2017-04-17

IDENTITY OF PARTIES AND COUNSEL

Appellant: Jose Miguel Hernandez
TDCJ—Beto Unit
1391 F.M. 3328
Tennessee Colony, TX 75880

Appellant’s Trial Counsel: Maria Lopez
9920 Calf Meadows Lane
Benbrook, TX 76126
Tel: (806) 236-5300
State Bar No. 00794187

Appellant’s Appellate Counsel: Hillary S. Netardus
P.O. Box 50652
Amarillo, Texas 79159-0652
Tel: (806) 681-5431
State Bar No. 00791683

Appellee: State of Texas
Appellee’s Trial Counsel: L. Charles Slaughter
Assistant District Attorney
Potter Co. District Attorney’s Office
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
Tel: (806) 379-2325
State Bar No. 18490100

Appellee’s Appellate Counsel:
Jack Owen
Assistant District Attorney
Potter Co. District Attorney’s Office
501 S. Fillmore, Suite, 5A
Amarillo, Texas 79101
Tel: (806) 379-2325
State Bar No. 15369200

STATEMENT OF THE CASE

On December 17, 2015, a Potter County Grand Jury returned a true bill of
indictment against appellant Jose Miguel Hernandez for a murder alleged to have been
committed on November 23, 2014. C.R. 1: 26. Appellant pled not guilty to a jury, and
the case proceeded to trial on September 12, 2016. C.R. 1: 98, 113. On September 14,
2015, the jury found appellant guilty (C.R. 1: 90, 98, 114) and, the following day,
assessed punishment at 65 years confinement in the Institutional Division of the Texas
Department of Criminal Justice. C.R. 1: 94, 98. This appeal ensued. C.R. 1: 102.

STATEMENT OF FACTS

Amarillo Police Department Officer Toby Matthews was working the north side of
the city on November 23, 2014 when he was dispatched at 8:58 p.m. to 1621 North
Garfield in reference to an aggravated assault involving a screwdriver. R.R. 3: 9 – 11.
Matthews was not the primary officer, but he was the first to arrive at the scene. R.R. 3:
10. There, he discovered a “frantic scene” with people “just waving [him] down in a
frantic manner saying, you know, hurry, hurry.” R.R. 3: 12. Matthews identified three
witnesses in the yard at 1621 North Garfield—Alexsandra Magana, Mark Noriega, and
Juan Noriega. R.R. 3: 12—3.
The witnesses “had [him] follow them into the house as they were showing [him]
where the individual that apparently had been stabbed with the screwdriver was.” R.R.
3: 13. Upon entering the house, he was directed to a bedroom to his immediate left.
R.R. 3: 18. There, he observed, “a bed on the far southeast wall and at the foot of that
bed there was a Hispanic male laying there, some blood underneath him.” R.R. 3: 18.
Matthews then asked the group where the weapon was, and one of the males,
“[p]ossibly Mark,” said he “pulled it out [of the victim’s head] and applied pressure. R.R.
3: 18.

Concerned about the integrity of the crime scene, Matthews had “everybody exit
the house as other officers were already on the scene.
” R.R. 3: 19. By that point

Matthews had “already received information from these witnesses that the suspect had
already left the scene.” R.R. 3: 19. At the time, the witnesses could only provide the
name “Jose” as an identifier, though Matthews obtained “a little bit more information a
little bit later.” R.R. 3: 19.

After clearing the area for EMS, and insuring there was no one else in the house,
Matthews went back outside and “started talking to witnesses.” R.R. 3: 19. First,
Matthews spoke first to Alexsandra (known at trial as Alex), who “said she didn’t know
the suspect, that all she knew it was Mark’s friend and she pointed in the direction of
Mark.” R.R. 3: 22. Speaking to Mark, Matthews obtained “a little bit more information
about the suspect.” R.R. 3: 22. However, Mark “didn’t really say what happened.” R.R.
3: 22.

At some point an additional potential witness arrived at the house. R.R. 3: 23.
Matthews identified her as Desirae Riojas, and “she was apparently on scene just prior
to the incident occurring.” R.R. 3: 23. Desirae told Matthews that “she didn’t know a lot
. . . didn’t know anybody’s name and that she had just left prior to anything actually
happening.” R.R. 3: 24.

Matthews understood his job at the scene “was to kind of--keeping the witnesses
corralled and keeping them available there for the detectives for when they got there.”
R.R. 3: 25. As a result, except for his brief conversations with the witnesses, he “didn’t
take any written statements or anything such as that.” R.R. 3: 25. In fact, when he
asked Desirae to give him an affidavit, “[s]he stated she did not know anybody’s names
and did not know at why she had to fill out an affidavit.” R.R. 3: 28. Matthews
remained at the scene or “Special Crimes” until the end of his shift at 1:00 a.m. on
November 24th

Officer Michael Fenwick recalled being dispatched around 9:00 on the evening of
November 23, 2014 to 1621 North Garfield. R.R. 3: 30. When he arrived, Fenwick
observed, “[t]here was a house with three people inside that were visibly upset.” R.R. 3:
30. Upon entering, Fenwick “searched around the house to locate the victim and to see
if the suspect was there to render the scene safe.” R.R. 3: 31. He did not locate the
suspect, but did find the victim, whom he identified as Sal Ramirez, “lying on the floor
with a puncture wound in his temple.” R.R. 3: 31-2. He believed the injury was on
Ramirez’s left temple. R.R. 3: 31. Fenwick noted that Ramirez was “displaying agonal
breathing,” which is “the lower respiratory breathing the body makes when it’s dying.”
R.R. 3: 31. Fenwick did not attempt any life-saving measures, but rather cleared the
scene “for AMS so they could get in and begin to attempt” them. R.R. 3: 33.
Officers took photographs of the crime scene including Ramirez’s placement on
the floor of the bedroom before AMS transported him to the hospital.1 R.R. 3: 20, 34; 6:
State’s Exhibits 8-10). According to Fenwick, Ramirez’s position between the dresser
and the bed created “a very tight scene,” R.R. 3: 38.

