Trejos v. State

• Decision Date: 24 May 2007
• Docket Number: No. 01-05-00646-CR.,01-05-00646-CR.
• Citation: 243 S.W.3d 30
• Parties: Frank Jose TREJOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

243 S.W.3d 30

Frank Jose TREJOS, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00646-CR.

Court of Appeals of Texas, Houston (1st Dist.).

May 24, 2007.

Discretionary Review Refused November 7, 2007.

Donald W. Bankston, Richmond, TX, for Appellant.

John F. Healey Jr., Fort Bend County, District Attorneys Office, Richmond, TX, for Appellee.

Panel consists of Justices TAFT, ALCALA, and HANKS.

OPINION

ELSA ALCALA, Justice.

Appellant, Frank Jose Trejos, appeals a judgment convicting him of the murder of Maria Barrientos, his mother-in-law. See TEX. PEN.CODE ANN. § 19.02(b)(1) (Vernon 2003). Appellant pleaded not guilty to the jury. The jury found him guilty and assessed punishment at 45 years in prison. In seven issues, appellant contends that the trial court erred (1) by granting the State's motion to shuffle the venire panel because the motion was untimely after voir dire had commenced, (2) by granting the State's motion to amend the indictment to add the name of the complainant on the day of trial, (3) by admitting his statements that he made to police officers, (4) by admitting testimony concerning the findings of cadaver dogs because there was no showing of the reliability of the dogs or, alternatively, the probative value of the testimony was outweighed by its prejudicial effect or the danger of confusing the issues, and (5) by denying his motion for instructed verdict because "the State failed to prove corpus delicti." We conclude that the State's motion to shuffle was timely because it was made before the State began its voir dire. We also conclude that the trial court's amendment of the indictment to add the name of the complainant on the day of trial was harmless error. Further, we conclude that the trial court did not err by admitting appellant's statements to officers, by admitting the evidence regarding the cadaver dogs, or by denying appellant's motion for instructed verdict. We therefore affirm.

Background

In 1994, appellant and his wife lived with Maria Barrientos, his mother-in-law. On June 10, 1994, after she was paid for her work as a nanny, Maria left work at 5:00 p.m., and was never seen again. According to her employer, she was not ill and she did not quit. The next day, when Margarita Torres called Maria's house to speak with her, appellant told her that Maria left because she was angry with him for not mowing the lawn.

Four days after Maria was last seen, appellant reported to the police that she was missing, but neither he nor his wife helped Maria's friends post missing persons fliers, nor did they make any other attempts to find her. Detective Glenn White of the Sugar Land Police Department was assigned to Maria's case two days after the report was filed. His investigation did not reveal any activity with her work or church. Maria's bank account had a small balance remaining and there was no activity in that account, even though Maria did not have much money. And although she was known to take her bible with her everywhere, Detective White found it in her house,

On June 29, the Houston Police Department Crime Laboratory processed Maria's house. Testing revealed a "presumptive test for blood" on adult footprints in the kitchen and the hallway and on a towel in the bathroom.¹ The towel was sent to the Department of Public Safety ("DPS") for follow-up testing, but the test showed that there was no "apparent blood."² The following day, Maria's car, with the keys still in the ignition, was found abandoned less than two miles from her ex-husband's house. Maria's purse was in the car. A presumptive test showed the presence of possible blood on the floormats in the back floorboard of the car.

In July 1994, appellant, who appeared casual and nonchalant, met with police officers to discuss Maria's disappearance. According to appellant, he last saw Maria asleep at her house, when he and his wife left the house at around 9:30 or 10:30 p.m. on Friday, June 10. Appellant reported that, when he and his wife returned to the house, the door to the house was ajar, Maria's car was missing, and Maria was gone. Appellant laughed when asked what was the last thing he heard Maria say. When asked where he went on the evening of June 10, appellant gave detailed directions rather than stating a general destination. Appellant also stated that Maria had mopped her kitchen floor. However, the floor was being re-tiled and was concrete. Also, everywhere that appellant said that Maria had mopped "presumptively tested positive" for blood.

