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Court of Appeals of Texas, Houston (14th Dist.).


NO. 14-15-00402-CR

Decided: May 18, 2017

Panel consists of Chief Justice Frost and Justices Brown and Jewell.


Appellant Thomas Roy Martin challenges his conviction for aggravated assault with a deadly weapon. The charge stemmed from allegations that appellant beat a young woman and then set her ablaze and left her to die in a burning trailer. Appellant asserts the trial court erred (1) in allowing allegedly impermissible closing argument and (2) in admitting into evidence irrelevant victim-impact testimony during the guilt/innocence phase of the trial. We affirm.


The complainant lived with her boyfriend (Clifinson Fanus) and a housemate (Garrick Hastings). When the housemate discovered his gun and a stash of drugs and money were missing from their shared residence, he suspected the other two had stolen the items. In response to the housemate's questioning, the complainant told the housemate the police took the items during a raid. When the housemate concluded the complainant was lying to him, he told appellant and appellant's girlfriend (Anita Pena) that he intended to confront the complainant and her boyfriend. The housemate, appellant, and appellant's girlfriend found the complainant and her boyfriend at a nearby hotel. Appellant chased the boyfriend, who escaped, and the other two captured the complainant.

The housemate (Hastings) and appellant's girlfriend (Pena) beat the complainant and forced her into their car. They questioned her about the location of the stolen items. They picked up appellant and together the three of them took the complainant to an abandoned trailer. Appellant hit the complainant upside the head with a metal rod. Then, the housemate left with appellant's girlfriend, leaving appellant inside the trailer, holding the complainant against the floor, face down. The complainant pleaded with appellant for help. Appellant told her to shut up and called her a vulgar name. When the housemate returned, appellant and the housemate poured something over the complainant. The complainant felt herself burning, and she was unable to breathe. Appellant's girlfriend, who was waiting outside, heard an explosion. The housemate and appellant left.

Burned but still alive, the complainant managed to get herself out of the trailer. Finding another trailer nearby, she threw her body against the door. The occupant of that trailer opened the door to find the complainant with a rag around her neck. She appeared to have been bound and was not wearing any clothes. The man called 911. When the responders arrived, they found the complainant flailing in pain, and covered in blood. Her skin burned, the complainant reeked of a heavy “accelerant smell.” Moving between conscious and unconscious states, the complainant gasped for breath and screamed in pain. Emergency responders transported the complainant to the hospital. Medical providers put her into a medically-induced coma for nine weeks. Though severely burned, the complainant survived the ordeal.

When the police investigated, the complainant's boyfriend identified appellant as the individual who had chased him. After appellant's girlfriend (Pena) became concerned that her son might be blamed for the incident, she voluntarily went to the police station to discuss what happened and eventually told police about appellant's involvement in the trailer episode.

Charged with aggravated assault with a deadly weapon, appellant pleaded “not guilty.” At trial, the complainant and her boyfriend as well as appellant's girlfriend testified that appellant was involved in the incident. According to appellant's girlfriend, just as appellant and the housemate left the trailer, she heard an explosion. A neighbor testified that the trailer was in flames. The State offered evidence that appellant had burns on his legs shortly after the incident.

At trial, the complainant gave a detailed account of injuries she suffered in the attack and the fire, explaining the medical treatment she already had undergone and future surgeries she would face before she could be fitted for a prosthesis. The testimony about future surgeries drew an objection from appellant's counsel on the ground that the statements were not relevant. The trial court overruled the objection.

During closing argument, the prosecutor argued that the State had proved appellant's guilt beyond a reasonable doubt, reminding the jury that appellant's girlfriend had told the jury that appellant attacked the complainant and also pointing to the boyfriend's testimony and the burns on appellant's legs as corroborating evidence. The prosecutor told the jury to listen to the defense counsel's closing argument to see if the defense counsel could explain appellant's burns. Defense counsel argued that the State did not prove beyond a reasonable doubt that appellant committed the crime because, counsel alleged, the witnesses who testified against appellant lacked credibility.

