Oral argument requested

PD-____-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

_________________________________________________

KASSANDRA MARTINEZ-HERNANDEZ

APPELLANT

vs.

THE STATE OF TEXAS

APPELLEE

_________________________________________________

FROM THE FIFTH COURT OF APPEALS

CAUSE NO. 05-14-00426-CR

APPEAL FROM CRIMINAL DISTRICT COURT NO. 2

OF DALLAS COUNTY, CAUSE NO. F13-56452-I,

THE HONORABLE DONALD C. ADAMS, PRESIDING

_________________________________________________

APPELLANT’S PETITION FOR

DISCRETIONARY REVIEW

_________________________________________________

BRUCE ANTON

State Bar No. 01274700

ba@sualaw.com

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 75201

214-468-8100 (office)

214-468-8104 (fax)

Counsel for Appellant

PD-0187-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/19/2015 3:16:58 PM

Accepted 2/19/2015 3:54:08 PM

ABEL ACOSTA

CLERK
2

Ground for Review

Whether, by holding that an error in the punishment charge was not harmful solely because of 

the nature of the underlying crime, the court of 

appeals impermissibly speculated as to the jury’s 

thinking. 
3

Table of Contents

Ground for Review...................................................................................... 2

Index of Authorities.................................................................................... 4

Identity of Parties and Counsel................................................................. 6

Statement Regarding Oral Argument....................................................... 7

Statement of the Case and Procedural History ........................................ 8

Argument.................................................................................................. 10

By holding that an error in the punishment charge was harmless 

solely because of the nature of the underlying crime, the court of 

appeals impermissibly speculated as to the jury’s thinking............... 10

I. The court of appeals’s holding ..................................................... 10

II. Courts of appeals are repeatedly reprimanded for speculating 

as to juries’ reasoning ....................................................................... 12

III. The Dallas Court of Appeals’s holding is explicitly reliant upon 

that rightfully disapproved reasoning ............................................. 15

Prayer........................................................................................................ 17

Certificate of Service ................................................................................ 19

Certificate of Compliance......................................................................... 19

Appendix ................................................................................................... 20
4

Index of Authorities

Cases

Almanza v. State, 686 S.W.2d 157 (1984) ....................................... 7, 9, 10

Alvarado v. State, 775 S.W.2d 851, 856-57 (Tex. App.—San Antonio 

1989, pet. ref’d.)..................................................................................... 15

Dewberry v. State, 4 S.W.3d 735, 740 (1999)........................................... 12

Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002) ................. 10

Ellison v. State, 97 S.W.3d 698, 701 (Tex. App.—Texarkana 2003, no 

pet.).................................................................................................. 11, 14

Ellison v. State, 51 S.W.3d 393, 397 (Tex. App.—Texarkana 2001, pet. 

granted) ................................................................................................. 14

Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1986)....................... 13

Hedicke v. State, 779 S.W.2d 837, 843 (Tex. Crim. App. 1989).............. 16

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) ............. 16

Kelly v. State, 640 S.W.2d 605, 612 (Tex. Crim. App. 1982) .................. 13

Lamb v. State, No. 14-09-01007-CR, 2011 WL 531968, at *6 (Tex. 

App.—Houston [14th Dist.] 2011, pet. ref’d) ....................................... 13

Martinez-Hernandez v. State, No. 05-14-00426-CR, 2015 WL 275239 

(Tex. App.—Dallas Jan. 21, 2015).............................................. 9, 10, 11

Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990)................. 12

Monroe v. State, 864 S.W.2d 140, 146 (Tex. App.—Texarkana 1993, pet 

ref’d)....................................................................................................... 15

Moss v. State, 574 S.W.2d 542, 545 (Tex. Crim. App. 1978)................... 13

Ross v. State, 180 S.W.3d 172, 177 (Tex. App.—Tyler 2005, pet. ref’d). 13

Schaired v. State, 786 S.W.2d 497, 498 (Tex. App.—Houston [1st Dist.] 

