1 The district court also imposed a five-year term of

supervised release and a $50 special assessment.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 91-5585

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO MARTINEZ,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________________________

(June 3, 1992)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA:

Rodolfo Martinez was convicted of possession of a firearm by

a felon, a violation of 18 U.S.C. § 922(g)(1), and sentenced to

fifteen years imprisonment.1 Martinez appeals, asserting that the

district court erred in admitting extrinsic evidence regarding the

alleged prison gang membership of Martinez's sole defense witness,

and that there is insufficient evidence to support his enhanced

sentence under 18 U.S.C. § 924(e)(1). Finding no error, we affirm

Martinez's conviction and sentence.
2

I

On the evening of September 26, 1989, San Antonio police

officer Daniel Robles was working street patrol duty in a marked

police car. At approximately 10:30 p.m., Robles observed Martinez

and Tony Rodriguez--a man Robles recognized from previous arrests

and encounters--running across Guadalupe Street. His suspicions

aroused, Robles decided to follow the two men to determine why they

were running. Robles passed Martinez and Rodriguez and then

positioned his police car so that it was facing them.

 After seeing Robles, Rodriguez and Martinez both slowed to a

fast walk--Martinez following approximately twelve feet behind

Rodriguez. Using the side spotlights on his patrol car, Robles

illuminated the two suspects. Robles, still in the police car, saw

Rodriguez reach into his left pocket and drop a gun to the ground.

Concerned for his safety, Robles called for backup. With his

service revolver drawn, Robles got out of his police car and told

Rodriguez and Martinez to put their hands up. Martinez stopped,

turned away from Robles, and refused to raise his hands as

instructed. At that time, Robles saw a gun fall to the sidewalk

between Martinez's feet. Martinez then raised his hands and turned

around to face Robles. Shortly thereafter, another police officer

arrived at the scene and Martinez and Rodriguez were arrested. 

Robles recovered both discarded guns and carved his initials

on the weapon that he had seen fall between Martinez's feet. While

transporting both men to the police station for processing,

Rodriguez told Robles that both of the guns were his.
 

2 The Mexican Mafia gang is also known by its Spanish name,

"La `M'." The majority of members of the gang are either convicts

or former convicts.

 

3 Martinez objected to the admission of prison gang

affiliations, arguing that such testimony violated Rule 608(b) of

the Federal Rules of Evidence. The district court overruled his

objection on the basis of United States v. Abel, 469 U.S. 45,

105 S. Ct. 465 (1984). See also infra note 4.

3

At trial, Rodriguez--Martinez's sole defense witness--

testified that, on the night of the arrest, he had both guns in his

possession, and that he dropped the first upon seeing Robles and

the second when Robles approached them. Rodriguez testified that

Robles did not see him drop the first gun, but did observe him

throw the second gun to the ground. Rodriguez explained that he

dropped both guns because he did not want Robles to find him in

actual possession of the weapons. 

During cross-examination and over Martinez's objection, the

district court allowed the government to ask Rodriguez whether he

was a member of a prison gang called the "Mexican Mafia."2 After

Rodriguez denied any affiliation with the Mexican Mafia, the

government, again over Martinez's objections,3 elicited rebuttal

testimony from Valentine Lopez--an intelligence officer with the

San Antonio Police Department. Lopez testified that one of the

tenets of the Mexican Mafia is that members look out for each other

and would not hesitate to come to court to testify untruthfully.

Additionally, Lopez testified that he knew Rodriguez was a member

of the gang and he also believed Martinez was a member. Martinez,

however, did not object that Lopez lacked personal knowledge to

testify that Martinez was a member of this gang. See Fed. R.
 

4 Defense counsel stated:

I do need to put on the record that . . . in

response to the court's request when the court

overruled my objection pursuant to 608(b) of the

Federal Rules of Evidence concerning any testimony

relating to the gang and gang membership, and also

in response to my objection which was overruled, as

to the extrinsic evidence that the witness

testified to regarding a gang membership and their

[tenets], and their rules and things that the gang

stands for.

The instruction that I have submitted to the

court does not cure the error, your Honor, that

occurred when that evidence came in, but I am

complying with the court's request that I submit an

instruction. But I, at this time would move to

strike the testimony of the other witnesses

concerning gang membership. Again, renewing my

objection which was made under 608(b) in order to

preserve the record and also move for a mistrial

because the court's instruction does not cure the

error that occurred.