The jury found appellant guilty as charged and assessed punishment at sixty years' confinement. The trial court sentenced appellant accordingly. Appellant now challenges his conviction, raising two appellate issues.1


A. Challenge to the State's Closing Argument

In his first issue, appellant asserts that the trial court erred in overruling his objection to the prosecutor's closing argument that the defense would be unable to explain appellant's burns. During closing argument, the prosecutor stated: “I am going to sit down, and [defense counsel] is going to get an opportunity to speak with you, and I want you to listen to him, and I want you to listen to what he has to say and if he can really explain away why those burns are there. You have heard no evidence.” Appellant objected that this argument impermissibly shifted the burden of proof to the defense. After the trial court overruled appellant's objection, the prosecutor stated, “You have heard no evidence other than that trailer fire about how those burns got there.” On appeal, appellant asserts that the trial court erred in overruling his objection because, in making the argument, the prosecutor impermissibly shifted the burden of proof to the defense.

We review a trial court's ruling on an objection to improper jury argument for an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). A prosecutor may properly make jury arguments (1) to summarize the evidence, (2) to urge reasonable deductions from the evidence, (3) to answer to the other party's argument, and (4) to plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The State shoulders the burden of proving the elements of an offense beyond a reasonable doubt. See Tex. Penal Code Ann. § 2.01 (West, Westlaw through 2015 R.S.). But, in arguing that the State has proven the elements of the offense beyond a reasonable doubt, the prosecutor may comment on the accused's failure to present evidence in the accused's favor. See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); Caron, 162 S.W.3d at 618.

A person commits aggravated assault if “the person commits assault as defined in § 22.01 [of the Texas Penal Code] and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Tex. Penal Code Ann. § 22.02 (West, Westlaw through 2015 R.S.). Section 22.01, entitled “Assault,” defines assault as “(1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another, including the person's spouse; (2) intentionally or knowingly threaten[ing] another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly caus[ing] physical contact with another person when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code Ann. § 22.01 (West, Westlaw through 2015 R.S.).

Appellant's defensive theory to the assault charge centered on the State's alleged failure to prove appellant committed the act. Appellant argued that someone else did it. At trial, witnesses testified that appellant had burns on his legs shortly after the event. The prosecutor argued that witnesses placed appellant at the scene of the crime and that the burns on appellant's legs corroborated their testimony. Then, the prosecutor noted that appellant could not explain away the burns on his legs. In making the comment, the prosecutor did no more than point to appellant's failure to produce evidence in support of appellant's defensive theory. See Caron, 162 S.W.3d at 681 (holding statement that defendants would make known any evidence that exonerated them permissible argument on failure to produce favorable evidence). The prosecutor's comment did not shift the burden of proof. See Baines v. State, 401 S.W.3d 104, 109 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that argument that defendant did not call witnesses to support position did not shift burden). So, the trial court did not abuse its discretion in overruling appellant's objection. See id., 401 S.W.3d at 109; Caron, 162 S.W.3d at 681. Finding no error, we overrule appellant's first issue.

B. Admission of Victim-Impact Evidence

In his second issue, appellant asserts that the trial court abused its discretion by permitting irrelevant testimony about the complainant's future surgeries, arguing that this testimony amounted to impermissible victim-impact evidence in the guilt/innocence phase. We review evidentiary rulings under an abuse-of-discretion standard. Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016).

At trial, the complainant testified without objection about the extensive injuries she sustained during the rod attack and ensuing fire that left her ablaze in the trailer. She explained that during that episode her right arm and fingers were burned, noting that the jury could see the extent of her still-visible injuries. The complainant showed the jury the left side of her body, revealing the places she was injured. She testified without objection that she already had endured forty-five surgeries and countless skin grafts as a result of the burns she suffered in the trailer. She explained that her legs were burned so badly that they had no muscle and were nothing but bone. She described how she had lost the use of her right arm and explained that she could no longer move the way she could before she suffered the burns.

