                                                                              PD-0187-15
                      PD-0187-15                            COURT OF CRIMINAL APPEALS
                                                Oral   argument    requested AUSTIN, TEXAS
                                                          Transmitted 2/19/2015 3:16:58 PM
                                                            Accepted 2/19/2015 3:54:08 PM
                                                                              ABEL ACOSTA
                              PD-____-14                                              CLERK

            IN THE TEXAS COURT OF CRIMINAL APPEALS
        _________________________________________________

        KASSANDRA MARTINEZ-HERNANDEZ
                              APPELLANT

                                  vs.

                     THE STATE OF TEXAS
                            APPELLEE
        _________________________________________________

                    FROM THE FIFTH COURT OF APPEALS
                       CAUSE NO. 05-14-00426-CR

           APPEAL FROM CRIMINAL DISTRICT COURT NO. 2
            OF DALLAS COUNTY, CAUSE NO. F13-56452-I,
           THE HONORABLE DONALD C. ADAMS, PRESIDING
        _________________________________________________

              APPELLANT’S PETITION FOR
               DISCRETIONARY REVIEW
        _________________________________________________

   BRUCE ANTON                          SORRELS, UDASHEN & ANTON
   State Bar No. 01274700               2311 Cedar Springs, Suite 250
   ba@sualaw.com                        Dallas, Texas 75201
                                        214-468-8100 (office)
   BRETT ORDIWAY                        214-468-8104 (fax)
   State Bar No. 24079086
   bordiway@sualaw.com                  Counsel for Appellant




February 19, 2015
             Ground for Review

Whether, by holding that an error in the punish-
ment charge was not harmful solely because of
the nature of the underlying crime, the court of
appeals impermissibly speculated as to the jury’s
thinking.




                       2
                                         Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 6

Statement Regarding Oral Argument ....................................................... 7

Statement of the Case and Procedural History ........................................ 8

Argument .................................................................................................. 10

   By holding that an error in the punishment charge was harmless
   solely because of the nature of the underlying crime, the court of
   appeals impermissibly speculated as to the jury’s thinking. .............. 10

      I. The court of appeals’s holding ..................................................... 10

      II. Courts of appeals are repeatedly reprimanded for speculating
      as to juries’ reasoning ....................................................................... 12

      III. The Dallas Court of Appeals’s holding is explicitly reliant upon
      that rightfully disapproved reasoning ............................................. 15

Prayer ........................................................................................................ 17

Certificate of Service ................................................................................ 19

Certificate of Compliance ......................................................................... 19

Appendix ................................................................................................... 20




                                                        3
                                       Index of Authorities

Cases

Almanza v. State, 686 S.W.2d 157 (1984) ....................................... 7, 9, 10
Alvarado v. State, 775 S.W.2d 851, 856-57 (Tex. App.—San Antonio
  1989, pet. ref’d.) ..................................................................................... 15
Dewberry v. State, 4 S.W.3d 735, 740 (1999)........................................... 12
Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002) ................. 10
Ellison v. State, 97 S.W.3d 698, 701 (Tex. App.—Texarkana 2003, no
  pet.) .................................................................................................. 11, 14
Ellison v. State, 51 S.W.3d 393, 397 (Tex. App.—Texarkana 2001, pet.
  granted) ................................................................................................. 14
Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1986) ....................... 13
Hedicke v. State, 779 S.W.2d 837, 843 (Tex. Crim. App. 1989) .............. 16
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) ............. 16
Kelly v. State, 640 S.W.2d 605, 612 (Tex. Crim. App. 1982) .................. 13
Lamb v. State, No. 14-09-01007-CR, 2011 WL 531968, at *6 (Tex.
  App.—Houston [14th Dist.] 2011, pet. ref’d) ....................................... 13
Martinez-Hernandez v. State, No. 05-14-00426-CR, 2015 WL 275239
  (Tex. App.—Dallas Jan. 21, 2015) .............................................. 9, 10, 11
Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990)................. 12
Monroe v. State, 864 S.W.2d 140, 146 (Tex. App.—Texarkana 1993, pet
  ref’d) ....................................................................................................... 15
Moss v. State, 574 S.W.2d 542, 545 (Tex. Crim. App. 1978)................... 13
Ross v. State, 180 S.W.3d 172, 177 (Tex. App.—Tyler 2005, pet. ref’d) . 13
Schaired v. State, 786 S.W.2d 497, 498 (Tex. App.—Houston [1st Dist.]
  1990, no pet.) ......................................................................................... 13
State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. App. 1999) ................ 16
Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Crim. App. 1987) .......... 12
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ............ 12


Statutes

TEX. PEN. CODE § 19.02 .............................................................................. 8
TEX. PEN. CODE § 19.04 .............................................................................. 8


