Eber Martinez v. State, 449 S.W.3d 193

Appellant Eber Martinez was tried by bench trial after a grand jury indicted him for aggravated sexual assault of his estranged wife, J.B.M., in Fort Bend County, Texas.
The trial court convicted Martinez of aggravated sexual assault, sentencing him to 17 years and 200 days in confinement with a $2,000 fine.
Martinez waived his right to a jury trial; the waiver was read in court by an interpreter and signed by Martinez, defense counsel, the State, and the court.
After waiving jury trial, the court released the jury panel and conducted a bench trial.
During proceedings, the court permitted Martinez to talk with Honduran consular authorities, ultimately finding that it had complied with Vienna Convention Article 36 rights and that appropriate accommodations were made.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of jury trial knowingly and intelligently?	Martinez contends the waiver was not informed, lacking guidance on lesser offenses and community supervision.	Record shows waiver was explained in court; Martinez consented, and the court explicitly confirmed the waiver.	Waiver was knowingly and intelligently made.
Vienna Convention Article 36 violation?	Martinez argues consular notification was not provided promptly, violating Article 36.	Court complied and later facilitated consular contact; accommodation ensured.	No Vienna Convention violation; trial court permitted consular contact.
Ineffective assistance of counsel?	Martinez claims counsel failed on immigration warning, advised waiver, failed to notice extraneous offenses, and failed to present mitigating evidence.	Record shows reasonable counsel strategy; no proven deficient performance or prejudice.	Martinez failed to establish ineffective assistance.
Padilla immigration-consequence warning applicability?	Cites Padilla v. Kentucky requiring warning about deportation consequences.	Padilla applies to guilty pleas; this was a bench trial on the merits, not a guilty plea.	Padilla not applicable; no prejudice established.

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009) (jury-trial waiver standards and in-person waiver requirements)
Sanchez-Llamas v. Oregon, 548 U.S. 331 (U.S. 2006) (Vienna Convention rights; consular-notification duties and remedies)
Medellin v. Texas, 552 U.S. 491 (U.S. 2008) (Article 36 rights and presidential/state authority interplay)
Sierra v. State, 218 S.W.3d 85 (Tex. Crim. App. 2007) (consular rights applied and accommodations may be made at trial)
Smith v. State, 363 S.W.3d 761 (Tex. App.—Austin 2012) (jury-trial waiver and related procedures)
Hoang v. State, 825 S.W.2d 729 (Tex. App.—Houston [14th Dist.] 1992) (Vietnamese-speaking defendant; waiver informed by court inquiry)
Shute v. State, 877 S.W.2d 314 (Tex. Crim. App. 1994) (lesser-included offenses in bench trials)
Davis v. State, 89 S.W.3d 725 (Tex. App.—Corpus Christi 2002) (court may consider lesser-included offenses in bench trial)