Opinion
No. 05-19-00295-CR
05-19-2020
JESUS EMMANUEL TREVINO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-1600420-X
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Reichek
Jesus Emmanuel Trevino appeals his conviction for capital murder. Bringing three issues, appellant contends the evidence was insufficient to support his conviction and there was no evidence to corroborate the accomplice witness testimony presented by the State. Appellant further argues the trial court abused its discretion in concluding the State's expert witness on cell phone mapping was qualified to testify. We affirm the trial court's judgment.
Background
In late 2013 or early 2014, appellant began working with Ioannis "John" Makris in Makris's home remodeling business. Appellant and Makris became close friends and appellant socialized with Makris and his fiancée, Laura Grillo. Appellant frequently visited the couple's house in Rowlett and, despite the fact he was a registered sex offender, appellant stated he would babysit for their children. Makris and Grillo had one daughter together and Grillo had two older children from previous relationships.
Towards the end of 2014, Makris told appellant that he wished Grillo was "gone." Appellant understood that Makris wanted him to kill Grillo, but he said he did not take him seriously. Makris developed a plan and told appellant to go into their house in the morning while Grillo was taking their daughter to school and shoot her when she got back. Makris provided appellant with a gun for the job. Appellant testified he kept the gun in his backpack so he could show it to Makris when Makris wanted to "make sure the gun was still around."
According to appellant, he began talking to "a lot of people" to help him kill Grillo. He said he did this to show Makris he was trying to get the job done. Juan Salazar testified he and appellant lived in the same house in late 2014 and early 2015. Appellant asked Salazar if he could help him with driving to "kill John's wife." Specifically, appellant asked him to drive to Makis's house and wait for him while he went inside and killed Grillo. On one occasion, appellant showed Salazar the gun. Salazar eventually told appellant to move out of the house because he did not want anything to do with it.
During this time, appellant was dating a woman named Lorena Rodriguez. Appellant told Rodriguez that someone had solicited him to kill somebody. Rodriguez stated she knew it was appellant's boss who was asking appellant to kill someone and the person appellant's boss wanted killed was a woman. Appellant told her that if he killed the woman himself, he would get $15,000, but if he got someone else to do it, he would keep $10,000 for himself and pay the killer $5,000. Rodriguez said she reported this to police, but they did not take her seriously. Shortly thereafter, she and appellant broke up.
Ramon Fino testified he and appellant were close friends. Appellant told Fino that Makris wanted Grillo killed because he did not want to pay child support and appellant showed him the gun Makris had given him to do the job. Fino stated appellant asked to borrow his car to do "that job" and Fino understood "that job" to refer to murdering Makris's wife. Fino told appellant he would call him back later about the car, but he never did.
In July 2015, appellant began dating Rosalinda Herrera. One evening, Herrera went with appellant to pick up James Villeda, a friend of appellant's from high school. Villeda was stranded and needed a ride back to his motel on the west side of downtown Dallas. During the drive, Villeda told appellant he was having money problems. Villeda asked appellant if he could help him get work with Makris. Appellant told him Makris didn't have any remodeling work at that point, but he was looking for someone to act as the driver for "a lick." Villeda thought a "lick" referred to a robbery. Villeda first said he wasn't interested, but then changed his mind and said he would do it. Appellant told Villeda he would pay him $1,000.
Appellant took Villeda to meet Makris and told Makris that Villeda would be driving the vehicle. In the conversation that followed, Villeda learned he would be helping appellant kill Grillo. Makris told them they had to do the job on a weekday so the kids would not be home and Makris would have the alibi of being at work. Makris would text appellant to let them know when Grillo had left the house to take the children to school. Villeda would then take appellant to the house, park around the corner, and wait for him to come outside. Villeda stated he also heard appellant and Makris talking about making the house look like there had been a robbery. Villeda stated Makris hired him to work full time for the remodeling business because he knew Villeda was "the driver."
Villeda testified appellant already had the weapon, but they needed to find a vehicle that could not be traced to them. He and appellant purchased a "silver-blue" Kia for around $1,000. They kept the car at Villeda's motel. Appellant stated he bought the Kia to "show John [he] was doing something to help kill Laura."
