IN THE

TENTH COURT OF APPEALS

No. 10-20-00074-CR

JOE MARTINEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2017-1416-C2

MEMORANDUM OPINION

The grand jury indicted Joe Martinez for eight counts of indecency with a child 

younger than fourteen years of age by contact. The State amended the indictment on two 

occasions and the trial proceeded on eight counts of indecency with a child younger than 

seventeen years of age.

After a jury trial, the jury convicted Martinez on all eight counts of the indictment, 

assessed punishment on each count at confinement for twenty years, and imposed a fine 
Martinez v. State Page 2

of $5,000 on each count. The trial court sentenced Martinez accordingly and ordered that 

the sentences in relation to counts II and III were to run consecutively; otherwise, the 

sentences were to run concurrently. We reverse and render in part and affirm in part.

Jane Doe (J.D.) is the individual named by the State as the person upon whom 

Martinez committed the offenses alleged in the indictment. Jane Doe is a pseudonym. 

J.D. was born on August 8, 1989. She first met Martinez through a program called 

Young Marines. Young Marines is a disciplinary program as well as a program for young 

adults or children who want to join the military when they become adults. Martinez 

started the Greater Waco Young Marines program in Waco.

Disciplinary problems led J.D.’s older brother, Tony, to join the Young Marines. 

J.D. joined the Young Marines when she was in the fourth grade and around ten years 

old. J.D. joined, not because of disciplinary reasons, but because she wanted to do 

something with her brother.

Rebecca Martinez is J.D.’s mother. At some point, Rebecca met Martinez and later, 

on December 31, 2001, they were married. J.D. testified that Martinez made her 

uncomfortable even before her mother married him. He “excessively complement[ed] 

my body, my looks, my blond hair, hugging me differently than I had been hugged 

before, holding me differently, rubbing my back differently.” J.D. told her mother that 

Martinez made her uncomfortable, but her mother became angry with her and told her 

that she was wrong, and that Martinez had done nothing wrong.
Martinez v. State Page 3

J.D. testified about an incident that took place about six months after Rebecca and 

Martinez married; J.D. was twelve years old and in the sixth grade at the time. Martinez 

began to scratch her back as he had done before. However, this time instead of scratching 

J.D.’s back on the outside of her t-shirt, as he had always done, he put his hand under her 

shirt. Martinez scratched back and forth from her bra line to the top of her basketball 

shorts; J.D. had just begun to wear a bra. As he scratched J.D.’s back, Martinez put his 

fingers under her bra strap and “went from side to side on my back and then he went to 

the side.” J.D. further testified that “[w}here my side and my arm were meeting, it 

stopped his hand from fully going around.” That incident is not one of the offenses 

charged in this case.

J.D. did not tell her mother about the incident. However, she did tell Tony. Tony 

suggested that J.D. talk to Rebecca; she did. Martinez was present at the time of the 

conversation. Martinez and Rebecca told J.D. that she was just hormonal and 

overreacting. Even after that conversation, Martinez continued to support J.D. in her 

activities and in her academics; he referred to as his favorite.

J.D. also testified that from the time that J.D. was twelve until she was fourteen, 

Martinez continued to touch her “as far as rubs, scratches, tickles on my back over my 

shirt or with my feet or my legs.” However, J.D. said that Martinez did nothing 

“inappropriate” to her during that time.
Martinez v. State Page 4

According to J.D., things changed in the fall of her freshman year when J.D. was 

around fourteen. Martinez, as he had done many times before, began to rub J.D.’s feet

and her legs up to her knee. This time, though, something different happened. Instead 

of stopping at J.D.’s knee, Martinez began to rub J.D.’s inner thigh and moved up her 

thigh and, “[as] he would rub my thigh, every so often he might drag his fingers from the 

front sides up my vagina and down and then go back to rubbing my leg.” J.D. could not 

recall how many times that Martinez touched her vagina on this occasion, but she did 

remember that it was several times, more than one but not over five.

When asked how often Martinez touched her in this way, J.D. testified, “[n]ot 

often. Two to three times a year for two to three years.” She clarified her answer: “I 

would say two years,” around eight times.

The inappropriate touching stopped when J.D. started driving; she stayed away 

from Martinez. Also, J.D. began to put up barriers such as putting a pillow between her 

legs, wrapping herself tightly in a blanket, and other things. Also, Rebecca laid down 

several rules about what J.D. could do around Martinez including what clothing that she 

could wear, leg rubs, and positioning when Martinez gave J.D. driving instructions. 

