                                                                    ACCEPTED
                                                               13-14-00465-CV
                                                 THIRTEENTH COURT OF APPEALS
                                                       CORPUS CHRISTI, TEXAS
                                                         3/18/2015 10:55:14 AM
                                                              DORIAN RAMIREZ
                                                                        CLERK

        NO. 13-14-00465-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS         3/18/2015 10:55:14 AM
       AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk

     ABELINO HERNANDEZ,
                  Appellant,
              v.

      THE STATE OF TEXAS,
                    Appellee.

         On Appeal from the
         th
      24 Judicial District Court
      Of Victoria County, Texas
      Cause No. 14-04-27866-A

 BRIEF FOR THE STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS ......................................................................... ii

INDEX OF AUTHORITIES ...............................................................iii-iv

STATEMENT OF THE FACTS .......................................................... 1-8

SUMMARY OF ARGUMENT ............................................................. 8-9

ARGUMENT ...................................................................................... 10-26

       I. The Appellant waived any objection to the
          admission of the AFIS related evidence by
          failing to timely object at trial ............................................... 10-13

    II. The AFIS related evidence was neither
        irrelevant nor unfairly prejudicial ........................................ 13-23

   III. Any error from the admission of the AFIS
        evidence was harmless ............................................................ 23-26

PRAYER .................................................................................................. 27

SIGNATURE ........................................................................................... 27

CERTIFICATE OF COMPLIANCE ................................................... 28

CERTIFICATE OF SERVICE ............................................................. 29




Brief of Appellee                                    ii
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             INDEX OF AUTHORITIES

                                                  Texas Cases

Bevill v. State, 573 S.W. 2d 781 (Tex. Crim. App. 1978)...................... 21

Casey v. State, 215 S.W. 3d 870 (Tex. Crim. App. 2007) ............... 16, 23

Dixon v. State, 2 S.W. 3d 263 (Tex. Crim. App. 1998) ......................... 10

Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) ............... 10

Gigliobianco v. State, 210 S.W. 3d 637 ............................................. 17-18
(Tex. Crim. App. 2006) ...................................................................... 21-22

Ketchum v. State, 199 S.W. 3d 581
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 23

Lagrone v. State, 942 S.W. 2d 602 (Tex. Crim. App. 1997) ................. 12

Marini v. State, 593 S.W. 2d 709 (Tex. Crim. App. 1980).................... 10

Martinez v. State, 131 S.W.3d 22
(Tex. App.—San Antonio 2003, no pet) ................................................ 12

Mata v. State, No. 05-05-00504-CR, 2007 WL 882439
(Tex. App.-Dallas 2007, pet. ref’d)
(not designated for publication) ....................................................... 18-19

Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1990) .......... 13

Morales v. State, 32 S.W.3d 862 (Tex.Crim.App.2000)........................ 13

Mozon v. State, 991 S.W. 2d 841 (Tex. Crim. App. 2004) ................... 17

Nino v. State, 223 S.W.3d 749
(Tex. App.—Houston [14th Dist.] 2007, no pet)................................... 12



Brief of Appellee                                     iii
Victoria County Criminal District Attorney
No. 13-14-00465-CR
Stone v. State, 17 S.W. 3d 348
(Tex. App.-Corpus Christi 2000, pet. ref’d) ......................................... 15

Thrift v. State, 176 S.W. 3d 221 (Tex. Crim. App. 2005) ..................... 20


                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 28

TEX. R. APP. 33.1................................................................................... 10

TEX. R. APP. 44.2................................................................................... 23

TEX. R. EVID. 403 ................................................................................. 16




Brief of Appellee                                  iv
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                NO. 13-14-00465-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

ABELINO HERNANDEZ…..….…………………………………..Appelant

v.

THE STATE OF TEXAS,…..……………………………………...Appellee

                                                    * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            On April 3, 2014, Appellant was indicted for the offense of

aggravated robbery. [CR-I-5].

            Appellant’s case was called for trial on August 11, 2014. [RR-IV-1].

