Fernando Hernandez, Jr. A.K.A. Fernando Junior Hernandez v. State ( 2015 )

ACCEPTED
07-14-00417-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
10/20/2015 6:54:02 PM
Vivian Long, Clerk
No. 07-14-00417-CR
FILED IN
7th COURT OF APPEALS
IN THE COURT OF APPEALS FOR AMARILLO, TEXAS
THE SEVENTH COURT OF APPEALS DISTRICT
10/20/2015 6:54:02 PM
AMARILLO, TEXAS VIVIAN LONG
CLERK
FERNANDO HERNANDEZ, JR. A/K/A FERNANDO JUNIOR
HERNANDEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
APPELLANT’S BRIEF
On Appeal from the 69th Judicial District Court
Of Moore County, Texas,
Trial Court Cause No. 5056
Erin Lands
State Bar No. 24078822
Salley & Lands, Attorneys at Law
102 East Seventh Street, Suite B
P.O. Box 974
Dumas, Texas 79029
Telephone: (806) 934-3185
Fax: (806) 553-3771
erin@lands-lawoffice.net
Attorney for Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF THE PARTIES AND COUNSEL
Appellant, Pursuant to Rule of Appellate Procedure 31.1(a), provides the following
list of all parties to the trial court’s judgment and the names and addresses of all
appellate counsel.
Fernando Hernandez, Jr. (a.k.a. Fernando Junior Hernandez) Appellant
Amy Browning Trial Counsel for Appellant
Law Office of Jerod Pingelton
609 South Bliss Avenue
P.O. Box 636
Dumas, Texas 79029
Erin Lands Appellate Counsel for Appellant
Salley & Lands, Attorneys at Law
102 East Seventh Street, Suite B
P.O. Box 974
Dumas, Texas 79029
Larry Fadler Trial Counsel for the State
Assistant District Attorney, 69th Judicial District
715 South Dumas Avenue, Room 304
Dumas, Texas 79029
Larry Fadler Appellate Counsel for the State
Assistant District Attorney, 69th Judicial District
David Green
District Attorney, 69th Judicial District
715 South Dumas Avenue, Room 304
Dumas, Texas 79029
2
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………...…………2
Index of Authorities………………………………………………………………...4
Statement of the Case………………………………………………………….……5
Statement Regarding Oral Argument………………………………………….……6
Issues Presented……………………………………………………………….……7
ISSUE ONE: FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN
OFF-THE-RECORD PRETRIAL AGREEMENT BETWEEN THE STATE AND
DEFENSE COUNSEL, STATE’S EXHIBITS ONE THROUGH FIFTEEN WERE
ADMITTED INTO EVIDENCE. DEFENDANT DID NOT EXPRESSLY APPROVE THIS
AGREEMENT……………………………………………………………...7,13
ISSUE TWO: FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS
OFFENSES WERE ADMITTED INTO EVIDENCE BECAUSE THEY WERE NOT
PROVEN BEYOND A REASONABLE
DOUBT……………………………………………………………….……7,18
ISSUE THREE: THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO
HARMLESS ERROR REVIEW. THE ERROR WAS HARMFUL AND CONTRIBUTED
TO THE PUNISHMENT BY RAISING IT FIVE YEARS ABOVE THE STATE’S
RECOMMENDATION TO THE COURT………………………………...……7,20
Statement of Facts…………………………………………………………..……...8
Summary of the Argument……………………………………………..…………10
Argument……………………………………………………….…………………12
Prayer…………………………………………………………………..………….23
Certificate of Service………………………………………………………..…….23
3
INDEX OF AUTHORITIES
United States Constitution
U.S. CONST. AMEND. VI………………………………………..………………14, 17
U.S. CONST. AMEND. XIV…………………………………………….……………14
Texas Statutes
TEX. R. APP. PROC. 33.1………………………………………...…………………12
TEX. R. APP. PROC. 44.2(a)…………………………………………………10, 13, 20
TEX. CODE CRIM. PROC. Art. 1.05…………………………….……………………17
TEX. CODE CRIM. PROC. 37.07 §3(a)(1)……………………………………………18
TEX. R. EVID. 103(d)…………………………………………..……...……10, 13, 17
TEX. R. EVID. 403………………………………………………………….………18
Federal Cases
Boykin v. Alabama, 395 U.S. 238 (1969)…………………………………….……14
Brookhart v. Janis, 304 U.S. 1 (1996)………………………………………..……14
Crawford v. Washington, 531 U.S. 36 (2004)……………………………..………14
Johnson v. Zerbst, 304 U.S. 458 (1938)……………………………………………14
Pointer v. Texas, 380 U.S. 400 (1965)……………………………………….…….14
Stringer v. State, 241 S.W.3d 52 (Tex.Crim.App. 2007)…………………..………14
Texas Cases
Grado v. State, 445 S.W.3d 736 (Tex.Crim.App. 2014)……………………..……12
In re G.A.O. v. State, 854 S.W.2d 710 (Tex.App. – San Antonio 1993)……..……13
Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993)………………...……12
Scott v. State, 227 S.W.3d 670 (Tex.Crim.App. 2007)…………………….………20
Smith v. State, 961 S.W.2d 501 (Tex.App. – San Antonio 1997, no pet.)………....13
4
STATEMENT OF THE CASE
Appellant was charged by indictment with Intoxication Manslaughter and
Failing to Render Aid After an Accident Involving Personal Injury or Death for an
offense alleged to have occurred on February 2, 2014. (1 C.R. at 5). Both charges
were second degree felonies enhanced to first degree felonies. (1 C.R. at 5).