Also included among the crime scene photos was a picture of the screwdriver
allegedly used in the commission of the offense. R.R. 3: 45. The screwdriver was
located “roughly” three or four feet away from where Ramirez’s body was found. R.R. 3:
45. While the instrument was not visible when Fenwick first arrived, “another officer”[^2]
must have removed the “shirt or sweater on top of it” to reveal its location. R.R. 3: 46.
As soon as the crime scene “was rendered safe and it was cleared for medical .
. . personnel,”[^3] Fenwick assisted in placing the three witnesses in separate vehicles to
prevent them from talking “amongst themselves” and changing their “depiction of what
happened by going over it with someone else.” R.R. 3: 35-6. Fenwick prepared a
report of his actions vis a vis the crime scene, which report went to Sergeant
Riddlesburger, the detective assigned to investigate the case. R.R. 3: 37.

In November of 2014, Alexsandra Magana (Alex) lived at 1621 Garfield with her
two brothers, Juan and Mark Noriega, a cousin, Gabby Escobedo, and his girlfriend,
Erika, and Ramirez. R.R. 3: 50. The house there had two bedrooms, a bathroom,
kitchen, living room, and laundry room. R.R. 3: 55-6; 6: State’s Exhibit 49). Alex slept
in the “first bedroom.” R.R. 3: 53. She believed her brothers, Juan and Mark, slept in
the living room along with Ramirez, and her cousin and his girlfriend in the “back room.”
R.R. 3: 53-4. Despite the numerous people living at the residence, the house, while

[2]: As discussed in more depth below, APD Officer Logan Grazier, actually located the screwdriver under a sweatshirt on the bedroom floor not far from Ramirez’s body.
[3]: It is unclear from the record how long this process took. Moreover, there is no testimony regarding when emergency personnel actually arrived at the scene.

having electricity, did not have running water.[^4] R.R. 3: 52. Instead, the occupants used
nearby relatives’ houses to attend to their bathroom needs. R.R. 3: 52.

On the evening of November 23, 2014, Alex was at home with her brothers,
Ramirez, and Desirae, Juan’s girlfriend.[^5] R.R. 3: 58. At that point, Alex had known
Ramirez for two to three years, having originally “seen” him through his friendship with
her brother and later “actually really” meeting him at the Milan cosmetology school they
each attended about six months before the offense.[^6] R.R. 3: 50, 57. That night, the
group was “watching the football game and hanging out.” R.R. 3:59. Simultaneously,
Ramirez began cutting first Desirae’s hair, then Mark’s and finally his own. R.R. 3: 59-
60. While Ramirez was cutting Desirae’s hair, appellant, Mark’s best friend, showed up.
R.R. 3: 60. Appellant was “acting drunk,” “hugging on [Alex’s] brothers and telling . . .
them he loved them,” behaviors which were not uncommon for him. R.R. 3: 61.

After Ramirez cut Desirae’s hair, Alex accompanied her and Juan to Desirae’s
grandmother’s house so they each could take a shower. R.R. 3: 62. The trio was gone
about an hour. R.R. 3: 62. When they returned, Mark, Ramirez, and appellant were still
at the house, Ramirez was finishing up Mark’s haircut and preparing to cut his own.
R.R. 3: 62. According to Alex, appellant was “[j]ust standing there watching.” R.R. 3:
61. They were not “fighting or arguing.” R.R. 3: 63.

[4]: The lack of running water apparently did not prevent some household members from utilizing the restroom facilities there. R.R. 3: 64.
[5]: Juan and Desirae were estranged by the time of trial. R.R. 3: 111.
[6]: As of November 23, 2014, Alex no longer attended Milan, and Ramirez had “just graduated.” R.R. 3: 51.

Once Ramirez completed Mark’s haircut, he moved to Alex’s room, where he
could avail himself of the big mirror on her dresser. R.R. 3: 63. The dresser was
located to the immediate left of the door upon entry into Alex’s. R.R. 3: 38; 6, State’s
Exhibits 8, 24, 34. Directly across from the dresser was the foot of the bed. R.R. 3: 38.
Both the dresser and the bed were flush against the east wall of the room. R.R. 6:
State’s Exhibits 22, 24. To accomplish his own haircut, Ramirez sat on the dresser with
his back to the big mirror while holding a little mirror to “look at the back of his head.”
R.R. 3: 63.
Once Ramirez had positioned himself on the dresser, Alex “went to sit on [her]
bed”
—more specifically, in the middle of the bed. R.R. 3: 63, 69. Because Alex’s
brother’s clothes[^7] were located on the edge of the dresser closest to the door, Ramirez
was sitting “a good ways over there,” to the right of the clothes when facing the
dresser.” R.R. 3: 68. Alex was facing Ramirez, who was facing her. R.R. 3: 77. While
Ramirez was occupied cutting his hair, Alex was on her phone, “talking to a friend and
texting.” R.R. 3: 64.

By this time, Mark had gone to the restroom, and appellant was standing at the
doorway into her bedroom. R.R. 3: 64. Alex was not “paying attention” enough to
notice whether appellant had anything in his hands while he was standing in the
doorway. R.R. 3: 77. Though Juan had told her he was going to the kitchen, Alex did
not actually know where he was. R.R. 3: 64.

Because Alex’s testimony about the events that transpired immediately thereafter
is the only alleged “eyewitness” account of the crime, it is presented in detail below:

[7]: The clothes appear to be stored in a three-drawer white and clear plastic chest of
drawers

PROSECUTOR: All right. While you were talking on the phone,
what happened?
ALEX: Jose [Appellant] moved his way to – [Ramirez].
PROSECUTOR: What do you mean he moved his way to
[Ramirez]?
ALEX: Like, he just crossed and stabbed him
PROSECUTOR: He – he came into the room or what?
ALEX: He was already in the room.
PROSECUTOR: Okay. And what did he do?
ALEX: Well, I heard, like noise, and when I looked up, he had
already stabbed him and laid him on the floor.
PROSECUTOR: He had already stabbed him? What did he stab
him with?
ALEX: A screwdriver.
PROSECUTOR: Did you see him stab him with the screwdriver or
did you see him after he stabbed him with the screwdriver and laid
him on the floor?
ALEX: When he did it.
PROSECUTOR: When he did it? Okay. And the Jose – and who
stabbed [Ramirez] with the screwdriver?
ALEX: Jose [appellant]. R.R. 3: 64-5.
Later, Alex amended her statements in the following manner:
PROSECUTOR: Okay. So when –when Jose walked in, tell us
where he walked in this picture [State’s Exhibit 26}. How far in
there between the bed and – and the dresser did Jose walk?
ALEX: About right there.
PROSECUTOR: Are you pointing right here. About how far down
is that?
ALEX: Half – halfway of the dresser.
PROSECUTOR: Halfway down the dresser? Okay. And then
when he got halfway down the dresser, what did he do? What
specifically did you see him do?

