ACCEPTED 03-14-00413-CR 3588264 THIRD COURT OF APPEALS AUSTIN, TEXAS January 7, 2015 12/24/2014 10:35:08 AM JEFFREY D. KYLE CLERK Court of Appeals No. 03-14-00413-CR Trial Court Cause No. 5797 RECEIVED IN 3rd COURT OF APPEALS IN THE THIRD SUPREME JUDICIAL DISTRICT AUSTIN, TEXAS 12/29/2014 12:00:00 AM COURT OF APPEALS JEFFREY D. KYLE Clerk AUSTIN, TEXAS
_______________________
PRISCILLA AGUILAR HERNANDEZ
v.
THE STATE OF TEXAS _______________________
APPEALED FROM THE 452ND JUDICIAL DISTRICT COURT, MCCULLOCH COUNTY, TEXAS Honorable Robert R. Hofmann, Presiding _____________________________________________________________
APPELLANT’S BRIEF _____________________________________________________________
M. Patrick Maguire State Bar No. 24002515 M. Patrick Maguire, P.C. mpmlaw@ktc.com 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT, PRISCILLA HERNANDEZ
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
ISSUES PRESENTED 7
SUMMARY OF THE ARGUMENTS 8
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 9
STATEMENT OF FACTS 10
ARGUMENTS & AUTHORITIES 10
ISSUE 1: The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge is against the great weight and preponderance of the evidence, i.e., factually insufficient. 13
ISSUE 2: The jury’s negative answer to the self-defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient. 19
PRAYER FOR RELIEF 24
CERTIFICATE OF SERVICE 25
1 Court of Appeals No. 03-14-00413-CR Trial Court Cause No. 5797
IN THE THIRD SUPREME JUDICIAL DISTRICT
COURT OF APPEALS
AUSTIN, TEXAS
THE STATE OF TEXAS _____________________________________________________________
IDENTITY OF PARTIES & COUNSEL _____________________________________________________________
Appellant certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this appeal:
Appellant: Priscilla Aguilar Hernandez
Appellee: The State of Texas
Attorney for Appellant: M. Patrick Maguire M. Patrick Maguire, P.C. 945 Barnett Street Kerrville, Texas 78028
Attorney for Appellee: Hon. Tonya Spaeth Ahlschwede 452nd Judicial District Attorney P.O. Box 635 Mason, Texas 76856
2 Trial Judge: Hon. Robert R. Hofmann 452nd Judicial District Judge P.O. Box 1580 Mason, Texas 76856
3 INDEX OF AUTHORITIES
CASES
De Leon v. State, 373 S.W.3d 644 (Tex. App.—San Antonio 2012, pet. ref’d) 13,14, 16,17
Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) 14
Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) 19,20, 23
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) 19,20, 23
4 STATUTES AND RULES
Tex. Penal Code §9.01 21
Tex. Penal Code §9.31 21
Tex. Penal Code §9.32 21
Tex. Penal Code §19.02 13
5 STATEMENT OF THE CASE
Appellant, Priscilla Aguilar Hernandez, is appealing her conviction
for the offense of murder. Appellant pled not guilty to a jury on May 20,
2014. RR 3, 12. The jury found Appellant guilty and sentenced her to 30
years confinement in the Texas Department of Criminal Justice –
Institutional Division on May 23, 2014. RR 6, 70. Appellant timely filed
her notice of appeal in the trial court. This brief is timely filed by being
electronically filed in the Third Court of Appeals on December 24, 2014.
6 APPELLANT'S ISSUES PRESENTED FOR REVIEW
I. The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge is against the great weight and preponderance of the evidence, i.e., factually insufficient.
II. The jury’s negative answer to the self-defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient.
** For purposes of reference in the Appellant’s Brief the following will be the style used in referring to the record:
1. Reference to any portion of the Court Reporter’s Statement of Facts will be denoted as “(RR____, ____),” representing volume and page number, respectively.
2. The Transcript containing the District Clerk’s recorded documents will be denoted as “(CR___, ___).”
7 SUMMARY OF THE ARGUMENTS
I. The evidence is factually insufficient to support the jury’s negative finding on the sudden passion issue contained in the trial court’s charge on punishment.
II. The evidence is factually insufficient to support the jury’s rejection of Appellant’s self-defense claim.
8 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
I certify that this brief contains 4,000 words (counting all parts of the
document and relying upon the word count feature in the software used to
draft this brief). The body text is in 14 point font and the footnote text is in
12 point font.