On November 3, 2014, Appellant pleaded guilty to both offenses and
pleaded true to the enhancement paragraph. (1 C.R. at 6, 8). Appellant pleaded
guilty without a plea bargain agreement with the State. (1 C.R. at 6). Further,
Appellant acknowledged his understanding that the Court was free to assess
Appellant’s punishment within the limits provided by law. (1 C.R. at 6; Supp. R.R.
at 6). The range of punishment announced by the trial court was five to ninety-nine
years or life and a fine of up to $10,000. (Supp. R.R. at 6).
A sentencing hearing in front of the trial court judge was held on November
19, 2014. (2 R.R. at 1). The trial court judge assessed Appellant’s punishment at
forty-five years’ confinement in the institutional division. (2 R.R. at 128).
Appellant gave notice of appeal at the sentencing hearing. (2 R.R. at 129).
Appellant’s trial counsel served as his first appellate counsel. (1 C.R. at 25).
This Court granted trial counsel’s motion to withdraw, abated the appeal, and
remanded the cause to the trial court.
5
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument in this matter. Oral argument will aid the
Court’s decision-making process in this appeal. Fundamental error occurred when
Appellant’s constitutional rights were infringed. This Court will review the error
and assess a harmless error analysis.
6
ISSUES PRESENTED
ISSUE ONE: FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN OFF-THE-
RECORD PRETRIAL AGREEMENT BETWEEN THE STATE AND DEFENSE COUNSEL,
STATE’S EXHIBITS ONE THROUGH FIFTEEN WERE ADMITTED INTO EVIDENCE.
DEFENDANT DID NOT EXPRESSLY APPROVE THIS AGREEMENT.
ISSUE TWO: FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS OFFENSES
WERE ADMITTED INTO EVIDENCE BECAUSE THEY WERE NOT PROVEN BEYOND A
REASONABLE DOUBT.
ISSUE THREE: THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO HARMLESS
ERROR REVIEW. THE ERROR CONTRIBUTED TO THE PUNISHMENT BY RAISING IT
FIVE YEARS ABOVE THE STATE’S RECOMMENDATION TO THE COURT.
7
STATEMENT OF FACTS
TO THE HONORABLE COURT OF APPEALS:
Defendant was indicted for Intoxication Manslaughter and Accident
Involving Personal Injury or Death Where Driver Failed to Render Aid. (1 C.R. at
5).
Defendant pleaded guilty to both charges, each enhanced to a first degree
felony. (1 C.R. at 6, 8). The State and Defendant had not entered into a plea
bargain agreement. (1 C.R. at 6).
On November 19, 2014, the trial court heard evidence at the sentencing
hearing for Defendant. (2 R.R. at 1). The State announced a pretrial agreement was
reached between the State and defense counsel regarding the admission of State’s
evidence. (2 R.R. at 6, 8). The State admitted, pursuant to the agreement, Trooper
Wade’s offense report, the crash report, Moore County blood reports, autopsy
report, Ranger Ditto’s report, indictment in the case, and ten photographs. (2 R.R.
at 7-8). This evidence was admitted as State’s Exhibit 1 through 15. (3 R.R.
