                                                                              ACCEPTED
                                                                         07-14-00417-CR
                                                            SEVENTH COURT OF APPEALS
                                                                      AMARILLO, TEXAS
                                                                   10/20/2015 6:54:02 PM
                                                                        Vivian Long, Clerk


                  No. 07-14-00417-CR

                                               FILED IN
                                        7th COURT OF APPEALS
           IN THE COURT OF APPEALS FOR      AMARILLO, TEXAS
    THE   SEVENTH COURT OF APPEALS DISTRICT
                                        10/20/2015 6:54:02 PM
                 AMARILLO, TEXAS              VIVIAN LONG
                                                 CLERK

FERNANDO HERNANDEZ, JR. A/K/A FERNANDO JUNIOR
               HERNANDEZ,

                        Appellant

                            V.

               THE STATE OF TEXAS,

                        Appellee


               APPELLANT’S BRIEF
      On Appeal from the 69th Judicial District Court
               Of Moore County, Texas,
              Trial Court Cause No. 5056


                                 Erin Lands
                                 State Bar No. 24078822
                                 Salley & Lands, Attorneys at Law
                                 102 East Seventh Street, Suite B
                                 P.O. Box 974
                                 Dumas, Texas 79029
                                 Telephone: (806) 934-3185
                                 Fax: (806) 553-3771
                                 erin@lands-lawoffice.net
                                       Attorney for Appellant



           ORAL ARGUMENT REQUESTED
                     IDENTITY OF THE PARTIES AND COUNSEL
Appellant, Pursuant to Rule of Appellate Procedure 31.1(a), provides the following
list of all parties to the trial court’s judgment and the names and addresses of all
appellate counsel.


Fernando Hernandez, Jr. (a.k.a. Fernando Junior Hernandez)                 Appellant


Amy Browning                                              Trial Counsel for Appellant
Law Office of Jerod Pingelton
609 South Bliss Avenue
P.O. Box 636
Dumas, Texas 79029

Erin Lands                                            Appellate Counsel for Appellant
Salley & Lands, Attorneys at Law
102 East Seventh Street, Suite B
P.O. Box 974
Dumas, Texas 79029

Larry Fadler                                               Trial Counsel for the State
Assistant District Attorney, 69th Judicial District
715 South Dumas Avenue, Room 304
Dumas, Texas 79029

Larry Fadler                                           Appellate Counsel for the State
Assistant District Attorney, 69th Judicial District
David Green
District Attorney, 69th Judicial District
715 South Dumas Avenue, Room 304
Dumas, Texas 79029




                                                                                     2
                        TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………...…………2
Index of Authorities………………………………………………………………...4
Statement of the Case………………………………………………………….……5
Statement Regarding Oral Argument………………………………………….……6
Issues Presented……………………………………………………………….……7
    ISSUE ONE: FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN
    OFF-THE-RECORD PRETRIAL AGREEMENT BETWEEN THE STATE AND
    DEFENSE COUNSEL, STATE’S EXHIBITS ONE THROUGH FIFTEEN WERE
    ADMITTED INTO EVIDENCE. DEFENDANT DID NOT EXPRESSLY APPROVE THIS
    AGREEMENT……………………………………………………………...7,13

    ISSUE TWO: FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS
    OFFENSES WERE ADMITTED INTO EVIDENCE BECAUSE THEY WERE NOT
    PROVEN BEYOND A REASONABLE
    DOUBT……………………………………………………………….……7,18

    ISSUE THREE: THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO
    HARMLESS ERROR REVIEW. THE ERROR WAS HARMFUL AND CONTRIBUTED
    TO THE PUNISHMENT BY RAISING IT FIVE YEARS ABOVE THE STATE’S
    RECOMMENDATION TO THE COURT………………………………...……7,20

Statement of Facts…………………………………………………………..……...8
Summary of the Argument……………………………………………..…………10
Argument……………………………………………………….…………………12
Prayer…………………………………………………………………..………….23
Certificate of Service………………………………………………………..…….23




