ACCEPTED 13-14-00465-CR FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 3/3/2015 2:12:03 PM DORIAN RAMIREZ 3/3/15 CLERK
DORIAN E. RAMIREZ, CLERK CAUSE 13-14-00465-CR BY DTello IN THE THRITEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 3/3/2015 2:12:03 PM DORIAN E. RAMIREZ Clerk
ABELINO HERNANDEZ, APPELLANT
VS.
THE STATE OF TEXAS
APPELLANT’S BRIEF
Trial Cause 14-04-27866-A; Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
NO ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES
The parties are appellant, Abelino Hernandez, and the State. Appellant was a resident of Victoria County during his trial.
Appellant was represented at trial by Christopher Janak, Attorney at Law, 11 Regency Row Drive, San Antonio, Texas 78248. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, Texas 77903.
The State was represented at trial by Edward Wilkinson, ADA, Victoria Co. District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901.
Appellant’s counsel anticipates that the State’s reply brief will be prepared and filed by Brendan Guy, ADA, Victoria Co. District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901 or another attorney at said office’s designation.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case 5
Point of Error 6
Prayer 11
Certificate of Service 11
Certificate of Compliance 12
3 INDEX OF AUTHORITIES
Cases Page
Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004) 9
Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1991) 9
Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App. 1999) 9
4 CAUSE 13-14-00465-CR Trial Cause 14-04-27866-A
ABELINO HERNANDEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, ABELINO HERNANDEZ, through
counsel of record, W. A. (BILL) WHITE, Attorney at Law,
presenting:
STATEMENT OF THE CASE
Appellant was indicted by the Victoria Co. grand
jury in April 2014 for aggravated robbery. On 8/11/14,
jury selection began, with trial on the merits
beginning on 8/12/14. Appellant pled “not guilty”.
Appellant’s jury convicted him of aggravated robbery on
8/13/14, and punishment trial before the bench then
commenced immediately. Appellant pled “true” to two
felony enhancement paragraphs alleged in the State’s
notice of intent. After testifying at his punishment
5 trial, and after admitting his guilt for aggravated
robbery, the court assessed punishment and sentenced
appellant to 30 years in prison, plus court costs.
The State originally alleged aggravated robbery in
its indictment under two theories, by use of a deadly
weapon and for victimizing an elderly individual.
Before the trial court submitted its charge to the
jury, the State abandoned its deadly weapon allegation,
relying on the elderly status of the complaining
witness to make the offense aggravated.
Appellant timely filed notice of appeal.
POINT OF ERROR
THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT UNNECESSARY AND UNFAIRLY PREJUDICIAL FINGERPRINT TESTIMONY DURING THE GUILT/INNOCENCE PHASE
During the guilt/innocence phase, the State
presented testimony through Officer Holly Jedlicka of
the Victoria Police Department about fingerprint
evidence. (RR Vol. 5, p. 122, line 14 through p. 123,
line 13). Officer Jedlicka mentioned AFIS, a DPS
6 database named Automated Fingerprint Information
System. (RR Vol. 5, p. 122, line 24 through p. 123,
line 13). Jedlicka stated in reference to AFIS, “Once
you’re booked into any jail facility your prints
automatically go in there for comparison.” (RR Vol. 5,
p. 123, lines 4-6)(italics added).
The prosecutor followed with, “So it’s not just
criminals. It’s all of us that work for the State or
have background checks run will go into AFIS?” (RR Vol.
5, p. 123, lines 10-13)(italics added). Jedlicka
answered, “Yes.”
Defense counsel objected to these questions. (RR
Vol. 5, p. 123, lines 17-25). The trial court noted
this objection, citing on the record Mata v. State,
2007 WL 882439 sua sponte. This “noting” of defense
counsel’s objection must have been, in effect, an
overruling, because the court allowed the State to
continue its testimony. Interestingly, the State’s
testimony immediately established that none of the
fingerprints located at the robbery’s scene (a
7 convenience store) matched appellant’s fingerprints in
AFIS. (RR Vol. 5, pp. 124-125).
