Abelino Hernandez v. State ( 2015 )

ACCEPTED
13-14-00465-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/18/2015 10:55:14 AM
DORIAN RAMIREZ
CLERK
NO. 13-14-00465-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 3/18/2015 10:55:14 AM
AT CORPUS CHRISTI DORIAN E. RAMIREZ
Clerk
ABELINO HERNANDEZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from the
th
24 Judicial District Court
Of Victoria County, Texas
Cause No. 14-04-27866-A
BRIEF FOR THE STATE OF TEXAS
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ...............................................................iii-iv
STATEMENT OF THE FACTS .......................................................... 1-8
SUMMARY OF ARGUMENT ............................................................. 8-9
ARGUMENT ...................................................................................... 10-26
I. The Appellant waived any objection to the
admission of the AFIS related evidence by
failing to timely object at trial ............................................... 10-13
II. The AFIS related evidence was neither
irrelevant nor unfairly prejudicial ........................................ 13-23
III. Any error from the admission of the AFIS
evidence was harmless ............................................................ 23-26
PRAYER .................................................................................................. 27
SIGNATURE ........................................................................................... 27
CERTIFICATE OF COMPLIANCE ................................................... 28
CERTIFICATE OF SERVICE ............................................................. 29
Brief of Appellee ii
Victoria County Criminal District Attorney
No. 13-14-00465-CR
INDEX OF AUTHORITIES
Texas Cases
Bevill v. State, 573 S.W.2d 781 (Tex. Crim. App. 1978)...................... 21
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ............... 16, 23
Dixon v. State, 2 S.W.3d 263 (Tex. Crim. App. 1998) ......................... 10
Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) ............... 10
Gigliobianco v. State, 210 S.W.3d 637 ............................................. 17-18
(Tex. Crim. App. 2006) ...................................................................... 21-22
Ketchum v. State, 199 S.W.3d 581
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 23
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) ................. 12
Marini v. State, 593 S.W.2d 709 (Tex. Crim. App. 1980).................... 10
Martinez v. State, 131 S.W.3d 22
(Tex. App.—San Antonio 2003, no pet) ................................................ 12
Mata v. State, No. 05-05-00504-CR, 2007 WL 882439
(Tex. App.-Dallas 2007, pet. ref’d)
(not designated for publication) ....................................................... 18-19
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......... 13
Morales v. State, 32 S.W.3d 862 (Tex.Crim.App.2000)........................ 13
Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 2004) ................... 17
Nino v. State, 223 S.W.3d 749
(Tex. App.—Houston [14th Dist.] 2007, no pet)................................... 12
Brief of Appellee iii
Victoria County Criminal District Attorney
No. 13-14-00465-CR
Stone v. State, 17 S.W.3d 348
(Tex. App.-Corpus Christi 2000, pet. ref’d) ......................................... 15
Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005) ..................... 20
Texas Rules
TEX. R. APP. 9.4..................................................................................... 28
TEX. R. APP. 33.1................................................................................... 10
TEX. R. APP. 44.2................................................................................... 23
TEX. R. EVID. 403 ................................................................................. 16
Brief of Appellee iv
Victoria County Criminal District Attorney
No. 13-14-00465-CR
NO. 13-14-00465-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
ABELINO HERNANDEZ…..….…………………………………..Appelant
v.
THE STATE OF TEXAS,…..……………………………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellee in the above numbered
and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS
On April 3, 2014, Appellant was indicted for the offense of
aggravated robbery. [CR-I-5].
Appellant’s case was called for trial on August 11, 2014. [RR-IV-1].
During his voir dire, Appellant’s attorney questioned the venire panel about
the presumption of innocence. [RR-IV-132]. No member of the panel
expressed any reservations about giving the Appellant the presumption of
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
1
innocence. [RR-IV-132] After the completion of voir dire, the trial judge
gave the members of the jury instructions. [RR-IV-162-168]. These
instructions included a direction that the jury was to follow the law given to
them by the court and was not to indulge in guesswork or speculation. [RR-
IV-163]. The trial court also instructed the jury that evidence consists only
of the testimony of witnesses, and the exhibits admitted into evidence. Id.