1990, no pet.)......................................................................................... 13

State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. App. 1999) ................ 16

Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Crim. App. 1987) .......... 12

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)............ 12

Statutes

TEX. PEN. CODE § 19.02 .............................................................................. 8

TEX. PEN. CODE § 19.04 .............................................................................. 8
5

Rules

TEX. R. EVID. 606(b).................................................................................. 12

Treatises

43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal 

Practice And Procedure § 56:4 (3d ed.) ................................................ 16
6

Identity of Parties and Counsel

For Appellant Kassandra Martinez-Hernandez:

JAMES JAMISON

Trial counsel of record

529 W. 12th Street

Dallas, Texas 75208

BRUCE ANTON

BRETT ORDIWAY

Appellate counsel of record

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Suite 250

Dallas, Texas 75201

For Appellee the State of Texas:

JUSTIN MCCANTS

DREW TAYLOR

Trial counsel of record

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

133 N. Riverfront Boulevard

Dallas, Texas 75207

PATRICIA POPPOFF NOBLE

Appellate counsel of record

DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court judge:

THE HONORABLE DONALD C. ADAMS
7

Statement Regarding Oral Argument

The Dallas Court of Appeals improperly conducted the test for jury charge error set out in this Court’s opinion in Almanza v. State, 686 

S.W.2d 157 (1984). In light of how often the courts of this state apply 

the “Almanza factors,” the Dallas Court of Appeals’s error has the potential for far-ranging impact. Appellant believes that oral argument 

will be helpful to this Court in understanding just how so.
8

Statement of the Case and Procedural History

Though Appellant gave her cousins a ride to work, they refused to 

contribute to her gas costs. (RR5: 102, 132, 140-41). As they argued at 

the gas station, Appellant became frustrated and drove away. (SX81). 

In so doing, though, she drove over one of her cousins, killing her and 

her unborn child. (RR5: 91-94, 100, 105-06, 127, 155). Appellant insisted 

she did so accidentally, and that, at the time, she was unaware she had 

hit anyone at all. (SX81). 

Appellant was nonetheless indicted for murder. (CR: 15); see TEX.

PEN. CODE § 19.02. After rejecting plea-bargain offers of 40 years’ imprisonment, then 20 years’, then 15 years’, and finally 10-12 years’, Appellant’s jury trial commenced on March 25, 2014. (RR1: 6; RR2: 7; RR3: 

6-7). The following day, the jury found her guilty of the lesser-included 

offense of manslaughter. (RR6: 97; CR: 46); see TEX. PEN. CODE § 19.04. 

After a one-day sentencing hearing on March 27, 2014, the jury sentenced Appellant to the maximum 20-years’ imprisonment and fined 

her $10,000. (RR7: 92; CR: 57). Appellant filed a notice of appeal that 

day. (CR: 64).
9

On appeal to the Fifth Court of Appeals, Appellant urged that the 

trial court erred in failing to instruct the jury that it could not consider 

extraneous-offense evidence in assessing punishment unless it found 

the extraneous offense had been proven beyond a reasonable doubt. (Br. 

at 9-10). And because all four Almanza factors1 supported the conclusion that the error was harmful, she further urged the court that it 

should reverse and remand the case for a new punishment hearing. (Br. 

at 10-12). The court of appeals largely agreed, but nonetheless overruled Appellant’s appeal. See Martinez-Hernandez v. State, No. 05-14-

00426-CR, 2015 WL 275239 (Tex. App.—Dallas Jan. 21, 2015).

 

1 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
10

Argument

By holding that an error in the punishment 

charge was harmless solely because of the nature 

of the underlying crime, the court of appeals impermissibly speculated as to the jury’s thinking.

! ! !

I. The court of appeals’s holding

The court of appeals agreed that the trial court erred by submitting to the jury a punishment charge that did not contain an instruction 

regarding the burden of proof for evidence of extraneous offenses or bad 

acts admitted during the punishment phase of trial. MartinezHernandez v. State, No. 05-14-00426-CR, 2015 WL 275239, at *1 (Tex. 

