### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 001 2 5
- CR

Gabino Hernandez
- Dominguez , Appellant

v. The State of Texas, Appellee

FROM THE 147TH DISTRICT COURT OF T RAV IS COUNTY NO. D - 1
- DC
- 17
- 206863 , HONORABLE CLIFFORD A. BROWN , JU D GE PR ES I DING

M E M O R A N D U M O P I N I O N
A jury convicted Gabino Hernandez

- Dominguez of the second

- degree felony offense of aggravated assault w ith a d eadly weapon

- family violenc e for threaten ing immine nt bodily injury with a knife to h is live

- in gi r lfri e nd

. See Tex. Penal Co de § 22.02(a)(2), (b) ; see

a lso id. § 12.33 (setting punishment ran ge of two to twenty years ’ im prisonment for second

degree fe lon ies )

. Th e jury assessed punishment at eight years’ imprisonment and returned a verdict form le avi n g op e n s pace in the p ortion for recommend ing that the court susp end the assessed sentence and pla ce H ernandez

- D o minguez on community supervisio n . See Tex. Code Crim. Proc. art. 42 A.055 (a)

. T he distri ct co urt r ead the jury ’ s punishment verdict aloud i n o p en

c o urt and confirmed with the pres iding juror that thi s was the jury ’ s verdict. Hernandez

Domingue z declined polling t he jury

.2 On appeal, H ernandez

- Domi nguez contends that the jury ’ s punishm ent verdict reflects a community

- supervision recommendat io n and that his judgment of conviction should be modified to reflect that his sentence was “ probated. ” We will affirm the district court ’ s judgment of convic tion

.
BACKGROUND 1 Evidence du ring guilt
- innocence phase

The jury heard evidence that a neighbor i n Her n andez

- Dominguez ’ s four

- plex awoke after hearing a “ banging noise ” and a fema le voice “ crying out ” from downstairs at 4:00

a.m. The ne ighbor call ed 911. An aud io recording of her 911 call was admitted into ev i dence.

Aus tin Police Department of f i c ers r esponded to the s cene in s outh Austin

. A

woman , later identified as Hernandez

- Domi nguez’s girlf riend , answered the door crying and ra n
out

. Through the open door, o f ficers saw a man, later identified as Hernandez

- Dominguez , pacing back and forth w h i le “ s weating profusely

. ” His pockets were full of bulging items , and he was holding a br oken glass i n one hand and a wall thermostat i n the other

. After police off icers told him that they wanted to ta lk to him , He rnandez

- Dominguez allowed them inside

. H e co n tinued to exh ibit “ odd beha vior , ” and w hen h e threw the broken glass from his hand into a bedroo m and began punching a bedroom door , officers decided to frisk him for weapons. He struggled with the officers and was placed in handcuffs

. A video rec o r ding from the dashboard camera of a patrol car parked facing the front of the four

- pl ex, which captured sounds of

1 Because Hernandez

- D o m i nguez ra ises no challenge to the suffi ci ency of the evi dence supporti n g his c onviction , we provide only a brief summar y of t he f acts underlying his conv i ction

. S ee Tex. R. App. P. 47.1 (requiri ng issuanc e of opinion th at is bri ef as po ssible but addresse s ever y issue raised and necessary to final disposition of appeal).3

Hernandez

- Dominguez’s yelling, was admitted into evidence

. Officers recovered a knife with a six

- or - seven - inch blade from the scene.

A not h e r off

icer spoke with Hernandez

- Domingue z ’ s girlfriend , who stated that Hernandez

- Dominguez had not slept in six days , that he had been sharpeni ng knives in the kitchen , and that he had threatened her with a knife. She also mentioned that he had white
po w d e r in his nostril, and offi cers s uspecte d th at cocaine use was involved

.

Hernandez

- Dominguez ’ s girlfriend testified that she had been living w ith him at the ti me of the incident and that they had been dating for over two year s. On the date of the offe n s e , s h e a woke to a loud noise , and when sh e sa w Hernandez

- Dominguez in the kitchen she asked him why he had not gone to bed yet

. He got two k nive s, began sharpening the m against each other , and approac h ed her asking, “ What do you want , you f

— g bit ch, do y o u wan t me to kill you? ” She tried to cal m hi m by telling him that he was sleep deprived

. He threw the knives in the kitchen s ink and said , “ Oh, so you’re not afraid of these

. ” He grabbed a bigger knife and
p ointed it within five inches from her stomac h askin g , “ Do you want me to kill you? ” Fe arin g that he might stab her with the knife if she argu ed with him , she asked him to calm down . He spit in her face. Then he returned to the kitche n ; put the knife back ; and tried to hit her with

o t h e r o b j e c t s , i n c l u d i n g a pictu re frame and a bench or stool that h e t h rew near her feet. Sh e yelled l oudly

. Shortly afterward, she saw patrol

- car lights through a windo w of th e ap artment

.

