2022-07-18 Fernandez Appeal - Appellant
Gilbert Fernandez, Appellant v. State of Texas, Appellee
NO. 07-21-00256-CR and 07-21-00257-CR
Appellant's Brief
PROCEDURAL HISTORY
Two indictments were filed against Appellant on June 26, 2020. The first alleged that he “did then and there: “intentionally or knowingly cause the death of an individual, Frankie Lynn Cannon, by shooting the said Frankie Lynn Cannon with a firearm against the peace and dignity of the state.” (Cause 3062 C.R.5). The second alleged that he “did then and there:
"Count 1: intentionally, knowingly, or recklessly, cause bodily injury to Frankie Lynn Cannon by striking the body of the said Frankie Lynn Cannon and the defendant did then and there use or exhibit a deadly weapon, to-wit: a baseball bat, during the commission of the assault [Count 2 was settled as an agreed directed verdict of not guilty.]
“Count 3: intentionally, knowingly, or recklessly, cause bodily injury to Frankie Lynn Cannon by burning the body of the said Frankie Lynn Cannon and the defendant did then and there use or exhibit a deadly weapon, to-wit: a blowtorch, during the commission of the assault “against the peace and dignity of the State.” (Cause 3063 C.R. 5).
A jury trial was held and on October 13, 2021, the jury found appellant guilty of Murder, Count 1 Aggravated Assault with a Deadly Weapon (baseball bat), and Count 3 Aggravated Assault with a Deadly Weapon (blowtorch). The State agreed to a directed verdict of not guilty on Count 2 Aggravated Assault with a Deadly Weapon (knife). Appellant was sentenced to life for murder and 20 years each for the two Aggravated Assaults and the sentences were ordered to run concurrently.
STATEMENT OF FACTS
Appellant Gilbert Fernandez was charged with the first-degree felony offense of Murder and the second-degree felony offenses of aggravated assault with a deadly weapon (count 1 baseball bat and count 3 blowtorch). (C.R. 5 in each case).
Appellant and three other men called Frankie Lynn Cannon, a rival drug dealer, to Appellant’s house. Texas Ranger Michael Smith testified that he properly Mirandized the Appellant who waived his rights and agreed to be interviewed. Ranger Smith testified that Appellant admitted that they had tied Cannon up and assaulted Cannon with a baseball bat and burned him with a blow torch.
Ranger Smith testified that Appellant further admitted that they placed Cannon into co-Defendant Breckenridge’s vehicle and Breckenridge, Appellant, and co-Defendant Segura drove him to a rural road in Collingsworth County where Breckenridge murdered Cannon.
Appellant told Ranger Smith that Appellant and Segura removed the tape and bindings that bound Cannon and then washed the blood from their hands at the park.
Ranger Smith also testified that co-Defendant Segura admitted that the four men beat Cannon and burned his body with a blow torch before driving him away and watching Breckenridge murder him.
The medical examiner testified that there were four gunshots to Cannon’s head, sharp force injuries to head and neck, blunt force injuries, and a gunshot to Cannon’s hand. The medical examiner also testified that the stab wounds on the scalp and right temple was consistent with a knife and would have possibly been painful. Additionally, the medical examiner testified that the blunt force trauma to the chest and back would have possibly been painful. The medical examiner never testified to any burns on the body.
Co-defendant Segura testified that the four men were involved in assaulting Cannon and that Cannon was hit in the head with a pistol (the medical examiner disputed this and testified that it was likely a knife, supra), hit with a bat and burned with a “lighter” before being put in the car.
In her closing argument, Appellant’s trial counsel correctly pointed out that while co-Defendant Segura testified that Cannon was burned, the medical examiner saw no evidence of burning. Furthermore, no one testified that the alleged burns hurt. Additionally, trial counsel argued that while Segura claimed that Cannon had been pistol whipped, the medical examiner testified that the wounds to the head were more consistent with a knife and therefore the co-Defendant was not credible.
Appellant argued that a co-defendant’s testimony must be corroborated and argued that there 10was no evidence beyond Segura’s testimony that Cannon had been burned. However, Ranger Smith testified that Appellant himself admitted that Cannon had been burned with a blowtorch.
Appellant’s trial counsel moved for a directed verdict on each charge. The State agreed to a directed verdict on the charge of aggravated assault with a knife. The rest were denied. Appellant was found guilty of murder, aggravated assault with a baseball bat, and aggravated assault with a blowtorch.
Appellant was sentenced to life for murder and 20 years each for the two aggravated assaults and the sentences were ordered to run concurrently.
SUMMARY OF THE ARGUMENT
The Appellant admitted to Texas Ranger Michael Smith that he participated in assaulting Frankie Lynn Cannon with a baseball bat and blowtorch and also in the murder of Frankie Lynn Cannon. However, the medical examiner saw no burn wounds and no one testified that the alleged burns caused pain which is necessary to rise to level of bodily injury.