Christopher Michael Hernandez v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00100-CR
CHRISTOPHER MICHAEL HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 11-06139-CRF-361
MEMORANDUM OPINION
The jury convicted Christopher Michael Hernandez of the offense of murder and
assessed his punishment at 37 years confinement and a $5,000.00 fine. We affirm.
Sufficiency of the Evidence
In the fourth issue, Hernandez argues that the evidence is insufficient to support
his conviction. The Court of Criminal Appeals has expressed our standard of review of
a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S. Ct. 2712, 183
L. Ed. 2d 71 (2012).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Hernandez v. State Page 2
Travis Carroll and his girlfriend Bianca Cook went to Billy Menard’s apartment
to sell him marijuana, and Menard took the marijuana without paying for it. Carroll
and Cook left the apartment because there were other people at the apartment and
Carroll was concerned that they might be armed. Carroll called Clayton Thompson to
help him get the marijuana back. Thompson contacted Hernandez for a ride to Carroll’s
house. After some discussion at Carroll’s house, the three left there and went to
Menard’s apartment with Hernandez driving.
After arriving at the apartment complex, Hernandez parked his pickup and all
three got out of the vehicle. Hernandez had a pistol and Thompson had a shotgun.
They went up the stairs to Menard’s apartment while Carroll stayed downstairs.
Thompson tried to push the door to the apartment open, and Menard was trying to
hold the door closed. Hernandez gave a statement in which he admitted firing shots
through the door, but stated that he fired the shots low. Hernandez knew that Menard
was on the other side of the door. Thompson fired the shotgun through the door, and
Hernandez saw blood coming from underneath the door. Menard died from a single
gunshot wound to the side of his head. They returned to the pickup and all three left
with Hernandez driving.
The jury charge authorized the jury to find Hernandez guilty under the law of
parties or as a conspirator. Hernandez argues that the evidence is insufficient to
support his conviction as a party to the offense or as a conspirator.
When a jury is charged on the law of parties, a person may be convicted as a
party to an offense, if the offense is committed by his own conduct or by the conduct of
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another for which he is criminally responsible. TEX. PENAL CODE ANN. § 7.01(a) (West
2011). In determining whether the evidence is sufficient to prove that a defendant
participated as a party in committing an offense, we look to "events before, during, and
after the commission of the offense." Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006); Pollard v. State, 392 S.W.3d 785, 800 (Tex. App.-Waco 2012, no pet.)
A person is criminally responsible for an offense committed by the conduct of
another if “acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).
A person is a conspirator under the law of parties if, in the attempt to carry out a
conspiracy to commit one felony, another felony is committed by one of the
conspirators. See TEX. PENAL CODE ANN. § 7.02(b) (West 2011). If the felony actually
committed should have been anticipated as a result of carrying out the conspiracy, then
all conspirators are guilty of the felony actually committed, even if they had no intent to
commit it. Powell v. State, 194 S.W.3d at 507; Pollard v. State, 392 S.W.3d at 800.
A person commits the offense of murder if he commits or attempts to commit a
felony, other than manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission or attempt, he
commits or attempts to commit an act clearly dangerous to human life that causes the
death of an individual.
The record shows that Hernandez drove Thompson and Carroll to Menard’s
apartment to retrieve marijuana. Hernandez was armed with a pistol and Thompson
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was armed with a shotgun when they went up the stairs to Menard’s apartment.
Hernandez and Thompson both shot through the door of the apartment knowing
Menard was on the other side of the door. Hernandez then drove them from the scene
of the offense. The evidence is sufficient to support Hernandez’s conviction for the
offense of murder. We overrule the fourth issue.
Duress
In the first issue, Hernandez argues that the trial court erred in denying his
requested jury instruction on the defensive theory of duress. It is an affirmative defense
to prosecution that the actor engaged in the proscribed conduct because he was
compelled to do so by threat of imminent death or serious bodily injury to himself or
another. TEX. PENAL CODE ANN. § 8.05 (a) (West 2011).
The affirmative defense of duress is, on its face, a confession-and-avoidance or
"justification" type of defense. Rodriguez v. State, 368 S.W.3d 821,824 (Tex.App –
Houston [14th Dist.] 2012, no pet). The confession-and-avoidance doctrine requires the
defendant to first admit that he "engaged in the proscribed conduct" by admitting to all
elements of the underlying offense, then claim that his commission of the offense is
justified because of other facts. Id. A defendant's failure to testify, stipulate, or
otherwise proffer defensive evidence admitting that he "engaged in the proscribed
conduct" prevents the defendant from benefitting from the defense of duress. Rodriguez
v. State, 368 S.W.3d at 825.
