CASE NUMBER 03-14-00802-CR

PEDRO ELIZONDO MARTINEZ, JR. COURT OF APPEALS

Appellant 

VS. THIRD DISTRICT OF TEXAS

THE STATE OF TEXAS AUSTIN, TEXAS

On appeal from the 26th Judicial District Court 

Williamson County, Texas 

Cause Number 13-1936-K26 

APPELLANT’S BRIEF

Oral argument is not requested 

unless requested by the State or this Court

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com

ACCEPTED

03-14-00802-CR

6026008

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/10/2015 5:01:01 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/10/2015 5:01:01 PM JEFFREY D. KYLE Clerk
Appellant’s Brief, 03-14-00802-CR 

Page 1 of 25

IDENTITY OF PARTIES & COUNSEL

Trial Par ties

THE STATE OF TEXAS MR.PEDRO ELIZONDO MARTINEZ,JR.

Defendant

Trial Counsel 

MR. GEOFFREY PURYEAR

Counsel for the State 

State Bar Number 24054396 

405 Martin Luther King, Box 1 

Georgetown, Texas 78626 

ph (512) 943-1234 fax (512) 943-1255 

email gpuryear@wilco.org

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com

Appellate Par ties

MR.PEDRO ELIZONDO MARTINEZ,JR.

Appellant

THE STATE OF TEXAS

Appellate Counsel

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com

THE HONORABLE JANA DUTY

Counsel for the State 

State Bar Number 24000244 

405 Martin Luther King, Box 1 

Georgetown, Texas 78626 

ph (512) 943-1234 fax (512) 943-1255 

email jprezas@wilco.org
Appellant’s Brief, 03-14-00802-CR 

Page 2 of 25

TABLE OF CONTENTS

Index of Authorities ................................................................................................. 3

Cases ...................................................................................................................... 3

Statutes & Rules.................................................................................................... 3

Statement of the Case .............................................................................................. 4

Statement Regarding Oral Argument .................................................................. 5

Issues Presented ........................................................................................................ 6

Statement of Facts .................................................................................................... 7

Summary of the Argument ................................................................................. 11

Argument.................................................................................................................. 12

Issue One—Legal Sufficiency of Deadly Weapon Finding ......................... 12

a. Legal Sufficiency ................................................................................. 12

b. Vehicles as Deadly Weapons .............................................................. 12

c. Reckless Driving .................................................................................. 13

d. Capability of Causing Death or Serious Bodily Injury ................... 16

e. Remedy ................................................................................................. 17

Issue Two—Injured Constable Testimony .................................................... 18

a. Preservation of Evidentiary Error .................................................... 18

b. Relevance .............................................................................................. 18

c. Prejudice ............................................................................................... 19

d. Review of Evidentiary Error ............................................................. 20

e. Harm Analysis ..................................................................................... 21

f. Remedy ................................................................................................. 22

Prayer ......................................................................................................................... 23

Certificate of Compliance ................................................................................... 24

Certificate of Service ............................................................................................ 25
Appellant’s Brief, 03-14-00802-CR 

Page 3 of 25

INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................ 12 

Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003) .................................... 14–16 

Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005) ........................... 13–17, 19 

Foley v. State, 327 S.W.3d 907 (Tex. App.—Corpus Christi 2010, no pet.) .... 16, 17 

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 14 

Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................. 12, 15 

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) ................................. 21, 22 

Mann v. State, 13 S.W.3d 89 (Tex. App.—Austin 2000, pet. granted) ...... 13–16, 19 

Mann v. State, 58 S.W.3d 132 (2001)............................................................. 13–16, 19 

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ..................................... 20 

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................... 18, 19 

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) .......................................... 21 

Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) ..................................... 17 

Pointe v. State, 371 S.W.3d 527 (Tex. App.—Beaumont 2012, no pet.) .......... 14, 15 

