1 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 APPEALS CORPUS CHRISTI, TEXAS 3/3/2015 2:12:03 PM DORIAN RAMIREZ

CLERK2 IDENTITY OF PARTIES
The part ies are appellant, Abelino Hernandez, and the State . Ap pellan t 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 tria l b y 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 pr epared and filed by Brendan Guy, ADA, Victoria Co. District Attorney’s Office , 205 N. Bridge St., S uite 301, Victoria, Texas 77901 or another attorney at said office’s designation.3 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 124 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. 199 1 ) 9

Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App. 1999) 95 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 A PPELLANT, ABELINO HERNANDEZ , through

counsel of record , W. A. (BILL) WHITE, Attorn ey 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 b efore 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 punishment6

trial, and after admitting his guilt for aggravated
robbery , the court assessed punishment and sentenced
appellant to 30 years in prison, plus court costs.

T he State originally alleged aggravated robbery in

its indictment under two theories, by use of a deadly

weapon an d 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 f iled notice of appeal.

POINT OF ERROR

THE TRIAL COURT ERRED BY ALLOWING THE STATE T O 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 Victo ria Police Department about fingerprint

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

line 13 ). Officer Jedlicka mentioned AFIS, a DPS7

datab ase 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 follow ed 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, “Ye s.”

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 al lowed the State to

continue its testimony. Interestingly, the State’s
testimony immediately established that none of the
fingerp rints located at the robbery ’s scene (a8

convenience store) matched appellant’s finge rprints in
AFIS. (RR Vol. 5, pp. 124

- 125).

A ll the fingerprint testimony truly achieved for
the State was the fact that appellant’s fingerprints
were already in th e AFIS database befo re trial, when
the robbery was initially investigated. I t established

t hat appellant was already a “criminal”, and that he
had previously been “booked into any ja il facility”
before the charged offense . It was a clear hint , telegraphed plainly to appellant’s jury , that he

al ready had a criminal record or previous contacts

(i .e., arrests) with law enforcement. In short, it was
merely a “smear” of app ellant, without real probative

value.
The State may counter that, since testimony further
explain ed 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 defendant9

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 imprope r 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.C rim.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) t he proponent’s need for the

evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.
Crim.App. 2004).
Applying Erazo, the probative va lue of fingerprints

which fail to identify the defendant or place him at10

the crime scene , or to connect him wi th the crime in
some other way , wa s zero. The potential of this

evidence to impress appellant’s jury in an irrational,
indelible way wa s 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 be en relatively brief.
Most importantly, the proponent’s need for
introducing testimony about AFIS, and wh y 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, i t 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 still11

avoiding any potential for unfair prejudice aga inst
appellant.

PRAYER

Ap pellant 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 , o r hand

- delivery on

this the 3 rd day of March , 2015

. /s/ W. A. White W. A. White12 CERTIFICATE OF COMPLIANCE

I certif y that this brief contains 1,2 68 words. /s/ W. A. White W. A. White