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Trejo v. State

Court of Appeals of Texas, Fourteenth District

December 31, 2019


          On Appeal from the 22nd District Court Hays County, Texas Trial Court Cause No. CR-14-0769

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.



         Appellant Michael Anthony Trejo, Jr., appeals his murder conviction, arguing in five issues that the trial court erred in (1) failing to suppress his video interview in violation of the Fifth and Sixth Amendments after he invoked his right to counsel; (2) overruling his hearsay objection to testimony regarding the sale of the firearm used in the commission of the offense; (3) allowing the State to use a prior consistent statement to bolster a witness's credibility; and (4) failing to grant a mistrial after the State purportedly misstated the law in closing argument during the punishment phase of trial.[1] We affirm.


         Christopher Vicuna lived with his cousin, Carlos Fernandez. Vicuna got into a fist fight with his neighbors, two brothers. Fernandez approached the men fighting and tried to pull the brothers off Vicuna a couple of times. After one of the brothers called their mother, Vicuna "took off." He went to his house, grabbed a gun, and ran back toward the brothers, who were getting into a car with their mother. Vicuna then shot in the direction of the car, ran away, and discarded the gun.[2]

         Appellant was on the scene while police officers were investigating. After the officers left, at approximately 2:00 a.m., appellant walked over to Fernandez as he was standing outside. They discussed looking for Vicuna's gun so the neighborhood children would not find it, and they walked away together.

         Fernandez's wife, Jessica, and mother, Rosa, were also standing outside at the time and "within a minute," they heard a gunshot. They ran toward the sound of the gunshot and saw appellant running away. He jumped into his car and fled. Two more men ran toward Jessica and Rosa-Jessica went with one of the men to look for Fernandez, and Rosa went with the other. Rosa found Fernandez lying on the ground. He had been shot and was pronounced dead on the scene.

         Later that night, appellant was arrested in another county after fleeing the scene of a car accident. He lost control of his vehicle, struck a guardrail, and fled on foot before being apprehended. A few days later, officers located a firearm near the scene of the accident. The State's firearms expert concluded the firearm found near the scene of the accident fired the bullet that was recovered from Fernandez's body. In addition, there was gunshot residue on some of appellant's clothing, which was consistent with "having been in the immediate proximity of a weapon that [was] being fired or [having] come into contact with a surface containing gunshot primer residue particles."

         Vicuna testified at trial that Fernandez had had a handgun that matched the description of the murder weapon. Vicuna observed Fernandez display the gun to appellant. Appellant offered to purchase it for $100, but Fernandez declined to sell it to him at that time. At a later date, appellant pulled up outside Fernandez and Vicuna's house. Fernandez got the gun and took it outside. Vicuna left the house around that time. When Vicuna returned, Fernandez no longer had the gun but instead had about $350 in cash. Based on these observations, Vicuna testified that Fernandez sold the gun to appellant. Images of the same firearm were found on Fernandez's and appellant's phones and admitted at trial. Serial numbers on the images matched the serial numbers on the firearm used to kill Fernandez.

         While appellant was in custody for fleeing the car accident, Detective Swonke, with another officer present, interviewed appellant regarding the murder. Appellant denied any involvement.

         A few minutes into the video interview, appellant stated:

I might as well just get a lawyer. I don't even know what this is about. I feel like I might need a lawyer. Am I in trouble? Am I being charged with something? If I'm being charged with something, let me know, so I can just get my lawyer, because I've got a lawyer. I'll just call up my lawyer right now. If that's the case, then I'll just call him, call him right now. Am I getting charged?

         At first Swonke responded that appellant was not being charged but told him at the end of the interview that he probably would be charged with something due to his lack of cooperation.

         I. Motion to Suppress

         In his first and second issues, appellant challenges the trial court's denial of his motion to suppress portions of his video interview after he purportedly invoked his right to counsel. He contends that the video interview was admitted in violation of his Fifth Amendment and Sixth Amendment rights to counsel.

         We review a trial court's ruling on a motion to suppress under a bifurcated standard, giving almost total deference to the trial court's findings of historical fact and reviewing de novo the trial court's application of the law. Vasquez v. State, 324 S.W.3d 912, 918 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). When a criminal defendant challenges the admissibility of a videotaped statement, we defer to the trial court's determination of historical facts in the video. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012). We use the same deferential standard for mixed questions of law and fact that require evaluation of credibility and demeanor. Id. However, we review de novo all other mixed questions of law and fact that do not fall within that category. Id. at 184.

         When the trial court makes no finding of facts, we view video evidence in the light most favorable to the trial court's ruling to deny the motion to suppress. Id. We presume that the trial court made implicit findings that support the denial of Appellant's motion to suppress. Id. at 184-85. If video evidence does not support the trial court's conclusion, we must reverse. Id. But we must uphold the trial court's ruling if it falls within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

         A. Fifth Amendment

         Appellant argues in his first issue that he invoked his right to counsel under the Fifth Amendment during the interview and that officers should have ceased the interview at that time. The State concedes that appellant was in custody during the interview but asserts that he did not unequivocally invoke his right to counsel.[3]

         Swonke began his interview by giving appellant his Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). The Fifth Amendment right to interrogation counsel is triggered by the Miranda warnings that police must give before beginning any custodial questioning. Pecina v. State, 361 S.W.3d 68, 71 (Tex. Crim. App. 2012). Under the Fifth Amendment, the police must advise a suspect whom they have arrested that he has the right to have counsel present during any police-initiated interrogation. State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009). Once the suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue. Id.