After his arrest, Hernandez

- Dominguez call ed his girlfrie nd from jail , r epea t edly ask ing h er to withdraw the cha rges aga inst him . He t old h er that he had done nothing to her and that “ [i] t ’ s [her] fault ” but th at he for gave her “ for having sent the cops after [him]

. ” A redacted transcript of Hernandez

- Dominguez ’ s jail p hone call to his girlfriend w as admitted into evi denc e without objection

.4 Hernandez

- Dominguez testified in his own defense. H e stated that he was originally from Mexico and had lived in Austin for about five years by the time of t he offense

. He admitted that h e was high on cocai ne when his girlfrie nd b egan arguing with him , but he denied threatening h er with a knife. He claimed that she was angry because she had previously seen him with another woman and suspect ed that instead of going to work that day , he ha d been with the othe r woman again

. He al so stated that h is coc aine use was “ just a problem that [ his gi rlfr iend ] brings out ” because of the way that she treat s him. At the conclusion of the guilt

innocence phase, the jury convicted Hernandez

- Domingue z as c harged.

Evidenc e during p unishment phas e

A fter the guilty verdict and o utside of the presence of the jury, the parties briefly attempt ed t o reach a sentencing agreement

. But Hernandez

- Dominguez ’ s counsel informed the district court , “ My cli ent say s t hat he is onl y wi lling to accept a p rison sentence th at is probated. ” Thus, t he case proceed ed to the punishment phase before the jury, during which it heard about Hernandez

- Dominguez ’ s criminal history, consisting of a 2006 misdemeanor convictio n fo r th e offense of resisting a rres t. T h e jury also heard testimony from Hernandez

- Dominguez’s girlfriend and a co urt liaison for probation

.

Hernandez

- Dominguez’s girlfriend testified about other assaults that Hernandez

Dominguez had perpetrated agai n st h er. S he said that he had once accused her of sleeping with his co - worker , who was renting a bedroom in their a partment , and that Hernandez

- Dominguez pushed her against a wall and slapped her face causing a nosebleed and a cut insi de her cheek. She a l so te stified about another incident that oc curred when she refused to take Hernandez

-5

Dominguez to buy beer

. He gra bbed her b y her hair, forced her to crawl to the parking lot , and threw her to the ground.

The court liaison t estified abo ut probation o bli ga ti ons and type s of services available to defendants who are conv icted and placed on pr obation

. S he also testified about the difficult ies of supervising a proba tion er who is not a United States citizen, noting that the probationer might be detained b y immigr ation enforcement or dep orted during his probationary period, complicating the c om plet i on of probation servi ces . She stated that when a probationer is dep o rted, his p robation d oes not cease , and that he may report by mail. H owever, her expe rience was tha t p robation er s did not faithful ly report after being deported , and that such cases typically

rem ained open with an act ive warrant for violation of community supervision. She acknowledged the possibility that a probationer might n ever serve his se n t ence af ter deport ation

. At the conclusion of the evidence on punishment , the district court provided the parties with the c ourt ’ s proposed charge on punishment

. Hernandez

- Dominguez had no objections to t hat c harge and made no requests for additions to o r delet ions from it. Because Hernandez

- Dominguez filed a pretrial application for community supervisio n alleging that he

“ ha [ d ] n ot been convicted of a felony in this state or any other stat e , ” the charge include d that punishment option. The charge als o include d an instruct io n to the jury that i f they did not want
to recommend his placement on community s uperv ision, they should say nothing ab out it in their verdict : “If you do not desire to grant community supervision to this defendant, you will say
not h i ng in y our verdict concerning the same.”

During closi ng arguments on punishment , t he prosecutor told the jur y that if they

were to recommend probation, “ the only sentence you need to give, the only sentence whatsoever is 10 years [ of community supervis i o n ]

. An yth ing less than that is not an [e] ffective6

enough deterrent. Ten years is the maximum sentence. ” Defen se coun sel told the jury du ring closing that if they determined that Hernandez

- Dominguez should not have his sentence probated, the y were not r e quired to ass ess punishment at more than ten years ’ imprisonment :

“ You can give him any term.

