Priscilla Aguilar Hernandez v. State ( 2015 )

ACCEPTED
03-14-00413-CR
4524529
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/17/2015 10:35:24 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00413-CR
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD JUDICIALAUSTIN, TEXAS
DISTRICT
3/17/2015 10:35:24 AM
OF TEXAS, AT AUSTIN JEFFREY D. KYLE
Clerk
Priscilla Aguilar Hernandez
Appellant
v.
The State of Texas
Appellee
On Appeal from the 452nd District Court of McCulloch County in Cause No.
5797; the Honorable Robert R. Hofmann, Judge Presiding
State’s Brief
Submitted by:
Tonya Spaeth Ahlschwede
District Attorney, 452nd District Court
1024 McKinley
Post Office Box 635
Mason, Texas 76849
eMail: tsa@452da.net
Tel: 325-347-8400
Fax: 325-347-8404
State Bar Card No. 24025656
Oral Argument Conditionally Requested
Identity of Parties and Counsel
Pursuant to the Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete
list of the names and addresses of all parties to the trial court’s final judgment and their counsel in
the trial court, as well as appellate counsel, so the members of the Court may at once determine
whether they are disqualified to serve or should recuse themselves from participating in the decision
of the case and so the Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals.
Appellant
Priscialla Aguilar Hernandez
TDCJ-ID No. 01866232
Christina Melton Crain Unit
1401 State School Road
Gatesville, Texas 76599-2999
Trial Counsel Appellate Counsel
Clay Steadman, M. Patrick Maguire
SBN 00785038, SBN 24002515
Steve Pickel, 945 Barnett Street
SBN 15970500 Kerrville, Texas 78028
612 Earl Garrett
Kerrville, Texas 78028
Tammy Yvette Schmidt-Keener
SBN 90001550
1220 West Austin St
Fredericksburg, Texas 78624
State of Texas
Tonya Spaeth Ahlschwede
District Attorney, 452nd District
SBN 24025656
1024 McKinley
Post Office Box 635
Mason, Texas 76849
i
Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Issues Presented in Appellant’s Brief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Note About Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Appellant’s Point of Error One Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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.
The State’s Counter-Point. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Evidence Is Sufficient to Support the Jury’s Rejection of the
Sudden Passion Submission.
Facts Relevant to Counter-Point One.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Summary of the State’s Argument - Counter-Point One. . . . . . . . . . . . . . . . . 4
Argument & Authorities - Counter-Point One. . . . . . . . . . . . . . . . . . . . . . . . . 5
Conclusion - Counter-Point One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
Table of Contents
(CONT)
Appellant’s Point of Error Two Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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.
The State’s Counter Point. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Evidence is Sufficient to Support the Jury’s Rejection of the
Self-Defense Submission.
Facts Relevant to Counter-Point of Error Two. . . . . . . . . . . . . . . . . . . . . . . 12
Summary of the State’s Argument - Counter-Point Two. . . . . . . . . . . . . . . . 13
Argument & Authorities - Counter-Point Two. . . . . . . . . . . . . . . . . . . . . . . 13
Conclusion - Counter-Point Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iii
Index of Authorities
Federal Cases:
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Texas Cases:
Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010). . . . . . . . . . . . . . . . . 13
Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App. 1983). . . . . . . . . . . . . . . . . 11
Dewberry v. State, 4 S.W.3d 735 (Tex.Cr.App. 1999). . . . . . . . . . . . . . . . . 14
Garcia v. State, 367 S.W.3d 683 (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . 14
Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007). . . . . . . . . . . . . . . . 14, 15
Isassi v. State, 330 S.W.3d 633 (Tex.Cr.App. 2010). . . . . . . . . . . . . . . . . . . 13
Jackson v. State, 160 S.W.3d 568 (Tex.Cr.App. 2005).. . . . . . . . . . . . . . . . . 5
Johnson v. State, 364 S.W.3d 292 (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . 14
Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . 14
Matlock v. State, 392 S.W.3d 662 (Tex.Cr.App. 2013).. . . . . . . . . . . . . . . 5, 6
Meraz v. State, 785 S.W.2d 146 (Tex.Cr.App. 1990). . . . . . . . . . . . . . . . . . . 6
