Hernandez, Fabian, 390 S.W.3d 310

Background

Appellant Fabian Hernandez was convicted in November 2009 of the 2006 capital murders of Renee Urbina Hernandez and Arturo Fonseca, and sentenced to death under Article 37.071.
The murders occurred after Hernandez and his wife had a volatile, on-and-off marriage; both drank heavily and the couple separated and reconciled multiple times.
Evidence showed a white two-door car connected to Fonseca, a latent fingerprint matching Hernandez on an envelope, and a .380 handgun and bullets found at Hernandez's father's home; shell casings at the scene matched the handgun.
Autopsies showed both victims died from gunshots to the head from a weapon fired from about 10–12 inches away, with alcohol in both victims' systems and no illegal drugs detected.
During jury selection, Hernandez challenged voir dire restrictions on mitigating-evidence questions and later challenged several jurors for cause; the defense exhausted peremptory challenges but one juror, Flores, sat on the jury.
The trial court admitted defense evidence on mitigation and excluded certain testimony about Hernandez’s victim’s drug use and sexual behavior under Rule 403, ultimately upholding the court’s evidentiary rulings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether voir dire restrictions on mitigating-evidence questions were improper	Hernandez contends the court improperly limited questioning on mitigating evidence.	State contends the questions were vague, improper commitment questions, and form restrictions were appropriate.	No abuse of discretion; points overruled.
Whether the trial court properly denied challenges for cause against several jurors	Hernandez argues erroneous denials of cause prevented fair juror selection.	State contends the jurors’ total voir dire supported cause challenges or permitted peremptory challenges, and no harmful error occurred.	No reversible error; points three through eight overruled.
Whether the trial court properly granted the State's for-cause challenges to Quinonez under Witherspoon	Hernandez argues Quinonez could still follow the law and consider evidence; the for-cause ruling was improper.	State argues Quinonez’s vacillating responses showed impairment, justifying cause removal.	No abuse of discretion; point nine overruled.
Whether the trial court properly granted the State's for-cause challenge to Chavira	Hernandez contends Chavira could keep an open mind, so removal for cause was improper.	State contends Chavira’s reluctance and uncertainty demonstrated impairment, justifying removal.	No abuse of discretion; point ten overruled.
Whether Hernandez could be required to undergo a LaGrone-style examination and limitations on the State's expert	Hernandez argues the State should be limited to the same scope as defense expert; failure violated rights.	State contends LaGrone examination is proper rebuttal and not subject to the defense expert's scope.	Rule preserved; appellate review unavailable absent submission to LaGrone examination; point eleven overruled.

Key Cases Cited

Witherspoon v. Illinois, 391 U.S. 510 (U.S. Supreme Court 1968) (conscientious objection to death penalty as non-for-cause basis)
Wainwright v. Witt, 469 U.S. 412 (U.S. Supreme Court 1985) (deference to trial judge on juror conscientious objection challenges)
Adams v. Texas, 448 U.S. 38 (U.S. Supreme Court 1980) (limits on voir dire and death-penalty qualification)
LaGrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) (LaGrone examination; State may examine defendant for rebuttal)
Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) (LaGrone-related remedy and appellate review constraints)
Howard v. State, 941 S.W.2d 102 (Tex. Crim. App. 1996) (abuse of discretion when trial court narrows voir dire form; need to rephrase)
Tennard v. Dretke, 542 U.S. 274 (U.S. Supreme Court 2004) (mitigating evidence must be considered; probative value vs. prejudice analysis)
Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009) (victim character evidence admissibility in punishment phase)
Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010) (Rule 403 balancing in punishment mitigation evidence)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (guidance on Rule 403 balancing factors)
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999) (emotional impact and prejudicial risk in verdict considerations)