Jose Marvin Martinez v. State, 2011 Tex. App. LEXIS 4773

Martines was convicted of sexual assault of a child and indecency with a child; sentences were eight and ten years respectively, but extradition with El Salvador caused the sentencing to be limited to sexual assault only.
S.M., age 15 at the time, testified that her father touched her inappropriately and attempted intercourse on separate occasions, with prior disclosures made to CPS and others.
The State sought to introduce four extraneous offenses involving S.M. and Martines, and the trial court gave a limiting instruction; defense objected noting late notice and Rule 404 concerns.
Investigator Rosser recorded a June 2004 conversation with Martines; Martines admitted to touching S.M.’s breasts on the tape; Martines challenged the recording’s accuracy and authenticity under rules governing admissibility of recordings.
During deliberations, the jury heard a portion of the Rosser recording in which a polygraph was mentioned; the State apologized, the court instructed to disregard, and defense moved for mistrial, which the court denied.
On appeal, Martines alleged insufficient evidence for sexual assault, inadmissibility of the tape, improper admission of extraneous offenses, and denial of mistrial; the court affirmed the convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for sexual assault	Martines argues evidence fails to prove contact between genitals.	State produced insufficient evidence of genital contact.	Sufficient evidence supports the conviction.
Admissibility and accuracy of tape recording	Tape not accurate; Edwards v. State standard applies to authenticity of recordings.	Recorder unreliable; accuracy of recording disputed.	Recorder admissible; recording accurate; trial court not manifestly erroneous.
Admission of extraneous offenses under 38.37	Extraneous offenses relevant to the relationship and state of mind; probative value outweighs prejudice.	Notice was untimely; risk of prejudice; other-crimes evidence improper under 404/403.	Extraneous offenses admissible under Article 38.37; no reversible error for notice or prejudice.
Mistrial denial after polygraph mention	Polygraph reference was prejudicial; mistrial warranted.	No polygraph results revealed; disregard instruction adequate; no mistrial required.	No abuse of discretion; mistrial denied.

Edwards v. State, 551 S.W.2d 731 (Tex. Crim. App. 1977) (predecessor Edwards analysis superseded by Rule 901 for electronic recordings)
Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999) (tape integrity and incidental omissions analyzed; accelerates reliability inquiry)
Lee v. State, 176 S.W.3d 452 (Tex. App.—Houston [1st Dist.] 2004) (child testimony alone can support sexual offense conviction)
Boutwell v. State, 719 S.W.2d 164 (Tex. Crim. App. 1985) (extraneous acts in child-sex cases often more probative than prejudicial)
Poole v. State, 974 S.W.2d 892 (Tex. App.—Austin 1998) (extraneous-offense evidence in sex cases; Rule 38.37 context)
Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980) (applies to admissibility of altered tape portions; not per se excluded)