Powell v. State, 189 S.W.3d 285 (Tex. Crim. App. 2006) ......................................... 19 

Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) .................. 20 

Sierra v. State, 280 S.W.3d 250 (Tex. Crim. App. 2009).............................. 12–17, 19 

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ........................................ 12 

Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) ................................ 13, 15, 16 

Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) ..................................... 19 

Statutes & Rules

TEX. PEN. CODE ANN. § 1.07 (a)(17)(B) (West 2011) ....................................... 12 

TEX. R. APP. PROC. 33.1 (a) ................................................................................... 18 

TEX. R. APP. PROC. 44.2 (b) .................................................................................. 21 

TEX. R. EVID. 401 ................................................................................................... 18 

TEX. R. EVID. 403 ................................................................................................... 19 
Appellant’s Brief, 03-14-00802-CR 

Page 4 of 25

STATEMENT OF THE CASE

The appellant, Pedro Elizondo Martinez, Jr. (“Martinez”), proceeded to 

trial on an indictment for driving while intoxicated third or more on November 

17, 2014. 2 R.R. at 4. The indictment also alleged that Martinez used a motor 

vehicle as a deadly weapon during the commission of the offense. 3 R.R. at 7. 

On November 19, 2014, the jury convicted Martinez and found the deadly 

weapon allegation true. 3 R.R. at 181. Following the punishment phase of trial 

the next day, which included proof of multiple prior felony DWI convictions 

that had resulted in a single prior “pen trip” (enhancing punishment to that of a 

second degree felony), the jury sentenced Martinez to 17 years of incarceration 

with no fine. 4 R.R. at 82. That conviction is the basis of this appeal. 
Appellant’s Brief, 03-14-00802-CR 

Page 5 of 25

STATEMENT REGARDING ORAL ARGUMENT

The appellant is not requesting oral argument because the issues presented 

in this appeal are not novel and the record is straightforward. However, if the 

State requests oral argument or this court believes it would help resolve this 

matter, the appellant would like an opportunity to appear and argue. 
Appellant’s Brief, 03-14-00802-CR 

Page 6 of 25

ISSUES PRESENTED

Martinez presents two issues on appeal: 

Issue One Deadly Weapon Finding 

Was the evidence legally sufficient to support a deadly weapon 

finding? 

Issue Two Injured Constable Testimony 

Did the trial court abuse its discretion by per mitting testimony 

about an injured constable over Mar tinez’s objections to 

relevance and prejudice, and did that cause har m affecting 

Mar tinez’s substantial rights? 
Appellant’s Brief, 03-14-00802-CR 

Page 7 of 25

STATEMENT OF FACTS

The indictment in this case charged Martinez with driving while 

intoxicated third or more and the use of a vehicle as a deadly weapon during the 

offense. 3 R.R. at 7. At trial, the evidence relevant to this appeal showed that a 

Rodolfo Pena, a Williamson County Sheriff ’s Deputy, was dispatched to an 

accident along a stretch of North Interstate 35 for a welfare check. 3 R.R. 23. He 

did not witness the accident, and noted only that Martinez’s vehicle had 

apparently collided with the retaining wall. 3 R.R. at 24–26. Pena also testified 

that traffic “was light” that night. 3 R.R. at 28. His contact with the scene was 

brief, and Pena ultimately referred the investigation to arriving Georgetown 

Police Department officers and left for another call. 3 R.R. at 25. 

Those responding officers—John Cochran and his field training officer, 

David McDonald—did not observe the accident either, of course. 3 R.R. 32–33 

& 56. Cochran soon determined that the accident had occurred after Martinez 

hydroplaned, causing him to strike the retaining wall. 3 R.R. at 34 & 58. The truck 

suffered moderate frontend damage, but Mr. Martinez was uninjured. 3 R.R. at 

39–40. After noting some signs of intoxication, he asked Martinez to perform 

the standard field sobriety tests, which Martinez refused. 3 R.R. at 42–45. No 

breath or blood test was ever obtained, either. 3 R.R. at 94. 

