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Court of Appeals of Texas, Dallas.


No. 05–09–00688–CR

Decided: August 25, 2011

Before Justices Morris, Moseley, and FitzGerald


Opinion By Justice Morris

A jury convicted Harvey Martinez of aggravated assault on a public servant.   In three issues on appeal, he complains the first trial judge in the case abandoned her neutrality and the trial court erred in denying his request for a jury instruction on self-defense and his motion for mistrial.   Concluding appellant's issues are without merit, we affirm the trial court's judgment.

Factual Background

Because appellant did not challenge the legal sufficiency of the evidence, we will limit our recitation of the facts to those applicable to his issues on appeal.   Appellant was thrown out of a nightclub following an altercation in which he claimed he was “sucker-punched.”   His friends, Raul Garcia and Isaac Gonzalez, joined him outside the club.   The other group of men with whom they had been fighting was then also ousted from the club.   Five off-duty uniformed Dallas police officers patrolling the parking lot saw the two groups approaching each other and quickly moved to send each group to their vehicles.

Appellant and his friends got into a Chevy Tahoe that appellant was driving.   They did not immediately exit the parking lot, but instead the Tahoe proceeded to where the other group was still standing in the parking lot.   Appellant began demanding to know who had punched him.   The officers moved in to break up any dispute between the groups.   Appellant then pulled out a semi-automatic assault rifle and began firing from his open window.   After Ira Carter, one of the police officers, fired his gun at appellant two times, appellant stopped firing his gun and drove the Tahoe away from the scene.   Police later found nineteen cartridge casings in the parking lot that matched ammunition found in the Tahoe.

Carter specifically testified that when he and the other officers saw the Tahoe approaching the second group of men, they all headed to that area of the parking lot.   One of the other officers yelled to appellant that he needed to leave.   Appellant then began firing, and the other group of three men dove to the ground.   Carter, who had been running up to the Tahoe, drew his weapon and said, “Police.”   Appellant shifted his position to point the rifle at Carter.   Carter fired at appellant then backtracked to get away from the gunfire.   Carter stated that at that time, he and appellant were looking “right at each other.”   Appellant fired his assault rifle at Carter.   A round of ammunition from appellant's gun passed so close to Carter's head that he could feel it.   He saw it hit the car in front of him.   Then he got down on his belly and crawled away from appellant as fast as he could.   From the way the bullets were landing around him, Carter was worried that he was going to get shot in the face.   The other officers working in the parking lot that night corroborated Carter's description of the shooting, but no other officer saw appellant aiming his gun at Carter because Carter was the officer closest to appellant.

When questioned about the night of the offense, Isaac Gonzalez testified that appellant drove the Tahoe toward the other group of men and asked which of the men had hit him while holding the rifle in his hand.   Then, Gonzalez claimed, “there was some dude walking towards him, and he had a gun in his hand, walking towards Harvey.”   According to Gonzalez, appellant shot “to the side” a few times and then they left the scene.   Gonzalez testified that he recalled appellant firing only about six shots.   He claimed he did not see any uniformed police officers standing in the area;  according to Gonzalez, the police officers were standing at the front of the club.   Gonzales stated he never saw appellant take aim at or shoot at an officer.

Raul Garcia testified that he was extremely intoxicated on the night of the offense.   Nevertheless, he recalled the Tahoe stopping near the men who had attacked them in the club.   Appellant asked which of the men had hit him, and—according to Garcia—each of the men denied doing anything to appellant.   Garcia claimed that he did not see any police officers standing in the area at that time.   Then appellant pointed his gun at the men;  the men ran while appellant started shooting in their direction.   Garcia stated that appellant was not shooting at any police officers because the officers were “out there in front of the club.”

After appellant started shooting, the men being fired upon called for police and the officers began running toward them.   Once the police began approaching, Garcia claimed, appellant did not fire any more shots.   Garcia testified that appellant never pointed his weapon at a police officer.   According to Garcia's recollection of events, appellant fired his gun four to five times.   Garcia stated that the men in the other group were unarmed.   He admitted he did not actually see appellant fire the shots because he was ducking down at the time.

Appellant also testified in his defense.   He claimed that as he approached the other group of men in the Tahoe, he saw one of the men holding a gun down at his side.   Then, when he saw the man draw his gun, he fired six to seven shots near the man's group because he “wasn't gonna give him a chance to shoot.”   Appellant denied shooting at a police officer or seeing any police officers when he was shooting at the armed man.   When appellant was interviewed by police following the offense, he denied he had shot at anyone.


In his first issue, appellant complains that the first trial judge in the case abandoned her neutrality and acted as an advocate for the State.   He concedes that he did not object to the trial judge's actions but contends they amount to fundamental error, which does not require an objection.   Appellant specifically complains the judge (who did not hear the entire case and was not presiding when the jury reached its guilty verdict) asked hostile questions such as “Is that a question?”  “What is your question? ․” and “Is this going somewhere?” of the defense.   He further notes that the trial judge commented during his cross-examination of Carter, “That question's already been asked, like, ten times today, I'm pretty sure.   I'm not keeping exact count, but approximately.”   During the same cross-examination, the trial judge cut off questioning and stated without objection that the question asked had already been asked and answered.

