in the Matter of the Marriage of Aracelia Rodriquez and David Gonzalez Martinez, and in the Interest of Arron Michael Martinez and Alexandra Anne Martinez, Minor Children

NO. 07-03-0078-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 4, 2004 ______________________________ IN THE MATTER OF THE MARRIAGE OF ARACELIA RODRIQUEZ AND DAVID GONZALES MARTINEZ AND IN THE INTEREST OF AARON MICHAEL MARTINEZ AND ALEXANDRA ANNE MARTINEZ, CHILDREN _________________________________ FROM THE 154TH DISTRICT COURT OF LAMB COUNTY; NO. 15,834; HON. FELIX KLEIN, PRESIDING _______________________________ Opinion _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. David Gonzales Martinez, who is incarcerated in prison, appeals from a divorce decree. Through the decree, the trial court appointed Martinez' common law wife, Aracelia Rodriquez, sole managing conservator and changed the last names of their two minor children. Several issues are before us. Yet, we address only the first since it is dispositive of the appeal. Through it, Martinez argues that the trial court erred in denying his motion for new trial since he was denied notice of the trial setting as required by due process and Texas Rule of Civil Procedure 245. We reverse the judgment of the trial court. Issue One -- New Trial Due to Lack of Notice As previously mentioned, Martinez asserts that he should have been granted a new trial because the trial court did not afford him appropriate notice of the hearing. We sustain the issue. The first time a contested case is set for trial, the litigants must be afforded at least 45 days prior notice of the date, unless the parties agree otherwise. Tex. R. Civ. P. 245. But, because it is presumed that a trial court hears a case only after appropriate notice has been given, the obligation lies with the complainant to affirmatively illustrate the lack of notice or compliance with Rule 245. Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex. App.-Fort Worth 2003, no pet.); Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.-El Paso 2000, no pet.). Here, the reporter's record establishes that the trial occurred on October 28, 2002. Furthermore, the trial court signed the notice setting the trial for that date on September 19, 2002. Given this, Martinez was afforded only 39 days prior notice of the hearing, as opposed to the 45 days mandated by Rule 245. Furthermore, no one contends that the October 28th setting was anything other than the first for this proceeding or that the parties agreed to that date. Nor does the appellate record depict otherwise. Additionally, Martinez had filed an answer and counterclaim to his wife's petition (on August 27, 2002) and not only sought joint conservatorship of the children but also asked that the children's names be left unchanged. Thus, it can be said that the proceeding was contested. So too did he aver in an unsworn declaration attached to his motion for new trial that he 1) was not provided with notice of the hearing before October 28th and 2) first became aware of the trial date only after receiving a copy of the final judgment from opposing counsel. Denying receipt of notice rebuts the presumption that due notice was afforded the litigant. Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.-Austin 2001, no pet.). And, when coupled with the 39-day period between the day the trial court set the cause for trial and the day trial occurred, we cannot but hold that the trial court abused its discretion in denying the motion for new trial. Smith v. Levine, 911 S.W.2d 427, 433 (Tex. App.-San Antonio 1995, writ denied) (holding that the decision to grant or deny a motion for new trial lies within the discretion of the trial court). Accordingly, the divorce decree is reversed, and the cause is remanded for further proceedings. Per Curiam LE="font-size: 10pt"> After the body was found, appellant was brought to the police station for a third interview. At that time, he told a story that conflicted with his previous ones. The next day, appellant voluntarily returned to the police station and stated that Mark had approached him to set up a cocaine deal. On the night Mark disappeared, appellant claimed that two Hispanic males came to his house in a Cadillac. He told Mark he would not participate in his drug deal, and Mark got in his car and drove away after motioning for the two Latinos in the Cadillac to follow him. Appellant was later arrested for the murder. Issue One - Lesser-Included Offense In his first issue, appellant argues that the trial court should have granted his request for an instruction to be included in the jury charge on the lesser-included offense of aggravated assault. We overrule the issue. The State concedes that aggravated assault is a lesser-included offense of murder. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Therefore, to be entitled to the instruction, evidence must appear of record which would permit a jury to rationally conclude that appellant is guilty only of the lesser crime. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). There must be evidence directly germane to the lesser offense; that is, there must be evidence affirmatively showing that appellant only committed the lesser offense. Id. And, that evidence may come from any source. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). Here, the evidence indicates that appellant either did nothing to the decedent or that he repeatedly struck the decedent about his head and body with or against a blunt object, placed plastic bags over Mark's head, wrapped him in blankets, tarps, cord, chains and weights, and finally dumped the body into a watery pit. To the extent that appellant denied the commission of any act against appellant, that does not entitle him to an instruction on a lesser-included offense. Garcia v. State, 630 S.W.2d 914, 919 (Tex. App.-- Amarillo 1982, no pet.) (holding that when a defendant's evidence indicates he is not guilty of any offense, he is not entitled to an instruction on a lesser offense). As to the other alternative, appellant suggests that the evidence permits one to infer that he did not intend to kill Mark and, therefore, he was entitled to an instruction on the lesser offense. Yet, we note that the State indicted appellant for intentionally and knowingly causing the death of Mark, i.e. for murder under §19.02(b)(1) of the Texas Penal Code. Furthermore, the very same evidence upon which appellant bases his contention illustrates, nonetheless, an intent to cause serious bodily injury. (4) And, because those acts constituted acts clearly dangerous to human life and it is undisputed that one or more of them caused Mark's death, the evidence also established appellant's guilt for murder under §19.02(b)(2) of the Penal Code. (5) In other words, the evidence before us illustrates that he either committed murder under §19.02(b)(1) or (b)(2). Since it does, it is akin to that before the Court of Criminal Appeals in Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999). And, given the absence of any evidence "that appellant was guilty only of anything less than some form of murder," we like the court in Forest, must also conclude that he "was not entitled to any instruction on aggravated assault." Id. at 368 (emphasis added). To reiterate, when the acts undertaken cause death and illustrate endangerment to human life and an intent to cause serious bodily injury, one cannot claim entitlement to the lesser-included offense of aggravated assault simply because he may not have intended to kill. Id. Issue Two - Legal and Factual Sufficiency as Primary Actor In his second issue, appellant complains that the evidence is legally and factually insufficient to show he intentionally and knowingly caused Mark's death as the primary actor. We overrule the issue. The standards by which we review legal and factual sufficiency challenges are well settled. We will not reiterate them but instead refer the parties to Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); Zuliani v. State, No. 1168-01, 2003 Tex. Crim. App. LEXIS 26 (Tex. Crim. App. Feb. 5, 2003); and King v. State, 29 S.W.3d 556, 562-64 (Tex. Crim. App. 2000) for explanation of the same. The evidence in this case was circumstantial. However, the following appeared of record. Mark was last seen alive at appellant's house. Appellant and Mark were involved in a drug transaction. Mark's body was found wrapped in material identical to that found in or around appellant's house. A cigarette butt found in appellant's garage and containing his DNA was of the same brand found between several plastic bags tied around Mark's head. Mark's blood was found on a shovel in appellant's garage, and the blood spatter appearing thereon was of a medium velocity consistent with blunt force trauma. Mark's body was discovered at a remote location, a location about which appellant's roommate had knowledge. An inmate in jail with appellant testified that appellant said he had killed a man at his home with a bat because he owed him money for cocaine. The equipment used to weigh the body down was available at the place where appellant and Mark worked. And, appellant told conflicting stories about what happened the night of Mark's disappearance. Viewing this evidence in a light most favorable to the verdict, we conclude that a trier of fact could have rationally found, beyond all reasonable doubt, that appellant knowingly and intentionally caused the death of the victim. Furthermore, that the evidence and testimony of record establishing guilt was circumstantial or contained inconsistencies or was subject to discredit did and does not render the evidence supporting the verdict so weak as to make the verdict clearly wrong or manifestly unjust. Nor does it render the verdict against the great weight and preponderance of the evidence so as to be clearly wrong. It simply created opportunity for the jury to exercise its role as factfinder. Thus, the evidence was neither legally nor factually insufficient to support the verdict. Issue Three - Legal and Factual Sufficiency as a Party Appellant contends in his third issue that the evidence is legally and factually insufficient to show that he is guilty of murder as a party. We overrule the issue. As previously discussed, the jury found appellant guilty as the primary actor in the murder of Mark. Furthermore, we concluded that the evidence supporting the verdict was both legally and factually sufficient. Therefore, the judgment can be upheld on that basis alone, even if the evidence failed to establish that appellant committed the offense as a party. So, we need not consider issue three. See Barnes v. State, 62 S.W.3d 288, 296-299 (Tex. App.