TREVINO v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] David Alazan Trevino appeals his conviction and 65-year sentence for felony murder, raising several issues. We affirm.

Facts and Procedural History

[2] The evidence most favorable to the conviction, most of which came from the testimony of Trevino's co-defendant, Adrian Suarez, is as follows. In the summer of 2023, Trevino and Suarez, who are from Texas, were staying at a motel in Lafayette while working on a windmill project. During their stay, they began buying marijuana from Jordan Loveall, who lived at a house in Lafayette. On the night of August 4, Suarez texted Loveall and arranged to buy an ounce of marijuana. Suarez and Trevino drove to Loveall's house in Suarez's rental SUV. On the way, they discussed that they could “possibly take the weed.” Tr. Vol. 3 p. 111. Suarez had a handgun in the cupholder of the SUV, but he “assumed we were going to roll down the window, and do a snatch and grab just hey, can I look at it, roll the window up and just drive away.” Id. at 111-12. Suarez told Trevino, “Just don't do nothing crazy. If anything, I'll buy it.” Id. at 112. But when Loveall met them in his driveway, Trevino grabbed Suarez's gun, exited the SUV, and said, “Give it all, something in that manner, of give it to me.” Id. According to Suarez, Trevino approached Loveall with the gun “in ready position” and Loveall “took a few steps back,” drew his own handgun, and “began to fire upon us over thirty rounds into my vehicle where me and [Trevino] were at.” Id. at 112-13. Trevino fired back, striking and killing Loveall.

[3] Suarez's SUV wouldn't start after the shooting, so he and Trevino ran off in different directions. Shortly thereafter, Suarez flagged down a state trooper who was searching the area. Suarez was “in shock,” “very excited,” and “breathing fast.” Tr. Vol. 2 p. 234. He said, “I was with the guys that did the thing over there.” Id. at 235. The trooper put Suarez into his car. Approximately 13 minutes after the shooting, Suarez, who “still appeared to be in shock,” id. at 236, said that he and a passenger went to Loveall's house to “get some weed” and that the passenger “hopped out” of the SUV and said “give it all, man,” which led to the shootout, Ex. 5, Clip 1.1, 0:36-1:05. Contrary to his subsequent trial testimony that he and Trevino had discussed taking the marijuana from Loveall, Suarez told the trooper, “Man, I thought we were just going to buy the s*** and just dip.” Id. at 1:07-1:10. Suarez eventually identified his passenger as Trevino.

[4] Meanwhile, Trevino called and texted another co-worker, Dylan Duroche, asking to be picked up. After Duroche picked up Trevino, they stopped by the motel where Trevino was staying and gathered his belongings. Trevino eventually told Duroche that he shot someone and asked Duroche to drive him to Texas. Duroche declined, and Trevino spent the night at Duroche's apartment. Early the next morning, police went to the apartment and took Trevino into custody.

[5] The State charged Trevino with felony murder, Level 2 felony conspiracy to commit robbery resulting in serious bodily injury, Level 3 felony conspiracy to commit armed robbery, and a firearm enhancement. The felony-murder charge alleged that Trevino killed Loveall “while committing or attempting to commit robbery[.]” Appellant's App. Vol. 2 p. 18; see also Ind. Code § 35-42-1-1(2) (providing that a person who “kills another human being while committing or attempting to commit” one of several enumerated felonies, including robbery, commits murder). The State filed the same charges against Suarez. See Cause No. 79C01-2308-MR-6. In September 2023, Trevino requested appointed counsel, and the trial court appointed the public defender's office to represent him. Two attorneys from that office entered appearances. At a pretrial conference in April 2024, the parties agreed to a trial date of September 9, 2024, as a “pretty firm setting.” Tr. Vol. 2 pp. 19-20.

[6] On July 15, private counsel entered an appearance for Trevino. The next day, the two public defenders moved to withdraw from the case. The State filed a limited objection “in anticipation of a possible motion to continue given the late request to substitute counsel in such an advanced stage of this case.” Appellant's App. Vol. 2 p. 52. The trial court granted the withdrawal motions on July 17.