As for the traffic on the roadway and the danger posed by Martinez’s 

accident, Cochran testified only that motor vehicles “can cause serious bodily 

injuries . . . and fatalities.” 3 R.R. 50. However, having arrived some time after 
Appellant’s Brief, 03-14-00802-CR 

Page 8 of 25

the accident, Cochran testified generally and hypothetically that there were other 

cars on the roadway “that evening” and “on a Wednesday evening around 9:30” 

it was “common for families to be out on the road.” 3 R.R. at 51. He made no 

reference to the cause of the accident, the conditions on the roadway, or any 

actual people who may have been endangered; instead, his conclusion was based 

on the fact that the defendant was involved in an accident and that his vehicle 

was theoretically “capable of causing a collision with another vehicle.” Id. 

As the lead investigator, the person who completed the accident report, 

and someone who had experienced hydroplaning as a driver, Cochran did testify 

that the accident in this case—hydroplaning—was not caused by something 

Martinez did, but by the loss of tire grip in the wet conditions. 3 R.R. at 59. His 

accident report stated that the cause of the accident was that Martinez’s vehicle 

had left its lane. 3 R.R. at 60. (It did, however, list use of alcohol and failure to 

control speed as “possible contributing factors.” 3 R.R. at 89–90.) 

Only two pieces of evidence addressed the accident as it happened. The 

first came in the form of hearsay about another officer named Morris who was 

apparently attending to another call across the freeway. He saw the accident 

happen and reported simply “there’s been a motor vehicle accident and this is 

where it is” to dispatch. 3 R.R. at 57. The other direct account came from 

Martinez himself. State’s Exhibit 7 included video from the backseat of 

Cochran’s vehicle, where Martinez was heard rhetorically asking what he could 

have done after he began hydroplaning, answering “I couldn’t step on the brake.” 
Appellant’s Brief, 03-14-00802-CR 

Page 9 of 25

Cochran conceded that Martinez’s reaction was the proper one during a 

hydroplane. 3 R.R. at 102. 

Cochran’s field training officer, David McDonald, added nothing about 

the accident except for an unrelated anecdote that was objected to by defense 

counsel. The exchange went as follows: 

[McDonald]: I’ve worked—actually been on scene a couple of times. A 

constable working overtime one morning was hit in the rear— 

[Defense]: Objection, Your Honor, relevance and more prejudicial than 

probative. 

[State]: Your Honor, it’s going to the fact that we have alleged a deadly weapon 

in this offense, and it goes to the fact that a motor vehicle is capable of causing 

serious bodily injury or death. 

[Defense]: Once again, as we explored with the other officer, Judge, we need 

to talk about this case, not what has happened in any other case. That’s not 

relevant and the danger of undue prejudice is too great to go into other cases 

that may have happened. 

[State]: If I may, Your Honor. The vehicle was stopped on a lane of traffic, 

and if this officer does have information— 

[Court]: Overruled. Move on. 

[State]: Thank you, Your Honor. 

[Court]: You may answer the question. 

[McDonald]: I believe it was in 2012. We worked an accident on I-35 about a 

mile up from where this accident occurred. A deputy constable was working 

an overtime gig providing traffic control for a construction site, and he was hit 

in the rear as he was parked with his emergency lights activated by what was 

determined to be an intoxicated driver and he was seriously injured and sent 

to the hospital.

3 R.R. at 119–20. 
Appellant’s Brief, 03-14-00802-CR 

Page 10 of 25

After the conclusion of McDonald’s testimony, the state rested its case in 

chief, and defense counsel moved for a directed verdict on the deadly weapon 

issue. 3 R.R. at 128. Counsel provided the court with supporting case law and 

argued that the state had not “presented even a scintilla of evidence that 

show[ed] how the defendant operated his vehicle at the time of the offense.” Id. 