App.—Dallas 2015). In then analyzing the Almanza2 factors to determine whether Appellant was egregiously harmed by the omission, the 

court of appeals did not dispute that the evidence of Appellant’s lone 

bad act was indeed questionable, and that no other language in the 

punishment charge suggested to the jury it need be proven beyond a 

reasonable doubt. Id. at *1-2; see Ellison v. State, 86 S.W.3d 226, 228 

 

2 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (an appellate 

court should determine whether an appellant was egregiously harmed in light of the 

entire jury charge, the state of the evidence, including the contested issues and 

weight of the probative evidence, the argument of counsel, and any other relevant 

information revealed by the record of the trial as a whole).
11

(Tex. Crim. App. 2002) (“The harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction,” not the impact of the admission of the extraneous offense). Turning, then, to whether the jury’s likely consideration of the evidence was 

harmful, the court further acknowledged that the prosecutor argued at 

closing for a harsh sentence based on just such a bad act, and that the 

jury then assessed the maximum sentence. Id.; see Ellison v. State, 97 

S.W.3d 698, 701 (Tex. App.—Texarkana 2003, no pet.) (upon concluding 

“that the jury was more prone to give consideration and weight to these 

disputed extraneous activities in the absence of an instruction that they 

must find them true beyond a reasonable doubt,” question becomes 

whether the extraneous offense “likely had a serious influence on the 

jury’s assessment of punishment.”). 

The court of appeals found the error harmless, though, for one 

reason: “[i]n light of the evidence supporting appellant’s conviction at 

guilt,” which “was not weak,” the court determined that it was “likely 

the jury assessed appellant’s punishment on the facts surrounding her 

offense.” Martinez-Hernandez, 2015 WL 275239 at *1-2 (emphasis added). On this, alone, the court overruled Appellant’s appeal.
12

II. Courts of appeals are repeatedly reprimanded for speculating as to juries’ reasoning

By the court’s plain language, then, its holding was entirely

founded upon its speculation as to the jury’s thinking.3 And that, in 

turn, necessitated the court take on the role of 13th juror and itself 

evaluate the guilt evidence’s impact; after all, the court of appeals cannot speculate as to what 12 unidentified men and women reasoned 

without projecting its own reasoning.

In multiple contexts this Court has repeatedly condemned just 

that. As to evidentiary sufficiency review, this Court routinely emphasizes that an appellate court’s “role is not to become a thirteenth juror.” 

See, e.g., Dewberry v. State, 4 S.W.3d 735, 740 (1999); Williams v. State, 

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). A court of appeals cannot

simply “substitute” its judgment for that of the factfinder. See Meraz v. 

State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990); Tompkins v. State, 

774 S.W.2d 195, 202 (Tex. Crim. App. 1987), aff’d by equally divided 

 

3 Even if the court’s plain language did not indicate as much, though, the court’s 

holding was necessarily founded upon speculation because it is impossible to ascertain jurors’ mental processes. See TEX. R. EVID. 606(b) (“Upon an inquiry into the 

validity of a verdict or indictment, a juror may not testify as to any matter or 

statement occurring during the jury’s deliberations, or to the effect of anything on 

any juror’s mind or emotions or mental processes, as influencing any juror’s assent 

to or dissent from the verdict or indictment.”).
13

court, 490 U.S. 754 (1989) (O’Connor, J., not participating). Similarly, in 

finding that the evidence was legally insufficient to support the charged 

offense but sufficient to support a lesser-included offense, this Court 

held that a new punishment trial was necessary because “[i]t is not 

proper for this Court to speculate on what punishment would have been 

assessed by either the jury or the judge.” Moss v. State, 574 S.W.2d 542, 

545 (Tex. Crim. App. 1978), overruled on other grounds by Garrett v. 

State, 749 S.W.2d 784 (Tex. Crim. App. 1986). In reversing where a trial 

court refused to hold a hearing on a motion by appointed defense counsel to withdraw, this Court presumed the appellant was harmed because it was “unwilling to engage in unguided speculation.” Kelly v. 

