In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00032-CR

No. 02-23-00033-CR

___________________________

On Appeal from County Court at Law No. 1

Wise County, Texas

Trial Court Nos. CR-82603, CR-83467

Before Sudderth, C.J.; Bassel and Wallach, JJ. 

Memorandum Opinion by Chief Justice Sudderth

RICKY DON MARTINEZ JR., Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Ricky Don Martinez Jr. appeals his convictions for assault causing 

bodily injury and for unlawful restraint. See Tex. Penal Code Ann. §§ 20.02,

22.01(a)(1). He raises three issues on appeal: (1) the sufficiency of the evidence 

identifying him as the perpetrator of the crimes; (2) the trial court’s refusal to charge 

the jury on assault by offensive contact, which he claims is a lesser-included offense of 

assault causing bodily injury; and (3) the trial court’s admission, during the 

punishment phase, of prior convictions that the State allegedly failed to produce in 

violation of the Michael Morton Act, see Tex. Code Crim. Proc. Ann. art. 39.14. 

Because (1) there was sufficient evidence of Martinez’s identity, (2) assault by contact 

is not a lesser-included offense of assault causing bodily injury as charged, and 

(3) Martinez failed to preserve his Michael Morton Act challenge, we will affirm. 

I. Background

Martinez’s two crimes—assault and unlawful restraint—stem from a single 

incident involving Mirna Rodriguez. 

Rodriguez met Martinez on Facebook, and the two began a romantic 

relationship about two weeks before the incident. On the night of the incident, 

Rodriguez—who worked and lived at a Roadway Inn—walked with Martinez to his

house. When they arrived at his house, the couple went into his bedroom and had 

sex. Around 1:00 a.m., Rodriguez told Martinez that she needed to go home because

she had work the next morning. As she was putting her clothes on, “all [of] the 
3 

sudden he hit [her] in the head and . . . just came at [her],” “saying bad words[ and] 

cussing at [her].” According to Rodriguez, Martinez accused her of not being faithful 

and “thought [she] had somebody at the hotel waiting for [her].”1

 

After about an hour of Martinez’s hitting and cursing at Rodriguez while she 

continued to tell him she wanted to leave, she “tried to jump out [of] his window[,] 

but he grabbed [her] arm” and came out of the window with her. Martinez followed 

Rodriguez and continued “cussing at [her] and threatening [her]” as she walked back 

to the Roadway Inn. Finally, she told him she forgave him and would not report him 

to the police, so he “gave [her] a hug” and left. 

Later that day, Rodriguez’s friend took her to the police station to report the 

incident. Rodriguez’s friend identified Martinez by name, and Rodriguez confirmed 

his identity from a photograph and told the police where he lived. 

A jury convicted Martinez of assault causing bodily injury and unlawful 

restraint.2

 See Tex. Penal Code Ann. §§ 20.02(a), 22.01(a)(1). After the parties 

presented punishment evidence—including four certified judgments of Martinez’s 

1

The jury saw photographs of Rodriguez’s injuries, and Rodriguez explained 

that the bruises on her arms were “[w]here he was holding [her so she] wouldn’t run,” 

and the cuts on her face and bruises on her back were from Martinez’s hitting her 

with a closed fist. 

2

The State amended the information charging Martinez with bodily-injury

assault to allege that the assault was committed against a person with whom Martinez

had a dating relationship. This allegation was omitted from the jury charge, though. 
4 

prior convictions—the trial court sentenced him to 365 days’ confinement for each 

offense. See id. §§ 12.21(2), 20.02(c), 22.01(b). 

II. Discussion

In his first issue, Martinez challenges the sufficiency of the evidence identifying

him as the perpetrator of the crimes. 

A. Sufficiency of the Evidence Identifying Martinez 

Martinez claims that the State did not distinguish between him—Ricky Don 

Martinez Jr.—and his father—Ricky Don Martinez Sr.—which, according to 

Martinez, created “problematic” ambiguities.3

 And although Rodriguez identified 

Martinez and confirmed that her assailant was “the Defendant,” he argues that she

“d[id] not have a strong grasp of legal terms, legal procedures, or of the English 

language” so it is unclear whether she understood who the term “Defendant” referred 

to. 

1. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Balderas v. State, 517 S.W.3d 756, 765–66 (Tex. 

Crim. App. 2016). An essential element of any crime is the defendant’s identity; the 

3

Martinez lived with his parents and his daughter. 
5 

State must prove that the defendant is the person who committed the charged 

offense. Ward v. State, No. 02-19-00246-CR, 2021 WL 386936, at *2 (Tex. App.—

Fort Worth Feb. 4, 2021, no pet.) (mem. op., not designated for publication); Anderson 

v. State, No. 05-16-01157-CR, 2017 WL 5897903, at *4 (Tex. App.—Dallas Nov. 29, 

2017, pet. ref’d) (mem. op., not designated for publication). A defendant’s identity 

may be shown by direct or circumstantial evidence and by reasonable inferences from 

that evidence. Balderas, 517 S.W.3d at 766; Meeks v. State, 897 S.W.2d 950, 954–55 

(Tex. App.—Fort Worth 1995, no pet.). The jury is the sole judge of credibility and 

weight to be attached to testimonial evidence. Balderas, 517 S.W.3d at 766; Merritt v.

State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). 

Evidence of identification is sufficient to support a conviction if “from a 

totality of the circumstances the jury was adequately apprised that the witnesses were

referring to [the defendant].” Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App.

[Panel Op.] 1981); Anderson, 2017 WL 5897903, at *4; Momentoff v. State, No. 02-12-

00335-CR, 2013 WL 5967107, at *4 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.)

(mem. op., not designated for publication); Purkey v. State, 656 S.W.2d 519, 520 (Tex. 

App.—Beaumont 1983, pet. ref’d). 

2. Evidence Identifying Martinez 

While Martinez concedes that Rodriguez identified him at trial by name and 

descriptor (as opposed to by pointing at him or describing an article of clothing he

was wearing at trial), he claims that this is insufficient because (1) he shares a name 
6 

with his father; and (2) according to Martinez, Rodriguez did not understand the 

“Defendant” descriptor she was using. 

First, as to the shared name, the jury could not have been confused because 

Martinez’s father’s name was never mentioned at trial. And while the two men may 

have lived at the same house, there is no evidence that his father played any role in the 

events at issue, apart from his potential presence elsewhere in the house on the night 

of the incident.

4

 Plus, Rodriguez provided circumstantial descriptors of her 

assailant—such as the fact that he shared a home with his parents and daughter—and

those descriptors were not true of Martinez’s father. And Martinez’s mother testified

that it was her son—not her husband—who brought Rodriguez into the house and 

spent the evening alone with her in his bedroom. 

Our sister court rejected a name-confusion argument almost identical to 

Rodriguez’s in Purkey v. State. 656 S.W.2d at 520. In that case, the defendant argued 

that there was insufficient evidence to identify him as the perpetrator because none of 

the witnesses identified him in court, “such as [by] pointing at [him] or describing his 

attire,” and because “his legal name [was] ‘James Otis Purkey, Jr.,’ [so] any 

references . . . to a ‘Jimmy Purkey’ or ‘Mr. Purkey’ could have been references to his 

father or some other individual by that name.” Id. The Beaumont Court of Appeals

4

Rodriguez testified that Martinez’s father was leaving the house when she

arrived, but Martinez’s mother testified that her husband was in the living room

watching TV with her while Rodriguez was at the house. 
7 

noted that the name used to introduce Purkey to the jury—“James Otis Purkey”—

was the name on the indictment and the name on the jury charge. Id. Although he 

was referenced as “Mr. Purkey,” “Jimmy Purkey,” “Jimmy,” or “defendant” 

throughout the trial, he was the only person on trial for the offense, and the

complainant testified “that she had known the defendant [for] many years and that he 