ALEX: He crossed over [Ramirez] and stabbed him.
PROSECUTOR: He crossed over to the other side of [Ramirez}?
ALEX: No. Like. He just turned –I don’t know.
PROSECUTOR: Who turned?
ALEX: Jose. I don’t know how to explain it. Like, he just reached
over, I guess.
PROSECUTOR: Okay. You had your hand – can you lift your
hand up and show how you saw him stab Ramirez?
ALEX: He just turned like that.
PROSECUTOR: Okay. So you’re taking your hand and you’re
moving it like this?
ALEX: To the other side of his head.[^8]
PROSECUTOR: To the other side of his head. Okay.
(emphasis added). R.R. 3: 69.

According to Alex, appellant had the screwdriver in his
right hand when he stabbed Ramirez. R.R. 3: 67

Alex did not recall hearing Ramirez or appellant say anything prior to the assault.
R.R. 3: 70. Neither had she seen any evidence of them fighting in any way that
evening. R.R. 3: 70. In fact, she had never seen Ramirez and appellant fight over
anything. R.R. 3: 70.

Alex indicated that, after the assault, appellant told her to hang up the phone,
which she did. R.R. 3: 65. Shortly thereafter, her brothers ran into the room and asked
[appellant] what happened, to which appellant responded, “shh,” and ran outside. R.R.
3: 66. While she indicated in her statement on the night of the offense that her brothers
tried to hold appellant down before he left, at trial, she did not “really remember,” but

[8]: The State failed to describe Alex’s motion for the record. Likewise, defense counsel neglected to detail her own movement in an apparent re-enactment of Alex’s previous re-enactment of appellant stabbing Ramirez. R.R. 3: 75

agreed that her recollection of events at the time of the offense was more accurate than
her memory at trial. R.R. 3: 77. Ultimately, she testified that only Mark attempted to
hold appellant down. R.R. 3: 78. In addition, though she testified at trial that she did
not watch appellant run out of the house, she admitted that, in her written statement on
the night of the offense, she said she “saw him leave the house running and he turned
back towards Amarillo Boulevard.” R.R. 3: 71. Again, Alex conceded, “if I wrote it in my
statement I must have remembered seeing him.” R.R. 3: 71.

At some point, Alex observed Juan pull the screwdriver out of Ramirez’s head
and place it on the floor. R.R. 3: 67, 73. Alex had never seen the screwdriver before
the night of the offense and denied possessing any tools of her own. R.R. 3: 72.

After appellant left the scene, Alex dialed 911 then handed the phone to Juan
who spoke with a dispatcher. R.R. 3: 66. While Juan was talking to 911 and
administering first aid, Alex remained in her bedroom and Mark stood in the doorway
between her room and the living room. R.R. 3: 79. At some point, “the ambulance and
cops showed up and put [them] in a cop car.” R.R. 3: 67. When the ambulance left with
Ramirez, she thought he might live. R.R. 3: 73. It was only when she was at the police
department giving a statement that she learned Ramirez’s injuries were fatal. R.R. 3:

Mark Noriega and appellant grew up together, having met in middle school. R.R.
3: 83. In November of 2014, Mark was living at 1621 North Garfield with Ramirez, his
brother Juan, sister Alex, and a cousin Gabriel and his girlfriend. R.R. 3: 82.
In the early evening of the 23rd, Mark recalled that he was at the house with
Ramirez, Alex, Juan, and a couple of cousins who stopped by for only 25 to 30 minutes.

R.R. 3: 86. Later that evening, Ramirez cut Desirae’s hair and then Mark’s. R.R. 3: 86.
When Ramirez was cutting Mark’s hair, the only people in the house were Mark,
Ramirez and appellant as Desirae, Juan, and Alex had gone some place Mark could not
recall. R.R. 3: 88.

While Ramirez was cutting his hair in the kitchen, appellant arrived. R.R. 3: 87.
According to Mark, appellant was “just happy,” “telling [them] how much he missed
kicking – how much he missed coming over to [his] house” because he was busy with
school and work. R.R. 3: 87.

When Ramirez finished Mark’s haircut, Mark suggested he move to Alex’s room
to avail himself of the “mirrors in there, because he was going to cut his own hair.” R.R.
3: 88-9. Before Ramirez could move to the bedroom, Desirae, Juan and Alex returned
to the house. R.R. 3: 89. Mark was a bit uncertain how much time had passed
between the time appellant arrived and when Desirae, Juan, and Alex returned to the
house saying variously “[it] was probably an hour . . . [n]ot even that,” “[l]ike 45 minutes,”
“[t]hey were gone, like, not even – a little bit before [appellant] got there,” and ‘[t]hey
weren’t even gone roughly ten minutes.” R.R. 3: 88.

Ramirez eventually enterered Alex’s room and began cutting his own hair. R.R.
3: 89. Mark thought he was “leaning on the dresser and he would sit on the dresser and
hold the mirror up to look at the back of his head to cut the back of his head.” R.R. 3:
89. According to Mark, Alex was sitting on the bed and he “was in the living room . . . or
. . . just like walking around the house.” R.R. 3: 90.

Meanwhile, Desirae and Juan were “in and out of the house . . . while [Ramirez]
was cutting his hair.” R.R. 3: 90. At some point, Mark left the living room and went to
the bathroom. R.R. 3: 90. While there, he “heard furniture moving, like if somebody
was wrestling or fighting . . . [b]ut he didn’t hear no noise.” R.R. 3: 90. Neither did he
hear yelling. R.R. 3: 90.

At trial Mark told the jury he thought nothing of the sound until he heard “Juan’s voice
saying, what did you do and why did you do that?” R.R. 3: 91.

