
NO. 07-05-0197-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 24, 2006

______________________________
 
WAYLON HERNANDEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NO. 10,604; HONORABLE TOM NEELY, JUDGE
_______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.
OPINION
	Appellant, Waylon Hernandez, appeals his conviction for aggravated assault with
a deadly weapon and sentence of 20 years confinement in the Texas Department of
Criminal Justice - Institutional Division.  We affirm.
Background
	On August 29, 2004, Winston Jones, a 14 year old, was shot in the leg in a drive-by
shooting in Vernon, Texas.  Appellant, his brother Freddie, and Freddie's wife, Jamie, were
arrested and charged with aggravated assault with a deadly weapon relating to Jones's
shooting.
	At appellant's trial, Freddie and Jamie both testified that appellant shot at a group
of people on August 29, 2004.  However, as both Freddie and Jamie were accomplices of
appellant in committing the offense, to obtain a conviction of appellant, the State needed
to provide additional evidence to corroborate their testimony.  See Tex. Code Crim. Proc.
Ann. art. 38.14 (Vernon 2005).  The victim of the shooting testified that he could not identify
the person that shot him.  Another person in the group that was shot at identified appellant
as the shooter, but in further testimony he seemed to confuse appellant and his brother.
	As further corroboration, the State sought to admit a letter appellant wrote to his
wife, Amanda Hernandez.  In the letter, appellant stated that, "Theres [sic] this bitch ass
nigger down there that (I think) is related to them niggers that I shot at."  Outside of the
presence of the jury, the State called Amanda as a witness to authenticate that the letter
was written by appellant.  Both Amanda and appellant objected to Amanda being called as
a witness for the State.  The trial court overruled the objections after confirming that the
victim was 14 years old at the time he was shot.
	Amanda testified that she had contacted investigators with the district attorney's
office informing them that she had some letters that she had received from appellant. 
Amanda testified that she turned these letters, including the letter sought to be admitted,
over to the authorities out of fear that she might be arrested for aiding and abetting
appellant and at the urging of her mother.  She testified that the letter containing appellant's
confession was received while appellant was in jail, that the letter was in appellant's
handwriting, that the signature was appellant's signature, and that she kept the letter in the
envelope that it had been delivered in.  The State did not question Amanda as to the
contents of the letter.  Following Amanda's testimony, the State offered the letter. 
Appellant objected based on the Husband-Wife Privilege of Texas Rule of Evidence 504, (1)
the letter being illegally obtained, and relevance.  The trial court overruled each of
appellant's objections and admitted the letter.
	Following trial, the jury returned a verdict finding appellant guilty of aggravated
assault with a deadly weapon.  After a separate sentencing hearing, the jury sentenced
appellant to 20 years incarceration in the Institutional Division of the Texas Department of
Criminal Justice.
	By three issues, appellant contends that the trial court erred in requiring Amanda to
testify as a witness for the State, admitting the letter because it was illegally obtained, and
admitting the letter because it was not relevant.
Standard of Review
	Each of appellant's issues relate to evidentiary rulings made by the trial court.  A trial
court's decision to admit or exclude evidence is reviewed under an abuse of discretion
standard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Green v.
State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996); Montgomery v. State, 810 S.W.2d.
372, 390 (Tex.Crim.App.1990) (op. on reh'g).  A reviewing court should not reverse a trial
judge's decision whose evidentiary ruling was within the zone of reasonable disagreement. 
Green, 934 S.W.2d at 102.  In other words, a trial court abuses its discretion only if the
reviewing appellate court can say with confidence that no reasonable perception of the
matter under consideration could have yielded the decision made by the trial court.  See
Montgomery, 810 S.W.2d at 391.
	However, even if a trial court's decision to admit or exclude evidence is proven to
have been in error, the error must be disregarded if the error did not affect the defendant's
substantial rights.  Tex. R. App. P. 44.2(b).  An error affects a substantial right of the
defendant when the error has a substantial and injurious effect or influence in determining
the jury's verdict.  King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).