         Not every mention of a lawyer will invoke the Fifth Amendment right to the presence of counsel during questioning. Id. An ambiguous or equivocal statement with respect to counsel does not even require officers to seek clarification, much less halt their interrogation. Id. Whether the mention of a lawyer constitutes a clear invocation of the right to counsel will depend upon the statement itself and the totality of the surrounding circumstances. Id. The test is objective: the suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. at 892-93. We look to the totality of circumstances to determine whether any statement referencing counsel was really a clear invocation of the Fifth Amendment right; we do not look to the totality of the circumstances, however, to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel. Id. at 893. Finally, when a suspect makes a clear, but limited, invocation of the right to counsel, the police must honor the limits that are thereby placed upon the interrogation, but they may question their suspect outside the presence of counsel to the extent that his clearly expressed limitations permit. Id.

         The State argues that appellant's request for a lawyer was not unequivocal because it was conditioned upon whether appellant was being charged with a crime. In Gobert, the Court of Criminal appeals held that the statement "I don't want to give up any right though, if I don't got no lawyer" was an unequivocal invocation of the right to counsel. Id. at 892-93. In reaching this conclusion, the high court noted: "Just because a statement is conditional does not mean it is equivocal, ambiguous, or otherwise unclear." Id. at 893. In that case, the Court held officers were required to comply with the defendant's clearly stated condition-that he was not willing to give up his Miranda rights without an attorney present. Id. at 894.

         This case is distinguishable from Gobert in that appellant had not yet been charged at the time of the interview, so the stated condition had not occurred. But Swonke admitted at trial that by the time of the interview, he already was certain that appellant committed the murder. At issue, then, is whether a reasonable police officer would have understood the statement to be a request for an attorney under these facts.

         The State relies on several cases that involve equivocal statements such as "Do I need an attorney?" United States v. Montes, 602 F.3d 381, 385 (5th Cir. 2010), and "I should have an attorney," Davis v. State, 313 S.W.3d 317, 341 (Tex. Crim. App. 2010). Here, appellant stated that he already had a lawyer and he would call him if he was being charged with a crime: "If I'm being charged with something, let me know, so I can just get my lawyer, because I've got a lawyer. I'll just call up my lawyer right now. If that's the case, then I'll just call him, call him right now." The case cited by the State that is most factually similar to this case is Molina v. State, 450 S.W.3d 540 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

         In Molina, the defendant stated, "If I'm getting blamed for something like that . . . I'm going to just go ahead and call my lawyer." Id. at 547. Citing Gobert, the defendant argued that because the officers "well knew" that he was being blamed for murder, no reasonable police officer could interpret the statement other than as a clear invocation of the right to counsel. Id. This court held that the facts in Molina were distinguishable from those in Gobert because the defendant in Molina "agreed to answer questions, conditionally referred to calling his lawyer, and then continued to request additional information about the case and answer the investigators' questions." Id. The court concluded the defendant's statement "was not in the form of a request, nor did appellant expressly say that he wanted a lawyer." Id.

         This case is also distinguishable from Molina. Appellant said he wanted a lawyer if he was being charged with a crime, steadfastly denied any involvement in the offense, refused to answer Swonke's questions, and did not request information about the case. Moreover, appellant's statement "[i]f I'm being charged with something, let me know, so I can just get my lawyer, because I've got a lawyer" was not equivocal. Cf. Davis, 313 S.W.3d at 341 ("That appellant's statement, 'I should have an attorney,' was not a request for an attorney is also bolstered by the fact that he subsequently asked the detectives why he should help them out."). The statement was conditioned on appellant's being charged with a crime. As the court noted in Gobert, a conditional statement is not necessarily "equivocal, ambiguous, or otherwise unclear." 275 S.W.3d at 893.

         Presuming that the trial court admitted appellant's statement in violation of his Fifth Amendment right to counsel, we conclude appellant was not harmed by the statement's admission. See McCarthy v. State, 65 S.W.3d 47, 52 (Tex. Crim. App. 2001); see also Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (discussing harm analysis applied to Miranda exclusionary rule). Because any error would be of constitutional magnitude, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. McCarthy, 65 S.W.3d at 52 (citing Tex.R.App.P. 44.2(a)). If there is a reasonable likelihood that the error materially affected the jury's deliberations, the error was not harmless. Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003). We must "calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." Id. In determining whether constitutional error in the admission of evidence is harmless, we consider the entire record in light of several factors, including the importance of the evidence to the State's case; whether the evidence was cumulative of other evidence; the presence or absence of other ...

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