/s/ M. Patrick Maguire M. Patrick Maguire, Attorney for Appellant
9 STATEMENT OF FACTS
On December 25, 2010, Appellant and her husband, Jimmie Joe
Hernandez (“Jimmie”), had been drinking heavily. RR 3, 91; RR 3, 194.
They, along with other family members, had been to a Christmas dance held
in Menard, Texas. 1 RR 3, 195. In the early morning hours of December 26,
2010, Appellant and Jimmie got into an argument over Appellant seeing
another man. RR 3, 195-96. Appellant left the dance with Jimmie’s parents
who drove Appellant to her house in Menard. RR 3, 196. Jimmie walked
home from the dance. RR 3, 196.
After arriving home, Appellant left the house to walk back and find
Jimmie. RR 3, 196-97. When she found him, the two got into a physical
altercation. RR 3, 197. Jimmie spit on Appellant’s face, broke her cell
phone, and somehow in the altercation, pulled one of her boots off. RR 3,
196-97. Appellant returned to the house. Appellant’s brother, Justin Stone,
was passed out on a sofa in the house. RR 3, 197. Mr. Stone’s girlfriend,
Staci Leach (also known as “Nellie”), was sleeping on the other sofa. RR 3,
96. Staci awoke to Appellant coming in the door with Jimmie following
right behind Appellant. RR 3, 96. Appellant woke Staci up and said that
Jimmie had hit her and Appellant was yelling at Jimmie because her boot
1 The offense occurred in Menard County, Texas. Venue was transferred to McCulloch County, Texas where the case was tried.
10 was missing. RR 3, 96. Appellant also had spit on her eyebrow with a little
bit of blood in it. RR 3, 96. Staci asked Jimmie if Jimmie had hit Appellant
and Jimmie denied hitting her. RR 3, 96. Staci attempted to get Appellant’s
brother to wake up. RR 3, 96.
Meanwhile, Appellant and Jimmie were arguing in the kitchen (which
was directly adjacent to the living room where Staci and Appellant’s brother
were sleeping) and Appellant picked up a pan and struck Jimmie multiple
times in the head with it. RR 3, 96. According to Staci, Appellant turned
and grabbed a handful of knives out of a drawer or on the counter. RR 3, 97.
The argument continued into the living room and Staci said that Appellant
threw one knife at Jimmie and it stuck in the floor. RR 3, 98. Staci said that
Jimmie picked the knife up by the blade, handed the knife back to Appellant,
and told Appellant, “you missed me, Bitch, try again.” RR 3, 98. Staci said
that Jimmie and Appellant were very close to one another and Appellant said
something to Jimmie and when she turned around to walk away, Jimmie told
Appellant to “go fuck another kid.” RR 3, 98. At that point, Appellant
turned around and stabbed Jimmie in the chest. RR 3, 98-99. According to
Staci, Appellant then backed up and said “ha, Bitch.” RR 3, 99. Jimmie
then pulled the knife out of his chest and threw it on the ground and said
11 “don’t call the cops.” RR 3, 100. Jimmie walked out the door and collapsed
outside on the edge of the street. RR 3, 100.
Appellant ran up to Jimmie and grabbed his arm, apparently trying to
get him up. RR 3, 101. Appellant was hysterical and saying she was sorry
over and over. RR 3, 124-25. Jimmie died shortly thereafter.
12 ARGUMENTS & AUTHORITIES
I. The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge is against the great weight and preponderance of the evidence, i.e., factually insufficient.
A. Standard of Review
At the punishment phase of a trial, a defendant found guilty of murder
may raise the issue as to whether he caused the death under the immediate
influence of sudden passion arising from an adequate cause. See Tex. Penal
Code §19.02(d). If the defendant proves the issue by a preponderance of the
evidence, the murder is reduced to a second degree felony. Id. “Sudden
passion” means “passion directly caused by and arising out of provocation
by the individual killed.” Id. §19.02(a)(2). “Adequate cause” means “cause
that would commonly produce a degree of anger, rage, resentment, or terror
in a person of ordinary temper, sufficient to render the mind incapable of
cool reflection.” Id. §19.02(a)(1).
