Court of Appeals No. 03-14-00413-CR

Trial Court Cause No. 5797 

IN THE THIRD SUPREME JUDICIAL DISTRICT 

COURT OF APPEALS 

AUSTIN, TEXAS 

_______________________ 

PRISCILLA AGUILAR HERNANDEZ 

v.

THE STATE OF TEXAS

_______________________ 

APPEALED FROM THE 452ND JUDICIAL DISTRICT COURT, 

MCCULLOCH COUNTY, TEXAS 

Honorable Robert R. Hofmann, Presiding 

_____________________________________________________________ 

APPELLANT’S BRIEF 

_____________________________________________________________ 

 

M. Patrick Maguire 

 State Bar No. 24002515 

 M. Patrick Maguire, P.C. 

mpmlaw@ktc.com 

 945 Barnett Street 

 Kerrville, Texas 78028 

 Telephone (830) 895-2590 

 Facsimile (830) 895-2594 

 ATTORNEY FOR APPELLANT, 

 PRISCILLA HERNANDEZ 

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00413-CR

3588264

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/24/2014 10:35:08 AM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 12:00:00 AM JEFFREY D. KYLE Clerk
1

TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 6

ISSUES PRESENTED 7

SUMMARY OF THE ARGUMENTS 8

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 9

STATEMENT OF FACTS 10

ARGUMENTS & AUTHORITIES 10

ISSUE 1: The jury’s negative answer to the sudden passion issue in the 

trial court’s punishment charge is against the great weight and 

preponderance of the evidence, i.e., factually insufficient. 13

ISSUE 2: The jury’s negative answer to the self-defense issue in the trial 

court’s charge at the guilt/innocence stage of the trial is against the great 

weight and preponderance of the evidence, i.e., factually insufficient.

19

PRAYER FOR RELIEF 24

CERTIFICATE OF SERVICE 25
2

Court of Appeals No. 03-14-00413-CR

Trial Court Cause No. 5797

IN THE THIRD SUPREME JUDICIAL DISTRICT

COURT OF APPEALS

AUSTIN, TEXAS

_______________________

PRISCILLA AGUILAR HERNANDEZ

v.

THE STATE OF TEXAS

_____________________________________________________________

IDENTITY OF PARTIES & COUNSEL

_____________________________________________________________

Appellant certifies that the following is a complete list of the parties, 

attorneys, and any other person who has any interest in the outcome of 

this appeal:

Appellant: Priscilla Aguilar Hernandez

Appellee: The State of Texas 

Attorney for Appellant: M. Patrick Maguire

M. Patrick Maguire, P.C.

945 Barnett Street

Kerrville, Texas 78028

Attorney for Appellee: Hon. Tonya Spaeth Ahlschwede

452nd Judicial District Attorney

P.O. Box 635

Mason, Texas 76856
3

Trial Judge: Hon. Robert R. Hofmann

452nd Judicial District Judge

P.O. Box 1580

Mason, Texas 76856
4

INDEX OF AUTHORITIES

CASES

De Leon v. State, 

373 S.W.3d 644 (Tex. App.—San Antonio 2012, pet. ref’d) 13,14,

16,17

Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) 14

Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) 19,20,

23

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) 19,20,

23
5

STATUTES AND RULES

Tex. Penal Code §9.01 21

Tex. Penal Code §9.31 21

Tex. Penal Code §9.32 21

Tex. Penal Code §19.02 13
6

STATEMENT OF THE CASE

Appellant, Priscilla Aguilar Hernandez, is appealing her conviction 

for the offense of murder. Appellant pled not guilty to a jury on May 20, 

2014. RR 3, 12. The jury found Appellant guilty and sentenced her to 30 

years confinement in the Texas Department of Criminal Justice –

Institutional Division on May 23, 2014. RR 6, 70. Appellant timely filed 

her notice of appeal in the trial court. This brief is timely filed by being 

electronically filed in the Third Court of Appeals on December 24, 2014. 
7

APPELLANT'S ISSUES PRESENTED FOR REVIEW

I. The jury’s negative answer to the sudden passion issue in the trial 

court’s punishment charge is against the great weight and 

preponderance of the evidence, i.e., factually insufficient.