Record on Appeal, Vol. 11 at 104-05, United States v.

Martinez, No. 91-5585 (5th Cir. filed June 14, 1991) ["Record

on Appeal"].

 

5 The district court instructed the jury:

Your job is to think about the testimony of

each witness you have heard and decide how much you

believe of what each witness had to say.

You have heard the evidence of the alleged gang

membership of a witness, Tony Rodriguez. You are to

consider the evidence of gang membership only in deciding

4

Evid. 602 ("a witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.").

At the charge conference, after the parties rested, Martinez

moved, for the first time, to strike the testimony of witnesses

regarding gang membership.4 The district court denied Martinez's

motion but instructed the jury to consider evidence of gang

membership only to decide whether Rodriguez was biased in favor of

or against any party, and for no other purpose.5 Martinez was
whether the witness maintained a bias for or against any

party.

You are not to consider the evidence of gang

membership as proof of the defendant's guilt of the

charge in the indictment.

Also, you are not to consider the evidence of

gang membership as to whether Tony Rodriguez was a

credible witness, but only as to whether he has a

bias.

Bias is a term used in the . . . "common law

of evidence" . . . to describe the relationship

between a party and a witness, which might lead the

witness to slant unconsciously or otherwise his

testimony in favor of or against a party.

Bias may be induced by a witness's like,

dislike or fear of a party, or by the witness's

self-interest.

Record on Appeal, Vol. 11. at 113-14.

5

convicted under 18 U.S.C. § 922(g)(1), and the district court

sentenced him pursuant to the sentence enhancement provision of 18

U.S.C. § 924(e)(1). 

II

A

Martinez contends the district court abused its discretion by

allowing Lopez to testify that Rodriguez was a member of the

Mexican Mafia prison gang to show bias on Rodriguez's part.

According to Martinez, Lopez's testimony improperly attacked

Rodriguez's credibility through evidence of specific instances of

conduct, a violation of Rule 608(b) of the Federal Rules of

Evidence. Specifically, Martinez reasons that, without evidence

that Martinez was a Mexican Mafia member, Lopez's testimony about

Rodriguez and the Mexican Mafia, even if true, is not probative of

Rodriguez's bias. 
 

6 Rule 608(b) reads, in relevant part:

Specific instances of conduct. Specific instances of the

conduct of a witness, for the purpose of attacking or

supporting the witness' credibility, other than

conviction of crime as provided in rule 609, may not be

proved by extrinsic evidence. They may, however, in the

discretion of the court, if probative of truthfulness or

untruthfulness, be inquired into on cross-examination of

the witness (1) concerning the witness' character for

truthfulness or untruthfulness, or (2) concerning the

character for truthfulness or untruthfulness of another

witness as to which character the witness being crossexamined has testified.

6

In considering Martinez's challenge to the admission of

Lopez's testimony, we employ a deferential abuse of discretion

standard of review. See United States v. Duncan, 919 F.2d 981, 985

(5th Cir. 1990) (citations omitted), cert. denied, 111 S. Ct. 2036

(1991); United States v. Bratton, 875 F.2d 439, 443 (5th Cir. 1989)

(citation omitted). In most instances, Rule 608(b) of the Federal

Rules of Evidence prohibits the admission of extrinsic evidence

solely for the purpose of attacking the credibility of the witness.

See Fed. R. Evid. 608(b);6 see also United States v. Farias-Farias,

925 F.2d 805, 809 (5th Cir. 1991) (citation omitted); United States

v. Diecidue, 603 F.2d 535, 550 (5th Cir. 1979) (citations omitted),

cert. denied sub nom., 445 U.S. 946, 100 S. Ct. 1345 (1980).

Extrinsic evidence may, however, be admissible for another purpose-

-for example, if it tends to show bias in favor of or against a

party. See United States v. Abel, 469 U.S. 45, 56, 105 S. Ct. 465,

471 (1984) (holding that impeachment evidence inadmissible under

608(b) may be admissible for another purpose, as "[i]t would be a

strange rule of law which held that relevant, competent evidence

which tended to show bias on the part of a witness was nonetheless
7

inadmissible because it also tended to show that the witness is a

liar"); see also United States v. Thorn, 917 F.2d 170, 176 (5th

Cir. 1990) ("An exception to the prohibition against the use of

extrinsic evidence to attack the credibility of a witness exists in

cases in which the evidence tends to show bias or motive for the

witness to testify untruthfully."), citing Diecidue, 603 F.2d at

550. The probative value of admitting the extrinsic evidence must

substantially outweigh any prejudicial effect under Rule 403 of the

Federal Rules of Evidence. See Farias-Farias, 925 F.2d at 809; see

also Thorn, 917 F.2d at 176 (under general mandate of Rule 403,

"district judge should exclude evidence if its prejudicial effect

outweighs its probative value"). 