Naasz v. State, 974 S.W.2d 418 (Tex. App. - Dallas 1998).. . . . . . . . . . . . . 11
Ovalle v. State, 13 S.W.3d 774 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . . . . 10
Perez v. State, 323 S.W.3d 298 (Tex.App. - Amarillo 2015). . . . . . . . . . . . . 7
iv
Index of Authorities
(CONT)
Texas Cases (CONT):
Saxton v. State, 804 S.W.2d 910 (Tex.Cr.App. 1991).. . . . . . . . . . . 13, 17, 19
Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . 11
Wooten v. State, 400 S.W.3d 601 (Tex.Cr.App. 2013). . . . . . . . . . . . . . . . . 11
Zuliani v. State, 97 S.W.3d 589 (Tex.Cr.App. 2005). . . . . . . . . . . . . . . . . . 17
Texas Statutes / Codes:
Penal Code
Section 9.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 9.31(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 9.31(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Section 9.32(a)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 9.32(a)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 19.02(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 19.02(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Section 19.02(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 19.02(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 11
v
Statement of the Case
The following is a brief general statement of the nature of the cause or
offense:
Appellant was convicted by a jury of the offense of murder. The jury,
after hearing evidence at punishment, rejected the submission of
sudden passion and assessed punishment at thirty (30) years and a
$5,000 fine.
Issues Presented in Appellant’s Brief
The following are the points upon which Appellant has predicated her
appeal:
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.
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.
Statement Regarding Oral Argument
The State requests oral argument only if Appellant is granted oral argument.
Note About Abbreviations
In this brief, the State refers to the Clerk’s Record as “CR” followed by the
appropriate page: e.g., “(CR 123).” The State refers to the Reporter’s Record as
“RR” followed by the volume, page and line numbers: e.g., “(RR Vol. 3, P. 47,
L. 12-15).
vi
No. 03-14-00413-CR
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
OF TEXAS, AT AUSTIN
Priscilla Aguilar Hernandez
Appellant
v.
The State of Texas
Appellee
On Appeal from the 452nd District Court of McCulloch County in Cause No.
5797; the Honorable Robert R. Hofmann, Judge Presiding
State’s Brief
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW, the State of Texas, Appellee in the above styled and
numbered cause, by and through her duly elected District Attorney, Tonya
Spaeth Ahlschwede, and respectfully files the State’s Brief, and would show the
Court as follows:
Statement of Facts
The deceased, Appellant’s husband, Jimmie Joe Hernandez, and Appellant
had a rocky relationship, characterized by Appellant’s affair with the deceased’s
fourteen year-old cousin (RR Vol. 4, P. 19). The deceased and Appellant were
1
together on the date of the offense, seemingly happy (RR Vol. 4, P. 150),
although Appellant continued to exchange texts of a sexual nature with her
paramour throughout the day (RR Vol. 4, PP. 24-25, 27).
Appellant and the deceased consumed alcohol and began to argue, the
argument continuing after they had reached their house. During the argument,
Appellant threw a knife at the deceased, but missed hitting him. The deceased
stated, “you missed, bitch,” and returned the knife (RR Vol. 3, P. 98). Appellant
turned around to walk away at which time the deceased said, “go fuck another
kid,” after which Appellant turned around and stabbed the deceased (RR Vol. 3,
PP. 98-99). Appellant then said, “Ha, Bitch,” (RR Vol. 3, P. 99). The deceased
pulled the knife out as Appellant was walking away, threw it on the floor and
said, “Don’t call the cops” (RR Vol. 3, PP. 99-100, 102-103). The deceased went
outside and fell down (RR Vol. 3, P. 100).
There was evidence that the deceased was not threatening Appellant,
although he might have spit on Appellant’s face (RR Vol. 3, P. 112). He never
threw a knife at her (RR Vol. 3, PP. 112-113). He never threatened to hurt
Appellant in any way (RR Vol. 3, P. 113). The deceased died of a stab wound to
the heart (RR Vol. 3, PP. 152-153, 155-156). Toxicology testing revealed that he
2
was intoxicated with .21 BAC at the time of his death, but there were no other
drugs in the deceased’s body (RR Vol. 3, P. 156).