At that point, Mark ran out of the bathroom and “seen [his] brother telling [appellant],
man why did you do that? What did you do? Why did you do that?” R.R. 3: 91. Juan
told Mark that appellant “stabbed [Ramirez] in the head with a screwdriver.” R.R. 3: 91.
Despite his earlier testimony about seeing appellant and Juan in the room with
Ramirez, Mark claimed during cross-examination that the only people he observed
when he entered the bedroom were Ramirez and Alex, who was “like shocked.” R.R. 3:
99. And, when confronted with conflicts between his trial testimony and assertions
made in the handwritten statement he provided police on the night of the offense, Mark
agreed that his written statement was more reliable than his trial testimony. R.R. 3: 99.
In that statement, Mark told police he saw only Ramirez when he entered the bedroom.
R.R. 3: 99. Indeed, he was unsure where Alex, Juan or Desirae were when he entered
the room and saw Ramirez on the floor. R.R. 3: 99.

Mark recalled going to check on Ramirez but did not remember whether he tried
to grab appellant saying, “[h]e [appellant] was a really good friend to me.” R.R. 3: 91.
Entering the bedroom, Mark observed Ramirez laying facedown on the floor “right in
front of where he was cutting his hair in front of the dresser,” “[b]etween the bed and
the dresser.” R.R. 3: 92. At the time, Mark did not see the screwdriver. He then told
his brother and sister to call 911. R.R. 3: 93. Mark believed he heard Juan tell the 911
dispatcher that he [Juan] had already pulled the screwdriver out of Ramirez’s head.
R.R. 3: 93.

While the police arrived in “[n]ot even five minutes,” Mark believed they
really could have been faster in entering the house to help his friend. R.R. 3: 94.
At trial, some 18 months after the offense, Mark told the jury he did not recall
having ever seen the screwdriver used to stab Ramirez before that night. R.R. 3: 94.
And, while Mark testified he saw the screwdriver in appellant’s possession on the night
of the offense, he failed to include that relevant detail in the statement he provided
police that evening. R.R. 3: 95. During trial Mark told the jury that while Ramirez was
cutting his hair in the kitchen, appellant was “sitting there throwing it [the screwdriver] up
and down and catching it.” R.R. 3: 95. In an attempt to explain the omission of the
details about the screwdriver in the earlier statement, Mark offered, “[b]ecause
whenever we gave the statements it was just like – they didn’t ask me all that. They
asked me what happened, like at the moment. I didn’t think that was like – I just told
them what happened.” (emphasis added). R.R. 3: 95.

While claiming to have never seen the screwdriver before, Mark acknowledged
the fact that his DNA had been recovered from its handle. R.R. 3: 96. And, again,
though failing to have included this information in his original statement, he recalled at
trial that appellant dropped the screwdriver at one point and they both “went down to –
to reach for it to pick it up.” R.R. 3: 96. He did not recall, however, which of them
ultimately retrieved the screwdriver. R.R. 3: 96. In the end, he simply conceded he had
no idea how his DNA “got on that screwdriver.” R.R. 3: 96.

Mark admitted he did not see appellant stab Ramirez. R.R. 3: 102. Finally, when
asked whether appellant, his friend of many years, was right or left-handed, Mark
responded: “I think he can use both hands. But I’m – I think he’s right-handed, but I
think – I do believe that he can write with both hands.” R.R. 3: 102.

Juan Noriega, sometimes known by family as Alfie, had known appellant through
his brother for several years, but did not become friends with him until after high school.
R.R. 3: 105. Despite their lengthy relationship, Juan did not know whether appellant
was left or right handed. R.R. 3: 129.

On November 23, 2014, Juan was living at 1621 North Garfield with his girlfriend
Desirae, sister Alex, brother Mark, cousin Gabriel and his “baby mama” Erika, and
Ramirez. R.R. 3: 106-07. That night he, Alex, Desirae, Mark, and Ramirez were at the
house. R.R. 3: 108. Ramirez gave Desirae “a little fade on the side” and afterwards
Juan took her to his grandmother’s so she could take a shower. R.R. 3: 108. They had
to utilize the facilities at his grandmother’s house because the house at 1621 North
Garfield had not “had water or gas running there for . . . about three years.” R.R. 3 108.

When Desirae and Juan returned to the house, appellant answered the door for
them. R.R. 3: 109. They located Ramirez and Mark in the kitchen where Ramirez was
cutting Mark’s hair. R.R. 3: 109. Appellant was in the kitchen with them “walking
around Mark, pretty much like pacing . . . [a]nd pretty much that’s what he was doing,
just talking and freestyling[^9].” R.R. 3: 110.

According to Juan, appellant was “already drunk” when he returned, as evidenced by the fact that he was “giving everybody hugsand telling everybody what’s up.” R.R. 3: 128. In fact, Juan had ‘[n]ever actually seen . . . [appellant] be violent towards anybody or anything. R.R. 3: 128. He was always just
mellow, freestyling.” R.R. 3: 128.

[9]: Juan described “freestyling” as an activity in which music is played and performers begin rapping “just off the top of their mind.” R.R. 3: 109-10.

Once Ramirez completed Mark’s haircut, Mark went to the restroom while
Ramirez retired to the first [Alex’s] bedroom to cut his own hair. R.R. 3: 110. Alex was
sitting on the bed in her room, and Ramirez “had his back propped up against the
dresser – or up against the dresser sitting on top of the dresser.” R.R. 3: 111. Juan
explained: “He had another mirror like that and he just had his clippers using the mirror
to cut the back of his hair with a huge mirror behind him.” R.R. 3: 111.
While Ramirez was cutting his own hair, Juan accompanied Desirae to her
mother or grandmother’s house a block away and then returned to the house alone.
R.R. 3: 112. Once inside the house, [^10] Juan leaned over the couch to grab his cigarette
and jacket. R.R. 3: 112. Contemporaneously, he heard his “sister scream and the door
slam” behind him. R.R. 3: 112. When Juan “took a step forward to see why [his] sister
screamed, and “looked to the side,” he saw Ramirez falling. R.R. 3: 112. Juan
observed that Ramirez still had the mirror in his hand, as well as the clippers, but that
he “started like just slowly falling over to the bed.” R.R. 3: 112. Once he hit the bed,
Ramirez started sliding off of it, and Juan grabbed him. R.R. 3: 113. It was at that time
that he observed the screwdriver “stuck” in the left temple of Ramirez’s head. R.R. 3:
113.