                                                        4
Rules

TEX. R. EVID. 606(b) .................................................................................. 12


Treatises

43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal
  Practice And Procedure § 56:4 (3d ed.) ................................................ 16




                                                    5
                     Identity of Parties and Counsel

For Appellant Kassandra Martinez-Hernandez:

     JAMES JAMISON
          Trial counsel of record
     529 W. 12th Street
     Dallas, Texas 75208

     BRUCE ANTON
     BRETT ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     JUSTIN MCCANTS
     DREW TAYLOR
          Trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 N. Riverfront Boulevard
     Dallas, Texas 75207

     PATRICIA POPPOFF NOBLE
          Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court judge:

     THE HONORABLE DONALD C. ADAMS




                                    6
               Statement Regarding Oral Argument

     The Dallas Court of Appeals improperly conducted the test for ju-

ry charge error set out in this Court’s opinion in Almanza v. State, 686

S.W.2d 157 (1984). In light of how often the courts of this state apply

the “Almanza factors,” the Dallas Court of Appeals’s error has the po-

tential for far-ranging impact. Appellant believes that oral argument

will be helpful to this Court in understanding just how so.




                                    7
          Statement of the Case and Procedural History

     Though Appellant gave her cousins a ride to work, they refused to

contribute to her gas costs. (RR5: 102, 132, 140-41). As they argued at

the gas station, Appellant became frustrated and drove away. (SX81).

In so doing, though, she drove over one of her cousins, killing her and

her unborn child. (RR5: 91-94, 100, 105-06, 127, 155). Appellant insisted

she did so accidentally, and that, at the time, she was unaware she had

hit anyone at all. (SX81).

     Appellant was nonetheless indicted for murder. (CR: 15); see TEX.

PEN. CODE § 19.02. After rejecting plea-bargain offers of 40 years’ im-

prisonment, then 20 years’, then 15 years’, and finally 10-12 years’, Ap-

pellant’s jury trial commenced on March 25, 2014. (RR1: 6; RR2: 7; RR3:

6-7). The following day, the jury found her guilty of the lesser-included

offense of manslaughter. (RR6: 97; CR: 46); see TEX. PEN. CODE § 19.04.

After a one-day sentencing hearing on March 27, 2014, the jury sen-

tenced Appellant to the maximum 20-years’ imprisonment and fined

her $10,000. (RR7: 92; CR: 57). Appellant filed a notice of appeal that

day. (CR: 64).




                                   8
        On appeal to the Fifth Court of Appeals, Appellant urged that the

trial court erred in failing to instruct the jury that it could not consider

extraneous-offense evidence in assessing punishment unless it found

the extraneous offense had been proven beyond a reasonable doubt. (Br.

at 9-10). And because all four Almanza factors1 supported the conclu-

sion that the error was harmful, she further urged the court that it

should reverse and remand the case for a new punishment hearing. (Br.

at 10-12). The court of appeals largely agreed, but nonetheless over-

ruled Appellant’s appeal. See Martinez-Hernandez v. State, No. 05-14-

00426-CR, 2015 WL 275239 (Tex. App.—Dallas Jan. 21, 2015).




1   See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
                                           9
                                  Argument

              By holding that an error in the punishment
              charge was harmless solely because of the nature
              of the underlying crime, the court of appeals im-
              permissibly speculated as to the jury’s thinking.

                                    !   !    !

    I.   The court of appeals’s holding

         The court of appeals agreed that the trial court erred by submit-

ting to the jury a punishment charge that did not contain an instruction

regarding the burden of proof for evidence of extraneous offenses or bad

acts admitted during the punishment phase of trial. Martinez-

Hernandez v. State, No. 05-14-00426-CR, 2015 WL 275239, at *1 (Tex.

App.—Dallas 2015). In then analyzing the Almanza2 factors to deter-

mine whether Appellant was egregiously harmed by the omission, the

court of appeals did not dispute that the evidence of Appellant’s lone

bad act was indeed questionable, and that no other language in the

punishment charge suggested to the jury it need be proven beyond a

reasonable doubt. Id. at *1-2; see Ellison v. State, 86 S.W.3d 226, 228


2
 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (an appellate
court should determine whether an appellant was egregiously harmed in light of the
entire jury charge, the state of the evidence, including the contested issues and
weight of the probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole).
                                        10
(Tex. Crim. App. 2002) (“The harm which must be considered is the im-

pact of the omission in the jury charge of a reasonable-doubt instruc-

tion,” not the impact of the admission of the extraneous offense). Turn-

ing, then, to whether the jury’s likely consideration of the evidence was

harmful, the court further acknowledged that the prosecutor argued at

closing for a harsh sentence based on just such a bad act, and that the

jury then assessed the maximum sentence. Id.; see Ellison v. State, 97

S.W.3d 698, 701 (Tex. App.—Texarkana 2003, no pet.) (upon concluding

“that the jury was more prone to give consideration and weight to these

disputed extraneous activities in the absence of an instruction that they

must find them true beyond a reasonable doubt,” question becomes

whether the extraneous offense “likely had a serious influence on the

jury’s assessment of punishment.”).

