Trevino, Julio v. State ( 2012 )

AFFIRM; Opinion issued December 17, 2012.
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No. 05-11-01381-CR
JULIO TREVINO, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 195
th
Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-24829-N
MEMORANDUM OPINION
Before Justices Bridges. Francis, and Lang
Opinion By Justice Bridges
Appellant Julio Trevino, Jr. appeals his murder conviction and accompanying sentence of
62 years’ imprisonment and a $10,000 fine. In three issues, appellant challenges: (1) the legal
sufficiency of the jury’s finding appellant failed to prove he caused the death of Pearl Hernandez
while he was under the influence of sudden passion arising from adequate cause; (2) the factual
sufficiency of the jury’s negative finding; and (3) the trial court’s decision to overrule appellant’s
objection to the extraneous offense evidence in the punishment phase of trial. We affirm.
Background
Appellant pled guilty to the offense of murder as charged in the indictment, The case then
proceeded to a trial by urv on punishment. I)uring the punishment phase. the jury heard appellant
testify he killed his wife. Pearl 1-Jernande,. lie stated, on the date of the incident, he worked all day
and came home around 7:00 or 8:00 p.m. Pearl was not home when he arrived, so he called her and
she indicated she was shopping in Allen. By midnight. she still was not home and, after calling her
se\ cml times. she told him she was coming home. When she arrived alter 2:00 a.m., they got into
an argument.
Appellant testified Pearl told him it was none of his business where she had been, and he
could tell she had been drinking. The argument escalated, and she told him she wanted to leave. He
said when he turned on ihe light. she told him to turn it oil. He saw hiekeys on her neck and thought
she had been with someone else. He said she kept telling him to leave the room, that she didn’t want
him there and kept hitting the wall with her hands. I-ic said he was mad and frustrated and, because
he wanted to know what was wrong. he confronted her. He said she tried to scratch him in the lace
and kept telling him he was going to jail. I-Ic did not recall strangling her. hut knew that lie did.
Appellant stated he did not call the police, because he did not want his children to know what
he had done. 1-Ic put her body in the car and drove her to the church, leaving her body inside the car
at the church parking lot. He said he never planned to kill her.
He testified he lied when he called 911 to report Pearl missing, but knew he would ultimately
have to pay the price for what he did. When he was interviewed by the police, he would go blank
at the point of strangulation.
Appellant did recall that, during the struggle. Pearl wanted him to hit her with an aerosol can.
He stated he did not know he had hit her that hard. He also indicated Pearl came at him with a knife,
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but he later threw the knife down the road when he took her body to the church. He did not want
anyone to know his wife tried to attack him with a knife. He testified he knew nothing about his
wife’s lover, Stephen.
On cross-examination, appellant stated Pearl told him, about three months prior to the
murder, that she was going to leave him. He also testified to his desire to place a tracking device on
her car. When Pearl came at him with a knife, appellant said he was swinging with the aerosol can.
The can came out of his hand and, when he grabbed her hair to throw her away from him, his hand
was lodged in her hair. He said when he pulled, he pulled too hard and she stopped moving. He
thought her neck was broken. He did not recall strangling her.
Irene Garcia, the 19-year-old daughter of appellant, testified Pearl told her she was going to
leave appellant, but Pearl wanted to wait a year to leave him. Garcia said Pearl told her she did not
love appellant anymore. Garcia further testified appellant tried to cover things up to protect her and
her siblings.
Naomi Holz. one of Pearl’s co-workers, testified she worried about her friend, because she
knew appellant had once hit Pearl. Holz knew Pearl had filed a restraining order against appellant
in 2010. Pearl told Holz she was going to leave appellant Holz also said she learned Stephen was
Pearl’s lover about a week to two weeks prior to Pearl’s death.
Elma Garcia testified she dated appellant in high school and had their daughter, Irene. She
stated appellant had been arrested and charged with assaulting her in April 1993. Elma testified she
was riding in her car with her boyfriend in November 1995, when appellant drove up and started
cursing them. She told her boyfriend to keep driving because she was scared something would
happen between the two men.
David Landis, a detective with the Garland Police Department, interviewed appellant
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Appellant told Landis he received the scratches on his face by cutting down a tree and being
scratched by some limbs. Appellant eventually changed his story and, when he was told his wife’s
body had been found and they thought appellant had killed her, he did not deny it, Appellant told
Landis his wife had recently been staying out all night, which made him angry. He said appellant
eventually stated it was “all on me; I did it”
Appellant admitted he took tier body, put her in the back seat of the Tahoe, along with her
shoes and purse, drove the Tahoe to the church parking lot, locked the doors and walked back home.
