Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

HERNANDEZ, PEDRO, JR.

PD-0589-19 11/20/2019

1. “The Eleventh Court of Appeals decided an issue that is contrary to a decision of the Court of Criminal Appeals in that the Appeals Court decided the legal sufficiency in this case in a way that is contrary to the record and it failed to apply the legal authorities to the facts of Petitioner’s case?”

2. “The Eleventh Court of Appeals decided an Issue that is contrary to a decision of the U.S. Supreme Court in that the Appeals Court did not apply the sufficiency legal standard set by the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307 to the facts in the Petitioner’s case?”

3. “The trial court erred when it denied Petitioner’s motion for directed verdict because the Petitioner was not guilty under the standard identified by the U.S. Supreme Court and the Texas Court of Criminal Appeals in Jackson and Brooks respectfully?”

An officer dropped off Hernandez at his former residence after he told police that someone was threatening him and wanted to kill him. After breaking into his old house armed with a knife, Hernandez fled and broke down the door of another home. He was restrained by the owner. After calling 911, the owner gave Hernandez his cell phone to use because Hernandez insisted that he needed to report to police that someone was after him. Hernandez called 911, “bolted out” the door with the phone, jumped a fence, and broke into a third home. When a deputy arrived, Hernandez exited the house hysterical and reported that he was being pursued. The deputy believed Hernandez was on drugs. The deputy later discovered the phone on the ground outside a window Hernandez had broken through. Hernandez was convicted of burglary of a habitation during which he committed theft of the cell phone.

Hernandez claimed on appeal that the evidence was insufficient to show he intended to deprive the owner of the phone. He argued that he mistakenly thought he was being chased, the owner did not stop him from bolting out the door with the phone, he surrendered before he could return it, and he did not steal any other property. The court rejected his claim. Giving deference to the jury’s credibility determinations, the court noted that the owner only gave the phone to Hernandez so he could make a call. Further, Hernandez’s flight from the house is consistent with knowledge that he was not authorized to take the phone. Intent to deprive could also be inferred from the fact he did not return it. The jury could have inferred that he intended the deprivation to be permanent and that he only dropped the phone accidentally. And it would have been rational to find he had intended to retrieve it but was prevented from doing so when the deputy arrived.

Hernandez challenges the court of appeals’ holding. He stresses that, even though he broke into three homes, he did not take anything else. Additionally, he was consumed with running away from imagined enemies for his protection; the taking of the phone was incidental to his true intent. Lastly, his lack of intent is shown by his inadequate planning; he did not have a car and therefore “had no means with which to carry any loot that he did steal.”

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