. . . If you give him four years, you can s ay we think he should serve four years in prison, and we don ’ t think it should be community supervision. That ’ s wha t the ver dict form shows you in the back. ” Defe nse c ounsel also noted the two

- part determination that the jury wa s asked to make in its ver dict : “ You ’ re going to first be asked to assess a sentence, and then if it ’ s two to ten years, whether or not it sho u l d be co mmuni ty supervision or not, but you are not bound to automatically give him community supervision if his sentence is under ten. ”

J ury verdict on punishment

After deliberations , the jury returned the following verdict on punishment:

VERDICT O F THE JUR Y We, the Jury, having found the defendant, Gabino Hernandez

- Dom in guez, guilty of Aggravated Assault wit h a D eadly Weapon Family V iolence, assess his punishm e nt at confinem ent in the Texas D epartment of Crimi nal Justice, Institutional Division, f

o r a peri od of 8 (2 to 20 years) . In addit ion, we assess a fine o f $ 0 ( 0 to 1 0 ,000 )

. (If the abo ve sentence is 10 years or less, pl ease proceed to consider the next paragraph) We fur ther find that the defendan t has never been convicted o f a felon y in this state or in any other sta te and we recommend that the sentence be suspended and the defendant b e placed on community supe rvisi on:
[ completed with signatu re ]

_____ Presi d ing Juror7 [ completed with printed name ]

_____ _____ Printed Name of Presiding Juror The district court read the jury’s eight

- year - imprisonment sent ence aloud in open court a nd confirmed with the presiding juror that this was the jury’s verdict. Hernandez

- Dominguez declined polling the jur y . Th e d ist rict co urt accepted the jury ’ s verdict, pronounced se n tence, and signed the judgment of conviction th at is challenged in this a ppeal.

DIS CUSS I ON Hernandez

- Dominguez contends that the jury’s punishment verdict reflects a community

- supervisi on r ecomm en dati on that the district court was required to fol l ow and that his judg ment of conviction should be mod if ied to reflect that his ei ght

- year sentence was

“ probated. ” He states that the presiding juror ’ s signature on the line immediately a fter the l a st
para graph of the verdict form indicates the jury ’ s “ agreemen t with the entire verdict, including the s entence recommend ing proba tion ” because “ there is no choice to be made on the verdict form beyond the colon. ” He further states that becaus e the jur y was rem oved from the
courtroom

— af ter the district court confirmed th at no one wanted a jury poll

— the jury did not hear the sentenci ng pronounced in open court and “ had no opportunity to learn that [ Hernandez

Dominguez ] ’ s prison sentence was not probated a s they h ad recommended

. ”

A r t icle 42A.055 of th e Code of Criminal Procedure , which addresses jury

rec omme nded community supervision , requir es a trial court to suspend an imposed sentence of confinement and place a defendant on community

- supervis ion if a j u ry ’ s ve rdict recommend s it :
[a] jury that imposes confinemen t as punishment for an offe nse may recommen d to the judge that the ju dge sus pend the imposition of t he sentence and place the defendant on community supe rvision. A judge shall suspen d the imp o s ition o f the8

sentence and place the defendant on community sup ervision if the jury makes t hat recommendat ion i n the verdict.

A def endant is eligible for community supervision under this article only if: (1) before the trial begins, the defendant files a w r i tten sw orn motion with the judge that the defendant has not previously been convicted of a felony in this o r any other state; and (2) th e jury enters in the verdict a finding that the information contai ned in the defendant’s motion is true.

Id. a rt. 42A.0 5 5 (a) , (b ) ; Mayes v. State , 353 S.W.3d 790 , 795

- 96 (Tex. Crim. App. 2011) ( “ The jury does not d etermine the p eriod of community supervi sion. It assesses the sentence and recommends that the trial j udge place the defendant on co mmunity supervisio n . The ju d g e must follow th at recommendation, but h e has the discretion to determine th e appropriate per iod of supervi sion, as long as it is wit hin the minimum and maximum statutory periods. ” ). Hernandez

Dominguez essentially contends that the district co urt viola t e d a r tic le 42A.055 (a) by not grant ing community superv i sion and that the district court created a variance b etween its o ral
pro nouncem ent of sentence and the jury ’ s verdict on punishment

.

In reviewing Hernandez

- Dominguez ’ s app ellate complaint, we are mi n d ful tha t

“ [ a ] jury ’ s lawful verdict on punishment is inviolate, and the trial court must abide by it. ” Ett e v. State , 559 S.W.3d 511 , 517 (Tex. Crim. App. 2018)

. Verdicts should be held good if the jury ’ s intention s can reasonably be ascertain ed. Ains w o rth v. State , 517 S.W.2d 274, 277 (Tex. Crim. App. 1975) ; Perez v. State , 21 S.W.3d 628, 631 (Tex. App.