                                                                   3
                           INDEX OF AUTHORITIES
                          United States Constitution
U.S. CONST. AMEND. VI………………………………………..………………14, 17
U.S. CONST. AMEND. XIV…………………………………………….……………14
                                Texas Statutes
TEX. R. APP. PROC. 33.1………………………………………...…………………12
TEX. R. APP. PROC. 44.2(a)…………………………………………………10, 13, 20
TEX. CODE CRIM. PROC. Art. 1.05…………………………….……………………17
TEX. CODE CRIM. PROC. 37.07 §3(a)(1)……………………………………………18
TEX. R. EVID. 103(d)…………………………………………..……...……10, 13, 17
TEX. R. EVID. 403………………………………………………………….………18
                                Federal Cases
Boykin v. Alabama, 395 U.S. 238 (1969)…………………………………….……14
Brookhart v. Janis, 304 U.S. 1 (1996)………………………………………..……14
Crawford v. Washington, 531 U.S. 36 (2004)……………………………..………14
Johnson v. Zerbst, 304 U.S. 458 (1938)……………………………………………14
Pointer v. Texas, 380 U.S. 400 (1965)……………………………………….…….14
Stringer v. State, 241 S.W.3d 52 (Tex.Crim.App. 2007)…………………..………14
                                 Texas Cases
Grado v. State, 445 S.W.3d 736 (Tex.Crim.App. 2014)……………………..……12
In re G.A.O. v. State, 854 S.W.2d 710 (Tex.App. – San Antonio 1993)……..……13
Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993)………………...……12
Scott v. State, 227 S.W.3d 670 (Tex.Crim.App. 2007)…………………….………20
Smith v. State, 961 S.W.2d 501 (Tex.App. – San Antonio 1997, no pet.)………....13




                                                                            4
                             STATEMENT OF THE CASE
      Appellant was charged by indictment with Intoxication Manslaughter and

Failing to Render Aid After an Accident Involving Personal Injury or Death for an

offense alleged to have occurred on February 2, 2014. (1 C.R. at 5). Both charges

were second degree felonies enhanced to first degree felonies. (1 C.R. at 5).

      On November 3, 2014, Appellant pleaded guilty to both offenses and

pleaded true to the enhancement paragraph. (1 C.R. at 6, 8). Appellant pleaded

guilty without a plea bargain agreement with the State. (1 C.R. at 6). Further,

Appellant acknowledged his understanding that the Court was free to assess

Appellant’s punishment within the limits provided by law. (1 C.R. at 6; Supp. R.R.

at 6). The range of punishment announced by the trial court was five to ninety-nine

years or life and a fine of up to $10,000. (Supp. R.R. at 6).

      A sentencing hearing in front of the trial court judge was held on November

19, 2014. (2 R.R. at 1). The trial court judge assessed Appellant’s punishment at

forty-five years’ confinement in the institutional division. (2 R.R. at 128).

Appellant gave notice of appeal at the sentencing hearing. (2 R.R. at 129).

      Appellant’s trial counsel served as his first appellate counsel. (1 C.R. at 25).

This Court granted trial counsel’s motion to withdraw, abated the appeal, and

remanded the cause to the trial court.




                                                                                     5
                   STATEMENT REGARDING ORAL ARGUMENT
      Appellant requests oral argument in this matter. Oral argument will aid the

Court’s decision-making process in this appeal. Fundamental error occurred when

Appellant’s constitutional rights were infringed. This Court will review the error

and assess a harmless error analysis.




                                                                                     6
                          ISSUES PRESENTED
ISSUE ONE: FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN OFF-THE-
RECORD PRETRIAL AGREEMENT BETWEEN THE STATE AND DEFENSE COUNSEL,
STATE’S EXHIBITS ONE THROUGH FIFTEEN WERE ADMITTED INTO EVIDENCE.
DEFENDANT DID NOT EXPRESSLY APPROVE THIS AGREEMENT.