State, 640 S.W.2d 605, 612 (Tex. Crim. App. 1982). And in addressing a 

claim that counsel was ineffective, courts of appeals have “refus[ed] to 

speculate as to whether the [trier of fact] would have imposed a lesser 

sentence” absent the complained-of error. Lamb v. State, No. 14-09-

01007-CR, 2011 WL 531968, at *6 (Tex. App.—Houston [14th Dist.] 

2011, pet. ref’d) (citing Schaired v. State, 786 S.W.2d 497, 498 (Tex. 

App.—Houston [1st Dist.] 1990, no pet.); Ross v. State, 180 S.W.3d 172, 

177 (Tex. App.—Tyler 2005, pet. ref’d)). 
14

It’s just as improper in the context at issue in this case. The Ellison court recognized as much, noting that it could not “speculate as to 

what punishment the jury would have assessed without the evidence of 

the extraneous offenses,” and instead concluding that the trial court’s 

error in failing to give the instruction was egregiously harmful because

“the evidence made the case for serious punishment significantly more 

persuasive to the jury.” Ellison v. State, 51 S.W.3d 393, 397 (Tex. 

App.—Texarkana 2001, pet. granted). And though this Court remanded 

the case for that court to consider the impact of omission of instruction, 

rather than the impact of the admission of extraneous offense evidence, 

once the court of appeals did so it pointed to that previous ruling in 

again finding harm. Ellison, 97 S.W.3d at 701-02. Similarly, the San 

Antonio Court of Appeals, though analyzing the since-discarded “overwhelming evidence” test of Rule of Appellate Procedure 81(b)(2), nonetheless cogently explained the impropriety of such an analysis in the 

present context:

When an appellate court examines the record for “overwhelming evidence” of defendant’s guilt, it must use its own 

judgment to assess the weight of the evidence which we are 

repeatedly reminded not to do. When a reviewing court proceeds in this fashion, it is in danger of usurping the function 

of the jury, because it is clearly possible that a jury might 
15

have weighed the evidence differently. When an appellate 

court affirms a conviction and such affirmance is based entirely on the court’s own evaluation of the evidence of guilt, 

the defendant may twice be the victim of unfairness: first at 

trial and then on appeal.

It may be admitted that when the record contains only evidence properly admitted, an appellate court may with some 

degree of confidence conclude that the evidence supports a 

finding of guilt beyond a reasonable doubt. But no court has 

thus far satisfactorily explained the process by which it is 

possible to assert that, beyond a reasonable doubt, a jury 

disregarded evidence which it should not have been allowed 

to consider. The reason for the lack of even an attempted explanation should be obvious. It is difficult to determine what 

evidence influenced the jury in reaching a criminal verdict, 

without such a judicial incursion into the mental processes of 

jurors.

Alvarado v. State, 775 S.W.2d 851, 856-57 (Tex. App.—San Antonio 

1989, pet. ref’d.); see also Monroe v. State, 864 S.W.2d 140, 146 (Tex. 

App.—Texarkana 1993, pet ref’d) (Bleil, J., dissenting) (“To conclude 

beyond a reasonable doubt that the jury would not have assessed a different punishment had the testimony of four witnesses been excluded is 

unsupported speculation.”).

III. The Dallas Court of Appeals’s holding is explicitly reliant

upon that rightfully disapproved reasoning

The Dallas Court of Appeals, then, in rejecting Appellant’s appeal 

solely because of what it suspected the jury’s verdict would have been, 
16

even absent the error, ran afoul of bedrock principles of appellate review. And, perhaps most disturbing of all, its reasoning provided a 

blueprint for holdings that effectively preclude this Court’s review. Because, where a court of appeals’s holding is based solely upon the verdict it would have reached, like all sentencing verdicts “very little review is available of the judge or jury’s decision.” 43B George E. Dix & 

John M. Schmolesky, Texas Practice: Criminal Practice And Procedure § 

56:4 (3d ed.); see, e.g., Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. 