Exhibits 1-15). None of the witnesses who prepared the reports or photographs
were called to testify. (2 R.R. at 8).
The State also called two witnesses, Stephanie Blake and Esperanza
Escobar, to testify. (2 R.R. at 26, 38). Stephanie Blake testified Defendant was the
father of her six year old, and that she conceived the child before turning seventeen
years old. (2 R.R. at 27-28). No other evidence was presented to corroborate this
8
testimony. Esperanza Escobar was called to testify regarding an incident with her
foot and ear. (2 R.R. at 48). No witnesses were called to impeach her.
The State recommended a sentence of forty years confinement. (2 R.R. at
124). The trial judge assessed a sentence of forty-five years confinement. (2 R.R. at
128).
9
SUMMARY OF ARGUMENT
The trial court committed fundamental error. The Texas Rules of Evidence
further contemplates fundamental error in criminal cases and, in Rule 103(d), states
nothing in the Rules prevents “notice of fundamental errors affecting substantial
rights although they were not brought to the attention of the court.” TEX. R. EVID.
103(d). If the appellate record in a criminal case reveals constitutional error that is
subject to harmless error review, the court of appeals must reverse the punishment
unless the court determines beyond a reasonable doubt that the error did not
contribute to the punishment. TEX. R. APP. PROC. 44.2(a).
The State and defense counsel admitted evidence that would otherwise be
inadmissible without the witness’ presence through a “pretrial agreement” between
the attorneys. The evidence admitted was in violation of Appellant’s right to
confront the witnesses against him and the right to compulsory process. The
agreement was never expressly approved by Appellant. Additionally, Appellant
never expressly, intelligently, and voluntarily waived these rights on the record.
Furthermore, extraneous offenses were admitted into evidence that were not
proved beyond a reasonable doubt.
Given that fundamental error occurred, the State’s evidence cannot pass
harmless error review. The State’s recommendation was forty years confinement.
10
Ultimately, the trial court sentenced Appellant to forty-five years confinement after
the evidence was presented.
11
ARGUMENT
Preservation of Error
Generally, an objection must be made to preserve error for appeal. (TEX. R.
APP. PROC. 33.1). However, this rule is not absolute. Grado v. State, 445 S.W.3d
736, 739 (Tex.Crim.App. 2014). The Court of Criminal Appeals in Marin held the
preservation requirement turns on the nature of the right infringed. Id. citing Marin
v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993). A defendant’s rights can be
separated into three categories:
(1) “absolute rights” are those considered so fundamental to the proper
functioning of the adjudicatory process that they cannot be forfeited by
inaction alone;
(2) rights that are “not forfeitable” that cannot be surrendered by mere
inaction but “waivable” if the waiver is affirmatively, plainly, freely, and
intelligently made.” The trial judge has an independent duty to implement
these rights absent any request unless there is an effective express waiver”;
and
(3) “forfeitable” rights are those that must be requested by the litigant and
can be forfeited by inaction.
Grado, 445 S.W.3d at 739; Marin, 851 S.W.2d at 278-79.
Rule 33.1’s preservation requirements do not apply to the rights in the first
two categories. Grado, 445 S.W.3d at 739.
Fundamental Error and Substantial Rights
The Texas Rules of Evidence further contemplates fundamental error in
criminal cases and, in Rule 103(d), states nothing in the Rules prevents “notice of
12
fundamental errors affecting substantial rights although they were not brought to
the attention of the court.” TEX. R. EVID. 103(d).
Reversible Error in Criminal Cases
If the appellate record in a criminal case reveals constitutional error that is
subject to harmless error review, the court of appeals must reverse the punishment
unless the court determines beyond a reasonable doubt that the error did not
contribute to the punishment. TEX. R. APP. PROC. 44.2(a).
Standard of Review
A reviewing court may take notice of fundamental errors affecting
substantial rights even if the errors were not preserved at trial. TEX. R. EVID.
103(d). Fundamental error is error that directly and adversely affects the interest of
the public generally, as such interest is declared in statutes or the constitution of
the State. In re G.A.O. v. State, 854 S.W.2d 710, 715 (Tex.App. – San Antonio
1993, no pet.). If the trial court errs in admitting the evidence, the error will be
fundamental when it has caused the defendant’s trial to be fundamentally unfair.
