Hernandez v. State

340 S.W.3d 55, 2011 Tex. App. LEXIS 1966, 2011 WL 940222
CourtCourt of Appeals of Texas
DecidedMarch 17, 2011
Docket01-09-00631-CR, 01-09-00632-CR
StatusPublished
Cited by11 cases

This text of 340 S.W.3d 55 (Hernandez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. State, 340 S.W.3d 55, 2011 Tex. App. LEXIS 1966, 2011 WL 940222 (Tex. Ct. App. 2011).

Opinions

OPINION

MICHAEL MASSENGALE, Justice.

A jury convicted appellant Phillip Abel Hernandez of indecency with a child (trial court case no. 1066022; appellate court case no. 01-09-00681-CR) and of aggravated sexual assault of a child under 14 years old (trial court case no. 1066023; appellate court case no. 01-09-00632-CR). See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2010). The trial court assessed punishment at 15 years in prison on each conviction, to run concurrently. On appeal, Hernandez brings one issue relevant to both convictions. Though he made no objection at trial, he argues now on appeal that the trial court’s response to a question posed by the jury during its deliberations was a comment on the weight of the evidence and improperly lowered the State’s burden of proof. We conclude that the trial court’s instruction was erroneous because it was a comment on the weight of the evidence, but in light of the entire record, we conclude that Hernandez was not deprived of a fair and impartial trial. Because we find no egregious harm, we affirm the trial court’s judgment.

I. Factual background

Hernandez was accused of sexually assaulting his daughter, C.H., on two occasions before her fourteenth birthday. C.H. testified that the first incident occurred when she was in the fifth grade. C.H.’s family was temporarily living with her aunt because Hernandez was unemployed. At that time, C.H. and her younger brother shared a bedroom with their parents. Ordinarily, C.H.’s parents slept in the bed, and C.H. and her brother slept on pallets on the floor beside the bed. At trial, C.H. drew a diagram of the room, showing the orientation of the door, window, furniture, and where she and her brother slept. C.H. testified that she woke early one morning when she felt a man lying beside her. C.H. said she could tell it was a man because of his big hands. She recalled the time of day because she remembered the sun coming up from the window. She testified that she was lying on her side, and the man was lying beside her, his front touching her back. C.H. testified that she knew it was her father and not her younger brother by the size of the man’s hands and because she later turned and saw him. She said that Hernandez put his hand under her shirt and began rubbing her breasts. Then he put his hand inside her underwear and rubbed the outside of her vagina. She testified that she was confused and scared, so she kept her eyes closed and pretended to sleep, hoping that her mother, who was sleeping in the bed nearby, would wake up.

C.H. alleged that the second incident occurred when she was in the seventh grade. Her parents had been separated [57]*57for several months, during which time the children lived with their mother. When the parents reconciled, they moved into an apartment together. C.H. testified that she was home alone with Hernandez, while her brother was with a relative who lived nearby. She said that her father had been assembling bunk beds upstairs while she watched television downstairs in the living room. When her father came downstairs, they began to wrestle playfully. C.H. recalled that she was wearing a black skirt and a pink and black top and that she ended up sitting on top of his stomach.

While she was straddling his stomach, he commented on how much she had grown during the preceding months when he had not seen her. He then put his hands under her shirt and began rubbing her breasts. C.H. testified that he stopped when she told him to stop, but he then started trying to put his hands up her skirt. She testified that when she ran from him, he told her to go into the downstairs bathroom, and she resisted. She said, “I was scared. I knew what he was going to do to me in there.” She either elbowed him or kicked in the stomach, and “that’s when he let go of me and I ran upstairs to my room.” In her room, she changed into pajama pants and watched television. Soon thereafter, Hernandez came to her room, grabbed her arms from behind, forced her to her knees, pulled down her pants and underwear, and put his fingers in her vagina. She testified that she knew his fingers were there because she “could feel the long nails,” and it hurt. She ran to the bathroom and cried. C.H. said Hernandez later apologized and said that “he wouldn’t do it again unless I told him to ... touch me.”

A couple of weeks later, Hernandez threatened to spank C.H. with a belt because she had been fighting with her brother. C.H. ran from Hernandez and told her mother that he had touched her. C.H. testified that she was afraid her mother would not believe her, but that she “didn’t think he had the right to punish [her] ... after what he did.” Her mother never called the police or child protective services.

Approximately one year later, C.H. and her younger brother evacuated with their maternal grandparents when Houston was threatened by Hurricane Rita. C.H. stayed with relatives at a cabin while her parents remained behind in Houston. One night while evacuated from Houston, C.H.’s adult half-brother noticed her sitting alone outside, crying. He repeatedly asked her what was wrong. Eventually, she told him that her father had touched her, and she told him not to tell anyone because she was embarrassed. At trial, her brother testified that C.H. cried, avoided eye contact, and appeared embarrassed when she spoke to him. He told his uncle about the disclosure, and the uncle told his wife, C.H.’s Aunt Romana.

The next morning, C.H. came to Roma-na’s bedroom. Romana, who had been designated as the outcry witness, testified that she knew something was wrong based on C.H.’s demeanor and asked if she was okay. C.H. began crying and shaking, and Romana reassured her that anything that happened was not her fault. Romana testified that C.H. kept asking, “Why?” and “How could he hurt me like this?” Roma-na said that C.H. told her Hernandez came into her room, pulled down her pants, and put his fingers inside her vagina. Romana testified that C.H. said that she then locked herself in the bathroom and that Hernandez later apologized and promised never to do it again unless she “wanted him to.” Romana asked if this was the first time Hernandez had done anything like this, and C.H. then told her about the first incident. She told Romana that while [58]*58sleeping in the same bedroom at her aunt’s house, Hernandez lay down beside her and fondled her breasts and vagina while she pretended to sleep.

C.H.’s relatives contacted her mother, who made Hernandez leave the home. The police were contacted, and the charges that- are the subject of this appeal were brought against Hernandez.

II. Procedural background

During voir dire, the court explained to the venire panel the State’s burden of proof and the defendant’s presumption of innocence. The State questioned the veni-re panel about the likelihood that a perpetrator would commit a crime in front of eyewitnesses and whether the jury could convict on the testimony of a single witness.

State: Now, the law says that if I prove my case beyond a reasonable doubt with only one eyewitness, then what’s the verdict?
Venireperson: Guilty.
State: Come on?
Venire: Guilty.
State: Guilty. Does the law tell me who that witness has to be?
Venire: No.

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Hernandez v. State
340 S.W.3d 55 (Court of Appeals of Texas, 2011)

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Bluebook (online)
340 S.W.3d 55, 2011 Tex. App. LEXIS 1966, 2011 WL 940222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-texapp-2011.