Michael Allen Trevino v. the State of Texas ( 2022 )

NUMBER 13-20-00132-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL ALLEN TREVINO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 23rd District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Michael Allen Trevino appeals his capital murder conviction. See TEX.
PENAL CODE. ANN. § 19.03 (a)(2). By two issues, Trevino argues that the trial court erred
in denying his (1) motion to change venue and (2) motion to suppress his statements
obtained in violation of his constitutional rights. See U.S. CONST. amends. V, VI. We affirm.
I. BACKGROUND
On October 13, 2017, seventeen-year-old Trevino was arrested for aggravated
robbery and questioned regarding his involvement in the murder of Devin Davalos, a
seventeen-year-old who had been reported missing one day prior. In a statement to law
enforcement, Trevino admitted to conspiring with three other individuals to rob Davalos.
The situation deteriorated and Davalos was forced into the trunk of his own vehicle, shot
multiple times, and discarded in the Brazos River. 1 Trevino was subsequently charged
with capital murder, with the aggravating element being that the murder occurred during
the course of kidnapping or attempting to kidnap Davalos. 2 See TEX. PENAL CODE. ANN.
§ 19.03 (a)(2).
On January 30, 2019, Trevino filed a motion to change venue, arguing that the
venire pool in Matagorda County was “severely poisoned with prejudice against [him].”
Trevino attributed the prejudice to the dissemination of news reports, which he alleged
“misstated several facts pertaining to [Trevino] and the case.” Attached to his motion were
two news articles and two notarized affidavits signed by his parents. See TEX. CODE CRIM.
PROC. ANN. art. 31.03. Trevino did not submit his own affidavit in support of his motion.
See id. The State responded to Trevino’s motion and attached ten sworn, notarized
affidavits to its response. See id. art. 31.04. The trial court overruled Trevino’s motion
1 Trevino provided conflicting statements regarding his acceptance of and assignment of
responsibility.
2 Because Trevino was seventeen at the time of the offense, he was charged as an adult. See TEX.
PENAL CODE ANN. § 8.07; TEX. FAM. CODE ANN. § 51.02(2) (defining “child” for purposes of being subject to
delinquency proceedings under the juvenile justice code as an individual “ten years of age or older and
under 17 years of age”).
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following a hearing on February 27, 2019.
On March 6, 2019, Trevino filed a general motion to suppress evidence,
challenging his warrantless arrest. 3 Supplemental motions to suppress followed, and
Trevino asserted in his later filings that he had invoked his right to counsel during
interrogations with law enforcement on October 13 and October 15, 2017. At a hearing
on Trevino’s motions to suppress, he equivocated. Trevino testified that he requested to
speak to an attorney during his transport from the county jail to the Bay City Police
Department and before entering the interrogation room on October 13. Trevino also
testified that he had requested to speak to his mother—not an attorney. Trevino did not
claim to have explicitly invoked his right to an attorney on October 15.
Texas Ranger David Chauvin testified that he interviewed Trevino on October 13
and again on October 15 at Trevino’s request. According to Ranger Chauvin, he read
Trevino his Miranda rights prior to initiating the interview on both dates, and Trevino never
asked to speak to an attorney. Ranger Chauvin further testified that Trevino made several
requests to talk to his mother and did so at the conclusion of the October 13 interview.
An audio recording, which began at the start of transport 4 and ended at the conclusion of
the interview, was also admitted into evidence at the motion to suppress hearing.
The trial court overruled Trevino’s motions to suppress and issued findings of fact
and conclusions of law. 5 In relevant part, the trial court found that Trevino “contends that
3 Trevino was arrested pursuant to an arrest warrant.
4 The recording includes when Trevino was Mirandized.
5 This cause was abated on January 13, 2021, following an order from this Court granting Trevino’s
request that we instruct the trial court to make and file findings of fact and conclusions of law. See TEX. R.
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he asked for an attorney when he was in the truck being transported” by Ranger Chauvin
on October 13; Trevino “did not ask [sic] invoke his right to an attorney when questioned
by Ranger Chauvin”; Trevino “states he did not ask for an attorney, but asked to speak to
his mother” and “later explains that in his mind, asking to speak to his parents was the
same as asking to speak to an attorney”; “[t]here is not an unambiguous request for
counsel on the recording”; “[t]he recording contains the warnings required”; and Trevino
affirmatively waived his right to speak with an attorney on October 13 and October 15.