The crux of the defendant’s position was that although a vehicle as such could 

always theoretically be a deadly weapon, in the defendant’s case the only evidence 

of the defendant’s driving was that the accident had not been his fault and that 

he had reacted prudently upon hydroplaning, and there was no evidence that 

anyone was present and actually in any danger whatsoever. 3 R.R. at 129; id. at 

132–33. The state responded that “that the way the vehicle was driven . . . 

hydroplaning after ingesting amounts of alcohol, the level of traffic . . ., the time 

of day [and] day of the week” supported a deadly weapon finding. 3 R.R. at 131. 

The court denied the motion for directed verdict. 3 R.R. at 134. 

Both sides then rested and closed and the case was submitted to the jury. 

3 R.R. at 136. The court’s charge included the statutory definition of “deadly 

weapon” and a fairly standard instruction requiring the jury to determine beyond 

a reasonable doubt whether the defendant’s vehicle had been used as one during 

the offense. 3 R.R. at 141–43. After arguments and deliberation, the jury returned 

a verdict of guilty and an affirmative deadly weapon finding. 3 R.R. at 180–81. 

Following evidence and deliberations in the punishment phase of trial, the 

jury assessed punishment at 17 years of incarceration with no fine. 4 R.R. at 82. 
Appellant’s Brief, 03-14-00802-CR 

Page 11 of 25

SUMMARY OF THE ARGUMENT

The arguments raised by this appeal cover two issues: the legal sufficiency 

of the deadly weapon finding and the admission of McDonald’s testimony about 

the injured constable. 

The evidence was legally insufficient to support a deadly weapon finding 

because there is, at most, a mere modicum of evidence that supports the two 

sub-issues required for a deadly weapon finding in a case of this variety. As to 

the first, there was scant evidence that the defendant drove in a reckless manner; 

he was not grossly intoxicated, broke no traffic laws, was not at-fault for the 

single-car accident he was involved in, and reacted correctly to the hazardous 

situation as it developed. And as to the second, nothing was introduced that 

demonstrated that Martinez’s vehicle was capable of causing death or serious 

bodily injury; there was no evidence at all of any other person actually 

endangered by the accident beyond pure speculation. The insufficiency of this 

evidence warrants deletion of the deadly weapon finding from the judgment. 

McDonald’s testimony, which was timely and specifically objected to, was 

not relevant, and based on the appropriate balancing test, any probative value it 

had was substantially outweighed by the danger of unfair prejudice. After 

performing a harm analysis, there can be no fair assurance that the disputed 

testimony had no or only slight effect on the jury’s decisions, and thus, on 

defendant’s substantial rights. That warrants reversal and remand for a new trial. 
Appellant’s Brief, 03-14-00802-CR 

Page 12 of 25

ARGUMENT

Issue One Legal Sufficiency of Deadly Weapon Finding

The evidence was legally insufficient to support a deadly 

weapon finding 

 a. Legal Sufficiency 

Legal sufficiency is tested by deciding whether—viewing the evidence in 

the light most favorable to the verdict—any rational jury could have found the 

issue true beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 896 (Tex. 

Crim. App. 2010) (applying standard announced in Jackson v. Virginia, 443 U.S. 

307 (1979)). The “most favorable to the verdict” language means that sufficiency 

review must defer to the jury’s determinations of weight and credibility and 

resolve any conflicting evidence in favor of the verdict. Jackson, 443 U.S. at 318–

19; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d 

at 912. However, there must still be enough evidence to permit a rational jury to 

find the issue beyond a reasonable doubt, so a mere modicum of probative 

evidence is still insufficient. Jackson, 443 U.S. at 320. 

 b. Vehicles as Deadly Weapons 

A “deadly weapon” includes “anything that in the manner of its use or 

intended use is capable of causing death or serious bodily injury.” TEX. PEN.