Smith v. State, 961 S.W.2d 501, 505-06 (Tex. App. – San Antonio 1997, no pet.).
Analysis
A. FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN
OFF-THE-RECORD PRETRIAL AGREEMENT BETWEEN THE
STATE AND DEFENSE COUNSEL, STATE’S EXHIBITS ONE
THROUGH FIFTEEN WERE ADMITTED INTO EVIDENCE.
13
DEFENDANT DID NOT EXPRESSLY APPROVE THIS
AGREEMENT.
The Sixth Amendment’s Confrontation Clause provides that, “in all criminal
prosecutions, the accused shall enjoy the right…to be confronted with the
witnesses against him.” U.S. CONST. amend. VI; Crawford v. Washington, 541
U.S. 36, 42 (2004). The constitutional guarantee applies to both federal and state
criminal prosecutions. U.S. CONST. amend. XIV; Pointer v. Texas, 380 U.S. 400,
406 (1965). The Confrontation Clause prohibits the admission of testimonial
statements unless the declarant is unavailable to testify and the accused had a prior
opportunity for cross-examination. Crawford, 541 U.S. at 68-69. The right to
confront and cross-examine witnesses may be waived, but the United States
Supreme Court has made clear that we must “indulge every reasonable
presumption against waiver of fundamental constitutional rights…” Brookhart v.
Janis, 304 U.S. 1, 4 (1996); Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
A waiver of the right to confront and cross-examine witnesses will not be
presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
Therefore, for a waiver to be effective, “it must be clearly established that there
was an intentional relinquishment or abandonment of a known right or privilege.”
Brookhart, 384 U.S. at 4 (quoting Zerbst, 304 U.S. at 464); Stringer v. State, 241
S.W.3d 52 (Tex.Crim.App. 2007).
14
At the sentencing hearing, the State referenced a pretrial agreement, which
included the admission of fifteen exhibits, State’s Exhibits 1 through 15. (2 R.R. at
6, 7-8). It appears the agreement was that, in exchange for the admission of the
State’s exhibits, Defendant was allowed to admit witness letters on his behalf
without objection from the State. (2 R.R. at 122). The evidence admitted pursuant
to the agreement was the following:
1. Trooper’s offense report;
2. Crash report;
3. Defendant’s blood records;
4. Victim’s autopsy report;
5. Ranger’s report;
6. Indictment;
7. Crash scene photograph;
8. Crash scene photograph;
9. Victim’s “lifeless body” photograph;
10.Victim’s “lifeless body” photograph;
11.Victim’s blood splatter photograph;
12.Accident photograph;
13.Accident photograph;
14. Accident photograph with beer case;
15.Shattered glass and beer photograph.
(2 R.R. at 7-8; 3 R.R. State’s Exhibits 1-15).
State’s Exhibit 1, Trooper Wade’s offense report, includes nine pages of
substance. (3 R.R. Exhibit 1). Trooper Wade’s report includes statements from
other troopers, a Sheriff’s Deputy, witnesses, Texas Ranger Ditto, and highlighted
statements made by Defendant. (3 R.R. Exhibit 1). Additionally, an affidavit from
the custodian of medical records and a supplement produced by Trooper Wade
15
were attached as Trooper Wade’s offense report. (3 R.R. Exhibit 1). State’s Exhibit
2 included Trooper Wade’s crash report, which provided an investigator’s narrative
of what happened and the resulting charges. (3 R.R. Exhibit 2). Trooper Wade was
not called as a witness. (2 R.R. at 2).
State’s Exhibit 3 is the pathology report. (3 R.R. Exhibit 3). It is unclear who
created the report, as Dr. Michael Sennett and Charles Addington’s names are
included in the report. (3 R.R. Exhibit 3). This exhibit includes an accounting of
references and units with no explanation of the readings. (3 R.R. Exhibit 3). The
report does include, however, a positive reading for cocaine and amphetamine,
presumably from Defendant’s blood, as the report reads “Fernando Hernandez”. (3
R.R. Exhibit 3). Neither Dr. Michael Sennett nor Charles Addington were called as
witnesses. (2 R.R. at 2).
State’s Exhibit 4, the autopsy report prepared by Dr. Thomas Parsons,
includes the “cause of death” and a reasoning, “motor vehicle mishap”, while
providing a list of the doctor’s medical findings and a comprehensive examination
report. (3 R.R. Exhibit 4). Dr. Parsons was not called as a witness. (2 R.R. at 2).
