CAUSE NO. 

# ORIGINAL IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

ROBERT JOHN ANTHONY MARTINEZ Petitioner

vs. THE STATE OF TEXAS Respondent

PETITION FOR DISCRETIONARY REVIEW 

# COURTOFCRWAUPPBLS DEC 04 2015 

## AbelAcosia, Ctefc

! : L'l'J 0/. --, ON APPEAL FROM THE THIRTEENTH COURT OF APPEALS ». , 

## Abe/Acosia, Clerk AT CORPUS CHRTSTI, TEXAS
CAUSE NO. 13-13-00714-CR

ROBERT JOHN ANTHONY MARTINEZ TDCJ# 1908811 3899 State Hwy. 98 New Boston,TX 75570 Petitioner, Pro SeIDENTITY OF JUDGE, PARTIES, AND COUNSEL

Honorable Janet Leal

Luis V.. Saenz

Ismael H. Hinojosa Edna H. Dinsdale Jennifer M. Avendano Edward Stapleton, Sara Stapleton Philip Cowen

Robert John Anthony Martinez

li 

## Trial Court Judge, 103rd Judicial District, Cameron County, Texas Cameron County District Attorney 964 E. Harrison St. Brownsville,TX 78520 Trial Counsel For State Trial Counsel For State Appellate Counsel For State Trial Counsel For Petitioner 2401 Wildflower, Suite C Brownsville,TX 78526 Appellate Counsel For Petitioner 500 E. Levee Street Brownsville,TX 78520 Petitioner, Pro Se 3899 State Hwy. 98 New Boston,TX 75570TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ii
TABLE OF CONTENTS iii INDEX OF AUTHORITIES ... iv STATEMENT REGARDING ORAL ARGUMENT. . .. v STATEMENT OF THE CASE 1 STATEMENT OF PROCEDURAL HISTORY 2 GROUNDS FOR REVIEW 3,4 Ground One: The Court of Appeals erred in finding that the Trial Court's ruling was proper when it ruled that Petitioner's oral statement to police was not taken in violation of Article 38.22 of the Code of Criminal Procedure, and then allowed the statement into evidence during his jury trial. Ground Two: The Court of Appeals erred in finding that the Trial Court did not abuse it's discretion in denying Peti tioner's motion for mistrial when the prosecutor's comments during the punishment phase of trial rose to the level of prosecutorial misconduct, and prejudicial determination of the jury's punishment. PRAYER FOR RELIEF 9 CERTIFICATE OF SERVICE 10 UNSWORN DECLARATION 10 APPENDIX .11 "A"). Memorandum Opinion of the Thirteenth Court of Appeals

inINDEX OF AUTHORITIES

* FEDERAL CASES page Missouri v. Siebert, 542 U.S. 600,604(2004) 4,6

STATE CASES

Armendariz v. State, 123 S.W.3d 401,404(Tex.Crim.App.2003) 5 Hawkins v. State, 135 S.W.3d 72,76-77(Tex.Crim.App.2004) 7 Hubert v. State. 312 S.W.3d 554,557(Tex.Crim.App.2010) 5 Martinez v. State, 272 S.W.3d 615(Tex.Crim.App.2008) 6 

### Vasquez v. State, 453 S.W.3d 555,564(Tex.App.2014)., 5 Xu v. State, 191 S.W.3d 210,215(Tex.App.San Antonio 2005) 5

* STATE STATUTES Texas Code of Criminal Procedure, Art. 38.22 3,4 Texas Health and Safety Code §481.121 4

IVSTATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument in this case. Petitioner believes oral argument would be helpful because of the complex nature of the grounds in this case. Petitioner's case contains issues that are unsettled in the courts of appeal.

vSTATEMENT OF THE CASE

Petitioner was charged by indictment for the offense of murder. All proceedings were held in the 103 Judicial District Court, Cam eron, Texas. The Honorable Janet Leal presiding. A motion to suppress hearing, regarding an oral statement made by Petitioner, was held on October 15,2013. Petitioner's motion was denied by the trial court by signed order on October 23,2013. Petitioner pleaded not guilty and proceeded to a trial on the merits, which began with a jury be ing selected on October 28,2013. Petitioner was found guilty of murder
on November 4,2013. Petitioner was subsequently sentenced, by the
same jury, to 50 years in the Texas Department of Criminal Justice

- Correction Institutional Division on November 5,2013.STATEMENT OF PROCEDURAL HISTORY
The Thirteenth Court of Appelas affirmed Petitioner's conviction
on August 31,2015. No motion for rehearing was filed with that court. Petitioner timely filed a motion for extension of time with this Court, which was granted, and the time, to file a Petition for Dis cretionary Review was extended to November 30,2015. This timely petition now ensues.GROUNDS FOR REVIEW

1. The Court of Appeals erred in finding that the trial court's ru ling was proper when it ruled that Petitioner's oral statement to police was not taken in violation of Article 38.22 of the Code of Criminal Procedure, and then allowed the statement into evidence during his jury trial. 2. The Court of Appeals erred in finding that the trial court did not abuse it's discretion in denying Petitioner's motion for mis trial when the prosecutor's comments during the punishment phase of trial rose to the level of prosecutorial misconduct, and prejudiced the jury's determination of punishment.GROUNDS FOR REVIEW
GROUND ONE: The Court of Appeals erred in finding that the trial court's ruling was proper where it ruled that Peti tioner's oral statement to police was not taken in vio lation of Article 38.22 of the Code of Criminal Procedure and then allowed the statement into evidence during his jury trial.