CODE ANN. § 1.07 (a)(17)(B) (West 2011). A motor vehicle can be a deadly 

weapon in a felony DWI case if the manner in which it was actually used was 

capable of causing death or serious bodily injury. Sierra v. State, 280 S.W.3d 250, 
Appellant’s Brief, 03-14-00802-CR 

Page 13 of 25

254–55 (Tex. Crim. App. 2009); Mann v. State, 58 S.W.3d 132, 132 (2001) 

(adopting Mann v. State, 13 S.W.3d 89, 91–92 (Tex. App.—Austin 2000)). That 

involves a two-part analysis: the manner of the vehicle’s use, and whether that it 

made capable of causing death or serious bodily injury. Sierra, 280 S.W.3d at 255. 

 c. Reckless Driving 

Although there is no specific benchmark for assessing driving in this 

context, the principal issue is generally “whether a defendant’s driving was 

reckless or dangerous during the commission of a felony.” Id. at 255. Other 

factors may include violation of traffic laws and fault for any collision. Id. at 256. 

In Sierra, the defendant’s driving was reckless because the defendant was 

speeding and made no effort to brake in a situation where an unimpaired driver 

would have, causing an accident. Id. In Tyra, the defendant’s driving was reckless 

because the defendant was “too drunk to control the vehicle.” Tyra v. State, 897 

S.W.2d 796, 798 (Tex. Crim. App. 1995). In Mann, the defendant’s driving was 

reckless because the defendant was incredibly intoxicated and crossed over into 

opposing traffic, avoiding an accident only because an oncoming vehicle 

successfully “took evasive action.” Mann, 13 S.W.3d at 92. In Drichas, the 

defendant’s driving was reckless because the defendant almost struck a police 

officer then sped and ran stop signs, ultimately leading police from multiple 

agencies on a fifteen minute high speed chase in which the vehicle was frequently 

out of control and culminating in a “bailout” that sent the driverless truck into 
Appellant’s Brief, 03-14-00802-CR 

Page 14 of 25

a parked van, which it pushed into a mobile home. Drichas v. State, 175 S.W.3d 

795, 797–98 (Tex. Crim. App. 2005). 

It is worth noting that while some of these cases point to intoxication as 

a factor indicating reckless driving, in each, the level of intoxication was great 

and directly caused dangerous driving. As noted in an opinion concurring with 

Mann, intoxication, “in and of itself, should not be enough to authorize a finding 

of the use of a deadly weapon.” Mann, 58 S.W.3d at 133 (Johnson, J., concurring, 

joined by Price and Cochran, JJ.). The Sierra court prominently pointed to that 

rationale and a lower court’s rejection of the argument that the “single factor of 

intoxication [was] ‘the most dangerous and reckless of them all,’” while 

admittedly declining to settle the issue. Sierra, 280 S.W.3d at 256. 

By contrast, in Cates, the defendant’s driving was not reckless because the 

evidence showed only that the defendant may have been speeding but properly 

stopped at a traffic light. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 

2003). And in Pointe, the defendant’s driving was not reckless because although 

another driver testified to not seeing the defendant before a collision, that was 

not enough to support the conclusion that the defendant was speeding or did 

not have headlights on. Pointe v. State, 371 S.W.3d 527, 532 (Tex. App.—Beaumont 

2012, no pet.). That is, “while a jury may draw multiple reasonable inferences 

from the evidence, it cannot draw conclusions based on speculation.” Id. (citing 

Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)). 
Appellant’s Brief, 03-14-00802-CR 

Page 15 of 25

In this case, there was little evidence of Martinez’s driving. He consumed 

a few beers at some time that evening and hydroplaned while driving later, which 

led to a single-vehicle accident. There was also the non-expert opinion of Officer 

Cochran (who did not see the accident or perform an accident reconstruction) 

that intoxication or failure to control speed may have been “contributing factors” 

to the accident. Yet there is no evidence any traffic laws were broken, and 

Cochran admitted that Martinez’s driving did not cause the hydroplane and that 

Martinez responded correctly to the hazardous situation when it occurred. 