In Abel, the Supreme Court found that a gang member's

testimony that the defendant and a defense witness were members of

the same gang and that it was characteristic of members of this

gang to do anything to help each other--including steal, cheat,

kill or lie--was permissible extrinsic evidence of bias. See Abel,

469 U.S. at 49, 105 S. Ct at 467. The Court reasoned that evidence

of the possible bias of a witness is relevant because "[a]

successful showing of bias on the part of a witness would have a

tendency to make the facts to which he testified less probable in

the eyes of the jury than it would be without such testimony." Id.

at 51, 105 S. Ct. at 468. The Court stated that "[a] witness' and

a party's common membership in an organization, even without proof

that the witness or party has personally adopted its tenets, is

certainly probative of bias." Id. at 52, 105 S. Ct at 469. 
 

7 Martinez suggests:

Abel does not control the outcome of this case. The

witness in Abel was an admitted member of the gang, who

could testify to the tenets of the gang from personal

knowledge. Here, Officer Lopez was not able to testify

from his personal knowledge that the gang members were

pledged to perjure themselves in court to help other

members, but simply offered his opinion that members of

the gang would be willing to lie in court. . . .

Moreover, Lopez was unable to positively identify

Rodriguez as a gang member; he merely believed Rodriguez

to be a member of the gang because Rodriguez sometimes

associated with members of the gang. . . . Most

important, Lopez was unable to testify that the Defendant

was a member of the gang . . . Without evidence that the

Defendant was a gang member, Lopez's testimony about the

gang and Rodriguez, even if true, is not probative of

bias; it does not provide any reason why Rodriguez would

be biased in favor of a person who was not a member of

the gang. Abel was premised on the witness's and party's

common membership in an organization. Abel, 469 U.S. at

52. Since that common membership was lacking in this

case, the testimony was not proper extrinsic evidence of

bias, but instead was extrinsic evidence attacking

Rodriguez's credibility.

Defendant's Brief on Appeal at 12, United States v. Martinez, No.

91-5585 (5th Cir. filed August 12, 1991). Martinez, however, did

not object to, or move to strike, the testimony of Officer Lopez--

that he believed Martinez was a gang member--for lack of personal

knowledge. See Fed. R. Evid. 602. 

8

Martinez proffers many reasons why Abel does not control this

case7 and, therefore, why the district court abused its discretion

in admitting Lopez's testimony. Martinez's reasons need not long

detain us, however, because, without passing on the propriety of

the admission of Lopez's testimony, we conclude that Martinez's

failure to timely object is dispositive of Martinez's appellate

challenge regarding the admission of the evidence. 

In order to preserve a claim of error for appellate review, a

party must timely object or move to strike the objectionable

evidence, stating the specific ground of the objection. See Fed.
 

8 Rule 103(a)(1) of the Federal Rules of Evidence provides in

part:

Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial

right of the party is affected, and 

. . . [i]n case the ruling is one admitting

evidence, a timely objection or motion to

strike appears of record, stating the specific

ground of objection, if the specific ground

was not apparent from the context . . . . 

Fed. R. Evid. 103(a)(1); see also United States v. Jiminez Lopez,

873 F.2d 769, 773 (5th Cir. 1989) ("Federal Rule of Evidence

103(a)(1) requires a `timely objection or motion to strike . . .

stating the specific ground of objection, if the specific ground is

not apparent from the context . . . .'"), quoting Fed. R. Evid.

103(a); Pregeant v. Pan American World Airways, 762 F.2d 1245, 1248

(5th Cir. 1985) ("To preserve a claim of error for appellate review

there must be a timely objection or motion to strike, expressly

stating the grounds for inadmissibility") (citations omitted);

United States v. Grant, 519 F.2d 64, 66 n.3 (5th Cir. 1975) (a

litigant's failure to timely object or move to strike admission of

objectionable evidence is characterized as a waiver of appeal based

upon erroneous admission of evidence) (citation omitted) .