The trial court concluded that Trevino “did not unambiguously request counsel.”
Following a jury trial and guilty verdict, Trevino was sentenced to life imprisonment.
Trevino timely appealed.
II. CHANGE OF VENUE
By his first issue, Trevino argues that the trial court abused its discretion in denying
his motion for change of venue because he presented sufficient evidence that the
“coverage by the local media in this case was arguably not accurate and objective,” and
the coverage was so prejudicial that it would deprive him of his right to have a fair and
impartial trial in Matagorda County.
A. Standard of Review and Applicable Law
“We review the trial court’s ruling on a motion for a change of venue for an abuse
of discretion.” Tracy v. State, 597 S.W.3d 502, 509–10 (Tex. Crim. App. 2020) (citing
APP. P. 44.4; TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; Vasquez v. State, 411 S.W.3d 918, 920 (Tex.
Crim. App. 2013).
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Freeman v. State, 340 S.W.3d 717, 724 (Tex. Crim. App. 2011)). A trial court’s decision
will be upheld if the decision falls within the zone of reasonable disagreement. Id. at 510.
The United States Constitution and Texas Constitution recognize a defendant’s
absolute right to an impartial jury trial. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10.
Article 31.03(a) of the Texas Code of Criminal Procedure provides the procedure for when
a defendant may request a change of venue to ensure that impartiality. TEX. CODE CRIM.
PROC. ANN. art. 31.03(a). Under article 31.03, the defendant must file a written motion
supported by “his own affidavit and the affidavit of at least two credible . . . residents of
the county where the prosecution is instituted.” Id. It must be shown that either (1) “there
exists in the county where the prosecution is commenced so great a prejudice against
him that he cannot obtain a fair and impartial trial,” or (2) “there is a dangerous
combination against him instigated by influential persons, by reason of which he cannot
expect a fair trial.” See id. A motion to change venue will be considered fatally defective
if it lacks the statutorily required sworn affidavits. Horner v. State, 129 S.W.3d 210, 214
(Tex. App.—Corpus Christi–Edinburg 2004, pet. ref’d).
Where, as here, the defendant claims prejudice was created through media
publicity, he must further prove that the publicity was “pervasive, prejudicial, and
inflammatory.” Tracy, 597 S.W.3d at 509 (quoting Gonzalez v. State, 222 S.W.3d 446,
449 (Tex. Crim. App. 2007)). “[N]ews stories that are accurate and objective in their
coverage are generally considered . . . not to be prejudicial or inflammatory.” Id. at 510
(citing Gonzalez, 222 S.W.3d at 451). “Extensive knowledge of the case or defendant in
the community as a result of pretrial publicity” alone is likewise not sufficient. Buntion v.
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State, 482 S.W.3d 58, 71 (Tex. Crim. App. 2016); see Colone v. State, 573 S.W.3d 249,
257 (Tex. Crim. App. 2019). The defendant carries the burden to show his entitlement to
a change of venue—“a fairly extraordinary remedy.” Busby v. State, 990 S.W.2d 263,
267–68 (Tex. Crim. App. 1999).
While a defendant’s affidavits under article 31.03 are subject to “stringent
requirements,” “[t]he State, on the other hand, merely needs to show that it is indeed
contesting the issue” under article 31.04. Busby, 990 S.W.2d at 268; see TEX. CODE CRIM.
PROC. ANN. art. 31.04; see also Halford v. State, No. 10-16-00358-CR, 2017 WL 4079644,
at *5 (Tex. App.—Waco Sept. 13, 2017, pet. ref’d) (mem. op., not designated for
publication).
B. Analysis
Article 31.03 requires the defendant to support his motion to change venue with
his own affidavit. TEX. CODE CRIM. PROC. ANN. art. 31.03(a); Donald v. State, 453 S.W.2d
825, 827 (Tex. Crim. App. 1969); Horner, 129 S.W.3d at 214. We have reviewed Trevino’s
motion, its attachments, and the record, and we can find no affidavit by Trevino. Because
Trevino failed to support his motion to change venue with his own affidavit as required by
article 31.03, Trevino’s motion was fatally defective. See TEX. CODE CRIM. PROC. ANN. art.
31.03(a); Horner, 129 S.W.3d at 214 (concluding the trial court did not abuse its discretion
in denying the defendant’s motion for change of venue where the defendant failed to
include the requisite affidavits, an omission “render[ing] the motion fatally defective”).