The trial court in this case held a suppression hearing regarding Petitioner's oral statements to police. This hearing took place on October 15,2013. Petitioner's issue presented to the Thirteenth Court of Appelas deals with Article 38.22 of the Code of Criminal Procedure and because this issue deals with midstream Miranda warnings, the proper standard of review is found in Missouri v. Seibert, 542 U.S. 600,604(2004). The midstream Miranda tactic is also referred to as "question first, warn later." See id. at 610. Petitioner was arrested on November 20,2012, in connection with the stabbing of Angel Perez. However, Petitioner was initially charged with possession of marijuana. See Tex. Health and Safety Code § 481. 121. Upon his arrest, Petitioner was questioned by police on multiple occasions, first in regards to the possession of marijuana charge. Next, Petitioner was questioned about cell phones, and only then did police notify Petitioner, that they were investigating the instant offense. After prolongrd questioning for over a day, Petitioner fin ally says that he stabbed Perez. In this issue, to the Thirteenth Court of Appeals, Petitioner ar gued that his videotaped statement was taken in violation of Article 38.22 of the Code of Criminal Procedure, and that the trial courtcommitted error by admitting the statement into evidence during trial. In finding that the trial court's ruling was proper, and overruling Petitioner's claim on appeal, the Court of appeals decision conflicts of other Court of Appeals' decisions on the same issue. Further, the Court of Appelas decision conflicts with applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States
on an important question of state or federal law, and because of this the Court should grant review. A trial court's suppression ruling is reviewed under a bifurcated standard. Hubert v. State, 312 S.W.3d 554,557(Tex.Crim.App.2010). Appellate courts must view all of the evidence in the light most fa vorable to the ruling. Vasquez v. State, 453 S.W.3d 555,564(Tex.App. Houston[14DistrictJ 2014, pet.. granted) . At a suppression hearing, the trial judge is the sole factfinder. Id. Regarding findings of fact, especially where those findings are based on an evaluation of credibility and demeanor, the trial court's rulings are reviewed under an abuse of discretion standard. See Xu v. State, 191 S.W.3d 210,215(Tex.App.-San Antonio 2005). Almost total deference is affor ded to a trial court's determination of historical facts supported by the record. Id. However, "the trial court's resolution of mixed questions of law and fact, which does not turn on an evaluation of credibility and demeanor, is reviewed de novo." Xu, 191 S.W.3d at 215. The Court of Appeals is obligated to"uphold the trial court's ruling on appellant's motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case." Armendariz v. State, 123 S.W.3d 401,404(Tex.Crim.App. 2003)(en banc). The facts in Petitioner's case are clear. As stated, Petitionerwas initially arrested and charged with possession of marijuana. Pe titioner was questioned by police for the possession charge and inf ormed he was being held regarding "another" investigation as well. At no time was Petitioner informed that he was being held in conn ection to the murder .of Angel Perez. However, police continued to question Petitioner regarding "other" issues. Only after questioning Petitioner multiple times, and while questioning Petitioner about some cell phones connected to this case, do the police inform Peti tioner that they are investigating him for the instant offense. It is clear from the record that when Petitioner was read his rights during this second to last interview that hewwas not aware of the investigation into the instant offense. During this questioning, when Petitioner inculpated himself, is when the police move to sani tize their behavior and have the statement done on videotape covering up their misbehavior so as to meet the requisites of 38.22. The re quirements of 38.22 are not met if the prior statements were not videotaped. It is clear in this case that the police did not meet the requirements set out in Code of Criminal Procedure, Article 38.22. In overruling this issue, the Court of Appeals' decision con flicts with this court's decision in Martinez v. State, 272 S.W.3d 615(Tex.Crim.App.2008). Additionally,.the Court of Appeals' decision conflicts with the Supreme Court of the United States' decision in Missouri v. Siebert, 542 U.S. 600(2004). Because of these conflicts, This Court should grant review in this case.

GROUND TWO: The Court of Appeals erred in finding that the trial court did not abuse it's discretion in denying Peti tioner's motion for mistrial when the prosecutor's comments during the punishment phase of trial rose tothe level of prosecutorial misconduct, and prejudiced the jury's determination of punishment.
During the punishment phase of Petitioner's trial, the lead pro secutor decided to tell the jury how diffucult a life he had growing up. While questioning Petitioner, the prosecutor took offense to Petitioner's comment that he "would imagine that the prosecutor had a perfect life growing up." In response to this comment, the prose cutor then began to tell him his life story. Trial counsel objected to this as to relevance, and the objection was sustained by the trial court. However, the prosecutor was not done telling his story, so ignoring the court's ruling, he continued to belittle the Peti tioner and proceeded to compare his life to Petitioner's. After trial counsel objected two more times, because the prosecutor refused to stop telling his story, a bench hearing was held on the issue. During the bench conference, the trial court again told the prosecutor to
move on to another line of questioning. Trial counsel moved for a mistrial, which was denied by the trial court. A trial court's ruling on a motion for mistrial is reviewed under an abuse of discretion standard. H^awkins_ y_._...^t§te^_l_35__S^_W;_3d_72J 76- 77_£Tex._Crim.Ap_P_-_200_4_). It is clear from the record that the trial court abused it's discretion in this case. The Court of Appeals erred in finding that the trial court's ruling was appropriate. Discretion ary review by this Court is necessary. The prosecutor's continual attack on Petitioner was calculated to hurt Petitioner. The Court of Appeals acknowledged that "the pro secutor's comments and disregard for the trial court's rulings were improper", however found that "their severity was slight." Petitionertends to disagree with this assessment, considering he received a 50-year prison sentence. This is hardly a "slight sentence." The Court of Appeals went on to conclude that, "the trial court gave the proper instruction and asked the jury to disregard, stating that the comments were irrelevant to the situation at hand." However, it is