 

9 On direct examination, Rodriguez testified that he had

possessed both guns Robles later retrieved from the scene of the

arrest. Before beginning cross-examination, the prosecutor

informed the district court and defense counsel of his intent to

cross-examine Rodriguez about his involvement in the Mexican Mafia.

If Rodriguez denied membership in the Mexican Mafia, the prosecutor

continued, he would call Lopez as a rebuttal witness to testify to

Rodriguez's Mexican Mafia membership as well as to the tenets of

the organization. Martinez objected to the introduction of this

evidence as barred by rules 608(b) and 609 of the Federal Rules of

Evidence. Relying on Abel, however, the district court ruled that

the prosecutor would be permitted to cross-examine Rodriguez

regarding the Mexican Mafia, and would be permitted to call Lopez

as a rebuttal witness if Rodriguez denied membership in the gang.

On cross-examination, Rodriguez stated that he had heard of

"La `M'," but that he did not know anything about the organization

or its operations. Lopez then took the stand and testified that

the gang was started in 1984 or 1985 and the majority of the

members are convicts or former convicts. He testified further:

The Mexican Mafia believe in mainly, they work a lot with

drugs, narcotics, prostitution. They take care of

themselves a lot. They look for each other. They'll

cover each others back. By that I mean they'll, if one

9

R. Evid. 103(a)(1).8 Martinez's motion to strike was not

contemporaneous with the admission of Lopez's testimony.9 Indeed,
is in trouble, the rest of the members are going to try

to help them out if they can.

Record on Appeal, Vol. 11 at 95. After Lopez was examined and

cross-examined, the defense rested. The district court then

recessed. When the court reconvened, the charge conference ensued

and, at the conference, Martinez referred to his rule 608(b)

objection and moved then to strike the testimony of witnesses

regarding gang membership. 

 

10 In any event, when there is no objection to evidence, we

review its admission for plain error. "[P]lain error is an error

`so obvious that our failure to notice it would seriously affect

the fairness, integrity, or public reputation of [the] judicial

proceedings and result in a miscarriage of justice.'" United

States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990), cert.

denied, 111 S. Ct. 1333 (1991), quoting United States v. Graves,

669 F.2d 964, 971 (5th Cir. 1982) (other citations omitted); see

10

Martinez did not make a motion to strike until the charge

conference--after both sides had rested. Had Martinez timely

objected to Lopez's testimony, Martinez could then have shown that

he was not a Mexican Mafia gang member, that Rodriguez was not a

Mexican Mafia gang member, and why Abel does not apply. He did

not. Moreover, even when he moved to strike, apart from contending

that the evidence violates 608(b), Martinez did not expressly

articulate the asserted grounds for inadmissibility under Abel,

referring vaguely and generally to "any testimony relating to the

gang membership." Moreover, he did not object on the grounds that

Lopez lacked personal knowledge to testify about "La `M'" or

membership in "La `M'"--specifically he failed to object that Lopez

lacked personal knowledge to testify that Martinez was a member of

"La `M'." We conclude, therefore, that Martinez's failure to

timely and specifically object to the introduction of Lopez's

testimony precludes our review of the propriety of the admission of

this evidence.10
also Fed. R. Evid. 103(d) ("Nothing in this rule precludes taking

notice of plain errors affecting substantial rights although they

were not brought to the attention of the court.") Martinez has not

shown how the admission of Lopez's testimony affected the fairness

of the judicial proceedings or would result in a miscarriage of

justice. Thus, we do not find plain error. See Fortenberry,

914 F.2d at 637-38 (no plain error due to district court's

admission of evidence where district court weighed the admission of

the evidence in a pre-trial hearing and concluded it should be

received and prosecutor used the evidence for a permissible

purpose); see also United States v. Howton, 688 F.2d 272, 278 (5th

Cir. 1982) (no plain error due to admission of evidence related to

a murder of a subpoenaed grand jury witness where the evidence was

not irrelevant to any issue in the case).

 

11 Section 922(g)(1) prohibits any person from possessing a

firearm who has been convicted of "a crime punishable by

imprisonment for a term exceeding one year".