Finally, J.D. moved out of the house when she was eighteen.

Madison VanMeter and J.D. were friends. Madison recalled that at some point, 

she, J.D. and J.D.’s sister, Brittany, had a conversation. As best we can tell from the record, 

this conversation took place before the State became involved. Madison began discussing 
Martinez v. State Page 5

a personal matter that was pending in the District Attorney’s office; she had made an 

outcry in which she asserted that she had been sexually abused by her stepfather. 

Madison’s situation contained similar allegations to those of J.D. J.D. became very 

emotional and began to cry when Madison discussed her own situation.

During those conversations, J.D. telephoned her brother, Tony. After the phone 

calls with Tony, J.D. contacted the Advocacy Center. The staff at the Advocacy Center 

advised J.D. to confront Martinez in the hopes that he would admit to the abuse and 

apologize. They would take another approach if he did not admit to and apologize for 

the abuse.

J.D., Tony, Rebecca, Brittany, and Martinez met at Martinez’ house. J.D. 

confronted Martinez. According to J.D., Martinez said, “If I knew the things that I had 

done bothered you for this long, then I would have apologized sooner.” J.D. asked 

Martinez if he knew that he had a problem. Martinez shook his head “yes” as he began 

to cry. J.D. testified that she accepted the apology and had closure.

On November 30, 2009, when J.D. was twenty years old, she gave birth to a 

daughter. J.D. was afraid that Martinez might harm her daughter if he were around her; 

J.D. decided to talk about what Martinez had done to her. She talked to her daughter’s 

father, Daniel Weiss, and Daniel’s mother, Mary Weiss. Daniel and Mary both testified 

that J.D. never told them that Martinez touched her vagina, just that Martinez had 

touched her “inappropriately.”
Martinez v. State Page 6

Later, J.D.’s sister, Brittany, gave birth to a daughter. Brittany and her daughter 

lived with Martinez and Rebecca. J.D. felt that her niece needed to be protected and she 

decided to contact the police.

Apparently, before she contacted the police, both the Texas Department of Family 

and Protective Services, Child Protection Services, and the Robinson Police Department 

became involved. The agencies became involved in April 2014. Jarvis Lewis handled the 

referral for CPS. Sergeant Michael Noel investigated the case for the Robinson Police 

Department.

Lewis testified that CPS received a referral based on an outcry that J.D. had made. 

J.D. testified that she did not contact CPS. Lewis’s concern was for J.D.’s young niece 

who was living in Martinez’s home. On April 11, 2014, Lewis interviewed Rebecca and 

Brittany and put a safety plan into effect out of concern for the safety of Brittany’s 

daughter. Under the safety plan, Brittany and her daughter were to move in with her 

brother, Tony, and his wife.

Lewis interviewed Martinez the next day. After the interview, Martinez agreed to 

vacate the home so that Brittany and her young daughter could move back into the home.

Later, Lewis interviewed J.D. and after the interview, he forwarded the case to law

enforcement.

Michael Noel, then a sergeant with the Robinson Police Department Criminal 

Investigation Division, received the referral in April 2014. Noel interviewed J.D., Tony, 
Martinez v. State Page 7

Madison, Rebecca, Mary Weiss, and Martinez. Over Martinez’s objection, Noel testified 

that he noticed no inconsistencies or “red flags” in the statements made by J.D., Tony, 

Weiss, or Madison when compared to other statements that they had made or when 

compared to each other’s statements. To the contrary, Sergeant Noel felt that Rebecca 

was neither forthcoming nor honest. It was clear to Sergeant Noel that Rebecca had a 

negative opinion of J.D. Sergeant Noel also found inconsistencies in statements that 

Martinez gave to him and those that Martinez gave to CPS.

At the conclusion of his investigation, Sergeant Noel felt that he had enough 

probable cause to arrest Martinez for indecency with a child by touching J.D.’s vagina; 

the trial of this case ensued.