Appellant told Landis he cleaned up the blood in the house with some towels and threw them away
in a city dumpster. Appellant indicated he was sorry about what lie had done.
Landis stated, in her diary,’ Pearl wrote about her personal feelings and the issues in her
marriage. Her diary included references to the affair and to telling her husband she wanted him to
leave. Eight days before her death, Pearl wrote she had pressed charges against appellant and, when
she told him about calling the police, appellant threatened her.
Dr. Jill Urban, a medical examiner at the Southwestern Institute of Forensic Sciences, stated
she performed the autopsy of Pearl Hernandez. Urban testified there were scrapes on the neck and
the undersurface of Pearl’s chin, which was consistent with strangulation. There was bruising on
the inside of the lip, which was consistent with a victim struggling against a hand. There was also
extensive hemorrhaging of the muscles inside her neck. She had a laceration on the forehead and
one on the scalp towards the back. Urban testified bruising on Pearl’s arms could have been
defensive wounds.
The jury found appellant was not under the immediate influence of sudden passion arising
‘The diary was admitted as States Exhibit 67.
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from an adequate cause when he caused the death of Pearl Hernandez. Appellant was found guilty
of murder as charged in the indictment and sentenced to 62 years’ imprisonment and a $10,000 fine.
Analysis
In his first and second issues,
2 appellant challenges the sufficiency of the jury’s finding
appellant failed to prove he caused the death of Pearl Hernandez, while he was under the influence
of sudden passion arising from an adequate cause.
During the punishment phase of a murder trial, a defendant may argue he caused the death
while under the immediate influence of sudden passion arising from an adequate cause. See
McKinnev v. State, 179 S.W.3d 565, 569 (Tex, Crim. App. 2005). “Sudden passion” is “passion
directly caused by and arising out of provocation by the individual killed or another acting with the
person killed which passion arises at the time of the offense and is not solely the result of former
provocation.” TEx. PENAL CoDE ANN, § 19.02(a)(2) (West 2011). “Adequate cause” is a “cause
that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper, sufficient to render the mind incapable of cool reflection.” hi. at § 19.02(a)(1). Sudden
passion is a mitigating circumstance that, if found by the jury to have been proven by a
preponderance of the evidence by the defendant, reduces the offense from a first degree felony to a
second degree felony. Id. at § 19.02(c), (d); see McKinnev, 179 S.W.3d at 569.
When an appellant seeks review of a jury’s failure to make a finding on which he had the
burden of proof, such as on an affirmative defense, he invokes our factual review jurisdiction. See
Naasz v. State, 974 S .W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’ d) (citing Meraz v. State, 785
S.W.2d 146, 154-55 (Tex. Crim. App. 1990)). Where the issue is one the defendant has the burden
2
Appellant challenges the legal and factual sufficiency of the evidence separately. Following our decision in
JohflSOflv. State. No. 05-09-00133-CR. 2010 WL 5142392, at *67 (Tex. App.—Dallas Dec. 20. 2010, pet. ref’d)
(not designated for publication), we discuss these issues together.
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to prove by a preponderance of the evidence, Mcra remains (lie proper ‘aandard of review. See
io1mon i’Sicue. No. ( )5—09—(X) 1 33CR. 2() 10 WI. 5 I 423,)2 at 67 (Tex .\ p.-Dallas December .O.
2() JO. pet. ref’d) ( not designated tor publication>. Thiis, the correct standard of review is whether,
after consaderini all the evidence relevant to the issue, the judgment is so against the great weight
and preponderance ol the evidence as to be manifestly unjust. See Mc’rw. 785 S.W.2d at 155; Lewis
v. State, No. 05 1 0D08 I 0CR, 201 1 WL 2860009 (Tex. App.—Dallas. J lily 20, 2011, no pet.) (not
designated for publication); Naasz, 974 S.W.2d at 421.
Although appellant testified he knew nothing about his wife’s lover, he admitted Pearl told
him, about three months prior to the murder, that she was going to leave him. He told Landis his wife
had recently been staying out all night. which made him angry. Appellant also stated his desire to
place a tracking device on his wife’s car. He further testified, on the night of the murder, he saw
hickeys on Pearl’s neck and thought she had been with someone else. He also said he was mad and
frustrated and, because he wanted to know what was wrong, lie confronted her. En addition, Pearl’s
(liary included references to the affair and reflected she had told appellant she was planning on
leaving him. Appellant’s daughter knew Pearl intended to leave appellant, because Pearl did not
love him anymore. Holz testified Pearl told her she was planning on leaving appellant, and she
learned Stephen was Pearl’s lover about a week to two weeks prior to Pearl’s death.
