Castaneda v. State , 852 S.W.2d 291 ( 1993 )

OPINION

RICKHOFF, Justice.

Appellant, Jose “Pepe” Castaneda, was convicted by a jury of murder.¹ Punishment, enhanced by previous convictions for attempted murder and burglary, was assessed by the court at life imprisonment. Appellant now appeals alleging two points of error.

We affirm.

The first point of error challenges the admission of appellant’s tape-recorded statement of the events leading to the death of Prisco Ramirez. Appellant argues that the State did not provide his counsel with a “true, complete, and accurate copy” of the recording no later than 20 days before trial in conformity with the Texas Code of criminal procedure. See Tex.Code Crim.Proc.Ann. art. 38.22 § 3(a)(5) (Vernon Supp.1993).

Prior to trial, appellant filed a discovery motion requesting “any and all recordings in the possession of the State.” The State opened its files to appellant for inspection on November 7, 1991, more than two months before trial. No recording or copy of appellant’s statement was in the file on that date; it did, however, contain a police report with a transcription of the recording.

At trial, a police officer testified that he obtained a tape-recorded statement concerning Ramirez’s death from appellant. When the State moved to admit the tape, the following ensued:

Mr. Sosa: (prosecutor) At this time, your Honor, I would move for for State’s Exhibit 16 to be admitted.

Mr. Montemayor: (appellant’s counsel) Your Honor, we’re going to object. The proper predicate has not been laid.

The Court: Be more specific counsel.

Mr. Montemayor: The elements that must be met is, number one, recording is relevant. Number two, recording machine was testified before being used; it was in normal operating condition, recording machine was used and accurately recorded — what we’re going on is after the recording was made, the operator replayed the tape and the tape had accurately recorded the sounds and images. The tape was then labeled, sealed and placed in a secure storage vault to guard against tampering and later removed for trial still in the seal condition.

Thereafter, in a dialogue between the judge, the prosecutor and co-defendants’ counsel, the judge directs counsel to the notice provision of article 38.22 § 3(a)(5), which provides:

No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless ... not later than the 20th day before the date of the proceeding the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Tex.Code Crim.Proc.Ann. art. 38.22 § 3(a)(5) (Vernon Supp.1993).

The prosecutor again sought to admit the tape. This followed:

The Court: You have no other objections?

Mr. Montemayor: No, sir.

The Court: Then what’s the exhibit number?

Mr. Sosa: Exhibit 16.

The Court: State’s Exhibit 16 is admitted. The objections are overruled. Before you do that let me just inquire; counsel you have had (sic) received the contents of this recording?

Subsequently, a hearing was held outside the presence of the jury to determine whether there had been compliance with article 38.22 § 3(a)(5). The court was advised that two months prior to trial, appellant’s counsel was shown the State’s entire file, including the transcription. Appellant did not claim that he had not seen the transcription; rather, he claimed not to have heard the recording. The court then called a recess and instructed counsel to compare the transcription with the recording before the jury returned.² After recess, the following ensued:

The Court: Is there anything you need to take up outside the hearing of the jury before we bring the jury back?

Mr. Montemayor: No, Judge, just the objection as to the introduction of the tape.

The Court: What’s the objection?

Mr. Montemayor: According to 38.21—

The Court: 38.21?

Mr. Montemayor: 38.22. The State is supposed to provide us with a true, complete copy of all the recordings.

The court then overruled appellant’s objection and allowed the jury to hear the recording.

In order for an issue to be properly preserved for appellate review, there must be a timely objection specifically stating the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990); Miranda v. State, 813 S.W.2d 724, 737 (Tex.App.—San Antonio 1991, writ ref’d). Furthermore, in order to preserve error on appeal by way of objection alone, the objection must come before the tangible evidence which is clearly objectionable is admitted. Sierra v. State, 482 S.W.2d 259, 262 (Tex.Crim.App.1972).