The State’s first witness at trial was the victim of the offense, Ms.
Josefa Tamayo. [RR-V-15]. Ms. Tamayo testified to being robbed by a
man in March of 2013 while she was working the late shift at a Stripes
convenience store. [RR-V-18-20]. She characterized her assailant as heavy-
set, about 5’5 in height, and with a thermal t-shirt covering his face. [RR-V-
19-20]. She also established that her assailant had a knife in his hand while
robbing her. [RR-V-21-22]. She then testified to seeing blood on the
robber’s fingers after he cut himself with his own knife, and that the robber
dropped the knife when he fled the scene. [RR-V-22]. Ms. Tamayo also
testified as to how the robber had cut himself while trying to open the cash
register. [RR-V-31-32]. Ms. Tamayo then clarified that she was 5’5 in
height, and the robber was “a little bit taller, not much” than her. [RR-V-32-
33].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
2
The State next called Sergeant Kelly Luther of the Victoria Police
Department. [RR-V-39]. Sergeant Luther described being called out the
night of the robbery to the robbery location where she observed both the
knife and blood at the scene. [RR-V-43]. She specifically described finding
blood on the door handle. [RR-V-44]. She then confirmed that the store
video showed that robbery suspect having touched the door handle when he
fled the location. [RR-V-45-46; State’s Exhibit 15]. Sergeant Luther also
described locating blood on the knife. [RR-V-46; State’s Exhibit 8].
The State then called Officer Javier Guerrero. [RR-V-55]. Officer
Guerrero also testified to being called out to the robbery location, where he
observed blood on the door and blood on the knife. [RR-V-59]. He then
explained the process by which he collected the blood from both the door
and from the knife. [RR-V-59-63]. Officer Guerrero also established the
chain of custody for the State’s exhibits related to the blood samples he had
collected [RR-V-64-72], and those exhibits were accepted into evidence.
[RR-V-89; State’s Exhibits 17, 17A, 17B, 18].
The State then called Officer Joshua Robinson. [RR-V-91]. Officer
Robinson testified to being called to the robbery scene where he was
responsible for collecting fingerprints. [RR-V-94]. Officer Robinson
indicated finding possible prints on the door and the cash register drawer
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
3
pieces that were left at the store but stated he did not know how old those
prints were. [RR-V-94]. Officer Robinson then testified that prints were
lifted in this case, but that they did not match to anything. [RR-V-97].
After Officer Robinson’s testimony was complete there was a lengthy
bench conference concerning evidentiary issues. [RR-V-102-108].
Appellant did not raise any concern about evidence about the AFIS system
being admitted during this conference and did not request any sort of motion
in limine or running objection against such evidence. Id.
When trial before the jury resumed, the State called Detective Amy
Grothe. [RR-V-108]. Detective Grothe testified to receiving an
investigative lead that led her to request a buccal swab from the Appellant.
[RR-V-112]. She also identified the Appellant in the courtroom. [RR-V-
113]. Detective Grothe then indicated that the Appellant consented to giving
a DNA sample, which was collected by another person, Holly Jedlicka. Id.
Detective Grothe then established that the defendant was about 5’7 in height
and weighed 200 pounds, and that he was living in Victoria, about 2 miles
from the scene of the robbery, at the time of the robbery. [RR-V-114].
The State then called Holly Jedlicka, a Crime Scene Supervisor for the
Victoria Police Department. [RR-V-114, 116]. Technician Jedlicka
described taking a buccal swab from the Appellant on January 24, 2014.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
4
[RR-V-119, 122]. She also explained that four fingerprint cards had been
prepared with latent lifts on them as part of the investigation for this case.
[RR-V-122].
The prosecutor then asked Technician Jedlicka about AFIS. Id. She
replied that AFIS is the Automated Fingerprint Identification System, and
that “every fingerprint known or unknown that we get comes through there.”
[RR-V-123]. She then further stated that once you are booked into jail your
fingerprints automatically go into AFIS. Id. Neither the question asked by
the prosecutor nor this answer were objected to by the defense. Id.
