Trevino v. State

991 S.W.2d 849, 1999 Tex. Crim. App. LEXIS 45, 1999 WL 294507
CourtCourt of Criminal Appeals of Texas
DecidedMay 12, 1999
Docket72851
StatusPublished
Cited by478 cases

This text of 991 S.W.2d 849 (Trevino v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trevino v. State, 991 S.W.2d 849, 1999 Tex. Crim. App. LEXIS 45, 1999 WL 294507 (Tex. 1999).

Opinions

OPINION

KELLER, J.

delivered the opinion of the Court,

in which McCORMICK, P.J., and MANSFIELD, PRICE, HOLLAND, WOMACK, and KEASLER joined.

Appellant was convicted and sentenced to death for a capital murder committed in [851]*851June 1996. Tex. Penal Code § 19.08 and Tex. Code Crim. Proc. Art. 37.071.1 Appeal is automatic to this Court. Tex. Const. Art. I, § 5; Art. 37.071. Appellant raises nineteen points of error. We will affirm.

In his first point of error, appellant argues the trial court erred in denying his motion for mistrial. Near the conclusion of jury selection, the State informed appellant of its discovery and intent to use incriminating DNA evidence. Appellant moved the trial court for mistrial on grounds that because of the state’s tardy disclosure, he had lost the opportunity to examine the venire regarding DNA evidence and thereby had lost the intelligent use of his peremptory strikes. Appellant alleged that prior to jury selection, he had requested notice of all scientific evidence which the State anticipated introducing and had formulated his jury selection strategy on the State’s representations, including the representation that they had not discovered any incriminating DNA evidence. Appellant’s motion for mistrial was denied.

The State asserts that before jury selection, it had informed appellant that though they had not discovered any incriminating DNA evidence, DNA testing was being conducted and that results had at that point not been prejudicial. But according to the State, it also informed appellant that it was conducting further testing on an article of the victim’s clothing. That appellant had this information is confirmed by his own arguments when he moved for mistrial. Citing Smith v. State, 676 S.W.2d 379 (Tex.Crim.App.1984), the State asserts that under these facts it is clear that appellant’s decision not to examine the venire regarding DNA evidence was a strategic choice.

Appellant frames his claim in terms of proper questions not allowed, but in fact no such questions were propounded. Therefore, we cannot accept this categorization of this issue. We must instead review the question as what in fact it was, i.e., a denial of a motion for mistrial. The denial of a motion of mistrial is reviewed under an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993).

In presenting his claim to the trial court, appellant’s counsel admitted that the State had informed him before jury selection of its continuing DNA tests on the victim’s clothing. Counsel admitted that since none of the DNA testing had been incriminating, he decided to “let it go.” Id. Counsel’s decision not to query the venire regarding DNA evidence was a strategic decision and the product of neither prosecutorial misconduct nor trial court error. Under these facts, we cannot hold that the trial court abused its discretion in denying appellant’s motion. Appellant’s first point of error is overruled.

In his second point appellant argues that the evidence was insufficient to corroborate accomplice witness testimony. Art. 38.14.2 “The accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment.” Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997)(emphasis in original). The non-accomplice evidence need not itself be sufficient to establish the accused’s guilt beyond a reasonable doubt. Id. And, while the accused’s mere presence at the scene of the crime is insufficient, by itself, to corroborate accomplice witness testimony, “evidence of such presence, coupled with other suspicious circumstances, may [852]*852tend to connect the accused to the offense.” Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996).

In his brief, appellant lists the evidence connecting him to the crime: (1) DNA evidence that did not exclude appellant as the source of a blood stain on the victim’s panties, (2) appellant’s fingerprints in the vehicle used to transport the victim to Espada Park, and (3) fiber evidence from appellant’s pants found on the victim’s clothes. While appellant concedes that this evidence connected him to the crime scene, he contends that there was no evidence that connected him to the murder or sexual assault of the victim. We disagree. While the fingerprint evidence may have merely established appellant’s presence at the crime scene, the presence of appellant’s blood3 on the victim’s panties and appellant’s pant fibers on the victim’s clothes tends to connect him to the crime itself. The logical inference from these two items of evidence is that appellant had intimate contact with the victim and may have suffered defensive wounds. In other contexts, we have observed that the presence of blood, linked in some way to the defendant, was some evidence tending to connect the defendant to the offense. Dowthitt, 931 S.W.2d at 244 (beer bottle with defendant’s fingerprint and victim’s blood on it); Gosch v. State, 829 S.W.2d 775, 781 (Tex.Crim.App.1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993)(blood of victim’s blood type found on the defendant’s blue jeans). Although these cases involved finding the victim’s blood on items belonging to the defendant, the connection is equally obvious when the defendant’s blood is found on items belonging to the victim. While appellant observes that there were no semen deposits by him on the victim and that no non-accomplice evidence connected him to the murder weapon, the absence of such “smoking gun” evidence does not somehow invalidate the evidence that does connect him to the offense. The combination of the three items listed above is more than sufficient to tend to connect appellant to the offense. As we have previously held, “[e]ven apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.” Dowthitt, 931 S.W.2d at 249 (citing Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993)). Such is the case here. Appellant’s second point of error is overruled.

In his third, fourth and fifth points of error, appellant argues that the trial court erred in admitting various hearsay assertions made by Juan Gonzales. Specifically, appellant complains of Gonzales’ assertion that when he told appellant that the police wanted to talk to him, appellant told him not to say anything to the police. This is the subject of appellant’s third point of error. Gonzales also said that as the conspirators drove away from the scene of the crime, Santos Cervantes commented to appellant that it was cool how he (appellant) had snapped her neck and used the knife. This is the subject of appellant’s fourth point of error. Gonzales said further that appellant responded to Cervantes’ comment with the statement “I learned how to kill people in prison.”4 This is the subject of appellant’s fifth point of error.

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Cite This Page — Counsel Stack

Bluebook (online)
991 S.W.2d 849, 1999 Tex. Crim. App. LEXIS 45, 1999 WL 294507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trevino-v-state-texcrimapp-1999.