[7] At a pretrial conference on August 9, private counsel moved to continue the trial so she could “get through all the discovery” and because she had a surgery scheduled for August 12 and would be “out for six to eight weeks.” Tr. Vol. 2 pp. 23, 24. The State objected. After the State confirmed that its witnesses were available for trial the week of September 9, the trial court denied Trevino's motion. The court explained:

The Court blocked out one week for this trial when it was scheduled as a special priority setting in April 2024. After conferring with the State and [private counsel], the Court is not able [to] reschedule the jury trial in short order, and a motion to continue would likely result in a continuance until early 2025. It is unclear whether the parties’ witnesses will be available at that time.

Defendant initially requested representation from the Public Defender. Although his family hired a private lawyer at the eleventh hour, who is unable to try this case in September, that does not mean that continuance until early 2025 is appropriate. The right to counsel of choice must be exercised at the appropriate state of the proceeding, and continuances sought shortly before trial to hire a new attorney are disfavored. Lewis v. State, 730 N.E.2d [6]86, 689 (Ind. 2000).

Appellant's App. Vol. 2 p. 66. Private counsel withdrew from the case, and the two public defenders re-entered their appearances.

[8] The jury trial began as scheduled on September 9. Suarez testified as detailed above under a grant of use immunity.¹ He also testified that, a week or two before trial, Trevino said to him, “[J]ust say it wasn't a robbery and we'll go home.” Tr. Vol. 3 pp. 116-17. In addition to Suarez's testimony, the State offered into evidence the video of the statement he made in the state trooper's car shortly after the shooting. Trevino made a hearsay objection, but the trial court admitted the statements under the excited-utterance exception to the rule against hearsay. See Ind. Evidence Rule 803(2).

[9] Trevino claimed self-defense. He testified that he had no intention of robbing Loveall and that he had no discussion with Suarez about doing so. He said he had Suarez's gun on his person when he exited the SUV because he had been shooting it earlier in the night and kept it when he was done. He testified, “Loveall seemed kind of on edge about letting us look at the marijuana so I got out of the car to try and ease his mind, and look at the marijuana.” Tr. Vol. 3 p. 159. When asked what happened when he exited the SUV, Trevino answered, “I seen his gun, he had his hand on his gun so I reached for mine and that's when the shooting happened.” Id. at 160. He said that Loveall shot first, “a lot” of times, and that he shot back because he “was scared” and “was just trying to get out of there.” Id. at 160-61.

[10] In instructing the jury on the felony-murder charge, the trial court explained that Trevino was charged with killing Loveall “while committing or attempting to commit robbery” and that the State was required to prove beyond a reasonable doubt that Trevino killed Loveall “while committing or attempting to commit robbery.” Appellant's App. Vol. 2 pp. 79, 80, 90. The court also gave multiple instructions defining robbery. Id. at 81, 90, 91, 92. But it didn't instruct the jury—and neither party asked it to instruct the jury—on the statutory definition of attempt.

[11] The jury found Trevino guilty of felony murder and on both conspiracy counts, but the trial court entered a conviction only for felony murder due to double-jeopardy concerns. Trevino admitted to the firearm enhancement. In sentencing Trevino, the court found his criminal and juvenile history to be an aggravating circumstance and his remorse to be a mitigating circumstance. Finding those circumstances to be in balance, the court imposed the advisory sentence of 55 years and a firearm enhancement of 10 years, for a total sentence of 65 years in the Department of Correction.

[12] Trevino now appeals.