The prosecutor then asked if his fingerprints were in AFIS, and
Technician Jedlicka indicated that as a state employee they would be in the
system. Id. These questions were also asked and answered without any
objection from the defense. Id.
The prosecutor then asked if AFIS contained the records not just of
criminals but also of everyone that works for the state or has had background
checks run. Id. Technician Jedlicka answered yes to this question as well.
Id.
It was only after that answer that Appellant’s attorney requested a
bench conference with the judge. Id. At the bench conference Appellant’s
attorney indicated he objected because “we have crossed the line into the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
5
jury thinking the prints that exist-“. [RR-V-123]. Appellant’s attorney did
not finish his objection as the trial court overruled him. Id.
The prosecutor then asked Technician Jedlicka if the fingerprints
collected in this case were compared against those in the AFIS database.
[RR-V-124]. Technician Jedlicka indicated that was done by there was no
match. Id. She then testified that the Appellant’s own prints were also sent
off to the Texas Department of Public Safety to be compared against the
prints taken from the scene, and that again there was no match. Id.
Technician Jedlicka then established that of the four prints collected from
the robbery scene, DPS considered only one of them to be usable. Id. She
also explained the difference between usable and unusable prints and
established there was no way to tell how old the prints were. [RR-V-124-
125].
Technician Jedlicka’s testimony concerning the buccal swab would
lead to it being admitted as State’s Exhibit 19. [RR-V-125].
The State then called Ms. Lisa Harmon Baylor, a forensic scientist
with the Texas Department of Public Safety crime laboratory in Corpus
Christi. [RR-V-128, 130]. Ms. Baylor testified to performing a DNA
analysis on State’s Exhibits 17A and 17B. [RR-V-138]. She then
established that the blood sample taken from the door, when compared to the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
6
known sample taken from the Appellant, produced results that “an unrelated
person at random could be the source of this DNA profile” at odds of
“approximately one in 130.4 quintillion for Caucasians, one in 89.77
sextillion for blacks, and one in 739.6 quintillion for Hispanics.” [RR-V-
152; State’s Exhibit 21]. Ms. Baylor further testified that such results meant
to a reasonable degree of scientific certainty that the Appellant was the
source of the blood found on the door. [RR-V-152]. Ms. Baylor also
established that the concerning the blood sample taken from the knife, the
odds of an unrelated person taken at random being the source of that sample
was “one in 2.204 quintillion for Caucasians, one in 5.018 quintillion for
blacks, and one in 15.93 quintillion for Hispanics” and that also was
sufficient to establish to a reasonable degree of scientific certainty that the
Appellant was the source of blood on the knife as well. [RR-V-154; State’s
Exhibit 21].
The court’s charge to the jury included an instruction that the jury
could not consider the fact that the defendant had been indicted as evidence
against him. [CR-I-25].
The State’s closing argument did not make any reference to the
defendant’s fingerprints being kept in AFIS. [RR-VI-25-33; 38-44.]
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
7
Appellant’s closing argument extensively attacked how the State
collected evidence in this case [RR-VI-35-37]. Appellant’s closing
argument also twice mentioned the State’s failure to obtain fingerprints.
[RR-VI-36-37].
On August 13, 2014, the jury found the Appellant guilty of aggravated
robbery as alleged in the indictment. [CR-I-28; RR-VI-47]. The Appellant
pled true to the sentence enhancements alleged against him and was
sentenced to 30 years imprisonment. [CR-I-35-37].
SUMMARY OF THE ARGUMENT
The Appellant waived any error to the admission of the evidence
regarding the AFIS database by failing to timely object. Appellant did not
object after the prosecutor first asked about AFIS or even after the witness
first indicated that people who had been arrested were kept in the AFIS
system, but instead only objected after several questions on this matter had
already been asked and answered.
