Texas Cases June 26, 2023: Hernandez v. State

Case Description

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Do Not Publish

On Appeal from the County Court at Law No. 5 Collin County, Texas Trial Court Cause No. 005-81342-2021

Before Partida-Kipness, Smith, and Breedlove, Justices.

MEMORANDUM OPINION

CRAIG SMITH, JUSTICE.

Appellant Vanessa Elaine Hernandez entered an open plea of guilty to the Class A misdemeanor offense of driving while intoxicated (DWI) with a blood alcohol concentration of 0.15 or more. See Tex. Penal Code Ann. § 49.04(a), (d). The trial court assessed appellant's punishment at 365 days, the maximum allowed by law, in the Collin County Jail. See id. § 12.21(b). In two issues, appellant argues that the trial court's consideration of extrajudicial facts when assessing her punishment violated her due process right to a fair trial under the Fifth Amendment

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and her Sixth Amendment right to confrontation. For the reasons discussed below, we affirm the judgment of the trial court.

The Punishment Phase and Subsequent Motions

At the sentencing trial, the State presented evidence regarding the underlying offense. The evidence showed that around 1 a.m. on December 25, 2020, witnesses saw appellant's vehicle "fly" down the road before crashing into the victims' home, which was at a T-intersection. We refer to the homeowners in this case as victims, collectively, or as husband and wife, individually. According to one witness, there was a hole where the window should be and smoke coming out. The witnesses called 9-1-1, and Sergeant Jason Smith and Officer Sarah Ashmore with the Murphy Police Department responded. The initial call came in as a house fire. Police were then advised a vehicle had crashed into the house and a person was pinned underneath the vehicle.

When Officer Ashmore arrived, she saw a big hole in the front of the house but did not see the vehicle. She testified that, as she approached the house, she could see that it was "basically just destroyed," "a debris field." The taillights of appellant's vehicle were towards the back of the house; she had driven the vehicle almost all the way through. When Sergeant Smith arrived, he thought the house had exploded. Photographs of the scene also showed a road sign in the branches of the tree in front of the victims' home from a nearby pole and a large hole through the brick and iron gate fence in front of the house. Bricks landed in the victims'

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backyard, their pool, and even went through the backyard fence into their neighbor's yard. The brick fence was actually the outer, decorative layer of seven-foot steel beams that had been placed in the ground near the sidewalk of the home and reinforced with concrete. It was designed to stop a vehicle traveling at forty to fifty miles per hour. Appellant leveled one of the steel beams when she drove through the fence.

By the time the officers arrived, a fire had started underneath the vehicle, and the wife was screaming for help. Her husband was trying to get her out from under the vehicle, but she was buried up to her stomach and chest area in debris. A mattress was on top of her between her and the driver's side front tire. Ultimately, the husband and Sergeant Smith were able to free her.

When appellant opened the driver's side door, Sergeant Smith grabbed her and pulled her from the vehicle. He handed her over to Officer Ashmore, who tried to get her out of the house. Appellant was disoriented and screaming and would not follow Officer Ashmore's commands. She was actively pushing Officer Ashmore away and resisting the officer's efforts to remove her from the home. Eventually Sergeant Smith had to assist; one of them carried appellant by her feet while the other carried her under her arms through the hole in the house. Subsequent testing showed appellant's blood alcohol level to be 0.195.

The husband testified that he woke up to "the house shaking and this big crashing sound." His wife was sleeping downstairs because she had been up late

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preparing food for Christmas Day and needed to wake up early to finish the preparations. He went downstairs to see what happened and, as he approached the hallway leading to the bedroom she was in, he saw debris everywhere, "like a war zone." He began throwing debris out of the way to get to her. The fire grew as he struggled to pull her out from under the car. The husband further testified that he "grabbed the car, . . . picked it up and pushed it off of her."

The wife testified that she woke up to a "sonic boom, like something exploded." She was in shock and trying to figure out what was going on. Her ears were ringing, and her eyes, nose, and throat were burning. She could not move or get up, so she started screaming for her husband. He tried to pull her out from underneath the car, and she had bruises and scratches on both of her arms because of how hard he was pulling her. She started to panic when the car burst into flames. She could feel the heat on her feet and her legs.

