                                                                                     ACCEPTED
                                                                                03-14-00413-CR
                                                                                        3588264
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
January 7, 2015                                                          12/24/2014 10:35:08 AM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                   Court of Appeals No. 03-14-00413-CR
                       Trial Court Cause No. 5797
                                                              RECEIVED IN
                                                         3rd COURT OF APPEALS
             IN THE THIRD SUPREME JUDICIAL        DISTRICT AUSTIN, TEXAS
                                                        12/29/2014 12:00:00 AM
                         COURT OF APPEALS                  JEFFREY D. KYLE
                                                                 Clerk
                            AUSTIN, TEXAS

                        _______________________

                   PRISCILLA AGUILAR HERNANDEZ

                                   v.

                         THE STATE OF TEXAS
                        _______________________

       APPEALED FROM THE 452ND JUDICIAL DISTRICT COURT,
                    MCCULLOCH COUNTY, TEXAS
                  Honorable Robert R. Hofmann, Presiding
     _____________________________________________________________

                          APPELLANT’S BRIEF
     _____________________________________________________________

                                    M. Patrick Maguire
                                    State Bar No. 24002515
                                    M. Patrick Maguire, P.C.
                                    mpmlaw@ktc.com
                                    945 Barnett Street
                                    Kerrville, Texas 78028
                                    Telephone (830) 895-2590
                                    Facsimile (830) 895-2594

                                    ATTORNEY FOR APPELLANT,
                                    PRISCILLA HERNANDEZ

                    ORAL ARGUMENT REQUESTED
                         TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL                                         2

INDEX OF AUTHORITIES                                                  4

STATEMENT OF THE CASE                                                 6

ISSUES PRESENTED                                                      7

SUMMARY OF THE ARGUMENTS                                              8

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4                               9

STATEMENT OF FACTS                                                    10

ARGUMENTS & AUTHORITIES                                               10

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.    13

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.
                                                                        19

PRAYER FOR RELIEF                                                     24

CERTIFICATE OF SERVICE                                                25




                                      1
                  Court of Appeals No. 03-14-00413-CR
                      Trial Court Cause No. 5797

             IN THE THIRD SUPREME JUDICIAL DISTRICT

                           COURT OF APPEALS

                             AUSTIN, TEXAS

                          _______________________

                  PRISCILLA AGUILAR HERNANDEZ

                                     v.

                    THE STATE OF TEXAS
_____________________________________________________________

              IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________

Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of
this appeal:

Appellant:                      Priscilla Aguilar Hernandez

Appellee:                       The State of Texas

Attorney for Appellant:         M. Patrick Maguire
                                M. Patrick Maguire, P.C.
                                945 Barnett Street
                                Kerrville, Texas 78028

Attorney for Appellee:          Hon. Tonya Spaeth Ahlschwede
                                452nd Judicial District Attorney
                                P.O. Box 635
                                Mason, Texas 76856




                                     2
Trial Judge:   Hon. Robert R. Hofmann
               452nd Judicial District Judge
               P.O. Box 1580
               Mason, Texas 76856




                     3
                      INDEX OF AUTHORITIES

                                 CASES

De Leon v. State,
373 S.W.3d 644 (Tex. App.—San Antonio 2012, pet. ref’d)   13,14,
                                                          16,17

Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990)     14

Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991)    19,20,
                                                          23

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003)    19,20,
                                                          23




                                    4
                         STATUTES AND RULES

Tex. Penal Code §9.01                         21

Tex. Penal Code §9.31                         21

Tex. Penal Code §9.32                         21

Tex. Penal Code §19.02                        13




                                 5
                      STATEMENT OF THE CASE

      Appellant, Priscilla Aguilar Hernandez, is appealing her conviction

for the offense of murder. Appellant pled not guilty to a jury on May 20,

2014. RR 3, 12. The jury found Appellant guilty and sentenced her to 30

years confinement in the Texas Department of Criminal Justice –

Institutional Division on May 23, 2014. RR 6, 70. Appellant timely filed

her notice of appeal in the trial court. This brief is timely filed by being

electronically filed in the Third Court of Appeals on December 24, 2014.




                                     6
              APPELLANT'S ISSUES PRESENTED FOR REVIEW

     I.       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.

     II.      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.


**         For purposes of reference in the Appellant’s Brief the following will
           be the style used in referring to the record:

              1.    Reference to any portion of the Court Reporter’s Statement
                    of Facts will be denoted as “(RR____, ____),” representing
                    volume and page number, respectively.

