Case Information
*1 Abel Acosta, Clerk CASYLof Criminal Refents RO, Bect 12302 ALVYING TEXAS 78711-2302 CAT , 2015
RECEIVED IN COURT OF CRIMINAL APPEALS OCT 262015
Res Abeilbo Herawder V. The state abelAcosta, Clerk, 11.Ct.nD, 14-04-27866-A; COA Case nD, 13-14-00465-02
Dear Clerk: Please find enclosed Retittinters Retittors for Discertionary Review is being filed, with your office. Please notify me of the film as, if have forlind a cost of this Rittion with state Prosecutionk Mroasel of record.
CC Lisa C Meminw State Prosecutionk Mrenew
Truiv Retittanter 670 se Abelino Hemandez nD, 1854218 Beto one 1391 f.m. 3322 Tembesse Colon 17 TEXAS FILED IN COURT OF CRIMINAL APPEALS OCT 29233
Abel Acosta, Clerk
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IDENTITY OF PARTIES
AbEliso Henawder, Ratiilan Prose Bets on le Tennessee cosiont, thes 3330 Jack wimarr, urdse Presidins Cawthase. 115 n . Grasset st 3nd FI Victoria tefias 7981 Christofher Jonsk, reResented at trial Ritomies at Law II resacly new, Drive. 3an Andonub, tefias 79248. w, g. (Bill) white, reResenting on Afteal Ritomies at Law 603007792 Uritona tefias 7903 Edward wilkinsons 808 Victoria Cay Oistrid Ritomies's office 205 n , grigate st, suite 301. Uictoria, tefias 7790 Water Grief Fied by wiknau canes.
*3 Table of Contents Icentity of Parties Table of Contents Index of Authorities Statement regarding con Amount Statement of the Case Statement of Vocational History Grounds for felices Argument Prafer for relief Affundit Certificate of service
| i | | :-- | | ii | | iii | | iv | | iv | | iv | | I | | 1 | | 4 | | 4 | | 4 |
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Inded of Altherities
E. RalD V, stide. 144 xw2d487,489 (Adcrim AABD2D) 3 ROBers U stide 991 suad2d3,2d6 (Adcrim AB2 1992) 3
*5 Statement of Oral Attainment Petitioner has wailed oral arsarnent statement of the case Petitioner was indited by the Wietord Co. Grand JUY on 17th 2014 for a spraised Robbert. On August 11, 2014. JUY selection be sav, with trial on the merits besinwhes August 12, 2014, Petitioner Pled "not 3w/14y". Petitioner's JUY consulted him of ASSraised Tobbert on August 13, 2014, and Enwishment Trial before the bench then commenced immediately. Petitioner Pled 'true' to the 110th Fancy enhancement Parastaths alleged in the state's nubtice of interest, After testifVihis of Enwishment Trial, and after admitting 3w/14 for a spraised Tobbert, the court assessed Anwishment and sentenced Petitioner to 30 years in Prison. Ples Court Court: The state orientedly, alleged assraised, robbers in its in ditionent under two theories, by use of a deadly weapon and for, victimizihis an elderly hidividical. Before the trial court submitted its Charte to the JUY, the state abandoned, its deadly weapon allegation, felvins on the elderly states of the Complainins withles to make the offense aspraised.
Statement of Procedural History On march 3, 2015, Petitioners brief was submitted. the Court of Kefira issued its offinions July 23rd, 2015. Affirming his Kefira, no mention for Rehearnb was eater filed. This Petitioner or discretionary is timely.
