NUMBER 13-17-00361-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

AARON MICHAEL MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court 

of Victoria County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa 

Memorandum Opinion by Justice Rodriguez

Appellant Aaron Michael Martinez was convicted of assault and injury to a child. 

By one issue, Martinez asserts that the trial court “risked a Brady violation” by not, sua 

sponte, continuing an ongoing trial to allow him to review newly produced recordings of 

his jail telephone calls. Because we conclude that Martinez did not preserve his 

complaint for review, we affirm.
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I. BACKGROUND

A Victoria County grand jury indicted Martinez on two counts. Count one charged 

Martinez with aggravated assault with a deadly weapon for striking a woman on the head 

with a thermos, a felony of the second degree. See TEX. PENAL CODE ANN. § 22.02(a)(2), 

(b) (West, Westlaw through 2017 1st C.S.). Count two charged Martinez with causing 

bodily injury to a child by pulling his daughter’s hair, a felony of the third degree. See id.

§ 22.04(a)(3), (f) (West, Westlaw through 2017 1st C.S.).

On May 22, 2017, prior to the start of trial, the attorneys informed the trial court 

that there had been some confusion over the state of Martinez’s plea. The assistant 

district attorney (“ADA”) explained that on the morning of May 17, 2017, she offered 

Martinez a plea deal of two years’ confinement in exchange for his plea of guilty, which 

he refused. However, the attorneys explained that on the afternoon of the same day, the 

case came up for announcements, and Martinez surprised the State and defense counsel 

by pleading guilty. Martinez’s counsel responded to the guilty plea by claiming that it

was not made knowingly and voluntarily. The trial court did not accept the plea, and the 

hearing concluded.

According to the ADA, Martinez’s surprise plea led her to review the recordings of 

Martinez’s jail calls from that Wednesday. She found that Martinez placed a call shortly 

after his plea. During that call, Martinez indicated he wanted to accept the State’s offer. 

The ADA told the trial court that she reached out to Martinez’s counsel for clarification on 

Martinez’s wishes, but she did not hear back. The ADA also stated that she spoke with 
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Martinez’s fiancée about his interest in the plea offer. No resolution was reached, and 

the ADA retracted her offer on the Friday before trial.

When, on the morning of trial, the parties concluded their arguments concerning 

this plea process, the court inquired how Martinez wished to plead. Martinez entered a 

plea of not guilty, and the case proceeded to voir dire.

The following day, before the jury was brought in, lead counsel for Martinez 

requested that the State provide copies of all of Martinez’s jail call recordings “in the event 

that they have some Brady information in them.” The trial court ordered that the jail call 

recordings be produced by that afternoon. The State tendered the requested recordings 

as ordered, as well as a recording of the call between the ADA and Martinez’s fiancée. 

Martinez requested no continuance to review the produced material.

The jury found Martinez guilty under count one of the lesser-included offense of 

misdemeanor assault and guilty under count two of the charged offense of injury to a 

child. The jury assessed punishment under count one as one year’s confinement and a 

$1,000 fine. The jury assessed punishment under count two as eight years’ confinement 

and a $2,500 fine.

At no time during the trial proceedings did counsel for Martinez indicate that the 

jail recordings contained any exculpatory content or object that Martinez’s Brady rights 

had been violated. Martinez appeals his conviction.

II. DISCUSSION

By his sole issue, Martinez argues that the trial court should have, sua sponte, 

granted him a continuance to review the jail call recordings for exculpatory content. 
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Martinez claims that by failing to do so, the trial court created the risk of a Brady violation 

and therefore reversibly erred. Martinez does not identify any exculpatory content that 

the recordings contained; indeed, the only content that was described during trial 

proceedings was a call describing Martinez’s desire to plead guilty. But Martinez insists 

that a squandered possibility—i.e., that exculpatory information might have been 

contained in the jail recordings, had they been reviewed—is enough to show reversible 

error. But see Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (quoting 

United States v. Agurs, 427 U.S. 97, 109–10 (1976)) (holding that “the mere possibility 

that an item of undisclosed information might have helped the defense, or might have 

affected the outcome of the trial, does not establish” a reversible Brady violation).

In response, the State points out that Martinez has produced no authority for his 

assertion that the trial court reversibly erred by not granting him a continuance sua sponte. 

Instead, the State argues that it was Martinez’s burden to preserve error by requesting a 

continuance to review the recordings, but he did not do so. We agree with the State.

Under Brady v. Maryland, “the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good faith or bad faith of the 

prosecution.” 373 U.S. 83, 87 (1963). However, when Brady material is “disclosed at 

trial, the defendant’s failure either to object to the admission of the evidence on this basis 

or to request a continuance waives the error ‘or at least indicates that the delay in 

receiving the evidence was not truly prejudicial.’” Rubio v. State, 534 S.W.3d 20, 27 

(Tex. App.—Corpus Christi 2017, pet. ref’d) (quoting Perez v. State, 414 S.W.3d 784, 790 
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(Tex. App.—Houston [1st Dist.] 2013, no pet.)); see Fears v. State, 479 S.W.3d 315, 327 

n.7 (Tex. App.—Corpus Christi 2015, pet. ref’d) (holding that the appellant waived Brady

error, if any, by failing to request a continuance); Young v. State, 183 S.W.3d 699, 706 

(Tex. App.—Tyler 2005, pet. ref’d) (same); Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. 

App.—Austin 2002, pet. ref’d) (same).

Here, Martinez belatedly requested the jail call recordings on the morning of trial, 

and he did not request a continuance so that he could obtain the recordings before trial 

commenced. The State promptly produced the recordings that afternoon, but again, 

Martinez did not request a continuance to allow time for review. Instead, Martinez 

allowed the trial to proceed, uninterrupted by a continuance or a Brady objection. 

Because Martinez failed to object or request a continuance, we conclude that he has 

waived any error. See Rubio, 534 S.W.3d at 27; see also TEX. R. APP. P. 33.1(a).

III. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

21st day of June, 2018.