              2.    The Transcript containing the District Clerk’s recorded
                    documents will be denoted as “(CR___, ___).”




                                           7
                   SUMMARY OF THE ARGUMENTS

   I.    The evidence is factually insufficient to support the jury’s negative
finding on the sudden passion issue contained in the trial court’s charge on
punishment.

   II.   The evidence is factually insufficient to support the jury’s rejection
of Appellant’s self-defense claim.




                                       8
                    CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

I certify that this brief contains 4,000 words (counting all parts of the

document and relying upon the word count feature in the software used to

draft this brief). The body text is in 14 point font and the footnote text is in

12 point font.

                                        /s/     M. Patrick Maguire
                                        M. Patrick Maguire,
                                        Attorney for Appellant




                                       9
                          STATEMENT OF FACTS

      On December 25, 2010, Appellant and her husband, Jimmie Joe

Hernandez (“Jimmie”), had been drinking heavily. RR 3, 91; RR 3, 194.

They, along with other family members, had been to a Christmas dance held

in Menard, Texas. 1 RR 3, 195. In the early morning hours of December 26,

2010, Appellant and Jimmie got into an argument over Appellant seeing

another man. RR 3, 195-96. Appellant left the dance with Jimmie’s parents

who drove Appellant to her house in Menard. RR 3, 196. Jimmie walked

home from the dance. RR 3, 196.

      After arriving home, Appellant left the house to walk back and find

Jimmie. RR 3, 196-97. When she found him, the two got into a physical

altercation. RR 3, 197. Jimmie spit on Appellant’s face, broke her cell

phone, and somehow in the altercation, pulled one of her boots off. RR 3,

196-97. Appellant returned to the house. Appellant’s brother, Justin Stone,

was passed out on a sofa in the house. RR 3, 197. Mr. Stone’s girlfriend,

Staci Leach (also known as “Nellie”), was sleeping on the other sofa. RR 3,

96. Staci awoke to Appellant coming in the door with Jimmie following

right behind Appellant. RR 3, 96. Appellant woke Staci up and said that

Jimmie had hit her and Appellant was yelling at Jimmie because her boot

1
 The offense occurred in Menard County, Texas. Venue was transferred to McCulloch
County, Texas where the case was tried.


                                        10
was missing. RR 3, 96. Appellant also had spit on her eyebrow with a little

bit of blood in it. RR 3, 96. Staci asked Jimmie if Jimmie had hit Appellant

and Jimmie denied hitting her. RR 3, 96. Staci attempted to get Appellant’s

brother to wake up. RR 3, 96.

      Meanwhile, Appellant and Jimmie were arguing in the kitchen (which

was directly adjacent to the living room where Staci and Appellant’s brother

were sleeping) and Appellant picked up a pan and struck Jimmie multiple

times in the head with it. RR 3, 96. According to Staci, Appellant turned

and grabbed a handful of knives out of a drawer or on the counter. RR 3, 97.

The argument continued into the living room and Staci said that Appellant

threw one knife at Jimmie and it stuck in the floor. RR 3, 98. Staci said that

Jimmie picked the knife up by the blade, handed the knife back to Appellant,

and told Appellant, “you missed me, Bitch, try again.” RR 3, 98. Staci said

that Jimmie and Appellant were very close to one another and Appellant said

something to Jimmie and when she turned around to walk away, Jimmie told

Appellant to “go fuck another kid.” RR 3, 98. At that point, Appellant

turned around and stabbed Jimmie in the chest. RR 3, 98-99. According to

Staci, Appellant then backed up and said “ha, Bitch.” RR 3, 99. Jimmie

then pulled the knife out of his chest and threw it on the ground and said




                                      11
“don’t call the cops.” RR 3, 100. Jimmie walked out the door and collapsed

outside on the edge of the street. RR 3, 100.

      Appellant ran up to Jimmie and grabbed his arm, apparently trying to

get him up. RR 3, 101. Appellant was hysterical and saying she was sorry

over and over. RR 3, 124-25. Jimmie died shortly thereafter.




                                      12
                     ARGUMENTS & AUTHORITIES

                                      I.
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.

A.    Standard of Review

      At the punishment phase of a trial, a defendant found guilty of murder

may raise the issue as to whether he caused the death under the immediate

influence of sudden passion arising from an adequate cause. See Tex. Penal

Code §19.02(d). If the defendant proves the issue by a preponderance of the

evidence, the murder is reduced to a second degree felony. Id. “Sudden

passion” means “passion directly caused by and arising out of provocation

by the individual killed.” Id. §19.02(a)(2). “Adequate cause” means “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.” Id. §19.02(a)(1).