Appellant and Villeda began trying to put Makris's plan into action. But on three different occasions, they were unable to follow through because, after arriving at Makris's house, they saw activity in the neighborhood. Villeda testified Makris was becoming agitated because he wanted the job done before the wedding, which was scheduled to occur soon. Appellant testified he was delaying going through with the killing because he was hoping Makris would forget about it once he and Grillo were married.
On the morning of November 13, eight days before the wedding, Makris texted appellant at 7:48 a.m., "Don't be late" followed by, "It's a good day to get some work done." Villeda testified that appellant came to his motel and they drove to Makris's house in the Kia. Appellant was dressed all in black, including a black hoodie.
After dropping appellant off at Makris's house, Villeda drove around the block and parked within view of the house. Villeda stated he was smoking cigarettes and stopped paying attention so when he looked up, he saw appellant standing in the yard. Villeda then picked appellant up, and began driving back to the motel. Along the way, appellant dismantled the gun inside his backpack. Villeda said appellant also changed his clothes, and he saw appellant throw his shoes out the car window. Villeda said appellant then "got on his phone" to let Makris know the job was done. Appellant's phone showed a text to Makris at 9:05 a.m. saying, "Okay."
Back at the motel, appellant put the dismantled gun in a trash bag and Villeda stated he threw the bag in a dumpster at a nearby gas station. After switching cars, appellant and Villeda drove to Home Depot to meet Makris. Store video shows appellant and Villeda arriving at the store at 9:43 a.m. Villeda stated Makris started asking them questions, but Villeda told him to stop talking because there was a store employee nearby. The men then worked loading doors into a trailer for a remodeling job. The video shows Makris pulling appellant up into the bed of a trailer. Makris's hands later tested positive for gunshot residue.
Later that day, while Villeda and appellant were at lunch, Makris called saying "something had happened at the house," and he thought Grillo had "gotten shot." Villeda said Makris was with his mother when he made the phone call so he had to "put on a good show." Villeda said he and appellant decided to take the rest of the day off. They went back to the motel, picked up the Kia, and took it to appellant's stepfather, a car mechanic, to sell. Appellant's stepfather confirmed at trial that appellant brought him a gray, four-door car to sell. Appellant told him that, if he sold the car for more than $1,000, he could keep the extra money.
Grillo's body was found in the kitchen of the house with a gunshot wound to the head. Detectives who arrived at the scene noted there was no sign of a forced entry into the house. Although a safe was found opened, the scene did not appear typical of a burglary.
Both appellant and Villeda were asked by detectives to come in for interviews on November 17. Appellant gave a statement saying he "hung out" with Villeda in his hotel room before going to work on the 13th and they met Makris at the Home Depot around 8:45 - 9:00 a.m. Appellant denied being in Rowlett that morning. Appellant allowed the officers to look through his phone, but the battery was almost dead and they did not get any information from it at that time.
Several days later, officers visited Villeda at his motel. Villeda allowed them to search his room and they found appellant's backpack under the bed. The backpack contained, among other things, blue latex gloves. The officers took Villeda to the Rowlett police station to be interviewed again. While Villeda was at the station, Makris called appellant. In a recording of the conversation later obtained from appellant's phone, Makris can be heard saying, "Hopefully he didn't tell them how." Appellant responded, "Hopefully not, he was with me the whole time."
Officers became concerned about appellant when phone records showed his phone heading towards Rowlett at 7:45 a.m. on the day Grillo was killed, and leaving Rowlett at 8:30 a.m. On November 23, police obtained a search warrant for appellant's cell phone. Officers found appellant in a Walmart parking lot and executed the warrant. One of the detectives noted that appellant was surprised and unhappy to see them, and that he had a different phone than the one he showed them at his interview on November 17.
Villeda stated appellant got very nervous when he found out the police had recovered his backpack. Appellant took Villeda to see a lawyer and they told the lawyer about the backpack. According to Villeda, the lawyer advised them "not to be around when they come to ask questions."