Discussion and Decision

I. Trevino waived his arguments about the charging information and jury instructions for felony murder, he hasn't argued fundamental error, and we find no fundamental error

[13] Trevino first argues that there is no way to know if the jury found him guilty of attempted robbery as the predicate felony for felony murder because (1) the State didn't separately charge him with attempted robbery and (2) the trial court didn't instruct the jury on the statutory definition of attempt. In the trial court, Trevino didn't challenge the State's charging information or ask for an attempt instruction, so he waived these arguments for purposes of appeal. See Harris v. State, 165 N.E.3d 91, 98-99 (Ind. 2021). Presumably to avoid this waiver, Trevino frames his argument as a challenge to the sufficiency of the evidence of felony murder. But his argument doesn't address most of the evidence that supports his conviction. Again, Trevino focuses on the charging information and the jury instructions. Because he waived those issues by failing to raise them in the trial court, he had to show fundamental error—an error that “made a fair trial impossible” or constituted a “clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.” Dunn v. State, 230 N.E.3d 910, 915 (Ind. 2024) (quotation omitted). Trevino doesn't mention fundamental error in his briefs, so his claims are entirely waived. See Bowman v. State, 51 N.E.3d 1174, 1179-80 (Ind. 2016).

[14] In any event, the trial court didn't commit fundamental error. As to the charging information, when the State charges a defendant with felony murder, it isn't required to separately charge the predicate felony. “[T]he completed or attempted underlying felony is always a lesser included offense of felony murder. Therefore, charging a person with felony murder also, in effect, necessarily charges him with the underlying felony.” Layman v. State, 42 N.E.3d 972, 980 (Ind. 2015) (quotation omitted).

[15] As to the jury instructions, Trevino hasn't given us any reason to believe that the jury might have reached a different verdict if it had been instructed on the statutory definition of attempt. The attempt statute provides, in relevant part, “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.” I.C. § 35-41-5-1(a). This definition might have mattered if Trevino had argued that Suarez's version of events, taken as true, didn't rise to the level of an attempted robbery. But Trevino didn't make that argument. Rather, he argued that the jury should believe his version of events, not Suarez's. Therefore, the jury's decision turned on witness credibility, not the precise meaning of attempt, and the lack of an attempt instruction wasn't fundamental error.

II. Any error in the admission of Suarez's initial statement to the state trooper was harmless

[16] Trevino next contends that the trial court erred by admitting the video of Suarez's initial statement to the state trooper under the excited-utterance exception to the rule against hearsay. That exception is found in Indiana Evidence Rule 803(2), which defines an excited utterance as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” For a statement to be admitted under this exception, “three elements must be shown: (1) a startling event, (2) a statement made by a declarant while under the stress of excitement caused by the event, and (3) that the statement relates to the event.” Fowler v. State, 829 N.E.2d 459, 463 (Ind. 2005), reh'g denied. “The ultimate issue is whether the statement is deemed reliable because of its spontaneity and lack of thoughtful reflection and deliberation.” Id. Trevino argues that this exception didn't apply because Suarez had some time to think before making his statement—approximately 13 minutes—and had an incentive to be untruthful because he was involved in the shooting and was being treated as a suspect. But we need not decide this issue because Trevino hasn't shown that he was harmed by the alleged error. See Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (“[T]he party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.”), reh'g denied.

[17] Trevino asserts that admission of Suarez's statement prejudiced him because it allowed the State to “argue that Suarez had been consistent the entire time.” Appellant's Br. p. 33. But Suarez wasn't “consistent the entire time.” In his statement to the trooper, Suarez said he thought that he and Trevino “were just going to buy the s*** and just dip.” In his trial testimony, on the other hand, Suarez said he thought they were going to “do a snatch and grab.” If anything, admission of the initial statement benefited Trevino because this inconsistency cast doubt on Suarez's credibility. Any error in the admission of Suarez's statement was harmless.

III. The trial court didn't abuse its discretion by denying Trevino's motion to continue the trial

[18] Trevino argues that the trial court should have granted his motion to continue the trial so he could be defended by private counsel. When a defendant moves for a continuance not required by statute, we review the court's decision to deny the request for an abuse of discretion. Ramirez v. State, 186 N.E.3d 89, 96 (Ind. 2022).