The evidence also shows, eight days before her death, Pearl wrote she had pressed charges
against appellant and, when she told him about calling the police, appellant threatened her. Holz also
testified she knew appellant had hit Pearl in the past and that Pearl had filed a restraining order
against appellant in 2010.
The jury determines the credibility of the witnesses and the weight of the evidence. See Cain
v.State,958 S.W.2d 404, 408-09 (Tex. Criin. App. 1997). Based on our review of the evidence, we
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conclude the jury’s failure to find appellant acted under sudden passion was not so against the great
weight and preponderance ot the evidence as to he manifestly unjust. See Meraz, 785 S.W.2d at 155:
Naasz, 974 S.W2d at 421. We overrule appellant’s first and second issues. See Johnson, 2010 WL
5142392 at (•7
In his third issue, appellant challenges the trial court’s decision to overrule appellant’s
objection to the extraneous offense evidence in the punishment phase of trial, Specifically, appellant
argues the trial court abused its discretion in allowing the jury to consider the testimony of
Christopher Oliva and Elma Garcia. With regard to Elma’s testimony, appellant complains her
testimony was unreliable during the sub rosa hearing “due to remoteness in that lElma Garciaj
admitted she could not remember any relevant details of the event.” Appellant complains of Oliva’s
testimony, because he “testified to conduct that was assaultive in nature of his own doing.”
During the sub rosa hearing, both Elma and Oliva testified to a November 13, 1995 incident,
in which they encountered appellant at a laundromat, During that encounter, both witnesses alleged
appellant pulled up next to their car and started yelling at them. Both testified Elma warned Oliva
not to “go over and have words with [appellanti.” Oliva testified Elma was afraid appellant had a
gun. Following the encounter, Oliva testified he dropped Elma at home and “went after” appellant.
At that point, the trial judge stopped Oliva’s testimony, so the State could further visit with Oliva
about the incident. When the hearing reconvened, the trial judge determined Oliva’s testimony was
relevant. Following Oliva’s testimony, Elma also testified during the sub rosa hearing as to
appellant’s 1993 conviction, resulting from his assault on her.
Appellant objected the evidence was too remote and more prejudicial than probative. The
trial court overruled the objections and determined evidence of both the 1993 conviction and the
1995 incident was relevant. In addition, the trial court noted the fact that Elma could not remember
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the details of the 1993 conviction went to her credibility, rather than relevance of the conviction
itself,
A trial court’s decision to admit or exclude extraneous offense evidence during punishment
is reviewed under an abuse of discretion standard. See Mitchell v. State, 931 S,W.2d 950, 953 (Tex,
Crim, App. 1996) (citing Saenz v.State, 843 S.W.2d 24,26 (Tex, Crim. App. 1992)). The legislature
has determined that, during the punishment phase, evidence of extraneous crimes or bad acts are
admissible subject to certain conditions being met. See TEX. CODE CRIM, PROC. ANN, Art. 37.07 §
3(a)(l) (West 2012). In particular:
I Ejvidence may be offered by the [Sitate and the defendant as to any matter the court
deems relevant to sentencing, including but not limited to the prior criminal record
of the defndant. his general reputation, his character, an opinion regarding his
character, the circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any orherevidence of
an extraneous crime or had act that is shown beyond a reasonable doubt by evidence
to have been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or finally
convicted of the crime or act.
See id. (Emphasis added). Based on the foregoing, we conclude the trial court did not abuse its
discretion in overruling appellant’s objection to the extraneous offense evidence in the punishment
phase of trial. See id.; Mitchell, 931 S.W.2d at 953. We overrule appellant’s third issue.
Having overruled all of appellant’s issues, we affirm the judgment of the trial court.
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DAVID L. BR1DGE
JUSTICE
Do Not Publish
TEX. R. APP. P.47
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JUDGMENT
JULIO TREVINO, JR.. Appellant Appeal from the 195” Judicial District Court
of Dallas County. Texas. Tr,Ct.No. FlO
No, 05-1 1-0138LCR V. 24829-N).
Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee Justices Francis and Lang.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMEI).
JudLTment entered December17. 201 2.
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DAVID L. BRIDGES
JUSTICE