Hernandez v. State, 2012 Tex. Crim. App. LEXIS 1601

Appellant Fabian Hernandez was convicted by a 2009 jury of the 2006 capital murders of Renee Urbina Hernandez and Arturo Fonseca, with a death sentence under Tex. Code Crim. Proc. Art. 37.071.
Appellant and Hernandez were married with two children, had a turbulent relationship, and drank heavily.
On November 2–3, 2006, appellant interacted with a friend, left a bar reportedly distressed, and a white two-door car was seen leaving the area.
Forensic evidence linked appellant to the crime: a latent fingerprint on an envelope matched his left thumb, and a .380 handgun and bullets found at his father’s home matched shell casings at the scene.
Autopsies showed two gunshot wounds to the head from approximately 10–12 inches away, with both victims having alcohol in their systems and no illegal drugs detected.
Jury selection involved defense attempts to question jurors about mitigating evidence; the court limited certain questions on form rather than substance; several challenges for cause and peremptory strikes were litigated; ultimate rulings upheld the trial court’s decisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Limitation on voir dire about mitigating evidence	Hernandez argues the court restricted proper mitigation inquiry.	State contends restrictions were proper form, not substance.	No abuse of discretion; overruled.
Exhaustion of peremptory challenges and harm	Defense contends 14 jurors were unsuccessfully challenged for cause, exhausting strikes.	Defense used strikes on most but one identified juror; no identified harm.	No harm shown; overruled.
Grant of challenges for cause to Witt/Witherspoon-type jurors	Challenged jurors’ views would prevent fair consideration of death penalty.	Trial court appropriately evaluated demeanor and total voir dire.	Trial court did not abuse discretion; points nine and ten overruled.
LaGrone examination and Fifth Amendment rights	State’s LaGrone examination impedes defense by allowing rebuttal evidence.	Court should limit to same areas as defense expert; use of results could prejudice; self-incrimination concerns.	Review improper absent defense submission; overruled.
Admissibility of victim’s drug use and sexual behavior as mitigation	Evidence relevant to circumstantial circumstances and appellant’s moral culpability.	Evidence unfairly prejudicial and not highly probative; Rule 403 should bar.	Court did not err; evidence excluded; overruled.

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) (voir dire abuse-of-discretion standard; limits on questions)
Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) (commitment questions; proper scope of voir dire)
Howard v. State, 941 S.W.2d 102 (Tex. Crim. App. 1996) (form of question; if substance preserved, no abuse)
Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998) (mitigation evidence; proper inquiry not restricted to type)
Witherspoon v. Illinois, 391 U.S. 510 () (death-penalty juror’s conscientious views; deference to trial court)
Wainwright v. Witt, 469 U.S. 412 () (Witherspoon line of cases; defer to trial court on juror suitability)
Smith v. State, 297 S.W.3d 260 (Tex. Crim. App. 2009) (deference to trial court on juror issues; totality of voir dire)
Tennard v. Dretke, 542 U.S. 274 () (mitigation evidence; probative value balanced against prejudice)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (Rule 403 balancing factors for evidence)
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; probative value vs prejudice)