IN THE TEXAS COURT OF CRIMINAL APPEALS
PD023815
FROM THE FIRST DISTRICT OF TEXAS COURT OF APPEALS NO: 011300825CR
WILLIAM HERNANDEZ, Petitioner
v.
STATE OF TEXAS, Respondent.
Appealed from the 351st District Court, Harris County, Texas Trial Court Case Number 1295162
The Spriggs Law Firm 1011 S. Jackson Street Amarillo, Texas 79101 Tel. 806 376 7260 Fax (806) 3723298 Email: spriggslawronald@gmail.com
/S/Ronald T. Spriggs Ronald T. Spriggs TSBN 00792853 Attorney for Petitioner July 7, 2015 William Hernandez
1 Table of Contents
Cover Sheet…………………………………...,.…………………………………1 Table of Contents…………………………..……………………………………...2 Index of Authority………………………..………………………………………..3 Statement of Oral Argument……………………………………………………….4 Statement of Case………………………………………………………………....4 Procedural History……………………...…………………………………………4 Grounds for Review……………………………………………………………….4 Argument…………………………………………………………………………..8 Conclusion……………………………………………………………………….11 Certificate of Service……………………………………………………………..12 Certificate of Compliance………………………………………………………...12
2 Index of Authority
Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)..................................9
Hernandez v. State , 454 S.W.3d 643, 64547 (Tex. App. 2014)............................4
Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).......................................9
Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009)...................................9
3 Oral Argument
Petitioner requests oral arguments, only if the Court desires it.
Statement of Case
Petitioner convicted of aggravated robbery and sentenced to life
imprisonment seeks review of the appellate court decision upholding the
conviction against him.
Procedural History
Trial was held on Sept. 13, 2013. A life sentence was imposed on Sept. 16,
2013.1
Appeal was taken: opinion delivered on December 2nd 2014.
Grounds for Review:
Whether the appellate court correctly held that inadmissible inculpatory
testimony can be cured with a jury instruction, when the identity of the defendant
is the critical issue at trial.
Facts
For the purpose of this petition, petitioner relies on facts recited in the
appeal. Mrs. Arnold, was home with her husband and her granddaughter, Jennifer.
Mrs. Arnold heard her husband screaming and a crashing sound. She and Jennifer
1 Hernandez v. State , 454 S.W.3d 643, 64547 (Tex. App. 2014).
4 ran toward the front door, where they saw that two men had kicked in her front
door and were holding guns. One man, who wore a mask, grabbed Jennifer and the
other, who was not wearing a mask, put a gun to Barbara's head. He demanded that
she tell him where they kept their money and take him to the safe, and he
threatened to kill her if she did not. A third man entered the house through the back
door after having chased Mr. Arnold into the backyard. The third man wore a
badge around his neck and black tshirt with the word “police” on the front.
Mrs. Arnold testified, at trial, that she got a good look at the man who held a
gun. She identified petitioner in court as her assailant; further, she testified to
hearing the three men speaking to each other, mostly in Spanish.
Later that same day, while she was driving to the grocery store with her son,
Mrs. Arnold saw petitioner driving a tan Hummer. She obtained a partial license
plate number on the vehicle and reported it to the police.Based on the license plate
number she had obtained, police officers were eventually able to locate the tan
Hummer, and they detained the people who were riding in it.
The officer who stopped the Hummer believed petitioner had been riding in
the vehicle, but he was unable to detain him. However, he observed petitioner walk
into a nearby apartment.
5 Police testified that Mrs. Arnold incorrectly identified a man in that photo
array as having been involved in the robbery.
Police were able to question petitioner at the apartment and eventually
detained him as well. petitioner was put into a live lineup. Mrs. Arnold identified
petitioner as the man who had held a gun to her head during the robbery and as the
man she had seen driving the Hummer after the robbery.
One of the other two men who were found and detained when police stopped
the Hummer was Eddie Castaneda, who owned the Hummer. Castaneda testified at
trial as an accomplice witness. He admitted that he had gone to the Arnolds' house
with petitioner and two other men. Castaneda testified that he got scared during the
robbery and ran off and that the other men picked him up later. He observed that
one of the other men with him was wearing police gear. Castaneda testified that he
had owned the Hummer for about a month at the time of his arrest and that he was
not the one driving it on the afternoon of the robbery.
Denise Guzman, the mother of petitioner's child, also testified at trial. She
testified that petitioner admitted to having committed a robbery around the same
time the Arnold robbery occurred in order to get money to post bond for her.