Herrera testified she and appellant moved out of the house they were living in early in the morning a few days later. Soon after that, appellant left the state. Herrera continued to communicate with appellant through social media in which he created a fake profile calling himself "Mike Smith." Police eventually tracked appellant to Clearwater, Florida and indicted him for murder. At the time appellant was indicted, the police were unaware that Villeda was involved.
In June 2016, Villeda was "going through a spiritual thing," and stated he "wanted to let the truth be known." Villeda confessed to police about his involvement with Grillo's murder and drove with two detectives along the route he had driven with appellant after leaving the scene on November 13. Villeda took them to the area where he believed appellant had thrown his shoes out the window and they recovered pieces of a shoe, a black hoodie, and blue latex gloves.
Villeda testified he encountered appellant a few months before trial and appellant expressed disbelief that Villeda was testifying. Villeda stated appellant offered him money to not to testify against him. Appellant then "escalated" the situation and told Villeda, "you know if I go to prison because of you, you know what's up." Villeda stated he perceived that statement as a threat. Villeda was also charged with murdering Grillo and, in exchange for his testimony, Villeda received a sentence of twenty-five years in prison.
At trial, forensic examiners testified regarding DNA and gunshot residue evidence. A DNA swab of a latex glove removed from appellant's backpack excluded all test subjects as contributors of the DNA other than appellant. A second swab excluded all contributors other than appellant and Villeda. The swab that matched both men had a statistic of one in six, meaning, statistically, one out of every six people tested in the general population would match the DNA profile found in that sample. For the swab that matched only appellant, the statistic was one in eighty. Test samples of portions of appellant's backpack revealed gunshot residue consistent with a firearm being discharged in proximity to the bag or a component of the firearm being wiped against the surface.
The State also presented the testimony of Michael Fegely, an expert on cell phone mapping. Fegely testified he worked with a company called ZetX creating graphic maps from cell phone records to show the location of the phone based on the cell towers with which the phone connected. Fegely stated the information they obtained from appellant's cell phone showed it was active in the area of Villeda's motel on the morning of November 13. It was then active in the area of Makris's house at 8:27 a.m. before returning back to the motel area.
Appellant testified at trial in his own defense. Appellant did not deny any of the events testified to by others leading up to and following the murder, but stated that Villeda acted alone in committing the offense on November 13. According to appellant, he went to Villeda's motel room on the morning of the 13th to pick Villeda up for work. When appellant went inside Villeda's room, he plugged his phone into a charger, and went to use the restroom. Appellant stated that, while he was in the restroom, Villeda opened the door, handed him his phone, and asked him to look at it because it was "messing up a little bit." Villeda then left saying he would be right back.
Appellant said he stayed in the bathroom at the motel "messing with [Villeda's] phone" and "snorting cocaine or ice" to wake up for work. When he came out, he saw his phone was gone and he stepped outside the motel room to call Villeda with the phone Villeda had given him. As he stepped outside, Villeda pulled into the parking lot. Appellant stated that when he asked Villeda where he had been, Villeda responded, "I had to go take care of something. You already know what I am talking about." Appellant said he thought Villeda was joking.
Appellant assumed Villeda committed the murder because Makris was pressuring him to get it done. Appellant could not explain how his backpack got into Villeda's motel room, but he stated Villeda would have gotten the gun from the backpack. Appellant said the latex gloves in his backpack were for work. When asked why he didn't tell the police Villeda had taken the gun and his phone and left him at the motel on the day of the murder, appellant stated he "missed it" and "didn't think about it" because Villeda didn't "seem the kind of guy to actually do something like this." When asked why he later told Makris that Villeda had been with him the whole time, appellant responded he "totally forgot that [Villeda] actually left for a while." Appellant admitted he bought and sold the Kia within a three week period, but said he wasn't trying to get rid of evidence. He stated he just wanted to buy a car "for cheap" and "sell it for a little bit more."
After hearing the evidence, the jury convicted appellant of capital murder. Appellant was sentenced to life in prison without the possibility of parole. This appeal followed.
