## In the Court of Appeals Second Appellate District of Texas at Fort Wor th

_________________________ __ No. 02

- 19

- 00428

- C R

______ _____________________

On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1509926D
Before Sudderth, C.J.; Kerr and Walker, JJ.

M emorandum Opinion by Justice Kerr 

### R

AUL 

### S ALAZAR 

### M ARTINEZ 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 M EMORANDUM OPINION
Introducti on A jury found appellant Rau l Sal azar Martinez guilty of murder with a fir earm and assessed his pun ishment at 70 years ’ confinement in the peniten tiary and a $10,000 fine. T he trial court sen tenced Martinez accordingly, and Martin ez has
appe aled. In three issues, Martinez argues that (1) t he trial court erred by not grant ing his request for a jury instruction on the use of expert testimony , (2) t he t rial court erred by not al low ing evidence of the deceas ed ’ s propensity for violence , and (3) t he
evidenc e was insufficient to su p port the gui lty verdict.
We hold that the trial court did not err by refusing Martinez ’ s reque sted instruction, Martine z di d n ot preserve his seco nd issue, and sufficient evidence supports the jur y ’ s ver dict. We thus overrule all three i ssues and affirm the trial court ’ s judgment. Evidentiary Sufficiency
We address M ar t in ez ’ s sufficiency issue firs t because it could aff ord him th e greates t relief if sustained. See Roberson v. State , 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per curiam) ; Windham v. State , No. 02

- 19

- 00063

- CR, 2021 WL 386951, at
*1 (Tex. App.

— Fort Wort h Feb. 4, 2021, no pet.) (mem. o p., not desi gnated for public ati on ).3 A. Standard of Review
In o ur evidentiary

- sufficiency review, we view all the evidence in the light most
fa vorable to the verdict to determine whether any rational factfinder could have fo und
the crime’s essential elemen ts beyond a reasonable doubt. J ack son v. Virginia , 443 U.S.
307 , 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full pl ay to the factfinder’s responsibilit y to resolve conflicts in the te stimony, to weigh the evidenc e, an d to draw reasonable
inferenc es from basic facts to ultimate facts. See Jackson , 443 U.S. at 319, 99 S. Ct. a t 2789; Queeman , 520 S.W.3d at 622.
The fact finder alone judges the evidence’s we ight and credibility. See Tex. C ode
Crim. Proc. Ann. a rt. 38. 04 ; Q ueeman , 520 S.W.3d at 622. We may not re

- evaluate the evidence’s weight and credibility and substitute our ju dgment for the factfinder’s. Queeman , 520 S.W.3d at 622. Instead, we determine wh ether the necessary inferences

a re reasonable based on the ev id enc e’s cumulative force when vie wed in the light
most favorable to the verdict. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court
conductin g a sufficiency review must n ot en gage in a ‘divide and conquer ’ strategy but must consider the cumulative force of all the evidence.”). We mus t presume that the
factfinder resolved any conflicting inferences in favor of the verdict, and we must
defer to t hat resolution. Murray , 457 S .W .3d at 448

– 49.4 B. The I ndictment
In one count consisting of two paragraphs , the State alleged that (1) Martinez had intentionally or knowingly caused Ben Williams ’ s death by shooting Will iams with
a firearm and (2) Martinez had intentionally, wit h the i nt ent to cause se rious bodily injury to Williams, committed an ac t clearly dangerous to human life, namely,
Martin ez sho t Williams with a firea rm and thereby caus ed Willia ms ’ s death. 1 See Tex. Penal Code Ann. § 19.02(b) (1), (2).
C. Evidence
1. Mar tinez ’ s Tes timony
Martinez testified that he was afraid of Williams because Williams had been threatening him

. According to Martinez, he had previously shared with Williams that
he was in the United States illega lly , and Williams purp orted ly wanted th e deed to
Ma rtin ez ’ s house and threatened to sexually ass ault Martinez ’ s children and call
i m migration if Mar tinez did not give him the deed

. 2
O n the day of the shooting, Martinez stated that Williams had again asked about the deed, so Martinez lied to Willi ams a nd told h im that the p apers were at an

1 As a general r ule, a “count” is used to charge the offense its elf, but beca u se a statute s ometimes provides f or various mann er s and mean s of co mmitting an offe nse, e ach count may contain as many separate paragraphs charging alternate manner s and means as are necessary. Watts v. State , 140 S.W.3d 860, 864 (Tex. App.

— H ouston [14th D ist.] 2004, pe t. ref’d).