Sudden passion must arise at the time of the offense and cannot result
solely from former provocation. De Leon v. State, 373 S.W.3d 644, 650
(Tex. App.—San Antonio 2012, pet. ref’d). Moreover, neither ordinary fear
nor anger alone is sufficient to establish sudden passion. Id. When a
defendant seeks appellate review of a failure to make a finding on which the
defendant has the burden of proof, like sudden passion, the appellate court
13 must apply a factual sufficiency standard of review. Id. Accordingly, the
appellate court will review all of the evidence in a neutral light and
determine whether the jury’s failure to find sudden passion is so against the
great weight and preponderance of the evidence as to be manifestly unjust.
Id. at 651. (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App.
1990)).
B. Analysis
It was undisputed that Appellant and Jimmie were intoxicated and in
the midst of a very heated argument when Appellant stabbed Jimmie. In
cases where appellate courts have upheld a jury finding rejecting the
“sudden passion” defense, there are typically facts to indicate some
reflection on the defendant’s part that showed some (even very brief)
premeditation that mitigate against a sudden passion finding. This could be
a statement or an action by the defendant. However, in this case, there are
no facts that indicate any premeditation on Appellant’s part.
Staci Leach’s testimony is crucial on this point. It is apparent that
Staci was not a witness who was sympathetic towards Appellant. At one
point in Staci’s testimony, she refused to even look at Appellant when asked
to identify her. RR 3, 113-14. Staci’s testimony would have particular
weight on the sudden passion issue because, if anything, Staci would be
14 more inclined to incriminate Appellant rather than support Appellant’s
sudden passion theory.
Staci testified that when she awoke to Appellant and Jimmie fighting,
that Appellant was missing a boot and had Jimmie’s spit on her face. RR 3,
96. She testified that the fight escalated to the point that Appellant actually
hit Jimmie in the head with a saucepan and grabbed knives, throwing one of
them at Jimmie. RR 3, 96-98.
The next part of Staci’s testimony is critical in determining whether
the jury’s verdict is against the great weight and preponderance of the
evidence. After having had a knife thrown at him, according to Staci,
Jimmie picked up the knife, handed it back to Appellant and said “you
missed me Bitch, try again.” RR 3, 98. At this point, Appellant had turned
away from Jimmie and was walking away when Jimmie said “go fuck
another kid.” RR 3, 98. This is apparently what provoked Appellant to spin
around and immediately stab Jimmie. RR 3, 98.
Appellant’s actions after the stabbing also support the fact that
Appellant acted under the influence of sudden passion. Appellant became
hysterical, telling Jimmie she was sorry and attempted to get Jimmie up by
pulling on his arm. RR 3, 101. These are the actions of a person who acted
in a fit of rage and sudden passion, not of someone who planned or
15 premeditated to kill someone with malice. The burden is that Appellant
“more likely than not” killed Jimmie while under the influence of sudden
passion. However, Appellant submits that the evidence shows at least by
clear and convincing evidence that the murder occurred as a result of sudden
passion.
Looking at the facts leading up to, and right after, the stabbing show
unquestionably that this was a crime that occurred as a result of sudden
passion. This is even more apparent when studying the cases where
appellate courts have upheld a jury’s rejection of a sudden passion defense.
An example is the De Leon case cited herein. In affirming the jury’s
rejection of the defendant’s “sudden passion” argument, the Fourth Court of
Appeals noted that right before the defendant stabbed the victim, the
defendant told a bystander “well, now this one is going – is going to pay
now . . . . [h]e’s a son of a bitch.” De Leon v. State, 373 S.W.3d 644, 651
(Tex. App.—San Antonio 2012, pet. ref’d). The Fourth Court found this
statement to be an important fact in determining that the jury’s finding was
not so against the great weight and preponderance of the evidence to be
manifestly unjust. Id. This is typical of cases where the appellate court
affirms a jury’s rejection of a “sudden passion” defense. This sort of
evidence is lacking in Appellant’s case.
16 In Appellant’s case, Appellant and Jimmie were in a heated argument
that had gotten physical. Although Staci says that Appellant was hitting
Jimmie with a sauce pan in the kitchen, there was also a physical altercation
that took place as reflected by Appellant missing her boot and having
Jimmie’s spit on her face. There was clearly a mutual combat situation
where tempers flared and emotions were running extremely high. The
boiling point came when Jimmie told Appellant to “go fuck another kid” and
immediately Appellant spun around and stabbed Jimmie in the chest.