During his voir dire, Appellant’s attorney questioned the venire panel about

the presumption of innocence. [RR-IV-132]. No member of the panel

expressed any reservations about giving the Appellant the presumption of
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                        1
innocence. [RR-IV-132] After the completion of voir dire, the trial judge

gave the members of the jury instructions.            [RR-IV-162-168].     These

instructions included a direction that the jury was to follow the law given to

them by the court and was not to indulge in guesswork or speculation. [RR-

IV-163]. The trial court also instructed the jury that evidence consists only

of the testimony of witnesses, and the exhibits admitted into evidence. Id.

            The State’s first witness at trial was the victim of the offense, Ms.

Josefa Tamayo. [RR-V-15]. Ms. Tamayo testified to being robbed by a

man in March of 2013 while she was working the late shift at a Stripes

convenience store. [RR-V-18-20]. She characterized her assailant as heavy-

set, about 5’5 in height, and with a thermal t-shirt covering his face. [RR-V-

19-20]. She also established that her assailant had a knife in his hand while

robbing her. [RR-V-21-22]. She then testified to seeing blood on the

robber’s fingers after he cut himself with his own knife, and that the robber

dropped the knife when he fled the scene. [RR-V-22]. Ms. Tamayo also

testified as to how the robber had cut himself while trying to open the cash

register. [RR-V-31-32]. Ms. Tamayo then clarified that she was 5’5 in

height, and the robber was “a little bit taller, not much” than her. [RR-V-32-

33].



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             2
            The State next called Sergeant Kelly Luther of the Victoria Police

Department. [RR-V-39]. Sergeant Luther described being called out the

night of the robbery to the robbery location where she observed both the

knife and blood at the scene. [RR-V-43]. She specifically described finding

blood on the door handle. [RR-V-44]. She then confirmed that the store

video showed that robbery suspect having touched the door handle when he

fled the location. [RR-V-45-46; State’s Exhibit 15]. Sergeant Luther also

described locating blood on the knife. [RR-V-46; State’s Exhibit 8].

            The State then called Officer Javier Guerrero. [RR-V-55]. Officer

Guerrero also testified to being called out to the robbery location, where he

observed blood on the door and blood on the knife. [RR-V-59]. He then

explained the process by which he collected the blood from both the door

and from the knife. [RR-V-59-63]. Officer Guerrero also established the

chain of custody for the State’s exhibits related to the blood samples he had

collected [RR-V-64-72], and those exhibits were accepted into evidence.

[RR-V-89; State’s Exhibits 17, 17A, 17B, 18].

            The State then called Officer Joshua Robinson. [RR-V-91]. Officer

Robinson testified to being called to the robbery scene where he was

responsible for collecting fingerprints.         [RR-V-94].   Officer Robinson

indicated finding possible prints on the door and the cash register drawer
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             3
pieces that were left at the store but stated he did not know how old those

prints were. [RR-V-94]. Officer Robinson then testified that prints were

lifted in this case, but that they did not match to anything. [RR-V-97].

            After Officer Robinson’s testimony was complete there was a lengthy

bench conference concerning evidentiary issues.                        [RR-V-102-108].

Appellant did not raise any concern about evidence about the AFIS system

being admitted during this conference and did not request any sort of motion

in limine or running objection against such evidence. Id.

            When trial before the jury resumed, the State called Detective Amy

Grothe.                [RR-V-108].           Detective Grothe testified to receiving an

investigative lead that led her to request a buccal swab from the Appellant.

[RR-V-112]. She also identified the Appellant in the courtroom. [RR-V-

113]. Detective Grothe then indicated that the Appellant consented to giving

a DNA sample, which was collected by another person, Holly Jedlicka. Id.

Detective Grothe then established that the defendant was about 5’7 in height

and weighed 200 pounds, and that he was living in Victoria, about 2 miles

from the scene of the robbery, at the time of the robbery. [RR-V-114].

            The State then called Holly Jedlicka, a Crime Scene Supervisor for the

Victoria Police Department.                      [RR-V-114, 116].   Technician Jedlicka

described taking a buccal swab from the Appellant on January 24, 2014.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                     4
[RR-V-119, 122]. She also explained that four fingerprint cards had been

prepared with latent lifts on them as part of the investigation for this case.

[RR-V-122].

            The prosecutor then asked Technician Jedlicka about AFIS. Id. She

replied that AFIS is the Automated Fingerprint Identification System, and

that “every fingerprint known or unknown that we get comes through there.”