The AFIS related evidence was neither irrelevant nor unfairly
prejudicial. The evidence was relevant both to help persuade the jury that
the investigating officers had performed a thorough, competent
investigation, utilizing every resource available to them, and as part of the
State’s efforts to pull the sting from it not obtaining any usable fingerprint
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
8
evidence in this case. Nor was the evidence unfairly prejudicial. The AFIS
evidence had probative force, and the danger of it confusing, misleading, or
inflaming the jury was very slight since the evidence at trial clearly
established that it was not only suspected criminals that were in the AFIS
database but also all State employees and everyone who had ever received a
State background check. Nor did the State spend a substantial amount of
time developing this evidence. As such the trial court acted well within its
discretion in concluding the probative value of the AFIS evidence was not
substantially outweighed by its danger of unfair prejudice, and that
conclusion should be upheld.
In the alternative, even if the admission of the AFIS evidence was
deemed to be error, that error would be harmless. The State had
overwhelming evidence of Appellant’s guilt, while the prejudicial impact of
improper consideration of the AFIS evidence would be very slight, due to
both the nature of that evidence and to the active steps the trial prosecutor
took to minimize any improper consideration of the evidence. As such it is
clear that any erroneous admission of the AFIS evidence would not have
improperly affected the verdict in this case, which means any such error can
be disregarded, and the conviction should be affirmed.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
9
ARGUMENT
I. The Appellant waived any objection to the admission of the AFIS
related evidence by failing to timely object at trial.
To preserve error for appellate review, the complaining party must
make a timely objection. See Tex.R.App. P. 33.1(a); Dixon v. State, 2 S.W.
3d 263, 265 (Tex. Crim. App. 1998). The requirement of timeliness means
the objection must be made at the earliest possible opportunity. Marini v.
State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980). If possible this should
be done before the objectionable evidence is actually admitted, but if that is
not possible than the objection must occur as soon as the objectionable
nature of the evidence becomes apparent. See Ethington v. State, 819
S.W.2d 854, 858 (Tex.Crim.App.1991).
In regards to the evidence concerning the Automated Fingerprint
Identification System (AFIS), Appellant failed to make the required timely
objection and thus waived any error as to the admission of that evidence.
The trial record makes clear that neither the prosecutor’s initial question of
“And now can you explain to the jury what AFIS is real quick?” nor
Technician Jedlicka’s answer of:
AFIS is the Automated Fingerprint Identification System
It’s for-it’s ran through DPS and basically every
fingerprint known or unknown that we get comes
through there. Once your booked into any jail facility
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
10
your prints automatically go in there for comparison.
produced any sort of objection from the Appellant. [RR-V-122-123]. If the
Appellant believes the testimony about AFIS is irrelevant (as he is now
arguing) than that specific objection should have been lodged as soon as the
prosecutor asked a question referencing AFIS. Likewise if the Appellant
believes that the evidence about the AFIS database having information on
people who have been jailed is unfairly prejudicial, then he should have
objected as soon as the witness testified that anyone who was booked into a
jail facility had their prints go into AFIS.
Appellant did not object to either the prosecutor’s question about
AFIS or the witnesses’ answer. [RR-V-122-123]. The prosecutor then
asked a second question about AFIS without objection, which the witness
also answered without objection. [RR-V-123]. After which the prosecutor
asked a third question about AFIS without objection, which the witness also
answered in full, and only then did the Appellant request a bench conference
where he registered an objection to the AFIS related questioning. [RR-V-
123].
As such it is clear that Appellant did not timely object to either the
admission of evidence about AFIS or the admission of evidence that the
AFIS system included records of people who had been arrested. Instead
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
11
Appellant allowed that testimony to be admitted without any objection and
only belatedly raised an objection after two other questions had been asked
and answered. Multiple courts have concluded that when an objection is not
submitted until after additional questions have been asked then the objection
is untimely. See Nino v. State, 223 S.W.3d 749, 755 (Tex. App.—Houston
[14th Dist.] 2007, no pet) (where prosecutor asked leading question “laced
with” offensive information, witness answered, and prosecutor asked
another question before defendant objected, objection was not timely);
Martinez v. State, 131 S.W.3d 22, 38 (Tex. App.—San Antonio 2003, no
pet) (objection was too late where after question, witness answered and
prosecutor moved on to another question before defense counsel objected).