Although Staci testified that Appellant said “ha, Bitch” immediately
afterward, Appellant’s and Jimmie’s actions after the stabbing reflect that
this is a classic case of sudden passion. It seemed that both realized what a
huge mistake had just been made as reflected by Appellant’s hysteria and
Jimmie’s statements to Appellant immediately after the stabbing. The jury’s
finding is so against the great weight and preponderance of the evidence that
it is manifestly unjust. See De Leon, 373 S.W.3d at 651.
The most compelling evidence that would bear on the “sudden
passion” issue is Staci’s testimony and Appellant’s testimony. Staci was the
only eyewitness to the stabbing other than Appellant. While a jury is free to
accept or reject witness testimony and to determine the credibility of the
witnesses, there are simply no facts which justify a negative finding on
17 Appellant’s “sudden passion” issue. Appellant’s case should properly have
been submitted to the jury as a second degree felony. If the jury accepted
the State’s evidence (which it apparently did) then it would have to have
made a “sudden passion” finding. Appellant was sentenced to a term of
confinement of thirty (30) years, which is 10 years more than she could have
received if this case had been properly deemed a second degree felony as a
result of a sudden passion finding.
There was only one stab wound as opposed to many. Staci testified
that Appellant said “ha Bitch, try again” after stabbing Jimmie, but that she
immediately became hysterical after she realized that Jimmie was badly hurt.
Additionally, Appellant ran out to the street where she knelt by Jimmie’s
side pulling on his arm attempting to get him up saying she was sorry over
and over. RR 3, 124. Jimmie’s reaction after being stabbed also lends itself
to the crime occurring while in the throes of sudden passion. Jimmie told
those around him not to call the cops. RR 3, 100. If this was a situation
involving premeditation, it would seem that Jimmie would not have reacted
in this way. Appellant also testified that Jimmie told Appellant to run as he
lay dying in an apparent reference to Jimmie seeking to protect Appellant’s
interest. RR 4, 209.
18 The relationship between Appellant and Jimmie can best be
characterized as dysfunctional. Both Appellant and Jimmie were young and
caught up in drug and alcohol abuse. This was a tragic event for both
Jimmie and Appellant. Although motive is not an element to the offense of
murder, it is certainly probative in determining whether the killing occurred
as a result of sudden passion. The facts clearly show that this killing
occurred as a result of sudden passion. The jury’s rejection of Appellant’s
sudden passion defense is so against the great weight and preponderance of
the evidence as to be manifestly unjust.
II. The jury’s negative answer to the self-defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient.
Texas law categorizes self-defense as a defense, not an affirmative
defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). To
support a defense like self-defense, a defendant bears only a burden of
production, which requires him to produce some evidence in support of his
claim. Id.; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
Once the defendant produces such evidence, the burden shifts to the State,
and the State bears the burden of persuasion to disprove the raised defense.
Id. Unlike the defendant’s burden of production, the State’s burden of
19 persuasion requires it to prove its case beyond a reasonable doubt. Id.
When a fact finder determines that a defendant is guilty, there is an implicit
finding rejecting any defensive theory raised by the defendant. Zuliani, 97
S.W.3d at 594; Saxton, 804 S.W.2d at 914.
When a defendant challenges the legal sufficiency of the evidence
supporting a jury’s implicit rejection of a defendant’s claim of self-defense,
“we look not to whether the State presented evidence which refuted
appellant’s self-defense testimony, but rather we determine whether after
viewing all the evidence in the light most favorable to the prosecution, any
rational trier of fact would have found the essential elements of murder
beyond a reasonable doubt and also would have found against appellant on
the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at
914. When a defendant challenges the factual sufficiency of the evidence
supporting a jury’s implicit rejection of a defendant’s claim of self-defense,
the appellate court reviews all the evidence in a neutral light and asks
“whether the State’s evidence taken alone is too weak to support the finding
and whether the proof of guilt, although adequate if taken alone, is against
the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at
595.
20 A person is legally justified in using force against another person
when and to the degree he reasonably believes the force is immediately
necessary to protect himself against the other’s use or attempted use of
unlawful force. Tex. Penal Code §9.31(a). A person is legally justified in
using deadly force against another person when and to the degree: (1) he
would have been justified in using force as set out in section 9.31 of the
Texas Penal Code, (2) a reasonable person in his position would not have
retreated, and (3) he reasonably believed the use of deadly force was
immediately necessary to protect himself against the other person’s use or
attempted use of unlawful deadly force. Tex. Penal Code §9.32. “Deadly
force” is force that is intended or known by the actor to cause, or in the
manner of its use or intended use is capable of causing, death or serious
bodily injury. Tex. Penal Code §9.01(3).
