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CAUSE 13-14-00465-CR

IN THE THRITEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT 

CORPUS CHRISTI, TEXAS

ABELINO HERNANDEZ, APPELLANT

VS.

THE STATE OF TEXAS

APPELLANT’S BRIEF

Trial Cause 14-04-27866-A; Victoria Co. District Court

Submitted by

W. A. (BILL) WHITE

Attorney for Appellant

POB 7422, Victoria, TX 77903

(361) 575-1774 voice & fax

TBN 00788659

NO ORAL ARGUMENT REQUESTED

ACCEPTED

13-14-00465-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

3/3/2015 2:12:03 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/3/2015 2:12:03 PM DORIAN E. RAMIREZ Clerk
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IDENTITY OF PARTIES

The parties are appellant, Abelino Hernandez, and 

the State. Appellant was a resident of Victoria County

during his trial.

Appellant was represented at trial by Christopher 

Janak, Attorney at Law, 11 Regency Row Drive, San 

Antonio, Texas 78248. Appellant is represented on 

appeal by W. A. (Bill) White, Attorney at Law, POB 

7422, Victoria, Texas 77903.

The State was represented at trial by Edward 

Wilkinson, ADA, Victoria Co. District Attorney’s 

Office, 205 N. Bridge St., Suite 301, Victoria, Texas 

77901.

Appellant’s counsel anticipates that the State’s 

reply brief will be prepared and filed by Brendan Guy, 

ADA, Victoria Co. District Attorney’s Office, 205 N. 

Bridge St., Suite 301, Victoria, Texas 77901 or another 

attorney at said office’s designation.
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TABLE OF CONTENTS

Page

Index of Authorities 4

Appellant’s Brief 5

Statement of the Case 5

Point of Error 6

Prayer 11

Certificate of Service 11

Certificate of Compliance 12
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INDEX OF AUTHORITIES

Cases Page

Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004) 9

Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1991) 9

Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App. 1999) 9
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CAUSE 13-14-00465-CR

Trial Cause 14-04-27866-A

ABELINO HERNANDEZ, Appellant IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW APPELLANT, ABELINO HERNANDEZ, through

counsel of record, W. A. (BILL) WHITE, Attorney at Law, 

presenting:

STATEMENT OF THE CASE

Appellant was indicted by the Victoria Co. grand 

jury in April 2014 for aggravated robbery. On 8/11/14, 

jury selection began, with trial on the merits 

beginning on 8/12/14. Appellant pled “not guilty”. 

Appellant’s jury convicted him of aggravated robbery on 

8/13/14, and punishment trial before the bench then

commenced immediately. Appellant pled “true” to two 

felony enhancement paragraphs alleged in the State’s 

notice of intent. After testifying at his punishment 
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trial, and after admitting his guilt for aggravated 

robbery, the court assessed punishment and sentenced 

appellant to 30 years in prison, plus court costs. 

The State originally alleged aggravated robbery in 

its indictment under two theories, by use of a deadly 

weapon and for victimizing an elderly individual. 

Before the trial court submitted its charge to the 

jury, the State abandoned its deadly weapon allegation, 

relying on the elderly status of the complaining 

witness to make the offense aggravated.

Appellant timely filed notice of appeal.

POINT OF ERROR

THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PRESENT 

UNNECESSARY AND UNFAIRLY PREJUDICIAL FINGERPRINT 

TESTIMONY DURING THE GUILT/INNOCENCE PHASE

During the guilt/innocence phase, the State 

presented testimony through Officer Holly Jedlicka of 

the Victoria Police Department about fingerprint 

evidence. (RR Vol. 5, p. 122, line 14 through p. 123, 

line 13). Officer Jedlicka mentioned AFIS, a DPS 
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database named Automated Fingerprint Information 

System. (RR Vol. 5, p. 122, line 24 through p. 123, 

line 13). Jedlicka stated in reference to AFIS, “Once 

you’re booked into any jail facility your prints 

automatically go in there for comparison.” (RR Vol. 5, 

p. 123, lines 4-6)(italics added).