had raped her.” Id. While the court of appeals acknowledged that “it is always a 

desirable practice to have a witness give an in[-]court identification of the defendant 

beyond a mere reference to him or her by name, . . . the Code of Criminal Procedure 

does not require this ritual,” and “in this context, there could have been no doubt in 

any of the juror’s minds as to whom each of the witnesses was referring . . . when 

using one of the stated names [or terms].” Id. Consequently, “the lack of a formal 

in[-]court identification beyond the mere reference to the defendant by name[] did not 

render the evidence insufficient to establish appellant’s identity as the alleged criminal

perpetrator.” Id.

Similarly here, the jury was presented with only one Ricky Don Martinez. The 

jury was introduced to him at the start of voir dire as “Ricky Don Martinez,” it heard 

the State read the two charges against “Ricky Don Martinez, Jr., Defendant,” and it 

heard Martinez enter pleas to these charges. Rodriguez then confirmed for the jury

that she knew “Ricky Don Martinez, Jr.,” that he was in the courtroom, that he was 

“the Defendant,” and that he was the one who had assaulted and restrained her. 

Although Martinez was referred to as “Mr. Martinez,” “Ricky,” “Ricky Martinez,” and 
8 

“the defendant” at different points during trial, “in this context, there could have been 

no doubt in any of the juror’s minds as to whom each of the witnesses was referring 

to when using one of the stated names [or terms].” Id. He was the only one on trial

and—despite the fact that he shared a name with his father—he was the only relevant 

actor referred to at trial as Ricky Don Martinez, so there was no need to continuously 

distinguish between him and other individuals who might have shared his first name, 

surname, or both. See Meeks, 897 S.W.2d at 954–55 (holding evidence of identification

sufficient despite lack of in-court identification when complainant named perpetrator 

as babysitter “Johnny” and complainant’s parents identified babysitter as defendant). 

Martinez also argues, though, that Rodriguez “does not have a strong grasp of 

legal terms . . . or of the English language,” so although she confirmed that her 

assailant was “the Defendant,” Martinez questions whether Rodriguez knew which 

person the word “Defendant” referred to. 

But the entirety of Rodriguez’s testimony was in English. While she admitted 

that she “d[id]n’t know how to read [English] that well and . . . d[id]n’t know how to 

write that well either,” her testimony demonstrates that she was able to verbally 

communicate in English. The word “Defendant” was used verbally; Rodriguez was 

not asked to conduct an in-court identification by reading or writing in English. To 

the extent that Martinez argues “that another person, and not he, was identified by the 

State’s witness[ through Rodriguez’s use of the term “Defendant,”] . . . it was 

incumbent upon him, by objection to the identification procedure employed . . . , to 
9 

preserve the issue by making same part of the record.”5

 Rohlfing, 612 S.W.2d at 601. 

Otherwise, Martinez’s challenge to the credibility of Rodriguez’s English 

communication was a jury issue, and “we will not second-guess the jury’s assessment 

of the credibility and weight of witness testimony.” Balderas, 517 S.W.3d at 765–67

(overruling sufficiency challenge to identification of defendant); see Meeks, 897 S.W.2d 

at 955 (recognizing that lack of in-court identification at trial “goes only to the weight 

and credibility of the witnesses and was before the jury for their consideration”); cf. 

5

Martinez suggests, for example, that another individual could have been

present at defense counsel’s table, and Rodriguez could have been referring to that

other individual as the defendant. There was no record of any such presence or

confusion, though, and to the extent that Martinez seeks to rely upon it, it was

incumbent upon him to make it a part of the record. See Rohlfing, 612 S.W.2d at 601. 

Although Martinez was not required to object at trial to preserve his sufficiency

complaint for appellate review, he was required to present a record that enables us to

conduct that review. See id. (rejecting challenge to identification when witnesses

described article of clothing perpetrator was wearing at trial; noting that, “[i]f it be

appellant’s contention that another person, and not he[] was identified by the State’s 

witnesses . . . it was incumbent upon him, by objection . . . or by an offer of a bill of

exception . . . to preserve the issue by making same part of the record”); cf. Amador v.