In his first issue on appeal, Martinez asserts that the evidence is insufficient to 

support “Counts 1 through 6 of the indictment, therefore this Court should vacate Counts 

1 through 6.” He contends that “[t]he State failed to prove the elements of indecency with 

a child because it did not admit evidence of any illegal conduct prior to the end of 2014.”1

We take the essence of Martinez’s argument to be based upon J.D.’s testimony that 

Martinez did nothing inappropriate to her between the back rubbing incident when she 

was twelve years old and the first time that he rubbed her vagina when she was about 

fourteen. Therefore, Martinez claims that because, according to J.D.’s testimony, there 

1 We believe that Martinez intended to refer to “the end of 2004” instead of 2014, because in the body of his 

argument he maintains that “any counts that allegedly occurred prior to the end of August 2004 must be 

vacated due to legally insufficient evidence.”
Martinez v. State Page 8

are no events to tie to the “on or about” dates alleged in the first six counts of the 

indictment, the evidence is insufficient to support convictions on those counts.

The State counters that the “on or about” language in the indictment permits them 

to prove a date other than that alleged so long as the date is anterior to the indictment 

and within the statute of limitations applicable to the offense. Therefore, claims the State, 

the evidence is sufficient to support conviction on all eight counts of the indictment.

We note that Martinez’s complaint is not one about notice, but, rather, is directed 

at the sufficiency of the evidence.

 We review a challenge to the sufficiency of the evidence under the standard of 

review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 

912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 

2010, pet. ref'd). Under the Jackson standard, we review all the evidence in the light most 

favorable to the verdict and determine whether any rational trier of fact could have found 

the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.

In our review, we consider all evidence admitted at trial, including any evidence 

that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. 

Crim. App. 2013). We defer to the factfinder's role as the sole judge of the witnesses' 

credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. 

This standard accounts for the factfinder's duty to resolve conflicts in the testimony, 

weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Jackson, 
Martinez v. State Page 9

443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the 

record supports conflicting inferences, we presume that the factfinder resolved any 

conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; 

Clayton, 235 S.W.3d at 778.

We measure sufficiency of the evidence by the elements of the offense as defined 

in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. 

App. 1997). The hypothetically correct jury charge is one that “accurately sets out the 

law, is authorized by the indictment, does not unnecessarily increase the State's burden 

of proof or unnecessarily restrict the State's theories of liability, and adequately describes 

the particular offense for which the defendant was tried.” Id.

Absent circumstances not relevant here, it is not necessary for the State to allege a 

specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997). 

The general proposition in cases that involve “on or about” dates in indictments is set 

forth by the court in Sledge: “It is well settled that the ‘on or about’ language of an 

indictment allows the State to prove a date other than the one alleged in the indictment 

as long as the date is anterior to the presentment of the indictment and within the 

statutory limitation period.” Id. at 256 (citing Thomas v. State, 753 S.W.2d 688, 693 (Tex. 

Crim. App. 1988). The Sledge court also quoted the following from Thomas: “[w]here an 

indictment alleges that some relevant event transpired ‘on or about’ a particular date, the 

accused is put on notice to prepare for proof that the event happened at any time within 
Martinez v. State Page 10

the statutory period of limitations.” Sledge v. State, 953 S.W.2d at 256 (quoting Thomas v. 

State, 753 S.W.2d at 693) (emphasis added).

In Sledge, the State charged Sledge, in a two-count indictment, with the offenses of 

aggravated sexual assault and indecency with a child. The State alleged that the offenses 

occurred “on or about” August 31, 1988. The State used the date of August 31, 1988, 

because that was the last time that the alleged victim and defendant had any contact. 

However, at trial, the State proved that the alleged misconduct occurred in 1986 and 1987. 

Against Sledge’s claim that the evidence was insufficient due to the conflicting date in 

the indictment and the proof, the court held that the State could properly proceed on the 

earlier dates and that the evidence was sufficient to support the conviction. Sledge v. State, 

953 S.W.2d 253 (Tex. Crim. App. 1997).

The court in Sledge disagreed with the appellant’s claim that the evidence was 

insufficient. The court disagreed because “the dates of the offenses proven—1986 and 

1987—are anterior to the presentation of the indictment . . . and are within the ten year 

limitation period.” Sledge v. State, 953 S.W.2d at 256 (emphasis added).

The defendant in Sanchez v. State, 400 S.W.3d 595 (Tex. Crim. App. 2013) solicited 

sex online from an undercover agent who pretended to be “Molly,” a fifteen-year-old girl.