II. The jury’s negative answer to the self-defense issue in the trial 

court’s charge at the guilt/innocence stage of the trial is against the 

great weight and preponderance of the evidence, i.e., factually 

insufficient.

** For purposes of reference in the Appellant’s Brief the following will 

be the style used in referring to the record:

1. Reference to any portion of the Court Reporter’s Statement 

of Facts will be denoted as “(RR____, ____),” representing 

volume and page number, respectively.

2. The Transcript containing the District Clerk’s recorded 

documents will be denoted as “(CR___, ___).”
8

SUMMARY OF THE ARGUMENTS

I. The evidence is factually insufficient to support the jury’s negative 

finding on the sudden passion issue contained in the trial court’s charge on 

punishment.

II. The evidence is factually insufficient to support the jury’s rejection 

of Appellant’s self-defense claim. 
9

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, 

I certify that this brief contains 4,000 words (counting all parts of the 

document and relying upon the word count feature in the software used to 

draft this brief). The body text is in 14 point font and the footnote text is in 

12 point font.

/s/ M. Patrick Maguire

M. Patrick Maguire,

Attorney for Appellant
10

STATEMENT OF FACTS

On December 25, 2010, Appellant and her husband, Jimmie Joe 

Hernandez (“Jimmie”), had been drinking heavily. RR 3, 91; RR 3, 194. 

They, along with other family members, had been to a Christmas dance held 

in Menard, Texas. 1 RR 3, 195. In the early morning hours of December 26, 

2010, Appellant and Jimmie got into an argument over Appellant seeing 

another man. RR 3, 195-96. Appellant left the dance with Jimmie’s parents 

who drove Appellant to her house in Menard. RR 3, 196. Jimmie walked 

home from the dance. RR 3, 196. 

After arriving home, Appellant left the house to walk back and find 

Jimmie. RR 3, 196-97. When she found him, the two got into a physical 

altercation. RR 3, 197. Jimmie spit on Appellant’s face, broke her cell 

phone, and somehow in the altercation, pulled one of her boots off. RR 3, 

196-97. Appellant returned to the house. Appellant’s brother, Justin Stone, 

was passed out on a sofa in the house. RR 3, 197. Mr. Stone’s girlfriend, 

Staci Leach (also known as “Nellie”), was sleeping on the other sofa. RR 3, 

96. Staci awoke to Appellant coming in the door with Jimmie following 

right behind Appellant. RR 3, 96. Appellant woke Staci up and said that 

Jimmie had hit her and Appellant was yelling at Jimmie because her boot 

 

1

The offense occurred in Menard County, Texas. Venue was transferred to McCulloch 

County, Texas where the case was tried.
11

was missing. RR 3, 96. Appellant also had spit on her eyebrow with a little 

bit of blood in it. RR 3, 96. Staci asked Jimmie if Jimmie had hit Appellant 

and Jimmie denied hitting her. RR 3, 96. Staci attempted to get Appellant’s 

brother to wake up. RR 3, 96. 

Meanwhile, Appellant and Jimmie were arguing in the kitchen (which 

was directly adjacent to the living room where Staci and Appellant’s brother 

were sleeping) and Appellant picked up a pan and struck Jimmie multiple 

times in the head with it. RR 3, 96. According to Staci, Appellant turned 

and grabbed a handful of knives out of a drawer or on the counter. RR 3, 97. 