These facts are worlds apart from those in Sierra, Tyra, Mann, or Drichas, 

which involved high levels of intoxication, at-fault accidents, traffic violations, 

and patently dangerous situations that threatened numerous drivers. The only 

similar factor is intoxication. However, in cases like Tyra and Mann, much was 

made about the extreme extent of those defendants’ intoxication. Here, the 

evidence demonstrated that while Martinez may have been legally intoxicated, it 

was at a low level and did not cause the accident or hinder his reaction to it. 

At best, Martinez’s case provides Jackson’s insufficient “mere modicum” of 

evidence of reckless driving. It is much more akin to Cates, where there may have 

been speeding but other factors indicated safe driving, and Pointe, where there 

was so little evidence from which to draw after-the-fact inferences about the 

defendant’s driving that doing so was an exercise in rank speculation. Just like 

those cases, the evidence of Martinez’s driving does not establish recklessness. 
Appellant’s Brief, 03-14-00802-CR 

Page 16 of 25

 d. Capability of Causing Death or Serious Bodily Injury 

The second inquiry—capability of causing death or serious bodily 

injury—is about the circumstances the vehicle is used in. “[A] deadly weapon 

finding requires evidence that others were endangered, and not merely a 

hypothetical potential for danger if others had been present.” Mann, 13 S.W.3d 

at 92; accord Sierra, 280 S.W.3d at 256; Drichas, 175 S.W.3d at 798–99. That means 

there must be “evidence that another motorist was on the highway at the same 

time and place as the defendant when the defendant drove in a dangerous 

manner.” Drichas, 175 S.W.3d at 799. 

In Tyra, others were endangered because the defendant actually killed 

someone. Tyra, 897 S.W.2d 799. In Sierra and Mann, others were endangered 

because there was direct evidence that those defendants almost struck other 

motorists. Sierra, 280 S.W.3d at 25; Mann, 13 S.W.3d at 92. 

By contrast, in Cates, no others were endangered because the evidence did 

not show whether there was anyone else on the road with the defendant at the 

time of the accident. Cates, 102 S.W.3d at 738. And in Foley, no others were 

endangered because the evidence showed that the closest person to the accident 

was sixty feet away inside a building and did not show whether there was anyone 

else on the road at the time of the accident. Foley v. State, 327 S.W.3d 907, 916 

(Tex. App.—Corpus Christi 2010, no pet.). 

In Martinez’s case, unlike in Tyra, no one was killed or even injured. And 

whereas Sierra and Mann highlighted other motorists who were actually put in 
Appellant’s Brief, 03-14-00802-CR 

Page 17 of 25

danger, there was no evidence at all that others were endangered at the time of 

Martinez’s accident. The only eyewitness account of the incident came from an 

officer on the other side of the highway behind a concrete barrier. The hearsay 

testimony about what that officer told dispatch made no mention at all of any 

people or vehicles at the time, and that officer was at least as safe some distance 

away with a concrete retaining wall between him and Martinez as the office 

worker some distance away inside a building in Foley. 

There was testimony that there was light traffic in the area when officers 

arrived. Not only does “light” fail to inspire confidence that other drivers were 

endangered, the testimony offered to establish traffic during the accident—that 

there was traffic at other times that evening and that it was common for families 

to be on the road at that day and time—was quite literally the sort of conjecture 

that Sierra, Drichas, and Mann prohibit. In Martinez’s case, as with Cates, there was 

simply no evidence (not even a modicum) that anyone was actually endangered 

by the driving in question, which renders the evidence insufficient to show that 

Martinez’s vehicle as-used was capable of causing death or serious bodily injury. 

 e. Remedy 

The proper remedy for an improper deadly weapon finding is for the 

reviewing court to simply delete it. Plummer v. State, 410 S.W.3d 855, 856 (Tex. 