App. 1984) (“The general rule is that as long as a sentence is within the 

statutory range, it will not be disturbed on appeal.”). A court’s speculation can only be countered with an appellant’s own, and this Court will 

not speculate. See, e.g., State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. 

App. 1999) (“since appellee did not avail herself of her opportunity to 

testify at the suppression hearing, we will not speculate on what she 

thought Rodriguez meant ‘when she heard the statement.’”); Hedicke v. 

State, 779 S.W.2d 837, 843 (Tex. Crim. App. 1989) (“As to the remaining 

five witnesses, who were not included in the bill of exception, we do not 

know what their excluded testimony would have been or even if they 
17

were prevented from testifying to anything, and we will not speculate as 

to such.”). 

Appellant urges this Court that, at the very least, then, it should 

grant this petition so that it may remand this case the Dallas Court of 

Appeals with instructions to conduct a full Almanza harm analysis. So 

doing will make clear that courts of appeals may not hold that an error 

in the punishment charge was not harmful solely because of the nature 

of the underlying crime, thereby speculating as to the jury’s thought 

process, taking on the role of 13th juror, and creating an impossible-toappeal holding. Because the record before this Court further makes 

clear, however, that all four Almanza factors weighing in favor of a finding that the trial court’s error inflicted egregious harm upon Appellant, 

she further urges this Court that, in the interest of judicial economy, it 

should simply grant this petition, reverse the judgment of the court of 

appeals, and remand this case for a new trial. 

Prayer

Accordingly, Appellant prays that this Court will grant this petition for discretionary review.

Respectfully submitted,
18

/s/ Bruce Anton

BRUCE ANTON

Bar Card No. 01274700

ba@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Attorneys for Appellant
19

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of 

the foregoing Appellant’s Petition for Discretionary Review was electronically served to the Dallas County District Attorney’s Office and the 

State Prosecuting Attorney on February 18, 2015.

/s/ Bruce Anton

BRUCE ANTON

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies 

that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because 

this petition contains 1,781 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type 

style requirements of TEX. R. APP. P. 9.4(e) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft 

Word 2011 in 14-point Century Schoolbook.

/s/ Bruce Anton

BRUCE ANTON
20

Appendix
Affirmed and Opinion Filed January 21, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00426-CR 

KASSANDRA MARTINEZ-HERNANDEZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 2 

Dallas County, Texas 

Trial Court Cause No. F13-56452-I 

MEMORANDUM OPINION 

Before Justices Francis, Evans, and Stoddart 

Opinion by Justice Francis 

Kassandra Martinez-Hernandez appeals her conviction for manslaughter. Appellant was 

indicted for the murder of her twenty-two-year-old cousin, Yunuel Aguilar. After finding her 

guilty of the lesser included offense of manslaughter, the jury assessed punishment at twenty 

years in prison and a $10,000 fine. We affirm. 

In her sole issue, appellant claims the trial court erred at the punishment phase of the trial 

by failing to properly instruct the jury on the law regarding extraneous offenses and bad acts. 

Specifically, appellant asserts the trial court did not instruct the jury it could only consider 

extraneous offenses and bad acts if the jury found beyond a reasonable doubt that such acts and 

offenses were attributable to her. Appellant argues the jury charge failed to impose any burden 

of proof on the State, the State’s evidence in its case in chief was “weak,” the prosecutor’s 
 –2– 

repeatedly emphasized the fighting incident, and the jury assessed the maximum sentence, all of 

which indicate appellant was egregiously harmed. We cannot agree. 

 During the punishment phase of the trial, the State introduced evidence that, while 

awaiting trial, appellant fought with a fellow inmate. The jury charge at punishment did not 

contain an instruction regarding the burden of proof for evidence of extraneous offenses or bad 

acts admitted at punishment. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 

2014). The trial court’s failure to include the instruction is error. See Huizar v. State, 12 S.W.3d 

479, 484 (Tex. Crim. App. 2000). Because appellant did not object to the jury charge, we will 

sustain the complaint only if the record shows the error was so egregiously harmful that 

appellant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1984) (op. on reh’g). In evaluating harm, we consider the entire jury charge, the 

state of the evidence, the argument of counsel, and any other relevant information revealed by 

the record. See id. 

