Anthony Wayne Martin v. the State of Texas

Would TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00468-CR

Anthony Wayne Martin, Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 77482, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

Anthony Wayne Martin was convicted of the offense of sexual assault of a child,

and he was sentenced to nineteen years’ imprisonment. See Tex. Penal Code §§ 12.33, 22.011.

The alleged victim was his daughter, V.M.1 On appeal, he contends that the trial court erred by

admitting evidence concerning his prior conviction for indecency with a child by contact. See id.

§ 21.11. We will affirm the trial court’s judgment of conviction.

BACKGROUND

Over twenty years ago, Martin became romantically involved with Mother.

During their relationship, Mother and Martin had two children: V.M. and her older brother A.M.

Mother also had four other children, but Martin was not the father of those children. One of

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Because she was a minor when the alleged offense occurred, we will refer to the victim
by using a pseudonym and refer to her family members other than Martin by pseudonyms or
their relationships to her. See Tex. R. App. P. 9.10 (defining sensitive information).
these siblings was Mother’s daughter S.A., who was three years older than V.M. In 2008, the

Department of Family and Protective Services (“Department”) removed V.M. and her siblings

from Mother’s care due to her drug use, her leaving the children alone, and the living conditions

in the home. The Department placed V.M. and A.M. with Martin’s parents, and Martin resided

in that home. Even though the Department opposed the children living in the home permanently

because Martin was a registered sex offender, the trial court in that case ordered that V.M. and

A.M. be placed in the grandparents’ home. Martin and Grandmother were ultimately named as

joint managing conservators for V.M.

In September 2016, V.M. told one of her high school teachers that Martin had

been sexually abusing her, and the teacher informed the principal who called the police and the

Department. A police officer responded to the call and spoke with V.M. at the school. Another

officer arranged for V.M. to be interviewed at a child advocacy center and for V.M. to have a

forensic medical examination. After the police investigated the allegations, Martin was arrested

and charged with sexual assault of a child.

During the trial, the State called as witnesses police officers involved in the

investigation, the teacher to whom V.M. disclosed the abuse, a Department investigator who

became involved in this case after V.M. made her outcry, the nurse who examined V.M., an

employee for the child advocacy center where V.M. was forensically interviewed, and a

prosecutor involved in an unrelated criminal case involving V.M. after she made her outcry. In

her testimony, V.M. described how Martin began touching her vagina with his hands over and

under her clothes when she was four or five, how he made her hold his penis and rub it, and

how he escalated the abuse when she was nine or ten by inserting his fingers and his penis into

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her vagina multiple times. Martin elected to testify in his case-in-chief and called as witnesses

Grandmother, Grandfather, and A.M.

Prior to any witnesses testifying, the trial court held a hearing outside the presence

of the jury to determine whether the State would be able to present evidence concerning Martin’s

prior conviction for indecency with a child. The victim in the prior case was S.A., and she was

three at the time of the offense. During the hearing, the trial court considered whether State’s

exhibits 3, 8, 9, and 10 would be admitted, and the four exhibits were the judgment from

Martin’s prior conviction reflecting that in 2002 he pleaded guilty to the offense of indecency

with a child by contact, a form signed by Martin when he was released from custody for that

prior offense informing him of his obligation to register as a sex offender, and two sex-offender

registration forms from 2022 and 2023 showing that Martin had complied with his registration

requirement for those years. In the hearing, a police officer testified regarding the contents of the

exhibits and how they showed that Martin was previously convicted of the offense of indecency

with a child by contact and that he had to register as a sex offender. Martin objected to the

admission of the prior judgment because it did not have a verifiable fingerprint, but he did not

make any other objection. The trial court overruled the objection.

Following the hearing, multiple witnesses testified regarding the prior case, and

the State offered for entry into evidence the four exhibits discussed above pertaining to that

conviction. The first witness at trial, one of the investigating officers, was asked if he learned

as part of his investigation that Martin had a prior conviction. Martin objected, urging that the

testimony was not relevant and was more prejudicial than probative. The trial court sustained the

objection and instructed the jury to disregard the question but denied Martin’s motion for a

mistrial.

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Later, the Department investigator testified that a home study was prepared after

V.M. was removed from Mother’s care and that the study identified concerns about Martin.

Martin objected, arguing that the testimony was irrelevant and was more prejudicial than

probative. The trial court overruled the objection, and Martin did not ask for a running

objection. Following that ruling, the investigator explained that Martin was a registered sex

offender.

During V.M.’s testimony, she related that she learned from one of her cousins that

Martin had molested one of her sisters and then explained in response to another question by the

State that S.A. was the sister who was also abused. Next, V.M. testified that she was in middle

school when she learned about the abuse against S.A. Martin did not object to any of this

testimony. When the State asked V.M. whether Martin was “doing anything to” her at the time

that she learned of the other abuse, Martin objected under Rule 403 and later asked to have a

running objection. The trial court overruled the objection but did not rule on his request for a

running objection. After the ruling, V.M. testified that she was still being abused at the time that

she learned that he had abused S.A. and that she did not tell anyone about the abuse even after

learning about what had happened to S.A. because she was afraid that Grandmother would have

thought the abuse was V.M.’s fault. During her cross-examination, V.M. explained that she did

not know what age S.A. was when she made her outcry and that she found out Martin was a

registered sex offender when she looked him up online.