Crim. App. 2013); Drichas, 175 S.W.3d at 798. That is the correct result here, 

where the issue should never have even been submitted to the jury over 

Martinez’s motion for directed verdict on the matter. 
Appellant’s Brief, 03-14-00802-CR 

Page 18 of 25

Issue Two Injured Constable Testimony

The trial cour t abused its discretion by per mitting testimony 

about an injured constable over Mar tinez’s objections to 

relevance and prejudice, which caused har m affecting 

Mar tinez’s substantial rights 

 a. Preservation of Evidentiary Error 

Any error related to the admission of evidence must be preserved by a 

timely objection at trial. TEX. R. APP. PROC. 33.1 (a). Here, when Officer 

McDonald offered his story about the constable who was once seriously injured 

by a drunk driver at nearly the same location, counsel objected that the testimony 

was not relevant and that it was more prejudicial than probative. 

 b. Relevance 

Procedurally admissible evidence must still be relevant for admission. 

Evidence is relevant if it makes “any fact that is of consequence” to the case 

“more probable or less probable.” TEX. R. EVID. 401. The test is whether a 

reasonable person would find the evidence helpful in resolving a matter of 

consequence to the trial. Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 

1990). Officer McDonald’s testimony was in no way relevant—it concerned a 

situation and parties wholly disconnected from Martinez’s case and had no 

bearing on the probability of any fact that mattered to the case. 
Appellant’s Brief, 03-14-00802-CR 

Page 19 of 25

 c. Prejudice 

Even relevant evidence may still be excluded “if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, or needless 

presentation of cumulative evidence.” TEX. R. EVID. 403. Weighing probative 

value against prejudice is done by balancing 

(1) how probative the evidence is; (2) the potential of the evidence to impress 

the jury in some irrational way; (3) the time the proponent will need to develop 

the evidence; and (4) the proponent’s need for the evidence, i.e., whether other 

evidence is available and whether the fact of consequence is related to a 

disputed issue. 

Montgomery, 810 S.W.2d at 378; accord Powell v. State, 189 S.W.3d 285, 287 (Tex. 

Crim. App. 2006). Once a Rule 403 objection has been made, a trial court must

perform this balancing test; if the record is silent on that point, an appeals court 

must presume the trial court did so but simply did not put it on the record. 

Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997). 

Even if the injured constable testimony was relevant, applying the 

balancing test to Martinez’s case still weighs in favor of exclusion. The evidence 

has no probative value whatsoever. Its purpose was to support the deadly weapon 

allegation, but as Sierra, Drichas, and Mann all expressly hold, that cannot be done 

through hypothetical or speculative testimony; what happened once in another 

situation was of no consequence to Martinez’s case. Yet the evidence did have 

the potential to impress the jury in an irrational way by directly connecting 

Martinez’s accident, which harmed no one, with an accident involving an entirely 
Appellant’s Brief, 03-14-00802-CR 

Page 20 of 25

different person, place, and time in which a law enforcement officer was seriously 

injured and hospitalized. While the time the prosecution needed to develop the 

evidence was relatively short, which favors admission, other evidence was readily 

available to support the deadly weapon issue if it was supportable, such as the 

testimony of Officer Morris, who was said to have been an eyewitness to the 

accident but did not testify at trial. On balance, with three of the four factors 

militating against admissibility (and arguably the three most important factors at 

that), the testimony should have been excluded. 

 d. Review of Evidentiary Error 

Admissibility decisions by a trial court are reviewed for abuse of 

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval 

v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). Admitting 

evidence is an abuse of discretion if the decision on admissibility “lies outside 

the zone of reasonable disagreement.” Martinez, 327 S.W.3d at 736. In Martinez’s 

case, the disputed testimony could not legally have affected the outcome of the 

deadly weapon finding, which (as discussed at length as part of Martinez’s first 

point of error) cannot be based on a hypothetical scenario about what could 

have happened. As a result, there can be no reasonable disagreement about 

whether the testimony was relevant and certainly none about its prejudicial 

nature. The court abused its discretion by admitting it. 
Appellant’s Brief, 03-14-00802-CR 

