Hernandez v. State

• Decision Date: 04 January 1996
• Docket Number: No. 08-94-00035-CR,08-94-00035-CR
• Citation: 914 S.W.2d 218
• Parties: Danny HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 218

914 S.W.2d 218

Danny HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 08-94-00035-CR.

Court of Appeals of Texas,

El Paso.

Jan. 4, 1996.

Francisco F. Macias, El Paso, for appellant.

Jaime E. Esparza, District Attorney, El Paso, for State.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

LARSEN, Justice.

A jury found the appellant, Danny Hernandez, guilty of murder and sentenced him to confinement for ninety-nine years. Hernandez appeals his conviction in five points of error complaining about the security measures undertaken during trial, media influence on jurors, the failure to instruct the jury on requested defenses, the denial of an additional peremptory strike, and the state's mention of extraneous offenses. We affirm.

FACTS

Around midnight on July 6, 1992, Danny Hernandez's house was the target of a drive-by shooting. In the house at that time were certain members of the Hernandez family and some friends. The appellant, Hernandez, was a couple of blocks away, but heard the shots and arrived home in time to see a white Monte Carlo leaving the area. Some of the occupants of the house said the shots came from a white Monte Carlo. Hernandez and six others jumped into an Oldsmobile owned by Hernandez and went looking for the Monte Carlo. Although it was denied, two of the occupants of the Monte Carlo, Andres Gonzalez and Luis Lopez, were purportedly members of the Cholito Posse Gang. The third occupant of the Monte Carlo, the victim, Juan Aguilar, was purportedly a member of the Barrio Campestre Locos Gang. Hernandez denied that he belonged to a gang at the time of the offense here, but admitted formerly belonging to the Cholito Posse. Other testimony indicated that Hernandez was currently a member of the Original Mobster Gang.

The occupants of the Oldsmobile eventually located a white Monte Carlo. A high speed chase ensued during which shots were exchanged between the vehicles. Ultimately, the Oldsmobile crashed into the rear of the Monte Carlo. Following the crash, all seven occupants of the Oldsmobile fled the scene. Lopez and Gonzalez hid in a near-by irrigation ditch until the emergency services vehicles arrived. Aguilar had been wounded and was still in the backseat of the Monte Carlo. Aguilar died on August 31, 1992 as a result of a gunshot wound to the head. Hernandez was charged with murder.

Public Trial

Hernandez first contends that the security measures undertaken for his trial were calculated to exclude a certain segment of the community and therefore violated his right to a public trial. Following the swearing of the jury but prior to opening statements, Hernandez objected that the sheriff's department was requiring trial spectators to be photographed prior to entering the courtroom. Hernandez complained that these security measures would be harmful to him when observed by the jury and would also have a chilling effect on the public's access to the courts.

In response, the trial court noted that because the case involved three local gangs, and because significant gang activity had occurred during the previous trial of Hernandez's codefendant, additional security was necessary. The trial judge explained that he asked the sheriff to provide security by whatever means the sheriff thought necessary to prevent similar activity from occurring during this trial. The court overruled Hernandez's objection and allowed the photo-taking to continue. The court required, however, that the photo-taking be conducted away from the windows to prevent being viewed by the jury. The court noted that the jury was unaware of the photo-taking security measures and observed that there was no apparent chilling effect on the public because the courtroom was filling with spectators.

Following his conviction, Hernandez moved for a new trial alleging, among other things, that his right to a public trial had been violated by the courtroom security measures. At the hearing on his motion, the trial court articulated its particularized reasons for requesting additional security. The court noted that it learned in talking to the jurors following the trial of the co-defendant that they were intimidated by the number of gangs involved in the case. The court itself had observed during the co-defendant's trial that the courtroom "was full of what appeared to be gang members" who stared at the jury during the proceedings. The court learned from the jury after trial that these gang member-types also followed the jury to the cafeteria and stared at them as they went through the food lines. In addition, the court relayed learning that the gang member-types were meeting the jurors as they came across the skywalk from the parking garage and "giving [the jurors] a pretty good stare and a mad-dog stare or something like that as they were coming across."