Hernandez did not testify at trial or stipulate to any evidence admitting that he
engaged in the proscribed conduct. Hernandez gave a statement to the police in which
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he initially denied any participation in the offense. Hernandez later admitted being
present at the scene of the offense and to shooting the pistol at the door, but stated that
he intentionally missed Menard. Hernandez did not sufficiently admit that he "engaged
in the proscribed conduct" because he admitted participation in the offense at one point
in his statement, which was introduced into evidence by the State over Hernandez’s
objection. Rodriguez v. State, 368 S.W.3d at 825. "That the prosecutor tendered evidence
of guilt does not permit one to rationally deduce that the defendant admits to the
veracity of the evidence tendered," much less the veracity of one of multiple conflicting
accounts reflected in that evidence. Id. Hernandez was not entitled to an instruction on
the defense of duress. We overrule the first issue.
Admission of Evidence
In the second and third issues, Hernandez argues that the trial court erred in
admitting evidence. We review a trial court's decision to admit or exclude evidence for
an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
“Under an abuse of discretion standard, an appellate court should not disturb the trial
court's decision if the ruling was within the zone of reasonable disagreement.” Bigon v.
State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
In the second issue, Hernandez argues that the trial court erred in admitting
testimony concerning the statements of Carroll and Thompson. Detective Shawn Davis
testified at trial concerning statements made by both Carroll and Thompson.
Hernandez complains that Detective Davis’s testimony that Carroll said Hernandez had
the pistol when they left his residence was inadmissible. Hernandez further complains
Hernandez v. State Page 6
that Detective Davis’s testimony that Thompson said that the three co-defendants
reached a plan at Carroll’s house to go after Menard and that Thompson said
Hernandez also tried to get into Menard’s apartment were inadmissible.
Hernandez contends that the statements made by Carroll and Thompson to
Detective Davis were impermissible hearsay. There is an exception to the hearsay rule
for statements against interest. TEX. R. EVID. 803 (24). The exception for statements
against pecuniary, penal, or social interest stems from the commonsense notion that
people ordinarily do not say things that are damaging to themselves unless they believe
they are true. Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008). Thus, a
reasonable person would not normally claim that he committed a crime, unless it were
true. Id. The rule sets out a two-step foundation requirement for admissibility. First,
the trial court must determine whether the statement, considering all the circumstances,
subjects the declarant to criminal liability and whether the declarant realized this when
he made that statement. Id. Second, the court must determine whether there are
sufficient corroborating circumstances that clearly indicate the trustworthiness of the
statement. Walter v. State, 267 S.W.3d at 891.
Statements against penal interest fall into three general categories: Some
inculpate only the declarant; others inculpate equally both the declarant and a third
party, such as a co-defendant; still others inculpate both the declarant and third party,
but also shift blame by minimizing the speaker's culpability. Id. Both statements that
are directly against the declarant's interest and collateral "blame-sharing" statements
may be admissible under Rule 803(24), if corroborating circumstances clearly indicate
Hernandez v. State Page 7
their trustworthiness. Walter v. State, 267 S.W.3d at 896. "Blame-shifting" statements
that minimize the speaker's culpability are not, absent extraordinary circumstances,
admissible under the rule.
The statements made to Detective Davis were that Carroll, Thompson, and
Hernandez planned to go to Menard’s to retrieve the marijuana. The statement by
Carroll that Hernandez left the residence with a weapon conflicts with Hernandez’s
testimony, but does not shift the blame to Hernandez. Thompson’s statements shows
that both he and Hernandez tried to get into the apartment and that both shot at the
door. Again we find that those statements do not shift the blame to Hernandez. We
find that the statements were admissible under Rule 803 (24). We overrule the second
issue.
In the third issue, Hernandez argues that the trial court erred in admitting
portions of his recorded interview. Detective Stephen Fry interviewed Hernandez and
a recording of that interview was played before the jury. During the interview,
Detective Fry told Hernandez about statements that Carroll and Thompson made that
Hernandez was upset with Menard over a previous drug transaction. Hernandez
argues that the statement was impermissible hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R.
EVID. 801(d). Detective Fry’s statements and questions to Hernandez were made in
order to encourage Hernandez to talk to him about the offense. The statements were
not offered to prove the truth of the matter asserted, but rather to provide the context
Hernandez v. State Page 8
for the interview. The trial court did not err in admitting the statement. We overrule
the third issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
[CRPM]
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