     The court of appeals found the error harmless, though, for one

reason: “[i]n light of the evidence supporting appellant’s conviction at

guilt,” which “was not weak,” the court determined that it was “likely

the jury assessed appellant’s punishment on the facts surrounding her

offense.” Martinez-Hernandez, 2015 WL 275239 at *1-2 (emphasis add-

ed). On this, alone, the court overruled Appellant’s appeal.


                                   11
II.   Courts of appeals are repeatedly reprimanded for specu-
      lating as to juries’ reasoning

      By the court’s plain language, then, its holding was entirely

founded upon its speculation as to the jury’s thinking.3 And that, in

turn, necessitated the court take on the role of 13th juror and itself

evaluate the guilt evidence’s impact; after all, the court of appeals can-

not speculate as to what 12 unidentified men and women reasoned

without projecting its own reasoning.

      In multiple contexts this Court has repeatedly condemned just

that. As to evidentiary sufficiency review, this Court routinely empha-

sizes that an appellate court’s “role is not to become a thirteenth juror.”

See, e.g., Dewberry v. State, 4 S.W.3d 735, 740 (1999); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). A court of appeals cannot

simply “substitute” its judgment for that of the factfinder. See Meraz v.

State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990); Tompkins v. State,

774 S.W.2d 195, 202 (Tex. Crim. App. 1987), aff’d by equally divided


3 Even if the court’s plain language did not indicate as much, though, the court’s
holding was necessarily founded upon speculation because it is impossible to ascer-
tain jurors’ mental processes. See TEX. R. EVID. 606(b) (“Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter or
statement occurring during the jury’s deliberations, or to the effect of anything on
any juror’s mind or emotions or mental processes, as influencing any juror’s assent
to or dissent from the verdict or indictment.”).
                                        12
court, 490 U.S. 754 (1989) (O’Connor, J., not participating). Similarly, in

finding that the evidence was legally insufficient to support the charged

offense but sufficient to support a lesser-included offense, this Court

held that a new punishment trial was necessary because “[i]t is not

proper for this Court to speculate on what punishment would have been

assessed by either the jury or the judge.” Moss v. State, 574 S.W.2d 542,

545 (Tex. Crim. App. 1978), overruled on other grounds by Garrett v.

State, 749 S.W.2d 784 (Tex. Crim. App. 1986). In reversing where a trial

court refused to hold a hearing on a motion by appointed defense coun-

sel to withdraw, this Court presumed the appellant was harmed be-

cause it was “unwilling to engage in unguided speculation.” Kelly v.

State, 640 S.W.2d 605, 612 (Tex. Crim. App. 1982). And in addressing a

claim that counsel was ineffective, courts of appeals have “refus[ed] to

speculate as to whether the [trier of fact] would have imposed a lesser

sentence” absent the complained-of error. Lamb v. State, No. 14-09-

01007-CR, 2011 WL 531968, at *6 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d) (citing Schaired v. State, 786 S.W.2d 497, 498 (Tex.

App.—Houston [1st Dist.] 1990, no pet.); Ross v. State, 180 S.W.3d 172,

177 (Tex. App.—Tyler 2005, pet. ref’d)).


                                    13
     It’s just as improper in the context at issue in this case. The El-

lison court recognized as much, noting that it could not “speculate as to

what punishment the jury would have assessed without the evidence of

the extraneous offenses,” and instead concluding that the trial court’s

error in failing to give the instruction was egregiously harmful because

“the evidence made the case for serious punishment significantly more

persuasive to the jury.” Ellison v. State, 51 S.W.3d 393, 397 (Tex.

App.—Texarkana 2001, pet. granted). And though this Court remanded

the case for that court to consider the impact of omission of instruction,

rather than the impact of the admission of extraneous offense evidence,

once the court of appeals did so it pointed to that previous ruling in

again finding harm. Ellison, 97 S.W.3d at 701-02. Similarly, the San

Antonio Court of Appeals, though analyzing the since-discarded “over-

whelming evidence” test of Rule of Appellate Procedure 81(b)(2), none-

theless cogently explained the impropriety of such an analysis in the

present context:

     When an appellate court examines the record for “over-
     whelming evidence” of defendant’s guilt, it must use its own
     judgment to assess the weight of the evidence which we are
     repeatedly reminded not to do. When a reviewing court pro-
     ceeds in this fashion, it is in danger of usurping the function
     of the jury, because it is clearly possible that a jury might

                                   14
       have weighed the evidence differently. When an appellate
       court affirms a conviction and such affirmance is based en-
       tirely on the court’s own evaluation of the evidence of guilt,
       the defendant may twice be the victim of unfairness: first at
       trial and then on appeal.