Issue 1: Husband-Wife Privileges
	Generally, Rule 504 protects witnesses from being required to testify or provide
evidence against their spouse.  The Rule provides two separate privileges: a confidential
communication privilege, which may apply in civil or criminal proceedings, and a privilege
not to be called as a witness for the State, which applies only in criminal cases.  Compare
Rule 504(a) with (b).  However, these privileges are limited in certain situations.  See Rule
504(a)(4), (b)(4).  
	In the present case, appellant contends that the trial court erred in overruling his
objection to his wife being called as a witness for the State.  As such, appellant's issue
relates to the testimonial privilege contained in Rule 504(b).  This testimonial privilege may
only be invoked by the spouse being called to testify.  See Rule 504(b)(3).  However, as
Amanda invoked this privilege when called, appellant's issue is properly before this court.
	A spouse's privilege not to be called as a witness for the State is not absolute.  See
Rule 504(b)(4).  The testimonial privilege does not apply "[i]n any proceeding in which the
person [the defendant] is charged with a crime against the person's spouse, a member of
the household of either spouse, or any minor."  Rule 504(b)(4)(A).  Appellant contends that,
for the exception to apply, the defendant must be charged with a crime which requires, as
an element of the offense, proof that it was committed against a member of one of the
specified groups.  The State contends that the invocation of the privilege may be overcome
whenever it is shown that the victim of the crime identified in the indictment was a member
of one of the groups specified in the exception.  We have found no judicial construction of
the meaning of the phrase "charged with a crime against," as used in Rule 504(b)(4)(A).
	Because of confusion involving whether the minor child exception to the testimonial
privilege applied only to children of either spouse or to any minor, Rule 504 was amended
in 1998 to clarify that the exception applies to any minor.  See Huddleston v. State, 997
S.W.2d 319, 321 (Tex.App.-Houston [1st Dist.] 1999, no pet.).  In addition, the 1998
amendment included crimes against the testifying spouse within the scope of the exception. 
See Rule 504(b)(4)(A).  The comment to the 1998 amendment states that the spousal
testimonial privilege is eliminated when the testifying spouse is the alleged victim of a crime
by the accused.  Rule 504 cmt. (emphasis added).  As the exception uses the same
"charged with a crime against" language in reference to the testifying spouse as it does in
reference to a minor, we conclude that the exception was intended to abrogate the privilege
whenever a minor is the alleged victim of the crime charged.  
	In the present case, the State proved that Winston Jones was a minor at the time
that appellant shot him.  Since appellant was "charged with a crime against . . . any minor,"
we conclude that the trial court did not err in overruling Amanda's invocation of her
testimonial privilege.  We overrule appellant's first issue.
Issue 2: Illegal Search
	Appellant contends that the trial court erred in admitting the letter appellant wrote
Amanda because it was obtained as a result of an illegal search.  Appellant argues that,
while Amanda consented to investigators with the district attorney's office coming to her
home to retrieve letters she had received from appellant, Amanda's consent was the result
of the investigators' coercion.  Alternatively, appellant contends that, even if the search is
found to have been consensual, the scope of that consent was exceeded when the
investigators seized the entire bundle of letters.
	Warrantless searches are presumptively unreasonable, but there are a few limited
exceptions to this general rule.  United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296,
82 L.Ed.2d 530 (1984).  One such exception is a search conducted pursuant to voluntary
consent.  Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000).  Before consent to
search is deemed voluntary, the state must prove by clear and convincing evidence that
the consent was freely and voluntarily given. Id.; Meeks v. State, 692 S.W.2d 504, 509
(Tex.Crim.App. 1985).  The burden is on the prosecution to show that consent was
positively and unequivocally given without duress or coercion.  Meeks, 692 S.W.2d at 509. 
Whether consent was given voluntarily is a question of fact to be determined from the
totality of the circumstances surrounding the giving of consent.  Id. at 510.  The scope of
a consensual search is determined by what a reasonable person would have expected the
search to include.  See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d
297 (1991).  In a suppression hearing, the trial court is the sole and exclusive trier of fact
and judge of the credibility of the witnesses and the weight to be given their testimony. 
Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).