      Sudden passion must arise at the time of the offense and cannot result

solely from former provocation. De Leon v. State, 373 S.W.3d 644, 650

(Tex. App.—San Antonio 2012, pet. ref’d). Moreover, neither ordinary fear

nor anger alone is sufficient to establish sudden passion.    Id. When a

defendant seeks appellate review of a failure to make a finding on which the

defendant has the burden of proof, like sudden passion, the appellate court

                                      13
must apply a factual sufficiency standard of review. Id. Accordingly, the

appellate court will review all of the evidence in a neutral light and

determine whether the jury’s failure to find sudden passion is so against the

great weight and preponderance of the evidence as to be manifestly unjust.

Id. at 651. (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App.

1990)).

B.    Analysis

      It was undisputed that Appellant and Jimmie were intoxicated and in

the midst of a very heated argument when Appellant stabbed Jimmie. 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.

      Staci Leach’s testimony is crucial on this point. It is apparent that

Staci was not a witness who was sympathetic towards Appellant. At one

point in Staci’s testimony, she refused to even look at Appellant when asked

to identify her. RR 3, 113-14. Staci’s testimony would have particular

weight on the sudden passion issue because, if anything, Staci would be



                                      14
more inclined to incriminate Appellant rather than support Appellant’s

sudden passion theory.

      Staci testified that when she awoke to Appellant and Jimmie fighting,

that Appellant was missing a boot and had Jimmie’s spit on her face. RR 3,

96. She testified that the fight escalated to the point that Appellant actually

hit Jimmie in the head with a saucepan and grabbed knives, throwing one of

them at Jimmie. RR 3, 96-98.

      The next part of Staci’s testimony is critical in determining whether

the jury’s verdict is against the great weight and preponderance of the

evidence. After having had a knife thrown at him, according to Staci,

Jimmie picked up the knife, handed it back to Appellant and said “you

missed me Bitch, try again.” RR 3, 98. At this point, Appellant had turned

away from Jimmie and was walking away when Jimmie said “go fuck

another kid.” RR 3, 98. This is apparently what provoked Appellant to spin

around and immediately stab Jimmie. RR 3, 98.

      Appellant’s actions after the stabbing also support the fact that

Appellant acted under the influence of sudden passion. Appellant became

hysterical, telling Jimmie she was sorry and attempted to get Jimmie up by

pulling on his arm. RR 3, 101. These are the actions of a person who acted

in a fit of rage and sudden passion, not of someone who planned or



                                      15
premeditated to kill someone with malice. The burden is that Appellant

“more likely than not” killed Jimmie while under the influence of sudden

passion. However, Appellant submits that the evidence shows at least by

clear and convincing evidence that the murder occurred as a result of sudden

passion.

      Looking at the facts leading up to, and right after, the stabbing show

unquestionably that this was a crime that occurred as a result of sudden

passion.   This is even more apparent when studying the cases where

appellate courts have upheld a jury’s rejection of a sudden passion defense.

      An example is the De Leon case cited herein. In affirming the jury’s

rejection of the defendant’s “sudden passion” argument, the Fourth Court of

Appeals noted that right before the defendant stabbed the victim, the

defendant told a bystander “well, now this one is going – is going to pay

now . . . . [h]e’s a son of a bitch.” De Leon v. State, 373 S.W.3d 644, 651

(Tex. App.—San Antonio 2012, pet. ref’d). The Fourth Court found this

statement to be an important fact in determining that the jury’s finding was

not so against the great weight and preponderance of the evidence to be

manifestly unjust. Id. This is typical of cases where the appellate court

affirms a jury’s rejection of a “sudden passion” defense.       This sort of

evidence is lacking in Appellant’s case.



                                      16
      In Appellant’s case, Appellant and Jimmie were in a heated argument

that had gotten physical. Although Staci says that Appellant was hitting

Jimmie with a sauce pan in the kitchen, there was also a physical altercation

that took place as reflected by Appellant missing her boot and having

Jimmie’s spit on her face. There was clearly a mutual combat situation

where tempers flared and emotions were running extremely high.           The

boiling point came when Jimmie told Appellant to “go fuck another kid” and

immediately Appellant spun around and stabbed Jimmie in the chest.