Evidence presented at the hearing showed that thirty-one individuals were photographed. Sheriff Leo Samaniego testified that a usual security measure for a gang-related trial would be to make a video-recording of those entering the courtroom. He indicated that the alternate use of still-photography would also be an appropriate security measure. The sheriff further testified that the primary purpose of taking the photographs was to have a record of those who were present should something untoward occur.

Not every person entering the courtroom was photographed. ¹ In particular, one witness testified that she was not photographed prior to entering the courtroom, but further stated that she had identified herself as an assistant public defender to the sheriff's deputies taking the photos (the public defender's office represented Hernandez at trial). Only one witness, a schoolmate of Hernandez, testified that she did not attend the trial because she did not want her picture taken by the sheriff's department. The other two witnesses who testified on the issue were deterred from attending the trial for reasons other than being photographed.

The barring of some members of the public from the courtroom does not necessarily mean that an accused has been denied a public trial; that determination is based on the particular circumstances of the case. Levine v. United States, 362 U.S. 610, 616-17, 80 S.Ct. 1038, 1042-43, 4 L.Ed.2d 989, 995 (1960). Hernandez urges the Court to apply a Batson-type analysis, arguing that the right to a public trial is both a right of the defendant and a right of the public to view and participate in the judicial process. ² While we do not disagree with this approach, nevertheless, we note that neither the right of an accused nor of the citizenry to a public trial is absolute. Addy v. State, 849 S.W.2d 425, 429 (Tex.App.--Houston [1st Dist.] 1993, no pet.). Whether the right to a public trial has been infringed is better determined by balancing the interests involved. See id. Reasonable limitations on public attendance may be imposed where they are necessary to protect a state interest that outweighs the defendant's right to public scrutiny. Mosby v. State, 703 S.W.2d 714, 716 (Tex.App.--Corpus Christi 1985, no pet.).

We find the security measures used during this trial did not violate Hernandez's right to a public trial here. Protecting the jury from intimidation that would traumatize them or render them unable to perform their duties as jurors is an overriding state interest sufficient to justify partial exclusion of the public from trial. See id. (holding appellant's right to public trial was not violated by court's outright exclusion of non-participants because of the extremely sensitive nature of the evidence being developed and youthful age of the witness); see also Addy, 849 S.W.2d at 429 (holding appellant's right to public trial was violated by outright exclusion of appellant's friends from courtroom; trial court removed appellant's friends under "exclusion of witnesses rule" after state inquired of them their names and then added those names to its witness list solely for purpose of excluding them; trial court failed to articulate compelling reason for exclusion and could not rely on "the Rule" under these circumstances). The trial court articulated on the record its concern that the jury be free from the intimidation experienced by the jurors in the co-defendant's trial. In addition, no member of the public was specifically excluded from attending the trial but simply had to submit to being photographed to gain entrance. Photographic recording is a common form of security in today's society; the public regularly submits to such measures in public buildings, banks, and convenience stores. Requiring that court spectators be photographed under these circumstances is not such an imposition on the public as to effectively close the trial. Moreover, because the record shows that at least thirty-one individuals attended the trial, these security measures do not appear to have had a chilling effect on public attendance. ³ Point of Error One is overruled.

Jurors Given Newspapers

In his second point of error, Hernandez contends he was denied his due process right to a fair trial because the trial court improperly supplied jurors with daily newspapers containing inflammatory articles regarding crime and thereby allowed the jurors to be influenced by the media. As an initial matter, Hernandez fails to offer any authority to support his position that he has been denied a constitutionally fair trial. Consequently, his argument fails to comport with Texas Rule of Appellate Procedure 74(f). This alone is sufficient to justify overruling his second point of error. Burks v. State, 876 S.W.2d 877, 910 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). In the interest of justice, we nevertheless address his argument.

Hernandez was tried from December 20 through December 23, 1993. The evidence adduced on this issue at the hearing on the motion for new trial shows that the court provided a copy of...