When the officer who testified at the earlier hearing was called as a witness at

trial, he testified that Martin was a registered sex offender, that the officer had performed

registration compliance checks on Martin, and that Martin had been timely complying with his

registration requirements. Martin did not object to any of this testimony. Later in his testimony,

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the officer explained that State’s exhibit 8 was a sex-offender-release form that was filled

out “during [Martin’s] very first initial sex offender registration” when he was released from

custody for the prior conviction. Martin objected, asserting that the testimony was not relevant,

but he did not make any other objection. After the trial court overruled the objection, the

officer continued his testimony and explained that sex offenders are required by statute to fill

out the form.

Next, the officer explained that State’s exhibit 9 was a Secure Sex Offender

Registration form for Martin from October 2022 and that the exhibit reflected that Martin went

to the police station in 2022 to perform his annual sex-offender registration. Similarly, the

officer testified that State’s exhibit 10 was a registration form for 2023 and that exhibit 10 was

the most recent registration form for Martin. When discussing all three exhibits, the officer

related that they reflected that Martin had previously been convicted of indecency with a child.

Next, the officer explained that the conviction occurred in Bell County and that the exhibits had

to be prepared under the governing statutory scheme for convicted sex offenders. Martin did not

object to any of this testimony.

When the State offered exhibits 8, 9, and 10, the following exchange occurred in

which Martin objected under Rule 403 and obtained for the first time a running objection to

evidence regarding the extraneous offense:

[Martin]: My objection is to relevance, Your Honor.

[Trial Court]: Yes, sir. That objection is overruled. And State’s Exhibits 8, 9 and
10 are admitted.

[State]: At this time I will also offer State’s Exhibit No. 3. That would be the
prior conviction.

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[Martin]: Defense would renew his running objection in regards to all these
documents being far more prejudicial than probative and will lead the jury to
convicting him for something that occurred 22 years ago and [ha]s nothing to do
with this present case.

[Trial Court]: Relevance and more prejudicial than probative, those two
objections are overruled. And State’s Exhibit 3 is admitted as well.

...

[State]: May I publish?

[Martin]: Over my objection, Your Honor, my running argument in regards to any
testimony as to the first case.

[Trial Court]: Very good. Defense will have a running objection to any testimony
or ongoing. You don’t have to stand up and object to anything related to Cause
Number 53-whatever.

After considering the evidence presented at trial, the jury convicted Martin of

sexual assault of a child. Martin appeals his conviction.

DISCUSSION

In one issue on appeal, Martin contends that the trial court erred by overruling

his Rule 403 objection to the admission of the exhibits and testimony pertaining to his prior

conviction for indecency with a child, and he argues that the probative value of the evidence was

substantially outweighed by its prejudicial nature. When presenting this issue, he argues that the

evidence was inherently inflammatory because it involved allegations of sexual abuse committed

against a three-year-old. Further, he notes that the offense occurred twenty-two years before the

trial and, therefore, argues that it had little probative value regarding his character at the time of

the alleged offense in this case. Additionally, he emphasizes that the sexual-assault allegations

in this case differed significantly from the extraneous offense of indecency with a child and

contends that the differences undermined the usefulness of the extraneous-offense evidence.

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Moreover, he asserts that the extraneous-offense evidence took approximately the same amount

of time to present as did the evidence pertaining to the charged offense. Next, he argues that the

State did not need the evidence because V.M. was an adult at the time of trial and was able to

articulate her claims. Finally, he asserts that he was harmed by the trial court’s ruling.

Generally, before a party may present “a complaint for appellate review, the

record must show that . . . the complaint was made to the trial court by a timely request,

objection, or motion” “with sufficient specificity to make the trial court aware of the complaint.”

See Tex. R. App. P. 33.1(a) (emphasis added); Resendez v. State, 306 S.W.3d 308, 312 (Tex.

Crim. App. 2009); see also Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008) (noting

that objection must be “timely and specific”). The objection must let the trial court “know what

he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do something about it.”

Resendez, 306 S.W.3d at 313 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.

1992)); see Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Preservation of error is

a “systemic requirement” on appeal. See Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App.

2016). Appellate courts should not address the merits of an issue that has not been preserved for

appellate consideration. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012).

“An objection is timely if it is made as soon as the ground for the objection

becomes apparent, i.e., as soon as the defense knows or should know that an error has occurred.”

Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d). “If a party fails to

object until after an objectionable question has been asked and answered, and he can show no

legitimate reason to justify the delay, his objection is untimely and error is waived.” Id.; see

House v. State, 909 S.W.2d 214, 216 (Tex. App.—Houston [14th Dist.] 1995), aff’d, 947 S.W.2d

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251 (Tex. Crim. App. 1997); see also Burt v. State, 396 S.W.3d 574, 577-78 (Tex. Crim. App.

2013) (“An appellant fails to preserve error by failing to object when he had the opportunity.”).