2 Martine z explained that he was married an d had six children.5 apa rtment. B efore ta king Willi ams to the apartment, Martinez said that he first went
to a location where he would p ick up workers and p icked up a man whom Martinez
did not know ; Martinez explained that having ano ther person wi th him made him feel
safer

. 3 Martine z then went back to pick up Will i a ms, and Williams clim bed int o the pickup with Martinez and the other man

. 4
Martinez maintained that he had no firearm in the pic kup but thought that
Will iams was ar med ba sed on a bulge i n Wil liams ’ s shirt

. Init ially Martinez, Williams,

an d the third man unloaded the branches from the pickup in one lo cation. Martinez

test ified that w hen Williams got out of th e pickup to help unloa d the branches,
Will iams left his gun und er the seat , but M a r tinez denied tak ing the gun at this time.
After unloading the branc hes , Martinez said , he drove to the location where the shooting took place. The unnamed passenger was stil l with them. According to
Marti nez, he explained to Williams tha t they wer e going to this second location to g et the proper ty documents

. Martinez admitted at trial that the documents were not there,
that he had lied to Williams, and that he was jus t trying to buy time

.

3 Thro ugh fingerprints, the police be lieved that they had identif ied this man , but when shown a photograph , Martine z denied that the man depicte d was th e person wi th him that day

. Mart inez maintained tha t the man with him h a d nothing to do with th e shooting and was “ just along for the ride

. ”

4 Williams ’ s girlfriend testified that Martinez came looking for Wil liams because Martinez needed help wi th some tree branches th a t were in t he back of Martinez ’ s pick up. When Will iams jump ed into Martinez ’ s pickup, he told his girlfri end, “ I ’ ll be right back. ”6 Ma rtinez asserted t hat once they arrived , bot h Williams and the thir d man got
out of the truck

. Williams asked about the papers, so Martinez

— a fraid that Willia ms was goi ng to do something

—grabb ed the gun from un der the seat. Marti n ez admit ted walking toward Williams with the gun in hi s h a nd but denied pulling the gun out o f
his b elt , denied pointing the gun at Williams , and claimed that he did not even k now if the gun was loaded. 5
Accor ding to Martinez , W illiams lunged at him , and he tried to fire the gun , but
it d id not go off

. While they struggled , though, Martinez heard something that made
hi m realize that the gun had been activated

. W hen the gun went off , Martinez th ought

t hat it was pointing to the side, but Williams dropped to the ground, which Mar ti nez

a sserted frig htened him. N ot know ing where he had shot Williams , M artinez looked
and saw that Williams was bleeding from the mouth

. Martinez t estifie d that alth ough he had wante d to take Williams to the ho spital,
he got scared and d ecided, ins t ead, to leave

. He den ied ever putting the gun back in to his belt. The uniden ti fied man climbed in to the p ickup with Martinez and sim ply sai d,

“ [L]et ’ s go. ” When Martinez dropped him off at a store , Martinez aske d the man to get him some cig ar ettes be cause he (Martinez) was nervous ; the man complied , af ter

5 As we w ill explain, this and ot her aspe cts of Martinez ’ s testimony were undermined when , during cros s

- examinatio n, the State played a video r ecording of the sho oting for him.7 which Martinez pai d him , an d the man left

. 6 Mar tinez the n drove to the river and threw the gun into it

. Martinez claim ed that he was surp rised and shocked when the gun went off
and denied wanting to kill anyone. H e initial ly plan ned to turn himself in to th e police
but later decid ed t o g o to Mexic o instead

. 7 Martinez denied inten d ing to shoot
Will iams and asserted that the gun went off by it self while he and Williams were struggling.
2. The Video
The sho oting was captured on video. I n the video, a fter Ma rtinez , the third

man, and Wil liams get out of a pickup (Mar tinez and the third man from the dr iver ’ s side and Williams from the passenger side) , Mar tinez walks deliberately a nd
purpo sefully around the back of the pic kup, pul ls a pistol out fro m his waistb an d
under his shirt with his l eft hand, and con fronts Williams with the pistol displayed in
the air

. E xtend ing his right arm and putting h is right hand on William s ’ s chest , Martinez then force s Williams to walk back wards acros s the parking lot t o the parking
lot ’ s e dge until a shed eff ectivel y prevents William s from backing up any f a rther

.

6 A reasonable juror might conclude that Martinez ’ s recounting of this final interaction with someone he claimed was a stra nge r but who voluntarily got back into the pickup with Martinez a fter witnessing a shooting s eemed u nlikely.