Appellant testified that the deceased had told her she was a “fucking bitch”
at the after party at the Saucedo’s (RR Vol. 4, P. 199). She went home and then
heard the deceased outside yelling on the phone (RR Vol. 4, P. 202). She went
out to investigate and the deceased attacked her and she kicked at him, after
which he took off her boot and threw it (RR Vol. 4, P. 202). She told him to go
to his mother’s but he hit her in the eye and spit in her face (RR Vol. 4, P. 203).
He slapped her phone out of her hands and it broke (RR Vol. 4, PP. 203-204).
She went inside. She tried to retreat but he followed and, while Staci Leach
wasn’t looking, he pushed her (RR Vol. 4, PP. 205-206). She hit him with the
pan (RR Vol. 4, P. 206). She was trying to get him to leave (RR Vol. 4, P. 206).
The deceased threw a knife at her feet, she picked it up and stabbed him with it
(RR Vol. 4, PP. 206-207).
Appellant put on evidence from an expert witness that she was suffering
from PTSD and was a “battered woman” (RR Vol. 4, PP. 256, 268). According
to the expert, Appellant was in “fight or flight” mode and feared for her safety
(RR Vol. 4, PP. 262-263). The expert agreed that she was not saying that
3
Appellant did not intend to stab the deceased knowing that it could cause death
(RR Vol. 4, P. 280).
Appellant’s Point of Error One Restated
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.
The State’s Counter-Point
The Evidence Is Sufficient to Support the Jury’s
Rejection of the Sudden Passion Submission.
Facts Relevant to Counter-Point One
The State relies on the facts as set out in the Statement of Facts, supra, and
as set forth herein.
Summary of the State’s Argument - Counter-Point One
The evidence supporting the verdict is, in its entirety, sufficient to support
the jury’s decision as to sudden passion. This Court need not search the record
for evidence favorable to the finding, because that evidence is evident
throughout. It cannot be said that no evidence supports the finding, and it most
assuredly cannot be said that “sudden passion” was established as a matter of
law. When all of the evidence is reviewed in a neutral light, the jury’s finding
cannot be said to be so against the great weight and preponderance of the
4
evidence as to be manifestly unjust. The evidence supporting the jury’s decision
was overwhelming.
Argument & Authorities - Counter-Point One
The jury at punishment was instructed regarding the issue of sudden
passion (CR 255-256). Sudden passion is a punishment issue which, like an
affirmative defense, must be proved by the defendant by a preponderance of the
evidence. Penal Code § 19.02(d); Jackson v. State, 160 S.W.3d 568, 573 n.3
(Tex.Cr.App. 2005)(noting that legislature had made sudden passion a
punishment issue instead of an affirmative defense to the crime). Due to the
defendant’s burden of proof, an appellate court reviews an affirmative defense
and the issue of sudden passion for both legal and factual sufficiency. Matlock
v. State, 392 S.W.3d 662, 667 & n.14 (Tex.Cr.App. 2013).
A challenge to the sufficiency of the evidence in support of a jury’s
rejection of an issue on which the defendant had the burden of proof by a
preponderance of the evidence is construed as an assertion that the contrary was
established as a matter of law. Matlock, 392 S.W.3d at 669. When presented
with such an issue on appeal, an appellate court must first search the record for
evidence favorable to the finding, and in doing so, must disregard all contrary
5
evidence unless a reasonable factfinder could not. Matlock, 392 S.W.3d at 669.
If no evidence supports the finding, the reviewing court must then determine
whether the contrary was established as a matter of law. Matlock, 392 S.W.3d at
669. To review the sufficiency of the evidence in support of a jury’s rejection of
an issue on which the defendant had the burden of proof by a preponderance of
the evidence, all of the evidence is reviewed in a neutral light and it must be
determined whether the jury’s finding is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Matlock, 392 S.W.3d
at 670-71; Meraz v. State, 785 S.W.2d 146, 154 (Tex.Cr.App. 1990).
Appellant claims that, when she killed her husband, she was influenced by
sudden passion that arose due to an argument which she had with her husband
which developed after her husband insulted her. She argues:
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.
Appellant’s brief, P. 14. The problem with Appellant’s analysis is that it ignores
both the facts and the law.
6
There were two witnesses to the events leading to the deceased’s death,
Staci Leach and Appellant. The jury had its choice of which witness to believe.