Regarding the door slam in relation to his discovery that Ramirez had been
stabbed, Juan provided varying accounts, both in his trial testimony and the “quick
handwritten” and then more detailed typewritten statements given the night of the
offense.[^11]

Ultimately, at trial Juan decided on the following version: “I checked on [Ramirez]
and then I ran out to the front door right there. We have a big window on the door.
So that’s whenever I checked. Looked out the window and I seen him running.”
R.R. 3: 120. During cross-examination, he further clarified that he first checked on
Ramirez, then went to the window to see appellant fleeing the scene, thereafter
returning to Alex’s bedroom where Mark joined them soon after. R.R. 3: 122-23.

At some point during the melee, Juan began screaming, “out the top of [his]
lungs, like why did you do it?”[^12] R.R. 3: 114. Under any of the scenarios provided by
Juan, either in his pre-trial statements or his trial testimony, it is clear appellant was no
longer in the house when Juan began to shout. R.R. 3: 114. In the midst of the
screaming, Juan apparently pulled the screwdriver out of Ramirez’s head and placed it
“at least like a foot or 2 foot [sic] away” from Ramirez on the floor. R.R. 3: 115-16. Alex
then dialed 911 and handed the phone to Juan who talked with the dispatcher and
administered first aid. R.R. 3: 115-16.

[10]: At trial Juan told the jury that, although he had not actually witnessed the stabbing, he had “seen who had the screwdriver the whole time” and “figured” he knew who did it. R.R. 3: 114. He then mimicked the same account as Mark of observing appellant in the kitchen throwing a screwdriver up and down in the air earlier that

[11]: The prosecutor detailed the inconsistencies between Juan’s trial testimony and the statements he provided police on the night of the offense. See R.R. 3: 119. Thereafter, he asked Juan to reconcile the conflicting accounts.

[12]: In fact, another unidentified male, presumably Mark, continued to scream, “why did you do it” even as Juan was talking to the dispatcher, as evidenced in the recording of the 911 call. R.R. 6: State’s Exhibit 62.

evening.[^13] R.R. 3: 115. Juan even recalled that, while he never saw Mark handling the
knife, he did observe the screwdriver fall between Mark’s legs when he was getting a
haircut in the kitchen and appellant was tossing the screwdriver about. R.R. 3: 116.
According to Juan, however, he did not witness Mark pick the screwdriver up and
agreed with the prosecutor that he knew of no other persons who would have handled
the screwdriver besides appellant and himself. R.R. 3: 116.

While Juan provided significant details about appellant’s handling of the
screwdriver at trial, the statements he gave police on the night of the offense contained
no such information. R.R. 3: 115. In fact, when asked about the screwdriver at that
time, Juan told police, “I have never seen the screwdriver before.” R.R. 3: 125.

As justification for the previous omission of relevant facts related to appellant’s possession
of the screwdriver, Juan explained he “[j]ust didn’t feel it was really necessary at the
time.” R.R. 3: 115, 126. Juan’s final exposition at trial about the origin of the
screwdriver was, “I’m saying before that day in my house. I have never seen that
screwdriver at all at my house.” R.R. 3: 126.

Juan’s then-girlfriend Desirae Riojas had known Alex and her brothers “for a
while,” as the girls had been in school together since ninth grade. R.R. 3: 131. Desirae
had been living with Juan at the house on Garfield for about a week at the time of the
offense. R.R. 3: 131. Desirae recalled being at the house that day with Alex, Mark,
Juan, Ramirez, and appellant. R.R. 3: 132, 134.

At some point in the day, Alex, Juan and Desirae left the house and went to her
grandmother’s “[f]or some food and for [Desirae] to take a shower.” R.R. 3: 134. The

[13]: Juan admitted he had tools at the house, but denied possessing any screwdrivers that looked like the one he pulled from Ramirez’s head. R.R. 3: 121.

three later returned to the Garfield house finding Mark, Ramirez and appellant still there.
R.R. 3: 134. According to Desirae, when she arrived back at the house she began to
feel “uncomfortable and not like [she] should be there.” R.R. 3: 135. The genesis for
this discomfort, she explained, was appellant’s odd behavior. R.R. 3: 135. Desirae
recalled that appellant was looking in the mirror[^14] in the entryway of the house and
talking to himself. R.R. 3: 135. In addition, appellant “had a screwdriver in his hand at
the time.” R.R. 3: 135. According to Desirae, appellant was “tossing the screwdriver in
his hand and talking to the mirror while there was music playing.” R.R. 3: 136. Desirae
was also disturbed by appellant’s “looking at [her] like a piece of meat”15 and “talking to
Mark about how he needed a female.” R.R. 3: 136-37.

In addition, Desirae informed the jury that she could tell appellant had been
drinking that day because she could “smell the alcohol on his body,” much like when
“people put perfume on and you can smell it.” R.R. 3: 140. She also insisted she
detected an odor of K2, a synthetic marihuana, on appellant. R.R. 3: 140. Desirae was
familiar with the nature and smell of K2, having previously smoked it and suffered a
heart attack as a result. R.R. 3: 141.

Because of her discomfort in appellant’s presence, Desirae told Juan that she
needed to go to her mother’s house. R.R. 3: 137. Juan then escorted Desirae out of
the house to the “middle of the yard.” R.R. 3: 137. Upon her request, Juan allowed her
to borrow his phone “for music,” after which Desirae walked away. R.R. 3: 137. By
Desirae’s estimation she was gone about 45 minutes to an hour before returning to the

[14]: This mirror appears to have been in the living room of the house. R.R. 6: State’s Exhibits 15 & 16.

[15]: She later amended her testimony to reflect that “the way her sounded . . . made [her] feel like he was willing to do anything for pussy.” R.R. 3: 148.

house to find the police there and Juan sitting in the back of one of their patrol cars.
R.R. 3: 138, 146. Police allowed him to get out of the car so that he could tell her “what
happened.” R.R. 3: 138.

When the police discovered that Desirae had been at the house earlier in the
evening, they placed her in a police car and later transported her to the station to take a
statement. R.R. 3: 139. In regards to that statement, Desirae testified at trial that she
did not recall telling Officer Matthews that she “didn’t know anybody’s names and did
not know why [she] had to fill out an affidavit.” R.R. 3: 144. In any event, when Desirae
ultimately provided a statement to police about her recollection of events on the day of
the offense, she failed to say anything “about [appellant] talking to himself” or having a
screwdriver. R.R. 3: 142. As an explanation for that omission, Desirae offered, “there
was a lot going on that night, so it was kind of hard to . . . answer or put on, like, the
affidavit on exactly what was important for them to know.” R.R. 3: 143. Indeed, “little
things” like her witnessing appellant with the murder weapon earlier in the evening “flew
by [her] mind.” R.R. 3: 143. Desirae did include in her statement, an approximate time
for her return to the Garfield house after the visit to her mother or grandmother’s
house—9:30 p.m. R.R. 3: 146. Given her previous testimony that she was gone about
45 minutes to an hour before returning the house on Garfield, Desirae agreed that she
must have left to go to her mother’s house between 8:30 and 8:45 p.m. R.R. 3: 146-7.