ISSUE TWO: FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS OFFENSES
WERE ADMITTED INTO EVIDENCE BECAUSE THEY WERE NOT PROVEN BEYOND A
REASONABLE DOUBT.



ISSUE THREE: THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO HARMLESS
ERROR REVIEW. THE ERROR CONTRIBUTED TO THE PUNISHMENT BY RAISING IT
FIVE YEARS ABOVE THE STATE’S RECOMMENDATION TO THE COURT.




                                                                     7
                                STATEMENT OF FACTS
TO THE HONORABLE COURT OF APPEALS:
      Defendant was indicted for Intoxication Manslaughter and Accident

Involving Personal Injury or Death Where Driver Failed to Render Aid. (1 C.R. at

5).

      Defendant pleaded guilty to both charges, each enhanced to a first degree

felony. (1 C.R. at 6, 8). The State and Defendant had not entered into a plea

bargain agreement. (1 C.R. at 6).

      On November 19, 2014, the trial court heard evidence at the sentencing

hearing for Defendant. (2 R.R. at 1). The State announced a pretrial agreement was

reached between the State and defense counsel regarding the admission of State’s

evidence. (2 R.R. at 6, 8). The State admitted, pursuant to the agreement, Trooper

Wade’s offense report, the crash report, Moore County blood reports, autopsy

report, Ranger Ditto’s report, indictment in the case, and ten photographs. (2 R.R.

at 7-8). This evidence was admitted as State’s Exhibit 1 through 15. (3 R.R.

Exhibits 1-15). None of the witnesses who prepared the reports or photographs

were called to testify. (2 R.R. at 8).

      The State also called two witnesses, Stephanie Blake and Esperanza

Escobar, to testify. (2 R.R. at 26, 38). Stephanie Blake testified Defendant was the

father of her six year old, and that she conceived the child before turning seventeen

years old. (2 R.R. at 27-28). No other evidence was presented to corroborate this

                                                                                       8
testimony. Esperanza Escobar was called to testify regarding an incident with her

foot and ear. (2 R.R. at 48). No witnesses were called to impeach her.

        The State recommended a sentence of forty years confinement. (2 R.R. at

124). The trial judge assessed a sentence of forty-five years confinement. (2 R.R. at

128).




                                                                                    9
                              SUMMARY OF ARGUMENT
      The trial court committed fundamental error. The Texas Rules of Evidence

further contemplates fundamental error in criminal cases and, in Rule 103(d), states

nothing in the Rules prevents “notice of fundamental errors affecting substantial

rights although they were not brought to the attention of the court.” TEX. R. EVID.

103(d). If the appellate record in a criminal case reveals constitutional error that is

subject to harmless error review, the court of appeals must reverse the punishment

unless the court determines beyond a reasonable doubt that the error did not

contribute to the punishment. TEX. R. APP. PROC. 44.2(a).

      The State and defense counsel admitted evidence that would otherwise be

inadmissible without the witness’ presence through a “pretrial agreement” between

the attorneys. The evidence admitted was in violation of Appellant’s right to

confront the witnesses against him and the right to compulsory process. The

agreement was never expressly approved by Appellant. Additionally, Appellant

never expressly, intelligently, and voluntarily waived these rights on the record.

      Furthermore, extraneous offenses were admitted into evidence that were not

proved beyond a reasonable doubt.

      Given that fundamental error occurred, the State’s evidence cannot pass

harmless error review. The State’s recommendation was forty years confinement.




                                                                                      10
Ultimately, the trial court sentenced Appellant to forty-five years confinement after

the evidence was presented.




                                                                                  11
                                    ARGUMENT
                               Preservation of Error

      Generally, an objection must be made to preserve error for appeal. (TEX. R.

