Oral argument requested

PD

-

____ - 14
I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## K ASSANDRA 

## M ARTINEZ


## - H ERNANDEZ A PPELLANT

vs. 

## T HE 

## S TATE OF 

## T EXAS A PPELLEE

_________________________________________________ F ROM THE F IFTH C OURT OF A PPEALS C A U SE N O

. 05

- 1 4

- 00426

- CR
A PPEAL FROM C RIMINAL D ISTRICT C OURT N O

. 2

OF D ALLAS C OUNTY , C AUSE N O

. F1 3

- 56452

- I , THE H ONORABLE D ONALD C. A DAMS , P RESIDING

_________________________________________________ 

## A PPELLANT 

## ’ S 

## P ETITION FOR 

## D ISCRETIONARY 

## R EVIEW

_________________________________________________ B RUCE A NTON State Bar No . 01274700 ba @sualaw.com
B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texa s 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 CLERK2 Ground for Review Whether, by holding that an error in the punis hment 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 T able 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 cha rge 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
Pr ayer
................................ ................................ ................................ ........ 17
Certificate of Service

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

................................ ................................ ......... 19 Appendix

................................ ................................ ................................ ... 204 I ndex 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. Cr im. 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 Ma rtinez

- 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
T EX

. P EN

. C ODE § 19.02

................................ ................................ .............. 8 T EX

. P EN

. C ODE § 19.04

................................ ................................ .............. 85 Rules
T EX

. R. E VID

. 606(b)

................................ ................................ .................. 12

Treatises 43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice And Procedure § 56:4 (3d ed.)

................................ ................ 166 Identity of Parties and Counsel For Appellant Kassandra Martinez

- Hernandez:
J AMES J AMISON Trial counsel of record 529 W. 12 th Street Dallas, Texas 75208
B RUCE A NTON B RETT O RDIWAY Appellate counsel of record S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Suite 250 Dallas, Texas 75201 For Appellee t he State of Texas:
J USTIN M C C ANTS D REW T AYLOR Trial counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE 133 N. Riverfront Boulevard Dallas, Texas 75207
P ATRICIA P OPPOFF N OBLE Appellate counsel of record D ALLAS C OUNTY D ISTRICT A TTORNEY ’ S O FFICE Trial court judge :
T HE H ONORABLE D ONALD C. A DAMS7 Statement Regarding Oral Argument
T he Dallas Court of Appeals improperly conducted the test for j ury 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 p otential 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 h er and her unborn child. (RR5: 91

- 94, 100, 105

- 06, 127, 155). Appellant insisted
she did so accidental ly , and that, at the time, she was unaware she had hit anyone at all. (SX81). Appellant was nonetheless indicted for murder. (CR: 15); see T EX

. P EN

. C OD E § 19.02 . After rejecting plea

- bargain offers of 40 years ’ i mprisonment, then 20 years ’ , then 15 years ’ , and finally 10

- 12 years ’ , A ppellant ’ 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 T EX

. P EN

. C ODE § 19.04

. After a one

- day sentencing hearing on March 27, 2014, the jury se ntenced 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 th e 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 factors 1 supported the concl usion 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 ove rruled Appellant ’ s a ppeal. 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 i mpermissibly 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 submi tting 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

. Martinez

Hernandez v. State , No. 05

- 14

- 00426

- CR, 2015 WL 275239, at *1 (Tex. App.

— Dallas 2015). In then analyzing the Almanza 2 factors to dete rmine 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

reasona ble 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 harm ed 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 coun sel, 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 i mpact of the omission in the jury charge of a reasonable

- doubt instru ction,” not the impact of the admission of the extraneous offense) . Tur ning, 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 20 03 , 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 ad ded)

. On this, alone, the court overruled Appellant ’ s appeal.12 II. C ourts of appeals are repeatedly reprimanded for spec ulating 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 t hat, 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 ca nnot speculate as to what 12 unidentified men and women reasoned without projecting its own reasoning.
In multiple contexts t his Court has repeatedly condemned just
that . As to evidentiary sufficiency review, this Court routinely emph asizes that an appellate court ’ s “role is not to be come 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 necessa rily founded upon speculation because it is impossible to asce rtain jurors ’ mental processes

. See T EX

. R. E VID

. 606(b) (“Upon an inquiry into the validity of a verdict or indictment, a juror ma y 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 ’ Conn o r, J., not participating). Similarly, in finding that the evidence was legally insuf ficient 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 eit her the jury or the judge.” Moss v. State , 574 S.W.2d 542, 545 (Tex. Crim. App. 1978) , overruled on other grounds by Ga rrett 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 cou nsel to withdraw, this Court presumed the appellant was harmed b ecause 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 I t ’ s just as improper in the context at issue in this case. The E llison 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 e gregiously 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, t he San Antonio Court of Appeals, though analyzing the since

