416 S.W.3d 522
Tex. App.2013Background
- Defendant Michael Hernandez Jr. was convicted by a jury of murder for striking Roland Lopez in the head with a baseball bat; punishment 50 years' confinement after court found an enhancement true.
- Witness Samantha Barrera testified Hernandez and his brother Juan Rodriguez hit Lopez with bats; Hernandez allegedly struck Lopez two additional times while Lopez was on the ground.
- After the State and defense rested but before the charge was read, a juror reported she could not be fair due to personal connections to Hernandez’s family; the trial court found the juror disabled and discharged her.
- Hernandez agreed at trial to the juror’s discharge but then moved for a mistrial because only eleven jurors remained; the trial court denied the motion and the jury convicted with eleven jurors.
- Hernandez requested a jury instruction on the lesser included offense of aggravated assault; the trial court refused and Hernandez raised this on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror discharge (disabled) | Hernandez contended the juror was not disabled and discharge was error | Trial court found juror disabled; Hernandez agreed to discharge at trial | Overruled — Hernandez estopped from complaining after consenting to discharge (may not (re)challenge) |
| Denial of mistrial after juror dismissal | Hernandez argued mistrial required because jury had 11 members | State: Art. 36.29(a) compels trial to continue with 11 jurors when juror dies/is disabled; mistrial not required | Overruled — trial court properly denied mistrial; statute compelled proceeding with 11 jurors and less drastic alternative existed |
| Refusal to charge aggravated assault as lesser-included | Hernandez claimed some evidence supported conviction for aggravated assault only | State conceded legal inclusion but argued record lacked any evidence satisfying second-prong (some evidence) | Overruled — court found no evidence in record that would permit rational jury to convict only of aggravated assault |
Key Cases Cited
- Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) (defendant estopped from complaining about action to which he consented)
- Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002) (mistrial standards; manifest necessity and inferior alternatives)
- Carrillo v. State, 597 S.W.2d 769 (Tex. Crim. App. 1980) (distinguishable precedent where defendant objected to juror discharge and juror was not disabled)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-pronged test for lesser-included offense: legal inclusion and some-evidence requirement)
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) (framework for lesser-included offense charge analysis)
- Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) (lesser-included analysis principles)
- Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005) (some evidence standard for lesser-included offenses)
- Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) (evaluate lesser-included evidence in context of entire record)
- Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (charging instrument governs legal inclusion of lesser offense)