Therefore, the trial court did not abuse its discretion in denying Trevino’s motion for
change of venue. See Tracy, 597 S.W.3d at 510. We overrule Trevino’s first issue.
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III. MOTION TO SUPPRESS
By his second issue, Trevino argues that the trial court abused its discretion in
denying his motion to suppress his recorded oral statements. Specifically, Trevino claims
that law enforcement “ignored his request for counsel” made prior to and during his
interrogation.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to suppress evidence using a bifurcated
standard of review. Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021), cert.
denied, 142 S. Ct. 821 (2022); Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App.
2012). “We afford almost total deference to the trial court’s rulings on questions of
historical fact and on application of law to fact questions that turn upon credibility and
demeanor . . . .” Pecina, 361 S.W.3d at 79. “[W]e review de novo the trial court’s rulings
on application of law to fact questions that do not turn upon credibility and demeanor.” Id.
We will affirm the trial court’s ruling on a motion to suppress if it is supported by the record
and “correct under any applicable theory of law.” Wells v. State, 611 S.W.3d 396, 406
(Tex. Crim. App. 2020) (quoting Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App.
2016)).
“The Fifth Amendment prohibits the government from compelling a criminal
suspect to bear witness against himself.” Pecina, 361 S.W.3d at 74–75 (citing U.S.
CONST. amend. V). The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the [a]ssistance of [c]ounsel for his defen[s]e.”
U.S. CONST. amend. VI; Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020)
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(“The Sixth Amendment right to counsel attaches when the prosecution has
commenced.”). Miranda warnings and article 38.22 of the Texas Code of Criminal
Procedure “guard against abridgement of the suspect’s [constitutional] rights.”
McCambridge v. State, 712 S.W.2d 499, 506 (Tex. Crim. App. 1986) (en banc); see
Miranda v. Arizona, 384 U.S. 436, 445 (1966); TEX. CODE CRIM. PROC. ANN. art. 38.22.
Therefore, before a defendant’s “statement [may] be introduced into evidence against him
at trial,” it must be shown that a defendant “voluntarily and intelligently waive[d] his
Miranda rights, including the right to have an attorney present during questioning.”
Pecina, 361 S.W.3d at 75; see also TEX. CODE CRIM. PROC. ANN. art. 38.22 (governing
when an accused’s written or oral statements made as a result of a custodial interrogation
may be admissible in criminal proceedings).
A defendant may ask to speak with counsel at any time prior to or during a custodial
interrogation, and the invocation requires law enforcement to cease all questioning “until
counsel has been provided or the defendant initiates further communication with the
police.” Hartwell v. State, 476 S.W.3d 523, 530 (Tex. App.—Corpus Christi–Edinburg
2015, pet. ref’d) (citing Edwards v. Arizona, 451 U.S. 477, 484–85 (1981)). However, a
defendant’s request for counsel must be unambiguous and articulated with sufficient
clarity so that “a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” Pecina, 361 S.W.3d at 79 (quoting Davis v.
United States, 512 U.S. 452, 459 (1994)). “[N]ot every mention of a lawyer will suffice to
invoke the Fifth Amendment right to counsel during questioning.” State v. Negrete, 630
S.W.3d 460, 466 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d); State v. Norris, 541
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S.W.3d 862, 865–67 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding
statements such as “Well, give me a lawyer or something ‘cause I’m not sure I have” and
“I just want to make a phone call and call my sister and see if she could . . . go get me a
lawyer or something” were not unambiguous and unequivocal requests for counsel).
Moreover, a “request to speak to a parent is not equivalent to a request for an attorney.”
Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999), holding modified by Guidry
v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999) (concluding appellant’s request to speak
to his father was not the equivalent of an invocation of his right to counsel and finding it
“unnecessary to address” appellant’s self-described “minor” status because appellant, a
seventeen-year-old, “was considered an adult for purposes of criminal prosecution”).
