Hernandez v. State
| Decision Date | 03 November 2016 |
| Docket Number | NO. 02-14-00498-CR,02-14-00498-CR |
| Citation | 508 S.W.3d 737 |
| Parties | Luis Miguel HERNANDEZ, Appellant v. The STATE of Texas, State |
| Court | Texas Court of Appeals |
Richard Alley, Fort Worth, for Appellant
Sharen Wilson, Criminal District Attorney; Debra Windsor, Chief of the Post-conviction Division; Danielle A. Kennedy, Catherine Simpson, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, for the State
PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.
A jury convicted Appellant Luis Miguel Hernandez of murder and assessed his punishment at fourteen years' confinement. The trial court sentenced him accordingly. In three points, Appellant challenges the sufficiency of the evidence to support the verdict and argues that the trial court reversibly erred by including a jury instruction on provoking the difficulty and by overruling his objection to the State's use of a racial slur in final argument. Although the evidence is sufficient to support Appellant's conviction, the trial court reversibly erred by overruling his objection to the State's final argument. We, therefore, reverse the trial court's judgment and remand this case to the trial court.
Quionecia Barber was visiting Devin Toler, the complainant, and their nineteen-month-old daughter in an upstairs apartment at the Wildwood Branch apartment complex. Toler was engaged in a sexual relationship with Mary, his boss at the Subway Shop where he worked. Mary lived downstairs with her husband, Appellant, and their children. Mary and Toler's relationship had become common knowledge, and Appellant reacted with growing anger toward Toler, yelling at him whenever he saw him. Toler was taller than Appellant. But Toler's mother was concerned and told him to call the police and not to go outside alone.
On the day Toler was killed, Appellant took a small bag of trash to the dumpster. When he saw Toler on the basketball court, Appellant started yelling at him. Toler got upset and started to walk toward Appellant. Quionecia yelled at the men to stop because her daughter was there. At trial, Quionecia testified that Appellant said, "Fuck that bitch, no one cares about her." While Quionecia testified that she remembered telling the police what Appellant had said about her daughter, she also admitted that the audiotape of her interview with the police recorded on the night Toler was killed did not include that information.
Toler left the basketball court, ran toward Appellant, and started to fight. When the fight began, the little girl ran off, and Quionecia went to get her. When Quionecia came back to the men, from her angle, it looked like Toler was hitting more. When the fight ended, Appellant walked toward his apartment, and Toler fell to the ground. Quionecia ran to him and saw a gash above his left chest.
Appellant came back outside and said, "This is what happens when you mess with me." His children and Mary got in the car and left. Then Appellant went over to Toler and Quionecia, knelt and put water from a water bottle on Toler's face, and asked him to get up. Appellant said he was sorry and that it should not have gone that far. He said,
Appellant had a knife during the offense. Although it is referred to as a butter knife in the record, it was actually a place knife or table knife. 1
A butter knife, on the other hand, is much smaller.
[A] butter knife (or master butter knife ) is a sharp-pointed, dull-edged knife, often with a sabre shape, used only to serve out pats of butter from a central butter dish to individual diners' plates. Master butter knives are not used to spread the butter onto bread .... Individual butter knives have a round point, so as not to tear the bread, and are sometimes termed butter spreaders.2
State's Exhibit 8 is a photograph of the knife. It is clearly a table knife or place knife. To avoid confusion, we shall refer to it simply as a knife.
