                                                                                            ACCEPTED
                                                                                       13-14-00465-CR
        FILED                                                            THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                   CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                             3/3/2015 2:12:03 PM
                                                                                     DORIAN RAMIREZ
          3/3/15                                                                                CLERK

DORIAN E. RAMIREZ, CLERK           CAUSE 13-14-00465-CR
BY DTello
           IN THE THRITEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                                    RECEIVED IN
                                                         13th COURT OF APPEALS
                                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                  CORPUS CHRISTI,   TEXAS
                                                          3/3/2015 2:12:03 PM
                                                           DORIAN E. RAMIREZ
                                                                  Clerk



                               ABELINO HERNANDEZ, APPELLANT

                                           VS.

                                    THE STATE OF TEXAS




                                    APPELLANT’S BRIEF

            Trial Cause 14-04-27866-A; Victoria Co. District Court




                                       Submitted by

                                    W. A. (BILL) WHITE
                                  Attorney for Appellant
                               POB 7422, Victoria, TX 77903
                                (361) 575-1774 voice & fax
                                       TBN 00788659


                               NO ORAL ARGUMENT REQUESTED



                                            1
                  IDENTITY OF PARTIES

    The parties are appellant, Abelino Hernandez, and
the State. Appellant was a resident of Victoria County
during his trial.

    Appellant was represented at trial by Christopher
Janak, Attorney at Law, 11 Regency Row Drive, San
Antonio, Texas 78248. Appellant is represented on
appeal by W. A. (Bill) White, Attorney at Law, POB
7422, Victoria, Texas 77903.

    The State was represented at trial by Edward
Wilkinson, ADA, Victoria Co. District Attorney’s
Office, 205 N. Bridge St., Suite 301, Victoria, Texas
77901.

    Appellant’s counsel anticipates that the State’s
reply brief will be prepared and filed by Brendan Guy,
ADA, Victoria Co. District Attorney’s Office, 205 N.
Bridge St., Suite 301, Victoria, Texas 77901 or another
attorney at said office’s designation.




                           2
                    TABLE OF CONTENTS

                                        Page

Index of Authorities                     4

Appellant’s Brief                        5

Statement of the Case                    5

Point of Error                           6

Prayer                                   11

Certificate of Service                   11

Certificate of Compliance                12




                            3
                 INDEX OF AUTHORITIES

Cases                                                 Page

Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004)    9

Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1991)    9

Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App. 1999) 9




                           4
                    CAUSE 13-14-00465-CR
                 Trial Cause 14-04-27866-A

ABELINO HERNANDEZ, Appellant        IN THE THIRTEENTH

VS.                                 COURT OF APPEALS AT

THE STATE OF TEXAS                  CORPUS CHRISTI, TEXAS


                     APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, ABELINO HERNANDEZ, through

counsel of record, W. A. (BILL) WHITE, Attorney at Law,

presenting:

                    STATEMENT OF THE CASE

      Appellant was indicted by the Victoria Co. grand

jury in April 2014 for aggravated robbery.   On 8/11/14,

jury selection began, with trial on the merits

beginning on 8/12/14.    Appellant pled “not guilty”.

Appellant’s jury convicted him of aggravated robbery on

8/13/14, and punishment trial before the bench then

commenced immediately.    Appellant pled “true” to two

felony enhancement paragraphs alleged in the State’s

notice of intent.    After testifying at his punishment


                              5
trial, and after admitting his guilt for aggravated

robbery, the court assessed punishment and sentenced

appellant to 30 years in prison, plus court costs.

    The State originally alleged aggravated robbery in

its indictment under two theories, by use of a deadly

weapon and for victimizing an elderly individual.

Before the trial court submitted its charge to the

jury, the State abandoned its deadly weapon allegation,

relying on the elderly status of the complaining

witness to make the offense aggravated.

    Appellant timely filed notice of appeal.



