Trevino v. State

• Decision Date: 08 June 2006
• Docket Number: No. 13-02-353-CR.,13-02-353-CR.
• Citation: 228 S.W.3d 729
• Parties: Miguel TREVINO a/k/a Mike Trevino, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 729

Miguel TREVINO a/k/a Mike Trevino, Appellant, v. The STATE of Texas, Appellee.

No. 13-02-353-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 8, 2006.

Discretionary Review Refused October 18, 2006.

Philip T. Cowen, Brownsville, for appellant.

Armando R. Villalobos, Dist. Atty., Alfredo Padilla, Brownsville, David W. Hartmann, Harlingen, for state.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION ON MOTION FOR REHEARING

Opinion by Justice HINOJOSA.

We issued a concurring opinion in this case on June 9, 2005. Appellant, Miguel Trevino a/k/a Mike Trevino, subsequently filed a motion for rehearing. We grant appellant's motion for rehearing, withdraw our concurring opinion of June 9, 2005, and substitute the following as the opinion of this Court.

A jury found Trevino guilty of one count of murder (count I) and one count of aggravated assault (count II) and assessed his punishment at life imprisonment for the murder and ninety-nine years' imprisonment for the aggravated assault. In four issues, Trevino contends that the trial court erred in denying his motion to sever, in denying his motion to quash the indictment, and in admitting evidence of gang affiliation, and that the evidence is insufficient to support the convictions. We affirm.

A. BACKGROUND

On June 8, 2001, Everardo Serrato was traveling southbound on Sam Houston Street in San Benito in a Grand Am, with Michael Meza as his passenger. While stopped at a traffic light, Serrato noticed Trevino approaching in a Jeep Cherokee from the opposite direction. Because Serrato had known Trevino for many years, Serrato thought Trevino wanted to talk. As Serrato started to roll down his window, Trevino opened fire on the Grand Am with a semi-automatic weapon. Serrato immediately reclined his seat in an effort to protect himself. Attempting to escape, Serrato maneuvered the Grand Am out of traffic and fled north on the Expressway frontage road with Trevino in pursuit. While in pursuit, Trevino continued shooting at the Grand Am; half of his body was hanging outside of the Jeep, while a female steered the vehicle. The chase and shooting continued for about fifteen to twenty minutes. When the shooting stopped, Serrato turned onto the first street he reached and pulled into a convenience store parking lot. Serrato ran inside the store and told the clerk to lock the door. As a result of the shooting, Serrato sustained five bullet wounds. Meza sustained four entry wounds and died as a result of his injuries.

B. SEVERANCE

In his first issue, Trevino contends the trial court erred in denying his motion to sever. A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. TEX. PEN.CODE ANN. § 3.02 (Vernon 2003). However, a defendant has a right to a severance of the offenses. TEX. PEN.CODE ANN § 3.04(a) (Vernon Supp.2005). A motion to sever must be raised before trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex.Crim.App.1999). When a defendant timely requests severance under section 3.04(a), his or her right to a severance is absolute and severance is mandatory. See Coleman v. State, 788 S.W.2d 369, 371 (Tex.Crim.App.1990).

Prior to trial, Trevino filed a motion to sever under section 3.04(a), but the trial court denied the motion. Because the right to a severance is absolute, we conclude the trial court erred in denying the motion. See Coleman, 788 S.W.2d at 371. However, because severance error is subject to a harm analysis, we must determine whether the trial court's denial of Trevino's motion to sever affected a substantial right. See Llamas v. State, 12 S.W.3d 469, 470-71 (Tex.Crim.App.2000). In determining harm, we consider the entire record. Tovar v. State, 165 S.W.3d 785, 795 (Tex. App.-San Antonio 2005, no pet.) (citing Llamas, 12 S.W.3d at 471).

The rule allowing severance rests upon two legitimate concerns: (1) that the jury may convict a "bad man" who deserves to be punished — not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged. Llamas, 12 S.W.3d at 471-72; Tovar, 165 S.W.3d at 795.

The State argues that any error is harmless because the evidence of each of the crimes would have been admissible in a separate trial of the other offense as same transaction contextual evidence. See Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.-El Paso 2000, pet. ref'd) (holding severance error was harmless because evidence of each crime would be admissible in a separate trial of the other offense as same transaction contextual evidence). Same transaction contextual evidence results when an extraneous matter is so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case incomplete or difficult to understand. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993). We agree with the State that under the facts of this case the jury would have heard the same evidence regardless of whether the offenses were tried together or separately. Because we conclude that any severance error did not affect a substantial right, we overrule Trevino's first issue.

C. MOTION TO QUASH INDICTMENT

In his second issue, Trevino contends the trial court erred in denying his motion to quash the first paragraph of the murder count in the indictment. Specifically, Trevino asserts that the indictment fails to track the language of section 19.02(b)(2) of the Texas Penal Code because it does not include the word "and." Section 19.02(b)(2) provides: "A person commits an offense if he . . . intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. . . ." TEX. PEN.CODE ANN. § 19.02(b)(2) (Vernon 2003) (emphasis added). Trevino argues that because the word "and" was not included in the indictment, the indictment fails to allege all the necessary elements of the offense of murder.

The sufficiency of an indictment is a question of law and is reviewed de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). The indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Id. However this due process requirement may be satisfied by means other than the language in the charging instrument. Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App. 2003). When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend. Id. Except in rare cases, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense, and the State need not allege facts which are merely evidentiary in nature. See State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim. App.1996).

The indictment alleged that:

MIGUEL TREVINO A/K/A MIKE TREVINO [Defendant], on or about the 8TH day of JUNE, 2001 and anterior to the presentment of this indictment, in the County of Cameron and State of Texas, did then and there, with intent to cause serious bodily injury to an individual, namely, MICHAEL MEZA, commit an act clearly dangerous to human life, to-wit: by shooting MICHAEL MEZA with a firearm, that caused the death of said MICHAEL MEZA.

The indictment clearly tracks the language of section 19.02(b)(2) of the penal code and alleges all the requisite elements: that Trevino "did then and there" (1) with intent to cause serious bodily injury, (2) to Michael Meza, (3) commit an act clearly dangerous to human life, (4) by shooting Michael Meza with a firearm, (5) that caused the death of Michael Meza. See TEX. PEN.CODE ANN. § 19.02(b)(2) (Vernon 2003). We conclude that Trevino had sufficient notice the State was charging him with the offense of murder under section 19.02(b)(2). See id. We hold that the absence of the word "and" is not fatal. Trevino's second issue is overruled.

D. EVIDENCE OF GANG AFFILIATION

In his third issue, Trevino contends the trial court erred by admitting evidence of gang affiliation during the guilt-innocence phase of the trial. In response, the State argues that the evidence was relevant and admissible for the following two reasons: (1) it demonstrated the primary motive for the murder and aggravated assault, and (2) it constituted the res gestae of the murder itself.

In determining whether a trial court erred in admitting evidence, the standard of review is abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim. App.1999)). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g).

Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a person's character and/or to show that the person acted in conformity with that character. See TEX.R. EVID. 404(b). However, such evidence may be admitted if it is relevant to motive, identity, intent, opportunity, preparation, plan or absence of mistake. Id. As the Texas Court of Criminal Appeals has explained, "It has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum." Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim. App.1986) (citing Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1980)).

The State's theory was that Trevino, a member of the "Texas Syndicate," intentionally opened fire on Serrato's vehicle because Serrato was a member of a...