The solicitations began in a chat room in April 2004. The defendant repeatedly asked 

“Molly” if she would have sex with him. These conversations took place off and on for 

two years and focused on sex.
Martinez v. State Page 11

On January 24, 2006, “Molly” agreed to meet the defendant at her home and have 

sex. Rather than meet “Molly,” the defendant met the undercover agent.

On appeal, the court set out the general rule that we have set out above. The court 

then wrote: “What that means in the instant case is that the State could have obtained a 

conviction for any solicitations by appellant to ‘Molly’ that occurred on or before the date 

in the indictment up to the statute of limitations cutoff date.” Sanchez v. State, 400 S.W. 

3d at 600 (emphasis added). The court continued, “no conduct the State attempted to 

prove occurred outside that time frame.” Id.

The cases that we have discussed have a common denominator: the State proved 

that a relevant event or occurrence transpired that was tied to the “on or about” date. The 

case before us is different as to some of the counts in the indictment.

Because of the nature of the record in this case, in order to provide a framework 

from which we can determine the dates involved, it is necessary that we begin with the 

time when, according to J.D., Martinez placed his fingers under J.D.’s bra strap. The 

evidence shows that event occurred when J.D. was twelve years old and in the sixth 

grade. Based upon J.D.’s date of birth, the testimony that J.D. was twelve years old and 

in the sixth grade when Rebecca and Martinez were married in December 2001, and J.D.’s 

testimony that the event took place about six months after Rebecca and Martinez married, 

it appears that this event occurred in the summer 2002. As far as the record here reveals, 

that incident did not give rise to any criminal charges.
Martinez v. State Page 12

J.D. testified, without contradiction, that nothing inappropriate happened after the 

bra incident until the fall of her freshman year when she was “about” fourteen years old. 

It was then that Martinez began to touch J.D.’s vagina through her underwear. As J.D. 

testified, “leg rubs turned into inappropriate genital touching.” He touched “me 

inappropriately on my vagina.”

In the fall of 2004, J.D. was “about” fourteen (she was fifteen in August 2004) and 

was a freshman. Count VI of the indictment reflects that the date of the offense covered 

by Count VI is August 1, 2004. That corresponds to the time that J.D. says that the abuse 

happened—in the fall of her freshman year when she was “about” fourteen. J.D. testified 

that Martinez touched her vagina two or three times a year for two years after that. Count 

VII alleges a date of January 1, 2005. In Count VIII the State alleged a date of August 1, 

2005. We have outlined the testimony as to specific events tied to those dates and those 

dates satisfy the general rule in that they are anterior to the presentation of the indictment 

and within any applicable limitations period.

Earlier in this opinion, we acknowledged the general rule that “on or about” 

language in an indictment allows proof that an event occurred anterior to the 

presentment of the indictment and within the appropriate period of limitations. 

Nevertheless, as we have noted, there must be some relevant event tied to that “on or 

about” language.
Martinez v. State Page 13

The “on or about” dates alleged in Counts I through V of the indictment are, 

respectively: January 1, 2002, August 1, 2002, January 1, 2003, August 1, 2003, and January 

1, 2004. There is no evidence in this record to show that there is some relevant event tied 

to the allegations in Counts I through V of the indictment. In fact, J.D. testified to the 

contrary when she said that nothing inappropriate happened before the times alleged in 

Count VI in the indictment. Although J.D. testified that Martinez touched her 

inappropriately on her vagina, she said that did not begin until she was “about” fourteen, 

a freshman, and in the ninth grade. In effect, J.D. essentially and effectively denied the 

existence of the allegations in the first five counts of the indictment in this case.

Again, the State has relied on the general rule as to “on or about” language in 

indictments. We agree with the State as to the allegations contained in Counts VI, VII, 

and VIII. J.D. testified that after her freshman year, Martinez continued to touch her 

inappropriately on her vagina for a period of at least two years thereafter. The dates of 

the offenses proven in Counts VI, VII, and VIII are anterior to the presentment of the 

indictment and within any limitations period.

Martinez also contends that there is no evidence of any prohibited sexual contact. 

He argues that the witnesses all testified about “inappropriate” touching, not contact 

with J.D.’s breast, anus, or vagina. Dr. William Lee Carter, a psychologist, testified that 

a person might use different statements depending on who that person is talking to. 