[RR-V-123]. She then further stated that once you are booked into jail your

fingerprints automatically go into AFIS. Id. Neither the question asked by

the prosecutor nor this answer were objected to by the defense. Id.

            The prosecutor then asked if his fingerprints were in AFIS, and

Technician Jedlicka indicated that as a state employee they would be in the

system. Id. These questions were also asked and answered without any

objection from the defense. Id.

            The prosecutor then asked if AFIS contained the records not just of

criminals but also of everyone that works for the state or has had background

checks run. Id. Technician Jedlicka answered yes to this question as well.

Id.

            It was only after that answer that Appellant’s attorney requested a

bench conference with the judge. Id. At the bench conference Appellant’s

attorney indicated he objected because “we have crossed the line into the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             5
jury thinking the prints that exist-“. [RR-V-123]. Appellant’s attorney did

not finish his objection as the trial court overruled him. Id.

            The prosecutor then asked Technician Jedlicka if the fingerprints

collected in this case were compared against those in the AFIS database.

[RR-V-124]. Technician Jedlicka indicated that was done by there was no

match. Id. She then testified that the Appellant’s own prints were also sent

off to the Texas Department of Public Safety to be compared against the

prints taken from the scene, and that again there was no match.                   Id.

Technician Jedlicka then established that of the four prints collected from

the robbery scene, DPS considered only one of them to be usable. Id. She

also explained the difference between usable and unusable prints and

established there was no way to tell how old the prints were. [RR-V-124-

125].

            Technician Jedlicka’s testimony concerning the buccal swab would

lead to it being admitted as State’s Exhibit 19. [RR-V-125].

            The State then called Ms. Lisa Harmon Baylor, a forensic scientist

with the Texas Department of Public Safety crime laboratory in Corpus

Christi.           [RR-V-128, 130].          Ms. Baylor testified to performing a DNA

analysis on State’s Exhibits 17A and 17B.                     [RR-V-138].   She then

established that the blood sample taken from the door, when compared to the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                   6
known sample taken from the Appellant, produced results that “an unrelated

person at random could be the source of this DNA profile” at odds of

“approximately one in 130.4 quintillion for Caucasians, one in 89.77

sextillion for blacks, and one in 739.6 quintillion for Hispanics.” [RR-V-

152; State’s Exhibit 21]. Ms. Baylor further testified that such results meant

to a reasonable degree of scientific certainty that the Appellant was the

source of the blood found on the door. [RR-V-152]. Ms. Baylor also

established that the concerning the blood sample taken from the knife, the

odds of an unrelated person taken at random being the source of that sample

was “one in 2.204 quintillion for Caucasians, one in 5.018 quintillion for

blacks, and one in 15.93 quintillion for Hispanics” and that also was

sufficient to establish to a reasonable degree of scientific certainty that the

Appellant was the source of blood on the knife as well. [RR-V-154; State’s

Exhibit 21].

            The court’s charge to the jury included an instruction that the jury

could not consider the fact that the defendant had been indicted as evidence

against him. [CR-I-25].

            The State’s closing argument did not make any reference to the

defendant’s fingerprints being kept in AFIS. [RR-VI-25-33; 38-44.]



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             7
            Appellant’s closing argument extensively attacked how the State

collected evidence in this case [RR-VI-35-37].                                  Appellant’s closing

argument also twice mentioned the State’s failure to obtain fingerprints.

[RR-VI-36-37].

            On August 13, 2014, the jury found the Appellant guilty of aggravated

robbery as alleged in the indictment. [CR-I-28; RR-VI-47]. The Appellant

pled true to the sentence enhancements alleged against him and was

sentenced to 30 years imprisonment. [CR-I-35-37].

                                     SUMMARY OF THE ARGUMENT

            The Appellant waived any error to the admission of the evidence

regarding the AFIS database by failing to timely object. Appellant did not

object after the prosecutor first asked about AFIS or even after the witness

first indicated that people who had been arrested were kept in the AFIS

system, but instead only objected after several questions on this matter had

already been asked and answered.

