Trevino v. State

• Decision Date: 26 February 2003
• Docket Number: No. 2360-01.,2360-01.
• Parties: Tommy TREVINO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 232

100 S.W.3d 232

Tommy TREVINO, Appellant, v. The STATE of Texas.

No. 2360-01.

Court of Criminal Appeals of Texas, En banc.

February 26, 2003.

Scott Brown, Fort Worth, for Appellant.

Michael R. Casillas, Assistant District Attorney, Fort Worth, Matthew Paul, State's Attorney, Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Tommy Trevino shot and killed his wife. He argued the shooting was in self-defense but the jury rejected this argument and convicted him. At punishment, he requested and was denied a jury charge on sudden passion. We agree with the Court of Appeals that the judge erred in denying this charge, and that the judgment of conviction should be reversed.

I. Facts and Procedural History

A. Guilt/Innocence

The shooting occurred on the Monday after Thanksgiving, 1997. Exactly what happened that day between Trevino and his wife Michelle was the subject of heated debate at trial. The State's witnesses portrayed the incident as a cold-blooded murder by a controlling and abusive husband who, after the murder, staged the crime scene to look like self-defense. The defense argued that the shooting occurred in self-defense after a heated argument and struggle.

Members of Michelle's family testified that Trevino was controlling and Michelle was afraid of him. He would go to nightclubs without Michelle. Eventually Michelle asked Trevino for a divorce, and after that, Trevino would buy her flowers and take her out. But by the date of the offense, Michelle was gaining independence, and had a job interview that very afternoon.

Detective Thomas Boetcher, the lead detective in the case, testified that the crime scene he found did not match the story Trevino told him. Trevino told Detective Boetcher that he and Michelle had been having an argument because she found some phone numbers of some other women in his wallet. They were in the living room, and she confronted Trevino with a .38 caliber revolver. She pointed it at him and pulled the trigger twice, which scared Trevino, but the gun did not fire. Trevino then went to the bathroom and flushed the phone numbers down the toilet. At some point he retrieved his 9 millimeter pistol. As he was leaving the bathroom, Michelle fired a shot at him. According to Trevino, the shot was fired in the bathroom. At this point, the two began struggling over the two guns. Trevino said that Michelle got shot, but they continued to struggle, and then another shot was fired, and finally another.

But Boetcher testified that, while Trevino said that Michelle shot him in the bathroom, there was no bullet hole inside the bathroom. Boetcher also testified that he found a 9 millimeter in the living room and a .38 caliber revolver in the hallway near the bathroom, about five feet from Michelle's body. The 9 millimeter had been taken apart, with the clip removed, but Trevino had not told Boetcher that he had done that. Boetcher felt that the .38 caliber had no evidentiary value to the case — that it had not been a part of the shooting. Boetcher conceded that Trevino granted consent to search the house and made no attempts to flee.

Trevino's sister, Paula, was the first person Trevino called after the incident. She testified that when the initial phone call came from Trevino, Trevino "was freaking out and sounded like he was scared and panicked." She drove over to the house immediately and found Trevino "crying and shaking." Trevino knelt beside Michelle's body and "was upset and crying." He appeared to be "extremely upset," and he was "pacing." According to Paula, Trevino was "consistently upset and crying."

Some time after Paula arrived at Trevino's house, she called 911. While she admitted that she had previously told the grand jury that she got the call from Trevino before noon and therefore would have been at his house by about 12:20, the 911 call was not made until 12:52. At trial, she testified that she had been mistaken before the grand jury. She explained that she could not have gotten to Trevino's house that soon because she was with her personal trainer until 11:30 and it takes her 30 minutes to get home from there. She testified that she knew she was watching the news when she got the call from Tommy and the news comes on at noon. The timing was important because the State argued that Paula had delayed in calling 911, implying that she had aided Trevino in staging the crime scene to look like self-defense.

Additionally, Paula had told the 911 operator that Michelle pulled a gun on Trevino and he took it away from her, causing him to accidentally shoot her. But at trial she testified that Trevino had never told her that, that she assumed that that is what had happened because she had seen only one gun.