The prosecutor followed with, “So it’s not just

criminals. It’s all of us that work for the State or 

have background checks run will go into AFIS?” (RR Vol. 

5, p. 123, lines 10-13)(italics added). Jedlicka 

answered, “Yes.”

Defense counsel objected to these questions. (RR 

Vol. 5, p. 123, lines 17-25). The trial court noted 

this objection, citing on the record Mata v. State,

2007 WL 882439 sua sponte. This “noting” of defense 

counsel’s objection must have been, in effect, an 

overruling, because the court allowed the State to 

continue its testimony. Interestingly, the State’s 

testimony immediately established that none of the 

fingerprints located at the robbery’s scene (a 
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convenience store) matched appellant’s fingerprints in 

AFIS. (RR Vol. 5, pp. 124-125).

All the fingerprint testimony truly achieved for 

the State was the fact that appellant’s fingerprints 

were already in the AFIS database before trial, when 

the robbery was initially investigated. It established 

that appellant was already a “criminal”, and that he 

had previously been “booked into any jail facility” 

before the charged offense. It was a clear hint,

telegraphed plainly to appellant’s jury, that he 

already had a criminal record or previous contacts 

(i.e., arrests) with law enforcement. In short, it was 

merely a “smear” of appellant, without real probative

value.

The State may counter that, since testimony further

explained that State employees and others who have 

undergone background checks are also in AFIS, there is 

no clear reference to appellant as a “criminal”.

Regardless, this testimony harmed appellant. It is 

unlikely that any jury would believe a defendant 
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accused of robbing a convenience store with a knife is 

a former State employee, or that his background was 

once checked so he could coach his son’s Little League 

team.

Unfair prejudice ... refers to the undue tendency of 

evidence to suggest a decision on an improper basis. 

See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App. 

1999). When reviewing the trial court’s decision, we 

are to reverse the trial court’s judgment “rarely and 

only after a clear abuse of discretion.” Mozon v. 

State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1991). 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).

Applying Erazo, the probative value of fingerprints 

which fail to identify the defendant or place him at 
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the crime scene, or to connect him with the crime in 

some other way, was zero. The potential of this 

evidence to impress appellant’s jury in an irrational, 

indelible way was tremendous. Prosecutors know that 

any implication that a defendant is already a 

“criminal” or repeat offender at trial carries 

undeniable weight with juries. The time needed to 

develop this evidence appears, on the cold record, to 

have been relatively brief.

Most importantly, the proponent’s need for 

introducing testimony about AFIS, and why fingerprints 

are in it, was also zero. If the State for any reason 

felt at trial that it was necessary to cover all bases 

and show that appellant’s fingerprints were absent from 

the knife used in this crime or from the crime scene 

itself, it could have asked any police witness with 

personal knowledge, “Were the defendant’s fingerprints 

found at the crime scene?”, or, “Were they found on the 

knife?” With these simple questions, the State could 

have introduced its fingerprint evidence while still 
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avoiding any potential for unfair prejudice against 

appellant. 

PRAYER

Appellant prays that conviction be reversed and 

that this cause be remanded for new trial.

Respectfully submitted,

/s/ W. A. White

W. A. (BILL) WHITE

ATTORNEY FOR APPELLANT

POB 7422, Vict., TX 77903

(361) 575-1774 voice/fax

TBN 00788659

CERTIFICATE OF SERVICE

I certify that a true and correct copy or duplicate 

original of the foregoing has been provided to Brendan 

Guy, ADA, Victoria Co. District Attorney’s Office, 205 

N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail, 

facsimile, electronic delivery, or hand-delivery on 

this the 3rd day of March, 2015.

/s/ W. A. White

W. A. White
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CERTIFICATE OF COMPLIANCE

I certify that this brief contains 1,268 words.

/s/ W. A. White

W. A. White