State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (noting that, although State bore

burden of proof below, appellant bore “burden to bring forward a record on appeal

sufficient to show that the trial court erred in [its] ruling on the motion to suppress”); 

McDougal v. State, 105 S.W.3d 119, 121 (Tex. App.—Fort Worth 2003, pet. ref’d) 

(recognizing in plea context that “an appellant in a criminal case must bring forth a 

complete record”). We will not presume the existence of a defendant’s hypothetical

courtroom scenario absent some indication in the record that the hypothetical

scenario in fact existed. See Rohlfing, 612 S.W.2d at 601 (noting that, “[a]bsent any

indication . . . that the jury may have been misled by the in-court identification

procedure, we will not presume that some person other than appellant may have been

identified”); cf. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (op. on

reh’g) (recognizing “the presumption of the regularity of the judgment of conviction

and the proceedings absent a showing to the contrary”). 
10

Jordan v. State, 500 S.W.2d 638, 641 (Tex. Crim. App. 1973) (rejecting argument that 

defendant was singled out for in-court identification because he sat at defense 

counsel’s table and stating that “the accuracy of the witnesses’ identification can be 

tested on cross-examination, and any taint arising from a defendant’s presence with

his attorney can be thereby exposed”). 

On this record, there was thus sufficient evidence for a reasonable jury to 

conclude that Martinez—that is, Ricky Don Martinez Jr.—was the perpetrator of the 

crimes.

6

 We overrule his first issue. 

B. Jury Instruction on Offensive-Contact Assault 

Martinez next contends that the trial court erred by refusing to charge the jury 

on offensive-contact assault because, according to him, assault by offensive contact is

a lesser-included offense of assault causing bodily injury and there is some evidence 

that his actions amounted to the former rather than the latter. 

1. Standard of Review

For a defendant to be entitled to a jury instruction on a lesser-included offense, 

the elements of the lesser-included offense must be included within the proof 

6

Because Martinez contends that “identity was not established,” he claims

causation was not established either. Assuming that Martinez adequately briefed this

issue, our resolution of his identification challenge disposes of his causation challenge

as well. See Tex. R. App. P. 38.1(i), 47.1.
11

necessary to establish the charged offense’s elements.

7

 State v. Meru, 414 S.W.3d 159, 

161–62 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. 

App. 2007). This is a legal question that compares the elements of the offense as 

alleged in the information with the elements of the requested lesser offense. Meru, 

414 S.W.3d at 162; Hall, 225 S.W.3d at 535. 

To establish the elements of assault causing bodily injury, the State was 

required to prove that Martinez “intentionally, knowingly, or recklessly cause[d] bodily 

injury to [Rodriguez],” Tex. Penal Code Ann. § 22.01(a)(1), which the information 

alleged he did by “striking [her] with [his] hand on the face.” Meanwhile, the elements 

of the requested lesser offense—assault by offensive contact—would have required 

the State to prove that Martinez “intentionally or knowingly cause[d] physical contact 

with [Rodriguez] when [he] kn[ew] or should reasonably [have] believe[d] that [she] 

w[ould] regard the contact as offensive or provocative.” Id. § 22.01(a)(3). 

7

Even if the elements of the lesser-included offense are included within the

proof necessary to establish the charged offense’s elements, an instruction on the

lesser-included offense is only warranted if “a rational jury could find that, if the

defendant is guilty, he is guilty only of the lesser offense.” State v. Meru, 414 S.W.3d

159, 163 (Tex. Crim. App. 2013). We do not reach the latter step of the analysis, 

though. See Tex. R. App. P. 47.1.
12

2. Offensive-Contact Assault Not a Lesser-Included Offense

The Court of Criminal Appeals has held that, generally, offensive-contact

assault is not a lesser-included offense of bodily-injury assault. McKithan v. State, 324 

S.W.3d 582, 591–94 (Tex. Crim. App. 2010). 