prosecutor's life story. The prosecutor is a trial officer, and any comment made by him is considered highly by the jury. The fact that he was able to come out of his neighborhood lifestyle demeaned Pet itioner's heartfelt testimony about how hard his life was. Further, the Court of Appeals claims, "Martinez points to no place in the record where it would be obvious that the jury failed to follow the trial court's instructions. There is no evidence presented that the jury hold the statements made against Martinez in any way." Peti tioner wonders how he would be able to elicit such information from the jurors. Even if he were able to learn of such information, it would not be admissible on appeal. Nothing that takes place during jury deliberation is allowed as evidence on appeal. Petitioner was unable to meet the standard set out by the Court of Appeals. Peti tioner was clearly prejudiced by the prosecutor's comments in this
r' motion for mistrial. The Court of Appeals erred in overruling this issue.PRAYER FOR RELIEF

i. ^ VJ. t.lwLI\.L L/LUV U UllUb l» 11.-1. t. uOuj. '> cl uli L uj.UvLwwj.unui.j J- >_> v ^- ^« »* j- m. this case. In doing so, Petitioner prays that this case be over turned, and remanded to the trial court for a new trial.
Respectfully submitted, 

# W # ^r

ROBERT JOHN ANTHONY MARTINEZ TDCJ# 1908811 3899 State Hwy. 98 New Boston,TX 75570 Petitioner, Pro SeCERTIFICATE OF SERVICE

I, Robert John Anthony Martinez, hereby certifies that a true and correcy copy of this Petition for Discretionary Review was served, via the United States Postal Service, addressed to: Jennifer M. Avendana, Assistant District Attorney, 964 E. Harrison St., Brownsville, 

## Texas 78520, on this _„_2L.„_„ day of November, 2015.

ROBERT JOHN ANTHONY MARTINEZ Petitioner, Pro Se

UNSWORN DECLARATION
I, Robert John Anthony Martinez, TDCJ No. 1908811, being presently incarcerated at the Berry Telford Unit, TDCJ-CID at Bowie County, Texas, verifies and declares under penalty of perjury that the fore going statements are true and correct to the best of my knowledge. Executed on this cj_ day of November, 2015.

10 Robert John Anthony Martinez TDCJ# 1908811 3899 State Hwy. 98 New Boston,TX 75570 Petitioner, Pro SeAPPENDIX

11THE THIRTEENTH COURT OF APPEALS

13-13-00714-CR 

### ROBERT JOHNANTHONY MARTINEZ A/K/A ROBERTO MARTINEZ A/K/A ROBERT JOHN MARTINEZ A/K/A ROBERT MARTINEZ

v. THE STATE OF TEXAS
On Appeal from the 

### 103rdDistrict Court of Cameron County, Texas Trial Cause No. 2013-DCR-0177-D

JUDGMENT 

### THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that thejudgment of the trial court should be AFFIRMED. The Court orders thejudgment ofthe trial courtAFFIRMED. We further order this decision certified below for observance. August 31, 2015NUMBER 13-13-00714-CR 

### COURT OF APPEALS 

### THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- EDINBURG
ROBERTJOHN ANTHONYMARTINEZ a/k/a ROBERTO MARTINEZ a/k/a ROBERTJOHN MARTINEZ a/k/a 

### ROBERTMARTINEZ,

THE STATE OF TEXAS,
On appealfrom the 103rd District Court ofCameron County, Texas. Appellant,
Appellee.



### MEMORANDUM OPINION Before ChiefJustice Valdez and Justices Benavides and Perkes 

### Memorandum Opinion by Justice Benavides By four issues, appellant Robert John Anthony Martinez a/k/a Roberto Martinez a/k/a Robert John Martinez a/k/a Robert Martinez appeals his conviction for murder. 

### SeeTex. PenalCodeAnn. § 19.02 (West, Westlawthrough Ch.462015 R.S.). Martinez

### alleges by fourissues that: (1) his second oral statementto police was taken inviolation ofArticle 38.22 ofthe Code ofCriminal Procedure and should not have been allowed into 

### evidence during his jury trial; (2) the trial court committed error by not including an instruction in thejury charge on the voluntariness ofMartinez's statement; (3) thetrial court madecomments on thedefinition of reasonabledoubt during the State's voir dire, 

### thereby amounting to an improper comment on theweight ofthe evidence; and (4) the prosecutor's comments during the punishmentphase of thetrial amounted to misconduct and a mistrial should have been granted. We affirm.
I. Background On November 19, 2012, Martinez stabbed At trial, Martinez testified in his own defense and 

### gathering when they heard that Perez and Perez'sfriends were breaking into vehicles in 

### theirneighborhood and stealing carradios. Martinezand hisfriends leftthe gathering in search of Perez and his friends. Martinez encountered Perez and confronted him. 

### According to Martinez's statement, Martinez and Perez then engaged in a physical altercation. Martinez claims that Perez was overpowering him during theiraltercation. 

### Martinez stated that he stepped back, pulled out a knife, andwhen Perez approached him again, Martinez stabbed him. Perez was stabbed more than eighteen times, including afatal stab wound to his heart. Martinez said he dropped the knife and leftthe 

### scene,knowing thepolicewould arrive shortly. Martinezwas apprehended thefollowing morning at afriend's home andinitially chargedwith possession ofmarijuana. See Tex. 

