Appeal from the 22nd District Court Hays County, Texas Trial
Court Cause No. CR-14-0769
consists of Chief Justice Frost and Justices Jewell and
FRANCES BOURLIOT, JUSTICE
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. We affirm.
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
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
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.
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."
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.
appellant was in custody for fleeing the car accident,
Detective Swonke, with another officer present, interviewed
appellant regarding the murder. Appellant denied any
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?
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
Motion to Suppress
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
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.
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).
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.
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.
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
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.
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.
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.).
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
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.
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 ...