All the fingerprint testimony truly achieved for
the State was the fact that appellant’s fingerprints
were already in the AFIS database before trial, when
the robbery was initially investigated. It established
that appellant was already a “criminal”, and that he
had previously been “booked into any jail facility”
before the charged offense. It was a clear hint,
telegraphed plainly to appellant’s jury, that he
already had a criminal record or previous contacts
(i.e., arrests) with law enforcement. In short, it was
merely a “smear” of appellant, without real probative
value.
The State may counter that, since testimony further
explained that State employees and others who have
undergone background checks are also in AFIS, there is
no clear reference to appellant as a “criminal”.
Regardless, this testimony harmed appellant. It is
unlikely that any jury would believe a defendant
8 accused of robbing a convenience store with a knife is
a former State employee, or that his background was
once checked so he could coach his son’s Little League
team.
Unfair prejudice … refers to the undue tendency of
evidence to suggest a decision on an improper basis.
See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.
1999). When reviewing the trial court’s decision, we
are to reverse the trial court’s judgment “rarely and
only after a clear abuse of discretion.” Mozon v.
State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1991). When
making this determination, we consider the following
factors: (1) the probative value of the evidence; (2)
the potential to impress the jury in some irrational,
yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.
Crim.App. 2004).
Applying Erazo, the probative value of fingerprints
which fail to identify the defendant or place him at
9 the crime scene, or to connect him with the crime in
some other way, was zero. The potential of this
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ACCEPTED 13-14-00465-CR FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 3/3/2015 2:12:03 PM DORIAN RAMIREZ 3/3/15 CLERK
DORIAN E. RAMIREZ, CLERK CAUSE 13-14-00465-CR BY DTello IN THE THRITEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 3/3/2015 2:12:03 PM DORIAN E. RAMIREZ Clerk
ABELINO HERNANDEZ, APPELLANT
VS.
THE STATE OF TEXAS
APPELLANT’S BRIEF
Trial Cause 14-04-27866-A; Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
NO ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES
The parties are appellant, Abelino Hernandez, and the State. Appellant was a resident of Victoria County during his trial.
Appellant was represented at trial by Christopher Janak, Attorney at Law, 11 Regency Row Drive, San Antonio, Texas 78248. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, Texas 77903.
The State was represented at trial by Edward Wilkinson, ADA, Victoria Co. District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901.
Appellant’s counsel anticipates that the State’s reply brief will be prepared and filed by Brendan Guy, ADA, Victoria Co. District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901 or another attorney at said office’s designation.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case 5
Point of Error 6
Prayer 11
Certificate of Service 11
Certificate of Compliance 12
3 INDEX OF AUTHORITIES
Cases Page
Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004) 9
Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1991) 9
Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App. 1999) 9
4 CAUSE 13-14-00465-CR Trial Cause 14-04-27866-A
ABELINO HERNANDEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, ABELINO HERNANDEZ, through
counsel of record, W. A. (BILL) WHITE, Attorney at Law,
presenting:
STATEMENT OF THE CASE
Appellant was indicted by the Victoria Co. grand
jury in April 2014 for aggravated robbery. On 8/11/14,
jury selection began, with trial on the merits
beginning on 8/12/14. Appellant pled “not guilty”.
Appellant’s jury convicted him of aggravated robbery on
8/13/14, and punishment trial before the bench then
commenced immediately. Appellant pled “true” to two
felony enhancement paragraphs alleged in the State’s
notice of intent. After testifying at his punishment
5 trial, and after admitting his guilt for aggravated
robbery, the court assessed punishment and sentenced
appellant to 30 years in prison, plus court costs.
The State originally alleged aggravated robbery in
its indictment under two theories, by use of a deadly
weapon and for victimizing an elderly individual.
Before the trial court submitted its charge to the
jury, the State abandoned its deadly weapon allegation,
relying on the elderly status of the complaining
witness to make the offense aggravated.
Appellant timely filed notice of appeal.