In November 2001, seven years after Maria disappeared, Detective White asked DPS Sergeant Enrique Muniz for assistance in the investigation. On November 7, Sergeant Muniz, Detective White, and other officers went to appellant's apartment. They told appellant that they wanted to talk to him about the case and that he was not under arrest, and they asked him to come to the Sugar Land Police Department. Appellant agreed. Because he did not have a car, appellant rode with Muniz in an unmarked pickup truck. Once at the Department, appellant and the officers went into an office in a temporary, portable building because the Department was being re-modeled. Detective White told appellant that he was free to leave. Appellant then gave a statement that was recorded on audio tape. On the tape, appellant acknowledged that he had been read his "Miranda warning"³ before the recording started.⁴

In his statement, appellant said that he was angry with Maria for nagging him. When she "came up in [his] face" he struck her with his fist, She fell to the kitchen floor. Maria was bleeding and "freaking out," so appellant choked her. After Maria was dead, appellant and his wife took her to the bathroom and placed her in the tub. Appellant's wife cut Maria's wrists to try to make it look like she committed suicide, but the wounds did not bleed. Appellant and his wife put Maria's body in the trunk of their car and dumped her body in a ditch.

It took less than one hour for appellant to make this statement. When he was done, appellant waited in the lobby. He was not arrested, nor was he told that he could not leave. Sergeant Muniz told Detective White that appellant had confessed to killing Maria. Detective White took a second recorded statement from appellant later that evening. He also read appellant the warnings in article 38.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (Vernon 2005). Appellant acknowledged that he had received these warnings by initialing next to each warning on a form. This statement also took appellant less than one hour to make. When it was done, appellant went with other detectives to show where he and his wife had disposed of Maria's body.

Appellant returned to the police department around 1:00 a.m. He and his wife were told that they were free to leave. Appellant, however, agreed to give a third recorded statement. Detective White began reading the article 38.22 warnings to appellant, but appellant finished them, quoting them to Detective White, After this last statement, appellant left with his wife.

That afternoon, appellant drove himself to the Sugar Land Police Department and spoke with Detective White again. This conversation was also recorded. Appellant then went with Detective White to Maria's house to clarify some of the details of the murder. Appellant demonstrated what had occurred. This walkthrough of the crime scene was videotaped.

On November 9, 2001, police officers took two dogs trained to detect the scent of cadavers to the location where appellant said that he and his wife had dumped Maria's body. The two cadaver dogs and their handlers worked the area independently of one another so that they would not influence each other. Both dogs alerted within five or six feet of one another, at the spot that appellant had indicated he had placed the body. Although an excavation was performed, no remains were found.

On December 23, 2002, a grand jury indicted appellant for Maria's murder. The indictment read,

The duly organized Grand Jury of Fort Bend County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, Frank Jose Trejos, hereafter styled the Defendant, heretofore on or about June 11, 1994, did then and there

Paragraph A

intentionally and knowingly cause the death of an individual, MARIA BARRIENTOS, by CHOKING HER.

Paragraph B

intentionally and knowingly cause the death of an individual, by A MANNER AND MEANS UNKNOWN TO THE GRAND JURY. Appellant was arrested on December 30, 2002.

On the day of trial, the venire was seated in the courtroom. The trial court asked the prospective jurors various questions. Each question was followed by silence in response. The trial court asked if anyone knew appellant, and one member of the venire raised his hand in response to the question. Immediately before the State began its voir dire, the State requested a jury shuffle. Appellant's counsel objected that the request was untimely because the trial court had already asked many voir dire questions that were of the type likely to be helpful to the parties. The trial court overruled the objection and granted the State's request for a jury shuffle.

After the completion of voir dire, appellant moved to strike paragraph B of the indictment, alleging that it was void because the second manner and means paragraph did not include the complainant's name, Maria Barrientos. The State then verbally requested that the indictment be amended to add Maria's name. Over appellant's objection, the trial court allowed the amendment by handwriting "Maria Barrientos" into paragraph B of the indictment.

Jury Shuffle

In his first issue, appellant asserts that the trial court erred by allowing a shuffle of the venire "after voir dire had effectively commenced." Under article 35.11 of the Texas Code of Criminal Procedure, a party is entitled, upon timely demand, to have the jury pane...