“Inappropriate touching” can have a very broad meaning. Dr. Carter testified that the 
Martinez v. State Page 14

question to ask is “is she talking about the same matter to all those different parties.” We 

believe that J.D. explained what she meant by inappropriate touching. As J.D. testified, 

“leg rubs turned into inappropriate genital touching.” She further testified that Martinez 

touched “me inappropriately on my vagina.” J.D. was very explicit about what she meant 

by inappropriate touching.

We hold that the evidence is insufficient to support the convictions on Counts, I, 

II, III, IV, and V. We, therefore, sustain Martinez’s first issue on appeal as it relates to 

those counts and enter a judgment of acquittal. We overrule Appellant’s first issue on 

appeal as it relates to Counts VI, VII, and VIII and hold that the evidence is sufficient to 

support convictions on those counts.

In his second issue on appeal, Martinez asserts that the trial court abused its 

discretion when it allowed Sergeant Noel to testify, over objection, about any “red flags” 

or inconsistencies that he noticed during the interviews that he conducted in this case. 

Investigator Noel testified in detail about his training and ability in the field of deception 

detection. He noticed no “red flags” or inconsistencies in the things told him by those 

whom he interviewed except for Rebecca and Martinez.

We review a trial court's decision to admit evidence under an abuse of discretion 

standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Walker v. State, 406 

S.W.3d 590, 593 (Tex. App.—Eastland 2013, pet. ref'd). A court abuses its discretion if its 

decision lies outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 
Martinez v. State Page 15

682 (Tex. Crim. App. 1992). We disregard nonconstitutional errors that do not affect 

substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error 

has a substantial effect or influence on the jury's verdict. Casey v. State, 215 S.W.3d 870, 

885 (Tex. Crim. App. 2007). However, we will not reverse a conviction for the erroneous 

admission of evidence if, after we have reviewed the whole record, we have fair 

assurance that the error did not influence the jury, or had but a slight effect upon it. Cobb 

v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002).

Even if we were to hold that the trial court abused its discretion when it admitted 

Sergeant Noel’s testimony, which we do not, we would not reverse on that ground. 

Except for Martinez, each of the people about whom Sergeant Noel spoke also testified 

before the jury. The jurors had the opportunity to hear and observe each of the witnesses 

as they testified. J.D.’s detailed account of the events remained consistent throughout the 

years. Although J.D. often used the term “inappropriately touched” in her various 

outcries, at trial she explained that term as “inappropriate genital touching” and 

“inappropriately touched my vagina.”

Insofar as Martinez is concerned, the jury saw and heard a recording of Sergeant 

Noel’s interview with Martinez; the jury could draw its own conclusions as to Martinez’s 

credibility.

Because the jurors heard and saw the witnesses testify in open court, and because 

the jurors saw Martinez’s interview with Sergeant Noel, those jurors could form their 
Martinez v. State Page 16

own judgment as to the credibility of the witnesses and the weight to be given to their 

testimony.

We hold that even if the trial court erred when it allowed Sergeant Noel’s 

testimony, as Martinez claims, we are convinced that the error did not have a substantial 

effect or influence upon the jury’s verdict. We overrule Martinez’s second issue on 

appeal.

The jury charge is the subject of Martinez’s third issue on appeal. In its charge to 

the jury, the trial court instructed the jury that: “‘Pseudonym’ means a set of initials or a 

fictitious name chosen by a victim to designate the victim in all public files and records 

concerning the offense, including police summary reports, press releases, and records of 

judicial proceedings.”

In the application paragraph relative to each of the eight counts in the indictment 

the trial court asked, in part, whether Martinez “engage[d] in sexual contact with Jane 

Doe, a pseudonym, by touching the genitals of Jane Doe, a pseudonym. . .” Martinez 

argues that such language is tantamount to the trial court’s repeatedly referring to J.D. as 

a victim when that was a contested issue in the case.

When this case went to trial, article 57.01 of the Texas Code of Criminal Procedure 

defined “pseudonym” as meaning “a set of initials or a fictitious name chosen by a victim 

to designate the victim in all public files and records concerning the offense, including 

police summary reports, press releases, and records of judicial proceedings.” TEX. CODE 
Martinez v. State Page 17

CRIM. PROC. 57.01(2); repealed by Acts 2019, 86th Leg., ch. 469 (H.B. 4173) §3.01(2), eff. 