In McKithan, one of the defendants was charged with assault causing bodily 

injury by kicking the complainant, and he—like Martinez—argued that offensivecontact assault was a lesser-included offense and was erroneously omitted from the 

jury charge. Id. at 591. But the Court of Criminal Appeals rejected that argument. Id.

at 591–94. Because the State was not required to prove offensive-contact assault, 

“i.e., that appellant knew or should reasonably have believed that the complainant

would regard this contact as offensive,” to establish its charge of assault causing

bodily injury, “i.e., that appellant caused the complainant bodily injury by kicking,” the

Court of Criminal Appeals held that offensive-contact assault was not a lesserincluded offense of bodily-injury assault. McKithan, 324 S.W.3d at 591; see Tex. Penal

Code Ann. §§ 22.02(a)(1), (3). 

The same is true here. To prove the charged offense, the State was required to 

offer evidence that Martinez “intentionally, knowingly, or recklessly caused bodily 

injury to Mirna Rodriguez . . . by striking [her] with [his] hand on the face, causing 

pain.” See Tex. Penal Code Ann. § 22.01(a)(1). The State was not required to 

establish that Martinez knew or reasonably should have known that Rodriguez would 

consider the contact offensive or provocative. Compare id. § 22.01(a)(1), with id.
13

§ 22.01(a)(3). Although Martinez argues that there was evidence Rodriguez 

considered the contact offensive, “[t]he relevant inquiry is not what the evidence may 

show but what the State is required to prove to establish the charged offense.” 

McKithan, 324 S.W.3d at 593. Again, the State was required to prove that Martinez

“cause[d] bodily injury to [Rodriguez],” Tex. Penal Code Ann. § 22.01(a)(1), so as long 

as Martinez’s strike caused bodily injury, it was irrelevant whether the contact was

offensive. See McKithan, 324 S.W.3d at 591. 

“Because assault by contact is not established by proof of the same or less than 

all the facts required to establish the commission of assault causing bodily injury, 

assault by contact . . . is not, under the circumstances of this case, a lesser-included 

offense of assault causing bodily injury.” Welsh v. State, No. 2-08-169-CR, 2009 WL

1425194, at *2 (Tex. App.—Fort Worth May 21, 2009) (per curiam) (mem. op., not

designated for publication), aff’d sub nom., McKithan, 324 S.W.3d at 591–94. We 

overrule Martinez’s second issue.8

8

It is unclear whether Martinez intends to argue that assault by offensive

contact is a lesser-included offense of unlawful restraint as well. The State

understands Martinez to be making this argument, but Martinez does not discuss the

elements of unlawful restraint in his brief—at least not in the portion of his brief

relevant to this issue—much less does Martinez compare the elements of unlawful

restraint to those of offensive-contact assault. See Tex. Penal Code Ann. §§ 20.02(a),

22.01(a)(3). 

Nonetheless, to the extent that Martinez intends to raise this argument, and

assuming without deciding that he adequately briefed it, see Tex. R. App. P. 38.1(i), it is

meritless. To prove unlawful restraint, the State was required to establish that
14

C. Preservation of Michael Morton Act Objection

In his third and final issue, Martinez argues that the trial court erred by 

admitting his prior judgments of conviction during the punishment phase. The State 

gave timely notice of its intent to use Martinez’s prior convictions, see Tex. Code 

Crim. Proc. Ann. art. 37.07, § 3(g); Tex. R. Evid. 404(b), but he claims that the 

Michael Morton Act required the State to produce copies of the prior judgments of 

conviction before trial as well, and because the State allegedly failed to provide such

copies, the judgments should have been excluded. See Tex. Code Crim. Proc. Ann.

art. 39.14. Martinez did not raise this objection at trial, though. 

