NO. 07-08-0265-CR; 07-08-0266-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 15, 2009

______________________________

MARTIN MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. CR-07K-180, CR-07K-181; HONORABLE ROLAND SAUL, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Martin Martinez, was charged in two indictments with three counts of

aggravated sexual assault, one count of indecency with a child by contact, and two counts

of indecency with a child by exposure. Appellant waived a jury trial and was found guilty

by the trial court and sentenced to 50 years in the Texas Department of Criminal JusticeInstitutional Division (TDCJ-ID) for each count of aggravated sexual assault, 20 years in

the TDCJ-ID for the indecency with a child by contact, and 10 years in the TDCJ-ID for
All sentences were to run concurrently. 1

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each count of indecency with a child by exposure. By one issue, appellant challenges the 1

judgment of the trial court. We affirm.

By a single issue, appellant contends that the trial court impermissibly considered

unreliable evidence in order to increase the punishment assessed. We disagree with the

appellant’s characterization of the action of the trial court.

Factual Background

Appellant does not assail any of the facts regarding the trial court’s finding of guilt,

therefore, we do not find it necessary to recite the factual background except as pertains

to the issue of the punishment hearing. During the punishment hearing, the trial court

made the following statement:

Mr. Martinez, I have heard the evidence in both the guilt-innocence phase

and punishment phase of this trial, and frankly, sir, what you have done is

despicable. It’s terrible.

These girls were little girls, nine and seven, or probably younger when this

all started. They loved you, they trusted you, they depended on you, and

they obeyed you, I’m sure.

And you’ve hurt not only them; you’ve hurt your whole family. One of the

things about this kind of crime is it’s so bad, people don’t want to believe that

somebody they know could do something like this. It’s just – it’s a bad– it’s

just not very– not hardly imaginable.

People just can’t imagine somebody doing what you have done. And

therefore, they think, well, the children must not be telling the truth, or the
The highlighted portion is the portion of the record of which appellant complains. 2

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children’s parents must be putting them up to it, or, you know, all kinds of

things, making excuses for you. And really, you’re the one that’s caused it

all. So the whole family is torn apart. Your wife now is going to have to live

without you.

I appreciate Mr. Everitt’s arguments about alcohol, and you may be –

certainly may be an alcoholic. You certainly may drink too much, and I’m

sure that’s true, but alcohol is not the cause for what you’ve done.

What you have done has much deeper roots than just drinking too much or

being drunk on occasion. Now, we’ve heard a lot of different instances where

you were acting inappropriately with these children. I dare say I don’t think

you were intoxicated every time this happened.

Unfortunately for you, they haven’t really come up with a good way to

cure pedophiles. In fact, there’s hardly any cure at all for pedophiles.

That means if someone is released back into society, they’re very likely

to recommit the same offense, maybe with different victims, but

basically the same offense.

And about the only way we can protect society from pedophiles is to

get them out of society and keep them out of society.2

The trial court then pronounced the sentences that appellant appeals.

Discussion

Appellant contends that the highlighted portion of the trial court’s statements

indicates that the trial court improperly increased the sentences imposed on appellant.

This is so, according to appellant, because the trial court relied on unreliable or false

information in assessing the punishment. However, the record clearly demonstrates that
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appellant never objected to the statements by the trial court, during the trial or in any posttrial motions, or in any manner placed the trial court on notice of his current contention.

To preserve error for appellate review, a party must present a timely objection to the trial

court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P.

33.1(a); Trevino v. State, 174 S.W.3d 925, 927 (Tex.App.–Corpus Christi 2005, pet. ref’d).

Even claims of constitutional violations can be waived by a failure to object. Trevino, 174

S.W.3d at 927. "All a party has to do to avoid the forfeiture of a complaint on appeal is to

let the trial judge know what he wants, why he thinks himself entitled to it, and to do so

clearly enough for the judge to understand him at a time when the trial court is in a proper

position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.

1992) (en banc). 

Appellant concedes that there was no objection lodged at trial, but argues that this

court may proceed to consider the trial court’s actions when the trial court solicited,

procured, considered, and relied on inherently unreliable information to determine the

sentence. Arnold v. State, No. 05-07-00120-CR, 2008 Tex.App. LEXIS 5747

(Tex.App.–Dallas July 31, 2008, no pet.) (not designated for publication). However, on

close review, the Arnold opinion is clearly distinguishable from the facts of the present

case. In Arnold, the trial court, after receiving an open plea in a drug case in which the

defendant was requesting a deferred adjudication, stated that the defendant’s story was

incredible and unbelievable. Id. at *2-*3. However, the trial court stated that, if the

defendant could convince the court that the defendant’s story was true by passing a

polygraph, then the court would grant a deferred adjudication. Id. at *3. The defendant
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agreed but subsequently failed the polygraph test. Id. at *4. After reconvening the

punishment hearing, the trial court found appellant guilty and sentenced him to ten years

incarceration. Id. at *4-*5. The Dallas Court of Appeals pointed out that, even though the

polygraph results were neither offered nor admitted into evidence, the trial court clearly

solicited, procured, considered and relied on them. Id. at *8. Accordingly, the court in

Arnold concluded appellant had not waived the argument by failing to object to the

proceeding. Id. at *16-*17. 

Those operative facts are not present in the case before the court. Appellant cannot

cite the court to a single reference in the record that supports the theory that the trial court

considered unreliable or false information or evidence in order to increase his sentence in

making its sentence determination. Therefore, appellant’s failure to object has resulted in

a waiver of any complaint on appeal. Trevino, 174 S.W.3d at 927.

Even were we to conclude that appellant had not waived the argument, it would be

of no assistance. The record demonstrates that the trial court was expressing an opinion

about the nature of the conviction of appellant on multiple counts of aggravated sexual

assault and indecency with a child. However, appellant does not direct us to, nor does the

record show, any evidence explaining what affect, if any, the referenced statement had on

the trial court’s sentence determination. The court had never indicated what the sentence

was to be, therefore it is illogical to state that the referenced statement shows he was

increasing the sentence for some illicit reason. For all of these reasons, appellant’s issue

is overruled. 
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Conclusion

Having overruled appellant’s sole issue, the trial court’s judgment is affirmed. 

Mackey K. Hancock

 Justice

Do not publish.