Zachery James Hernandez v. State ( 2020 )

Affirmed and Majority and Dissenting Opinions filed September 22, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00254-CR
ZACHERY JAMES HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Chambers County, Texas
Trial Court Cause No. 18426
MAJORITY OPINION
In this appeal from a conviction for aggravated assault with a deadly weapon,
we consider whether the evidence is legally sufficient to support the conviction, as
well as several interrelated issues arising out of the prosecution’s untimely
disclosure of evidence.
BACKGROUND
The evidence was undisputed that appellant shot the complainant. Appellant
claimed that he had acted in self-defense, but the prosecution disputed his version of
events and his belief that the shooting was justified.
A. The Defense’s Version of Events
Appellant testified that he and the complainant worked together as electricians
for a large energy and chemical company. On the day of the shooting, they both
appeared at work, received their paychecks, and were dismissed early because of
inclement weather.
The complainant could not easily leave the jobsite because he carpooled with
another coworker whose job was unaffected by the inclement weather. Rather than
wait on the jobsite until the carpooler was released, the complainant asked to hang
out with appellant and a mutual friend for the rest of the day. Appellant agreed, with
the plan being that appellant would drive the complainant back to the jobsite later
that afternoon so that the carpooler could take the complainant home.
Appellant and the complainant then went to a gas station, where they cashed
their paychecks. Afterwards, they went to a grocery store, where they purchased
alcohol and food. They spent the rest of the afternoon drinking, playing pool, and
singing karaoke.
As the time got later in the day, the complainant’s body posture began to
change, and he indicated that he was nervous about being seen by the carpooler. The
complainant asked if appellant could drive him home instead, and appellant agreed,
even though the complainant lived more than an hour away.
On the drive home, the complainant began receiving multiple calls on his
cellphone, but he did not answer any of them. When appellant asked about the
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missed calls, the complainant responded that the calls were from a creditor, to whom
the complainant owed a lot of money. The complainant also explained that he did
not have enough money to pay the creditor, and so he was ignoring the calls.
Once at home, the complainant asked to borrow some money from appellant,
but appellant declined. The complainant then invited appellant inside to meet his
girlfriend, and appellant obliged. They began drinking again, and the mood was light
and friendly, until the complainant left the room and returned with a pistol. Appellant
admired the weapon and asked to see it, but the complainant refused and put a bullet
in the chamber instead. When appellant asked why the complainant had loaded the
pistol, the complainant responded, “Oh, just in case.”
Appellant suggested that he should leave, but the complainant said, “No, man.
You don’t need to go anywhere.” Appellant acquiesced, and then his mind began to
race with questions about the complainant’s behavior throughout the day. He
wondered whether the complainant was involved with dangerous people, and
whether the complainant might try to make a move against him, considering that he
had several hundred dollars on his person.
The complainant’s girlfriend then began to make unusual statements, like
saying that appellant was cute, and admiring the keys to his truck. Appellant believed
that the complainant was getting irritated by these comments, and so appellant
indicated again that he should go home. Appellant stood up to leave, and then the
complainant put his arm around appellant’s neck and said, “Hey, man. No, you ain’t
going nowhere. We’re going to go smoke a cigarette real quick.”
Appellant felt uncomfortable, but he followed the complainant outside after
the complainant put the pistol down on the kitchen counter. After finishing the
cigarette, appellant reentered the house and saw that the complainant was following
closely behind. Appellant then grabbed the pistol off of the kitchen counter and told
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the complainant, “Back the F up because I’m leaving this place.” The complainant
charged at appellant instead, so appellant fired a single shot into the complainant’s
chest.
Appellant told the complainant’s girlfriend to call for an ambulance, and then
appellant immediately left. When he got home, he called 911, reported that he had
shot the complainant in self-defense, and then peaceably turned himself in.
B. The Prosecution’s Version of Events
The complainant survived the shooting, and his statements regarding the
course of the day mostly aligned with appellant’s statements, with some key
differences.