            The AFIS related evidence was neither irrelevant nor unfairly

prejudicial. The evidence was relevant both to help persuade the jury that

the        investigating                     officers   had   performed   a   thorough,   competent

investigation, utilizing every resource available to them, and as part of the

State’s efforts to pull the sting from it not obtaining any usable fingerprint
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                              8
evidence in this case. Nor was the evidence unfairly prejudicial. The AFIS

evidence had probative force, and the danger of it confusing, misleading, or

inflaming the jury was very slight since the evidence at trial clearly

established that it was not only suspected criminals that were in the AFIS

database but also all State employees and everyone who had ever received a

State background check. Nor did the State spend a substantial amount of

time developing this evidence. As such the trial court acted well within its

discretion in concluding the probative value of the AFIS evidence was not

substantially outweighed by its danger of unfair prejudice, and that

conclusion should be upheld.

            In the alternative, even if the admission of the AFIS evidence was

deemed to be error, that error would be harmless.              The State had

overwhelming evidence of Appellant’s guilt, while the prejudicial impact of

improper consideration of the AFIS evidence would be very slight, due to

both the nature of that evidence and to the active steps the trial prosecutor

took to minimize any improper consideration of the evidence. As such it is

clear that any erroneous admission of the AFIS evidence would not have

improperly affected the verdict in this case, which means any such error can

be disregarded, and the conviction should be affirmed.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             9
                                             ARGUMENT

    I. The Appellant waived any objection to the admission of the AFIS
       related evidence by failing to timely object at trial.

             To preserve error for appellate review, the complaining party must

make a timely objection. See Tex.R.App. P. 33.1(a); Dixon v. State, 2 S.W.

3d 263, 265 (Tex. Crim. App. 1998). The requirement of timeliness means

the objection must be made at the earliest possible opportunity. Marini v.

State, 593 S.W. 2d 709, 714 (Tex. Crim. App. 1980). If possible this should

be done before the objectionable evidence is actually admitted, but if that is

not possible than the objection must occur as soon as the objectionable

nature of the evidence becomes apparent.                See Ethington v. State, 819

S.W.2d 854, 858 (Tex.Crim.App.1991).

             In regards to the evidence concerning the Automated Fingerprint

Identification System (AFIS), Appellant failed to make the required timely

objection and thus waived any error as to the admission of that evidence.

The trial record makes clear that neither the prosecutor’s initial question of

“And now can you explain to the jury what AFIS is real quick?” nor

Technician Jedlicka’s answer of:

                   AFIS is the Automated Fingerprint Identification System
                   It’s for-it’s ran through DPS and basically every
                   fingerprint known or unknown that we get comes
                   through there. Once your booked into any jail facility
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                10
                   your prints automatically go in there for comparison.

produced any sort of objection from the Appellant. [RR-V-122-123]. If the

Appellant believes the testimony about AFIS is irrelevant (as he is now

arguing) than that specific objection should have been lodged as soon as the

prosecutor asked a question referencing AFIS. Likewise if the Appellant

believes that the evidence about the AFIS database having information on

people who have been jailed is unfairly prejudicial, then he should have

objected as soon as the witness testified that anyone who was booked into a

jail facility had their prints go into AFIS.

              Appellant did not object to either the prosecutor’s question about

AFIS or the witnesses’ answer. [RR-V-122-123]. The prosecutor then

asked a second question about AFIS without objection, which the witness

also answered without objection. [RR-V-123]. After which the prosecutor

asked a third question about AFIS without objection, which the witness also

answered in full, and only then did the Appellant request a bench conference

where he registered an objection to the AFIS related questioning. [RR-V-

123].

             As such it is clear that Appellant did not timely object to either the

admission of evidence about AFIS or the admission of evidence that the

AFIS system included records of people who had been arrested. Instead
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                              11
Appellant allowed that testimony to be admitted without any objection and

only belatedly raised an objection after two other questions had been asked

and answered. Multiple courts have concluded that when an objection is not

submitted until after additional questions have been asked then the objection

is untimely. See Nino v. State, 223 S.W.3d 749, 755 (Tex. App.—Houston

[14th Dist.] 2007, no pet) (where prosecutor asked leading question “laced

with” offensive information, witness answered, and prosecutor asked

another question before defendant objected, objection was not timely);

Martinez v. State, 131 S.W.3d 22, 38 (Tex. App.—San Antonio 2003, no

pet) (objection was too late where after question, witness answered and

prosecutor moved on to another question before defense counsel objected).