### Health andSafetyCode § 481.121 (West, Westlaw through Ch. 46 R.S. 2015). Angel Perez with a knife and killed him. stated that he and his friends were at aUpon his arrest, Martinez was questioned by investigators from the San Benito 

### Police Department. Initially, the purpose of the questioning was to gather information about some cell phones that had been located relating to the murder. The officers testified during a motion to suppress hearing that Martinez had been read his Miranda 

### warnings before each interview, but that the first interview was not videotaped because 

### they were just gathering information regarding the phones. During the first interview, Martinez began asking questions regarding the stabbing of Perez and then Martinez 

### stated to them that he had stabbed Perez. Investigators immediately stopped the interview and set up a video recording for the subsequent interview in compliance with article 38.22 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 

### 38.22 (West, Westlaw through Ch. 46 R.S. 2015). Police again read Martinez his Miranda rights on the video and Martinez gave the investigators more details about his altercation with Perez. 

### The State indicted Martinez with Perez's murder. Following ajurytrial, Martinez
was convicted of murder and the juryassessed punishment at fifty-years in the Texas DepartmentofCriminal Justice—Institutional Division. This appeal followed. II. Statement Taken in Violation ofArticle 38.22 By his first issue, Martinez alleges that the videotaped statement was taken in violation of Article 38.22 of the Code of Criminal Procedure and the trial court committed
error by admitting the statement intoevidence during the trial. See Tex. Code Criminal 

### Proc. Ann. art. 38.22. The voluntariness of the statement was challenged during a hearing on a motion to suppress heldpriorto the start ofMartinez'sjurytrial.A. Standard ofReview We review a trial court's suppression ruling under a bifurcated standard. Hubert
v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Appellate courts must view all of 

### the evidence inthe light most favorable to the ruling. Vasquez v. State, 453 S.W.3d 555, 

### 564(Tex. App.—Houston [14th Dist.] 2014, pet. granted). Ata suppression hearing, the trialjudge is the sole factfinder. Id. Regarding findings offact, especially when those findings are based on an evaluation ofcredibilityand demeanor, we reviewthe trialcourt's 

### rulings under an abuse ofdiscretion standard. See Xu v. State, 191 S.W.3d 210, 215 

### (Tex. App.—SanAntonio 2005, nopet.); Guzman v. State, 955S.W.2d 85,89 (Tex. Crim. App. 1997). We afford almost total deference to a trial court's determination of historical facts supported by the record. See id. However, "the trial court's resolution of mixed 

### questions of law and fact, which does not turn on an evaluation of credibility and demeanor, is reviewed de novo." Xu, 191 S.W.3d at 215. The court of appeals is 

### obligated to"uphold thetrial court's ruling on appellant's motion tosuppress ifthatruling
was supported by the record and was correct under any theory of law applicable to the 

### case." Armendarizv. State, 123 S.W.3d 401, 404(Tex. Crim. App. 2003) (enbanc). B. Applicable Law 

### Statements made by defendants to lawenforcement are governed byArticle 38.22 ofthe Code ofCriminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22. Under Article 38.22, "no written statement made by an accused as a result of custodial 

### interrogation is admissibleas evidence against him in any criminal proceeding unless it is shown" that he received the required warnings as determined by Miranda v. Arizona. Id. § 2; Miranda v. Arizona, 384 U.S. 436 (1966). Additionally, no oral statement made

### as a product of custodial interrogation shall be admissible against a defendant unless: 

### (1) an electronic recording, which mayinclude motion picture, video tape, or othervisual recording, is made ofthe statement; 

### (2)priorto the statement butduring therecording the accused isgiven the warning in Subsection (a) ofSection 2 above and the accused knowingly, intelligently, and voluntarily waives anyrights setoutin thewarning; 

### (3) therecording device was capable ofmaking an accuraterecording, the operator was competent, and the recording is accurate and has not been altered; (4) allvoices on the recording are identified; 

### (5) notlaterthanthe20thdaybeforethedateoftheproceeding, theattorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article. 

### Tex. Code Crim. Proc Ann. art. 38.22(§ 3)(a)(1). The warnings contained in section 2 ofArticle 38.22 are as follows: (a) the accused, prior to making a statement, either received from a magistrate the warning provided in Article 15.17 of this code or received 

### from theperson towhom the statement is made a warning that: (1) he has a right to remain silent and not make any statement at all and that any statement he makes may be used against him at histrial; 

### (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; 

### (4) if he unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time; and 

### (b) theaccused, priorto andduring themaking ofthestatement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed Subsection (a) of this section. Id. at § 2. However, the Court of Criminal Appeals has held that "for oral statements

### made as a result ofcustodial interrogation to be admissible, the warnings given prior to those statements need to only 'substantially comply' with the warnings set out in art. 

### 38.22, § 2(a)." Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) (en banc); seealso Coffeyv. State, 435 S.W.3d 834, 841 (Tex. App.—Texarkana 2014, pet. refd). There have been cases where the Miranda safeguards have been misused. 

### Miranda, 384 U.S. 436. In Missouriv. Siebert, the defendantwas deliberatelynotgiven 

### her Miranda warnings until after she gave a confession. 542 U.S. 600 (2004). Following the defendant's initial confession without any Miranda warnings, theofficers 

### gave herashortbreakandthen wentoverthesame information again, thistimefollowing the properwarnings. Id. The Supreme Court held that this "question first" technique was not acceptable because it deliberately attempts to go around giving a defendant notice of his rights under the Miranda standard. Id. 

