jury could rationally conclude from the results of appellant’s isolated rage that his rage is of such an uncontrollable and extreme nature that he is a continuing danger to society.
Id.
All of the cases that I have found in which the Court recognized or held that the jury’s verdict on the second special issue was supportable on the facts of the offense alone involve either the killing or the terrorizing of more than one victim, and/or the threatening or endangering of the lives of persons besides the victim, and/or calculated planning and forethought. 1 I am sure that if I have missed a case in which the facts were less heinous than those above described, the majority would have cited it. The instant case involves neither multiple victims, terrorizing of the victim or others, threatening or endangering of the lives of others besides the victim, nor considerable planning.
III.
The majority places great weight on the fact that the murder was committed with a *710 knife. 2 While the use of a knife is undoubtedly probative of a defendant’s future dangerousness, it should not be the sole basis upon which a determination of future dangerousness is made. In Smith v. State, 779 S.W.2d 417 (Tex.Crim.App.1989), the victim was tied to her bed and sexually assaulted, she was then untied and stabbed fourteen times, once through the heart. We held the facts of that offense alone insufficient to support an affirmative answer to the second special issue. We said,
It has been said that § 19.03 of the Penal Code “limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses.” Jurek v. State, 522 S.W.2d 934, at 939 (Tex.Cr.App.1975). To hold the offense itself in this cause was sufficient to prove future dangerousness would threaten to undermine the function of Article 37.071, supra, to further narrow the class of death-eligible offenders to less than all those who have been found guilty of an offense as defined under § 19.03. See Roney v. State, 632 S.W.2d 598, at 603 (Tex.Cr.App.1982).
Id. at 420.
The majority’s attempt to distinguish Smith is disingenuous. The majority differentiates the instant case from Smith by pointing out that appellant entered the store with the intention of using the knife to threaten the clerk. The majority also finds significant Smith’s testimony that after raping the victim, he “decided to kill her and went kind of crazy for a few minutes,” but appellant offered no explanation for his stabbing of the clerk. These “distinctions” have no significance. The evidence in Smith also supported a conclusion that the defendant entered the victim’s apartment with a knife and that he was looking for victims that day. Smith’s “explanation” for his actions was not so pivotal in that ease as to serve as the basis for distinguishing the instant case. The murder committed in Smith was certainly as, if not more, brutal than the murder committed in the instant case. Yet we held the evidence insufficient to support an affirmative answer to the second issue because to hold otherwise “would threaten to undermine the function of Article 37.071 ... to further narrow the class of death-eligible offenders to less than all those who have been found guilty of an offense as defined under § 19.03.” Id.
The majority also seeks to support its holding by emphasizing “the number of lies” appellant told to the police. The only “lies” described in the majority’s opinion follow:
Appellant is shown to have given conflicting statements at different times as to the exact course of events after he exited the store. In one, Wortman was driving slowly in order for him to jump into the car, while in another, Wortman had taken off and appellant went running after him.
Majority opinion at 695 n. 4. These statements are not necessarily inconsistent. Moreover, even if they are “conflicting,” they do not by any measure amount to a “number of lies.” The Court also stresses the fact that “the majority” 3 of the knife wounds *711 were in the victim’s back after he had fallen. Can the fact that a “majority” of the wounds were inflicted on the victim as he lay face-down be meaningfully distinguished from a scenario where wounds were inflicted on the victim’s chest immediately following the terrorizing of the victim, such as that which occurred in Smith? Could it not be just as telling, or more so, that a defendant faces his victim while inflicting the fatal wounds?
The Court’s contortion of the facts in this case is transparent. This case involved the murder of a store clerk in the course of a robbery. The clerk was killed with a knife. It was senseless and, as with all murders, brutal. But on these facts, the Court’s holding renders article 37.071 a nullity. Further, in light of contrary precedent the Court’s holding exemplifies wanton and freakish imposition of the death penalty. I therefore disagree with the court’s resolution of appellant’s first point of error relating to punishment and would affirm the conviction, but reform the punishment from death to life imprisonment.