On appeal, in his second point of error, petitioner argued that the trial court
abused its discretion in denying his motion for mistrial when Spanishspeaking
6 members of the jury heard the accomplice witness volunteer information regarding
an extraneous offense.
Castaneda testified through an interpreter at trial. During his
crossexamination, the following exchange occurred between Castaneda and
petitioner's attorney:
[attorney]: And you said you weren't wearing any police gear when this robbery occurred? [witness]: On this robbery, I had no police gear, sir. [attorney]: Okay. Okay. And how many robberies do you have pending right now?
Petitioner's attorney then interrupted Castaneda and asked to approach the
bench. He stated, “I caught most of that [answer] and I don't want the answer
interpreted.” Outside the presence of the jury, the trial court had the answer
interpreted. Castaneda's response was, “I have two aggravated robberies. I
committed two with [petitioner], but I'm fighting the cases.”
petitioner's counsel objected to this answer as nonresponsive, and the trial court
sustained his objection. Petitioner's attorney also sought an instruction to disregard
the statement, even though it was never interpreted for the jury, because he was
spoke aware that at least one juror Spanish.2
2 Emphasis added.
7 The trial court asked the bailiff to determine which jurors, who were waiting
outside the courtroom, spoke Spanish. There were two jurors who spoke Spanish,
and the trial court questioned them, individually, about what they had heard. The
first testified that he spoke Spanish fluently and that he understood Castaneda's
answer “for the most part.” The juror also told the trial court that he had not spoken
to anyone else on the jury about Castaneda's last answer. The trial court
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IN THE TEXAS COURT OF CRIMINAL APPEALS
PD023815
FROM THE FIRST DISTRICT OF TEXAS COURT OF APPEALS NO: 011300825CR
WILLIAM HERNANDEZ, Petitioner
v.
STATE OF TEXAS, Respondent.
Appealed from the 351st District Court, Harris County, Texas Trial Court Case Number 1295162
The Spriggs Law Firm 1011 S. Jackson Street Amarillo, Texas 79101 Tel. 806 376 7260 Fax (806) 3723298 Email: spriggslawronald@gmail.com
/S/Ronald T. Spriggs Ronald T. Spriggs TSBN 00792853 Attorney for Petitioner July 7, 2015 William Hernandez
1 Table of Contents
Cover Sheet…………………………………...,.…………………………………1 Table of Contents…………………………..……………………………………...2 Index of Authority………………………..………………………………………..3 Statement of Oral Argument……………………………………………………….4 Statement of Case………………………………………………………………....4 Procedural History……………………...…………………………………………4 Grounds for Review……………………………………………………………….4 Argument…………………………………………………………………………..8 Conclusion……………………………………………………………………….11 Certificate of Service……………………………………………………………..12 Certificate of Compliance………………………………………………………...12
2 Index of Authority
Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)..................................9
Hernandez v. State , 454 S.W.3d 643, 64547 (Tex. App. 2014)............................4
Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).......................................9
Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009)...................................9
3 Oral Argument
Petitioner requests oral arguments, only if the Court desires it.
Statement of Case
Petitioner convicted of aggravated robbery and sentenced to life
imprisonment seeks review of the appellate court decision upholding the
conviction against him.
Procedural History
Trial was held on Sept. 13, 2013. A life sentence was imposed on Sept. 16,
2013.1
Appeal was taken: opinion delivered on December 2nd 2014.
Grounds for Review:
Whether the appellate court correctly held that inadmissible inculpatory
testimony can be cured with a jury instruction, when the identity of the defendant
is the critical issue at trial.
Facts
For the purpose of this petition, petitioner relies on facts recited in the
appeal. Mrs. Arnold, was home with her husband and her granddaughter, Jennifer.
Mrs. Arnold heard her husband screaming and a crashing sound. She and Jennifer
1 Hernandez v. State , 454 S.W.3d 643, 64547 (Tex. App. 2014).
4 ran toward the front door, where they saw that two men had kicked in her front
door and were holding guns. One man, who wore a mask, grabbed Jennifer and the
other, who was not wearing a mask, put a gun to Barbara's head. He demanded that
she tell him where they kept their money and take him to the safe, and he
threatened to kill her if she did not. A third man entered the house through the back
door after having chased Mr. Arnold into the backyard. The third man wore a
badge around his neck and black tshirt with the word “police” on the front.
Mrs. Arnold testified, at trial, that she got a good look at the man who held a
gun. She identified petitioner in court as her assailant; further, she testified to
hearing the three men speaking to each other, mostly in Spanish.