### The Texas Court of Criminal Appeals has also held that this "two-step" or "question-first" technique is not acceptable. In Martinez v. State, the Court ofCriminal 

### Appeals held that questioning the defendant without the proper-warnings, and then coming back and questioning him again with proper warnings rendered the second statementinadmissible. 272S.W.3d 615, 627(Tex. Crim. App. 2008). However, there 

### are situations where a police officer does not initially warn a defendant ofhis rights that the court of criminal appeals found not to be a "question-first" situation. In Carter v. 

### State, the arresting officer conversed with the defendant briefly, at which time the 

### defendant made an incriminating statement. 309 S.W.3d 31, 33-35 (Tex. Crim. App. 2010). The officer immediately realized hehad not read thesuspecthis Miranda rights and stopped the interview in order to warn him. Id. at 33. The trial court in that case
6

### found that "the failure ofTrooper Henderson towarn Carter before those two questions 

### were askedwassimplyanoversight" and thecourtofcriminal appealsaffirmedthe ruling, stating the facts "do not necessarilyexemplify the deliberate 'question-first, warn later' gamesmanship so obvious in Seiberf'. Id.at 34-35, 41. 

### "Courts should determine 'whether the evidence shows that [the interrogating officer] deliberately employed a two-step 'question-first, warn later' interrogation technique to circumvent [the] appellant's Miranda protections.'" Vasquez, 453 S.W.3d 

### at569 (citing Carter, 309 S.W.3d at38). To make this determinationwill "'invariablyturn on the credibility of the officer's testimony in light of the totality of the circumstances 

### surrounding theinterrogation." Carter, 309 S.W.3dat 39(citing UnitedStatesv. Stewart, 536F.3d 714,720-21 (7th Cir. 2008)). "This is afactual finding entitled todeference on 

### appeal' and reviewed onlyforclearerror." Id. (citing Stewart, 536 F.3d at720-21).
C. Discussion 

### Martinez argues that his 38.22 warnings were given "mid-stream", that he was 

### interviewed multiple times before his 38.22 warnings were given, and even when the warnings were given, they did not complywith article 38.22. SeeTex. CodeCrim.Proc Ann. art. 38.22. 

### "The State, as the proponent of the evidence of appellant's confession, bears the burden of establishing its admissibility." Vasquez, 453 S.W.3d at 567. "It is also the 

### State's burden to establish a valid waiver ofMiranda rights by a preponderance of the 

### evidence." Id. During thepre-trial hearing onMartinez's motion to suppress, the State called two officers who were part of the initial and videotaped interrogation ofMartinez: 

### Captain Mario Perea and Detective Israel Ambriz of the San Benito Police Department.

### Both officers stated that Martinez was read his 38.22/Miranda warnings prior to both interrogations. See Tex. Code Crim. Proc Ann. art. 38.22; Miranda, 384 U.S. 436. 

### Both officers stated that the initial interrogation was not videotaped because they were gathering information regarding cell phones in the custody of San Benito Police Department, not information about Perez's murder. However, both men testified 

### Martinezwasproperlywarned priortothecommencementofanyquestioning. 

### Martinez'strialcounselquestionedtheofficersregarding Martinez'sunderstanding ofthe warnings and ifthere were any promises made to him for giving the statement. Captain Perea felt Martinez understood and waived his rights because Martinez 

### continuedtotalkto them. Perea also stated thevideotapewas made in orderto comply with article 38.22. SeeTex. CodeCrim. ProcAnn. art. 38.22. DetectiveAmbriz stated 

### thatnoonepromisedMartinezareduction ofchargesforhiscooperationandeventhough 

### thefirst interrogation was notwritten orvideotaped, Ambrizfelt hewould beabletotestify about it in court based onhis credibility. Martinez's trial counsel arguedthat thevideo confession should be suppressed based on Seibert and the "question-first, warn-later" behavior, but the trial courtstated on the record that itdid not believe itwas a "two-tiered" 

### interrogation and denied the motion to suppress. See Seibert, 542 U.S. at 600. 

### Additionally, Martinez testified in his own defense during the guilt-innocence

- portion of hisjury trial. He was questioned about the offense by both his own trial 

### counsel andtheState. During histestimony, Martinez admittedtostabbing Perezduring their altercation. 

### Based on the record from the motion to suppress hearing and the trial transcript, as well as thefindings ofthetrial court on the record, we donot find that thevideotaped
8

### confession was a product of the "question-first, warn-later" technique prohibited by Seibertand its progeny. See Seibert, 542 U.S. at 600. As a result, the trial court's ruling was proper, and we overrule Martinez's first issue. III. Voluntariness Jury Instruction 

### By his second issue, Martinez states the trial court committed errorby not sua 

### sponte including an instruction on thevoluntariness ofhis statement in thejurycharge. A. Standard ofReview 

### In reviewing achallengeto ajurycharge, wefirst mustdetermine ifthejurycharge contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). Iferror is found, we then 'analyze the harm resulting from the error." Id. If "an error is 

### preserved with a timely objection...then the jury-charge error requires reversal if the appellant suffered some harm as a result of the error." Sanchez v. State, 376 S.W.3d 

### 767, 774 (Tex. Crim. App. 2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

### Crim. App. 1985)). But ifthe "defendant never presents a proposedjury instruction (or fails toobject to thelack ofone), any potential error in the charge is reviewed only for 'egregious harm' underAlmanza." Oursbourn v. State, 259S.W.3d 159,174 (Tex. Crim. 