On November 23, 2014, appellant was living at his parent’s, Jose and Ana
Hernandez, house at 1818 North Hayes in Amarillo. R.R. 3: 151. That afternoon Jose
Hernandez, appellant’s father, saw appellant in the kitchen of their house. R.R. 3: 151.
After that he did not see his son again until October 5, 2015 when “they brought him
[appellant] from El Paso to here.” R.R. 3: 152.

Jose told the jury that his son did not have a car, and that he did not take any
clothes or personal belongings when he left. R.R. 3: 153. In addition, appellant
provided the family no information as to his whereabouts or the duration of his absence.
R.R. 3: 153. Jose also informed the jury that appellant: (1) left Amarillo because he
was on probation; and (2) was left-handed. R.R. 3: 153

Caleb Sanderson, a crime scene investigator with the Amarillo Police
Department, was assigned to handle the stabbing at 1621 North Garfield on November
23, 2014. R.R. 3: 161. When he arrived at the scene, the responding officers had
already cordoned off the residence. R.R. 3: 161. The first thing he did was talk to those
officers to “obtain the information that they have, what they found when they got there,
what they’ve learned from speaking to . . . any witnesses they might have found.” R.R.
3: 161. Next, he did a video recording of the crime scene, took some photographs, and
then began processing it. R.R. 3: 161.

The investigator indicated that the primary scene at the house was the southeast
bedroom. R.R. 3: 162. There, he located and collected the screwdriver alleged to have
been used during the commission of the offense. R.R. 3: 166. Sanderson also
collected latent prints from several items around the scene “to see if [he] could identify .
. . the suspect or anybody else that might have been in the house.” R.R. 3: 168. After
entering those unknown prints into the AFIS database, the only “candidates” produced
were Mark, Juan, Desirae, and Alex’s prints, none of which had evidentiary value given
the fact that they each lived at the house. R.R. 3: 168.

Sanderson did not attempt to lift fingerprints from the screwdriver. R.R. 3: 169.
In his estimation, the “shape and the actual texture” of the screwdriver, along with the
fact that “multiple”[^16] persons had touched it, decreased his chances of obtaining prints.
R.R. 3: 169. But, while Sanderson conceded it was unlikely DNA would be removed or
destroyed by attempting to fingerprint a particular item if proper print processing
techniques were followed, he determined “DNA would be a better route to pursue.”
R.R. 3: 169.

In the end, Sanderson chose “to submit the screwdriver for DNA purposes
because [he] fully expected the victim’s DNA to be found at the tip of the screwdriver
where [he] wouldn’t be processing for fingerprints.” R.R. 3: 174. As a matter of fact,
Sanderson “was more interested in finding the suspect’s DNA on the handle.” R.R. 3:

Rather than submitting genetic swabbings from the screwdriver, Sanderson sent
the screwdriver itself, and “allowed the lab to process – obtain the swabs.” R.R. 3: 170.
In addition, Sanderson submitted known DNA samples from each of the alleged
witnesses, with the exception of appellant. R.R. 3: 171. When appellant was
apprehended in October of 2015, Sanderson obtained a genetic sample from him,
which was then forwarded to the crime lab for analysis with the other samples. R.R. 3:
171.

When Amarillo Police Department Officer Logan Grazier arrived at 1621 North
Garfield on the night of the offense, he was “flagged down by three people . . . standing
outside, saying that somebody had been injured on the inside.” R.R. 3: 177. He arrived
there shortly after Matthews and Fenwick. R.R. 3: 177. Upon entering the residence,
Grazier noticed Ramirez lying on the ground in the southeast bedroom. R.R. 3: 177.
After AMS removed Ramirez from the bedroom, Grazier began searching for the
alleged weapon so that AMS “would know what was used to injure” him. R.R. 3: 177.

[16]: Sanderson believed only two people had handled the screwdriver. R.R. 3: 173.

In his search, he discovered the screwdriver under a tan sweatshirt on the floor not far
from Ramirez’s body. R.R. 3: 180. Other than removing the sweatshirt, Grazier did not
otherwise disturb the area where the screwdriver was located. R.R. 3: 178. Grazier
advised AMS that he had located the screwdriver in case they needed to look at it. R.R.
3: 178.

In the report he prepared after his involvement at the scene, Grazier detailed a
conversation he had with Alex at the scene.[^17] During cross-examination and again on
redirect, the officer was asked about the substance of that conversation. Alex told
Grazier that she observed appellant strike Ramirez on the left side of the
head and then push him to the ground, at which point she noticed the screwdriver in his
head.. Alex said she initially believed the two were “only play fighting.”
When her brothers came into the room, Juan removed the screwdriver,
then he and Mark “shoved [appellant] onto the couch and [were] trying to hold him
there.” R.R. 3: 183. Alex told Grazier that appellant pleaded with her brothers not to
call the police. R.R. 3: 184.

David Young, the DNA section supervisor at the DPS crime laboratory in
Lubbock, testified that his lab received several pieces of evidence related to this case.[^18]
R.R. 3: 200. These items were submitted on April 21, 2015 with a request to “[s]creen
for biological evidence.” R.R. 6: at State’s Exhibit 60. The initial results of that

[17]: These details were elicited during a series of leading, hearsay questions by the prosecutor, with no objection by trial counsel, to which the officer simply responded “Yes, sir,” or “Correct.”