             Texas law is very clear that if a party fails to object until after an

objectionable question has been asked and answered and can show no

legitimate reason to justify the delay, the objection is untimely and error is

waived. Lagrone v. State, 942 S.W. 2d 602, 618 (Tex. Crim. App. 1997).

Appellant did not object to any of the AFIS related questions until after they

had already been asked and answered. Nor has Appellant provided any

legitimate reason to justify his delay in objecting to these questions.

Therefore Appellant’s eventual objection to this line of question was

untimely and any error related to the AFIS related questions has been
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             12
waived.

       II. The AFIS related evidence was neither irrelevant nor unfairly
           prejudicial.

             Furthermore, even if the Appellant is deemed to have made timely

objections concerning the AFIS related evidence, Appellant is still not

entitled to any relief as the trial court acted well within its discretion in

determining that the AFIS related evidence was neither irrelevant nor

unfairly prejudicial.

             The test for relevance is whether a reasonable person would believe

the particular piece of evidence is helpful in determining the truth or falsity

of any fact that is of consequence to the case. See Montgomery v. State, 810

S.W. 2d 372, 376 (Tex. Crim. App. 1990). Nor does evidence have to be

dispositive of an issue to be relevant. Evidence merely tending to affect the

probability of the truth or falsity of a fact in issue is still relevant.

Montgomery, 810 S.W. 2d at 376. All the evidence has to do is provide a

“small nudge” towards proving or disproving some fact of consequence. Id.

This broad definition of relevance allows a liberal policy of admission of

evidence for the jury’s consideration. Morales v. State, 32 S.W.3d 862, 865

(Tex.Crim.App.2000).

             In the present case, it is clear the AFIS evidence was helpful in

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             13
proving a fact of consequence. Because the suspect had his face obscured

during the course of the robbery, the State’s case was heavily dependent

upon the forensic evidence obtained at the crime scene.          As such the

thoroughness and competence of the law enforcement investigation was of

definite importance in this case. Appellant obviously recognized that the

nature of the police investigation was critical to this case as he extensively

cross-examined the State’s witnesses on the nature of their investigation and

devoted considerable time in his closing argument to attacking how the State

collected evidence in this case. [RR-VI-35-37].

            The testimony about AFIS was therefore important because it helped

demonstrate a fact of importance in the case: specifically that the police

conducted a thorough investigation, utilizing every reasonable resource that

was available to them. And naturally it was necessary to provide the jury

with background information about what AFIS was and how it worked

because without that information, the fact that the State had utilized AFIS as

part of the investigation would mean nothing to the jury. The jury needed to

know why utilizing AFIS demonstrated that the police had conducted a

thorough, fair investigation, and that necessitated them knowing what AFIS

was and why it was a useful investigative tool. Therefore the AFIS evidence

was relevant to the State’s case as it helped demonstrate that the police had
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             14
performed a proper investigation in this case.

            Appellant now contends that the evidence about the lack of

fingerprints was of no real value to the State’s case and could have been

introduced through other means. As to the first point, it is a common trial

tactic for parties to introduce evidence harmful to their own case so as to

control how that evidence is brought before the fact finder and to hopefully

“pull the sting” of the harmful evidence. See Stone v. State, 17 S.W. 3d 348,

349 (Tex. App.-Corpus Christi 2000, pet. ref’d).           Thus it was entirely

reasonable for the State to elicit from its own witnesses the fact that no

fingerprints matching the Appellant were located at the scene.              The

prosecutor had to expect that if he did not introduce the lack of fingerprint

evidence the defense would, and that by introducing the evidence himself he

could at least get value in showing the thoroughness and fairness of the

police investigation in this case.

                As for Appellant’s second point, the fact that relevant evidence

could have been presented through some other means does not make the

evidence irrelevant. The AFIS related evidence was relevant both to pull the

sting from the lack of fingerprint evidence and to give the jury the full

context of how the State conducted its investigation in this case, and

therefore the evidence was properly held to be relevant. The Appellant’s
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             15
proposed method might have been adequate for introducing sufficient

evidence to “pull the sting” from the lack of fingerprint evidence, but it

would have been wholly inadequate for giving context to how the State

conducted its investigation.                        The evidence was relevant for multiple

purposes, and the State therefore was justified in seeking to admit it in a

manner that would address all of the ways in which the evidence was

relevant.