APP. PROC. 33.1). However, this rule is not absolute. Grado v. State, 445 S.W.3d

736, 739 (Tex.Crim.App. 2014). The Court of Criminal Appeals in Marin held the

preservation requirement turns on the nature of the right infringed. Id. citing Marin

v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993). A defendant’s rights can be

separated into three categories:

      (1) “absolute rights” are those considered so fundamental to the proper
      functioning of the adjudicatory process that they cannot be forfeited by
      inaction alone;
      (2) rights that are “not forfeitable” that cannot be surrendered by mere
      inaction but “waivable” if the waiver is affirmatively, plainly, freely, and
      intelligently made.” The trial judge has an independent duty to implement
      these rights absent any request unless there is an effective express waiver”;
      and
      (3) “forfeitable” rights are those that must be requested by the litigant and
      can be forfeited by inaction.
      Grado, 445 S.W.3d at 739; Marin, 851 S.W.2d at 278-79.


      Rule 33.1’s preservation requirements do not apply to the rights in the first

two categories. Grado, 445 S.W.3d at 739.

                   Fundamental Error and Substantial Rights

      The Texas Rules of Evidence further contemplates fundamental error in

criminal cases and, in Rule 103(d), states nothing in the Rules prevents “notice of


                                                                                      12
fundamental errors affecting substantial rights although they were not brought to

the attention of the court.” TEX. R. EVID. 103(d).

                        Reversible Error in Criminal Cases

      If the appellate record in a criminal case reveals constitutional error that is

subject to harmless error review, the court of appeals must reverse the punishment

unless the court determines beyond a reasonable doubt that the error did not

contribute to the punishment. TEX. R. APP. PROC. 44.2(a).

                                 Standard of Review

      A reviewing court may take notice of fundamental errors affecting

substantial rights even if the errors were not preserved at trial. TEX. R. EVID.

103(d). Fundamental error is error that directly and adversely affects the interest of

the public generally, as such interest is declared in statutes or the constitution of

the State. In re G.A.O. v. State, 854 S.W.2d 710, 715 (Tex.App. – San Antonio

1993, no pet.). If the trial court errs in admitting the evidence, the error will be

fundamental when it has caused the defendant’s trial to be fundamentally unfair.

Smith v. State, 961 S.W.2d 501, 505-06 (Tex. App. – San Antonio 1997, no pet.).

                                       Analysis

             A.        FUNDAMENTAL ERROR OCCURRED WHEN, PURSUANT TO AN
                       OFF-THE-RECORD PRETRIAL AGREEMENT BETWEEN THE
                       STATE AND DEFENSE COUNSEL, STATE’S EXHIBITS ONE
                       THROUGH FIFTEEN WERE ADMITTED INTO EVIDENCE.




                                                                                        13
                       DEFENDANT DID NOT EXPRESSLY APPROVE THIS
                       AGREEMENT.

      The Sixth Amendment’s Confrontation Clause provides that, “in all criminal

prosecutions, the accused shall enjoy the right…to be confronted with the

witnesses against him.” U.S. CONST. amend. VI; Crawford v. Washington, 541

U.S. 36, 42 (2004). The constitutional guarantee applies to both federal and state

criminal prosecutions. U.S. CONST. amend. XIV; Pointer v. Texas, 380 U.S. 400,

406 (1965). The Confrontation Clause prohibits the admission of testimonial

statements unless the declarant is unavailable to testify and the accused had a prior

opportunity for cross-examination. Crawford, 541 U.S. at 68-69. The right to

confront and cross-examine witnesses may be waived, but the United States

Supreme Court has made clear that we must “indulge every reasonable

presumption against waiver of fundamental constitutional rights…” Brookhart v.

Janis, 304 U.S. 1, 4 (1996); Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

      A waiver of the right to confront and cross-examine witnesses will not be

presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 243 (1969).

Therefore, for a waiver to be effective, “it must be clearly established that there

was an intentional relinquishment or abandonment of a known right or privilege.”

Brookhart, 384 U.S. at 4 (quoting Zerbst, 304 U.S. at 464); Stringer v. State, 241

S.W.3d 52 (Tex.Crim.App. 2007).