The prosecutor asked the complainant if she expected to undergo future surgeries. When appellant objected on relevance grounds, the trial court overruled the objection and the complainant testified that she expected to undergo future surgeries, though she could not say how many. According to the complainant, she had to endure more surgery to be eligible for a prosthesis. The complainant testified that while the recovery is painful, the surgeries themselves are not.

For the sake of argument, we presume without deciding that (1) the trial court abused its discretion in allowing the testimony about future surgeries and (2) appellant did not waive his objection to this testimony by failing to object to similar testimony admitted at other points during the trial. Any error would be non-constitutional. See Hines v. State, 396 S.W.3d 706, 710 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A non-constitutional error is reversible only if the error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). Appellant's substantial rights would be affected only if the error had a substantial and injurious effect or influence in determining the jury's verdict. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). But, appellant's substantial rights would be unaffected if improperly admitted evidence did not influence the jury or had but slight effect upon the jury. See id.

In analyzing the harm, if any, of the presumed error, we examine the entire record and calculate, as much as possible, the error's probable impact. See id. Given the evidence and the record as a whole, we conclude the error had little, if any, impact on the jury's verdict. Appellant's arguments underscore this conclusion.

Describing the complainant's injuries as “horrendous,” appellant argues that the complainant's testimony about her need for future surgeries had a significant effect on the jury. Though the horrendous nature of the injuries likely impacted the jury in significant ways, the same cannot be said of the brief testimony about the complainant's need for future surgeries.

Appellant did not challenge other evidence the jury heard about the brutal attack and intentional burning that left the complainant with permanent, life-changing injuries even after dozens of surgeries and long periods of hospitalization. The jury heard how the appellant beat the complainant in the head and how the complainant cried out in pain. The jury heard how the appellant responded to the complainant's pleas. The evidence showed the attackers placed the complainant face down in a trailer, saturated her body with an accelerant, and set her on fire. Evidence showed the complainant's charred body still smelled of the accelerant when medical responders arrived. The man in the neighboring trailer who summoned the emergency responders recounted the complainant's screaming and her desperate cries for water. An emergency responder described the complainant's falling in and out of consciousness. From the witnesses' descriptions of the explosion and fire and the complainant's injuries, the jury could deduce the agony appellant suffered as her body burned. Homicide officers responded to the scene because no one expected the complainant to live. In a medically-induced coma for nine weeks after the burning, the complainant underwent surgery after surgery, but her injuries remained visible, and the jury could see them as she testified.

In the context of this mountain of unchallenged evidence—including testimony that the complainant endured forty-five surgeries before trial—the complainant's testimony that she would have to undergo future surgeries could hardly have moved the needle. At the very most, the brief statement could have had only a slight effect on the jury and could not have prejudiced the jury in a way that made any difference. See Williams v. State, 273 S.W.3d 200, 227 (Tex. Crim. App. 2008) (noting that impermissible testimony was consistent with the reasonably foreseeable inferences from the facts of the crime); Diamond v. State, 496 S.W.3d 124, 145 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (holding that victim-impact testimony was harmless in light of similar unchallenged evidence). We conclude that any error in admitting the complainant's testimony about her need for future surgeries caused no harm. We overrule appellant's second issue.


The trial court did not err in overruling appellant's objection to the prosecutor's closing argument. Even if we presume the trial court erred in overruling appellant's objection to the complainant's testimony about her need for future surgeries, the error caused no harm and so provides no basis for appellate relief. Accordingly, we affirm the trial court's judgment.


1.   Appellant is represented by counsel on appeal and appellant's counsel has filed a brief on appellant's behalf. To the extent appellant, acting without counsel, purports to raise appellate issues in separate filings with this court, we do not address the separate issues because appellant has no right to hybrid representation. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006).

Kem Thompson Frost Chief Justice

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