As an initial matter, the complainant agreed with the early timeline of arriving
at work, receiving his paycheck, and then being dismissed because of inclement
weather. He also agreed that he spent the afternoon hanging out with appellant, that
appellant ultimately gave him a ride home, and that they spent the evening together
drinking and smoking.
However, the complainant testified that he never mentioned to appellant that
he owed anybody money. The complainant also disagreed with appellant’s
statements about receiving phone calls from a creditor. The complainant explained
that he owned a prepaid cellphone and that he had exhausted all of its minutes several
months before the shooting. Without any minutes, he could neither make nor receive
calls, unless he was using an app on a wi-fi network. On the day of the shooting, the
complainant actually borrowed appellant’s cellphone to let his girlfriend know his
whereabouts.
The complainant also described the events at his own home differently. The
complainant said that he was a gun enthusiast, and that he brought out the pistol
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simply to show it to appellant. Because appellant did not express any interest in
holding it, the complainant left the pistol on the counter.
The complainant said that he never put appellant in any sort of headlock, nor
did he ever charge at appellant. The complainant testified that when appellant came
back inside the house after smoking his cigarette, appellant picked up the pistol and
pulled the slide back, causing a live round to eject and then fall on the floor. The
complainant bent over to pick up the live round, which is when appellant shot him
in the chest.
Appellant never said anything to the complainant in the moments immediately
preceding the shooting, and the complainant could not think of a single reason why
appellant would have shot him. As he recalled the events of the night, the
complainant said that there was nothing aggressive or disagreeable about either
appellant or the topics of their conversation. Up until the shooting, their interactions
had been “extremely pleasant.”
C. The Verdict
The jury apparently believed the complainant because it convicted appellant
of the charged offense. The trial court then imposed a sentence of seven years’
imprisonment.
SUFFICIENCY OF THE EVIDENCE
Appellant does not explicitly challenge the sufficiency of the evidence in his
brief. Instead, he argues that “the verdict is contrary to the law and the evidence”
because “the facts presented . . . clearly establish the legal defense of deadly force –
self defense under Texas law.”
Insofar as appellant believes that he established his self-defense theory as a
matter of law, his argument is flawed because “the issue of self-defense is an issue
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of fact to be determined by the jury.” See Braughton v. State, 569 S.W.3d 592, 609
(Tex. Crim. App. 2018). The prosecution’s burden on that issue is merely one of
persuasion—i.e., to disprove the claim of self-defense—and the prosecution satisfies
that burden by proving that the defendant is guilty beyond a reasonable doubt. Id. at
608. Because the prosecution’s burden requires the production of legally sufficient
evidence, we construe appellant’s argument as a challenge to the sufficiency of the
evidence. See Bogan v. State, 180 S.W. 247, 247–48 (Tex. Crim. App. 1915)
(holding that an argument that a verdict is contrary to the law and evidence only
raises a challenge to the sufficiency of the evidence).
In this sufficiency challenge, we must determine whether a rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt and against appellant on the self-defense issue beyond a reasonable doubt. See
Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The offense here was
aggravated assault with a deadly weapon, which meant that the prosecution had the
burden of proving the following essential elements: (1) appellant intentionally,
knowingly, or recklessly caused bodily injury to the complainant, and (2) appellant
used or exhibited a deadly weapon during the commission of the assault. See Tex.
Penal Code § 22.02. When deciding whether these elements were proven beyond a
reasonable doubt, we consider all of the evidence in the light most favorable to the
jury’s decision. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015).
Appellant’s own testimony established the essential elements of the offense.
He admitted that he shot the complainant in the chest, thereby causing bodily injury,
and during the commission of that assault, he used a pistol, which is a deadly
weapon. Based on these admissions, the jury could have found the essential elements
of the offense beyond a reasonable doubt.