Determinations of factual sufficiency are generally resolved by an assessment of
whether the witness is credible. Perez v. State, 323 S.W.3d 298, 306 (Tex.App. -
Amarillo 2015). The jury was not bound by the Appellant’s testimony regarding
her actions or intent but was obligated to arrive at its own conclusion. The jury
chose to believe Staci Leach, the disinterested witness, and to reject the evidence
of Appellant. The evidence is sufficient to support the jury’s rejection of any
suggestion of “sudden passion” causing Appellant’s actions.
It is apparent from the record that the deceased and Appellant had been
arguing and fighting outside of the home, which argument moved indoors (RR
Vol. 3, P. 96). Appellant had spit on her face and the deceased admitted to Leach
that he had spit on his wife (RR Vol. 3, P. 125). The deceased did not throw a
knife at Appellant, or in any other manner threaten her (RR Vol. 3, PP. 112-113).
He did not hit Appellant (RR Vol. 3, P. 125). Even Appellant, after relating that
the deceased and she had argued outside during which the deceased attacked her,
took off her boot and threw it away, stated only that, after the argument had
moved inside, the deceased “pushed” her (RR Vol. 4, PP. 205-206).
7
Everyone who testified agreed that it was Appellant who hit the deceased
with a cooking pot (RR Vol. 3, PP. 96-97, 197-198; RR Vol. 4, P. 206), and that
the deceased did not fight back (RR Vol. 3, P. 97). Despite that lack of reaction
by the deceased, it was Appellant who introduced knives into the argument when
she picked up some from either out of a drawer or from the counter (RR Vol. 3,
P. 97).
The testimony showed that the deceased left the kitchen, but Appellant
followed him and was arguing (RR Vol. 3, P. 98). It was at that point that
Appellant threw a knife at the deceased. It missed him and stuck in the floor (RR
Vol. 3, P. 98). The deceased, perhaps ill-advisedly, picked up the knife and
returned it to Appellant, telling her to try again and calling her a “bitch” (RR Vol.
3, P. 98).
When Appellant turned away, the deceased told her to “go fuck another
kid” (RR Vol. 3, P. 98). Appellant then turned back and stabbed the deceased
one time, fatally (RR Vol. 3, P. 98). She told her dying husband, “Ha, Bitch”
(RR Vol. 3, PP. 99-100). The evidence upon which the jury was entitled to rely
clearly showed that Appellant attacked the deceased three times, first by hitting
8
him over the head with a cooking pot, then by throwing a knife at him and, lastly,
by stabbing him in his heart.
While there is evidence from Appellant that she did not remember taking
up the knives and instigating the deadly encounter, (RR Vol. 4, P. 206), she did
not deny the State’s case. She remembered, perhaps conveniently, that Appellant
had struck her while they argued outside, prior to entering the home (RR Vol. 4,
PP. 202-203).
There was, thus, evidence that Appellant and the deceased engaged in an
argument revolving around Appellant’s infidelities with the deceased’s underage
nephew, that both were intoxicated, that Appellant confronted the deceased as he
returned home, that the deceased spit on Appellant and broke her telephone (RR
Vol. 4, PP. 203-204), and that the argument continued in the home. There is
evidence that, during the argument in the home, Appellant, without provocation
other than, perhaps, a push, beat the deceased over the head with a cooking pot
and that the deceased did not react with anything other than words.
The evidence showed that Appellant escalated the fight by grabbing knives
and throwing one at the deceased, but missing. The evidence supporting the
verdict showed that the deceased returned the knife which had been thrown at
9
him, called his wife a “bitch,” and invited her to try again. The evidence clearly
showed that Appellant reacted to this by turning away, only to stab the deceased
to death when he told her to “go fuck another kid.”
To argue, as Appellant does, that there is no action on her part indicating
premeditation, is almost disingenuous. She hit him with a cooking pot and when
the argument continued despite her aggressive actions, she grabbed the murder
weapon and attempted to use it by throwing it at the deceased. When that failed,
and the weapon was returned to her, she responded to an argumentative, and not
unfair, comment on her sexual proclivities outside of the marriage, by stabbing
her husband. The facts clearly show an intentional and knowing act, and the jury
was free to believe or disbelieve any piece of the evidence. Ovalle v. State, 13
S.W.3d 774 (Tex.Cr.App. 2000).
