CORPUS CHRISTI, Tx — Fred Martinez is serving year 10 of a 12-year sentence for indecently touching a child on a Texas beach in 2014. But DNA evidence tells a different story—one that his attorneys said Texas courts won't hear.
Martinez, 51, pleaded guilty in 2015 to indecency with a child for an incident that occurred on a Port Aransas beach in July 2014. But DNA testing conducted after his guilty plea excluded him as a contributor to genetic material found on the victim's clothing, according to court records and laboratory reports filed with the Texas Court of Criminal Appeals.
KRIS6 News spoke to Martinez last week in a phone call from prison.
“Now the DNA proves that — the semen proves that it's not me that committed this crime," Martinez said.
A second DNA report issued in June 2024 shows that the foreign DNA profile found on the victim's shorts has been entered into the FBI's national criminal database, CODIS, as belonging to "the putative perpetrator" of the crime, according to the laboratory report.
Under FBI regulations, such an entry requires documentation showing the DNA sample is "attributed to the putative perpetrator," according to the National DNA Index System Operational Procedures Manual.
Despite this evidence, 117th District Court Judge Susan Barclay recommended denying Martinez's latest habeas corpus petition on May 7 without holding an evidentiary hearing, finding "no necessity" for one, according to her written order.
Martinez was charged with two counts of indecency with a child by contact after a 12-year-old boy reported being touched inappropriately near his family's campsite. The victim described the perpetrator as "tall," according to court documents. Martinez is 5'4". No witnesses observed the alleged incident, and the victim did not identify Martinez at the scene or in any subsequent lineup, according to Martinez's habeas petition filed in April 2025.
Martinez pleaded guilty in January 2015 as part of an agreement that allowed his immediate release from jail, where he had been held without bond for two months. He was placed on 10 years of deferred adjudication community supervision, according to court records.
Representing Martinez now is the Innocence Project of Texas, led by Executive Director Mike Ware — who says key evidence was withheld from Martinez and his attorneys.
“The period of time he was on probation, the Department of Public Safety came back with the DNA results, from the original investigation and the DNA results showed that it was actually another unknown male who perpetrated this single perpetrator offense, and they never notified Mr .Martinez or his attorneys," Ware said.
Four months after Martinez's guilty plea, the Texas Department of Public Safety issued a DNA laboratory report dated May 11, 2015. According to the report, Martinez's DNA was not detected on the victim's shorts, the victim's DNA was not detected on Martinez's swimsuit, and DNA from an unknown male—including sperm and semen—was found on the victim's clothing.
Martinez's former defense attorneys—Joseph Acevedo, Kathryn Wolf, and Clay Bonilla—stated in affidavits filed with the court that they never received this DNA report from prosecutors and were unaware of its existence until years later. Martinez's current attorneys argue this constitutes a violation of Brady v. Maryland, the 1963 Supreme Court case requiring prosecutors to turn over evidence favorable to the defense, as well as Texas's Michael Morton Act.
"That’s a violation of the law. That’s a violation of the United States Constitution and the Michael Morton Act," Ware said.
Nueces County District Attorney Jimmy Granberry declined to comment on the case, given the case concluded "long before I took office, and I have no direct knowledge of the case."
When Martinez's community supervision was revoked in March 2016 for violations, he was sentenced to 12 years in prison, according to the judgment. The DNA evidence had not been disclosed at that time.
Martinez didn't learn about the DNA test results until March 17, 2019, when his sister obtained a copy from an administrative assistant at the Port Aransas Police Department, according to an affidavit filed with the court. By that time, Martinez had already filed and the court had denied his first habeas corpus petition in 2018. He filed two more appeals on his own, but both were dismissed on procedural grounds. No court has addressed the DNA evidence on its merits in the context of his actual innocence claim, according to his attorneys.
The June 2024 DNA report, which used what the lab described as "new technologies and current guidelines," revealed that the foreign DNA profile had been entered into CODIS and that the DNA sample was a mixture of three individuals, from which Martinez remained excluded, according to the laboratory report.
Chase Baumgartner, an attorney with the Innocence Project of Texas representing Martinez, said the new report is clear about what the evidence means.
“When you put a profile into CODIS, you're saying that this profile is attributed or attributable to the putative perpetrator of this crime. And that's what DPS did. They put a profile in that they said, hey,this is the DNA of the person,at least punitively, who committed this crime, and it's not Fred Martinez. But they have already excluded him from that profile. So they're saying the DNA of the perpetrator is not Fred, and then the DA is saying, right, but we still think the perpetrator is Fred," Baumgartner said.
In April 2025, Martinez filed his fourth habeas corpus petition through the Innocence Project, arguing that the DNA proves his actual innocence, that prosecutors violated his constitutional rights by withholding the evidence, that his guilty plea was involuntary because he didn't know about the exculpatory results, and that the 2024 report constitutes newly available scientific evidence under Texas law.
In a response filed May 7, prosecutors argued that Martinez's claims "lack merit" and that "this is not the type of offense where a lack of DNA evidence could establish that Martinez did not commit the crime, particularly where multiple witnesses identified him," according to the state's written answer.
However, Martinez's attorneys dispute that characterization, noting in their objections that "no one who the State claims to have identified Applicant witnessed the offense" and that "only the victim witnessed the event and did not identify Applicant at the scene, or any subsequent live lineup or photospread."
Judge Barclay signed the order recommending denial on the same day the state filed its response. The order and the state's answer were both filed at 8:37 a.m., according to court records. Martinez's attorneys were not notified of the order until a week later, on May 14, they stated in objections filed with the Texas Court of Criminal Appeals on May 19.
"Applicant had no opportunity to respond or to even be present when the State presented its pleadings and proposed order to the Court," Martinez's attorneys wrote in their objections.
"So within 60 seconds, it appears she granted their motion. We didn’t get a chance to be heard. We weren’t even consulted. That’s not due process," Ware said.
Mike Ware said DNA is the "gold standard" for forensic evidence. He argued Martinez’s case sets a troubling precedent.
“This is a case where the system is for really the first time in my experience, completely ignoring, not, not addressing and and discounting, but completely ignoring the elephant in the room, which is strong DNA evidence. I think that’s a very dangerous precedent."