Trevino's neighbor testified that she was talking on the phone to her boyfriend around noon when she looked out her window and saw three men, including Trevino, in the front yard of Trevino's house. Trevino was pacing. Then a woman arrived and hugged one of the other men. About thirty minutes later the neighbor left her house. When she went outside, there were police cars, an ambulance, and firefighters. The State argued that this testimony showed that Trevino had met with family members to stage the crime scene before calling 911. The neighbor also testified that she had theft-by-check charges pending but the prosecutor had not offered her any deal in exchange for her testimony. Yet she admitted that she was permitted to continue living at home despite there being a warrant for her arrest, and that the prosecutor helped her obtain pretrial release.

While Paula told the firefighters that she had been there for 15 minutes by the time they had arrived, many of the personnel on the scene testified that it appeared that Michelle had been dead for longer than 15 minutes. Firefighter Stacy Banks testified that when he first arrived on the scene, he thought the shooting had just happened, but he then began to believe that Michelle had "been down for a while." The defense established on cross-examination that the police initially went to the wrong house, and that some of the firefighters walked to the house from their truck parked down the street.

Another firefighter testified that he saw dried blood on Michelle, which made him assume that it had been there for a while. A paramedic testified that when he arrived, he noticed that Michelle had dried blood on her face, indicating to him that she had been dead for a little while. She was ashen gray and cold to touch, and her pupils were large, more evidence that she had been dead for some time. Another firefighter-EMT testified that Paula told him Michelle had been down about 15 minutes by the time he arrived. But he noticed cyanosis, which indicates that the person has been down for more than several minutes.

Detective Kraus testified that he entered the home and saw Trevino kneeling over Michelle. Trevino said "you gotta help her, you gotta help her" and he "sounded distressed."

Max Courtney, the crime scene re-constructionist, testified that the injuries, trajectories, bullet marks, etc., were not consistent with Trevino's story. But he also admitted on cross-examination that nothing about the crime scene or photographs looked staged and that the gun could have fallen the way that it did or could have been kicked out of the way to disarm a person.

The gunshot residue tests from both Trevino and Michelle were inconclusive and no fingerprints were identifiable from either weapon. Some witnesses testified that Trevino was calm and unemotional after the shooting, but the defense attempted to portray that as shock. The defense established during its cross-examination of the firearms examiner that the gun could have been fired accidentally.

Dr. Marc Krouse, the medical examiner, testified that he did the autopsy on Michelle. He found three bullet wounds and testified to their entry and exit points, trajectories, and the damage each caused. He said the pelvic wound came first, and the effect of that shot could have ranged from virtual immediate unconsciousness to almost no effect at all. Based on the blood smear on the wall, he felt that after this shot, Michelle had fallen to the floor.

The bullet through the head was the second shot fired and was a fatal wound that would produce death in seconds. He said Michelle could not have struggled after being shot in the head. The shot through her heart was the third shot. She was already dead when this shot hit her. Krouse testified that when this last shot was fired, Michelle's back was up against something. The time between the shots was not long — somewhere between seconds to a minute or two.

Krouse admitted on cross-examination that the first shot was not immediately lethal and that a person could continue to struggle after that shot. He could not rule out the possibility that, after falling, Michelle could have gotten back up again. And he testified that she certainly could have continued to struggle with her upper body. Krouse said the blood at the scene did not indicate that she had been there a long time because these types of injuries will generally cause significant blood loss. He found nothing to indicate whether or not Michelle had struggled.

Trevino presented two defense witnesses. Ted Trevino, Trevino's brother, testified that several years before this incident, he had relayed to Trevino something that Michelle had told him — that she was angry at Trevino for coming home with hickeys on his neck; that while Trevino slept, she had pointed a gun at him; and that she would have shot him except that he had been holding their daughter in his arms while he slept. He admitted that Michelle had told him that Trevino had hit her once in the past, and he testified that he also saw Michelle strike Trevino.

Teresa Trull, Trevino's sister and a police officer, testified that she arrived at the scene and saw Trevino in the patrol car. Trevino ...