Victor Hernandez v. State, 13-14-00457-CR

Background

Appellant Victor Hernandez was convicted of aggravated assault with a deadly weapon; the jury assessed punishment at 50 years (range 5–99 or life after affirmative finding).
On appeal Hernandez raised 51 points of error challenging (a) denial of multiple challenges for cause to veniremembers who initially said they could not consider the minimum/ probation, (b) the seating of allegedly unqualified jurors and re‑qualification of panelists, (c) denial of mistrial for prosecutor argument, (d) prosecutor comment on appellant’s post‑arrest silence, (e) victim‑impact testimony by the victim’s father, and (f) admission of hearsay statements from appellant’s mother under Rule 803(24).
The State’s brief responds to each issue, arguing (inter alia) that many jurors were rehabilitated on further questioning, the trial judge’s credibility calls control, curative instructions were given and effective, victim‑impact testimony was relevant to sentencing, and the hearsay was admissible or duplicated by appellant’s own testimony.
Key procedural posture: State filed appellee brief in 13th Court of Appeals (Corpus Christi–Edinburg); issues focus on trial judge’s discretionary rulings during voir dire, evidentiary rulings, and denial of mistrial motions.
The State asks the appellate court to overrule all 51 points and affirm conviction and sentence.

Issues

Issue	Hernandez's Argument	State's Argument	Held
1–18: Denial of challenges for cause for jurors who initially said they could not consider minimum/punishment	Jurors who said they could not consider probation/minimum were biased as a matter of law and must be struck under art. 35.16(c)(2)	Many jurors were rehabilitated on further questioning and clarified they could consider the full range; trial court credibility call controls	Denial proper; appellate court must defer where jurors vacillate and were clarified — points overruled
19–26: Sixth Amendment impartial jury claim (eight allegedly unqualified jurors seated)	Seating those jurors deprived Hernandez of an impartial jury under the Sixth Amendment	No showing the seated jurors were actually biased; constitutional right not violated absent proof jurors could not follow oath/instructions	No Sixth Amendment violation shown; points overruled
27–44: Re‑qualification/rehabilitation of 18 panel members	Once biased as a matter of law, jurors cannot be rehabilitated and must be excused	Initial answers reflected discomfort with the law, not personal bias; trial court properly re‑examined and allowed clarification per controlling precedent	Rehabilitation permitted; trial court discretion not abused — points overruled
45–46: Denial of mistrial for prosecutor’s closing argument asking jury to "send a message"	Argument was inflammatory and required mistrial	Argument was a permissible plea for law enforcement; court sustained objection and gave prompt curative instruction which cured any prejudice	Denial of mistrial not an abuse; instruction cured prejudice
47–48: Denial of mistrial for comment on appellant’s post‑arrest silence	Prosecutor’s question impermissibly referenced post‑arrest silence (Doyle) and required mistrial	State concedes improper question occurred but argues the court sustained the objection, instructed the jury to disregard, the comment was not repeated, and the instruction cured prejudice given uncontradicted guilt and punishment phase focus	Instruction cured prejudice under factors (nature, persistence, flagrancy, instruction, weight of evidence, sentence severity); motion denied upheld
49–50: Admission of victim’s father testimony as victim‑impact evidence	Testimony was irrelevant and amounted to improper victim‑impact statements in non‑capital case	Testimony about foreseeable effects on victim’s family was relevant to sentencing and bore on defendant’s personal responsibility and moral guilt	Admission proper as relevant victim‑impact evidence; points overruled
51: Admission of hearsay (statements by appellant’s mother re: assisting his post‑offense evasion) under Rule 803(24)	Statements were not sufficiently corroborated and should have been excluded	Declarations were blame‑sharing/self‑inculpatory, corroborated by appellant’s own testimony; alternatively, any error was harmless or invited because substantially the same evidence came in through appellant	Trial court acted within its discretion; alternatively appellant failed to preserve error — point overruled

Key Cases Cited

Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988) (juror biased as matter of law if unequivocally cannot consider a sentencing alternative)
Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010) (venireman who says he cannot follow the law may be examined further to ensure understanding)
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) (deference to trial court where venireman vacillates or equivocates)
Anderson v. State, 633 S.W.2d 851 (Tex. Crim. App. 1982) (bias established as matter of law when prospective juror admits bias for/against defendant)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (prosecutor may not use post‑arrest, post‑Miranda silence to impeach defendant)
Wainwright v. Witt, 469 U.S. 412 (U.S. 1985) (test for juror disqualification under Sixth Amendment)
Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988) (curative instruction to disregard can cure improper question about silence)
Walter v. State, 267 S.W.3d 883 (Tex. Crim. App. 2008) (framework for statements‑against‑interest hearsay exception analysis)
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (abuse‑of‑discretion review of hearsay admissibility)