                                                                                      14
      At the sentencing hearing, the State referenced a pretrial agreement, which

included the admission of fifteen exhibits, State’s Exhibits 1 through 15. (2 R.R. at

6, 7-8). It appears the agreement was that, in exchange for the admission of the

State’s exhibits, Defendant was allowed to admit witness letters on his behalf

without objection from the State. (2 R.R. at 122). The evidence admitted pursuant

to the agreement was the following:

      1. Trooper’s offense report;
      2. Crash report;
      3. Defendant’s blood records;
      4. Victim’s autopsy report;
      5. Ranger’s report;
      6. Indictment;
      7. Crash scene photograph;
      8. Crash scene photograph;
      9. Victim’s “lifeless body” photograph;
      10.Victim’s “lifeless body” photograph;
      11.Victim’s blood splatter photograph;
      12.Accident photograph;
      13.Accident photograph;
      14. Accident photograph with beer case;
      15.Shattered glass and beer photograph.
(2 R.R. at 7-8; 3 R.R. State’s Exhibits 1-15).
      State’s Exhibit 1, Trooper Wade’s offense report, includes nine pages of

substance. (3 R.R. Exhibit 1). Trooper Wade’s report includes statements from

other troopers, a Sheriff’s Deputy, witnesses, Texas Ranger Ditto, and highlighted

statements made by Defendant. (3 R.R. Exhibit 1). Additionally, an affidavit from

the custodian of medical records and a supplement produced by Trooper Wade


                                                                                    15
were attached as Trooper Wade’s offense report. (3 R.R. Exhibit 1). State’s Exhibit

2 included Trooper Wade’s crash report, which provided an investigator’s narrative

of what happened and the resulting charges. (3 R.R. Exhibit 2). Trooper Wade was

not called as a witness. (2 R.R. at 2).

      State’s Exhibit 3 is the pathology report. (3 R.R. Exhibit 3). It is unclear who

created the report, as Dr. Michael Sennett and Charles Addington’s names are

included in the report. (3 R.R. Exhibit 3). This exhibit includes an accounting of

references and units with no explanation of the readings. (3 R.R. Exhibit 3). The

report does include, however, a positive reading for cocaine and amphetamine,

presumably from Defendant’s blood, as the report reads “Fernando Hernandez”. (3

R.R. Exhibit 3). Neither Dr. Michael Sennett nor Charles Addington were called as

witnesses. (2 R.R. at 2).

      State’s Exhibit 4, the autopsy report prepared by Dr. Thomas Parsons,

includes the “cause of death” and a reasoning, “motor vehicle mishap”, while

providing a list of the doctor’s medical findings and a comprehensive examination

report. (3 R.R. Exhibit 4). Dr. Parsons was not called as a witness. (2 R.R. at 2).

      State’s Exhibit 5 included Ranger Ditto’s investigation report. (3 R.R.

Exhibit 5). Similar to Trooper Wade’s report, Ranger Ditto’s report included

hearsay statements from other troopers and witnesses, his assessment of the

accident, a summary of the Defendant’s statement, what appears to be Ranger



                                                                                      16
Ditto’s handwritten notes, and a piece of paper with a drawing stating “drawn by

Fernando Hernandez, Jr.”. (3 R.R. Exhibit 5). Ranger Ditto was not called as a

witness. (2 R.R. at 2).

      State’s Exhibit 7 through 15 are photographs, presumably from the accident

and of the victim. (2 R.R. at 7-8). No witnesses were called to provide the

foundation to prove the photographs into evidence. (2 R.R. at 2).

      Absent from the record is Defendant’s express, voluntary, intelligent waiver

of the Confrontation Clause or any express approval of the pretrial agreement

reached between counsel for the defense and the State. This error is the

fundamental error contemplated in Rule 103(d). TEX. R. EVID. 103(d). The error

affects Defendant’s substantial, constitutional right to confront the witnesses

against him. U.S. CONST. amend. VI. TEX. CODE CRIM. PROC. Art. 1.05. Defense

counsel cannot waive this right without express of approval of Defendant. Further,

defense counsel stated the exchange was because certain defense witnesses could

not be present at the hearing. (2 R.R. at 122). Defendant is entitled to compulsory

process for obtaining witnesses in his favor. TEX. CODE CRIM. PROC. Art. 1.05.

