Opinion issued August 21, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00467-CR
                           ———————————
                      TONY A. HERNANDEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1341841


                       MEMORANDUM OPINION

      Tony A. Hernandez was charged with aggravated assault with a deadly

weapon,1 enhanced with two prior felony convictions for aggravated assault with a



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      A person commits the offense of aggravated assault with a deadly weapon if the
      person intentionally or knowingly causes bodily injury to another and uses or
deadly weapon and felon in possession of a firearm. The jury found appellant

guilty and assessed his punishment at thirty years’ confinement in the Texas

Department of Criminal Justice (TDCJ), Institutional Division. In a single issue,

appellant argues that the trial court erred by admitting evidence of five of his prior

convictions when he testified on his own behalf. We affirm.

                                     Background

         The complainant, Gabriel Benitez, and his girlfriend boarded a Metro bus

late one night with appellant and a mutual acquaintance named Manny. Several

minutes into the bus ride, and while Benitez was cuddling with his girlfriend,

appellant jumped up and stabbed Benitez in the shoulder once and then several

more times in Benitez’s back. The whole encounter was captured on the bus’s

video surveillance camera. Appellant was arrested on the bus without incident.

When questioned about the assault, appellant told an officer, “I felt disrespected

and I did stab the gentleman and I felt a burning sensation in my side and anal

area.”

         Appellant, the only defense witness to take the stand, testified on direct

examination that he, Benitez, and Manny all knew each other from their time at a

local homeless shelter and that he and the other two men were planning to steal a

car that evening. Appellant also testified that he was anxious about the group’s

         exhibits a deadly weapon during the commission of the assault. See TEX. PENAL
         CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (West 2011 & Supp. 2013).


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plan to steal a car because he had just been released from the Texas Department of

Corrections five days earlier after serving a five-year sentence for an undisclosed

offense. According to appellant, Benitez gave him some “synthetic weed” before

they got on the bus to help calm his nerves, but the drug apparently had the

opposite effect. Although he acknowledged that he stabbed Benitez with a knife,

as depicted on the bus’s surveillance video, he testified that the weed apparently

caused him to black out because he did not remember stabbing Benitez.

                     Admission of Prior Felony Convictions

      Appellant contends that the trial court erred by allowing the State to impeach

him on cross-examination with the following five prior convictions: (1) aggravated

assault with a deadly weapon (November 6, 1997); (2) unauthorized use of a motor

vehicle (November 6, 1997); (3) felon in possession of firearm (January 10, 2000);

(4) aggravated assault with a deadly weapon (October 25, 2000); and (5) felon in

possession of firearm (April 10, 2007).

      Assuming, without deciding, that the admission of these prior convictions

was error, we must now determine whether the error was harmful. An appellate

court may not reverse based on the erroneous admission of evidence if the 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. See

TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.



                                          3
1998) (stating erroneous admission of evidence subject to non-constitutional error

analysis as set forth in Texas Rule of Appellate Procedure 44.2(b)).

      Here, appellant admitted that he stabbed Benitez with a knife, as shown on

the surveillance video, and that video was admitted into evidence and published to

the jury. Appellant’s sole defense was that he lacked the requisite mental state

(i.e., he did not stab Benitez knowingly or intentionally) because the synthetic

weed he smoked prior to getting on the bus caused him to black out immediately

prior to and during the stabbing. See TEX. PENAL CODE ANN. §§ 22.01(a)(1),

22.02(a)(2) (West 2011 & Supp. 2013) (providing person commits offense of

aggravated assault with a deadly weapon if person intentionally or knowingly

causes bodily injury to another and uses or exhibits a deadly weapon during

commission of assault).      Appellant, however, admitted that he smoked the

synthetic weed of his own volition, and voluntary intoxication is not a defense to

the commission of a crime. TEX. PENAL CODE ANN. § 8.04(a) (West 2011). We

further note that, in addition to the overwhelming evidence of guilt in this case,

appellant also testified on direct examination about his prior criminal history (i.e.,

that he had been released from TDCJ after serving a five-year sentence for an

undisclosed criminal offense only five days before he stabbed Benitez).

      In light of these factors, and after examining the record as a whole, we have

fair assurance that any error in admitting appellant’s prior convictions for



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impeachment purposes did not have a substantial and injurious effect or influence

in determining the jury’s verdict of guilt in this case.

      We overrule appellant’s sole issue.

                                      Conclusion

      We affirm the trial court’s judgment.




                                               Jim Sharp
                                               Justice


Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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