[18]: By the time of trial, the “forensic scientist” who performed the actual DNA analysis on the items submitted to the crime lab was no longer employed there. The parties stipulated to the results of her report and agreed to allow her supervisor, David Young, to testify both as a fact witness regarding the testing as well as an expert witness in DNA analysis, relying on her report as the basis of his opinions. R.R. 3: 192.

screening were reported to the police department in a Forensic Biology Laboratory
Report dated July 12, 2015. R.R. 6: at State’s Exhibit 60. Among the items submitted
to the lab, was a known blood sample from Ramirez, as well as buccal swabs from Alex,
Mark, Desirae, and Juan, R.R. 3: 201, 204; 6: State’s Exhibits 60 & 61. The Amarillo
Police Department also submitted the screwdriver and requested that the lab examine it
for “blood evidence potentially on the tip end of it as well as who may have actually
handled the handle end of the screwdriver.” R.R. 3: 200.

The lab obtained “Stain 1” from the tip of the screwdriver (an item that had tested
positive in a presumptive test for the presence of blood) and “Stain 2” from the handle.
R.R. 2: 205; 6: State’s Exhibits 61 & 62. Lab employees were then able to isolate DNA
from those stains and obtain profiles from each. R.R. 3: 205.

The DNA profile from Stain 1 “is interpreted as originating from a single
individual, meaning it came from one person.” R.R. 3: 205. Alex, Desirae, Juan, Mark,
and appellant were excluded as potential contributors to that DNA. R.R. 3: 207.
Ramirez, on the other hand, could not be excluded. R.R. 3: 207. In fact, the lab
concluded that “[o]btaining this profile is 52.3 quadrillion times more likely if the DNA
came from victim Ramirez than if the DNA came from an unrelated unknown individual.”
R.R. 3: 205; 6: State’s Exhibit 61.

With respect to Stain 2 (obtained from the handle of the screwdriver), the DNA
profile “is interpreted as a mixture of three individuals.” R.R. 3: 207; 6: State’s Exhibit
101. Alex, Juan, Desirae, Ramirez, and appellant were each excluded as contributors to
that DNA profile. R.R. 3: 207-08; 6: State’s Exhibit 61. Mark, however, was not
excluded as a contributor. R.R. 3: 207. In fact, “o]btaining this profile is 461 quadrillion
times more likely if the DNA came from . . . [Mark] and two unknown individuals than if
the DNA came from three unrelated, unknown individuals.” R.R. 3: 207; 6: State’s
Exhibit 61.

Young also explained “the area of touch DNA” to the jury. R.R. 3: 209. “There’s
a lot of variables that can go into when, how, and how much somebody’s going to
transfer,” he said. R.R. 3: 209. Those variables include the following: (1) whether an
individual sheds more skin cells “just because of who they are” thus causing her to
“automatically just transfer more DNA”; (2) how recently an individual has washed her
hands because she “could have washed off skin cells and there’s nothing new for [her]
body to deposit on there”; and (3) how long an individual has been in contact with an
item since, for example, an individual simply walking past and touching a counter once
is likely not going to leave enough DNA to detect while an individual who leans on the
counter for a few minutes will probably leave detectable DNA.” R.R. 3: 209-10.
In response to a hypothetical posed by the prosecutor as to the likelihood of
obtaining DNA from a screwdriver when an individual grabs it and pulls it “out of
somebody’s head,” Young said “there’s a good chance for somebody to leave it behind
if they’ve touched it and had a lot of friction.” R.R. 3: 210. He responded similarly when
given a hypothetical about the likelihood of finding DNA on a screwdriver when it is used
as a weapon, concluding “it really depends on the person a lot and how much it was
handled as to whether or not we would expect to see their DNA on there or not.” R.R.
3: 211.

Bobby Teffertiller was working as a 911 operator on November 23, 2014 when he
received a call about an aggravated assault on North Garfield. R.R. 3: 219. At trial he
authenticated a recording of that call, which was then played for the jury in open court
and then sent with them to the jury room for deliberations.[^19]

Prior to Teffertiller answering the call, a woman’s voice can be heard crying, “why
did you do that?”[^20] The caller identified himself as Juan Noriega. R.R. 6: State’s Exhibit
62 at 0:36.[^21] Throughout the course of the call, Juan can regularly be heard addressing
“Alex” and “Mark,” each of whom can be heard with varying degrees of audibility.[^22]

Initially, Juan told the dispatcher “somebody just stabbed my friend in the ear with a
screwdriver.” R.R. 6: State’s Exhibit 62 at 0:40. Juan identified his friend as 23-year-
old Sal Ramirez. R.R. 6: State’s Exhibit 62 at 0:58. Juan was able to tell Teffertiller that
Ramirez was breathing but was unsure whether or not he was unconscious. R.R. 6:
State’s Exhibit 62 at 1:05.

When Teffertiller asked Juan if the assailant was still near-by, Juan hesitated and
then replied, “uh, no.” R.R. 6: State’s Exhibit 62 at 1:22. Teffertiller then specifically
asked, “the man who stabbed him, where did he go?” R.R. 6: State’s Exhibit 62 at 1:38.
Juan replied “I don’t know, he was just right here, I just seen my friend, that’s it.” R.R. 6:
State’s Exhibit 62 at 1:44.

[19]: Portions of the recording are, not surprisingly, inaudible. Appellate counsel references only those sections that are indisputably comprehensible.

[20]: In addition to the entirety of the conversation between Teffertiller and Noriega, the 911 recording appears also to have captured the first few seconds of the call between the time it was placed by Noriega and answered by Teffertiller. R.R. 6: State’s Exhibit 62 at 0:07.

[21]: All references to the time at which a particular statement is made on the 911 recording are approximations based upon the iTunes media player counter utilized by appellate counsel to review it.

[22]: The record is clear that at the time Juan made the 911 call, the only other people at the house were Ramirez (who was not conscious), Alex and Mark.

After providing first aid assistance, Teffertiller asked, “Do you know who did
this?” R.R. 6: State’s Exhibit 62 at 2:40. Juan immediately responded, “No. I do not. I
just seen [sic] him fall. I seen [sic] two people and then he fall [sic].” R.R. 6: State’s
Exhibit 62 at 2:44. He further explained, “When I got to him, there was nobody else
right next to him.” R.R. 6: State’s Exhibit 62 at 2:46. Teffertiller then queried, “[s]o,
there was [sic] two people, but you don’t know who did it?” R.R. 6: State’s Exhibit 62 at
2:55. Juan responded, “Yes, I do not know who did it.” R.R. 6: State’s Exhibit 62 at
2:58. He continued, “I think somebody broke into my house, sir, and I don’t know what
happened. He was cutting his hair and I just seen him hit the floor, sir.” R.R. 6: State’s
Exhibit 62 at 3:00.