Also absent from the record is Defendant’s acknowledgement of this right or the

express waiver of this right.

      This error is precisely the fundamental error affecting a substantial, and

constitutional, right protected by the U.S. Constitution, Texas Rules of Evidence,



                                                                                     17
Texas Rules of Appellate Procedure, and Texas Code of Criminal Procedure.

Nowhere in the record does Defendant provide an express, informed waiver of his

constitutional right of confrontation. Therefore, fundamental error occurred when

the State and defense counsel entered into an agreement, which waived

Defendant’s constitutional right to confront the witnesses against him, without his

express waiver on the record.

             B.        FUNDAMENTAL ERROR OCCURRED WHEN EXTRANEOUS
                       OFFENSES WERE ADMITTED INTO EVIDENCE BECAUSE THEY
                       WERE NOT PROVEN BEYOND A REASONABLE DOUBT.

       In any case, whether the punishment is to be assessed by the judge or jury,

extraneous crimes or bad acts may be admitted into evidence if they are proven

beyond a reasonable doubt to have been committed by the defendant or for which

he could be held criminally responsible. TEX. CODE CRIM. PROC. 37.07 §3(a)(1).

Additionally, even otherwise relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID.

403.

       Here, the State did not meet the burden of proving, beyond a reasonable

doubt, the extraneous offense of assault on his wife, Esperanza Escobar. The State

called Esperanza Escobar and asked “how many times has he hit you?” and “have

you ever served him with a trespass warning?” (2 R.R. at 40). Ms. Escobar denied

the occurrence of either. (2 R.R. at 40). The State further asked about an incident



                                                                                      18
where Ms. Escobar’s foot was ran over and also inquired about a “gash” to her ear.

(2 R.R. at 43, 45). Ms. Escobar denied any wrongdoing by Defendant. (2 R.R. at

43, 45).

      The State proceeded to continually ask questions regarding this incident and

attempted to impeach her by asking about her account versus what the police report

stated regarding the incident. (2 R.R. at 47, 48). The State did not call any

impeachment witnesses, including the police officers who created the reports, to

testify against Ms. Escobar’s account. Ms. Escobar repeatedly denied the police

report account of the incident, including explicitly stating “he didn’t ever hit me

against the window.” (2 R.R. at 48).

      The State also introduced testimony of Stephanie Blake, the alleged mother

of a son conceived when Defendant was twenty-four years old and Ms. Blake was

sixteen years old. (2 R.R. at 27). Absent Ms. Blake’s testimony, no other evidence

was presented to show Defendant fathered the child or engaged in sexual conduct

with someone under the age of seventeen years old. The State even seemed to

acknowledge he was never prosecuted for this “crime” by asking if it would

surprise Ms. Blake if he had not been. (2 R.R. at 28). Ms. Blake does state a

genetic test was done and a child support order exists. (2 R.R. at 29). However, no

test or order was admitted into evidence.




                                                                                      19
      Therefore, fundamental error occurred when the State offered testimony

regarding extraneous offenses but did not prove beyond a reasonable doubt. Ms.

Escobar flatly denied any wrongdoing by Defendant and, absent Ms. Blake’s

testimony, no evidence was presented to confirm her allegations regarding an

alleged incident occurring over six years ago. Neither extraneous offense should

have been admitted.

             C.        THE FUNDAMENTAL ERROR IN THIS CASE IS SUBJECT TO
                       HARMLESS ERROR REVIEW. THE ERROR WAS HARMFUL
                       AND CONTRIBUTED TO THE PUNISHMENT BY RAISING IT FIVE
                       YEARS ABOVE THE STATE’S RECOMMENDATION TO THE
                       COURT.