*6 (ARLUDI.5. P.123, Lines 4-6), The Prosecutor followed with, "so its ndst last Criminals, it's all of us that work for the state of, have backaround Chacks. You will go into MfIs." (ARLUDI.5. P.123, Lines 10-13), Jedicka answered "Yes." Defese counsel objected to these Questions, (ARL UDI.5. P.123, Lines 17-26). The Trial court noted this objections, Cith. 3 on the record, made U. State, 2057 WL 822438 SLA 590139. This "NDtin' of defense Camse's objections must have been, in effect, an aernulism because the court ailloued the state to conntinue its testimons. Interest in 844 the state's testimons immediately established that none of the Finsermints Located at the robbery's scene (a Convenience store) matched Retitioners Finsermints in Mfis, (ARLUDI.5. P.124-125), all the Finsermint testimons. ITUly achieved for the state was the fact that Retitioner's Finsermints were already in the Mfis database before trial, when the Lobbery was inltiary inwestisated. It established that Retitioner was already a "Criminal", and that he had Freujassly been "bosted in 10 ans' soil facility" before the Charsed offense. It lives a clear hinct, telesnapped plainly to Retitioners JUY, that he already had a Criminal record or Results consracts (i.e., arrests) with law enforcement. In shorts it was merely a "smear" of Retitioner, without real probable value. The state may counter that, since testimony, further explained that state employees and others who have, underpone backstand Chacks are also in MfIs, there is no clear reference abpeciates to Retitioner as a "Criminal": Coserotless. This testimony harmed and Presubiced Retitioner. It is unlikely that any JUY would be the
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In the Court of Criminal Attleals no. AbElind Hernandez, Rethinder The state of Redas, Rasandani Retishanders Retishan for Discretionary nawieu, To the Honourable States of said Court: Conas now Retishander. AbElino Hernandez, Prose, bringsthe his Retishan for Discretionary reliew, and presents:
Grounds for review
The trial Court tried by allawth to the state to present Unlecessary and unsailly, Prejudicial FinsperPrint Testimony the Collif Innocence Phase
II
A nSument in the case Qurth the Quilt Innocence Phase, the sate Presented destimony Througk of Ticar Holly Jedicka of the Victoria Police Department about Fincer Print evidence. (A n Ubi, s. P.122, Line 14 - P.123. 13) of Ticar Jedicka mentioned Afts. a 08 dadabase named Asismated FinsperPrint in formation system. (A n Ubi, s, P. 122 Line 24 Thrasb P. 123-8) Jedicka stated in reference to Afts, "Once toure beaded into Any Jail facility vay Prints automatically so in there for comforison."
*8 a defendant accused of inability a conmonience store with a knife is a former state em that his background was once checked so he could coach his son's Little Leastre team. Unfair Prejudice ", refers to the under-tendency of evidence to suggest a decision on on imbroer basis. See Rogers, V. state, 991 (exy 2d 265, 266 Ctes. Crim, 1999 1999). When makin to this determination, the Consider the following factors: (1) the Protective Value of the evidence; (2) the Potential to illness the 9URY in some irrational. Yet in delible way; (3) the time needed to devel of the evidence; and (4) the Proponents need for the evidence, Eraz U. state, 144 (exy 2d 487, 489 Ctes. Crim, 1999, 2001). If the Court ARDY ErazD, the Protective value of Finser Prints which fail to identify the of Pace him at the crime scene, or to even conduct him with the crime in Any other way, was zero to nurse, and presi edictal in nature. The Potential of this evidence to offers afterlance/attititual, in delible way was tremendous, Prosecy tions, known that Any indication that a defendant is already a "Criminal" or referent of Trial Carries undesirable weight with surges, The time needed to devel of this evidence prepares, on the Cold record, to have been relatively brief. most irrelevantly, the Proponents need for introductions as a last error, and why finder Ainds are "not, but, the state for any reason necessary to cover all bases and show that Retititual's Finser Prints were the Knite Used in this Crime or from the crime scene itself, it could have asked AND
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Police wintness with Recensal Knauflerger, "were the defendants Finser Arists found to the crime scene ?", or, "Lere they found on the Knife ?" with these simpte transitions the state could have introduced its FinserArist evidence while still avoidings Ansy Potential for unfair Prejudice against Adirioner.
Rater
Retitioner Fesfecthly Tra's that this Retitioner Discretionary review is Gransted ans that the conviction is reversed and remand fern new trial or new Anishment heathes.
Certificate of service Is Abellino Harnandeer 194219. Certify that a Tule and, correct copy of the foresinks has been serled This 20 davofecther 2015 address 18: Abel Acosta. Clerk Cayrtof Criminal Afifab RQ 602112308 Alistio, Tebas 72711-2308 Lisa C. Mennon State Asserution Athemly RQ. 600213046 Alistio Tebas 72711-2046
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NUMBER 13-14-00465-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ABELINO HERNANDEZ,
Appellant, v.
THE STATE OF TEXAS,
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Abelino Hernandez, guilty of the offense of aggravated robbery, a first degree felony, and sentenced him to thirty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. See Tex. Penal Code Ann. § 29.03(a)(3)(A) (West, Westlaw through Ch. 462015 R.S.). By one issue, Hernandez contends that the trial court erred in failing to
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exclude evidence that he claims was unfairly prejudicial under Texas Rule of Evidence 403. We affirm.
