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Richard Hernandez v. State
Citation: Not availableDocket: 04-98-00959-CR
Court: Court of Appeals of Texas; June 23, 1999; Texas; State Appellate Court
Original Court Document: View Document
Richard Hernandez appeals his conviction for aggravated assault with a deadly weapon, presenting three issues: 1) the trial court's error in allowing the complaining witness to remain in the courtroom during the State's opening argument; 2) the trial court's error in permitting the prosecutor to read part of a witness's statement into evidence; and 3) the claim that the evidence was insufficient to support the finding of a deadly weapon. The appellate court overruled these contentions and affirmed the trial court's judgment. The factual background indicates that on December 8, 1995, Abel Torres, while heavily intoxicated at a bar, insulted Hernandez, who was dating the bar's manager, Lori Berry. Following an unsuccessful attempt by Berry to have Torres's family take him home, she escorted him to his truck. Hernandez, armed with a handgun, threatened a waitress to gain access to the bar after Berry and Torres departed. Witnesses reported Hernandez's prior threats to shoot Torres, and after leaving the bar, numerous gunshots were heard. Torres sustained multiple gunshot wounds, resulting in disability. The detective's investigation revealed extensive bullet damage and casings consistent with a nine-millimeter firearm. Hernandez's first point of error regarding the exclusion of the complaining witness was deemed inapplicable, as Texas law does not require the exclusion of witnesses during opening arguments, which is distinct from the testimony phase of the trial. The appellate court found that the purpose of the exclusion rule does not extend to opening statements. The jury ultimately convicted Hernandez, and he chose not to have the jury assess his punishment, which the trial court set at twenty years of confinement. The rule in question does not apply to opening arguments, as clarified by its language and purpose. It permits discussions between counsel and witnesses under the rule, provided these occur outside the presence of other witnesses, as established in relevant case law. The trial court did not err in allowing the complaining witness to remain in the courtroom during opening arguments, resulting in the overruling of Hernandez's first objection. Regarding the second issue, Hernandez contested the trial court's decision to permit the prosecutor to read a statement from witness Harshaw, which included remarks made by Hernandez between the shooting and the statement's recording. Despite Harshaw's inability to recall the conversation during the trial, the prosecutor established that her statement was made shortly after the incident, and she did not lie to law enforcement. The defense's objection, based on improper impeachment, did not align with the appellate argument concerning hearsay admissibility, rendering the objection ineffective for review. Consequently, Hernandez's second issue is also overruled. On the third issue, Hernandez argued that the evidence was insufficient to support the finding of a deadly weapon. The standard for review requires assessing the evidence in favor of the prosecution. Witness testimonies indicated that Hernandez brandished a handgun and fired at another individual. The evidence, including shell casings linked to a semi-automatic pistol, supported the jury's conclusion that Hernandez used a handgun during the crime. Thus, Hernandez's third issue is overruled. The trial court's judgment is affirmed by Chief Justice Phil Hardberger.