The fire caused extensive damage to the home and totaled the wife's car. At the time of trial, the running total of damages paid out by insurance on the home was $347,770.36. Sergeant Smith and Officer Ashmore suffered from smoke inhalation, and Sergeant Smith also suffered a laceration to his hand. During the event, both Officer Ashmore and Sergeant Smith questioned whether they and the female homeowner would make it out alive. Each officer received a life saving award for their efforts at the scene.

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The husband testified that his wife had changed as a result of the incident. She was more antsy and took more precautions. She felt violated, suffered from anxiety, and had trouble sleeping. The wife testified that she was devastated when she saw their house and realized they had nowhere to go. Seeing the house brought a lot of anxiety, and she testified that she could never live there again. She stated that she was an emotional wreck, had severe post-traumatic stress and nightmares, and took multiple medications to help with depression, pain, muscle spasms, anxiety, and the inability to sleep. The victims both went to counseling to help recover from the event.

The State also presented evidence of appellant's prior DWI on February 25, 2020, in Richardson, which was still pending at the time of the December 25 offense. On that night, appellant had driven her car over a curb and partially onto a sidewalk; she was lost and confused. When officers asked for her driver's license, she produced a debit card. She tried to perform the field sobriety tests but was unable to understand or remember the instructions and was unsteady on her feet. Her blood alcohol level was 0.212.

Roy Hughes, a community supervision officer with the Collin County Community Supervision and Corrections Department who specialized in DWI and drug court programs explained the process of a defendant being accepted to DWI court. Hughes testified that appellant qualified for the program but was ultimately rejected because she could not stop taking Adderall and its use was prohibited during

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the program. When asked if appellant was a good candidate for probation, Hughes responded that the probation would need to include extra substance abuse treatment, such as no use of mood-altering substances, intensive substance abuse out-patient treatment, a psychiatric evaluation, and individual trauma counseling. If she could comply with the requirements, she would be a good candidate. At the time of the sentencing trial, appellant had been on probation for approximately four months for the previous DWI.

Jenna Stevens, a program administrator for substance abuse services at LifePath Systems in Collin County, also testified on behalf of the defense. In addition to her role as program administrator, Stevens was a licensed professional counselor and a licensed chemical dependency counselor. She completed a substance abuse assessment of appellant when appellant was being considered for drug court. Based on her evaluation, Stevens advised appellant to enroll in intensive psychotherapy trauma counseling to address her underlying mental health issues. Stevens further testified that, as far as she knew, appellant had complied with everything she recommended appellant to do. She believed that treatment was important and recommended probation with continued counseling.

Appellant testified that her issues with alcohol began after she was raped in her home in 2018. In addition to the trauma from the rape, there was a falling out with her family and she was forcibly removed from the home. She explained that she was trying to kill herself-"to run into an underpass"-when she was arrested

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for DWI in February 2020. On Christmas Eve of 2020, she went back to her family home for the first time since she had been forcibly removed. She drank with her family until she blacked out. She did not remember driving or crashing her car into the victims' house that night; she only remembered the screaming. Appellant apologized to the victims and testified she hated herself for what she had done. She understood that it was a miracle the wife survived and that she was not facing a charge for intoxication manslaughter. When asked what she wanted the court to do with her, she responded, "Help me get help"; "I just - - I want to be okay."

On cross-examination, appellant was asked about the times her portable alcohol monitoring device showed a blood alcohol concentration. She explained that once she used a medicine for ulcers in her mouth not realizing that it had alcohol in it, and another time she blew into the device too quickly after brushing her teeth. The State also asked her why she did not ask for help when officers approached her on February 25, 2020, if she wanted to kill herself, and instead asked for help in finding her friend. She explained that she was "scared to admit the embarrassment of wanting to kill [her]self" and that, when she later told police at the jail, she was sent for a mental health evaluation and separated from other inmates.