      If the appellate record in a criminal case reveals constitutional error that is

subject to harmless error review, the court of appeals must reverse the punishment

unless the court determines beyond a reasonable doubt that the error did not

contribute to the punishment. TEX. R. APP. PROC. 44.2(a).

      In determining specifically whether constitutional error under Crawford may

be declared harmless beyond a reasonable doubt, the following factors are relevant:

(1) how important the out-of-court statement to the State’s case; (2) whether the

out-of-court statement was cumulative of other evidence; (3) the presence or

absence of evidence corroborating or contradicting the out-of-court statement on

material points; and (4) the overall strength of the prosecution’s case. Scott v.

State, 227 S.W.3d 670, 690-91 (Tex.Crim.App. 2007).



                                                                                        20
      Here, during closing argument, the State recommended a sentence of forty

years confinement in the institutional division. (2 R.R. at 124, 127). Ultimately, the

trial court sentenced Defendant to forty-five years in the institutional division. (2

R.R. at 128). The out-of-court statements were vital to the State’s case. Almost

fifty pages of reports, photographs and handwritten notes were admitted into

evidence for the State. (3 R.R. Exhibits 1-15). The State did not call any witnesses

that had personal knowledge of the accident, investigation, or autopsy. (2 R.R. at

2). Essentially, the bulk of the State’s case on punishment was related to these

reports and notes from witnesses unavailable to Defendant for cross-examination.

      Additionally, the extraneous offenses admitted into evidence cannot be held

to be found to be harmless. Ms. Escobar’s testimony was, essentially, that the

extraneous offense did not occur but she was “impeached” by questions regarding

statements in an offense report. (2 R.R. at 47, 48).

      Given the increased sentence above the State’s recommendation and the lack

of State’s witnesses to prove up the bulk of its punishment evidence, it cannot be

concluded, beyond a reasonable doubt that the error did not contribute to the

punishment.




                                                                                        21
                                     CONCLUSION
      Fundamental error occurred when the trial court admitted evidence through a

pretrial agreement Appellant did not expressly enter into on the record. Appellant

was not afforded the right to confront the witnesses against him. Further,

extraneous offenses were entered into evidence without being proven beyond a

reasonable doubt. The bulk of the State’s case was the presentation of evidence

through offense reports, medical reports, and other written documents without the

witnesses being present. Appellant never expressly waived his right to confront

these witnesses. Further, Appellant never expressly acknowledged he was advised

of his right to compulsory process if that was, in fact, the basis for the pretrial

agreement.

      This error was not harmless. The State recommended to the court

Appellant’s punishment be assessed at forty years confinement. The trial court

sentenced Appellant to forty-five years confinement in the institutional division.




                                                                                      22
                                      Prayer
Wherefore, premises considered, Appellant Fernando Hernandez, Jr. asks the Court
to reverse the punishment of forty-five years confinement in the institutional
division and remand to the trial court.
                                             Respectfully submitted,


                                             /s/ Erin Lands___________________
                                             Erin Lands
                                             SBOT # 24078822
                                             Attorney for Appellant

                                             Salley & Lands, Attorneys at Law
                                             102 East Seventh Street, Suite B
                                             P.O. Box 974
                                             Dumas, Texas 79029
                                             Telephone: (806) 934-3185
                                             Fax: (806) 553-3771
                                             E-mail: erin@lands-lawoffice.net


                            Certificate of Compliance

       Pursuant to Texas Rules of Appellate Procedure, the undersigned hereby
certifies that the number of words in the portion of the brief subject to TRAP Rule
9.4(i)(1) is 2,827.

                                             /s/ Erin Lands__________________
                                             Erin Lands

                              Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this brief
was served by electronic mail to counsel for the State, Mr. David Green, 715 South
Dumas Avenue, Dumas, Texas 79029.

                                             /s/ Erin Lands__________________
                                             Erin Lands


                                                                                  23
