Trevino v. State
| Decision Date | 02 May 2013 |
| Docket Number | NUMBER 13-11-00767-CR |
| Parties | JOSE ANTONIO TREVIÑO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Court of Appeals of Texas |
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINIONBefore Justices Rodriguez, Garza and Perkes
Appellant, Jose Antonio Treviño, was convicted of capital murder and sentenced to life imprisonment. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2011). On appeal, Treviño argues that: (1) an accomplice's testimony was not sufficiently corroborated; (2) a jailhouse informant's testimony was not sufficiently corroborated; (3) the evidence was insufficient to support his conviction; (4) the trial court erred in admitting allegedly hearsay testimony; and (5) the prosecutor improperly commented onhis failure to testify. We affirm.
On February 9, 2009, the dead body of Rose Marie Gonzalez was found stuffed inside the refrigerator of her apartment in Harlingen, Texas. Gonzalez's face was covered with a plastic bag and her hands were tied behind her back with electrical cord. An autopsy revealed that Gonzalez died of asphyxia associated with blunt force trauma to the head and chest area. The autopsy also showed evidence of sexual assault.
Officer Jaime Palafox of the Harlingen Police Department recalled that, two nights before the body was found, he encountered four young men less than half a mile away from the apartment complex. One of the men had scratch marks on his face, another had blood on his shoes, and another had plastic bags wrapped around his ankles. The men informed the officer that they had just been in an altercation with a rival gang in a nearby park. The four men were subsequently identified as Marco Barrientos, Israel Martinez, Rudy Zuniga, and Treviño.
Zuniga, who was 14 years old at the time of the events leading to Gonzalez's death, testified at Treviño's trial as an accomplice witness. He stated that, on February 7, 2009, the four men were at Barrientos's house drinking beer and smoking marihuana. At some point during the day, Barrientos asked if the men wanted to go to a girl's house. The men said yes, and Barrientos's mother drove them to Gonzalez's apartment. Gonzalez was alone when they arrived. After about an hour, Barrientos and Treviño left to purchase cocaine. When they returned, they went into Gonzalez's bedroom, and they asked Zuniga to join them. According to Zuniga, Barrientos then explained that he and Treviño wanted to rape Gonzalez. Zuniga testified that, in response to Barrientos's comments, Treviño said "he was down with it"—that is, he wasgoing to "help out [Barrientos] to—to rape [Gonzalez]." Zuniga testified: "They told me that—they told me that we better do it, if not, that he was going to fuck us up."
Treviño grabbed Gonzalez and carried her into the bedroom. Zuniga went back to the living room; from there, he could hear Gonzalez scream "let me go" from the bedroom. Treviño then asked Zuniga to come into the bathroom which was adjacent to the bedroom. When Zuniga did so, he saw Gonzalez lying naked on the floor, and he saw Barrientos trying to grab her legs. Zuniga took a curtain out of a bag in the bathroom and handed it to Barrientos so he could use it to tie Gonzalez's legs together. Treviño grabbed Gonzalez's wrists so she could not move. Gonzalez continued to struggle, so Barrientos began to beat her on the back of her head and face with his fists. Barrientos also instructed Martinez to participate in the beating.
According to Zuniga, Barrientos then raped Gonzalez, first using his finger and then using a toothbrush that he found on the sink. Zuniga did the same at Barrientos's direction. Zuniga testified that Treviño proceeded to rape Gonzalez using an aerosol spray can, also at Barrientos's direction, and that Martinez did the same. Barrientos then placed a plastic bag around Gonzalez's face and he began to choke her, first with his hands and then with a towel. Barrientos also told Zuniga to pour orange juice over Gonzalez's then-motionless body. The men dragged the body to the kitchen, at which point Barrientos obtained a power cord from a radio and used it to bind Gonzalez's hands. According to Zuniga, Barrientos and Martinez then stuffed Gonzalez's body in the refrigerator.
The men then left the scene and soon encountered Officer Palafox. Officer Palafox temporarily detained Barrientos and Treviño in the back of his patrol unit. While in the back of the patrol unit, the two men had a conversation which was recorded,transcribed, translated, and entered into evidence. In the conversation, Barrientos referenced his affiliation with a local gang known for violence, and Treviño then asked Barrientos: "What do I have to do to get in?" Barrientos responded: "Nothing." Treviño then asked: "I already did it or what?"
Barrientos was arrested on the night of the murder for public intoxication. After officers learned of the murder two days later, Treviño and the other men were identified as suspects and were arrested. After being arrested, Treviño agreed to participate in an interview with detectives. A recording of the interview was introduced into evidence. During the interview, Treviño initially denied having contact with Barrientos or Gonzalez on February 7, 2009. He stated, instead, that he was at a nearby park when the murder was said to have been committed. Later in the interview, however, Treviño admitted that Barrientos's mother drove him, along with the other men, to Gonzalez's apartment on the night of the murder. He admitted being aware of Barrientos's plan to rape Gonzalez but denied helping Barrientos carry out the murder. As a result of these statements, Treviño was arrested and charged as a party to capital murder.
After the arrest, police collected, among other things, the sneakers Treviño was wearing. Investigators later discovered that the sneaker matched a bloody footprint found in the bedroom of Gonzalez's apartment. Further, blood found on one of Treviño's shoes matched Gonzalez's DNA. However, Treviño's DNA was not located at the scene.
Treviño telephoned his mother shortly after his arrest. During their conversation, Treviño initially denied having gone to Gonzalez's apartment. Later, however, he admitted that he was with Barrientos when Gonzalez was murdered. Treviño also informed his mother that he had washed the clothes he was wearing that night.
Treviño also spoke about the incident to a fellow inmate, Juan Ochoa. Ochoa testified that Treviño approached him seeking advice on how to get his case dismissed. According to Ochoa, Treviño explained that he received a visit from Barrientos two days after the murder, and that Barrientos told Treviño not to worry about getting caught because they would have been caught already. Treviño also stated that he knew Barrientos planned to rape Gonzalez. According to Ochoa, Treviño stated that he instructed Barrientos to rape Gonzalez with the toothbrush, and that he retrieved the plastic bags placed over Gonzalez's head.
The jury found Treviño guilty of capital murder and the trial court sentenced him to life imprisonment without possibility of parole. This appeal followed.
By his first issue, Treviño contends that there was insufficient evidence, other than the testimony of his accomplice Zuniga, to connect him to the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). He argues by his second issue that there was insufficient evidence other than the testimony of Ochoa, a jailhouse informant, to connect him to the offense. See id. art. 38.075(a) (West Supp. 2011).
Article 38.14 of the code of criminal procedure provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Id. art. 38.14; Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)) ("The Legislature has determinedthat the factfinder should exercise caution when considering the testimony of an accomplice" because "'accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person.'").1 Article 38.075 states:
A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
The evidence used for corroboration does not need to be in itself sufficient to establish guilt beyond a reasonable doubt, nor must it directly link the accused to the commission of the offense. Patterson v. State, 204 S.W.3d 852, 859 (Tex. App.— Corpus Christi 2006, pet. ref'd) (citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992)). Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. McAfee v. State, 204 S.W.3d 868, 871 (Tex. App.—Corpus Christi 2006, pet. ref'd) (citing Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559). The absence of "smoking gun" evidence does not invalidate evidence that does connect the defendant to the offense. Id. (citing Treviño v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)).
The law applying to cases involving corroboration of accomplice witness testimony also applies...
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