Analysis
I. Sufficiency of the Evidence
In his first issue, appellant contends the evidence was legally insufficient to support his conviction. When reviewing a challenge to the legal sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not resolve conflicts of fact, weigh evidence, or evaluate the credibility of the witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The factfinder may choose to disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Each fact need not point directly and independently to the guilt of the appellant as long as the cumulative force of all the incriminating circumstances is enough to warrant conviction. See Kennemur v. State, 280 S.W.3d 305, 313 (Tex. App.—Amarillo 2008, pet. ref'd). Circumstantial evidence is as probative as direct evidence and can be sufficient alone to establish an accused's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 20004). We review all of the evidence in the case regardless of whether it was erroneously admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).
Appellant's argument that the evidence was insufficient to convict him essentially posits that his explanations for the evidence against him were reasonable, Villeda had a motive to lie, and the jury should have believed his testimony that it was Villeda who committed the murder. Appellant's argument asks us to make our own assessment of the evidence and reweigh the credibility of the witnesses, which we cannot do. Id. Evidence is not rendered insufficient simply because appellant presented a different version of the events. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); Melgar v. State, 593 S.W.3d 913, 922 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (over twenty pages of bullet points attacking prosecution's case and explaining why appellant could not have killed her husband all lead to inferences rejected by jury and would not be indulged on appeal).
Appellant does not dispute that Makris offered to pay him $15,000 to kill Grillo and gave him the gun that was used in the offense. Appellant also does not dispute that he attempted to recruit others to help him commit the offense, eventually leading to his successful recruitment of Villeda. Appellant instead states the evidence supports his testimony that, while he was in Villeda's bathroom, Villeda managed to take his gun and phone, drive to Makris's house in Rowlett, commit the murder, and return to the motel. Appellant points to DNA evidence recovered from the open safe in Makris's house to support his story. Tests of two DNA samples from the safe did not exclude Villeda as a possible contributor. However, the statistic on the first sample was eighty in one hundred and the statistic on the second sample was seventy-five in one hundred. This meant the DNA could have belonged to any of seventy-five to eighty individuals out of one hundred random people tested.
Although no DNA evidence was found placing appellant at the scene, the absence of DNA evidence is not dispositive. See Melgar, 593 S.W.3d at 922. This is particularly true as the evidence in this case suggested appellant wore latex gloves while committing the offense. Other forensic tests connected appellant to the scene including gunshot residue in appellant's backpack and on Makris's hands after he pulled appellant into a trailer shortly after the murder. Appellant does not dispute that Makris was not in the house when Grillo was killed.
In both his statement to the police following the murder, and in a conversation with Makris a few days later, appellant indicated Villeda was with him "the whole time" on the morning of the offense. When asked why he did not mention Villeda had left him alone in the motel for an extended period, appellant responded he simply "missed it" and he "forgot." It was well within the province of the jury to resolve the discrepancies in appellant's story against him.
Villeda's testimony directly identified appellant as the killer and appellant's actions following the murder carried indices of guilt. Appellant acknowledged that, after Grillo was killed, he asked his step-father to sell the Kia he had purchased with Villeda to use in committing the offense. Appellant stated he was not trying to dispose of evidence, but was merely trying to make a little money by selling the car for more than he paid for it. This testimony was contradicted by appellant's step-father who stated appellant told him he could keep any money he made on the sale of the car over $1,000, which was the amount appellant had paid for it.
After appellant's backpack was found, appellant immediately spoke with a lawyer, then fled the state and began using a fake name. Appellant later attempted to bribe Villeda and threatened him when he learned Villeda intended to testify in his trial. In reviewing the sufficiency of the evidence, we look at events occurring before, during, and after the commission of the offense. Guevara v. State, 152 S.W.3d at 49. Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations are all probative of wrongful conduct and are circumstances indicating guilt. Id. at 50. Equally indicative of guilt are fleeing the state, assuming a new identity, and threatening a witness. See Robinson v. State, 236 S.W.3d 260, 268 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (appellants flight and attempt to conceal identity demonstrated consciousness of guilt); Rodriguez v. State, 577 S.W.2d 491, 493 (Tex. Crim. App. [Panel Op.] 1979) (threat to State's key witness probative of guilt).
After reviewing the evidence in the light most favorable to the verdict, we conclude it was sufficient to support appellant's conviction. We resolve appellant's first issue against him.