OVERSTREET, J., joins.
. See, e.g., Ford v. State, 919 S.W.2d 107 (Tex.Crim.App.1996) (mandate issued April 19, 1996) (terrorizing of entire family in their own home, shooting three and killing one); Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App.1995) (double murder, victims shot at close range as they crouched or kneeled on floor, one victim “hunted down” and killed merely to eliminate a witness), cert. denied, - U.S. -, 116 S.Ct. 106 , 133 L.Ed.2d 59 (1995); Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App.1995) (murder of mother and two-year-old son where mother stabbed, strangled and bludgeoned with hammer, and stomped on, and son stabbed eight times); Johnson v. State, 853 S.W.2d 527 (Tex.Crim.App.1992) (murder of two men in order to eliminate witnesses to robbery, one killed while pleading for his life), cert. denied,-U.S.-, 114 S.Ct. 154 , 126 L.Ed.2d 115 (1993); Vuong, supra (random shooting of seven patrons in pool room and cafe, killing two); Cantu, supra (ninety-four year old victim attacked in her yard, sexually assaulted and head beat against concrete); Madden, supra (brutal murder of father and son); Sosa v. State, 769 S.W.2d 909 (Tex.Crim.App.1989) (planned robbery for weeks, threatened lives of bank employees during robbery, killed deceased as he lay in trunk of car) Willis, supra (Tex.Crim.App.1989) (murder of two women by arson); Bower v. State, 769 S.W.2d 887 (murder of four victims by shooting at close range), cert. denied, 492 U.S. 927 , 109 S.Ct. 3266 , 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 , 685 n. 6 (1991); Guerra, supra (murder of police officer followed by shooting at and killing of innocent bystanders); Moreno v. State, 721 S.W.2d 295 (Tex.Crim.App.1988) (murder of six people, kidnapping and robbery of six others); Santana v. State, 714 S.W.2d 1 (Tex.Crim.App.1986) (defendant needlessly jeopardized more lives than that of the deceased and the offense was likened to "a terrorist attack” which was planned and professional in its execution); Cass, supra (kidnapping and murder of three victims over space of two days); King, supra (deceased’s murder, committed while companion forced to look on, was followed by hours of sexual assault of deceased’s companion); O’Bryan v. State, 591 S.W.2d 464 (Tex.Crim.App.1979) (murder of defendant’s child by poisoning with Halloween candy, planned for at least ten months and carried out with cold calculation in order to collect life insurance proceeds), cert. *710 denied, 446 U.S. 988 , 100 S.Ct. 2975 , 64 L.Ed.2d 846 (1980).
. The majority says the use of a knife forces the user to be in close proximity to the victim and often requires more than one thrust, citing Din-kins, supra. Majority opinion at 696. In a parenthetical, the majority describes Dinkins as holding the evidence of future dangerousness sufficient "where one victim was shot twice at extremely close range and she was either kneeling or sitting." Id. Dinkins was a double murder case. The Court found more significant than the close proximity of the shots, the manner in which the defendant sought out and killed the second victim:
Appellant shot [the first victim] twice; both shots were fired at extremely close range and both shots were fatal. Significantly, appellant shot [the first victim] in the head as she was kneeling or sitting on the floor after the infliction of the first wound to her abdomen.... Of even greater significance for our review is the indication that appellant spent considerable effort in hunting down the second deceased [] before killing her. After [the second victim] locked herself into an adjacent room, appellant attempted to get in by shooting the doorknob. Appellant then tore down a wicker shelf covering a receptionist window, broke the window, reached inside and shot [the second victim] as she crouched in a comer.
Dinkins, 894 S.W.2d at 359-60 .
. The Court described the offense, in part, as follows:
Appellant then stabbed the deceased approximately two or three times before the deceased fell facedown and motionless on the floor. Ap *711 pellant then thrust the knife into the deceased’s back several more times before exiting the store.
Majority opinion at 694-695. Apparently assuming that since “several" is more than "two or three,” the Court concludes that it amounts to a “majority.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772718. Public record. Not legal advice.