7 The offen se occurred on S eptember 6, 2013. The police located Martinez in Hous ton in August 2017 , nearly four years late r .8 While this is happening, the unkno wn man watches passively from a safe dis t anc e beside the p ickup

. At this point, Williams lunges for M arti nez ’ s pistol , but Ma rtinez successfully jumps back

. Having fa iled to take Ma rtinez ’ s pistol, Williams raises both hands in a

m anner that Fort Worth Police De tective Thomas O ’ Brien described a t tr ial as

“ al most like in a pleading motion for [ Martinez] n ot to shoot

. ” A pparently taken

a back by this development, the thi rd man takes several steps backward

. A fter a moment , Martinez delibe rat ely and p urp osefully raises his left arm and
extend s it tow ards Will iams and , wi thout any hesitati on, shoots him

. Williams drops

to the g round i nstantl y . Th e unknown man ’ s sho ulders vis ibly win ce when the pistol
fir es ; he then moves backward hesitant l y to eventually stand behin d the pickup

. Martinez then a pproach es and m omentarily stands over Williams b efor e wal king a way , a nd as he wal k s away, he appears t o tuck the pistol back in his

wa istband under his shirt. Gesticulati ng while loo king in Martinez ’ s direction , the

un known man appears to be yel li ng something at Martinez

. The man then walks
across the parking lot towa rd Will iams ’ s body before stop p ing abrupt l y , turning, and getting back into the pickup.
When confronted at trial with the vi deo, Martinez ag reed that it showed him pulling something out of his back w aistband

. He said, “ I don ’ t remember anything
like [having a g un in my wa istband] . Only now that I ’ m watching, yes. ” He denied t hat
Williams was scared but acknowledged that Williams had his hands up. Al tho u gh he9 main tained t h at he and Williams struggled , he b lamed the video for no t show in g the struggle : “ You can ’ t see it. ” “ The gun, ” Martinez said, “ went off by itself. ”
3. Th e Aut opsy A postmortem photograph of Williams shows an ent ry wou nd perfe c tly
centered i mmediately below hi s lower lip. Dr. Ta sha Greenberg, a deput y medical

ex aminer , descri bed the woun d as “ a one

- half

- inch circula r defect with marginal
lacerations. ” She testif ied that the au topsy revea led that t he b u llet had travel ed through Williams ’ s chin and mo uth a nd severed Wi lliams ’ s spinal c o rd, w hich , she said, woul d have caused Will iams to drop immediate ly. Based on h is wounds,
Wil l iams wo uld have lost consciousness ve ry rapidl y , if not imme d iately , and would
have died within minutes there after

. G unpow der particles were e mbedded in William s ’ s lip

. E lsewhere on his face

w as gunpow der stippling or “ tattoo ing , ” which Dr. Greenberg described as burned,
bur ning, or even u nbu rned gunpowder deposited on the s kin

. Acco rding to Dr.
Greenber g, g unpowder stippling indicat ed that the shot was from an intermediate
range , which is a nywhere from a few inches to a few feet, depending on the wea p on

an d the ammunition used. The r e wa s no e x it wound ; “ a defo rmed large caliber
copper

- jacketed bullet and jacket fragme nt ” were found in Will iams ’ s spine.
D . Dis cussio n Martinez ar gues t hat w hen the evidence is reviewed as a who l e, it is insufficient

to support his conviction. We disagre e.10 Althoug h Martinez testified that he was afraid of Williams and that t he shooting was accidental and un intentional, the jury was free to disbelieve his

test imony. T h e jury can choose to believe or not believe the testi mo ny of any witness

. Henderson v. St ate , 29 S. W.3d 616, 623 (Tex. App.

— Hou ston [1st Dist.] 2000, pet. ref’d)

. T he jury can disbelieve even un contradicted test imony

. I d. In Martinez ’ s c ase, the v ideo bel i ed hi s testimony. After viewing the video, a rat ional j uror could have

r easonabl y conclud e d t hat Wi lliams , not M artinez , was afraid and that nothing about the shooting was ac cidental or unintenti onal

. V

iew ing all the evidence in the l ight most fav orable to the verdict , we hold that
any ra tional factfinder could have found beyo nd a reasonable doubt tha t (1) Martinez had intentionally or knowingly caused Williams ’ s death by sh ooting him with a firearm
and ( 2) Martinez had intentionally, with the inte nt to cause se rious bodily injury t o Wil li ams, committed an ac t clearly dang erous to human life, name ly, Mar tinez had
sho t Williams with a firea rm and thereby caus ed Willia ms ’ s deat h. See Jackson , 443 U.S

