United States v. Hernandez

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
June 5, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-50505
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY RONALD HERNANDEZ, also known as Ray Ronald Hernandez,
also known as Grim,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(5:03-CR-271-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Roy Ronald Hernandez was indicted for aiding and abetting the
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) and (2). A jury found Hernandez guilty of the
charged offense, and the court sentenced him, inter alia, to 77
months imprisonment. Hernandez challenges his conviction,
asserting the district court erred in admitting certain evidence

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and charging the jury. We review for abuse of discretion; there
was none.
Hernandez contends the court erred in admitting evidence
related to his theft of beer earlier on the day the firearm was
seized. The admission of evidence will be affirmed unless the
district court abused its discretion and the defendant was
prejudiced. See United States v. Coleman, 78 F.3d 154, 156 (5th
Cir. 1996); see also FED. R. EVID. 103. The threshold inquiry is
whether the evidence was extrinsic or intrinsic because Federal
Rule of Evidence 404(b) (disallowing evidence of “other crimes,
wrongs, or acts” when used to prove a defendant’s character but not
for “other purposes”) does not apply to intrinsic evidence. See
Coleman, 78 F.3d at 156.
The beer-theft evidence was intrinsic because it “complete[d]
the story of the crime”. See id. It provided the necessary
explanation why the Officers stopped and searched the vehicle in
which Hernandez was a passenger, which led to the discovery of the
firearm. See id. Additionally, the probative value of the
evidence was not substantially outweighed by the danger of unfair
prejudice under Federal Rule of Evidence 403.
Hernandez also contends the court erred by instructing on
aiding and abetting and constructive and joint possession. Because
Hernandez preserved these challenges in district court, review is
for abuse of discretion. See United States v. Newell, 315 F.3d

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510, 528 (5th Cir. 2002). There is none where the charge, as a
whole, is legally accurate and factually supportable, i.e., “the
court may not instruct the jury on a charge that is not supported
by evidence”. United States v. Mendoza-Medina, 346 F.3d 121, 132
(5th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1156
(2004).
The evidence sufficiently shows Hernandez: assisted the
possession of a firearm by a convicted felon; and had constructive
and joint possession of it. See United States v. Fields, 72 F.3d
1200, 1212 (5th Cir.), cert. denied, 519 U.S. 807 (1996).
Finally, Hernandez maintains the court erred in refusing part
of his proposed jury instruction. The refusal of a requested
instruction is reviewed for abuse of discretion. United States v.
Tomblin, 46 F.3d 1369, 1378 (5th Cir. 1995). Such refusal
“constitutes error only if the instruction (1) was substantially
correct, (2) was not substantially covered in the charge delivered
to the jury, and (3) concerned an important issue so that the
failure to give it seriously impaired the defendant’s ability to
present a given defense”. Id. at 1378-79 (citation and quotation
marks omitted).
Hernandez concedes the charge is a correct statement of the
law. Additionally, it substantially covered the refused
instruction. See Tomblin, 46 F.3d at 1378. Moreover, the charge
permitted Hernandez to assert his proposed defense that his

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presence, without more, is not sufficient to establish constructive
possession.
AFFIRMED

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