                                                                                   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.




                                        20
                                 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