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The jury could have likewise found against appellant on the issue of self-
defense. Appellant admitted that the complainant did not have a gun, a knife, a
baseball bat, or any other sort of weapon at the time of the shooting. Appellant also
admitted that the complainant never once communicated a verbal threat. Appellant
claimed that he perceived a threat because the complainant charged at him, but there
was a conflict on this point, as the complainant testified that he merely bent down to
pick up a live round on the floor. Because we presume that the jury credited the
complainant’s testimony under our standard of review, we conclude that the jury
could have determined that appellant did not reasonably perceive an immediate
threat of unlawful force from the complainant. That conclusion likewise means that
the jury had sufficient evidence to find that appellant’s use of force against the
complainant was not justified. See Tex. Penal Code § 9.31 (enumerating the
requirements for the use of force in self-defense).
We overrule appellant’s argument that he clearly established his claim of self-
defense.
UNTIMELY DISCLOSURE OF EVIDENCE
After he was discharged from the hospital, the complainant was interviewed
by a detective, who informed the complainant that appellant had called 911 and
turned himself in. The detective also relayed the contents of appellant’s conversation
with the 911 dispatcher, and more particularly, how appellant claimed that the
complainant had received several phone calls from a creditor during the drive home.
The complainant responded with disbelief, asserting that he had no minutes on his
cellphone and that he could not have received any phone calls. The complainant then
consented to have his cellphone imaged to prove that he did not receive any phone
calls.
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The cellphone was extracted and its data was saved to a disc, but the disc itself
was never turned over to the defense in advance of trial because the detective
apparently misplaced it, possibly during her change of employment between
different law enforcement agencies. On the second day of trial, the disc was still not
available, but the prosecution elicited testimony from the detective about the
contents of the disc. The prosecution asked, “Do you recall whether or not you found
or you saw anything on [the disc] that was relevant or that either backed up the
defendant’s story that there was a bunch of calls coming in at the time?” The
detective answered, “I did not find anything relevant.”
After the detective testified, she went home and located the disc. She then
notified the prosecution the following morning.
Before the trial resumed, the prosecution disclosed to the defense and to the
trial court that the disc had been found. The defense immediately moved for a
mistrial, accusing the prosecution of misconduct and of intentionally violating the
rules of discovery. The trial court denied the motion for mistrial, but ruled that the
prosecution would not be allowed to offer the disc into evidence. The trial court also
ruled that the defense could offer the disc into evidence if the defense found anything
beneficial on the disc.
A recess was taken, in which the defense was given time to examine the
contents of the disc. At the end of the recess, the defense asserted that it had not
finished reviewing the disc, and that it may seek out an expert to analyze all of the
data.
The trial court then called on the police sergeant who had performed the data
extraction. While still outside the presence of the jury, the trial court asked the
sergeant if the disc contained the call log from the cellphone, or if the sergeant could
determine whether calls had been deleted from the call log. The sergeant responded
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that his impression was that the disc did not contain the call log, but he would need
additional time to verify that belief and to determine whether any calls had been
deleted.
The defense interjected that it was uncomfortable with relying on the
representations of the sergeant, who was a witness for the prosecution. The trial court
reiterated that the prosecution could not use the disc in any event, and that the disc
would be admitted for record purposes only, unless the defense affirmatively sought
its admission for some other purpose. The defense ultimately decided to not use the
disc.
After the trial was over, the defense moved for a new trial on the basis that the
prosecution had failed to turn over the disc in response to a timely discovery request.
That motion was denied by operation of law.
Appellant now complains in several issues that the trial court should have
granted a continuance, a mistrial, or a new trial, all because of the prosecution’s
untimely disclosure of the disc. We examine each of these points separately.
A. Motion for Continuance
Appellant argues that the trial court abused its discretion by denying a motion
for continuance, but he does not reveal where in the record that he ever requested a
continuance. From what we can discern, the statement that most nearly approximates
a motion for continuance is defense counsel’s representation to the trial court that he
“need[s] to have somebody that understands all this much better than me review it.”