             Of course just because evidence is relevant does not automatically

make it admissible.                          Otherwise relevant evidence can still be deemed

inadmissible if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative

evidence. See TEX. R. EVID. 403; Casey v. State, 215 S.W. 3d 870, 879

(Tex. Crim. App. 2007).

             In evaluating the relative probative value versus the unfairly

prejudicial effect of evidence, trial courts must consider 1) the inherent

probative force of the proffered item of evidence; (2) the proponent's need

for that evidence; (3) any tendency of the evidence to suggest decision on an

improper basis; (4) any tendency of the evidence to confuse or distract the

jury from the main issues; (5) any tendency of the evidence to be given
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                         16
undue weight by a jury that has not been equipped to evaluate the probative

force of the evidence, and (6) the likelihood that presentation of the evidence

will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W. 3d 637, 641-642 (Tex.

Crim. App. 2006). The trial court’s determination is only to be reversed

after a “clear abuse of discretion.” Mozon v. State, 991 S.W. 2d 841, 84

(Tex. Crim. App. 2004).

            Considering the six Gigliobianco factors, it is clear the trial court did

not abuse its discretion in finding the AFIS evidence was not unfairly

prejudicial. As to the first and second factors, the evidence clearly had

probative force. Probative force is not precisely the same thing as relevance.

Instead probative force means how strongly an item of evidence serves to

make more or less probable the existence of a fact of consequence to the

litigation, coupled with the proponents need for that item. Gigliobianco, 210

S.W. 3d at 641. The prior discussion in this brief about relevance already

addressed how the AFIS testimony served to make more probable the

existence of a fact of consequence to the litigation, specifically that the

police conducted a thorough, competent investigation, fully utilizing all

available resources to investigate every investigative lead on the case.

Furthermore, the State had a clear need for this evidence, as much of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             17
defense strategy for the case was in attacking the competence and

thoroughness of the police investigation. If the jury lost confidence in the

fairness and thoroughness of the police investigation they would be far more

likely to disregard the other forensic evidence obtained by the investigating

officers and without that evidence the State would have no case. Therefore

the probative force of this evidence was clear, and the State had a definite

need for the evidence.

            As for the third Gigliobianco factor, the tendency of this evidence to

suggest decision on an improper basis was exceedingly slight. The evidence

presented at trial was very clear that it was not only people who had been

arrested that were in AFIS, but rather all State employees and anyone who

had ever undergone a State background check were also in the system. [RR-

V-123]. Indeed the prosecutor himself established that his own fingerprints

were in the AFIS system. Because the evidence established that AFIS held

data from a wide segment of the population, there is little reason to believe

that jurors would infer the Appellant had a criminal history simply because

his fingerprints were in AFIS.

            Notably, the Dallas Court of Appeals addressed a similar issue in the

Mata case concerning evidence about the CODIS DNA database. See Mata

v. State, No. 05-05-00504-CR, 2007 WL 882439, at 5 (Tex. App.-Dallas
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             18
2007, pet. ref’d)(not designated for publication). The defense in Mata raised

the same concern that has been raised in this case, that jurors might think

that someone in CODIS has been previously convicted of an offense. Id.

The Dallas Court of Appeals concluded though that since the evidence

presented in that case showed that not just criminals had their fingerprints in

CODIS but also government employees, the court could not make the

assumption that the jurors would conclude that the defendant was a “known

offender” rather than just a “known individual.” Id. That same logic applies

in the present case. Any danger that the evidence about AFIS would lead

jurors to decide the case on an improper basis was removed due to the

testimony that AFIS included data on non-arrestees. Therefore there was no

unfair prejudice.

             Appellant’s argument that it is unlikely that jurors would believe a

defendant accused of robbing a convenience store had ever been a former

State employee or had received a State background check is unpersuasive

and unsupported by any facts. Appellant voir dired on the question of

whether the jury could give the Appellant the full presumption of innocence,

and no juror indicated any problem with doing so.                  [RR-IV-132].