### App. 2008). The failure to preservejury-charge error is not a bar to appellate review, but ratherit establishes the degree of harmnecessary to the reversal. Warnerv. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). 

### To determine harm, we consider four factors: (1) the charge itself, (2) the state of 

### the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel, and (4) any other relevant information revealed by the trial record 

### as a whole. Trejo v. State, 313 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2010,

### pet. refd) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish bothegregious or "some" harm, the "appellant must have suffered actual, rather 

### than theoretical, harm." Warner, 245 S.W.3d at 461. Neither party bears the burden 

### on appealtoprove harm. Reevesv. State, 420S.W.3d 812, 816(Tex. Crim. App. 2013). Ifthe "error in the charge was the subject of a timely objection in the trial court, 

### then reversal is required ifthe error is 'calculated to injure the rights of the defendant,' which means no more than that there must be some harm to the accused from the error." 

### Id. (citing Almanza, 686 S.W.2d at 171). When an "appellant d[oes] not object to the charge, the error does not resultin reversal 'unless itwas so egregious and created such 

### harm thatappellantwas denied afairtrial.'" Warner, 245S.W.3d at461 (citing Almanza, 686 S.W.2d at 171). "Egregious harm deprives appellant of a fair and impartial trial." Trejo, 313 S.W.3d at 871 (citing Almanza, 686 S.W.2d at 171). "Errors that result in egregious harm are those that affect the 'verybasis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Warner, 245 S.W.3d at 461-62 (citingHutch, 922 S.W.2d at 171). B. Applicable Law 

### Martinez alleges that the trial courtcommitted harm by notincluding an instruction on the voluntariness of his statement in thejury charge. There was no objection to the jury charge by Martinez's trial counsel. We first conduct a review to establish ifthere 

### was: (1) error in the jury charge and (2) ifthere was error, was the erroregregious harm
to Martinez. Section 6 of article 38.22 states: Upon the finding by thejudge as a matter of law and fact that the statement
10was voluntarilymade, evidence pertaining to such mattermay be submitted 

### to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statementwas voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. Tex. Code Crim. Proc Ann. art. 38.22 § 6. Section 7 of article 38.22 states "when the 

### issue is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement." Id. at § 7. Additionally, under article 38.21, "A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion." Oursbourn, 259 S.W.3d at 169 (citing Tex. Code Crim. Proc Ann. art. 38.21). A defendant would be "entitled to an instruction on voluntariness of his statement 

### under art. 38.22 § 6, ifhe introduces evidence attrial from which a reasonablejury could find that the statement was not voluntarilymade." Vasquez, 225 S.W.3d at 545. "Ifa reasonablejury could findthat the facts, disputed or undisputed, rendered him unable to make a voluntary statement, he is entitled to a general voluntariness instruction when he has raised a question of the voluntariness of his statement." Oursbourn, 259 S.W.3d at 

### 176. When the defendant "presents evidence raising a voluntariness question, the prosecution must controvert that evidence and prove voluntariness by a preponderance 

### of the evidence." State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (en banc). However, the prosecution "is not put to this burden unless a defendant presents evidence that raises a voluntariness question." Id. C. Discussion Although Martinez's trial counsel questioned the two police officers who testified
11during the motion to suppress hearing regarding the voluntariness of Martinez's statements, the issue of voluntariness was not raised during the trial. There was no 

### evidence put before thejury to give rise to the idea thatMartinez had not voluntarily cooperated with the officers based on his own free will. The State presented evidence 

### that Martinez was given the proper warnings required under the law and knowingly, intelligently, and voluntarily waived those rights. See Tex. Code Criminal Proc Ann. art. 38.22 § 2. In order for Martinezto be entitled to a jury instruction on the voluntariness 

### of his statement, he must have presented evidence during the trial to say his statement
was not voluntarily given. For an issue to be "raised by the evidence", there must be a genuine factual dispute. Oursbourn, 259 S.W.3d at 176. 

### At notime did thisoccur. Martinez even testified in his own defense during the 

### trial andnevermade a claim that hedid not receive his warnings, did notvoluntarily give his statement, ordid notwish to cooperatewith the investigation. Additionally, Martinez cites to no placein the record from the trial to show where he presented any evidence requiring the instruction on voluntariness. 

### A "trial judge has an absolute sua sponte duty to prepare a jury charge that 

### accurately sets outthelaw applicable to thespecific offense charged." Id. at 179(citing Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). "But it does not 

### inevitably follow that he has a similar sua sponteduty to instruct the jury on all potential defensive issues, lesser-included offenses or evidentiary issues. These are issues that 

### frequently depend upon trial strategy and tactics." Id. (citing Delgado v. State, 235 S.W.3d at 249). Although Martinez claims the trial court should have included this 

### proposed instruction on its own,without more evidence elicited during testimony, the trial
12

### court did not violate its duty to include defensive issues in the jury charge. See id. Therefore, there was no error in the jurycharge. We overrule Martinez's second issue. IV. Comments Made by the Trial Court During Voir Dire By his third issue, Martinez complains that the trial court violated "his Sixth Amendment right to jury determination" and violated Rule 605 of the Texas Rules of 

### Evidence by commenting on reasonable doubt during the State's voir dire, thereby committing fundamental error. See U.S. Const, amend. VI; Tex. R. Evid. 605 (West, Westlaw through Ch. 46 R.S. 2015). A. Standard ofReview and Applicable Law 