.
at 319, 99 S. Ct. at 2789 ; Q u eeman , 520 S. W.3d at 622

. We overrule Martinez ’ s thi rd issue

. Having overruled Martinez ’ s suf ficiency challenge, we turn to his o ther issues in t he order that he presented them. Jury In structio n
In his first issue , Martinez con tends that t he trial court s hould have gr anted his request for a jury instru ction o n the use of expert testimony

. Below is his req uested
instruction:11 During t he trial you heard the te stimony of

_________ , who expressed
o pinions concerning

_____ _

__ . If scient ific, technical, or othe r specializ ed kn ow ledge might assist the jury in und ersta nding the evidence or in determining a fact in issue, a witness qualified b y knowledge, skill, exper ience, training, or education may testif y and state an opinio n concerning s uch matters. Merely beca use such a witne ss has expressed an opinion does not mean , however, that you must accept this opinion. You should judge such testimo ny like any other testimo ny. You may accept it or reject it and g ive it as much weight as you think it deserves, considering the witnes s ’ s e du cation and experience, the soundne ss of the reasons given for the opinion, and all other evidence in the case.
Mar tinez argues th at because other jurisdictions, both federal and state, use t h is
instructio n , Texas shou ld , too
. A. A pplicable Law
In r eview ing a jury charge, we first determine whether error occurred

. Kirsch v.
State , 357 S.W.3 d 645, 649 ( Tex. Crim. App. 2 012). I f no error occur red , our analysis
end s . Wright v. S tate , 495 S.W.3d 884, 886 (Tex. App

. — For t Worth 2016, pet. ref’d)

. Neither a defe ndant nor the State is entitled to a special jury instruction on a statutory of fens e or defense if t hat instruction ( 1) is not grounded in the penal code, (2) is covered by th e general jury charge, and (3) focu ses t he jur y’s attenti on on a specific ty pe of evidence that may support an element of an offense or defense or that tells the jur y ho w to conside r certain evidenc e before it. Walters v. State , 247 S.W.3d
20 4 , 212 (Tex. C rim. App. 2007).12 B. Discussion
Ma rt inez a ckn ow le dges that he has foun d no Te xas a uth ority supporting his position. He thus acknowledge s that h is requ es ted instruction is not grounded in the penal c ode. See id.
Ne x t, t he jury c harge included the following instru cti on , “ You are the ex clusive judges of t he fa cts proved, of the credibility of the witnesses, and of the weight to be given their testimony, but you are bound to receive the law from the Cour t, which is
her e in given you, and be governed thereby. ” We c onclud e that Mart inez ’ s requested
in struc tion was already covered by the general jury cha rge. See id. Finally, Martinez ’s requested instruct ion would foc us the jury ’s attention on a specific type of ev i dence

— expert testimony

— and would tell jur ors how they shoul d
consider it. A defendant is n ot e ntitled to an instruction that focuse s the jury on a specific type of evidence

. See id. The court in W alters explai ned that such instruc tions
risk commentin g on t he w eight o f the evidence. See id. at 211

– 12.
W e hol d that t he trial court did n ot err b y ref using Martinez ’ s r equested
instruction. See id. at 211

. Because the trial court did not err, our ana lysis ends ther e. Kirsch , 357 S.W.3d at 649

. We overrule Mart i nez ’ s firs t i ssue. Excluded Evidence
Ma rtin ez ar gue s in his second is sue that t he t rial c ourt should have allowed
evidence of Will iams ’ s propensity for violence under Texas Rules of Evi dence 401,
402 , 403, and 404(b )(2)

.13 At t rial , Martinez argued that the disputed eviden c e was admiss ible under T e xas Rul e of Evide nce 613 , which addresses using a w itness ’ s prior statement to show the
witness ’ s bias or interest. See Tex. R. Evid. 613. Sp ecifically, Martinez asserted that t he
witness , Williams ’ s gi r lfriend Frances Pasillas , had emotiona lly b roke n down twice while testifying , so he wanted to a sk her about a sta t ement that she had made in 20 13:
She told Fort W orth Police Officer Campbell that the dec eased had been arguing with her, hit her on the head, caused pain, followed her into her room, hit her so me more, including punching h er in the eye, and then on the 2 0 th, the following day, she told Detective Solano that what she had said the previous day was correct. Martinez explained to the trial court that he w anted to ask Pasillas about he r
p rior statements to show her b ias or interest:
So I wouldn ’ t g o into any criminal cases that were filed or any resul ts of the crimina l cases t hat were f iled, but I think that on the issue of bias or interest, in view of her emotional breakdowns in the court room, it ’ s important to add a little balance, and I ’ d be enti t led to go into that. It is subject to the bala ncing test for 403, bu t I think that unde r 613 that the door has been opened for me to go into that. The State deni ed that any door ha d been opened under Rule 613 and objected. The
tri a l court ruled that Mar tinez could not ask Pasill as ab out these earlier statements but
all owed Martinez to make an offe r of proof.
In his offer of proof , Martinez asserted : My proffer is that on the 18th of June, 2018