During closing arguments, defense counsel asked for probation and the State asked for the maximum sentence. The trial court then stated the following when assessing appellant's punishment:

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Well, I would like to tell you all that I have practiced law for 33 years. I've prosecuted people. I've defended people. I've defended family members. And I've been a Judge for 16 years. And I have never in that entire time seen pictures and videos like I saw in this case. I didn't even know that I could be -- I could feel this way after viewing evidence. I've seen dead people and I wasn't affected in the same way that I was [a]ffected by what the [victims] went through in their home.

I've listened to the evidence. I've looked at the pictures, the videos, the reports. I've listened to what everyone has to say here, and I am torn. Because I do believe that there are different theories of punishment, and I've used them all. I've stood before juries, and I've told them, there's a reason why there's a range of punishment, because there's the worst case scenario and the best case scenario. And it's the worst. I just have to say it's the worst case scenario.

And I wrote notes because I want y'all to hear what I'm thinking. Christmas holidays. The people who saw her fly by them and had to come in here and be a witness, and then they knew something had happened because you just know. So [the witness] was a victim.

All the officers, the fire department, the EMT people, they all saw those -- they saw it live, what has affected me this way.

[The husband] says, I built a brick wall around my house, and I still couldn't keep her out. I cannot imagine.

It's very obviously -- it's very obvious that you blacked out, Ms. Hernandez, because you never hit those brakes. You never stopped. And you were messed up when you got in that car, and you knew it, and you've done it before. And I'm ashamed of Dallas County that you got out of that jail, and you didn't have an interlock on your vehicle. I'm ashamed of the county that I have spent the majority of my career working in, because you could have been stopped then, but you weren't. Because you didn't have any monitoring device on your person or your vehicle until you pled guilty to that charge, after you'd already picked this one up. In that one, you sideswiped I don't know how many cars because I heard the conversation about that. Did your insurance pay for those cars?

THE DEFENDANT: I believe so.

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THE COURT: And then -- I'm just going through the evidence. Okay. You destroyed their home. The only thing I think that's more precious than our families, our children, whatever, is the home we live in. So I don't know how it could be more horrible than that. And then you keep going. And [the wife] lived and wasn't buried in the garage because her husband dug her out, and she wasn't set on fire.

So Ms. Hernandez, you said, you know, it's a miracle that [the wife] is okay. Okay. That was your miracle right there. And you walked out of there too. That was a miracle. It's a miracle that this is a misdemeanor.

So I believe much of what you say. I believe that you are a victim of life circumstance, of your own family and your own poor choices, but I have never met people more innocent than the [victims]. So I feel that I do not have any other choice but to give you 365 days in the Collin County jail. I truly believe that because, as I said, for 33 years I've been standing here saying there's a reason for the range, and this is the reason. So that is my sentence.

Defense counsel then requested that appellant be allowed a week to take care of personal matters and to get her affairs in order before beginning her sentence. The trial court ordered appellant to return in two days, on November 12, 2021, and report what she had accomplished in getting her affairs in order.

When appellant returned two days later, she filed a motion to reconsider her sentence. Appellant argued that she had regularly reported and complied with the terms of her pretrial community supervision, including maintaining steady employment, attending Alcoholics Anonymous twice weekly, and paying all fees and costs. The motion also argued that this was a property damage case, and the only person injured and taken to the hospital was appellant. Appellant "expressed

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deep remorse and sorrow for the damage and loss of the home and the mental trauma suffered by the homeowners." Appellant sought for the trial court to instead place her on probation for twenty-four months after a term of confinement for thirty days in jail or, in the alternative, to serve her 365-day confinement in home detention with electronic monitoring. The trial court summarily denied the motion and ordered appellant to turn herself in on November 23.

On November 16, 2021, appellant filed a motion for new trial. The entirety of the motion is as follows:

Vanessa Hernandez requests this Court grant her Motion for New Trial. She would show that: (1) the verdict and sentence is contrary to the law and evidence, (2) her sentence violates due process, and (3) her sentence was rendered on an improper basis. The Defendant prays the court grant this motion and order that a new trial be conducted in the above-entitled and numbered cause.