Although Staci testified that Appellant said “ha, Bitch” immediately

afterward, Appellant’s and Jimmie’s actions after the stabbing reflect that

this is a classic case of sudden passion. It seemed that both realized what a

huge mistake had just been made as reflected by Appellant’s hysteria and

Jimmie’s statements to Appellant immediately after the stabbing. The jury’s

finding is so against the great weight and preponderance of the evidence that

it is manifestly unjust. See De Leon, 373 S.W.3d at 651.

      The most compelling evidence that would bear on the “sudden

passion” issue is Staci’s testimony and Appellant’s testimony. Staci was the

only eyewitness to the stabbing other than Appellant. While a jury is free to

accept or reject witness testimony and to determine the credibility of the

witnesses, there are simply no facts which justify a negative finding on



                                     17
Appellant’s “sudden passion” issue. Appellant’s case should properly have

been submitted to the jury as a second degree felony. If the jury accepted

the State’s evidence (which it apparently did) then it would have to have

made a “sudden passion” finding. Appellant was sentenced to a term of

confinement of thirty (30) years, which is 10 years more than she could have

received if this case had been properly deemed a second degree felony as a

result of a sudden passion finding.

      There was only one stab wound as opposed to many. Staci testified

that Appellant said “ha Bitch, try again” after stabbing Jimmie, but that she

immediately became hysterical after she realized that Jimmie was badly hurt.

Additionally, Appellant ran out to the street where she knelt by Jimmie’s

side pulling on his arm attempting to get him up saying she was sorry over

and over. RR 3, 124. Jimmie’s reaction after being stabbed also lends itself

to the crime occurring while in the throes of sudden passion. Jimmie told

those around him not to call the cops. RR 3, 100. If this was a situation

involving premeditation, it would seem that Jimmie would not have reacted

in this way. Appellant also testified that Jimmie told Appellant to run as he

lay dying in an apparent reference to Jimmie seeking to protect Appellant’s

interest. RR 4, 209.




                                      18
      The relationship between Appellant and Jimmie can best be

characterized as dysfunctional. Both Appellant and Jimmie were young and

caught up in drug and alcohol abuse. This was a tragic event for both

Jimmie and Appellant. Although motive is not an element to the offense of

murder, it is certainly probative in determining whether the killing occurred

as a result of sudden passion.     The facts clearly show that this killing

occurred as a result of sudden passion. The jury’s rejection of Appellant’s

sudden passion defense is so against the great weight and preponderance of

the evidence as to be manifestly unjust.

                                    II.
  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.

A.    Standard of Review

      Texas law categorizes self-defense as a defense, not an affirmative

defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). To

support a defense like self-defense, a defendant bears only a burden of

production, which requires him to produce some evidence in support of his

claim. Id.; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).

Once the defendant produces such evidence, the burden shifts to the State,

and the State bears the burden of persuasion to disprove the raised defense.

Id. Unlike the defendant’s burden of production, the State’s burden of

                                      19
persuasion requires it to prove its case beyond a reasonable doubt. Id.

When a fact finder determines that a defendant is guilty, there is an implicit

finding rejecting any defensive theory raised by the defendant. Zuliani, 97

S.W.3d at 594; Saxton, 804 S.W.2d at 914.

       When a defendant challenges the legal sufficiency of the evidence

supporting a jury’s implicit rejection of a defendant’s claim of self-defense,

“we look not to whether the State presented evidence which refuted

appellant’s self-defense testimony, but rather we determine whether after

viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact would have found the essential elements of murder

beyond a reasonable doubt and also would have found against appellant on

the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at

914. When a defendant challenges the factual sufficiency of the evidence

supporting a jury’s implicit rejection of a defendant’s claim of self-defense,

the appellate court reviews all the evidence in a neutral light and asks

“whether the State’s evidence taken alone is too weak to support the finding

and whether the proof of guilt, although adequate if taken alone, is against

the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at

595.




                                      20
      A person is legally justified in using force against another person

when and to the degree he reasonably believes the force is immediately

necessary to protect himself against the other’s use or attempted use of

unlawful force. Tex. Penal Code §9.31(a). A person is legally justified in

using deadly force against another person when and to the degree: (1) he

would have been justified in using force as set out in section 9.31 of the

Texas Penal Code, (2) a reasonable person in his position would not have

retreated, and (3) he reasonably believed the use of deadly force was

immediately necessary to protect himself against the other person’s use or

attempted use of unlawful deadly force. Tex. Penal Code §9.32. “Deadly

force” is force that is intended or known by the actor to cause, or in the

manner of its use or intended use is capable of causing, death or serious

bodily injury. Tex. Penal Code §9.01(3).