State’s Exhibit 5 included Ranger Ditto’s investigation report. (3 R.R.
Exhibit 5). Similar to Trooper Wade’s report, Ranger Ditto’s report included
hearsay statements from other troopers and witnesses, his assessment of the
accident, a summary of the Defendant’s statement, what appears to be Ranger
16
Ditto’s handwritten notes, and a piece of paper with a drawing stating “drawn by
Fernando Hernandez, Jr.”. (3 R.R. Exhibit 5). Ranger Ditto was not called as a
witness. (2 R.R. at 2).
State’s Exhibit 7 through 15 are photographs, presumably from the accident
and of the victim. (2 R.R. at 7-8). No witnesses were called to provide the
foundation to prove the photographs into evidence. (2 R.R. at 2).
Absent from the record is Defendant’s express, voluntary, intelligent waiver
of the Confrontation Clause or any express approval of the pretrial agreement
reached between counsel for the defense and the State. This error is the
fundamental error contemplated in Rule 103(d). TEX. R. EVID. 103(d). The error
affects Defendant’s substantial, constitutional right to confront the witnesses
against him. U.S. CONST. amend. VI. TEX. CODE CRIM. PROC. Art. 1.05. Defense
counsel cannot waive this right without express of approval of Defendant. Further,
defense counsel stated the exchange was because certain defense witnesses could
not be present at the hearing. (2 R.R. at 122). Defendant is entitled to compulsory
process for obtaining witnesses in his favor. TEX. CODE CRIM. PROC. Art. 1.05.
Also absent from the record is Defendant’s acknowledgement of this right or the
express waiver of this right.
This error is precisely the fundamental error affecting a substantial, and
constitutional, right protected by the U.S. Constitution, Texas Rules of Evidence,
17
Texas Rules of Appellate Procedure, and Texas Code of Criminal Procedure.
Nowhere in the record does Defendant provide an express, informed waiver of his
constitutional right of confrontation. Therefore, fundamental error occurred when
the State and defense counsel entered into an agreement, which waived
Defendant’s constitutional right to confront the witnesses against him, without his
express waiver on the record.
B. FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS
OFFENSES WERE ADMITTED INTO EVIDENCE BECAUSE THEY
WERE NOT PROVEN BEYOND A REASONABLE DOUBT.
In any case, whether the punishment is to be assessed by the judge or jury,
extraneous crimes or bad acts may be admitted into evidence if they are proven
beyond a reasonable doubt to have been committed by the defendant or for which
he could be held criminally responsible. TEX. CODE CRIM. PROC. 37.07 §3(a)(1).
Additionally, even otherwise relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID.
403.
Here, the State did not meet the burden of proving, beyond a reasonable
doubt, the extraneous offense of assault on his wife, Esperanza Escobar. The State
called Esperanza Escobar and asked “how many times has he hit you?” and “have
you ever served him with a trespass warning?” (2 R.R. at 40). Ms. Escobar denied
the occurrence of either. (2 R.R. at 40). The State further asked about an incident
18
where Ms. Escobar’s foot was ran over and also inquired about a “gash” to her ear.
(2 R.R. at 43, 45). Ms. Escobar denied any wrongdoing by Defendant. (2 R.R. at
43, 45).
The State proceeded to continually ask questions regarding this incident and
attempted to impeach her by asking about her account versus what the police report
stated regarding the incident. (2 R.R. at 47, 48). The State did not call any
impeachment witnesses, including the police officers who created the reports, to
testify against Ms. Escobar’s account. Ms. Escobar repeatedly denied the police
report account of the incident, including explicitly stating “he didn’t ever hit me
against the window.” (2 R.R. at 48).
The State also introduced testimony of Stephanie Blake, the alleged mother
of a son conceived when Defendant was twenty-four years old and Ms. Blake was
sixteen years old. (2 R.R. at 27). Absent Ms. Blake’s testimony, no other evidence
was presented to show Defendant fathered the child or engaged in sexual conduct
with someone under the age of seventeen years old. The State even seemed to
acknowledge he was never prosecuted for this “crime” by asking if it would
surprise Ms. Blake if he had not been. (2 R.R. at 28). Ms. Blake does state a
genetic test was done and a child support order exists. (2 R.R. at 29). However, no
test or order was admitted into evidence.