As to the law, sudden passion is a mitigating circumstance which, if found
by the jury to have been proven by a preponderance of the evidence, reduces the
offense of murder from a first-degree felony to a second-degree felony. Penal
Code § 19.02(c)&(d). At the punishment phase of trial, a defendant may raise the
issue of sudden passion, but has the burden to prove that she caused the death
under the immediate influence of sudden passion which arose from an “adequate
10
cause.” Penal Code § 19.02(d); see Wesbrook v. State, 29 S.W.3d 103, 113
(Tex.Cr.App. 2000). “Adequate cause” refers to 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. Penal Code §
19.02(a)(1); Wooten v. State, 400 S.W.3d 601, 605 (Tex.Cr.App. 2013); Naasz
v. State, 974 S.W.2d 418, 423-424 (Tex. App. - Dallas 1998).
In order for a jury to make an affirmative finding on the issue of sudden
passion, the record must contain objective evidence that direct provocation by the
victim occurred at the time of the killing. Naasz, 974 S.W.2d at 423-424. The
record must also contain evidence from which the jury could subjectively decide
that the accused killed the victim while in an excited and agitated state of mind
arising out of the direct provocation. Naasz, 974 S.W.2d at 424.
As shown above, based on all of the evidence, including the eyewitness
testimony, Appellant’s statements and her testimony, the jury, who as the trier of
fact evaluated the evidence adduced at trial, was permitted to reject sudden
passion. See Daniels v. State, 645 S.W.2d 459, 460 (Tex.Cr.App. 1983)(finding
sudden passion inapplicable because the defendant admitted that he had full
control of himself when he shot the decedent and that he made a purposeful
11
choice to do so). The jury’s rejection of sudden passion was supported by the
evidence and was not so against the great weight and preponderance of the
evidence as to be manifestly unjust. As outlined above, there was legally and
factually sufficient evidence for the jury to have evaluated and rejected
Appellant’s defensive claim of sudden passion.
Conclusion - Counter-Point One
The evidence was more than sufficient to warrant the jury’s rejection of the
Appellant’s submission of sudden passion. The instant conviction should be
affirmed.
Appellant’s Point of Error Two Restated
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.
The State’s Counter Point
The Evidence is Sufficient to Support the Jury’s
Rejection of the Self-Defense Submission.
Facts Relevant to Counter-Point of Error Two
The State relies on the facts set out in the Statement of Facts, supra, and in
its reply to Point of Error Number One.
12
Summary of the State’s Argument - Counter-Point Two
The evidence is more than sufficient to warrant the jury’s rejection of
Appellant’s self-defense submission.
Argument & Authorities - Counter-Point Two
The issue of self-defense is a fact issue to be determined by the jury, and
a jury’s verdict of guilt is an implicit finding that it rejected a defendant’s
self-defense theory. Saxton v. State, 804 S.W.2d 910, 913-914 (Tex.Cr.App.
1991). Thus, as when reviewing the sufficiency of the evidence to support a
conviction, an appellate court reviews the sufficiency of the evidence to support
a jury’s rejection of a defendant’s self-defense theory by examining all the
evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense and
also could have found against the defendant on the self-defense issue beyond a
reasonable doubt. Saxton, 804 S.W.2d at 914, citing Jackson v. Virginia, 443
U.S. 307 (1979); see also Isassi v. State, 330 S.W.3d 633, 638-639 (Tex.Cr.App.
2010); Brooks v. State, 323 S.W.3d 893, 899-903 (Tex.Cr.App. 2010).
The standard for determining whether the evidence is legally sufficient to
support a conviction is “whether, after viewing the evidence in the light most
13
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
supra; see Garcia v. State, 367 S.W.3d 683, 686-687 (Tex.Cr.App. 2012).
Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge for the case. Johnson v. State, 364
S.W.3d 292, 294 (Tex.Cr.App. 2012); Malik v. State, 953 S.W.2d 234, 240
(Tex.Cr.App. 1997). The hypothetically correct jury charge “sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden
of proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Johnson, 364
S.W.3d at 294.