— Hou ston [14th Dist.] 2000 , no pet. ) ;

s ee Williams v. St ate , No. 03

- 18

- 00267

- CR, 2018 Tex. App. LEXIS 5406, at *38 (Tex. App.

— Austin July 18, 2018 , pet

. r ef ’ d) (mem. op., not designated for publication). “ V erdict s should receive a liberal rather t han a strict construction , and if the finding o f the jury can be reasonably9

ascertained, f

rom whatever source, the verdict should be held valid. ” Ain sworth , 5 1 7 S.W.2d at 277 ; Perez , 21 S.W.3d at 631 . We may “ examine the court ’ s charge to ascertain the certa inty of the jury ’ s intention. ” Ainsworth , 517 S.W.2d at 277

.

Here, the court ’ s charge on punishment instructed the jury in Paragraph III that i f it were t o recom mend community superv ision , it would have to express that recommendation in its verdict and make an appropriate finding as t o Hernandez

- Dominguez ’ s lack of a prior felony

c on victi on :

The defendant in this case has filed an affidavi t in terms of l a w stati ng that he has nev er been convicted of a felo ny in this state or any other state. Our law provides that where a person is convicted fo r the offenses contained in Paragraph I as listed above, and the jury assesses the punishment at i mpris onment in t he Texa s Department of Cr iminal Justice, Institution al Division, for any term of years not more than 10, an d they further find that the defend ant has never been convicted of a felony in this state or any other state, they may, in their disc retio n, recomm e n d commu nity supervision f or the defendant; and in ca se you decide to recommend community supervision for th e defendant, let your verdict show that you find that the defendant has never been convicted of a felony in this state or any other s tate, and furt h e r show that you recommend community supervision for the defendant

. (Emphases added.). But if the jury de cided against a community

- supervisi on recommendation, Paragraph IV of the court ’ s charge on punishment instructed the jury that no express finding w a s

ne ces sary: “If you do not desire to grant comm unity supervision to th is defendant, you will say nothing i n your verdict concerning the same. ” Following th ese instructions, the jury “ sa [ id ]

n othing ” in its verdict form as to community supervi s ion , leav i n g only a blank space in the portion for recommending that the court suspend the assessed sentence and place Hernandez

Dominguez on community s upervision. See Wooten v. State , 4 00 S.W.3d 601 , 609 n.44 (Tex. Crim. App. 2013) (noting presum ption t hat jury f o llowed trial court ’ s written instructions in10

absence of evidence to contrary ) ; Miles v. State , 204 S.W.3d 8 22, 827

- 28 (Tex. Crim. App. 2006) ( same)

. When provided wit h the v e rdict on pun ish ment , the district court re ad this in open
court : “ We , the jur y , having found the defendant, Gabino Hernandez Dominguez, guilty of aggravated assault with a deadly weap on family violence assess his punishme nt at confinement in the Tex as Department of Crimina l Justice, Instit utional Division for a period of e ight year s . In ad dition, we assess a fine of $0. ” The dist ric t court then confirmed with the presiding ju ror that this was the jury’s verdict. Hernand ez - Dominguez declined the district court ’ s offer to poll the jury, which would have been the proper act ion to ta k e if he questioned the punishment assessed

. See Cook v. State , 390 S.W.3d 363, 373 (Tex. Crim. App. 2013 ) ( noting that no jury poll was
reques ted and c oncluding that jury ’ s verdict , as con firmed by presiding juror , was legal verdict accepted by trial jud g e ) ; see a lso Tex. Code Crim. P roc. art s . 37.0 4 (providing that verdict “shall” be entered upon minutes of court where jury states it has agreed on verdict, verd ict is read aloud in court, verdict is in proper form and no juror dissents therefrom, and neit h e r party requests poll of jury ), .05 (requiring jury to retire again to consider its verdict if a ny juror polled states that verdict was not hi s)

. A dditionally, Hernandez

- Dominguez raised no objection to the imposition of his sentence.

Given the inst r u ctions i n the charge , the jury ’ s verdict following those instructions, and the presiding juror’s confirm ation that the eight

- year - impri sonment se n tence

was the ir verdict, the jury’s intention here “ can be reasonably asc e r tained

. ” See Ainsworth , 517 S.W. 2 d at 277 ; Perez , 21 S.W.3d at 631 ; see also Williams , 2018 Tex. App. LEXIS 5406, at *38

. T h e jury ’ s inte nti on to assess Hernandez

- Dominguez ’ s punishment of imprisonment without11

community supervision is also supported by other portions of the rec ord, inc l u d ing the a ttorneys ’

c losing arguments and the evidence presented du ring the punishment phase

.