The argument continued into the living room and Staci said that Appellant 

threw one knife at Jimmie and it stuck in the floor. RR 3, 98. Staci said that 

Jimmie picked the knife up by the blade, handed the knife back to Appellant, 

and told Appellant, “you missed me, Bitch, try again.” RR 3, 98. Staci said 

that Jimmie and Appellant were very close to one another and Appellant said 

something to Jimmie and when she turned around to walk away, Jimmie told 

Appellant to “go fuck another kid.” RR 3, 98. At that point, Appellant 

turned around and stabbed Jimmie in the chest. RR 3, 98-99. According to 

Staci, Appellant then backed up and said “ha, Bitch.” RR 3, 99. Jimmie 

then pulled the knife out of his chest and threw it on the ground and said 
12

“don’t call the cops.” RR 3, 100. Jimmie walked out the door and collapsed 

outside on the edge of the street. RR 3, 100. 

Appellant ran up to Jimmie and grabbed his arm, apparently trying to 

get him up. RR 3, 101. Appellant was hysterical and saying she was sorry 

over and over. RR 3, 124-25. Jimmie died shortly thereafter.
13

ARGUMENTS & AUTHORITIES

I.

The jury’s negative answer to the sudden passion issue in the trial court’s 

punishment charge is against the great weight and preponderance of the 

evidence, i.e., factually insufficient.

A. Standard of Review

At the punishment phase of a trial, a defendant found guilty of murder 

may raise the issue as to whether he caused the death under the immediate 

influence of sudden passion arising from an adequate cause. See Tex. Penal 

Code §19.02(d). If the defendant proves the issue by a preponderance of the 

evidence, the murder is reduced to a second degree felony. Id. “Sudden 

passion” means “passion directly caused by and arising out of provocation 

by the individual killed.” Id. §19.02(a)(2). “Adequate cause” means “cause 

that would commonly produce a degree of anger, rage, resentment, or terror 

in a person of ordinary temper, sufficient to render the mind incapable of 

cool reflection.” Id. §19.02(a)(1).

Sudden passion must arise at the time of the offense and cannot result 

solely from former provocation. De Leon v. State, 373 S.W.3d 644, 650 

(Tex. App.—San Antonio 2012, pet. ref’d). Moreover, neither ordinary fear 

nor anger alone is sufficient to establish sudden passion. Id. When a 

defendant seeks appellate review of a failure to make a finding on which the 

defendant has the burden of proof, like sudden passion, the appellate court 
14

must apply a factual sufficiency standard of review. Id. Accordingly, the 

appellate court will review all of the evidence in a neutral light and 

determine whether the jury’s failure to find sudden passion is so against the 

great weight and preponderance of the evidence as to be manifestly unjust. 

Id. at 651. (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 

1990)).

B. Analysis

It was undisputed that Appellant and Jimmie were intoxicated and in 

the midst of a very heated argument when Appellant stabbed Jimmie. In 

cases where appellate courts have upheld a jury finding rejecting the 

“sudden passion” defense, there are typically facts to indicate some

reflection on the defendant’s part that showed some (even very brief) 

premeditation that mitigate against a sudden passion finding. This could be 

a statement or an action by the defendant. However, in this case, there are 

no facts that indicate any premeditation on Appellant’s part. 

Staci Leach’s testimony is crucial on this point. It is apparent that 

Staci was not a witness who was sympathetic towards Appellant. At one 

point in Staci’s testimony, she refused to even look at Appellant when asked 

to identify her. RR 3, 113-14. Staci’s testimony would have particular 

weight on the sudden passion issue because, if anything, Staci would be 
15

more inclined to incriminate Appellant rather than support Appellant’s 

sudden passion theory. 

Staci testified that when she awoke to Appellant and Jimmie fighting,

that Appellant was missing a boot and had Jimmie’s spit on her face. RR 3, 

96. She testified that the fight escalated to the point that Appellant actually 

hit Jimmie in the head with a saucepan and grabbed knives, throwing one of 

them at Jimmie. RR 3, 96-98. 

The next part of Staci’s testimony is critical in determining whether 

the jury’s verdict is against the great weight and preponderance of the 

evidence. After having had a knife thrown at him, according to Staci, 

Jimmie picked up the knife, handed it back to Appellant and said “you 

missed me Bitch, try again.” RR 3, 98. At this point, Appellant had turned 

away from Jimmie and was walking away when Jimmie said “go fuck 

another kid.” RR 3, 98. This is apparently what provoked Appellant to spin 

around and immediately stab Jimmie. RR 3, 98.