According to the State's response to the motion for new trial, the trial court initially scheduled an in-person hearing on the motion for January 19, 2022, but changed the hearing to be "by submission with all pleadings to be submitted by January 18, 2022 by 5:00 p.m." The State objected to any untimely amendments to appellant's motion and to the court deciding the motion by submission even though it was "cognizant and sympathetic to the circumstances that courts have had to navigate during the novel COVID-19 pandemic."

On January 18, 2022, appellant filed a brief in support of her motion for new trial, including an affidavit from defense counsel. In her brief, appellant argued for

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the first time that the trial court violated her rights to due process and confrontation in considering extrajudicial facts when assessing her punishment. Due to the State's objections, appellant also sought leave to amend her motion for new trial. Defense counsel testified in his affidavit that the trial court called him and the prosecutor to chambers to discuss options on a couple of occasions, once on the day of the plea and once on the day of the motion to reconsider. On one of those occasions, defense counsel could not remember which, the trial court asked the prosecutor to contact the homeowners and get their input on punishment. According to defense counsel, the trial court indicated it was considering giving appellant the strictest probation possible. Defense counsel further testified in his affidavit that the prosecutor reported back to the judge that the homeowner would not be happy with probation.

The trial court did not rule on appellant's motion for leave, but the trial court's docket entry shows that the motion for new trial was held by affidavit submission on January 19, 2022, and the motion was denied. This appeal followed.

Consideration of Extrajudicial Facts

Appellant argues that the trial court resolved its conflict in how to assess her punishment by considering information it had acquired outside of the sentencing trial itself. Appellant contends that such consideration violated her due process right to a fair sentencing hearing and her right to confrontation because the information was not presented through testimony before the court.

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A criminal defendant has a due process right to the determination of a sentence from a neutral and detached judge. Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); see also Marshall v. Jerrico, Inc. , 446 U.S. 238, 242 (1980) ("The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal trials."); Tumey v. Ohio , 273 U.S. 510 (1927). The denial of a defendant's right to an impartial judge is a structural defect that "affect[s] the framework within which the trial proceeds." Arizona v. Fulminante , 499 U.S. 279, 310 (1991). Because the right to an impartial judge protects against the fundamental right to a fair trial, it cannot be relinquished by inaction alone. Id. ("Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.") (quoting Rose v. Clark , 478 U.S. 570, 577-78 (1986) (internal citations omitted)); Marin v. State , 851 S.W.2d 275, 278 (Tex. Crim. App. 1993) ("Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system. . . . That is to say, they are not extinguished by inaction alone."), overruled on other grounds by Cain v. State , 947 S.W.2d 262 (Tex. Crim. App. 1997); Gentry v. State , No. 06-05-00237-CR, 2006 WL 932057, at *2 (Tex. App.-Texarkana Apr. 12, 2006, no pet.) (mem. op., not designated for publication) ("conclude[ing] a defendant does not waive appellate review of the structural defect of his or her right to an impartial judge by failing to object"). In the absence of a clear showing to the contrary, we presume

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that the trial court acted as a neutral and detached decisionmaker. Brumit , 206 S.W.3d at 645; Taylor v. State , Nos. 05-13-01369-CR, 05-13-01370-CR, 2014 WL 7476393, at *3 (Tex. App.-Dallas Dec. 30, 2014, no pet.) (not designated for publication). However, when the trial court considers extrajudicial facts in reaching a decision, the trial court is no longer an impartial, neutral and detached decisionmaker. See, e.g. , Taylor , 2014 WL 7476393, at *3 (concluding that trial court's telephone call to defendant's employer was "an extrajudicial matter that influenced the court's sentencing decision," was not the action of "an unbiased judicial officer," and "deprived [defendant] of his due process right to a fundamentally fair sentencing proceeding"); Gentry , 2006 WL 932057, at *3 (concluding that trial judge was disqualified from acting when judge "stated clearly that he was making his determination and ruling based, not on the evidence adduced at the hearing, but on his personal knowledge of the event").

A criminal defendant also has a constitutional right to confront the witnesses against him. U.S. Const. amend. VI. A violation of the right to confrontation, however, must be timely objected to in order to preserve the issue for appellate review. Davis v. State , 313 S.W.3d 317, 347 (Tex. Crim. App. 2010).