Texas law is very clear that if a party fails to object until after an
objectionable question has been asked and answered and can show no
legitimate reason to justify the delay, the objection is untimely and error is
waived. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).
Appellant did not object to any of the AFIS related questions until after they
had already been asked and answered. Nor has Appellant provided any
legitimate reason to justify his delay in objecting to these questions.
Therefore Appellant’s eventual objection to this line of question was
untimely and any error related to the AFIS related questions has been
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
12
waived.
II. The AFIS related evidence was neither irrelevant nor unfairly
prejudicial.
Furthermore, even if the Appellant is deemed to have made timely
objections concerning the AFIS related evidence, Appellant is still not
entitled to any relief as the trial court acted well within its discretion in
determining that the AFIS related evidence was neither irrelevant nor
unfairly prejudicial.
The test for relevance is whether a reasonable person would believe
the particular piece of evidence is helpful in determining the truth or falsity
of any fact that is of consequence to the case. See Montgomery v. State, 810
S.W.2d 372, 376 (Tex. Crim. App. 1990). Nor does evidence have to be
dispositive of an issue to be relevant. Evidence merely tending to affect the
probability of the truth or falsity of a fact in issue is still relevant.
Montgomery, 810 S.W.2d at 376. All the evidence has to do is provide a
“small nudge” towards proving or disproving some fact of consequence. Id.
This broad definition of relevance allows a liberal policy of admission of
evidence for the jury’s consideration. Morales v. State, 32 S.W.3d 862, 865
(Tex.Crim.App.2000).
In the present case, it is clear the AFIS evidence was helpful in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
13
proving a fact of consequence. Because the suspect had his face obscured
during the course of the robbery, the State’s case was heavily dependent
upon the forensic evidence obtained at the crime scene. As such the
thoroughness and competence of the law enforcement investigation was of
definite importance in this case. Appellant obviously recognized that the
nature of the police investigation was critical to this case as he extensively
cross-examined the State’s witnesses on the nature of their investigation and
devoted considerable time in his closing argument to attacking how the State
collected evidence in this case. [RR-VI-35-37].
The testimony about AFIS was therefore important because it helped
demonstrate a fact of importance in the case: specifically that the police
conducted a thorough investigation, utilizing every reasonable resource that
was available to them. And naturally it was necessary to provide the jury
with background information about what AFIS was and how it worked
because without that information, the fact that the State had utilized AFIS as
part of the investigation would mean nothing to the jury. The jury needed to
know why utilizing AFIS demonstrated that the police had conducted a
thorough, fair investigation, and that necessitated them knowing what AFIS
was and why it was a useful investigative tool. Therefore the AFIS evidence
was relevant to the State’s case as it helped demonstrate that the police had
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
14
performed a proper investigation in this case.
Appellant now contends that the evidence about the lack of
fingerprints was of no real value to the State’s case and could have been
introduced through other means. As to the first point, it is a common trial
tactic for parties to introduce evidence harmful to their own case so as to
control how that evidence is brought before the fact finder and to hopefully
“pull the sting” of the harmful evidence. See Stone v. State, 17 S.W.3d 348,
349 (Tex. App.-Corpus Christi 2000, pet. ref’d). Thus it was entirely
reasonable for the State to elicit from its own witnesses the fact that no
fingerprints matching the Appellant were located at the scene. The
prosecutor had to expect that if he did not introduce the lack of fingerprint
evidence the defense would, and that by introducing the evidence himself he
could at least get value in showing the thoroughness and fairness of the
police investigation in this case.
As for Appellant’s second point, the fact that relevant evidence
could have been presented through some other means does not make the
evidence irrelevant. The AFIS related evidence was relevant both to pull the
sting from the lack of fingerprint evidence and to give the jury the full
context of how the State conducted its investigation in this case, and
therefore the evidence was properly held to be relevant. The Appellant’s
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
15
proposed method might have been adequate for introducing sufficient
evidence to “pull the sting” from the lack of fingerprint evidence, but it
would have been wholly inadequate for giving context to how the State
conducted its investigation. The evidence was relevant for multiple
purposes, and the State therefore was justified in seeking to admit it in a
manner that would address all of the ways in which the evidence was
relevant.