Later that same day, while she was driving to the grocery store with her son,
Mrs. Arnold saw petitioner driving a tan Hummer. She obtained a partial license
plate number on the vehicle and reported it to the police.Based on the license plate
number she had obtained, police officers were eventually able to locate the tan
Hummer, and they detained the people who were riding in it.
The officer who stopped the Hummer believed petitioner had been riding in
the vehicle, but he was unable to detain him. However, he observed petitioner walk
into a nearby apartment.
5 Police testified that Mrs. Arnold incorrectly identified a man in that photo
array as having been involved in the robbery.
Police were able to question petitioner at the apartment and eventually
detained him as well. petitioner was put into a live lineup. Mrs. Arnold identified
petitioner as the man who had held a gun to her head during the robbery and as the
man she had seen driving the Hummer after the robbery.
One of the other two men who were found and detained when police stopped
the Hummer was Eddie Castaneda, who owned the Hummer. Castaneda testified at
trial as an accomplice witness. He admitted that he had gone to the Arnolds' house
with petitioner and two other men. Castaneda testified that he got scared during the
robbery and ran off and that the other men picked him up later. He observed that
one of the other men with him was wearing police gear. Castaneda testified that he
had owned the Hummer for about a month at the time of his arrest and that he was
not the one driving it on the afternoon of the robbery.
Denise Guzman, the mother of petitioner's child, also testified at trial. She
testified that petitioner admitted to having committed a robbery around the same
time the Arnold robbery occurred in order to get money to post bond for her.
On appeal, in his second point of error, petitioner argued that the trial court
abused its discretion in denying his motion for mistrial when Spanishspeaking
6 members of the jury heard the accomplice witness volunteer information regarding
an extraneous offense.
Castaneda testified through an interpreter at trial. During his
crossexamination, the following exchange occurred between Castaneda and
petitioner's attorney:
[attorney]: And you said you weren't wearing any police gear when this robbery occurred? [witness]: On this robbery, I had no police gear, sir. [attorney]: Okay. Okay. And how many robberies do you have pending right now?
Petitioner's attorney then interrupted Castaneda and asked to approach the
bench. He stated, “I caught most of that [answer] and I don't want the answer
interpreted.” Outside the presence of the jury, the trial court had the answer
interpreted. Castaneda's response was, “I have two aggravated robberies. I
committed two with [petitioner], but I'm fighting the cases.”
petitioner's counsel objected to this answer as nonresponsive, and the trial court
sustained his objection. Petitioner's attorney also sought an instruction to disregard
the statement, even though it was never interpreted for the jury, because he was
spoke aware that at least one juror Spanish.2
2 Emphasis added.
7 The trial court asked the bailiff to determine which jurors, who were waiting
outside the courtroom, spoke Spanish. There were two jurors who spoke Spanish,
and the trial court questioned them, individually, about what they had heard. The
first testified that he spoke Spanish fluently and that he understood Castaneda's
answer “for the most part.” The juror also told the trial court that he had not spoken
to anyone else on the jury about Castaneda's last answer. The trial court
specifically instructed him to disregard that answer, that it could not be considered
evidence in the trial for the present offense, and that he was not to share the answer
with anyone else on the jury. The juror indicated that he understood the instruction
and agreed that he would comply. The trial court repeated the same process with
the second juror, who likewise stated that she had not told any of the other jurors
what Castaneda's last answer was, that she understood the trial court's instruction,
and that she would comply. At that point, petitioner moved for a mistrial, which
the trial court denied.3
Argument & Authority
Mistrial is a device used to halt trial proceedings when error is so prejudicial
that expenditure of further time and expense would be wasteful and futile.4
3 Hernandez v. State See , 454 S.W.3d 643, (Tex. App. 2014). 4 Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).
8 Whether a witness's improper reference to an extraneous offense mandates a
mistrial is determined by examining the particular facts of the case.5 “A mistrial is
an appropriate remedy in ‘extreme circumstances' for a narrow class of highly
prejudicial and incurable errors.”6
In determining whether a trial court abused its discretion in denying a
motion for mistrial, we consider (1) the severity of the underlying misconduct, (2)
any curative measures adopted, and (3) the certainty of the conviction absent the
misconduct. “Ordinarily, a prompt instruction to disregard will cure error
associated with an improper question and answer, even one regarding extraneous
offenses.”7
Here: [the court]: My instruction to you is that you disregard the last answer by the witness and not tell anyone else on the jury what the answer was. Do you understand my instruction?8 [the interpreter]: His response was: I have two aggravated robberies. I committed two with William, but I’m fighting the cases.9
The problem is that the instruction addressed only the jurors who spoke
understood spanish and not jurors who spanish. An instruction to the entire panel
5 See id. 6 Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)). 7 Hernandez v. State , 454 S.W.3d 643, 64950 (Tex. App. 2014). 8 V.4;P.58, L2023. 9 V.4;P.55;L.2223.