I.
BACKGROUND
On March 2, 2013, shortly after midnight, a man armed with a knife entered a convenience store demanding that the cashier open the cash register. The man concealed his identity by pulling his shirt over his head. When the cashier was not able to open the cash register, the man attempted to pry it open with his knife but cut himself in the process, leaving his blood-stained knife at the crime scene before absconding. Through a subsequent investigation, the police determined that the blood found at the crime scene belonged to Hernandez. The State then charged him with aggravated robbery.
At trial, the State called Holly Jedlicka, a crime scene supervisor, who testified about her attempt to identify the perpetrator of the crime through fingerprint evidence. Jedlicka testified that the police collected fingerprints at the crime scene and compared them to fingerprints stored in a database called the Automated Fingerprint Identification System (AFIS). Jedlicka further testified that the AFIS database stores the fingerprints of state employees and arrestees from "any jail facility." Hernandez objected to this testimony. The trial court overruled Hernandez's objection. After the trial court overruled Hernandez's objection, Jedlicka testified that the fingerprints collected at the crime scene did not match any of the fingerprints stored in the AFIS database.
II. Discussion
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A. Rule 403
By his sole issue, Hernandez contends that the trial court erred in admitting Jedlicka's testimony concerning the AFIS database under Texas Rule of Evidence 403. Specifically, Hernandez asserts that the probative value of Jedlicka's testimony was substantially outweighed by the danger of unfair prejudice because it conveyed to the jury that he had been previously arrested. However, the entirety of Hernandez's trial objection to Jedlicka's testimony was as follows: "Your Honor, I object that we have crossed the line into the jury thinking the [finger]prints that exist—." Although the trial court overruled this objection, Hernandez never referenced rule 403 or elaborated on the basis for his objection.
In order for a complaint to be preserved for review on appeal, the complaining party must make the specific objection at trial and obtain a ruling on it. See Tex. R. APP. 33.1(a)(1)-(2); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Hernandez failed to preserve his rule 403 complaint because he did not object on that ground. See Tex. R. APP. 33.1(a)(1); see also Goodwin v. State, No. 13-12-00035-CR, 2012 WL 3590723, at *1 (Tex. App.—Corpus Christi Aug. 20, 2012, no pet.) (mem. op., not designated for publication) (providing that a rule 403 objection must be made at trial in order to raise such a complaint on appeal).
Even had Hernandez preserved his rule 403 complaint for appeal, the trial court's ruling was proper. We apply an abuse of discretion standard to determine whether a trial court erred in admitting evidence under rule 403. Trevino v. State, 228 S.W.3d 729, 734 (Tex. App.—Corpus Christi 2006, pet. ref'd). A trial court does not abuse its discretion unless "its decision is so clearly wrong as to lie
*13 outside that zone within which reasonable persons might disagree." Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)). Texas Rule of Evidence 403 gives the trial court discretion to exclude "relevant evidence if its probative value is substantially outweighed by a danger of. . . unfair prejudice[.]" See Tex. R. Evid. 403. When making this determination, we consider the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). We now turn to a consideration of these factors.
Here, Jedlicka's testimony about the AFIS database was not particularly probative; it only showed that the AFIS database stored the fingerprints of arrestees and state employees, and that the person who left the fingerprints at the crime scene could not be identified through that database. Because this evidence did not implicate Hernandez or rule him out as a suspect, it was not necessary to show a fact of any consequence in proving that Hernandez committed the charged offense. Although not particularly probative, the parties agree that the time needed to develop this evidence was minimal. Nevertheless, Hernandez argues that this evidence carried a great potential to impress the jury in an irrational, yet indelible way because it conveyed that he had been previously arrested. However, the record does not support Hernandez's argument. Jedlicka never testified that Hernandez had been previously arrested; nor did she testify that Hernandez's fingerprint profile was stored in the AFIS database. Instead, she testified that the
*14 fingerprints collected at the crime scene were run through the AFIS database for a match and that no match was found. [2] Read in context, this evidence indicated to the jury that whoever left the fingerprints at the crime scene had no arrest history.