Appellant’s actions after the stabbing also support the fact that 

Appellant acted under the influence of sudden passion. Appellant became 

hysterical, telling Jimmie she was sorry and attempted to get Jimmie up by 

pulling on his arm. RR 3, 101. These are the actions of a person who acted 

in a fit of rage and sudden passion, not of someone who planned or 
16

premeditated to kill someone with malice. The burden is that Appellant 

“more likely than not” killed Jimmie while under the influence of sudden 

passion. However, Appellant submits that the evidence shows at least by 

clear and convincing evidence that the murder occurred as a result of sudden 

passion. 

Looking at the facts leading up to, and right after, the stabbing show 

unquestionably that this was a crime that occurred as a result of sudden 

passion. This is even more apparent when studying the cases where 

appellate courts have upheld a jury’s rejection of a sudden passion defense. 

An example is the De Leon case cited herein. In affirming the jury’s 

rejection of the defendant’s “sudden passion” argument, the Fourth Court of 

Appeals noted that right before the defendant stabbed the victim, the 

defendant told a bystander “well, now this one is going – is going to pay 

now . . . . [h]e’s a son of a bitch.” De Leon v. State, 373 S.W.3d 644, 651 

(Tex. App.—San Antonio 2012, pet. ref’d). The Fourth Court found this 

statement to be an important fact in determining that the jury’s finding was 

not so against the great weight and preponderance of the evidence to be 

manifestly unjust. Id. This is typical of cases where the appellate court 

affirms a jury’s rejection of a “sudden passion” defense. This sort of 

evidence is lacking in Appellant’s case.
17

In Appellant’s case, Appellant and Jimmie were in a heated argument 

that had gotten physical. Although Staci says that Appellant was hitting 

Jimmie with a sauce pan in the kitchen, there was also a physical altercation 

that took place as reflected by Appellant missing her boot and having 

Jimmie’s spit on her face. There was clearly a mutual combat situation 

where tempers flared and emotions were running extremely high. The 

boiling point came when Jimmie told Appellant to “go fuck another kid” and 

immediately Appellant spun around and stabbed Jimmie in the chest. 

Although Staci testified that Appellant said “ha, Bitch” immediately 

afterward, Appellant’s and Jimmie’s actions after the stabbing reflect that 

this is a classic case of sudden passion. It seemed that both realized what a 

huge mistake had just been made as reflected by Appellant’s hysteria and 

Jimmie’s statements to Appellant immediately after the stabbing. The jury’s 

finding is so against the great weight and preponderance of the evidence that 

it is manifestly unjust. See De Leon, 373 S.W.3d at 651. 

The most compelling evidence that would bear on the “sudden 

passion” issue is Staci’s testimony and Appellant’s testimony. Staci was the 

only eyewitness to the stabbing other than Appellant. While a jury is free to 

accept or reject witness testimony and to determine the credibility of the

witnesses, there are simply no facts which justify a negative finding on 
18

Appellant’s “sudden passion” issue. Appellant’s case should properly have 

been submitted to the jury as a second degree felony. If the jury accepted 

the State’s evidence (which it apparently did) then it would have to have 

made a “sudden passion” finding. Appellant was sentenced to a term of 

confinement of thirty (30) years, which is 10 years more than she could have 

received if this case had been properly deemed a second degree felony as a 

result of a sudden passion finding. 

There was only one stab wound as opposed to many. Staci testified 

that Appellant said “ha Bitch, try again” after stabbing Jimmie, but that she 

immediately became hysterical after she realized that Jimmie was badly hurt. 