B.    Analysis

      The evidence reflected that in the hours leading up to the stabbing,

Appellant and Jimmie were intoxicated and that they had been arguing and

fighting. Ermalinda Duarte testified for the defense. Ermalinda was the

mother of Mikey Lopez, the young man that Appellant was having an affair

with. Ermalinda testified that Jimmie called her around 2:45 a.m. on the

morning of December 26, 2010 and that Jimmie was very angry and cussing.



                                    21
RR 4, 134. Jimmie told Ermalinda that he wanted to kill her son, Mikey.

RR 4, 136-37. Ermalinda said that Jimmie sounded like he was intoxicated.

RR 4, 135. Ermalinda also testified that around 5 or 6 p.m. on December 26,

2010, she saw that Appellant had swelling on her cheek and the beginning of

a black eye. RR 4, 160. Ermalinda also testified that she was aware that

Jimmie physically abused Appellant in the past.        RR 4, 138.     This is

consistent with the testimony of Appellant’s mother, who testified that

Jimmie physically abused Appellant. RR 4, 167-68.

      According to Ermalinda, Staci Leach told her that Jimmie had thrown

a knife at Appellant and that it had stuck in the floor and that Appellant was

trying to get away from Jimmie. RR 4, 158.

      Appellant testified in her own defense. She testified that there was a

history of family violence in the relationship with her and Jimmie. RR 4,

193-95. Appellant described the events leading up to the stabbing and said

that she was trying to get Jimmie out of her house and that she stabbed him

in fear that she was about to be seriously hurt. RR 4, 205-07.

      Dr. Lisa Watts, a psychologist who evaluated Appellant and reviewed

the facts of the case, testified that Appellant suffered from post-traumatic

stress disorder. RR 4, 256. Dr. Watts also testified that based upon her

diagnosis of Appellant and her evaluation of the case history that she did not



                                      22
believe that Appellant intended to kill Jimmie. RR 4, 265. It was Dr. Watts’

opinion that Appellant acted in fear for her life. RR 4, 268.

      It must be remembered that in conducting the analysis in this case, the

Court must not look to whether the State presented evidence which refuted

Appellant’s self-defense evidence, but rather after viewing all the evidence

in the light most favorable to the prosecution, any rational trier of fact would

have found the essential elements of murder beyond a reasonable doubt and

also would have found against appellant on the self-defense issue beyond a

reasonable doubt. Saxton, 804 S.W.2d at 914. Appellant would focus this

court’s attention on the facet of the analysis that reviews whether any

rational trier of fact would have found against Appellant on the self-defense

issue beyond a reasonable doubt.            Unlike the defendant’s burden of

production, the State’s burden of persuasion requires it to prove its case

beyond a reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003).

      Based upon the evidence submitted, it cannot be said that a jury could

find against Appellant on the self-defense issue beyond a reasonable doubt.

To support such a finding, the jury would have to reject the testimony of

Staci Leach, Dr. Watts and virtually every other witness who testified. If a

jury were to reject this testimony, then it would also follow that the jury



                                       23
must reject the testimony of these witnesses concerning how the homicide

occurred. While a jury is free to accept or reject evidence presented at trial,

given the burden of proof applicable to the self-defense, the jury’s rejection

of self-defense in Appellant’s case is not a tenable conclusion to be reached

from the evidence presented.

                               CONCLUSION

      Based on the foregoing argument and authorities, Appellant

respectfully submits that Appellant’s conviction for murder should be

reversed and the cause remanded to the trial court for a new trial.

                           PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court sustain the appellate contentions herein,

reverse the judgment of the trial court convicting Appellant of murder and

remand this cause to the trial court.




                                        24
                                     Respectfully submitted,

                                     M. PATRICK MAGUIRE, P.C.



                                     /s/ M. Patrick Maguire
                                     M. Patrick Maguire
                                     State Bar No. 24002515
                                     945 Barnett Street
                                     Kerrville, Texas 78028
                                     Telephone (830) 895-2590
                                     Facsimile (830) 895-2594

                                     ATTORNEY FOR APPELLANT,
                                     PRISCILLA HERNANDEZ




                     CERTIFICATE OF SERVICE

       I hereby certify that I have served a true and correct copy of
Appellant's Brief to counsel for the State, Hon. Tonya Spaeth Ahlschwede,
via electronic transmission at tsa@452da.net, and whose address is P.O. Box
635, Mason Texas 76856, on this the 24th day of December, 2014.




                                     /s/ M. Patrick Maguire
                                     M. Patrick Maguire




                                    25