If that statement can be construed as a motion for continuance, appellant never
obtained an adverse ruling, which is necessary to preserve error. See Tex. R. App.
P. 33.1.
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Even if we were to assume for the sake of argument that appellant implicitly
received an adverse ruling, this appellate complaint would still fail because counsel’s
statement was oral, whereas motions for continuance must be written and sworn. See
Tex. Code Crim. Proc. arts. 29.03, 29.08; Anderson v. State, 301 S.W.3d 276, 279
(Tex. Crim. App. 2009), declined to follow on other grounds by Grado v. State, 445
S.W.3d 736 (Tex. Crim. App. 2014). Because the oral motion, if any, did not comply
with the applicable rules, we cannot say that the trial court abused its discretion by
denying it. See Gentry v. State, 770 S.W.2d 780, 786 (Tex. Crim. App. 1988)
(finding no abuse of discretion where the defendant’s mid-trial motion for
continuance was oral, rather than written and sworn).
B. Motion for Mistrial
Unlike with the motion for continuance, the record unmistakably establishes
that appellant moved for a mistrial, and that the trial court denied his motion. We
review such rulings for an abuse of discretion. See Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009). Because a mistrial is a serious remedy, it should be
reserved for only extreme situations of highly prejudicial and incurable misconduct.
Id. If the trial court could have reasonably determined that the challenged
misconduct did not rise to that level, then the trial court’s denial of a motion for
mistrial must be upheld. Id.
Appellant argued in the trial court that he was entitled to a mistrial because
the prosecution had engaged in intentional misconduct by withholding the disc from
discovery and then by deliberating disclosing the disc in the middle of trial when the
defense could not adequately review or analyze its voluminous contents. The trial
court rejected that argument and refused to make a finding of bad faith: “I’m not
saying the State hid anything.” That ruling was within the zone of reasonable
disagreement.
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At the time of the motion for mistrial, the trial court had already heard the live
testimony of the detective, who opined that the disc must have been misplaced when
she closed out all of her files because she was transferring to another law
enforcement agency. The detective also testified that she had previously searched
for the disc at the prosecution’s request, and that she had found neither a physical
copy of the disc nor a digital copy on her hard drive. The trial court could have
reasonably accepted the detective’s explanations and found that the untimely
disclosure had been the result of negligence, not bad faith. And because that implied
finding would have been based on an evaluation of the detective’s credibility and
demeanor, we have no authority to disturb it.
For similar reasons, the trial court could have also determined that the
detective had no improper motive in withholding the disc because both the
complainant and his girlfriend had testified that there were no minutes on the
complainant’s cellphone, which tends to corroborate the detective’s ultimate opinion
that there was no evidence on the disc relevant to appellant’s defensive theory.
The record shows that the trial court was considerate of the defense’s interests.
Because the disclosure of the disc had been untimely, the trial court precluded the
prosecution from offering it into evidence. Mindful that the disc might still contain
evidence that was beneficial to appellant, the trial court also provided a recess for
the defense to examine the disc and determine whether it should be introduced into
evidence. As the trial court stated, “You’re going to find out whether it’s helpful or
not, and if it is helpful to your case, you’re going to get to use it. . . . It’s that simple,
so you’re not at any disadvantage.”
We agree with the trial court that the untimely disclosure of the disc was not
the type of extreme occurrence that necessitated a mistrial. Lesser remedies were
available, and the trial court provided them by preventing the prosecution from using
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the disc and by affording the defense the sole of option to offer the disc into evidence.
The trial court could have further instructed the jury to disregard the detective’s
testimony, but the defense never made that request. Because there were less drastic
means of addressing the prosecution’s discovery violation, we conclude that the trial
court did not abuse its discretion by denying appellant’s motion for mistrial. Cf.
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (concluding that the trial
court did not abuse its discretion by denying a motion for mistrial in response to an
alleged discovery violation because the defendant did not request the less drastic
remedy of a continuance).