11

B

Martinez was convicted of violating 18 U.S.C. § 922(g)(1)11 and

challenges the district court's application of the sentence

enhancement provision of 18 U.S.C. § 924(e), which provides that a

person who violates section 922(g) shall be "imprisoned not less

than fifteen years" if that person has three prior convictions for

a violent felony. Martinez asserts that the evidence is

insufficient to demonstrate that his prior state convictions used

for enhancement purposes were for violent felonies. Specifically,

Martinez contends that the district court must look at the precise

statutory definition of the prior offenses and, because the

government introduced proof only in the form of judgments of
 

12 At the sentencing hearing, Martinez did not object to the

names of the offenses for which he was convicted, as set forth in

the presentence report: (i) aggravated rape (committed 1-30-81;

found guilty 7-23-81); (ii) aggravated assault with a deadly weapon

(committed 3-22-87; plead guilty 7-30-87); and (iii) burglary of a

building with intent to commit theft (committed 1-08-86; plead

guilty 7-21-86). The government did not present either the

indictments or jury instructions for Martinez's Texas state court

convictions. 

12

conviction,12 the record does not support a finding of violent

felonies sufficient to enhance Martinez's sentence. 

The government responds by suggesting that the sentencing

court can, and here did, take judicial notice of the public laws of

a state. The government argues further that, even though Martinez

complains that there is nothing in the record to indicate which

particular Texas statute he was convicted under, Martinez himself

did not show that he was convicted under a different statute which

lacked the elements necessary to qualify as a "violent felony."

Moreover, the government argues, the district court need only find

"sufficient indicia of reliability to support probable accuracy."

United States v. Smith, 930 F.2d 1081, 1090 (5th Cir. 1991),

quoting U.S.S.G. § 1B1.3 (although controlled substance defendant

manufactured was not specifically identified at sentencing hearing,

taking judicial notice that state law conviction constitutes

"serious drug offense" under guideline).

If a defendant is convicted for a violation of 18 U.S.C. §

922(g), the sentencing court must determine whether the defendant

has three prior felony convictions for serious drug offenses,

violent felonies, or both. See 18 U.S.C. § 924(e)(1). The

definition of "violent felony" is contained at section
 

13 [T]he term "violent felony" means any crime punishable by

imprisonment for a term exceeding one year . . . that--

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or

extortion, involves use of

explosives, or otherwise involves

conduct that presents a serious

potential risk of physical injury to

another.

18 U.S.C. § 924(e)(2)(B) (footnote omitted). 

13

924(e)(2)(B)13 which authorizes three ways in which a defendant's

prior conviction may be found to be a "violent felony":

1) under part (i) of § 924(e)(2)(B), the offense might have as

an element the use, or attempted or threatened use, of

physical force against another person; 2) under part (ii) of

§ 924(e)(2)(B), the offense could be burglary, arson,

extortion, or involve the use of explosives; or 3) also under

part (ii) of § 924(e)(2)(B), the offense could otherwise

involve conduct that presents a serious potential risk of

physical injury to another.

United States v. Martinez, 954 F.2d 1050, 1052 (5th Cir. 1992). A

district court's decision whether a defendant's three previous

convictions were for violent crimes must be made in accordance with

the law of the jurisdiction in which the defendant was convicted.

See United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988)

("[A] determination of whether a crime is a violent felony requires

an examination of applicable state law. . . ."), cert. denied, 489

U.S. 1088, 109 S. Ct. 1551 (1989). 

The district court based the enhancement of Martinez's

sentence upon an enhancement information filed by the government

that identifies three prior felony convictions for Martinez, all in

Texas state courts--one conviction for aggravated assault, one for

aggravated rape and one for burglary of a building with intent to
14

commit theft. In support of enhancement, the government also

offered copies of the judgments rendered for Martinez's state court

convictions. At the sentencing hearing, Martinez objected,

contending that enhancement is impermissible based on judgments of

convictions for prior offenses identified only as "aggravated

assault with a deadly weapon," "aggravated rape," or "burglary of

a building with intent to commit theft." The district court,

relying upon statutes the government cited, analyzed whether

Martinez's prior offenses constituted violent felonies and, after

concluding they did, sentenced Martinez under the enhancement

provision of 18 U.S.C. § 924(e)(1). 