       It may be admitted that when the record contains only evi-
       dence properly admitted, an appellate court may with some
       degree of confidence conclude that the evidence supports a
       finding of guilt beyond a reasonable doubt. But no court has
       thus far satisfactorily explained the process by which it is
       possible to assert that, beyond a reasonable doubt, a jury
       disregarded evidence which it should not have been allowed
       to consider. The reason for the lack of even an attempted ex-
       planation should be obvious. It is difficult to determine what
       evidence influenced the jury in reaching a criminal verdict,
       without such a judicial incursion into the mental processes of
       jurors.

Alvarado v. State, 775 S.W.2d 851, 856-57 (Tex. App.—San Antonio

1989, pet. ref’d.); see also Monroe v. State, 864 S.W.2d 140, 146 (Tex.

App.—Texarkana 1993, pet ref’d) (Bleil, J., dissenting) (“To conclude

beyond a reasonable doubt that the jury would not have assessed a dif-

ferent punishment had the testimony of four witnesses been excluded is

unsupported speculation.”).

III.   The Dallas Court of Appeals’s holding is explicitly reliant
       upon that rightfully disapproved reasoning

       The Dallas Court of Appeals, then, in rejecting Appellant’s appeal

solely because of what it suspected the jury’s verdict would have been,


                                    15
even absent the error, ran afoul of bedrock principles of appellate re-

view. And, perhaps most disturbing of all, its reasoning provided a

blueprint for holdings that effectively preclude this Court’s review. Be-

cause, where a court of appeals’s holding is based solely upon the ver-

dict it would have reached, like all sentencing verdicts “very little re-

view is available of the judge or jury’s decision.” 43B George E. Dix &

John M. Schmolesky, Texas Practice: Criminal Practice And Procedure §

56:4 (3d ed.); see, e.g., Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

App. 1984) (“The general rule is that as long as a sentence is within the

statutory range, it will not be disturbed on appeal.”). A court’s specula-

tion can only be countered with an appellant’s own, and this Court will

not speculate. See, e.g., State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim.

App. 1999) (“since appellee did not avail herself of her opportunity to

testify at the suppression hearing, we will not speculate on what she

thought Rodriguez meant ‘when she heard the statement.’”); Hedicke v.

State, 779 S.W.2d 837, 843 (Tex. Crim. App. 1989) (“As to the remaining

five witnesses, who were not included in the bill of exception, we do not

know what their excluded testimony would have been or even if they




                                    16
were prevented from testifying to anything, and we will not speculate as

to such.”).

      Appellant urges this Court that, at the very least, then, it should

grant this petition so that it may remand this case the Dallas Court of

Appeals with instructions to conduct a full Almanza harm analysis. So

doing will make clear that courts of appeals may not hold that an error

in the punishment charge was not harmful solely because of the nature

of the underlying crime, thereby speculating as to the jury’s thought

process, taking on the role of 13th juror, and creating an impossible-to-

appeal holding. Because the record before this Court further makes

clear, however, that all four Almanza factors weighing in favor of a find-

ing that the trial court’s error inflicted egregious harm upon Appellant,

she further urges this Court that, in the interest of judicial economy, it

should simply grant this petition, reverse the judgment of the court of

appeals, and remand this case for a new trial.

                                 Prayer

      Accordingly, Appellant prays that this Court will grant this peti-

tion for discretionary review.

                                  Respectfully submitted,


                                   17
     /s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com


     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellant




 18
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was elec-
tronically served to the Dallas County District Attorney’s Office and the
State Prosecuting Attorney on February 18, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 1,781 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   19
Appendix




   20
Affirmed and Opinion Filed January 21, 2015




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

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

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

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

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

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

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

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

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

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

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

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

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

which indicate appellant was egregiously harmed. We cannot agree.

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

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

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

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

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

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

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

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

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

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

the record. See id.

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

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

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

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

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

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

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

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

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

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

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

                                                –2–
Yunuel arrived, they approached appellant and asked her to open the trunk so they could get their

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

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

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

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

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

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

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

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

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

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

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

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

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

home and went to bed.

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

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

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

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

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

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

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

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

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

                                                –3–
And it is likely the jury assessed appellant’s punishment on the facts surrounding her offense.

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

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

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

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

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

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

trial. We overrule her sole issue.

       We affirm the trial court’s judgment.


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




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

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

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


Judgment entered January 21, 2015.




                                             –5–