Notwithstanding this view of the record, Hernandez appears to argue that the mere use of the AFIS database to identify the perpetrator suggested to the jury that Hernandez's profile was already in the database, and that the power of this suggestion carried the potential to impress the jury in some irrational way. However, we agree with the State that, if the use of the AFIS database suggested a preexisting profile attributable to Hernandez, its potential to impress the jury in some irrational way was greatly weakened by the fact that the database also stored the fingerprints of state employees. See Montgomery, 810 S.W.2d at 391; Mata v. State, No. 05-05-00504-CR, 2007 WL 882439, at *6 (Tex. App.—Dallas Mar. 26, 2007, pet. ref'd) (mem. op., not designated for publication) (concluding that testimony about the presence of appellant's DNA profile on a database that stored the DNA profiles of both government employees and criminals did not carry the potential to impress the jury in an irrational manner).
Weighing the Erazo factors, we cannot conclude that the trial court's decision to admit the evidence under rule 403 was "so clearly wrong as to lie outside that zone within which reasonable persons might disagree." See Trevino,
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228 S.W.3d at 734 (citing Montgomery, 810 S.W.2d at 391); Erazo, 144 S.W.3d at 489; see also TEX. R. EVID. 403.
B. Harm Analysis
Even if we were to assume that Jedlicka's testimony improperly suggested Hernandez's arrest history to the jury and that the trial court erred in admitting that evidence, the error was harmless. The erroneous admission of evidence under rule 403 is non-constitutional error. See Ketchum v. State, 199 S.W. 3d 581, 593 (Tex. App.—Corpus Christi 2006, pet. ref'd). In reviewing the impact of nonconstitutional error, we may not grant Hernandez a new trial if, after examining the record as a whole, we are fairly assured that the error did not have "a substantial and injurious effect or influence in determining the jury's verdict." See Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). In making this determination, we may consider "any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, [and] the character of the alleged error and how it might be considered in connection with other evidence in the case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We may also consider closing arguments, evidence of the defendant's guilt, and the jury instructions. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002); Morales, 32 S.W.3d at 867.
First, concerning the evidence of guilt, Hernandez's identity as the robber was established by the DNA evidence that he left behind at the crime scene. The cashier testified at trial that the robber accidentally cut himself with his knife before he absconded, leaving his blood-stained knife at the crime scene. A forensic
*16 scientist then tested the blood on the robber's knife and determined that it belonged to Hernandez. See Motilla, 78 S.W.3d at 357.
Second, concerning the nature of the error itself, we observe that Jedlicka's description of the AFIS database was brief, general, and non-inflammatory in the sense that the jury heard no details concerning any arrest-or whether it resulted in conviction, acquittal, or dismissal-beyond the mere fact that the databased stored the fingerprints of arrestees. See id. at 355. Furthermore, as previously noted, the database also contained the fingerprints of non-arrestees, including state employees; thus, Hernandez's jury was free to believe that, if his fingerprints were in the AFIS database, it was because he had been employed by the state rather than arrested.
Third, the trial court's charge instructed the jury that "[a]ll persons are presumed to be innocent," thereby eliminating any potential that the alleged suggestion of Hernandez's prior arrest history influenced the jury's verdict. See id. Finally, during closing argument, the State made no mention of the AFIS database and did not emphasize the alleged error. See id. After reviewing the record as a whole, we are fairly assured that the error, if any, did not have a substantial and injurious effect or influence in determining the jury's verdict. See West v. State, 169 S.W.3d 275, 281 (Tex. App.—Fort Worth 2005, pet. ref'd) (holding that the trial court's error in permitting the State to ask the defendant whether he had been arrested "more than twenty times" did not have a substantial or injurious effect on the jury's verdict when (1) the evidence of defendant's guilt was substantial, (2) the State asked only one question concerning his arrests and did not dwell on the
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issue, (3) the court's charge instructed the jury to presume his innocence, and (4) the State's closing argument told the jury about two prior convictions but did not address any other prior arrests); see also Casey, 215 S.W.3d at 885. We therefore overrule Hernandez's sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
Is/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish. Tex. R. APP. P. 47.2(b). Delivered and filed the 23rd day of July, 2015.
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NOTES
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. APP. P. 47.4.
Specifically, Jedlicka testified as follows: Q: Okay. Mrs. Jedlicka, when the fingerprints collected in this case were run through AFIS, were there any matches? A. It—no. There was not any match at all.