Furthermore, prior to the case being submitted to the jury, the trial court

gave the jury specific instructions that they could not consider the fact that
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             19
the defendant had been indicted as evidence against him. [CR-I-25]. The

presumption is that juries follow the trial court’s instructions. See Thrift v.

State, 176 S.W. 3d 221, 224 (Tex. Crim. App. 2005).               Appellant has

produced no evidence to rebut that presumption and establish that the jury

disregarded the trial court’s explicit instructions. Therefore the presumption

of proper jury conduct should hold.

              To believe that the jury would conclude that Appellant must have a

criminal history due to being in AFIS, it is necessary to believe that the jury

lied en masse during voir dire, ignored the court’s specific instructions not to

hold the fact that he had been indicted against him, and apparently believed

that no one who has ever worked for the State or received a background

examination from the State could ever be accused of a criminal offense.

None of those suppositions are supported by any evidence and the last

requires a belief that is patently illogical. Therefore there is no rational basis

to believe that the jury could have used the AFIS evidence for an improper

purpose.

             It must also be noted that far more potentially prejudicial evidence

about possible criminal history has been permitted than AFIS related data.

For instance it is long settled Texas law that in cases where the jury may be

called upon to access punishment, the prosecutor may during voir dire
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             20
question the panel about sentence enhancements so long as the explanation

of the law stays hypothetical and does not inform the jury of specific

enhancement allegations against the defendant. See Bevill v. State, 573 S.W.

2d 781, 783 (Tex. Crim. App. 1978). Such hypotheticals have far more

potential to alert a clever jury that a defendant has prior criminal history than

information about a database that contains information not just on prior

arrestees, but also on all State employees and everyone who has received a

State background check. As such if the former conduct is permissible then

the later clearly does not risk signaling to the jury that a defendant has a

prior criminal history.

           As to the fourth Gigliobianco factor, there was clearly no risk that the

AFIS information would tend to confuse or distract the jury from the main

issues of the trial. The concept of AFIS, that there is a government database

with fingerprints in it, is a simple one, and the prosecutor quickly and

efficiently moved through the AFIS questions. Thus there is no reason to

believe these questions injected any confusion or distraction into the trial.

            Likewise as to the fifth Gigliobianco factor, there is no reason to

believe AFIS related evidence would be given undue weight by the jury.

While relevant to help show that the investigating officers did a thorough job

in their investigation, it was just one of the pieces of evidence showing how
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             21
the investigation was conducted. Nor is evidence about the existence of a

fingerprint database the type of evidence that is intrinsically inflammatory or

otherwise likely to fixate a jury’s attention; especially when the jury is

explicitly informed that the database is not just for suspected criminals but

rather holds the fingerprints of everyone who has ever worked for the state

government or received a background check from same.

             And as to the final Gigliobianco factor, it is clear the AFIS evidence

did not consume a great deal of time or needlessly repeat existing evidence.

The prosecutor asked a grand total of four questions about AFIS. [RR-V-

122-124]. The answers to those four questions was all of seven sentences

long (one of which was a single word sentence.) Id. And after those brief

questions, the prosecutor never mentioned AFIS again for the rest of the

trial. Therefore the amount of time spent on this subject was minimal. Nor

did these questions repeat existing evidence, as this was the only evidence to

show that the investigating officers did a thorough job in attempting to

match the fingerprints taken at the scene with known fingerprint samples.

              As such all six of the Gigliobianco factors support the trial court’s

determination that the probative value of the AFIS evidence was not

substantially outweighed by its danger of unfair prejudice.             The AFIS

evidence’s probative value may have been relatively modest, but the danger
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             22
of unfair prejudice from that evidence was negligible, and the time spent

developing the evidence was exceedingly minor. Therefore its probative

value was clearly not substantially outweighed by the danger of unfair

prejudice.

              The AFIS related evidence was neither irrelevant nor unfairly

prejudicial and as such the trial court acted well within its sound discretion

in allowing that evidence to be admitted into evidence. As such the trial

court’s decision should be upheld on appeal.

       III. Any error from the admission of the AFIS evidence was
            harmless.

                In the alternative, even if there was error in the admission of the

AFIS evidence, that error would be harmless given the overwhelming

evidence of Appellant’s guilt.