Page 21 of 25

 e. Harm Analysis 

Improper admission of evidence is a non-constitutional error, so when an 

abuse of discretion has been shown, the next step is a harm analysis to determine 

whether the error affected any “substantial rights.” Motilla v. State, 78 S.W.3d 352, 

355 (Tex. Crim. App. 2002); see TEX. R. APP. PROC. 44.2 (b) (standards for nonconstitutional errors). Inadmissible evidence does not affect any substantial 

rights “if the 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, 78 S.W.3d at 355 (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. 

App. 1998)). That determination is made by considering 

everything in the record, including any testimony or physical evidence admitted 

for the jury’s consideration, the nature of the evidence supporting the verdict, 

the character of the alleged error and how it might be considered in 

connection with other evidence in the case. The reviewing court may also 

consider the jury instructions, the State’s theory and any defensive theories, 

closing arguments and even voir dire, if applicable. We have also recognized 

that whether the State emphasized the error can be a factor. 

Id. at 355–56. 

Martinez’s case was a “total refusal” DWI with no field sobriety, breath, 

or blood test evidence and no overwhelming proof of intoxication from other 

factors. While Martinez does not challenge the bare sufficiency of that evidence, 

it was a close, vigorously disputed trial. By connecting Martinez’s non-injury case 

with a wholly separate matter that involved substantial injuries to a law 

enforcement officer, the prosecution inflamed the jury against Martinez. It may 

have influenced both the affirmative deadly weapon finding and the finding of 
Appellant’s Brief, 03-14-00802-CR 

Page 22 of 25

guilt itself, either of which is much more than a “slight effect” in case like this. 

Yet as discussed above, it is not evidence that could have legally supported either 

issue, and it certainly was not invited by any defensive theory. Although the state 

did not emphasis the testimony in argument, the prosecutor’s speaking response 

to counsel’s objection highlighted the testimony for the jury. The inadmissible 

testimony as a whole likely affected the jury’s decision-making, and therefore, 

Martinez’s substantial rights. 

 f. Remedy 

If a court cannot assure itself that inadmissible evidence had no or only 

slight effect on the verdict, the proper remedy is reversal and remand for a new 

trial. Johnson, 967 S.W.2d at 417. That is the appropriate outcome here. 
Appellant’s Brief, 03-14-00802-CR 

Page 23 of 25

PRAYER

Martinez moves this court reverse the judgement of the trial court and 

remand the case for a new trial there. Alternatively, if this court finds only that 

the evidence was legally insufficient to support at a deadly weapon finding, then 

Martinez moves this court to modify the judgment in this case by deleting the 

deadly weapon finding. 

RESPECTFULLY SUBMITTED, 

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com
Appellant’s Brief, 03-14-00802-CR 

Page 24 of 25

CERTIFICATE OF COMPLIANCE

I certify that the parts of this document not excluded under TEX. R. APP.

PROC. 9.4 (i)(1) contain a total of 4,159 words according to the word count of 

the computer program used to prepare the document. 

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com
Appellant’s Brief, 03-14-00802-CR 

Page 25 of 25

CERTIFICATE OF SERVICE

I certify that on July 10, 2015, a true and correct copy of this document 

was served on the Honorable Jana Duty (whose address is 405 Martin Luther 

King, Box 1, Georgetown, Texas 78262) through the electronic filing manager. 

MR. ELLIC SAHUALLA

Counsel for Appellant 

State Bar Number 24057365 

600 W. 13th St. Austin, Texas 78701 

ph (512) 921-8247 fax (512) 451-5882 

email ellic@sahuallalaw.com