The judge also assisted the State in admitting into evidence an in-car video of the chase of the Tahoe following the shooting.   As the defense pursued an objection that the proper predicate had not been raised for the video and that the witness testifying was not the custodian of records for the video or in the squad car that recorded the video, the judge initiated the following exchange with the witness:

THE COURT:  Okay. Let me do this.   You say it accurately depicts—

THE WITNESS:  The—yeah.

THE COURT:—what happened?


THE COURT:  You've reviewed it;  it that correct?


THE COURT:  Does it—how do you know it accurately depicts what happened if it wasn't your car video?

THE WITNESS:  It was the car directly behind me.

Following the exchange, the judge admitted the video into evidence over appellant's objection.

Appellant's contention is that the trial judge committed fundamental error in conducting the trial as she did.   Early in the trial, outside the presence of the jury, the trial judge told the lawyers, “Right of the bat I'm gonna tell you that I'm gonna push as hard as I can to get this thing tried as soon as possible.   So I don't want anybody to be offended when I tell them to hurry.”   The record makes clear that the trial judge pursued this tactic for as long as she presided over the trial.   Two subpoenaed witnesses failed to appear for trial when they were ordered to appear, which added to the length of the trial.   Out of the presence of the jury, the trial judge stated to the parties,

I am trying to decide when I'm going to tell these jurors that they need to check their schedules two weeks from today.   If I mention it to them, then they may get real angry at me or at the lawyers for taking so long and asking a bunch of questions that they don't want to hear.

The court then asked for recommendations from the parties about how to proceed.

Ultimately, the trial had to be continued into the following week, when the original judge was not available.   It appears from the record before us that the trial judge was acting in a manner to expedite the trial so that she could hear the entire case and not inconvenience the jury any longer than necessary.   Notably, the judge asked one of the prosecutors during her direct examination of one of the officers at the scene, “Have we already covered this ground?   Have you already asked him these same questions, Ms. Taylor?”   When the prosecutor was attempting to have a witness identify a photograph that was already admitted into evidence, the judge remarked, “Ms. Taylor, legally, you don't ․ need to show them before you pop them up there.   If they're already in evidence, just feel free to pop them up there.”

In addition, near the conclusion of Carter's testimony the trial judge instructed the jury as follows:

Now, ladies and gentlemen of the jury, usually it's up to the lawyers to make objections when they think a question has already been asked and answered.   But many times they choose not to, for whatever reason, whether it's trial strategy or whatever.   But if I think something's being asked and answered, it's not my impression to leave with you that I'm for one side or the other.   My interest is that we move along quickly, and that we don't waste your time, okay?

Appellant never objected to the trial judge's comments.   For this reason, his complaint is waived for appeal.   See Peavey v. State, 248 S.W.3d 455, 470 (Tex.App.—Austin 2008, pet. ref'd).   To the extent appellant is arguing the remarks amount to fundamental error, we disagree.   A trial judge has broad discretion to maintain control and expedite the trial;  comments to this effect do not amount to fundamental error.   See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App.2001).   We resolve appellant's first issue against him.

In his second issue, appellant complains the trial court erred in denying his request for a jury instruction on the issue of self-defense.   He contends his testimony and the testimony of Gonzalez that one of the men in the other group had pulled a gun before he began shooting required the trial court to instruct the jury on the issue of self-defense.   Self-defense is a justification for one's actions, which necessarily requires an admission that the conduct occurred.   See Anderson v. State, 11 S.W.3d 369, 372 (Tex.App.—Houston [1 st Dist.] 2000, pet. ref'd).   Accordingly, self-defense is inconsistent with a denial of the conduct.   To raise the issue of self-defense, an appellant must first admit to committing the charged offense and then offer self-defense as justification.   See id.

Here, appellant never admitted to committing the charged offense, threatening police officer Carter with imminent bodily injury while using or exhibiting a deadly weapon.   He, Gonzalez, and Garcia all stated that when he was shooting there were no police officers in the vicinity.   Furthermore, neither he nor his companions ever claimed that Carter was threatening deadly force against appellant at the time appellant fired his rifle.   See Tex. Penal Code Ann. § 9.32 (West 2011).   The trial court did not err in denying appellant's request for a jury instruction on the issue of self-defense.   We resolve appellant's second issue against him.

In his third issue, appellant complains the trial court erred in denying his motion for mistrial when, during jury argument, the prosecutor had the five uniformed officers who had been present during the shooting stand up in the courtroom.   We review the trial court's denial of appellant's motion for mistrial under an abuse of discretion standard.   See Bryant v. State, 340 S.W.3d 1, 12 (Tex.App.—Houston [1 st Dist.] 2010, pet. ref'd).   In most cases, an instruction to disregard will cure any error committed during jury argument.   A mistrial is not warranted unless the trial court's instruction to disregard would not cure any resulting harm.   See id. at 13.

In appellant's case, the prosecutor stated, “There were five men out there.   Stand up guys in uniform.   There were five individuals out there.”   The trial judge sustained appellant's objection to having the officers stand, asked the officers to sit down, and instructed the jury to “disregard the standing of the officers.”   The jury was already familiar with the uniformed police officers because each had testified extensively at trial.   Any emotional impact the prosecutor was aiming to achieve by the display was blunted by the trial judge immediately asking the officers to take their seats.   Although we do not condone the prosecutor's action, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial.   We resolve appellant's third issue against him.

We affirm the trial court's judgment.


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