Additionally, Appellant ran out to the street where she knelt by Jimmie’s 

side pulling on his arm attempting to get him up saying she was sorry over 

and over. RR 3, 124. Jimmie’s reaction after being stabbed also lends itself 

to the crime occurring while in the throes of sudden passion. Jimmie told 

those around him not to call the cops. RR 3, 100. If this was a situation 

involving premeditation, it would seem that Jimmie would not have reacted 

in this way. Appellant also testified that Jimmie told Appellant to run as he 

lay dying in an apparent reference to Jimmie seeking to protect Appellant’s 

interest. RR 4, 209.
19

The relationship between Appellant and Jimmie can best be 

characterized as dysfunctional. Both Appellant and Jimmie were young and 

caught up in drug and alcohol abuse. This was a tragic event for both 

Jimmie and Appellant. Although motive is not an element to the offense of 

murder, it is certainly probative in determining whether the killing occurred 

as a result of sudden passion. The facts clearly show that this killing 

occurred as a result of sudden passion. The jury’s rejection of Appellant’s 

sudden passion defense is so against the great weight and preponderance of 

the evidence as to be manifestly unjust. 

II.

The jury’s negative answer to the self-defense issue in the trial court’s 

charge at the guilt/innocence stage of the trial is against the great weight 

and preponderance of the evidence, i.e., factually insufficient.

A. Standard of Review

Texas law categorizes self-defense as a defense, not an affirmative 

defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). To 

support a defense like self-defense, a defendant bears only a burden of 

production, which requires him to produce some evidence in support of his 

claim. Id.; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). 

Once the defendant produces such evidence, the burden shifts to the State, 

and the State bears the burden of persuasion to disprove the raised defense. 

Id. Unlike the defendant’s burden of production, the State’s burden of 
20

persuasion requires it to prove its case beyond a reasonable doubt. Id. 

When a fact finder determines that a defendant is guilty, there is an implicit 

finding rejecting any defensive theory raised by the defendant. Zuliani, 97 

S.W.3d at 594; Saxton, 804 S.W.2d at 914.

When a defendant challenges the legal sufficiency of the evidence 

supporting a jury’s implicit rejection of a defendant’s claim of self-defense, 

“we look not to whether the State presented evidence which refuted 

appellant’s self-defense testimony, but rather we determine whether after 

viewing all the evidence in the light most favorable to the prosecution, any 

rational trier of fact would have found the essential elements of murder 

beyond a reasonable doubt and also would have found against appellant on 

the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at 

914. When a defendant challenges the factual sufficiency of the evidence 

supporting a jury’s implicit rejection of a defendant’s claim of self-defense, 

the appellate court reviews all the evidence in a neutral light and asks

“whether the State’s evidence taken alone is too weak to support the finding 

and whether the proof of guilt, although adequate if taken alone, is against 

the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at 

595.
21

A person is legally justified in using force against another person 

when and to the degree he reasonably believes the force is immediately 

necessary to protect himself against the other’s use or attempted use of 

unlawful force. Tex. Penal Code §9.31(a). A person is legally justified in 

using deadly force against another person when and to the degree: (1) he 

would have been justified in using force as set out in section 9.31 of the 

Texas Penal Code, (2) a reasonable person in his position would not have 

retreated, and (3) he reasonably believed the use of deadly force was 

immediately necessary to protect himself against the other person’s use or 

attempted use of unlawful deadly force. Tex. Penal Code §9.32. “Deadly 

force” is force that is intended or known by the actor to cause, or in the 

manner of its use or intended use is capable of causing, death or serious 

bodily injury. Tex. Penal Code §9.01(3).

B. Analysis

The evidence reflected that in the hours leading up to the stabbing, 

Appellant and Jimmie were intoxicated and that they had been arguing and 

fighting. Ermalinda Duarte testified for the defense. Ermalinda was the 

mother of Mikey Lopez, the young man that Appellant was having an affair 

with. Ermalinda testified that Jimmie called her around 2:45 a.m. on the 

morning of December 26, 2010 and that Jimmie was very angry and cussing. 
22

RR 4, 134. Jimmie told Ermalinda that he wanted to kill her son, Mikey. 