“Furthermore, an objection is required every time inadmissible evidence is presented.” House,

909 S.W.2d at 216. There are, however, two exceptions to the proposition of law that a party

must object each time he thinks inadmissible evidence is being offered: (1) when the party has

secured a running objection on the issue he deems objectionable; or (2) when a valid objection to

all the evidence deemed objectionable on a given subject is made outside of the presence of the

jury. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Moreover, “[i]t is

well settled that the erroneous admission of [evidence] is not cause for reversal if the same fact

is proven by other testimony not objected to” “either before or after the complained-of ruling.”

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see Coble v. State, 330 S.W.3d

253, 282 (Tex. Crim. App. 2010).

As set out above, Martin did not make a Rule 403 objection during the hearing

held outside the presence of the jury. See Ethington, 819 S.W.2d at 859; see also Tex. R.

Evid. 103 (explaining that “[w]hen the court hears a party’s objections outside the presence of

the jury and rules that evidence is admissible, a party need not renew an objection to preserve a

claim of error for appeal”). Martin did object to testimony concerning his prior conviction under

Rule 403 and obtained adverse rulings during the testimonies of one of the investigating officers

and the Department investigator; however, he did not ask for a running objection when he made

any of those objections. See Ethington, 819 S.W.2d at 858.

Martin also objected under Rule 403 during V.M.’s testimony but did so only

after she answered without objection five questions from the State in which she explained that in

middle school she learned from a cousin that S.A. had been abused by Martin. Although Martin

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did ask to be given a running objection after objecting under Rule 403 during V.M.’s testimony,

he did not obtain one, and the trial court just overruled the Rule 403 objection instead. See Tex.

R. App. P. 33.1 (explaining that to preserve complaint for appellate consideration when trial

court does not rule on objection, complaining party must object to refusal to rule); Lopez v.

State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (emphasizing that objection must be made

each time inadmissible evidence is offered “unless the complaining party obtains a running

objection”); see also Scaggs v. State, 18 S.W.3d 277, 292-93 (Tex. App.—Austin 2000, pet.

ref’d) (noting that running objection typically applies only to one witness’s testimony unless

request is clearly objecting to all similar testimony from any witness).

Additionally, following those rulings, a police officer testified that Martin was a

registered sex offender and that Martin had been complying with his registration requirements.

Further, the officer described exhibits 8, 9, and 10 and how they showed that Martin was a

registered sex offender and had been registering yearly, and the officer discussed how all three

exhibits established that Martin had previously been convicted of indecency with a child. See

Leday, 983 S.W.2d at 718. Martin did not make any Rule 403 objection to any of this testimony.

See Grant, 345 S.W.3d at 512.

The State then asked questions concerning where the conviction occurred and

whether there was a statutory obligation to create the exhibits. When the State offered the

exhibits for admission into evidence, Martin objected to their admission, arguing that the exhibits

were not relevant and should be excluded under Rule 403. However, those objections occurred

after the officer testified without objection concerning the contents of those exhibits and how

they established that Martin had previously been convicted of indecency with a child and that he

was a registered sex offender, and the objections were made after the officer answered more

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questions by the State. See Gray v. State, No. 08-11-00003-CR, 2012 WL 3025930, at *5 (Tex.

App.—El Paso July 25, 2012, pet. ref’d) (op., not designated for publication) (noting that “[a]n

objection made after the prosecutor has elicited the testimony typically comes too late” and

concluding that objections did not preserve error because first objection did not occur until after

witness answered two additional questions and where second and third objections were not made

until after witness had been asked and answered another question). Although Martin referred to

a prior running objection when he objected to the admission of the exhibits, the trial court had

not granted any previous request for a running objection. See Moore v. State, No. 07-13-00270-

CR, 2014 WL 1691519, at *1 (Tex. App.—Amarillo Apr. 24, 2014, no pet.) (mem. op., not

designated for publication) (per curiam) (concluding that defendant did not preserve error

regarding admission of evidence even though he objected because he did not obtain running

objection and because evidence was admitted later without objection).

Given that evidence similar to the contents of exhibits 3, 8, 9, and 10 was

introduced through unobjected-to testimony, that Martin’s Rule 403 objections to V.M.’s

testimony and the admission of the exhibits were not timely, and that Martin had not obtained

a running objection before the exhibits were admitted into evidence, we conclude that he did

not preserve for appellate consideration his Rule 403 claim pertaining to evidence regarding his

prior conviction. See House, 909 S.W.2d at 216 (determining that defendant did not preserve

complaint where he did not object until after question was answered and where witness later

answered similar questions without objection); see also Webb v. State, 557 S.W.3d 690, 698

(Tex. App.—Texarkana 2018, pet. ref’d) (“A party waives error regarding the erroneous

admission of evidence if the same or substantially similar evidence has been previously admitted

in the proceeding without objection.”).

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For these reasons, we overrule Martin’s issue on appeal.

CONCLUSION

Having overruled Martin’s issue on appeal, we affirm the trial court’s judgment of

conviction.

__________________________________________
Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: August 21, 2025

Do Not Publish

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