C. Motion for New Trial
Four days after the trial court rendered a judgment of conviction, the defense
filed a motion arguing that the trial court should grant a new trial in the interest of
justice because the prosecution had violated appellant’s constitutional and statutory
rights by failing to turn over the disc despite a timely discovery request. As stated
above, the trial court denied the motion by operation of law.
We review the trial court’s ruling on a motion for new trial for an abuse of
discretion. See State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014). The
test for abuse of discretion is not whether, in our opinion as an appellate court, the
facts present an appropriate case for the trial court’s action, but rather, whether the
trial court acted without reference to any guiding rules or principles. Id.
A trial court properly grants a new trial when the defendant (1) articulates a
valid legal claim in his motion for new trial, (2) produces evidence or points to
evidence in the trial record that substantiates his legal claim, and (3) shows that he
was prejudiced. See State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013).
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In this case, appellant did not establish the third requirement that he was
prejudiced by the untimely disclosure of the disc. Even though he had had several
extra days to review the disc by the time he filed his motion for new trial, appellant
did not include any facts in the motion itself showing that the disc contained
evidence that was relevant to his defensive theory. Quite the opposite, his motion
ended with a recitation of facts about an unrelated criminal defendant from a
completely separate trial.
Appellant tries to make a claim for prejudice in his brief, asserting that he did
not receive the cellphone extraction report until he filed his motion for new trial. He
then contradicts that assertion by representing in the very next paragraph that he
received the report eight months after he filed his motion for new trial, which was
during the pendency of this appeal. Neither assertion is supported by a citation to the
record, which indicates that appellant obtained access to the report when the trial
court admitted the disc during the trial for purposes of the record.
Appellant also attaches certain exhibits to his brief, including various emails
and an affidavit, all of which are outside the official appellate record, and none of
which contains any facts showing that he was prejudiced.
He further relies on one other exhibit, an excerpt from the cellphone extraction
report, which does happen to be part of the official appellate record. This exhibit
contains information that tends to establish that the complainant’s cellphone was
active on the day of the offense. Appellant asserts that this activity corresponds with
actual phone calls, but we cannot draw the same conclusion because the quality of
the information is hyper-technical and not plainly decipherable to the lay reader.
There is no neatly organized call log, showing incoming and outgoing calls, for
instance. Instead, there are strings of numbers and letters over sixty characters long,
next to timestamps and what appear to be various types of server and folder data.
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We cannot discern whether this information indicates that the complainant made or
received calls over his prepaid carrier’s network (which might undermine the
complainant’s story); whether the complainant made or received calls over a wi-fi
network (which might be consistent with the complainant’s story); or whether the
complainant used his cellphone for a purpose entirely unrelated to making or
receiving calls (like taking or reviewing pictures).
In any event, even if we were to assume that one of these exhibits somehow
showed that the disc contained facts that were material to appellant’s defensive
theory, those facts were never specifically brought to the attention of the trial court.
Appellant did not mention such facts in his motion for new trial. He did not even
supply the trial court with an expert affidavit explaining the information from the
cellphone extraction report. Because appellant did not satisfy his burden of showing
that he was prejudiced by the untimely disclosure of the disc, we cannot say that the
trial court acted without guiding rules and principles by denying appellant’s motion
for new trial. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)
(“An appellate court may not consider factual assertions that are outside the record,
and a party cannot circumvent this prohibition by submitting an affidavit for the first
time on appeal. While the record may be supplemented under the appellate rules if
something has been omitted, the supplementation rules cannot be used to create new
evidence. Moreover, an appellate court’s review of the record itself is generally
limited to the evidence before the trial court at the time of the trial court’s ruling.”).
RESPONSE TO DISSENT
Like the dissent, we strongly disapprove of the detective’s mishandling of the
disc, which resulted in a discovery violation. However, a defendant is not
automatically entitled to relief upon the mere occurrence of a discovery violation.
The defendant must still carry his burden of proving that he was prejudiced.