In reviewing the sufficiency of the evidence, the appellate court’s role is not
to substitute itself as a thirteenth juror. This Court may not re-evaluate the
weight and credibility of the record evidence and thereby substitute a judgment
for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Cr.App.
1999). Reviewing courts give deference to “the responsibility of the trier of fact
to fairly resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214
14
S.W.3d 9, 13 (Tex.Cr.App. 2007), quoting Jackson v. Virgina, 443 U.S. at
318-319.
When an examination of all of the evidence in the light most favorable to
the verdict is made, as required, it is clear that the jury in the case at bar acted as
rational triers of fact in finding both the essential elements of the offense and
rejecting the proposition that Appellant acted in self-defense. Penal Code §
19.02(b)(1) provides:
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
The indictment in this cause alleged that:
PRISCILLA AGUILAR HERNANDEZ, . . . DID THEN AND THERE
INTENTIONALLY OR KNOWINGLY cause the death of an individual,
namely, JIMMIE JOE HERNANDEZ, by STABBING HIM WITH A
KNIFE AGAINST THE PEACE AND DIGNITY OF THE STATE.
(CR 14).
The court’s charge on guilt-innocence contained a two page instruction on the law of self-
defense (CR 243) and then required:
If you find from the evidence, or you have a reasonable doubt
thereof, that, at the time of the alleged offense, the Defendant reasonably
believed that she was under attack or attempted attack from Jimmie Joe
Hernandez, and that the Defendant reasonably believed, as viewed from
her standpoint, that such deadly force as she used, if any, was Immediately
necessary to protect herself against such attack or attempted attack, and so
believing, she stabbed Jimmie Joe Hernandez with a deadly weapon, to
wit: a knife, then you shall acquit the Defendant of murder and say by your
verdict “Not Guilty of murder.”
15
Only if you find beyond a reasonable doubt that the Defendant’s
conduct was not justified as self-defense, as explained herein, may you find
the Defendant “guilty” of the offense of Murder as alleged in the
indictment.
(CR 246). Only then did the trial court charge the jury to consider the offense of murder:
Now if you find from the evidence beyond a reasonable doubt that on or
about the 26th day of December 2010, in Menard County, Texas, the
defendant, Priscilla Aguilar Hernandez, did then and there intentionally or
knowingly cause the death of an individual, Jimmie Joe Hernandez, by
stabbing him with a knife, then you will find the defendant, Priscilla
Aguilar Hernandez, guilty of murder, as charged in the indictment.
(CR 246-247).
The record is clear - the indictment properly alleged the offense and the
charge was correct both as to self-defense and the offense itself.
The evidence is just as clear that Appellant struck the blow which resulted
in the death of her husband (RR Vol. 3, PP. 98-99; RR Vol. 4, PP. 206-207). The
evidence was also clear, as detailed herein, that the fatal stabbing was the
culmination of an escalating argument and that it was Appellant who introduced
potentially deadly weapons into the argument by first hitting the deceased over
his head several times with a cooking pot, followed by her throwing of a knife
at the deceased, without effect. It was only then that Appellant, after the
deceased continued the verbal argument, turned and stabbed her husband. This
evidence was sufficient to allow a rational jury to find all of the elements murder
as indicted and charged.
16
Under Penal Code § 19.02(b)(1), and the hypothetically correct jury charge
as authorized by the indictment in this case, Appellant committed the offense of
murder if she intentionally or knowingly caused the deceased’s death. The
charge given to the jury in the case at bar conformed with a hypothetically correct
jury charge
The evidence was that Appellant, after hearing her husband tell her to “go
fuck another boy,” turned and stabbed him after she had earlier hit him with a
cooking pan and thrown a knife at him. From the totality of the evidence,
culminating in the actions described, the jury was entirely rational in finding that
the Appellant committed the offense as charged.
When a defendant raises self-defense, he bears the burden of producing
some evidence to support his defense. Zuliani v. State, 97 S.W.3d 589, 594
(Tex.Cr.App. 2005); Saxton, 804 S.W.2d at 913-914. Only when a defendant
has met his burden does the State then bear a burden of persuasion in disproving
self-defense, which has been characterized as a burden requiring the State to
prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913-914.