II. Accomplice Witness Testimony
In his second issue, appellant contends that, absent Villeda's testimony, the evidence was insufficient to support his conviction. To support a conviction based on the testimony of an accomplice, there must be corroborating evidence that tends to connect the defendant with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14. Corroborating evidence is not enough if it merely shows the offense was committed. Id. However, even apparently insignificant incriminating circumstances, including confirming a mere detail, may provide sufficient corroboration. Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—Dallas 2014, pet. ref'd). We look at the facts and circumstances of each case and consider the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Id.
Here, appellant admitted to most of the facts about which Villeda testified including that (1) Makris offered him $15,000 to kill Grillo, (2) Makris gave him a gun to accomplish the offense that he kept in his backpack, (3) he approached multiple people, including Villeda, to help him commit the offense, and (4) he and Villeda made three "dry run" attempts to kill Grillo before she was finally murdered on November 13. The fact that appellant was involved in a plot to kill Grillo was confirmed by multiple other witnesses.
Villeda's version of what occurred on November 13 was corroborated by phone records showing appellant was near Makris's home at the time of the murder even though appellant said he never left Dallas that morning. Appellant stated he was a frequent visitor to Makris's house and, on the day of the offense, there were no signs of a forced entry. In addition, police found a shoe, a black hoodie, and blue latex gloves like those found in appellant's backpack, by the side of the road where Villeda told them he had seen appellant discard his shoes. Appellant's backpack tested positive for gunshot residue, as did Makris's hands after helping appellant into a trailer shortly after the murder. After the police recovered appellant's backpack, appellant fled the state.
Even disregarding Villeda's testimony, we conclude there was sufficient evidence tending to connect appellant to the offense. We resolve appellant's second issue against him.
III. Expert Witness Testimony
In his final issue, appellant contends the trial court abused its discretion in concluding the State's witness on cell phone mapping, Michael Fegely, was qualified to testify as an expert. Before admitting expert testimony, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is appropriate for expert testimony; and (3) admitting the expert testimony will actually assist the fact finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id. Qualification is evaluated independently. Id. "Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case." Rodgers v. State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006).
As this Court and others have noted, the process of tracking the location of a cell phone to a particular geographic area by using the locations of cell towers is "not particularly complex." See Patrick v. State, No. 05-18-00435-CR, 2018 WL 3968781, at *30 (Tex. App.—Dallas Aug. 20, 2018, no pet.) (mem. op., not designated for publication). The degree of education, training, or experience that a witness should have before he can qualify as an expert is directly related to the complexity of the field about which he proposes to testify. Rodgers, 205 S.W.3d at 528. If the expert evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience. Id.
In a sub rosa hearing, Fegely testified he had fifteen years' experience in law enforcement during which he used cell phone records in his investigations and helped other officers and agencies with investigations involving cell phone geolocation and mapping. Fegely began receiving specific training on cell phone mapping in 2015 and achieved expert certification in 2016. Fegely eventually went to work full time for ZetX where he teaches both basic and expert level courses on the subject matter. We conclude the trial court did not abuse its discretion in concluding Fegely was qualified to testify as an expert witness on cell phone mapping. See Thompson v. State, 425 S.W.3d 480, 489 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (no abuse of discretion in determining officer with less training that Fegely qualified as expert on cell phone mapping).
Appellant cites without discussion the three factors set out by the court of criminal appeals in Kelly v. State for the trial court to consider when determining if an expert witness's opinion is reliable - (1) whether the underlying scientific theory is valid; (2) whether the technique applying the theory is valid; and (3) whether the technique was properly applied on the occasion in question. See Kelley v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant provides no argument regarding how any of those factors were not met in this case. To the extent appellant is challenging the reliability of Fegely's testimony, this Court and numerous others have concluded there was no error in the admission of similar evidence as reliable. See Patrick, 2018 WL 3968781, at *30 (citing multiple other cases). We resolve appellant's third issue against him.
We affirm the trial court's judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190295F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1600420-X.
Opinion delivered by Justice Reichek. Justices Schenck and Osborne participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 19, 2020