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The dissent would excuse appellant of this burden and shift the burden to the
prosecution to prove that the untimely disclosed evidence was not favorable to the
defense, but the dissent provides no authority whatsoever for this proposed burden-
shifting framework, which is contrary to binding precedent. See Pena v. State, 353
S.W.3d 797, 811 (Tex. Crim. App. 2011) (holding that the defendant has the burden
of showing that the prosecution withheld favorable evidence).
The dissent goes on to suggest that the defense had no opportunity to
demonstrate prejudice because the prosecution did not supply the defense with a
copy of the disc until after the defense had filed its motion for new trial. This position
is also untenable. The transcript shows that the disc was admitted for record purposes
during the trial itself. The defense had access to the disc at that point.
The defense also had thirty-two days to file its motion for new trial. See Tex.
R. App. P. 21.4 (providing that a motion for new trial is due thirty days after the
sentence is imposed); Tex. R. App. P. 4.1 (extending the period when, as here, the
last day falls on a weekend). The defense did not exhaust that thirty-two day period.
Nor did the defense ever file any sort of motion or pleading with the trial court
claiming that it had been denied access to the disc. Instead, the defense filed a motion
for new trial just four days after the trial was over, and rather than address the
contents of the disc, the defense erroneously addressed the events of any unrelated
criminal trial (most likely because the motion was recycled from the file of another
client). The defense simply made no effort to demonstrate that appellant suffered
prejudice.
The defense filed a brief in this appeal nearly ten months after the trial was
over. We know that the defense had direct access to the disc during some portion of
that ten months because the defense addressed the disc in the brief. The defense cited
to individual pages from the extraction report and argued that the evidence on those
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pages demonstrated that appellant had been prejudiced by the untimely disclosure.
We fully addressed those defensive arguments in the previous section of this
opinion. But our dissenting colleague, apparently unsatisfied by appellant’s brief,
believed that more arguments could have been made because she took the
extraordinary step of combing through all 7,098 pages of the extraction report in
search for other evidence of prejudice.
In a point that was not raised anywhere in the briefing, the dissent argues that
there is evidence of prejudice because the extraction report contains copies of text
messages, and the dissent believes that the defense could have used these text
messages to show that the complainant was experiencing certain financial hardships,
which might then support appellant’s claim that the complainant owed a creditor a
great sum of money. The dissent’s argument is unpersuasive because the text
messages referred to mundane obligations, like a car note and certain court fees in
an unrelated case. There were not any text messages that would substantiate a
defensive theory that the complainant was in debt to a potentially violent creditor.
To a certain extent, appellant may have benefited by not having this evidence
presented to the jury because one of the text messages demonstrated that the
complainant added $45 to his account in exchange for five gigabytes of data, which
tends to corroborate the complainant’s testimony that his cellphone plan was
prepaid.
In another point that was never raised by the defense, the dissent argues that
there is additional evidence of prejudice because the extraction report reflects that
the complainant made contact with two people in the month preceding the offense,
and he made a separate contact with a third person on the same morning as the
offense. This evidence does not demonstrate prejudice either because the report does
not indicate whether these calls were transmitted over a carrier’s network or over a
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wi-fi network. Without knowing that information, no conclusion can be drawn about
the complainant’s credibility or about the merits of appellant’s defensive theory.
The record does not affirmatively reveal how much time during the trial that
the defense had to review the disc, or even if the defense was able to carefully peruse
the content of the text messages. All we know is that the defense made the sensible
judgment under the circumstances to not offer the disc into evidence and then argue
in closing statements that the absence of the disc provided grounds for reasonable
doubt. The jury was unpersuaded by that argument, and the trial court found no
reason for granting a new trial. After considering the issues raised in this appeal, we
have no basis for questioning the trial court’s judgment because neither the defense
nor the dissent has pointed to any evidence from the disc showing that the untimely
disclosure resulted in prejudice.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jewell, and Hassan. (Hassan, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).
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