The "penitentiary packets" offered by the government indicated

that Martinez had been convicted three times for committing violent

felonies: (i) a July 30, 1987 conviction for aggravated assault,

(ii) a July 23, 1981 conviction for aggravated rape, and (iii) a

July 21, 1986 conviction for burglary of a building with intent to

commit theft. Under Taylor, a district court need "look only to

the fact of conviction and the statutory definition of the prior

offense." Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143,

2160 (1990) (footnote omitted) (Holding that "an offense

constitutes `burglary' for purposes of a § 924(e) sentence

enhancement if either its statutory definition substantially

corresponds to `generic' burglary, or the charging paper and jury

instructions actually required the jury to find all the elements of

generic burglary in order to convict the defendant."). Because the
 

14 Section 22.01(a) of the Texas Penal Code provides: 

A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily

injury to another, including the person's spouse; or

(2) intentionally or knowingly threatens another with imminent

bodily injury; or 

(3) intentionally or knowingly causes physical contact with

another when the person knows or should reasonably believe

that the other will regard the contact as offensive or

provocative.

Tex. Penal Code Ann. § 22.01(a) (West 1974) (titled "Assault"),

quoted as amended by Sexual Assault and Aggravated Sexual Assault,

68th Leg., ch. 977, sec. 1, 22.01(a), eff. Sept. 1, 1983.

Section 22.02(a) of the Texas Penal Code provides:

A person commits an offense if the person commits assault as

defined in Section 22.01 of this code and the person:

(1) causes serious bodily injury to another, including the

person's spouse; 

(2) causes bodily injury to a peace officer when the person

knows or has been informed the person assaulted is a peace

officer:

(A) while the peace officer is lawfully discharging

an official duty; or

(B) in retaliation for or on account of the peace

officer's exercise of official power or performance of

official duty as a peace officer; or

(3) causes bodily injury to a participant in a court

proceeding when the person knows or has been informed the

person assaulted is a participant in a court proceeding:

(A) while the injured person is lawfully discharging

an official duty; or

(B) in retaliation for or on account of the account

of the injured person's having person's having exercised an

official power or performed an official duty as a participant

in a court proceeding; or

(4) uses a deadly weapon.

Tex. Penal Code Ann. § 22.02(a) (West 1974) (titled "Aggravated

Assault"), quoted as amended by Sexual Assault and Aggravated

Sexual Assault, 68th Leg., ch. 977, sec. 1, 22.01(a), eff. Sept. 1,

1983.

Subsequent to the time Martinez committed this offense (March

22, 1987), sections 22.01 and 22.02 were amended further. See Tex.

Penal Code Ann. §§ 22.01, 22.02 (West 1989 & Supp. 1992).

 

15 Section 21.02(a) of the Texas Penal Code provides;

§ 21.02. Rape

(a) A person commits an offense if he has sexual intercourse

with a female not his wife without the female's consent.

Tex. Penal Code Ann. § 21.02(a) (West 1974) (repealed in 1983). 

15

offense of aggravated assault14 and the offense of aggravated rape15
Section 21.03(a) provides:

§ 21.03 Aggravated Rape

(a) A person commits an offense if he commits rape as defined

in Section 21.02 of this code . . . and he:

(1) causes serious bodily injury or attempts to cause

death to the victim or another in the course of the same

criminal episode; 

or 

(2) compels submission to the rape by threat of death,

serious bodily injury, or kidnapping to be imminently inflicted on

anyone.

Tex. Penal Code Ann. § 21.03(a) (West 1974) (repealed in 1983).

 

16 Section 30.02(a) of the Texas Penal Code provides:

§ 30.02 Burglary

(a) A person commits an offense if, without the effective

consent of the owner, he:

(1) enters a habitation, or a building (or any portion of a

building) not then open to the public, with intent to commit

a felony or theft; or 

(2) remains concealed, with intent to commit a felony or

theft, in a building or habitation; or 

(3) enters a building or habitation and commits or attempts to

commit a felony or theft.

Tex. Penal Code Ann. § 30.02(a) (West 1974).

 

17 See United States v. Silva, 957 F.2d 157, 162 (5th Cir.

1992) (applying Taylor reasoning and holding that defendant's

burglary convictions indicate he was found guilty of all essential

elements comprising generic burglary).

16

both require proof of the use or threat of physical force, and the

statutory definition of burglary16 substantially corresponds to the

definition of generic burglary--as required by Taylor, 110 S. Ct.

at 216017--Martinez's prior convictions all qualify as violent

felonies under the standards set forth in 18 U.S.C. § 924(e).

Accordingly, we find that the district court properly concluded

that Martinez's prior convictions were for violent felonies.

 III

For the foregoing reasons, we AFFIRM Martinez's conviction and

sentence.