              The erroneous admission of evidence is non-constitutional error

under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Ketchum

v. State, 199 S.W. 3d 581, 593 (Tex. App.-Corpus Christi 2006, pet. ref’d).

A criminal conviction should not be overturned for non-constitutional error

if the appellate court, after examining the record as a whole, has fair

assurance that the error did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Casey, 215 S.W. 3d at 885. In

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             23
the present case, it is clear that any error from the admission of the AFIS

records would not have had a substantial and injurious effect or influence on

the verdict, and thus such error would be harmless.

              Independent from the AFIS evidence, there was overwhelming

evidence of Appellant’s guilt. The victim, Ms. Josefa Tamayo, established

that the man who robbed her was slightly taller than her (she being 5’5) and

was heavyset. [RR-V-32-33]. Detective Amy Grothe would later establish

the Appellant was 5’7 and weighed about 200 pounds, a height and weight

consistent with Ms. Tamayo’s description of the man who robbed her. [RR-

V-114].             But far more conclusive was the evidence established by Ms.

Tamayo and by the video tapes of the robbery that the robber cut himself

with a knife and got his blood on both the knife and the door handle. [RR-

V-21-22, State’s Exhibits 1-2, 8, 15]. That same blood evidence would then

be established to a scientific certainty by forensic scientist Ms. Lisa Harmon

Baylor as belonging to the Appellant. [RR-V-152, 154; State’s Exhibit 21].

The odds of a random unrelated person providing the DNA match on the

blood sample were literally in the quintillions as to both samples. Id. That

is as close to an absolute certainty as it is possible to be about anything.

Thus there was overwhelming evidence showing that Appellant was the man

who committed the aggravated robbery.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             24
              At the same time any prejudicial effect from the admission of the

AFIS related information would be incredibly slight. No specifics were

provided about any actual conviction Appellant ever received. Indeed the

AFIS testimony did not even indicate that you had to have a conviction to be

in their system. All it indicated was that people who were booked into a jail

facility had their information go into AFIS. [RR-V-123]. That is not an

indication of a conviction, since all it takes to go to a jail is simply being

arrested. Innocent people can plausibly be arrested, and people can likewise

be arrested for youthful indiscretions, or minor traffic offenses. The mere

fact that a person has been to jail does not mean they are a bad person or that

they have a predisposition to commit crimes, and it is implausible to believe

that even if the jury believed from the AFIS testimony that Appellant had

previously been arrested, that that testimony without any details about the

circumstances surrounding that arrest, would so influence the jury as to

impact their verdict. Our system presumes that our juries are rational and no

rational fact finder would rush to judgment based on merely a hint that a

defendant had once been arrested.

              The risk of an irrational response to the AFIS evidence was even

further eliminated in this case because the trial prosecutor took active steps

to minimize any potential for inflammatory impact from the AFIS evidence.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             25
As already discussed the prosecutor specifically established that his own

fingerprints were also in AFIS, thus implicitly arguing that you could be a

law abiding person and still be in the system. [RR-V-123]. The prosecutor

then reiterated that non-criminals have their fingerprints in AFIS. Id. And

after that the prosecutor never made any reference to AFIS again for the

remainder of the trial. Between the prosecutor emphasizing that being in

AFIS does not make you a criminal, and then the prosecutor not referencing

AFIS again at any point in the trial, the potential improper prejudicial impact

of any AFIS related evidence would obviously be greatly lessened. Given

the prosecutor’s lack of emphasis on the AFIS evidence the jury would have

no reason to think the AFIS evidence had any importance (other than in

helping to show the thoroughness of the police investigation).

                As such when we balance the overwhelming evidence of Appellant’

guilt, the inherent non-inflammatory nature of the AFIS evidence, and the

active measures the trial prosecutor took to minimize any risk of misuse of

the AFIS evidence, it is clear that the AFIS evidence would not have had a

substantial and injurious effect or influence on the verdict. Accordingly,

even if the admission of that evidence was error any such error was harmless

and can be disregarded.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                             26
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                  27
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s Brief submitted on

March 18, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,656.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                  28
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

W. A. (Bill) White, Attorney for the Appellant, by depositing same in the

United States Mail, postage prepaid on the day of March 18, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00465-CR
                                                        29