Jan. 2, 2021. The trial court’s instruction tracked that statutory provision.

In Martinez, the Texas Court of Criminal Appeals wrote: “Following the law as it 

is set out by the Texas Legislature will not be deemed error on the part of a trial judge.” 

Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing Riddle v. State, 888 

S.W.2d 1, 8 (Tex. Crim. App. 1994) (a jury charge that tracks the language of a particular 

statute is a proper charge on the statutory issue).

Martinez relies on Talkington v. State, 682 S.W.2d 674, 675 (Tex. App.—Eastland 

1984, pet. ref’d). In Talkington, the issue was whether the sexual encounter, which 

admittedly occurred, was consensual. Nevertheless, in its jury charge, the trial court 

referred to the complainant several times as the “victim.” There was no issue as to the 

use of the term “pseudonym” in Talkington because that term was not used in the jury 

charge in that case.

Because the trial court followed the law as set out by the legislature, it did not err. 

We overrule Martinez’s third issue on appeal.

In his fourth issue on appeal, Martinez complains that statutory provisions 

regarding the admissibility of unadjudicated offenses during the punishment phase of a 

criminal case are unconstitutional.

During the punishment phase of the trial, the trial court admitted evidence of an 

unadjudicated offense as related in an outcry made by Brittany’s two-and one-half year-
Martinez v. State Page 18

old daughter. She had made an outcry wherein she said that her Poppop tickled her on 

her “hiney.” “Hiney” was the word that she used to describe her vagina; “Poppop” is 

Joe Martinez.

The Texas Code of Criminal Procedure Art. 37.07(3)(a) provides that, at the 

punishment stage of trial:

...[e]vidence may be offered by the state and the defendant as 

to any matter the court deems relevant to sentencing, 

including but not limited to the prior criminal record of the 

defendant,...and, notwithstanding Rules 404 and 405, Texas 

Rules of Evidence, any other evidence of an extraneous crime 

or bad act that is shown beyond a reasonable doubt by 

evidence to have been committed by the defendant or for 

which he could be held criminally responsible, regardless of 

whether he has previously been charged with or finally 

convicted of the crime or act... 

TEX. CODE CRIM. P. ART. 37.07(3)(a)(1) (West 2019).

Martinez urges us to hold that article 37.07 of the Texas Code of Criminal 

Procedure is unconstitutional in that it violates his right to due process. Martinez lays 

out three reasons for his claim that the statute is unconstitutional and deprives either him 

or defendants in general of due process rights: (1) it deprives defendants of their 

constitutional right to an indictment; (2) defendants are not afforded the same evidentiary 

rights at the punishment phase that they are afforded at the trial on guilt/innocence; and, 

(3) the standard for determining guilt of unadjudicated offenses is relaxed during the 

punishment phase.
Martinez v. State Page 19

Article 37.071 of the Texas Code of Criminal Procedure, applicable to capital cases, 

contains similar unadjudicated offense provisions as those found in article 37.07. TEX.

CODE CRIM. P. ART. 37.071(2)(a)(1) (West 2019).

 The appellant in Banda, a capital case, claimed that the “introduction of 

unadjudicated extraneous offenses at the punishment phase, violates his rights to due 

process, equal protection, and a reliable sentencing process.” The court noted that it had 

“repeatedly held that unadjudicated offenses may be introduced during capital 

sentencing.” Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994). In view of the 

court’s holding in Banda, we are not inclined to hold otherwise as to article 37.07. (See also

Parker v. State, 51 S.W.3d 719 (Tex. App. —Texarkana 2001, no pet.) (“Furthermore, Article 

37.07, as enacted by the Legislature, allows each individual sentencing court to dictate 

what evidence may be presented at the punishment phase of a trial. Any matter the court 

deems relevant to sentencing is admissible.” Id. at 726). We overrule Martinez’s fourth 

issue on appeal.

We enter a judgment of acquittal as to Count I, Count II, Count III, Count IV, and 

Count V of the indictment. Otherwise, we affirm the judgment of the trial court.

JIM R. WRIGHT

Senior Chief Justice
Martinez v. State Page 20

Before Chief Justice Gray,

Justice Smith, and 

Justice Wright2

Reversed and rendered in part and affirmed in part

Opinion delivered and filed April 27, 2022

Do not publish

[CR25]

2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by 

assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.