Trevino v. State

• Decision Date: 12 May 1999
• Docket Number: No. 72851,72851
• Parties: Carlos TREVINO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 849

991 S.W.2d 849

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

No. 72851.

Court of Criminal Appeals of Texas,

En Banc.

May 12, 1999.

Richard E. Langlois, San Antonio, for appellant.

Mary Beth Welsh, Assist. DA, Edward F. Shaughnessy, Assist. DA, San Antonio, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

O P I N I O N

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 June 1996. Tex. Penal Code § 19.03 and T EX. C ODE C RIM. P ROC. Art. 37.071. ¹ Appeal is automatic to this Court. TEX. C ONST. 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 tend 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 blood ³ 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. We will address appellant's own statements first as they raise a different legal issue.

Appellant argues that his own alleged statements were rank hearsay, not admissible under any hearsay exception. Tex.R. Evid. 801 et seq. ⁵ The State responds that appellant's statements were not hearsay but admissions by a party-opponent. Tex.R. Evid. 801(e)(2). The State correctly argues that Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay. See also Drone v. State, 906 S.W.2d 608, 611 (Tex.App.--Austin 1995, pet. ref'd); Cunningham v. State, 846 S.W.2d 147 (Tex.App.--Austin 1993) aff'd on other grounds, 877 S.W.2d 310 (Tex.Crim.App.1994). This rule recognizes that the out-of-court statements of a party differ from the out-of-court statements of non-parties, and raise different evidentiary concerns. See Bingham v. State, 987 S.W.2d 54, at 56-57 (Tex.Crim.App.1999); Bell v. State, 877 S.W.2d 21, 25 (Tex.App.-Dallas 1994, pet. ref'd). A party's own statements are not hearsay and they are admissible on the logic that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements. Id. 55 STEVEN GOODE, OLIN GUY WELLBORN III & M. MICHAEL SHARLOT, GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 801.7 (Texas Practice 1993). Though our cases have sometimes failed to recognize this aspect of a party's own statement, we here disavow any precedent indicating that the statement of a party, when being offered against him, is hearsay. E.g., Green v. State, 840 S.W.2d 394, 411-412 (Tex.Crim.App.1992); Bryan v. State, 837 S.W.2d 637 (Tex.Crim.App.1992) and compare Davis v. State, 961 S.W.2d 156, 161 (Tex.Crim.App.1998)(Womack J. concurring); Banks v. State, 643 S.W.2d 129, 134 (Tex.Crim.App.1982). And we note that party admissions, unlike statements against interest, need not be against the interests of the party when made; in order to be admissible, the admission need only be offered as evidence against the party.

Accordingly, we agree with the State that Juan Gonzales' testimony that appellant told him not to say anything to police and that appellant received his co-conspirator's compliments with the assertion that he had learned to kill in prison, were admissible under Rule 801(e)(2)(A) as the admissions of a party. Appellant's third and fifth points of error are overruled.

Cervantes' statement is also admissible under Rule 801(e)(2). Cervantes' assertion apparently meant that appellant had snapped the victim's neck. Because appellant indicated his agreement with the assertion that he learned to kill in...