19
Therefore, fundamental error occurred when the State offered testimony
regarding extraneous offenses but did not prove beyond a reasonable doubt. Ms.
Escobar flatly denied any wrongdoing by Defendant and, absent Ms. Blake’s
testimony, no evidence was presented to confirm her allegations regarding an
alleged incident occurring over six years ago. Neither extraneous offense should
have been admitted.
C. THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO
HARMLESS ERROR REVIEW. THE ERROR WAS HARMFUL
AND CONTRIBUTED TO THE PUNISHMENT BY RAISING IT FIVE
YEARS ABOVE THE STATE’S RECOMMENDATION TO THE
COURT.
If the appellate record in a criminal case reveals constitutional error that is
subject to harmless error review, the court of appeals must reverse the punishment
unless the court determines beyond a reasonable doubt that the error did not
contribute to the punishment. TEX. R. APP. PROC. 44.2(a).
In determining specifically whether constitutional error under Crawford may
be declared harmless beyond a reasonable doubt, the following factors are relevant:
(1) how important the out-of-court statement to the State’s case; (2) whether the
out-of-court statement was cumulative of other evidence; (3) the presence or
absence of evidence corroborating or contradicting the out-of-court statement on
material points; and (4) the overall strength of the prosecution’s case. Scott v.
State, 227 S.W.3d 670, 690-91 (Tex.Crim.App. 2007).
20
Here, during closing argument, the State recommended a sentence of forty
years confinement in the institutional division. (2 R.R. at 124, 127). Ultimately, the
trial court sentenced Defendant to forty-five years in the institutional division. (2
R.R. at 128). The out-of-court statements were vital to the State’s case. Almost
fifty pages of reports, photographs and handwritten notes were admitted into
evidence for the State. (3 R.R. Exhibits 1-15). The State did not call any witnesses
that had personal knowledge of the accident, investigation, or autopsy. (2 R.R. at
2). Essentially, the bulk of the State’s case on punishment was related to these
reports and notes from witnesses unavailable to Defendant for cross-examination.
Additionally, the extraneous offenses admitted into evidence cannot be held
to be found to be harmless. Ms. Escobar’s testimony was, essentially, that the
extraneous offense did not occur but she was “impeached” by questions regarding
statements in an offense report. (2 R.R. at 47, 48).
Given the increased sentence above the State’s recommendation and the lack
of State’s witnesses to prove up the bulk of its punishment evidence, it cannot be
concluded, beyond a reasonable doubt that the error did not contribute to the
punishment.
21
CONCLUSION
Fundamental error occurred when the trial court admitted evidence through a
pretrial agreement Appellant did not expressly enter into on the record. Appellant
was not afforded the right to confront the witnesses against him. Further,
extraneous offenses were entered into evidence without being proven beyond a
reasonable doubt. The bulk of the State’s case was the presentation of evidence
through offense reports, medical reports, and other written documents without the
witnesses being present. Appellant never expressly waived his right to confront
these witnesses. Further, Appellant never expressly acknowledged he was advised
of his right to compulsory process if that was, in fact, the basis for the pretrial
agreement.
This error was not harmless. The State recommended to the court
Appellant’s punishment be assessed at forty years confinement. The trial court
sentenced Appellant to forty-five years confinement in the institutional division.
22
Prayer
Wherefore, premises considered, Appellant Fernando Hernandez, Jr. asks the Court
to reverse the punishment of forty-five years confinement in the institutional
division and remand to the trial court.
Respectfully submitted,
/s/ Erin Lands___________________
Erin Lands
SBOT # 24078822
Attorney for Appellant
Salley & Lands, Attorneys at Law
102 East Seventh Street, Suite B
P.O. Box 974
Dumas, Texas 79029
Telephone: (806) 934-3185
Fax: (806) 553-3771
E-mail: erin@lands-lawoffice.net
Certificate of Compliance
Pursuant to Texas Rules of Appellate Procedure, the undersigned hereby
certifies that the number of words in the portion of the brief subject to TRAP Rule
9.4(i)(1) is 2,827.
/s/ Erin Lands__________________
Erin Lands
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this brief
was served by electronic mail to counsel for the State, Mr. David Green, 715 South
Dumas Avenue, Dumas, Texas 79029.
/s/ Erin Lands__________________
Erin Lands
23