Later, during an exchange about the location of the screwdriver, Juan first
responded, “I do not know what happened. I just seen the dude stab him and he fell
and that’s it.” R.R. 6: State’s Exhibit 62 at 4:14. He then told Teffertiller that the
screwdriver was lying on the floor next to Ramirez because he had taken it out of
Ramirez’s head. R.R. 6: State’s Exhibit 62 at 4:20. Initially, Juan expressed his belief
that the wound was not that deep but that Ramirez had been hit hard enough “drop
him.” R.R. 6: State’s Exhibit 62 at 5:10.

When Teffertiller asked Juan if it looked like someone had broken into the house,
he replied, “the thing about this house is we have so many friends that come in and out
and in and out.” R.R. 6: State’s Exhibit 62 at 6:12. He continued, “I don’t know. I guess
the house was unlocked and he just walked in.” R.R. 6: State’s Exhibit 62 at 6:18. After
reiterating that he did not know “what the f--- happened,” Juan appeared to ask Alex or
Mark, “Do you know the truth?” R.R. 6: State’s Exhibit 62 at 6:25. When a male
(presumably Mark) responded, “I was taking a s---,” Juan remarked, “Exactly. I was in
the kitchen.” R.R. 6: State’s Exhibit 62 at 6:33. A female (presumably Alex) then
commented, “He just did it out of nowhere . . . like, he didn’t say nothing . . . he did
nothing . . . he was just standing there.” R.R. 6: State’s Exhibit 62 at 6:34. Juan
concurred, “ I don’t know what the f--- happened. I just walked in there and seen him hit
the floor and that’s it.” R.R. 6: State’s Exhibit 62 at 6:39. Not long after this final
exchange, police arrived on the scene.

Jason Riddlespurger was the Special Crimes Unit investigator assigned to
handle the case. R.R. 3: 224. He arrived at the scene an hour to an hour and a half
after the offense occurred. R.R. 3: 224. At that time, Riddlespurger learned that
witness Alexsandra Magana had provided police the name of a suspect (appellant) as
she “was in the room when the attack occurred.” R.R. 3: 226. Riddlespurger attempted
to make contact with appellant, whom he understood was living with his parents, with no
success. R.R. 3: 227. A few days later, he “figured out that [appellant] had probably left
the town.” R.R. 3: 227. Eleven months later, Riddlespurger received information that
appellant had been captured in El Paso coming into the country from Mexico. R.R. 3:

On October 5, 2017, Cindy Lopez was working for Customs and Border
Protection at the El Paso del Norte Port of Entry. R.R. 3: 233, 235. That day she was
manning the pedestrian lane when she encountered an individual she later identified as
appellant Jose Miguel Hernandez. R.R. 3: 236-37. Appellant told her he was an
American citizen born in Amarillo, Texas, but “didn’t have any documents to come into
the U.S.” R.R. 3: 236. He further told Lopez that he had left the country to go to
“Mexico to go party,” and that he had been gone about a year. R.R. 3: 237.

As Lopez was entering appellant’s personal information in the “system,” he asked
her, “How does my hair look because I’m going to come out on the news?” R.R. 3: 237.
Later, he told her “he had done something in Amarillo, Texas, and that he had to pay for
what he did.” R.R. 3: 241. Not long thereafter, Lopez received a computer-generated
“hit for armed and dangerous” pertaining to appellant, so she “escorted him inside to
passport control secondary” where he taken into custody. R.R. 3: 239.

When he was being fingerprinted, appellant told Lopez “he had gone to some type of
party in Amarillo, Texas, and that he was at the house.” R.R. 3: 241. Appellant further
explained, “he was in a house and that there was some type of shooting and that
he got scared and that he had gone to his girlfriend’s house to go – to let her know
that he was going to go to Mexico because he knew the police was [sic] looking for him.”[^23]

Thomas Parsons, a forensic pathologist with South Plains Forensic Pathology in
Lubbock, conducted an autopsy on Ramirez. R.R. 4: 8-9. He determined the cause of
death to be a “[p]enetrating injury of the head.” R.R. 4: 17. Specifically, he located a
puncture wound that entered through Ramirez’s temporal bone and extended “through
the left cerebral hemisphere into the left side of the brain stem,” an area called the pons,
which is a conduit for the electrical activity from the brain to the rest of the body. R.R. 4:
102. Parsons indicated that “[y]ou’d have to go about 3 inches into the brain” to reach
the pons. R.R. 3: 15. With respect to the “course of the wound as far as the direction
into the brain,” Parsons told the jury “it went from left to right . . .[i]t went a little bit
downwards and, of course, a little bit front to back.” R.R. 4: 18. After being given the

[23]: During deliberations, the jury sent a note requesting “the testimony of the border agent about the statement why he is coming back to Amarillo.” R.R. 4: 73.

opportunity to see the screwdriver (State’s Exhibit 52), Parsons opined that it could
have caused the fatal injury he observed during Ramirez’s autopsy. R.R. 4: 16.
Amarillo Police Department Officer Gerardo Celaya was the sole witness to
testify during the defense case in chief. R.R. 4: 28-31. He was on patrol on the night of
November 23, 2014 when he was dispatched to Northwest Texas Hospital to “check on
a victim for a condition report.” R.R. 4: 29. While there, Celaya spoke with Ramirez’s
mother about “any leads as to who might have done this crime.” R.R. 4: 30. Through
the course of his conversation with her, Celaya learned of a potential suspect in the
case other than appellant. R.R. 4: 30-1. While he was unable to say, “for sure if that
was a lead” given his limited understanding of the facts, he agreed Ramirez’s mother
provided him with information that was “very specific as to who might have done it.”
R.R. 4: 30-1. He included the substance of his conversation with Ramirez’s mother in
his report to the police department. R.R. 4: 31.

In rebuttal, Riddlespurger testified that when he reviewed Celaya’s report during
the course of the investigation, he did not develop any other witnesses/potential
suspects than Juan, Mark, Alex, Desirae, and appellant. R.R. 4: 34. And, even though
he was unaware of the DNA results excluding appellant as the source of the DNA on
the screwdriver handle, he “[a]bsolutely” believed that he had “the correct person in the
Defendant’s chair. R.R. 4: 38.