Appellant alleges three extrajudicial facts considered by the trial court: (1) when she was released from Dallas County Jail for the February 25, 2020 DWI, she

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did not have an interlock device; (2) she sideswiped a number of cars on February 25, 2020; and (3) the victims wanted jail time. We address each in turn.

First, as to the trial court's comment that appellant did not have an interlock when she was released in February 2020, appellant admitted to not having a monitoring device and not being on pre-trial supervision during her testimony at the sentencing trial. The State asked her on cross-examination whether she was required to have a deep lung device placed in her car while she was on pretrial diversion for the February 2020 DWI. Appellant responded, "[N]o." Appellant's further testimony made it clear that she was not even placed on pre-trial supervision for the February 2020 DWI. Therefore, the trial court did not consider an extrajudicial fact when commenting on Dallas County's failure to require a monitoring device.

We next turn to the trial court's statement during her assessment of appellant's punishment that appellant "sideswiped I don't know how many cars because I heard the conversation about that." Our review of the record shows that, on an officer's body-camera footage from appellant's February 25, 2020 DWI, the officer mentions

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damage to appellant's car and tells the other officer that he is going to walk down the street to look at the other vehicles. The recording then depicts the officer walking toward a line of cars parked along the side of the street that appellant would have just passed when she drove up on the curb and sidewalk. When he returns to appellant's car, he tells the other officer that "all of those cars have damage." Additionally, appellant confirmed that she sideswiped cars when the trial court asked if her insurance paid for them, and she responded, "I believe so." Therefore, we conclude that the trial court relied on information it learned from the evidence admitted when making the statement about appellant sideswiping the cars.

And finally, as to the victims' wishes regarding punishment, it is not clear from the record when, or even if, this conversation took place. At the sentencing trial, the husband testified about how the incident affected them mentally and emotionally. He also explained that they had paid off the house and that he wanted his wife to stop working in the next three or four years. Because they were having to "start over again," she could not do that. He testified that it was not fair, they were innocently sleeping in their beds, and "there should be punishment to fit the crime."

We also note that defense counsel represented the following during his closing argument:

The victims got on the witness stand and both of them were void of any kind of punishment of put this young lady in jail. She needs to learn her lesson, put her in jail for a year. Neither one of the victims. They're

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both -- it's in the record, they're both Christians. They're both fine people. Neither one of them came out yelling and screaming at Ms. Hernandez saying we want her in jail.

Defense counsel also emphasized that the victims did not ask for jail time several more times throughout his closing. When the trial court explained its reasons and assessed appellant's punishment, no mention was made of the victims' wishes. The logical conclusion from this chronology, especially defense counsel's closing argument, is that the alleged conversation about the victims wanting jail time occurred after the trial court had already assessed punishment at 365 days. Therefore, appellant has not shown that the trial court considered this extrajudicial fact when assessing punishment at the end of the plea hearing. See Goodman v. State , Nos. 05-20-00172-00176-CR, 2021 WL 3042675, at *3 (Tex. App.-Dallas July 19, 2021, no pet.) (mem. op., not designated for publication) (explaining that "appellant must show the trial judge's statements stemmed from an extrajudicial source and resulted in sentencing on some basis other than what the judge learned during his participation in the case") (citing United States v. Grinnell Corp. , 384 U.S. 563, 583 (1966)).

Because the trial court did not consider extrajudicial facts in assessing appellant's punishment, appellant was not deprived of her due process right to an impartial judge. Therefore, we overrule appellant's first issue.

Furthermore, because appellant did not object on the record to the admission of the officer's body-camera footage or to the prosecutor reporting the victims'

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wishes on confrontation grounds, she has failed to preserve her second issue for our review. See Davis , 313 S.W.3d at 347. Appellant's own testimony was the source of the trial court's knowledge that she did not have a monitoring device and, thus, could not have violated her right to confront the witnesses against her. Therefore, we also overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.

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JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED . Judgment entered this 26th day of June 2023.