[19] Trevino emphasizes that criminal defendants have a constitutional right to counsel of their choice. Lewis v. State, 730 N.E.2d 686, 688-89 (Ind. 2000). However, this right is not absolute. Id. at 689. It must be exercised “at the appropriate stage of the proceeding.” Id. Here, it was not. The State charged Trevino in August 2023. Trevino requested and received appointed counsel in September 2023. In April 2024, the parties agreed to a trial date of September 9, 2024, as a “pretty firm setting.” Private counsel didn't enter an appearance for Trevino until July 15—56 days before trial. Private counsel then waited until August 9—31 days before trial—to request a continuance. By that point, the case had been pending for a year, a firm trial date had been in place for over three months, and trial couldn't be rescheduled until early 2025. Also, the appointed attorneys who had represented Trevino since early in the case were prepared and available for trial. Under these circumstances, the trial court acted well within its discretion in denying a continuance.

IV. Trevino waived his argument about mitigating circumstances, and waiver notwithstanding, his argument fails

[20] Trevino contends that the trial court should have found as a mitigating circumstance that Loveall “induced or facilitated the offense.” Appellant's Br. p. 42. Trevino didn't ask the trial court to find this mitigator, so he waived the issue for purposes of appeal. See Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013) (“Failure to present a mitigating circumstance to the trial court waives consideration of the circumstance on appeal.”), trans. denied. Waiver notwithstanding, Trevino's argument is unconvincing. He asserts that Loveall induced or facilitated the offense because he was dealing marijuana, he carried a firearm, and he “fired first.” Appellant's Br. p. 44. This is an invitation for us to revisit the self-defense claim that the jury rejected. We will not do so.

V. Trevino's sentence isn't inappropriate

[21] Finally, Trevino asks us to reduce his sentence under Indiana Appellate Rule 7(B), which provides that an appellate court “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[22] The sentencing range for felony murder is 45 to 65 years, with an advisory sentence of 55 years. I.C. § 35-50-2-3(a). The range for a firearm enhancement is 5 to 20 years, with no advisory. I.C. § 35-50-2-11(g). Therefore, Trevino faced a minimum sentence of 50 years and a maximum sentence of 85 years. The trial court imposed a total sentence of 65 years: the advisory sentence of 55 years plus 10 years for the firearm enhancement.

[23] As to the nature of the offense, Trevino again contends that Loveall “facilitated the result” because he was “in the business of selling drugs.” Appellant's Br. p. 45. We rejected that argument above and do the same here. Trevino also notes that he didn't go to Loveall's house with the intent to kill him. But that is why he was charged with felony murder rather than knowing or intentional murder. Also, Trevino's actions in the immediate aftermath of the shooting—failing to call 911, fleeing the scene, and trying to flee to Texas—contradict his claim of self-defense.

[24] As to his character, Trevino notes that he was remorseful, he was employed full-time, he had earned a GED, he had strong support from family and friends, and the record doesn't indicate any violent behavior in his past. But as the trial court noted, he also has a criminal and juvenile history in his home state of Texas. In 2018, he was adjudicated a delinquent child for possessing marijuana. In 2021, he agreed to a deferred adjudication for driving while intoxicated, drug possession, and unlawful weapon possession, and a probation violation was later filed. In both 2021 and 2022, he was convicted of possession of marijuana. And at the time of this offense, he had an active arrest warrant in Texas. We have seen worse histories, but we have also seen better.

[25] Trevino hasn't persuaded us that his mid-range sentence is inappropriate.²

[26] Affirmed.

FOOTNOTES

1.   After Suarez testified at Trevino's trial and Trevino was convicted and sentenced, Suarez and the State entered into a plea agreement under which he pled guilty to the Level 2 felony conspiracy charge. The trial court sentenced him to 15 years in the Department of Correction, with 12 years to serve and 3 years suspended to probation.

2.   In addition to the arguments addressed above, Trevino contends that the State didn't present sufficient evidence to support convictions on the two conspiracy charges and, therefore, “in the event of re-trial Trevino may not be again tried thereon.” Appellant's Br. p. 47. Because we are not ordering a new trial, and because convictions weren't entered on the conspiracy counts, we need not address this argument.

Vaidik, Judge.

Tavitas, J., and Felix, J., concur.