	In the present case, the record reflects that the investigators did threaten to arrest
Amanda on the day that they retrieved the letters.  However, the record further reflects that
the investigators had authority to arrest Amanda for harboring a fugitive when appellant
was found in her home after she had reported that he was not there.  When Amanda
expressed concern that she had no one to care for her child should she be arrested, the
investigators informed her that Children's Protective Services could be called to take
temporary custody of the child.  The investigators made these threats independently of any
investigation of appellant and the threats were not made in an attempt to elicit incriminating
evidence to be used against appellant.  Further, any coercive effect of the threats was
attenuated when the investigators, as they were leaving Amanda's home, informed her that
she was not going to jail.  
	After the investigators left with appellant, Amanda's mother advised her that she
needed to cooperate with the investigation of appellant.  At her mother's urging, Amanda
contacted the investigators and informed them that she had "some letters that they could
look at . . . ."  Only two investigators went to Amanda's residence to retrieve the letters. 
When the investigators entered Amanda's residence, she had a group of letters separated
into a bundle.  Amanda testified that she told the investigators that she would go through
the letters and call them if she found "something."  She testified that she did not intend for
the investigators to take all of the letters, but she did not identify which letters she intended
to turn over or which letters she had intended to keep.  Greg Tyra, one of the investigators,
testified that Amanda simply handed a bundle of letters to the investigators and that this
bundle included the letter that the State sought to admit in this case.
	Viewing the totality of the circumstances surrounding Amanda's consent, we
conclude that Amanda positively and unequivocally consented to the investigators' intrusion
into her residence to retrieve the letters and that this consent was not the result of coercion. 
	As the testimony regarding the scope of the consensual search was in direct conflict,
we must defer to the trial court's factual determination regarding how the letter sought to
be admitted was obtained.  Romero, 800 S.W.2d at 543.  Further, we conclude that a
reasonable person would have expected that the scope of the consensual search would
have included the entire bundle of letters based on the totality of the circumstances
surrounding Amanda's consent.  See Jimeno, 500 U.S. at 251.
	Concluding that Amanda voluntarily gave the investigators consent to search and
that the investigators did not exceed the scope of that consent, we overrule appellant's
second issue.
Issue 3: Relevance
	Finally, appellant contends that the trial court erred in admitting the letter because
the letter was not relevant because it was dated approximately eight months prior to the
assault for which appellant was being tried.  The State contends that it provided sufficient
evidence to create a fact question as whether the letter was written after and in reference
to the alleged assault, and the determination of the letter's relevance was not an abuse of
discretion.
	Relevant evidence is evidence which has any tendency to make the existence of any
fact of consequence to the determination of the action more probable or less probable than
it would be without the evidence.  Rule 401.  The determination of the relevance of
evidence lies largely within the sound discretion of the trial court and will not be disturbed
on appeal absent a clear abuse of that discretion.  Moreno v. State, 858 S.W.2d 453, 463
(Tex.Crim.App. 1993).
	In the present case, it is undisputed that the letter in question bears the date of
January 16, 2004.  However, Amanda testified that she received the letter in 2005 and that
the letter was misdated.  Amanda further testified that she keeps letters in the envelopes
she receives them in and that the envelope which contained this letter was postmarked
January 2005.  However, Amanda also testified that she could not be certain that she
received that letter in that envelope.  Chief Deputy Larry Lee testified that appellant was
incarcerated in the Wilbarger County Jail from September 13, 2004 until February 4, 2005,
that the return address on the envelope that contained the letter was the address of the
Wilbarger County Jail, and that the records do not indicate that appellant had ever been
incarcerated in the Wilbarger County Jail prior to September of 2004.  Thus, a fact question
existed as to whether the letter was written before or after the alleged assault.
	It was for the fact finder to resolve inconsistencies in testimony and to resolve the
issue of whether the letter was written at a time when it could be referencing the assault
on Winston Jones.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). 
Considering the conflict in the testimony concerning when this letter was written, we cannot
say that the trial court's determination that the letter was relevant to appellant's trial for
assault constituted a clear abuse of discretion.  Consequently, we overrule appellant's third
issue.
Conclusion
	Having overruled each of appellant's issues, we affirm the judgment of the trial court.

						Mackey K. Hancock
						         Justice




Publish.   
1. Further reference to Texas Rules of Evidence will be by reference to "Rule __."