--Austin 2001, pet. ref'd) (holding that when different theories, i.e. commission of a crime as the primary actor or as a party, are submitted to the jury, a general verdict is sufficient if the evidence supports one of the theories submitted). Issue Four - Charge on the Law of Parties In his final issue, appellant argues that the trial court erred in overruling his objection to submitting a party charge to the jury. The court purportedly erred because there was no evidence warranting the submission. We overrule the issue. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible or both. Tex. Pen. Code Ann. §7.01(a) (Vernon 1994). Here, the jury was instructed that if they found that a "person or persons unknown" intentionally and knowingly caused the death of Mark by striking him with or against a hard object, and that appellant acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid an unknown person or persons to commit the offense, then appellant would be guilty of murder. Yet, we have perused the record for evidence illustrating that appellant was simply a party to a murder committed by another and found none. As described throughout this opinion, the evidence either showed that appellant did nothing or that he committed the murder on his own or at the behest of others (i.e the two Latinos in the Cadillac). Nothing illustrates that someone else committed the murder and appellant merely directed, solicited, encouraged, aided, or attempted to aid the murderer. In short, there was no evidence that anyone, other than appellant, killed Mark. So, a party charge was unwarranted, and the court erred in submitting one. Nevertheless, our job is not over for now we must assess whether the instruction harmed appellant. In making that determination we find guidance in Brown v. State, 716 S.W.2d 939 (Tex. Crim. App. 1986) and Reyes v. State, 910 S.W.2d 585 (Tex. App.--Amarillo 1995, pet. ref'd). Both hold that any error in charging the jury on the law of parties is harmless "if the evidence clearly supports appellant's guilt as a primary actor." Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); Reyes v. State, 910 S.W.2d 585, 593 (Tex. App.--Amarillo 1995, pet. ref'd). (6) Having previously determined that the evidence was legally and factually sufficient to sustain appellant's conviction as the primary actor, we find that appellant suffered no harm when the trial court mistakenly included the party instruction in its jury charge. Accordingly, the judgment of the trial court is affirmed. Brian Quinn Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. gov't code ann. §75.002(a)(1) (Vernon 1998). 2. Kay testified that Mark had not been drinking before he left the house on the evening he disappeared. Ricky Jones, who saw Mark after he left home that night, testified that Mark was not intoxicated and, in fact, seldom drank at all. 3. It was determined that Mark did not own a flip-style cell phone, and the last call on the cell phone he did have was placed earlier in the day. 4. Indeed, one would be hard-pressed to argue that repeatedly striking the decedent's body and head with or against a blunt object in a manner which could cause death, then placing the decedent's head in plastic bags, wrapping the body in tarps, cord, chain and weights, and dumping the body in a pit is something other than conduct undertaken with an intent to cause serious bodily injury. 5. One commits murder under §19.02(b)(2) of the Texas Penal Code if the accused "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. §19.02(b)(2) (Vernon 1994). 6. Appellant suggests that to "clearly" support conviction as the primary actor, the evidence must be of some caliber greater than that needed to establish guilt beyond reasonable doubt. However, he cites no authority supporting that proposition. Nor does he explain to what standard the court referred when it used the term "clearly." Additionally, in applying the test, neither the Brown or Reyes courts held that the error was harmless because the evidence "clearly" supported conviction as the primary actor; rather, both merely concluded that the evidence was sufficient to support conviction. And, we found the evidence both legally and factually sufficient to uphold the verdict at bar. Finally, of the three standards often used to describe the evidentiary burdens of proof, i.e. preponderance of the evidence, clear and convincing evidence, and beyond all reasonable doubt, the latter is the most onerous of all. See Leal v. Texas Dept. of Protective & Reg. Serv., 25 S.W.3d 315, 319 (Tex. App.--Austin 2000, no pet.) (discussing the three evidentiary standards). Thus, if the evidence is of a quality which would permit the jury to find guilt, beyond all reasonable doubt, then it is safe to say that it "clearly" supports the conviction.