                     POINT OF ERROR

THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT
   UNNECESSARY AND UNFAIRLY PREJUDICIAL FINGERPRINT
      TESTIMONY DURING THE GUILT/INNOCENCE PHASE

    During the guilt/innocence phase, the State

presented testimony through Officer Holly Jedlicka of

the Victoria Police Department about fingerprint

evidence. (RR Vol. 5, p. 122, line 14 through p. 123,

line 13).   Officer Jedlicka mentioned AFIS, a DPS


                            6
database named Automated Fingerprint Information

System. (RR Vol. 5, p. 122, line 24 through p. 123,

line 13).    Jedlicka stated in reference to AFIS, “Once

you’re booked into any jail facility your prints

automatically go in there for comparison.” (RR Vol. 5,

p. 123, lines 4-6)(italics added).

    The prosecutor followed with, “So it’s not just

criminals.   It’s all of us that work for the State or

have background checks run will go into AFIS?” (RR Vol.

5, p. 123, lines 10-13)(italics added).    Jedlicka

answered, “Yes.”

    Defense counsel objected to these questions. (RR

Vol. 5, p. 123, lines 17-25).    The trial court noted

this objection, citing on the record Mata v. State,

2007 WL 882439 sua sponte.   This “noting” of defense

counsel’s objection must have been, in effect, an

overruling, because the court allowed the State to

continue its testimony.   Interestingly, the State’s

testimony immediately established that none of the

fingerprints located at the robbery’s scene (a


                             7
convenience store) matched appellant’s fingerprints in

AFIS. (RR Vol. 5, pp. 124-125).

    All the fingerprint testimony truly achieved for

the State was the fact that appellant’s fingerprints

were already in the AFIS database before trial, when

the robbery was initially investigated.      It established

that appellant was already a “criminal”, and that he

had previously been “booked into any jail facility”

before the charged offense.       It was a clear hint,

telegraphed plainly to appellant’s jury, that he

already had a criminal record or previous contacts

(i.e., arrests) with law enforcement.      In short, it was

merely a “smear” of appellant, without real probative

value.

    The State may counter that, since testimony further

explained that State employees and others who have

undergone background checks are also in AFIS, there is

no clear reference to appellant as a “criminal”.

Regardless, this testimony harmed appellant.      It is

unlikely that any jury would believe a defendant


                              8
accused of robbing a convenience store with a knife is

a former State employee, or that his background was

once checked so he could coach his son’s Little League

team.

    Unfair prejudice … refers to the undue tendency of

evidence to suggest a decision on an improper basis.

See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.

1999).   When reviewing the trial court’s decision, we

are to reverse the trial court’s judgment “rarely and

only after a clear abuse of discretion.” Mozon v.

State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1991).    When

making this determination, we consider the following

factors: (1) the probative value of the evidence; (2)

the potential to impress the jury in some irrational,

yet indelible way; (3) the time needed to develop the

evidence; and (4) the proponent’s need for the

evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.

Crim.App. 2004).

    Applying Erazo, the probative value of fingerprints

which fail to identify the defendant or place him at


                            9
the crime scene, or to connect him with the crime in

some other way, was zero.     The potential of this

evidence to impress appellant’s jury in an irrational,

indelible way was tremendous.      Prosecutors know that

any implication that a defendant is already a

“criminal” or repeat offender at trial carries

undeniable weight with juries.     The time needed to

develop this evidence appears, on the cold record, to

have been relatively brief.

    Most importantly, the proponent’s need for

introducing testimony about AFIS, and why fingerprints

are in it, was also zero.     If the State for any reason

felt at trial that it was necessary to cover all bases

and show that appellant’s fingerprints were absent from

the knife used in this crime or from the crime scene

itself, it could have asked any police witness with

personal knowledge, “Were the defendant’s fingerprints

found at the crime scene?”, or, “Were they found on the

knife?”   With these simple questions, the State could

have introduced its fingerprint evidence while still


                              10
avoiding any potential for unfair prejudice against

appellant.

                         PRAYER

    Appellant prays that conviction be reversed and

that this cause be remanded for new trial.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659


                 CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Brendan

Guy, ADA, Victoria Co. District Attorney’s Office, 205

N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail,

facsimile, electronic delivery, or hand-delivery on

this the 3rd day of March, 2015.

                                /s/ W. A. White
                                W. A. White




                           11
           CERTIFICATE OF COMPLIANCE

I certify that this brief contains 1,268 words.

                           /s/ W. A. White
                           W. A. White




                      12