The evidence reflected that in the hours leading up to the stabbing,
Appellant and Jimmie were intoxicated and that they had been arguing and
fighting. Ermalinda Duarte testified for the defense. Ermalinda was the
mother of Mikey Lopez, the young man that Appellant was having an affair
with. Ermalinda testified that Jimmie called her around 2:45 a.m. on the
morning of December 26, 2010 and that Jimmie was very angry and cussing.
21 RR 4, 134. Jimmie told Ermalinda that he wanted to kill her son, Mikey.
RR 4, 136-37. Ermalinda said that Jimmie sounded like he was intoxicated.
RR 4, 135. Ermalinda also testified that around 5 or 6 p.m. on December 26,
2010, she saw that Appellant had swelling on her cheek and the beginning of
a black eye. RR 4, 160. Ermalinda also testified that she was aware that
Jimmie physically abused Appellant in the past. RR 4, 138. This is
consistent with the testimony of Appellant’s mother, who testified that
Jimmie physically abused Appellant. RR 4, 167-68.
According to Ermalinda, Staci Leach told her that Jimmie had thrown
a knife at Appellant and that it had stuck in the floor and that Appellant was
trying to get away from Jimmie. RR 4, 158.
Appellant testified in her own defense. She testified that there was a
history of family violence in the relationship with her and Jimmie. RR 4,
193-95. Appellant described the events leading up to the stabbing and said
that she was trying to get Jimmie out of her house and that she stabbed him
in fear that she was about to be seriously hurt. RR 4, 205-07.
Dr. Lisa Watts, a psychologist who evaluated Appellant and reviewed
the facts of the case, testified that Appellant suffered from post-traumatic
stress disorder. RR 4, 256. Dr. Watts also testified that based upon her
diagnosis of Appellant and her evaluation of the case history that she did not
22 believe that Appellant intended to kill Jimmie. RR 4, 265. It was Dr. Watts’
opinion that Appellant acted in fear for her life. RR 4, 268.
It must be remembered that in conducting the analysis in this case, the
Court must not look to whether the State presented evidence which refuted
Appellant’s self-defense evidence, but rather after viewing all the evidence
in the light most favorable to the prosecution, any rational trier of fact would
have found the essential elements of murder beyond a reasonable doubt and
also would have found against appellant on the self-defense issue beyond a
reasonable doubt. Saxton, 804 S.W.2d at 914. Appellant would focus this
court’s attention on the facet of the analysis that reviews whether any
rational trier of fact would have found against Appellant on the self-defense
issue beyond a reasonable doubt. Unlike the defendant’s burden of
production, the State’s burden of persuasion requires it to prove its case
beyond a reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.
Crim. App. 2003).
Based upon the evidence submitted, it cannot be said that a jury could
find against Appellant on the self-defense issue beyond a reasonable doubt.
To support such a finding, the jury would have to reject the testimony of
Staci Leach, Dr. Watts and virtually every other witness who testified. If a
jury were to reject this testimony, then it would also follow that the jury
23 must reject the testimony of these witnesses concerning how the homicide
occurred. While a jury is free to accept or reject evidence presented at trial,
given the burden of proof applicable to the self-defense, the jury’s rejection
of self-defense in Appellant’s case is not a tenable conclusion to be reached
from the evidence presented.
CONCLUSION
Based on the foregoing argument and authorities, Appellant
respectfully submits that Appellant’s conviction for murder should be
reversed and the cause remanded to the trial court for a new trial.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Honorable Court sustain the appellate contentions herein,
reverse the judgment of the trial court convicting Appellant of murder and
remand this cause to the trial court.
24 Respectfully submitted,
M. PATRICK MAGUIRE, P.C.
/s/ M. Patrick Maguire M. Patrick Maguire State Bar No. 24002515 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of Appellant's Brief to counsel for the State, Hon. Tonya Spaeth Ahlschwede, via electronic transmission at tsa@452da.net, and whose address is P.O. Box 635, Mason Texas 76856, on this the 24th day of December, 2014.
/s/ M. Patrick Maguire M. Patrick Maguire