As we h ave noted, d uring closing arguments on puni shm ent , d efense coun sel told the jury that if they determined that Hernandez

- Dominguez should not h ave his s e ntence
pr obated, the y were not required to ass ess punishment at more than ten years ’ imprisonment , but

ra ther, could “ give him any term.

. . . If y ou gi ve him four years, you can say we think he should serve four years in prison, and we don ’ t th ink it sh o uld be co mmunity supervision. That ’ s what the verdict form shows you in the back. ” Defe nse c ounsel also pointed out that t he jury was asked first “ t o a ssess a sentence, and then if it ’ s two to ten years, whether or not it should be communi ty su pervision or not, b ut you are not bound to automatically give him community supervision if his sentence is under te n. ” For his part, the prosecutor told the ju ry that if it were to recommend probation, “the only sentence you need to give, the only sentenc e whatsoe v er is 10 years [of community supervision ]. Anything less than that is not an [e]ffective enough deterrent. Ten y ears is the maximum sentence.” The jury’s ve r di ct on p unishment conforms wit h the suggestions made du ring these arguments. That is, b y gi vi n g less t h an ten years ’ imprisonment , the jury could have reasonably ind icated that : (1) it u nderst ood defense coun sel ’ s argument that it was not required to gi ve c ommunity supervision for an i mprisonment sentence of under ten years and (2) it agreed with t h e pr ose c utor ’ s suggestion that anything less th a n ten
years ’ community supervision was an inadequate deterrent

.

Finally, the punishment

- p hase evidence su pp ort s the jury’s rejection of community supervision

. The jury found Hernandez

- D om in guez guilty o f aggrava t ed assault with a deadly weapon

- family viol ence, necessarily reje cting his denial that he threaten ed his girlfriend with a knife

. The jury heard te st imo ny about his prior assault s against his girlfr iend12

and list ened to a recording of his jail ph o ne call e ncouraging her to drop the charges against him

. The jury also had ev idence of his prior c onviction for resisting a rrest. Further, t he jur y heard testimony d ur ing punishment about the difficulties of supervising a probationer who has been deport e d , a par ti cular risk for probationers who are no t United S tate s citizens and convicted f elon s . Having consider ed the jury ’ s intention expressed in its verdict , with pr oper refe rence to the instructions provided in the court ’ s charge, we co nclude that th e re was n o violat ion of article 42A.055 and no variance between the district c ourt ’ s oral pronouncement of sentence and the j ury’s verdict on punishment. See Ainsworth , 517 S.W.2d at 277 ; see, e.g. , Perez , 21 S.W.3d at 631 ( concluding that jury intended t h irty

- yea r sente nc e without fine that was read in open court , agreed to by jury witho u t jury poll , and reflected in trial court ’ s judgme nt )

. Th is jury returned a valid verdict of eight years ’ imprisonment without a community

- supervision

recomm endation for Hernande z - D omin gu ez , and th e district court accepted that verdict

. Hernande z - Dominguez ’ s eight

- year - imprisonment sentence was within t he proper punishment
range for his second

- degree felony , supported by the evidence, compliant with the jury

- charge instr u ctions a nd c losing arguments of the attorneys , and con fi rmed by the presiding juror

. Moreover, Hernand ez - Dominguez declined the distri ct court ’ s offer to poll the jury, which would have been the proper action to take if he questioned the punishment asses s ed

. See Cook , 390 S.W.3d at 373 ; see also Tex. Code C ri m. P roc. art s . 37.0 4

- .05

. T h e jury ’ s lawful verdict on punishment was imposed by the district court orall y and in its judgment of conviction and should be accorded fi nality

. See Ette , 559 S.W.3d at 517 ( sta ting that “ jury ’ s lawful ver dict on punishment i s inviolate ” ) ; C ook , 390 S.W.3d at 372 ( stating that when valid sentence is
pro nounced by trial court, it is generally accorded final ity ).13 Accordingly , we over rule Hernandez

- Dominguez ’ s appellate i s sue.

C ONCLUSI ON We aff irm t he district court ’ s ju dg ment of conviction

.

________________ __________________________ Jeff R ose, Chief Jus t ice
Be fore Chi ef Justice Ros e, Justices Baker and T ri ana Affirmed Filed : Au gust 31, 2020
D o Not Publish