RR 4, 136-37. Ermalinda said that Jimmie sounded like he was intoxicated. 

RR 4, 135. Ermalinda also testified that around 5 or 6 p.m. on December 26, 

2010, she saw that Appellant had swelling on her cheek and the beginning of 

a black eye. RR 4, 160. Ermalinda also testified that she was aware that 

Jimmie physically abused Appellant in the past. RR 4, 138. This is 

consistent with the testimony of Appellant’s mother, who testified that 

Jimmie physically abused Appellant. RR 4, 167-68. 

According to Ermalinda, Staci Leach told her that Jimmie had thrown

a knife at Appellant and that it had stuck in the floor and that Appellant was 

trying to get away from Jimmie. RR 4, 158. 

Appellant testified in her own defense. She testified that there was a 

history of family violence in the relationship with her and Jimmie. RR 4, 

193-95. Appellant described the events leading up to the stabbing and said 

that she was trying to get Jimmie out of her house and that she stabbed him 

in fear that she was about to be seriously hurt. RR 4, 205-07.

Dr. Lisa Watts, a psychologist who evaluated Appellant and reviewed 

the facts of the case, testified that Appellant suffered from post-traumatic 

stress disorder. RR 4, 256. Dr. Watts also testified that based upon her 

diagnosis of Appellant and her evaluation of the case history that she did not 
23

believe that Appellant intended to kill Jimmie. RR 4, 265. It was Dr. Watts’ 

opinion that Appellant acted in fear for her life. RR 4, 268.

It must be remembered that in conducting the analysis in this case, the 

Court must not look to whether the State presented evidence which refuted 

Appellant’s self-defense evidence, but rather after viewing all the evidence 

in the light most favorable to the prosecution, any rational trier of fact would 

have found the essential elements of murder beyond a reasonable doubt and 

also would have found against appellant on the self-defense issue beyond a 

reasonable doubt. Saxton, 804 S.W.2d at 914. Appellant would focus this 

court’s attention on the facet of the analysis that reviews whether any 

rational trier of fact would have found against Appellant on the self-defense 

issue beyond a reasonable doubt. Unlike the defendant’s burden of 

production, the State’s burden of persuasion requires it to prove its case 

beyond a reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. 

Crim. App. 2003). 

Based upon the evidence submitted, it cannot be said that a jury could 

find against Appellant on the self-defense issue beyond a reasonable doubt. 

To support such a finding, the jury would have to reject the testimony of 

Staci Leach, Dr. Watts and virtually every other witness who testified. If a 

jury were to reject this testimony, then it would also follow that the jury 
24

must reject the testimony of these witnesses concerning how the homicide 

occurred. While a jury is free to accept or reject evidence presented at trial, 

given the burden of proof applicable to the self-defense, the jury’s rejection 

of self-defense in Appellant’s case is not a tenable conclusion to be reached 

from the evidence presented.

CONCLUSION

Based on the foregoing argument and authorities, Appellant 

respectfully submits that Appellant’s conviction for murder should be 

reversed and the cause remanded to the trial court for a new trial.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully 

prays that this Honorable Court sustain the appellate contentions herein, 

reverse the judgment of the trial court convicting Appellant of murder and 

remand this cause to the trial court.
25

Respectfully submitted,

M. PATRICK MAGUIRE, P.C.

/s/ M. Patrick Maguire 

M. Patrick Maguire

State Bar No. 24002515

945 Barnett Street

Kerrville, Texas 78028

Telephone (830) 895-2590

Facsimile (830) 895-2594

ATTORNEY FOR APPELLANT,

PRISCILLA HERNANDEZ

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy of 

Appellant's Brief to counsel for the State, Hon. Tonya Spaeth Ahlschwede, 

via electronic transmission at tsa@452da.net, and whose address is P.O. Box 

635, Mason Texas 76856, on this the 24th day of December, 2014.

/s/ M. Patrick Maguire

M. Patrick Maguire