### In order to "preserve a complaint ofimproper voir dire for appellate review, the 

### appellant must make a timely and specific objection and receive an adverse ruling from the trial court." Fears v. State, No. 13-13-00111-CR, S.W.3d , 2015 WL 1869792, at *15 (Tex. App.—Corpus ChristiApr. 23,2015, pet.filed); seeArchie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Tex. R. App. P. 33.1 (West, Westlaw through Ch. 46 R.S. 2015). "Here, because appellant did not object, he has waived his 

### complaint on appeal except forfundamental error." Fears, 2015 WL 1869792 at *15; 

### seeArchie, 221 S.W.3d at699. Thepropertestfor "determining whetheranerrorduring voir dire is fundamental, and therefore may be raised for the first time on appeal, is whether the error involves a violation of a right that is 'waivable only' or a denial of an absolute, systematic requirement."1 Fears, 2015 WL 1869792 at *15; see Aldrich v.
1 "Examples ofrights thatarewaivable-only include therights to assistance ofcounsel, therightto trial byjury, and arightofappointed counseltohavetendaysoftrial preparation which a statutespecifically madewaivable-only." Aldrich v. State, 104S.W.3d 890, 895(Tex. Crim. App. 2003)(en banc). "Absolute systemic requirements include jurisdiction of the person,jurisdiction of the subject matter, and a penal statute's being in compliance with the Separation of Powers Section ofthe state constitution." Id. 13

### State, 104S.W.3d 890, 895 (Tex. Crim. App. 2003). "This Court has held in the past that the right to an impartial judge is an absolute, systematic requirement thatmay be raised for thefirst time on appeal ifthe judge's comments are 'so egregious as to deem thejudge biased.'" Fears, 2015 WL1869792at 15; see Hernandez v. State, 268 S.W.3d 176, 185-86 (Tex. App—Corpus Christi 2008, no pet.). 

### UnderTexas Rule ofEvidence 605, "ajudge may nottestify in a proceeding over which the judge is presiding." Tex. R. Evid. 605; see Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992) (en banc). In order to determine ifthe trial court testified, "the question should be whetherthejudge's statement of fact is essential to the 

### exercise of somejudicial function or is the functional equivalent of witness testimony." Hammondv. State,799 S.W.2d 741, 746 (Tex. Crim. App. 1990). However, "substantial rightsare not affected by the erroneous admission ofevidence 'ifthe appellate court, after examining the record as a whole, has fair assurance that the error did not influence the 

### jury, or had but a slight effect.'" Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
B. Discussion 

### Martinez complains of an exchange between the trial court and a prospectivejuror during the State's portion of voir dire. A potential juror posed a question about reasonable doubt: about knowing someone was guilty but not having the requisite proof. The trial court asked a follow up question to clarify the prospectivejuror's question and then stated the following: Court: Okay. I guess the - there is no definition for beyond a reasonable doubt. When you say you know he did it, I'm not sure how someone knows he did it ifthere was no proofthat
14

### he did it, because then you don't know. You might think he 

### might have done it. There may be something in your mind that believes he might have done it, but you don't know he did itunless the proofwas there. So ifthe proof is notthere, then 

### you don't really know it. You believe it or youthink, maybe, but Iguess that's what's throwing me off, is ifyou knowit, then how can you know it ifthe proofs not there?


### Court: Okay. Thestate's got to prove itbeyond a reasonable doubt. Ifthey don't prove it beyond a reasonable doubt, then that's 

### different. But I guess what threw me is when you say, "I know he did it." Well if you know someone did it, then there must have been proof there, because if not, you wouldn't 

### knowit. You wouldthink it, you mightguess it, but you don't know it. Imean, ifthe proof's there and you knowit, then that 

### would be beyond a reasonable doubt if you know it. Ifyou 

### don'tknow it and you think it, then there may not be enough proof. 

### It is apparentfrom thecomments madeby thetrial court thatit was exercising its judicial function byclarifying a confusion in the law. See Hammond, 799 S.W.2d at 746. The juror was unsure of how to arrive at a proper disposition based on information that 

### had been provided. The trial court was within its duty to try to rectify that confusion, while notmaking any specific comments on the evidencein the case orstating improper assumptions ofthe law. Although itisthe rightofMartinezto have an impartial, unbiased judge, thetrial courtdid not show any partialitytowards the State or bias against Martinez. 

### Additionally, as the State argues in itsbrief, the trial courtwas notfunctioning as a 

### witness in the case because noevidence had been presented to thejuryyet. In looking at the record as a whole, even ifthese comments would have amounted to error, the error 

### was slight and did notinfluence the jury'sverdict. The trial court encouraged thejurors to have proof, rather than just a feeling or emotion, in order to get beyond a reasonable

15

### doubt. The trial court did not comment on its beliefs regarding the case and therefore caused no fundamental error. Martinez's third issue is overruled. V. Prosecutor Misconduct 

### By his fourth issue, Martinez claims thetrial courtcommitted error by notgranting
a mistrial when the prosecutorallegedly engaged in misconduct during the punishment portion ofthe trial. A. Standard ofReview and Applicable Law We review a trial court's ruling on a motion for mistrial for an abuse ofdiscretion. 

### Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004) (en banc). The "question of whether a mistrial should have been granted involves most, if notall, of the 

### same considerations that attend a harm analysis." Id. at 77. "Harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court 

### makes a mistake." Id. at 76. "A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that expenditure of further time and expense would be wasteful and 

### futile.'" Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert,denied, 529 U.S. 1070, 120 S.Ct. 1680 (2000)). The trial court acts with an appellate function: "determining whether improper conduct is so harmful that the case must be redone." Id. 

### Harm analysis is done "in light of the trial court's curative instruction." Id. "Only in extreme circumstances, where the prejudice caused by the improper argument is incurable," will a mistrial be required. Thomas v. State, 461 S.W.3d 305, 310 (Tex. 

### App.—FortWorth March 26, 2015, no. pet.); see Hawkins, 135 S.W.3d at 7; Whitney v. State, 396 S.W.3d 696, 704 (Tex. App.—FortWorth 2013, no pet.).

16

### The Court ofCriminal Appeals found that the "Mosleyfactors should be used to 

### evaluate whetherthe trial court abused its discretion in denying a mistrial...[in cases] in which constitutionalrights arenotimplicated" Hawkins, 135 S.W.3d at77. The Mosley factors are used by balancing these three factors: (1) the severity of the misconduct 

### (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment 

### assessed absent the misconduct (likelihood ofthe samepunishment being assessed)." Id. (citing Martinez, 17 S.W.3d at 693-94); see Mosley v. State, 983 S.W.2d 249, 259 

### (Tex. Crim. App. 1998), cert, denied, 526 U.S. 1070, 119 S.Ct. 1466 (1999). "An instruction to disregard an improperjury argument is generally sufficient to cure harm." 

### Thomas, 461 S.W.3d at 311; see Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. 

### App. 2000), cert, denied, 532 U.S. 944, 121 S.Ct. 1407 (2001). "On appeal, areviewing court presumes that thejuryfollowed thetrial court'sinstruction in the manner presented." 

### Id.; see Archie, 340 S.W.3d at 741. "Although the presumption is refutable, the defendant mustrebutthepresumption bypointing to evidencethat thejuryfailed tofollow 

### the trial court's instruction." Id.; see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). B. Discussion 

### Martinez argues that theprosecutor's confrontation with him during his testimony in the punishment phase of the trial warranted a mistrial. The following statements occurred: State: Why do you say it's so hard? 

### Martinez: Because it is. Imean, you have - Imean, Iwould imagine you had a perfect lifegrowing up.

17State: You think Ihad a perfect life growing up?


### State: I'll tell you a little bitabout myself, Mr. Martinez. Igrew up in a neighborhood in Houston. It was interracial. Do you know what interracial means? Defense: Objection, Your Honor. Relevance. Court: Sustained. 

### State: Heasked about mylife, Judge. Court: I understand. Sustained. Let's move on. 

### State: It was Hispanics and Blacks in this neighborhood. We had sirens going offevery night. Defense: Your Honor, this is the same. Court: All right. Sustained. Let's move on. 

### State: We had the Ku Klux Klan living at the corner of my neighborhood. 

### Defense: YourHonor, objection. Your Honor, may we approach? (Atthe bench, on the record): 

### Defense: We're going to ask that [the prosecutor] be admonished to respond to your rulings. 

### State: He asked aboutmy life. He said Ihad a perfect life growing up. Court: I understand that. Defense: But we have

- Court: I've already sustained the objection. Let's move on. State: Yes, Your Honor. Court: Ido not want to hear any more.
18

### Court: And Idon't want to have to admonish you.


### Court: So let's move onfrom thatline of questioning.

Court: I'll instruct thejury to disregard. Defense: And we move for a mistrial. Court: That will be denied. (End of bench discussion): 

### Court: All right, Ladies and Gentlemen, you are to disregard the last statements being made by the state as far as his life. That's irrelevant to this trial, and we'll concentrate on the situation at hand. Let's move on. "On appeal, we generally presume thejury follows the trial court's instructions in 

### the manner presented.'' Thrift, 176 S.W.3d at 224. "The presumption is refutable, but 

### the appellant must rebut the presumption bypointing to evidence that thejury failed to follow the trial court's instruction." Id. Normally, "aprompt instruction to disregardwill
cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (en banc). Using the Mosleyfactors to analyze the complained-ofconduct, we first look to the severity of any misconduct. Hawkins, 135 S.W.3d at 77 (citing Martinez, 17 S.W.3d at 

### 693-94). Although the prosecutor's comments and disregard for thetrial court's rulings
were improper, their severity was slight. After the complained ofconfrontation, the State moved on to a different line ofquestioning and the exchange was not emphasized in the
19

### closing remarks. Second, we look at the curative measures taken by the trial court. 

### Thetrial courtgave theproperinstruction and asked thejurytodisregard, stating that the comments were irrelevant to the situation at hand. Third, we look to the likelihood of the 

### same punishmentbeing assessed absent anyimproper remarks. Martinez points to no place in the record where itwould be obvious that the juryfailed tofollow the trial court's instructions. There is no evidence presented that the jury held the statements made against Martinez in anyway. Even though he was given a lengthyprison sentence, the 

### State had askedforlife imprisonment. ThefactthatMartinezadmittedtostabbing Perez from the witness stand and the number ofwounds Perez received mostlikely led to the term of years he received. Wefind there was no abuse ofdiscretion bythetrial courtfor denying the motion for mistrial. We overrule Martinez's fourth issue. VI. Conclusion We affirm the trial court'sjudgment.

Do not publish. Tex. R. App. P. 47.2 (b). Delivered and filed the 31 st day of August, 2015.

20 GINA M. BENAVIDES, Justice

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