Of course just because evidence is relevant does not automatically
make it admissible. Otherwise relevant evidence can still be deemed
inadmissible if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence. See TEX. R. EVID. 403; Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007).
In evaluating the relative probative value versus the unfairly
prejudicial effect of evidence, trial courts must consider 1) the inherent
probative force of the proffered item of evidence; (2) the proponent's need
for that evidence; (3) any tendency of the evidence to suggest decision on an
improper basis; (4) any tendency of the evidence to confuse or distract the
jury from the main issues; (5) any tendency of the evidence to be given
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
16
undue weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the evidence
will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-642 (Tex.
Crim. App. 2006). The trial court’s determination is only to be reversed
after a “clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 84
(Tex. Crim. App. 2004).
Considering the six Gigliobianco factors, it is clear the trial court did
not abuse its discretion in finding the AFIS evidence was not unfairly
prejudicial. As to the first and second factors, the evidence clearly had
probative force. Probative force is not precisely the same thing as relevance.
Instead probative force means how strongly an item of evidence serves to
make more or less probable the existence of a fact of consequence to the
litigation, coupled with the proponents need for that item. Gigliobianco, 210
S.W.3d at 641. The prior discussion in this brief about relevance already
addressed how the AFIS testimony served to make more probable the
existence of a fact of consequence to the litigation, specifically that the
police conducted a thorough, competent investigation, fully utilizing all
available resources to investigate every investigative lead on the case.
Furthermore, the State had a clear need for this evidence, as much of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
17
defense strategy for the case was in attacking the competence and
thoroughness of the police investigation. If the jury lost confidence in the
fairness and thoroughness of the police investigation they would be far more
likely to disregard the other forensic evidence obtained by the investigating
officers and without that evidence the State would have no case. Therefore
the probative force of this evidence was clear, and the State had a definite
need for the evidence.
As for the third Gigliobianco factor, the tendency of this evidence to
suggest decision on an improper basis was exceedingly slight. The evidence
presented at trial was very clear that it was not only people who had been
arrested that were in AFIS, but rather all State employees and anyone who
had ever undergone a State background check were also in the system. [RR-
V-123]. Indeed the prosecutor himself established that his own fingerprints
were in the AFIS system. Because the evidence established that AFIS held
data from a wide segment of the population, there is little reason to believe
that jurors would infer the Appellant had a criminal history simply because
his fingerprints were in AFIS.
Notably, the Dallas Court of Appeals addressed a similar issue in the
Mata case concerning evidence about the CODIS DNA database. See Mata
v. State, No. 05-05-00504-CR, 2007 WL 882439, at 5 (Tex. App.-Dallas
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
18
2007, pet. ref’d)(not designated for publication). The defense in Mata raised
the same concern that has been raised in this case, that jurors might think
that someone in CODIS has been previously convicted of an offense. Id.
The Dallas Court of Appeals concluded though that since the evidence
presented in that case showed that not just criminals had their fingerprints in
CODIS but also government employees, the court could not make the
assumption that the jurors would conclude that the defendant was a “known
offender” rather than just a “known individual.” Id. That same logic applies
in the present case. Any danger that the evidence about AFIS would lead
jurors to decide the case on an improper basis was removed due to the
testimony that AFIS included data on non-arrestees. Therefore there was no
unfair prejudice.
Appellant’s argument that it is unlikely that jurors would believe a
defendant accused of robbing a convenience store had ever been a former
State employee or had received a State background check is unpersuasive
and unsupported by any facts. Appellant voir dired on the question of
whether the jury could give the Appellant the full presumption of innocence,
and no juror indicated any problem with doing so. [RR-IV-132].
Furthermore, prior to the case being submitted to the jury, the trial court
gave the jury specific instructions that they could not consider the fact that
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
19
the defendant had been indicted as evidence against him. [CR-I-25]. The
presumption is that juries follow the trial court’s instructions. See Thrift v.