Although the jury charge was erroneous and the prosecutor mentioned the jail fight 

during closing, the State’s evidence at trial was not weak. At guilt/innocence, the jury heard the 

detailed testimony of Yunuel’s sisters, Annabella and Jessica. Each recounted how, on the night 

in question, the four women drove in appellant’s black Passat to Viviana’s Bar off Royal Lane 

where they worked as hostesses. During the evening, the three sisters noticed appellant was 

angry and ignoring them. When it was time to leave, appellant would not give Annabella or 

Jessica the key to her car where they had left cellphones and purses. Instead, she left them at the 

club, and the three had to ask bar patrons for rides. After leaving the club, they saw her at a 

nearby gas station in her car with the windows down. The driver of the suburban Jessica was 

riding in pulled up parallel to appellant’s car; Jessica tried to talk to appellant but appellant 

ignored her and, instead, asked the man who was driving for gas money. When Annabella and 
 –3– 

Yunuel arrived, they approached appellant and asked her to open the trunk so they could get their 

property. After appellant opened the trunk, Yunuel got the purses and slammed the trunk closed. 

Appellant said, “Oh, yeah,” put the car in reverse, and gunned the engine. Annabella said the car 

accelerated “very fast,” but she was able to jump to the side. She shouted at appellant that 

Yunuel was behind the car, but appellant did not stop. Yunuel was carried backward, then 

dragged under and eventually run over by the car. Annabella ran toward the Passat, yelling at 

appellant that she had run over Yunuel. Appellant stopped briefly, looked at Annabella, then put 

the car in gear and drove off. Yunuel, who was three months pregnant, died from her injuries. 

In addition to this testimony, the jury saw appellant’s interview approximately three 

hours after Yunuel was run over. In the video, appellant is calm and unemotional. She claimed 

she did not know Yunuel had been standing behind her car and had no idea she hit her. 

According to appellant, she could not drive forward because there was a car blocking her in, so 

she “did reverse and did not see [Yunuel].” No one tried to stop her, and she did not feel the 

impact. She claimed she did not hear anything because her windows were rolled up. She drove 

home and went to bed. 

The jury also viewed the videotape from the gas station which shows appellant arriving at 

the gas station. Later, a white suburban pulls in, stopping parallel to appellant’s car. Finally, a 

white pickup parks parallel to the white suburban, and Yunuel and Annabella exit the truck. The 

next video shows Yunuel and Annabella standing behind appellant’s car which suddenly 

accelerates backward. Annabella jumps to the side, but Yunuel is carried backward, then 

disappears from view. She reappears when her body is forcefully run over by the Passat. 

Appellant stops, then puts the car in gear and drives off. 

In light of the evidence supporting appellant’s conviction at guilt/innocence, the State’s 

case for punishment was not significantly more persuasive because of the lack of the instruction. 
 –4– 

And it is likely the jury assessed appellant’s punishment on the facts surrounding her offense. 

See Allen v. State, 47 S.W.3d 47, 52 (Tex. App.―Fort Worth 2001, pet. ref’d) (“Given 

appellant’s reckless disregard for human life as demonstrated by the present offense, it is very 

plausible that the jury sentenced appellant to twenty years’ confinement on the facts of the 

convicted crime alone.”). After reviewing the entire record, including the jury charge, the 

evidence, and the closing arguments, we conclude appellant has not demonstrated how the trial 

court’s error was so egregious and created such harm that she has not had a fair and impartial 

trial. We overrule her sole issue. 

We affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

140426F.U05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
 –5– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

KASSANDRA MARTINEZHERNANDEZ, Appellant 

No. 05-14-00426-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District Court 

No. 2, Dallas County, Texas 

Trial Court Cause No. F13-56452-I. 

Opinion delivered by Justice Francis, 

Justices Evans and Stoddart participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. 

Judgment entered January 21, 2015.