1. Standard of Review

To preserve a Michael Morton Act complaint for our review, a party must 

present the timely, specific complaint to the trial court, and the complaint on appeal 

must comport with the complaint made in the trial court. Tex. R. App. P. 33.1(a)(1); 

see Rodriguez v. State, 553 S.W.3d 733, 746 (Tex. App.—Amarillo 2018, no pet.) (“[T]he 

statutory rights created by [A]rticle 39.14[] are neither systemic or fundamental, [so] 

they are subject to waiver by failing to properly object to their alleged violation.”); 

Glover v. State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)

Martinez “intentionally or knowingly restrain[ed]” Rodriguez. Tex. Penal Code Ann. 

§ 20.02(a). The State was not required to show that Martinez “cause[d] physical

contact with [Rodriguez],” nor was it required to show that he knew or should have

known that she would “regard the contact as offensive or provocative.” Id.

§ 22.01(a)(3). 
15

(holding defendant failed to preserve Article 39.14 complaint); see also Lovill v. State, 

319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be preserved 

if the legal basis of the complaint raised on appeal varies from the complaint made at 

trial.”).

2. Failure to Preserve Michael Morton Act Objection

During the punishment phase, the State offered into evidence four certified 

judgments of Martinez’s prior convictions. Martinez objected to these exhibits, telling 

the trial court that he had not been provided with copies of the documents and that 

“the local rules require[d] their production seven days before trial.” Martinez did not

identify the local rule he had in mind, and—more to the point—he did not mention 

the Michael Morton Act at all. Because the State had given timely notice of its intent 

to use Martinez’s extraneous offenses, see Tex. Code Crim. Proc. Ann. art. 37.07, 

§ 3(g); Tex. R. Evid. 404(b), the trial court overruled his objection under the local 

rules.

Martinez then reiterated his objection—again without reference to the Michael 

Morton Act. Moments after the trial court overruled Martinez’s objection, the State 

asked him to stipulate to the certified judgments, and he instead reurged his objection

that “[t]he local rules of this Court require the State to . . . give us these things seven 

days prior to trial,” noting that the unidentified section of the local rules was not 

conditioned on a defendant’s request. The trial court stood by its ruling, explaining
16

that it considered “notice being given by 404(b) [to be] sufficient” because the 

judgments were “public record[s].”9

 

Now on appeal, Martinez complains that the trial court’s admission of the four 

certified judgments violated the Michael Morton Act. See Tex. Code Crim. Proc. Ann. 

art. 39.14. But the Michael Morton Act is distinct from a trial court’s local rules, so

“the legal basis of the complaint [Martinez] raise[s] on appeal varies from the 

complaint [he] made at trial.” Lovill, 319 S.W.3d at 691–92. Martinez thus forfeited 

his Michael Morton Act complaint by failing to bring it to the trial court’s attention. 

See Smith v. State, No. 03-17-00694-CR, 2019 WL 2426595, at *11 (Tex. App.—Austin 

June 11, 2019, pet. ref’d) (mem. op., not designated for publication) (holding that 

because “appellant failed to raise his complaint concerning the record keeping

requirements of the Michael Morton Act with the trial court[,] . . . he failed to

preserve these complaints”); Rodriguez, 553 S.W.3d at 746 (holding appellant failed to 

preserve alleged Article 39.14 error because he “only objected to the State’s untimely 

request to submit [the challenged evidence] during the punishment phase based upon 

an alleged violation of the pretrial discovery order”); Glover, 496 S.W.3d at 816

(holding that “even if appellant had complied with the requirements of [A]rticle 39.14, 

he forfeited his complaint by failing to bring it to the attention of the trial court”). 

9

Only later, when the State offered a different public record into evidence—a 

death certificate—did Martinez mention the Michael Morton Act. And in that 

instance, the trial court sustained the objection, and the death certificate was excluded. 
17

Because Martinez did not preserve his Michael Morton Act challenge, we 

overrule his final issue.

III. Conclusion

Having overruled Martinez’s three issues, we affirm the trial court’s judgments. 

See Tex. R. App. P. 43.2(a).

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: November 16, 2023