State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Appellant has
produced no evidence to rebut that presumption and establish that the jury
disregarded the trial court’s explicit instructions. Therefore the presumption
of proper jury conduct should hold.
To believe that the jury would conclude that Appellant must have a
criminal history due to being in AFIS, it is necessary to believe that the jury
lied en masse during voir dire, ignored the court’s specific instructions not to
hold the fact that he had been indicted against him, and apparently believed
that no one who has ever worked for the State or received a background
examination from the State could ever be accused of a criminal offense.
None of those suppositions are supported by any evidence and the last
requires a belief that is patently illogical. Therefore there is no rational basis
to believe that the jury could have used the AFIS evidence for an improper
purpose.
It must also be noted that far more potentially prejudicial evidence
about possible criminal history has been permitted than AFIS related data.
For instance it is long settled Texas law that in cases where the jury may be
called upon to access punishment, the prosecutor may during voir dire
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
20
question the panel about sentence enhancements so long as the explanation
of the law stays hypothetical and does not inform the jury of specific
enhancement allegations against the defendant. See Bevill v. State, 573 S.W.
2d 781, 783 (Tex. Crim. App. 1978). Such hypotheticals have far more
potential to alert a clever jury that a defendant has prior criminal history than
information about a database that contains information not just on prior
arrestees, but also on all State employees and everyone who has received a
State background check. As such if the former conduct is permissible then
the later clearly does not risk signaling to the jury that a defendant has a
prior criminal history.
As to the fourth Gigliobianco factor, there was clearly no risk that the
AFIS information would tend to confuse or distract the jury from the main
issues of the trial. The concept of AFIS, that there is a government database
with fingerprints in it, is a simple one, and the prosecutor quickly and
efficiently moved through the AFIS questions. Thus there is no reason to
believe these questions injected any confusion or distraction into the trial.
Likewise as to the fifth Gigliobianco factor, there is no reason to
believe AFIS related evidence would be given undue weight by the jury.
While relevant to help show that the investigating officers did a thorough job
in their investigation, it was just one of the pieces of evidence showing how
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
21
the investigation was conducted. Nor is evidence about the existence of a
fingerprint database the type of evidence that is intrinsically inflammatory or
otherwise likely to fixate a jury’s attention; especially when the jury is
explicitly informed that the database is not just for suspected criminals but
rather holds the fingerprints of everyone who has ever worked for the state
government or received a background check from same.
And as to the final Gigliobianco factor, it is clear the AFIS evidence
did not consume a great deal of time or needlessly repeat existing evidence.
The prosecutor asked a grand total of four questions about AFIS. [RR-V-
122-124]. The answers to those four questions was all of seven sentences
long (one of which was a single word sentence.) Id. And after those brief
questions, the prosecutor never mentioned AFIS again for the rest of the
trial. Therefore the amount of time spent on this subject was minimal. Nor
did these questions repeat existing evidence, as this was the only evidence to
show that the investigating officers did a thorough job in attempting to
match the fingerprints taken at the scene with known fingerprint samples.
As such all six of the Gigliobianco factors support the trial court’s
determination that the probative value of the AFIS evidence was not
substantially outweighed by its danger of unfair prejudice. The AFIS
evidence’s probative value may have been relatively modest, but the danger
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
22
of unfair prejudice from that evidence was negligible, and the time spent
developing the evidence was exceedingly minor. Therefore its probative
value was clearly not substantially outweighed by the danger of unfair
prejudice.
The AFIS related evidence was neither irrelevant nor unfairly
prejudicial and as such the trial court acted well within its sound discretion
in allowing that evidence to be admitted into evidence. As such the trial
court’s decision should be upheld on appeal.
III. Any error from the admission of the AFIS evidence was
harmless.
In the alternative, even if there was error in the admission of the
AFIS evidence, that error would be harmless given the overwhelming
evidence of Appellant’s guilt.
The erroneous admission of evidence is non-constitutional error
under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Ketchum
v. State, 199 S.W.3d 581, 593 (Tex. App.-Corpus Christi 2006, pet. ref’d).