In his first point, Appellant argues that the evidence is insufficient to support the jury's verdict because the evidence of self-defense precluded his conviction.3 A defendant has the burden of producing some evidence to support a claim of self-defense.4 The State has the burden of persuasion in disproving self-defense.5 This burden does not require the State to produce evidence refuting the self-defense claim; rather, the burden requires the State to prove its case beyond a reasonable doubt.6 Self-defense is an issue of fact to be determined by the jury.7 A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory.8
In reviewing the sufficiency of the evidence to support the jury's rejection of Appellant's self-defense theory, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of murder and also could have found against him on the self-defense issue beyond a reasonable doubt.9
The State argues that the evidence of self-defense is inadequate because Appellant did not testify but relied on the testimony of others who did not support his self-defense claim. Appellant was not required to testify in order to rely on a self-defense justification.10 Quionecia told the police that Appellant had told her that Toler had been choking him and that he had had no choice but to stab Toler. Appellant sufficiently raised the issue of self-defense.11 But the fact that he sufficiently raised the issue so that he could rely on that issue does not mean he will necessarily prevail.12
The State relied, at least in part, on evidence provoking the difficulty to defeat Appellant's self-defense claim. When a defendant has spoken words reasonably calculated to provoke the complainant's attack on the defendant, the provocation doctrine may preclude the assertion of the self-defense justification or may support a jury's finding defeating the self-defense claim.13
The jury, as trier of fact, was free to believe that Appellant's words were insufficient to provoke the difficulty, that Toler's response was excessive in light of the provocation, that Appellant's words were sufficient to provoke the difficulty, that Toler's response was not excessive in light of the provocation, or that Appellant's response to Toler's attack was excessive because he met non-deadly force with deadly force. The jurors were also free to consider that Appellant had a knife on his person.14
Applying the appropriate standard of review, we hold the evidence sufficiently supported the jury's verdict. We overrule Appellant's first point.
In his second point, Appellant contends that the trial court erred by overruling his requested charge and applying the law of provocation. In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends.15
When the evidence raises, and the jury is charged on, self-defense, a charge on provocation is also required when there is sufficient evidence that (1) the defendant provoked the attack on him, (2) the defendant's actions or words were reasonably calculated to provoke the attack, and (3) the defendant's actions or words were a pretext for inflicting harm on the other person.16
For the reasons discussed in our consideration of the sufficiency of the evidence, we hold that there was sufficient evidence from which a rational juror could find all the elements of provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the provocation instruction.17 We therefore hold that the trial court did not err by instructing the jury on provoking the difficulty. We overrule Appellant's second point.
After the police arrived, Appellant told Detective Pate that he had confronted Toler and had used "racial slurs ... and cuss words" toward him because of "a prior altercation and prior confrontations they had had." Toler moved toward Appellant and hit him two, three, or four times in the face. Then, according to Appellant, Toler began choking him. Appellant admitted that he had then pulled a knife out of his front left pocket, a knife he claimed he had taken out of the trash, and he began to swing the knife backwards over his left shoulder, stabbing Toler.
Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement.18 Generally, error resulting from improper jury argument is subject to a harm analysis.19
To preserve a complaint about improper jury argument for appellate review, the defendant should (1) make a timely and specific objection, (2) request an instruction to disregard if the objection is sustained, and (3) move for a mistrial if the instruction to disregard is granted.20 Appellant made a timely objection, and the trial court overruled the...
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Robinson v. State
...decision, the majority in the intermediate court of appeals agreed with Hernandez, reversing his conviction. Hernandez v. State, 508 S.W.3d 737 (Tex. App.—Fort Worth 2016), rev'd 538 S.W.3d 619 (Tex. Crim. App. 2018). The Court of Criminal Appeals granted the State's petition for discretion......
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Williams v. State
...from this holding, and we have applied it in many cases. Third, Williams relies on our decision in Hernandez v. State, 508 S.W.3d 737 (Tex. App.—Fort Worth 2016, pet. granted). There, during closing argument, the State used a racial pejorative to which Hernandez timely objected. Id. at 743.......
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Hernandez v. State
...be required of him. The court of appeals agreed with him in a split opinion and reversed his conviction. Hernandez v. State , 508 S.W.3d 737 (Tex. App.–Ft. Worth 2016, pet. granted).We granted the State Prosecuting Attorney's petition for discretionary review to determine whether the right ......