B. Analysis
Trevino presents a multifaceted argument for his second issue on appeal. To the
extent Trevino means to raise a general voluntariness challenge under article 38.22 or
related jury charge error, we conclude such issues have been inadequately briefed. See
TEX. R. APP. P. 38.1(i) (appellant briefing requirements); see generally Oursbourn v. State,
259 S.W.3d 159, 173 (Tex. Crim. App. 2008) (reviewing the various statutes and claims
which relate to jury instructions on confession voluntariness). Trevino’s brief includes
citation to authority governing statement admissibility and jury instructions. Trevino,
however, never applies the law to the facts of the case. 6 The only application of the law
6 Trevino does not, for example, provide record references or make mention of the evidence the
jury heard which would warrant an involuntariness instruction, indicate what type of instruction was sought
here, or explain how the error, if any, caused him harm. See Oursbourn v. State, 259 S.W.3d 159, 174
(Tex. Crim. App. 2008) (“It is the defendant’s responsibility to delineate which type of ‘involuntariness’
[instruction] he is claiming—a general (perhaps subjective) lack of voluntariness or a specific police-coerced
lack of voluntariness—because the jury instruction is very different depending upon the type of claim.”); see
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in Trevino’s brief concerned Trevino’s assertion that he “unambiguously requested
counsel” while being interrogated on October 13, 2017, or October 15, 2017. See Pecina,
361 S.W.3d at 79. We construe his second issue as such.
During the trial court’s hearing on Trevino’s motion to suppress, the following
colloquy occurred:
[Defense Counsel:] Okay. So, what exactly did you say, if you can
remember, to Officer Hadash?
[Trevino:] I asked to talk to my mother because my mom’s
the only one that could get me an attorney
because I was young, and I just barely end up
in the adult system now.
[Defense Counsel:] Okay. But did you ask for your mother, or did
you ask for an attorney?
[Trevino:] I asked for my mother, but usually my mom
handles my, like, things like that. I didn’t know
better. I asked for an attorney, but my mama—
you know what I mean?
[Defense Counsel:] Okay. Well, I guess the question is: Did you
actually say you wanted an attorney to Officer
Hadash?
[Trevino:] I asked to speak to an attorney, then I asked for
my mother because my mother is the one that
gets me an attorney, and my father.
....
[Defense Counsel:] Okay. Did you know that you had to clearly ask
for an attorney?
[Trevino:] No, sir.
also Tubbs v. State, No. 13-19-00295-CR, 2020 WL 6052560, at *3 (Tex. App.—Corpus Christi–Edinburg
Oct. 8, 2020, pet. ref’d) (mem. op., not designated for publication) (concluding appellant’s charge error
complaint was inadequately briefed where appellant did not cite the correct standard of review or include
relevant record citations for the evidence in support of his requested instruction).
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[Defense Counsel:] Okay. But you knew the way to get an attorney
was to speak to your parents?
[Trevino:] Yes, sir.
....
[Defense Counsel:] And your understanding was that once you got
to speak to your parents, then you could inquire
about an attorney?
[Trevino:] Yes, sir.
[Defense Counsel:] So, in your mind, asking to speak to your
parents was equivalent to asking to speak to an
attorney?
[Trevino:] Yes, sir.
On cross-examination, Trevino testified that he had explicitly asked to speak with
an attorney twice—both instances occurring while he was in custody and en route to be
interviewed on October 13, 2017. Trevino conceded that based on the timeline of events
he testified to, his request “should be” heard within the first ten minutes of the State’s
recording. Trevino testified that he had reviewed the recording, but he could not recall
whether he heard himself ask the officers to speak to an attorney. The reporter’s record
indicates that the trial court took a break in proceedings to listen to the recording.
Although Trevino maintains that he had invoked his right to counsel, he
equivocated at the hearing and testified to his erroneous belief that his request to speak
to his mother was synonymous with a request to speak to an attorney. See Pecina, 361
S.W.3d at 79; Dewberry, 4 S.W.3d at 747; see, e.g., Davis v. State, 313 S.W.3d 317,
340–41 (Tex. Crim. App. 2010) (concluding that a defendant’s declaration, “I should have
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a lawyer,” was an ambiguous request for counsel); cf. Negrete, 630 S.W.3d at 468 (“Here,
appellee expressed a definite desire to speak to someone and for that person to be an
attorney.”). Additionally, Ranger Chauvin testified that at no point did Trevino request to
speak with an attorney. See Pecina, 361 S.W.3d at 79. We have reviewed the October
13, 2017 recording and are unable to find a statement by Trevino that resembles an
invocation of this right. Absent evidence of an unequivocal request for counsel, the trial
court did not abuse its discretion in denying Trevino’s motion to suppress his statements
to law enforcement. See Wells, 611 S.W.3d at 406. We overrule Trevino’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
21st day of July, 2022.
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