- discarded “ove rwhelming evidence” test of Rule of Appellate Procedure 81(b)(2), non etheless cogently explained the impropriety of such an analysis in the
present context:
Wh en an appellate court examines the record for “ove rwhelming 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 pr oceeds in this fashion, it is in danger of usurping the function of the jury, because it is clearly possible that a jury might15 have weighed the evidence differently. When an appellate court affirms a conviction and such affirmance is based e ntirely 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 ev idence properly admitted, an appellate court may with some degree of confidence conclude th at 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 be en allowed to consider. The reason for the lack of even an attempted e xplanation 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 o f 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 di fferent 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 r eview

. And, perhaps most disturbing of all , its reasoning provided a blueprint for holdings that effectively preclude this Court ’s review . B ecause, where a court of appeals’s holding is based solely upon the ve rdict it would have reached, like all sentencing verd icts “very little r eview 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.) ; s ee, 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 specul ation c an 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 statem ent.’”); Hedicke v.
State , 779 S.W.2d 837, 843 (Tex. Crim. App. 1989) (“As to the remaining five witnesses, who w ere not included in the bill of exception, we do not know what their excluded testimony would have been or even if they17 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

- to

appeal holding. Because the record before this Court further makes clear, however, that all four Almanza factors weighing in favor of a fin ding 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 t his pet ition for discretionary review. Respectfully submitted,18 /s/ Bruce Anton B RUCE A NTON Bar Card No. 01274700 ba@sualaw.com

/s/ Brett Ordiway B RETT O RDIWAY Bar Card No. 24079086 bordiway@sualaw.com
S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)

- 468

- 8100 (office) (214)

- 468

- 8104 ( fax )
At torneys for Appellant19 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant ’ s Petition for Discretionary Review was ele ctronically served to the Dallas County District Attorney ’ s Office and the State Prosecuting Attorney on February 18 , 2015

.

/s/ Bruce Anton B RUCE A NTON

Certificate of Compliance
Pursuant to T EX

. R. A PP

. P . 9.4(i)(3) , undersigned counsel certifies that this brief complies with :
1. the type

- volume limitation of T EX

. R. A PP

. P. 9.4 (i)(2) (D ) because this petition contains 1,781 words, excluding the parts of the brief exempted by T EX

. R. A PP

. P. 9.4(i)(1 ).
2. the typeface requirements of T EX

. R. A PP

. P. 9.4(e) and the type style requirements of T EX

. R. A PP

. 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 B RUCE A NTON20 

## AppendixAffirmed 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 Crimin al 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 ap peals her conviction for manslaughter. Appellant was indicted for the murder of her twenty-two-yea r-old cousin, Yunuel Agu ilar. After finding her guilty of the lesser included offense of manslaught er, 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 th e jury on the law regarding extraneous offenses and bad acts. Specifically, appellant asserts the trial court di d not instruct the jury it could only consider
extraneous offenses and bad acts if the jury found beyond a reasona ble doubt that such acts and offenses were attributable to her. Appellant ar gues the jury charge failed to impose any burden of proof on the State, the State’s evidence in its case in chief was “w eak,” the prosecutor’s–2– repeatedly emphasized the fighting incident, and the jury assessed the maximum sentence, all of which indicate appellant was egregi ously harmed. We cannot agree. During the punishment phase of the trial, the State introduced evidence that, while awaiting trial, appellant fought with a fellow in mate. The jury charge at punishment did not contain an instruction regarding the burden of pr oof for evidence of extraneous offenses or bad acts admitted at punishment. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.07, § 3(a)(1) (West Supp. 2014). The trial court’s failure to in clude the instruction is error. See Huizar v. State , 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Because appellant di d not object to the jury charge, we will sustain the complaint only if the record show s 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 argumen t 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 si sters, 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 ev ening, the three sisters noticed appellant was angry and ignoring them. When it was time to l eave, 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 ride s. After leaving the club, they saw her at a nearby gas station in he r car with the windows down. The dr iver 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 ap pellant and asked her to open th e 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 revers e, 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 Y unuel. 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 ove r. 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 forw ard 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 th e white suburban, and Yunuel and Annabella exit the truck. The
next video shows Yunuel and Annabella stan ding behind appellant’s car which suddenly accelerates backward. Annabella jumps to the side, but Yunuel is ca rried backward, then disappears from view. She reappears when he r 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 persua sive because of the lack of the instruction.–4– And it is likely the jury assess ed 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’ confinem ent 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 dem onstrated 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 T EX

. R. A PP

. 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 Stod dart participating.

Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

.
Judgment entered January 21, 2015.