Self defense was inapplicable in this case, despite the fact that Appellant
received a charge on the issue (CR 243-245), and that charge required the jury
17
to consider the self-defense claim first, and reject it, prior to even considering the
charged offense. That charge correctly instructed the jury that verbal provocation
was not enough to warrant a defensive reaction (CR 245). Even Appellant in her
brief recognized that she reacted to words (RR Vol. 3, P. 98; Appellant’s Brief,
P. 15). Self defense requires more, however. Penal Code § 9.31(a) provides:
(a) Except as provided in Subsection (b), a person is justified in using
force against another when and to the degree the actor reasonably
believes the force is immediately necessary to protect the actor against
the other’s use or attempted use of unlawful force.
What force was there which was being exerted by the deceased which required
“immediate” response is inadequately explained at best. That immediate force
in response to deadly force was not required was clear, as the record shows that
no force was being exerted by the deceased except the powerful force of the truth
as he belittled his wife with that truth.
The evidence clearly showed that Appellant had turned away, returning to
stab her husband in response only to his words to her. He was not threatening her
in any manner, had not done so at least since they had come inside1 and had
failed to respond in kind to Appellant’s several uses of force. Penal Code §
1
Appellant testified that the deceased had pushed her while the other witness wasn’t looking, (RR
Vol. 4, PP. 205-206), which testimony the jury was free to reject. Be that as it may, the alleged push
was followed by her hitting the deceased in the head and throwing a knife at him. The push, if it
occurred, did not precipitate any reaction except those described.
18
9.31(b)(1) is clear with regard to the type of provocation shown by the record in
this case:
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone.
Clearly, self defense was unsupported by the record. There is even more,
however, since Appellant “defended herself” through the use of deadly force.
Even if one believes that Appellant showed an initial justification under
Penal Code § 9.31, the prerequisite, then, under Penal Code § 9.32(a)(2)(A)&(B),
the actor must have reasonably believed that the deadly force was immediately
necessary to protect herself from “the other’s use or attempted use of unlawful
deadly force,” or to prevent the other from committing certain named offenses,
including murder. There is absolutely no evidence showing that the deceased
was using or attempting to use any unlawful deadly force or attempting to
commit any of the named offenses.
As set out, above, it is only when a defendant has met his burden that the
State then bears a burden of persuasion in disproving self-defense, which has
been characterized as a burden requiring the State to prove its case beyond a
reasonable doubt. Saxton, 804 S.W.2d at 913-914. In this case, Appellant never
met her burden while the State, nonetheless, met its.
19
The State submits that the evidence produced before the jury more than
adequately met that burden with regard to disproving any suggestion of self-
defense, especially as it relates to the use of deadly force. The evidence is clear
that Appellant was not protecting herself from any force whatsoever except the
truth exposed verbally. That her husband’s comment may have been “catty,” or
otherwise ill-advised or inappropriate, does not mean the comment was a use of
illegal force of a deadly nature which required counter force. The evidence
dictated the jury’s decision to reject self-defense in this case.
Conclusion - Counter-Point Two
The evidence was more than adequate for the jury to find the elements of
the offense of murder beyond a reasonable doubt and, in so doing, to reject the
defense of self defense.
Prayer
WHEREFORE, PREMISES CONSIDERED, the undersigned, on behalf
of the State of Texas, respectfully prays that this Honorable Court will review
this brief and upon submission of the case to the Court will affirm the judgment
and conviction of the court below.
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Respectfully submitted,
/s/ Tonya Spaeth Ahlschwede
Tonya Spaeth Ahlschwede
District Attorney, 452nd District Court
1024 McKinley
Post Office Box 635
Mason, Texas 76849
eMail: tsa@452da.net
Tel: 325-347-8400
Fax: 325-347-8404
State Bar Card No. 24025656
Attorney for the State of Texas
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using WordPerfect™ X7
software, contains 4,452 words, excluding those items permitted by Rule 9.4
(i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3),
Tex.R.App.Pro.; and (2) on March 17, 2015, a true and correct copy of the above
and foregoing “State’s Brief” was transmitted via the eService function on the
State’s eFiling portal, to M. Patrick Maguire (mpmlaw@ktc.com), counsel of
record for the Appellant.
/s/ Tonya Spaeth Ahlschwede
Tonya Spaeth Ahlschwede
21