Hernandez, Frank, III

Hernandez was convicted of aggravated assault with a deadly weapon stemming from a confrontation caught on multiple videos outside a bar. During trial, the State asked questions of witnesses to the fight as video was played, including slowing down and stopping it to discuss what it showed. On the fourth day of trial, one of his subpoenaed witnesses was a no-show. A few days later, November 13th, the case was reset to December 5th to locate one of Hernandez’s witness. A juror later said he would not be able to focus on trial if it resumed December 5th because of a corporate meeting. He further said he had a vacation scheduled for Hernandez’s suggested alternative date of December 18th. The trial court rejected Hernandez’s request for an even lengthier continuance, discharged the juror as disabled under TEX. CODE CRIM. PROC. art. 36.29, and proceeded with an alternate. The missing witness, Ramirez, was eventually located but he invoked his Fifth Amendment privilege. At trial, defense counsel proffered that Ramirez would testify that he saw the victim wield a knife. After conviction, Hernandez filed a motion for new trial based on newly discovered evidence, i.e., Ramirez’s (now-willing) testimony matching the proffer. The trial court denied his motion.

Hernandez appealed. The court of appeals held the trial court did not abuse its discretion by finding the juror disabled, as that term includes a mental condition or emotional state that hinders the juror’s ability to perform his duties. As for his claim that the video commentary was “speculative, cumulative, and ultimately irrelevant,” the court held that most occurrences drew no objection (or no ruling) and Hernandez provided no “authority establishing that a trial court abuses its discretion by allowing a party to replay, slow down, or zoom in on a video admitted as evidence.” Finally, the court rejected Hernandez’s “new evidence” claim as inadequately briefed.

On review, Hernandez says he preserved his “video” claim through his multiple objections to “a continuing mode of presentation”; the court of appeals should not have treated what happened as a series of discrete objectional acts. On the merits, Hernandez now invokes TEX. R. EVID. 701 to argue that lay opinions of videos the jury can watch for themselves creates a risk “that jurors will defer to that interpretation instead of exercising independent judgment.” Regarding the “disabled” juror, he argues that the condition that juror described falls short of the kind of incapacitating conditions the Court of Criminal Appeals has treated as disability. As for the “new evidence” issue, Hernandez argues that his citation to the appropriate authorities—authorities discussed in his petition—should have been enough based on the facts of this case. The court of appeals, he claims, insisted on “stylistic perfection” when it understood his claim enough to address it.