POINT OF ERROR
THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT UNNECESSARY AND UNFAIRLY PREJUDICIAL FINGERPRINT TESTIMONY DURING THE GUILT/INNOCENCE PHASE
During the guilt/innocence phase, the State
presented testimony through Officer Holly Jedlicka of
the Victoria Police Department about fingerprint
evidence. (RR Vol. 5, p. 122, line 14 through p. 123,
line 13). Officer Jedlicka mentioned AFIS, a DPS
6 database named Automated Fingerprint Information
System. (RR Vol. 5, p. 122, line 24 through p. 123,
line 13). Jedlicka stated in reference to AFIS, “Once
you’re booked into any jail facility your prints
automatically go in there for comparison.” (RR Vol. 5,
p. 123, lines 4-6)(italics added).
The prosecutor followed with, “So it’s not just
criminals. It’s all of us that work for the State or
have background checks run will go into AFIS?” (RR Vol.
5, p. 123, lines 10-13)(italics added). Jedlicka
answered, “Yes.”
Defense counsel objected to these questions. (RR
Vol. 5, p. 123, lines 17-25). The trial court noted
this objection, citing on the record Mata v. State,
2007 WL 882439 sua sponte. This “noting” of defense
counsel’s objection must have been, in effect, an
overruling, because the court allowed the State to
continue its testimony. Interestingly, the State’s
testimony immediately established that none of the
fingerprints located at the robbery’s scene (a
7 convenience store) matched appellant’s fingerprints in
AFIS. (RR Vol. 5, pp. 124-125).
All the fingerprint testimony truly achieved for
the State was the fact that appellant’s fingerprints
were already in the AFIS database before trial, when
the robbery was initially investigated. It established
that appellant was already a “criminal”, and that he
had previously been “booked into any jail facility”
before the charged offense. It was a clear hint,
telegraphed plainly to appellant’s jury, that he
already had a criminal record or previous contacts
(i.e., arrests) with law enforcement. In short, it was
merely a “smear” of appellant, without real probative
value.
The State may counter that, since testimony further
explained that State employees and others who have
undergone background checks are also in AFIS, there is
no clear reference to appellant as a “criminal”.
Regardless, this testimony harmed appellant. It is
unlikely that any jury would believe a defendant
8 accused of robbing a convenience store with a knife is
a former State employee, or that his background was
once checked so he could coach his son’s Little League
team.
Unfair prejudice … refers to the undue tendency of
evidence to suggest a decision on an improper basis.
See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.
1999). When reviewing the trial court’s decision, we
are to reverse the trial court’s judgment “rarely and
only after a clear abuse of discretion.” Mozon v.
State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1991). When
making this determination, we consider the following
factors: (1) the probative value of the evidence; (2)
the potential to impress the jury in some irrational,
yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.
Crim.App. 2004).
Applying Erazo, the probative value of fingerprints
which fail to identify the defendant or place him at
9 the crime scene, or to connect him with the crime in
some other way, was zero. The potential of this
evidence to impress appellant’s jury in an irrational,
indelible way was tremendous. Prosecutors know that
any implication that a defendant is already a
“criminal” or repeat offender at trial carries
undeniable weight with juries. The time needed to
develop this evidence appears, on the cold record, to
have been relatively brief.
Most importantly, the proponent’s need for
introducing testimony about AFIS, and why fingerprints
are in it, was also zero. If the State for any reason
felt at trial that it was necessary to cover all bases
and show that appellant’s fingerprints were absent from
the knife used in this crime or from the crime scene
itself, it could have asked any police witness with
personal knowledge, “Were the defendant’s fingerprints
found at the crime scene?”, or, “Were they found on the
knife?” With these simple questions, the State could
have introduced its fingerprint evidence while still
10 avoiding any potential for unfair prejudice against
appellant.
PRAYER
Appellant prays that conviction be reversed and
that this cause be remanded for new trial.
Respectfully submitted,
/s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Brendan
Guy, ADA, Victoria Co. District Attorney’s Office, 205
N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail,
facsimile, electronic delivery, or hand-delivery on
this the 3rd day of March, 2015.
/s/ W. A. White W. A. White
11 CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1,268 words.