9 was not impracticable. Or, the trial judge should have told the bailiff to see if any
of the jurors understood the answer given by Castaneda, because (it is common
knowledge) many people in Texas understand Spanish but cannot speak it. The
judge should have told all the jurors that Castaneda's answer cannot be considered
for any reason during deliberations.
The error is extremely prejudicial because some jurors were not under the
instruction. Moreover, the testimony cannot be reasonably expected to be
withdrawn from the juror's minds because of the alleged relationship of the
petitioner and Castaneda as participants in the offense.
The record demonstrates that the court understood the inflammatory and
unduly prejudicial meaning of Castaneda’s statement took exception to the
statement of Castaneda.
[the court]: you cannot talk about anything regarding another case with William. Do you understand that?10 [the court]: So, if you’re asked a question, any question you’re not to refer to any other offense or any other crime with which you may have participated in with Mr. Hernandez. Do you understand that? 11
10 V.4;P.56;L.1012. 11 V.4;P.56;L.1417.
10 Conclusion
Where inadmissible, unduly prejudicial, testimony is evoked before the
entire jury panel, instructions to disregard should, likewise, be given to the entire
panel. Here, inadmissible testimony was evoked in spanish and instructions to
disregard were given only to Spanish speakers without regard as to whether
nonSpanish speakers understood the testimony.
Prayer
Wherefore premises considered, petitioner asks that the opinion of the
appellate court be reversed and for such other relief has he maybe entitled to in law
or equity.
The Spriggs Law Firm 1011 S. Jackson Street Amarillo, Texas 79101 Tel. 806 376 7260 Fax (806) 3723298 Email: spriggslawronald@gmail.com
/S/Ronald T. Spriggs Ronald T. Spriggs TSBN 00792853 Attorney for Petitioner William Hernandez
11 Certificate of Compliance
I hereby certify that I used the aid of a computer and software to generate this document. I used 14point typeface for all text, except for footnotes which are in 12point typeface. Further, I certify that this Petition and the brief contain 467 (fourhundred and sixty seven). In making this certificate of compliance, I am relying on the word counter used by the same the same software used to prepare the document. The word count excludes words used in following: the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, statement of facts, signature, proof of service, certification, certificate of compliance, and appendix.
/S/ Ronald T. Spriggs
Certificate of Service
I certify that on July 6, 2015 a true and correct copy of this document was served on the parties listed below in the manner indicated.
Angela Weltin District Attorney 713.755.0242 (fax)
12 Envelope Details
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Case # PD-0238-15 Case Information Location Court Of Criminal Appeals Date Filed 07/06/2015 06:10:33 PM Case Number PD-0238-15 Case Description Assigned to Judge Attorney LEVI SPRIGGS Firm Name THE SPRIGGS LAW OFFICE Filed By LEVI SPRIGGS Filer Type Not Applicable Fees Convenience Fee $0.09 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $3.00 Total Provider Tax Fees $0.25 Grand Total $3.34 Payment Account Name Levi L. Spriggs Transaction Amount $3.34 Transaction Response Transaction ID 9760646 Order # 005951210-0
Brief Filing Type EFileAndServe Filing Code Brief Filing Description Brief Reference Number PD-0238-15 Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason 07/07/2015 The petition for discretionary review does not contain the identity of Judge, Parties and Counsel [Rule 68.4(a)]. The petition for discretionary review does not contain a Other 11:29:18
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copy of the court of appeals opinion [Rule 68.4(j)]. Your petition is still due July 1, AM 2015. Documents Lead Document HernandezBrief.pdf [Original]
eService Details Name/Email Firm Service Type Status Served Date/Time Opened LEVI L SPRIGGS THE SPRIGGS LAW EServe 07/07/2015 Sent Yes levi.spriggs@gmail.com OFFICE 09:46:40 AM
Motion Filing Type EFileAndServe Filing Code Motion Filing Description Motion Reference Number PD-0238-15 Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Reason Time Rejection Comment Other 07/07/2015 11:29:18 AM Please file this with your corrected petition. Documents Lead Document MotionforExtentionoftime.pdf [Original]
eService Details Name/Email Firm Service Type Status Served Date/Time Opened LEVI L SPRIGGS THE SPRIGGS LAW EServe 07/07/2015 Sent Yes levi.spriggs@gmail.com OFFICE 09:48:13 AM
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