-- excuse me, 2013, the com p laining witness, who has just testified, told Of ficer Campbell of the Fort Worth Police D epartment that the deceased h ad been drinking; that he had accused her of cheating on him; that he hit he r o n the back of the14 head and on the back; that she went into her room and he followed her into her room, wher e he squeezed her righ t hand very hard, c ausing pain, and then punched her in the eye. And, in addition, she was photographed showing the injury t o h er eye on that occasion. The following day, Detective S [o l a] no of the Fort Worth Police Department, called to c onfirm the informat ion that Officer Campbell had been given, and sh e confirmed that she had been assaulted and that it did cause pain and tha t sh e suffered injury.
Martinez ’ s offer did n oth i ng to change t he trial court ’ s mind; it again de nied his
request to ask Pasillas about th ese earlier statements. In his brief, Martinez ackn owledges that he relied on Rule 613 a t t rial but

ar gues that the e viden c e was also admissible to s h ow Williams ’s violent hist ory under
Texas R ules of Evi dence 401, 4 02, 40 3, and 404( b ) (2)

. See Tex. R. Evid. 401 (relev ant eviden ce) , 402 (relev ant evide nce admissible) , 40 3 (when relevant evidence may be excluded) , 40 4 ( b )(2) (ch aracter e vidence and evidence of c rime s, wro ngs, an d oth er acts)

. Martinez concludes, “ Appellant would show that

. . . under Texas Rules of Evidence 401, 402, 403 and 404, this rel evant evidence of the propensity for violence

wa s improperly e xcluded by the trial court. ” What M ar tin ez does not address is why
the pro posed evidence was admissible under Rule 613 , which was the lone basis that
he had argued to the trial court

. T he proponent of evidence or dinarily has t he burden of establishing its admissibility

. Vi n son v. State , 252 S .W.3d 336, 340 (Tex. C rim. App. 2008)

. Wi thou t an objection , the evidence is generally deemed admissible , but if object ed to , t he15 proponent must overcome the stated objection. Id. ; Molina v. State , 450 S.W.3d 540,
552 (Tex. App.

— Hous ton [ 14 th Dist.] 2014, no pet.)

. T ell ing th e judge that evidence is admissible does not suffice; t he proponent, if he is the losing party on appeal, must have told the judge why the evidence was

a dmissible. Re y na v. State , 168 S.W.3d 173, 17 7 (Tex. Crim. A pp
. 20 05)

. As a
prere quisite to presenting a complaint for appellate review, the record must show that the party stated the grounds for the ruling i t sought with sufficient specificity to apprise the trial cou r t
. Id. The same rationale applies to both p rof fe rs o f evidence and

o bjections to evidence

. Id. at 17 9

. Finally, assu mi ng the p roponent preserved er r or in the t rial court, t he
proponent ’ s argume nt on appeal must comport with its trial

- court a rgument ; if t h e two differ , the appellate argument fails

— not h avin g presen ted the appellate argument

to the trial court, the proponent failed to preserve it for appellate review

. See id. at
179

– 80

. A rguing th e (theoretically) corre ct grounds on appeal does the propo nen t no good if the proponent argued an incorrect g r ound at tri al and r eceive d an adverse
rul ing on it ; the only issue pres erved for appellate review is the tr ial court ’ s ruling on the incorrect gro und

. Lemasurier v. State , 91 S.W.3d 897, 902 (Te x. App.

— Fort W orth 2002, pet. re f’d).
Martin ez relied on Rule 613 in the trial co u rt. He does not rely on Rule 613 on appeal. Because Mar tinez ’ s argument on appeal does not comport with his argument at trial, w e hold that the arguments present ed in his sec ond issue wer e not preserve d16 in the trial court and overrule h is s econd i ssue . Se e Molina , 450 S.W.3d a t 552

– 53 (holding argument that evidence was admissible as the victim ’ s pertinent character
trait was not preserved because appellant had not presented i t to the tria l court).
Conc l usion Having overruled Martinez ’ s thr ee issu es, we a ffirm the trial court ’ s judgment

.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : August 5, 2021