A criminal conviction should not be overturned for non-constitutional error
if the appellate court, after examining the record as a whole, has fair
assurance that the error did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Casey, 215 S.W.3d at 885. In
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
23
the present case, it is clear that any error from the admission of the AFIS
records would not have had a substantial and injurious effect or influence on
the verdict, and thus such error would be harmless.
Independent from the AFIS evidence, there was overwhelming
evidence of Appellant’s guilt. The victim, Ms. Josefa Tamayo, established
that the man who robbed her was slightly taller than her (she being 5’5) and
was heavyset. [RR-V-32-33]. Detective Amy Grothe would later establish
the Appellant was 5’7 and weighed about 200 pounds, a height and weight
consistent with Ms. Tamayo’s description of the man who robbed her. [RR-
V-114]. But far more conclusive was the evidence established by Ms.
Tamayo and by the video tapes of the robbery that the robber cut himself
with a knife and got his blood on both the knife and the door handle. [RR-
V-21-22, State’s Exhibits 1-2, 8, 15]. That same blood evidence would then
be established to a scientific certainty by forensic scientist Ms. Lisa Harmon
Baylor as belonging to the Appellant. [RR-V-152, 154; State’s Exhibit 21].
The odds of a random unrelated person providing the DNA match on the
blood sample were literally in the quintillions as to both samples. Id. That
is as close to an absolute certainty as it is possible to be about anything.
Thus there was overwhelming evidence showing that Appellant was the man
who committed the aggravated robbery.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
24
At the same time any prejudicial effect from the admission of the
AFIS related information would be incredibly slight. No specifics were
provided about any actual conviction Appellant ever received. Indeed the
AFIS testimony did not even indicate that you had to have a conviction to be
in their system. All it indicated was that people who were booked into a jail
facility had their information go into AFIS. [RR-V-123]. That is not an
indication of a conviction, since all it takes to go to a jail is simply being
arrested. Innocent people can plausibly be arrested, and people can likewise
be arrested for youthful indiscretions, or minor traffic offenses. The mere
fact that a person has been to jail does not mean they are a bad person or that
they have a predisposition to commit crimes, and it is implausible to believe
that even if the jury believed from the AFIS testimony that Appellant had
previously been arrested, that that testimony without any details about the
circumstances surrounding that arrest, would so influence the jury as to
impact their verdict. Our system presumes that our juries are rational and no
rational fact finder would rush to judgment based on merely a hint that a
defendant had once been arrested.
The risk of an irrational response to the AFIS evidence was even
further eliminated in this case because the trial prosecutor took active steps
to minimize any potential for inflammatory impact from the AFIS evidence.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
25
As already discussed the prosecutor specifically established that his own
fingerprints were also in AFIS, thus implicitly arguing that you could be a
law abiding person and still be in the system. [RR-V-123]. The prosecutor
then reiterated that non-criminals have their fingerprints in AFIS. Id. And
after that the prosecutor never made any reference to AFIS again for the
remainder of the trial. Between the prosecutor emphasizing that being in
AFIS does not make you a criminal, and then the prosecutor not referencing
AFIS again at any point in the trial, the potential improper prejudicial impact
of any AFIS related evidence would obviously be greatly lessened. Given
the prosecutor’s lack of emphasis on the AFIS evidence the jury would have
no reason to think the AFIS evidence had any importance (other than in
helping to show the thoroughness of the police investigation).
As such when we balance the overwhelming evidence of Appellant’
guilt, the inherent non-inflammatory nature of the AFIS evidence, and the
active measures the trial prosecutor took to minimize any risk of misuse of
the AFIS evidence, it is clear that the AFIS evidence would not have had a
substantial and injurious effect or influence on the verdict. Accordingly,
even if the admission of that evidence was error any such error was harmless
and can be disregarded.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
26
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court affirm the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLEE,
THE STATE OF TEXAS
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
27
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellee’s Brief submitted on
March 18, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,656.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
28
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
W. A. (Bill) White, Attorney for the Appellant, by depositing same in the
United States Mail, postage prepaid on the day of March 18, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
29