Carlos TREVINO, Appellant, v. The STATE of Texas.
No. 72851.
Court of Criminal Appeals of Texas, En Banc.
May 12, 1999.
991 S.W.2d 849
Mary Beth Welsh, Assist. DA, Edward F. Shaughnessy, Assist. DA, San Antonio, Matthew Paul, State s Atty., Austin, for the State.
OPINION
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
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.
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,3 (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 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.
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
Cervantes statement is also admissible under
In his sixth point of error, appellant challenges the sufficiency of the evidence to sustain an affirmative answer to the second special issue, i.e., whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
In reviewing the sufficiency of the evidence on this issue we ask whether, in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a con-
We have previously held that a finding of future dangerousness can be supported by evidence showing an escalating pattern of disrespect for the law. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). In King, prior to the capital murder for which he was on trial, the defendant had committed burglary while on parole from theft charges. Id. We found that such an escalation of crimes established an escalating pattern of disrespect for the law from which a rational jury could draw an inference of future dangerousness. Id. While in King we did not specifically attribute significance to the fact that the burglary was committed while King was on parole, we find that the jury could have considered as evidence of future dangerousness the fact that appellant was on parole when he committed this crime.
Moreover, a jury can rationally infer future dangerousness from the brutality of the offense. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995). We have in the past found the circumstances surrounding the crime to be horrendous when the crime was a gang rape and murder of two girls. Cantu v. State, 939 S.W.2d 627, 642 (Tex.Crim.App.), cert. denied, U.S., 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). The gang rape and throat-cutting murder of the fifteen-year-old girl in this case also strikes us as being a particularly brutal crime, evidencing a most dangerous aberration of character supporting a jury s affirmative finding of future dangerousness. See Sonnier, 913 S.W.2d at 517.
Finally, future dangerousness can be inferred from evidence showing a lack of remorse and/or indicating an expressed willingness to engage in future violent acts. Rachal v. State, 917 S.W.2d 799, 806 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). Appellant s statement after the murder that he learned to kill in prison indicates at least an initial lack of remorse for the killing and also that he was prepared to kill in the future. Moreover, rather than dissuade his younger cousin from the life of crime he had chosen for himself, appellant attempted to bring him into that world of crime. We conclude that there was sufficient evidence from which a rational jury could conclude that appellant would probably commit future acts of violence that would constitute a continuing threat to society. Appellant s sixth point of error is overruled.
Appellant s seventh and eighth points of error voice his contentions that the trial court erred in admitting into evidence the oath of Los Pistoleros Latinos, a document which outlines the racial qualifications and the goals and obligations of gang members. The document was introduced at punishment to educate the jury on the nature of appellant s gang association. Appellant argues in point seven that the document was irrelevant and more prejudicial than probative.
At trial appellant objected only on grounds that the proper predicate had not been laid for the testimony. When that objection was sustained and the State laid its predicate, appellant renewed his objection on the same grounds but never argued that the evidence was irrelevant, prejudicial or in violation of due process. On these facts we must agree with the State that appellant s arguments have not been preserved for review. E.g., Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991) (to preserve an issue for appellate review, the point of error must at least minimally comport with the objection at trial). Appellant s seventh and eighth points of error are overruled.
In points nine through nineteen appellant challenges the constitutionality of the Texas death scheme on grounds which have been repeatedly rejected. We have reviewed his claims and find that they are without merit. Points of error nine through nineteen are overruled.
The judgment of the trial court is AFFIRMED.
MEYERS, J. filed a concurring opinion.
JOHNSON, J. concurred in the result.
MEYERS, J., delivered this concurring opinion.
I write to register my disagreement with the majority s observation in connection with appellant s point of error six that the jury could have considered as evidence of future dangerousness the fact that appellant was on parole when he committed this crime. Majority opinion at 854. The majority says our opinion in King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997), did not specifically place significance on such fact, but suggests it was implied. I see no such implication there: There are several reasons that the admission of the case summaries and disciplinary reports was harmless. First, the properly admitted judgments of appellant s prior convictions showed, chronologically, convictions for theft, theft, and burglary of a habitation. Appellant committed the burglary of a habitation while on parole from the theft charges. While theft and burglary are not the most violent of crimes, going from theft to burglary of a habitation shows an escalating pattern of disrespect for the law from which a jury could draw an inference of future dangerousness.... King, 953 S.W.2d at 271.
Apart from the fact that the majority s comment has no basis in law, neither do I see a basis in logic. How is the fact that a defendant is serving parole at the time he commits another offense evidence of future dangerousness?1 Certainly, evidence of the prior offense for which the defendant is on parole is probative of future dangerousness. But why is the fact that the defendant is serving community supervision while committing another crime more probative of future dangerousness than if the defendant serves out his term and then commits another crime? Why is it worse for a parolee to commit a crime than it is for a former felon to commit a crime? Of course a parolee is not supposed to commit crimes while on parole. But neither is anyone supposed to commit crimes. I just don t get it. At any rate, the majority does not explain its finding that a jury could consider such evidence as probative of future dangerousness.
With these remarks, I concur in the judgment.