Affirmed and Opinion Filed January 21, 2015




                                         S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00426-CR

                   KASSANDRA MARTINEZ-HERNANDEZ, Appellant
                                     V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F13-56452-I

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Francis
       Kassandra Martinez-Hernandez appeals her conviction for manslaughter. Appellant was

indicted for the murder of her twenty-two-year-old cousin, Yunuel Aguilar. After finding her

guilty of the lesser included offense of manslaughter, the jury assessed punishment at twenty

years in prison and a $10,000 fine. We affirm.

       In her sole issue, appellant claims the trial court erred at the punishment phase of the trial

by failing to properly instruct the jury on the law regarding extraneous offenses and bad acts.

Specifically, appellant asserts the trial court did not instruct the jury it could only consider

extraneous offenses and bad acts if the jury found beyond a reasonable doubt that such acts and

offenses were attributable to her. Appellant argues the jury charge failed to impose any burden

of proof on the State, the State’s evidence in its case in chief was “weak,” the prosecutor’s
repeatedly emphasized the fighting incident, and the jury assessed the maximum sentence, all of

which indicate appellant was egregiously harmed. We cannot agree.

        During the punishment phase of the trial, the State introduced evidence that, while

awaiting trial, appellant fought with a fellow inmate. The jury charge at punishment did not

contain an instruction regarding the burden of proof for evidence of extraneous offenses or bad

acts admitted at punishment. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp.

2014). The trial court’s failure to include the instruction is error. See Huizar v. State, 12 S.W.3d

479, 484 (Tex. Crim. App. 2000). Because appellant did not object to the jury charge, we will

sustain the complaint only if the record shows the error was so egregiously harmful that

appellant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh’g). In evaluating harm, we consider the entire jury charge, the

state of the evidence, the argument of counsel, and any other relevant information revealed by

the record. See id.

       Although the jury charge was erroneous and the prosecutor mentioned the jail fight

during closing, the State’s evidence at trial was not weak. At guilt/innocence, the jury heard the

detailed testimony of Yunuel’s sisters, Annabella and Jessica. Each recounted how, on the night

in question, the four women drove in appellant’s black Passat to Viviana’s Bar off Royal Lane

where they worked as hostesses. During the evening, the three sisters noticed appellant was

angry and ignoring them. When it was time to leave, appellant would not give Annabella or

Jessica the key to her car where they had left cellphones and purses. Instead, she left them at the

club, and the three had to ask bar patrons for rides. After leaving the club, they saw her at a

nearby gas station in her car with the windows down. The driver of the suburban Jessica was

riding in pulled up parallel to appellant’s car; Jessica tried to talk to appellant but appellant

ignored her and, instead, asked the man who was driving for gas money. When Annabella and

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Yunuel arrived, they approached appellant and asked her to open the trunk so they could get their

property. After appellant opened the trunk, Yunuel got the purses and slammed the trunk closed.

Appellant said, “Oh, yeah,” put the car in reverse, and gunned the engine. Annabella said the car

accelerated “very fast,” but she was able to jump to the side. She shouted at appellant that

Yunuel was behind the car, but appellant did not stop. Yunuel was carried backward, then

dragged under and eventually run over by the car. Annabella ran toward the Passat, yelling at

appellant that she had run over Yunuel. Appellant stopped briefly, looked at Annabella, then put

the car in gear and drove off. Yunuel, who was three months pregnant, died from her injuries.

       In addition to this testimony, the jury saw appellant’s interview approximately three

hours after Yunuel was run over. In the video, appellant is calm and unemotional. She claimed

she did not know Yunuel had been standing behind her car and had no idea she hit her.

According to appellant, she could not drive forward because there was a car blocking her in, so

she “did reverse and did not see [Yunuel].” No one tried to stop her, and she did not feel the

impact. She claimed she did not hear anything because her windows were rolled up. She drove

home and went to bed.

       The jury also viewed the videotape from the gas station which shows appellant arriving at

the gas station. Later, a white suburban pulls in, stopping parallel to appellant’s car. Finally, a

white pickup parks parallel to the white suburban, and Yunuel and Annabella exit the truck. The

next video shows Yunuel and Annabella standing behind appellant’s car which suddenly

accelerates backward.     Annabella jumps to the side, but Yunuel is carried backward, then

disappears from view. She reappears when her body is forcefully run over by the Passat.

Appellant stops, then puts the car in gear and drives off.

       In light of the evidence supporting appellant’s conviction at guilt/innocence, the State’s

case for punishment was not significantly more persuasive because of the lack of the instruction.

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And it is likely the jury assessed appellant’s punishment on the facts surrounding her offense.

See Allen v. State, 47 S.W.3d 47, 52 (Tex. App.―Fort Worth 2001, pet. ref’d) (“Given

appellant’s reckless disregard for human life as demonstrated by the present offense, it is very

plausible that the jury sentenced appellant to twenty years’ confinement on the facts of the

convicted crime alone.”). After reviewing the entire record, including the jury charge, the

evidence, and the closing arguments, we conclude appellant has not demonstrated how the trial

court’s error was so egregious and created such harm that she has not had a fair and impartial

trial. We overrule her sole issue.

       We affirm the trial court’s judgment.


Do Not Publish
TEX. R. APP. P. 47.2(b)
140426F.U05                                          /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE




                                               –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

KASSANDRA MARTINEZ-                                On Appeal from the Criminal District Court
HERNANDEZ, Appellant                               No. 2, Dallas County, Texas
                                                   Trial Court Cause No. F13-56452-I.
No. 05-14-00426-CR        V.                       Opinion delivered by Justice Francis,
                                                   Justices Evans and Stoddart participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered January 21, 2015.




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