In the present case, appellant’s restated and correct objection to the admission of the recording on grounds the State did not comply with article 38.22 § 3(a)(5) did not come until after the exhibit was admitted. However, we conclude that the court’s reconsideration of the recording’s admissibility subsequent to admitting the tape allows us to consider whether the court improperly overruled appellant’s restated objection.

Under article 38.22 § 3(a)(5), the State was required to provide a “true, complete, and accurate copy” of the oral statement to appellant no later than 20 drvs before trial. This requirement is to >e strictly construed. Tex.Code Crim.Proc. Ann. art. 38.22 § 3(e). Thus, we cannot say that the State complied with article 38.22 § 3(a)(5) by making a transcription of the recording available to appellant. Under these circumstances, we find the trial court erred by overruling appellant’s objection and admitting his tape-recorded statement.

We must next determine whether appellant was harmed by the error. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or punishment. Tex.R.App.P. 81(b)(2).

In making our determination, we note that appellant’s defense at trial relied upon the theories of self-defense and defense of third parties; in fact, appellant requested, and the court submitted, these two defensive issues in the charge. Moreover, appellant’s counsel argued in his closing, “... Pepe Castaneda has never denied firing the weapon ... He’s never denied it. But he is saying yes, I fired. That guy was hitting my brother. He started coming at me and my mother. What was I to do?”

At trial, appellant’s statement was the only direct evidence substantiating appellant's theories of self-defense and defense-of-a-third-party. What follows are pertinent excerpts:

I was inside my home sleeping when my mother told me that what is happening outside the house. I got up and I went out to see what was happening. I saw the man with the Machete. My brother was fighting with Alex. Then when I saw the man who had the machete he was going to hit, he hit him once, my brother, in the back. I ran inside, I got the pistol and I went outside and I fired at him when he hit my brother in the back with the machete. Then I fired several other times. After that, I ran inside, I went out the back door and I made a hole and I buried the gun.

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What I was going to say also is that I was in self-defense, (sic) I was defending my house and brother that they would not kill him with the stick.

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He hit him. He hit him on the back with the machete and when I came out I told him, hey, leave him alone, and then he came against me with the machete and I fired. He ran again towards where my brother was and he was going to hit him with the machete in the head and that’s when I fired the rest of the shots.

After reviewing the entire recording, including the excerpts above, we conclude appellant’s statement did not contribute to the conviction; rather, if believed, the statement would have bolstered his defensive theories and contributed to his acquittal. Considering the nature of the statement, we hold that the error in admitting the audiotape was harmless beyond a reasonable doubt. Point of error one is overruled.

In his second point of error, appellant argues that the trial court erred by failing to instruct the jury of appellant’s right not to testify at the punishment stage of the trial. The right not to testify continues beyond conviction until after a defendant has been sentenced. Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App.1989); citing Brumfield v. State 445 S.W.2d 732, 735 (Tex.Crim.App.1969). Moreover, a defendant has a right to a “no-adverse-inference” instruction — concerning the fact a defendant elects not to testify— at the punishment stage of a trial. Beathard v. State, 767 S.W.2d at 432.

We must initially determine whether appellant either objected to the failure to include a “no-adverse-influence” instruction or made a proper request to add such instruction. A defendant may waive the right to a “no-adverse-influence” instruction unless either a request is made to the trial court to add the instruction to its charge at the punishment stage or an objection is made to the omission of such instruction. See Brown v. State, 617 S.W.2d 234, 238 (Tex.Crim.App.1981).

Prior to the submission of the charge to the jury, counsel for Raul made the following objection to the proposed charge on punishment:

... First of all, I’m going to object to the Court’s Charge ... I also requested an instruction as to defendants’ failure to testify and not to be used against him. It was requested by counsel based on the fact that they did not testify at the punishment stage and it was requested and the Court denied it.

Immediately thereafter, Javier Montema-yor, counsel for appellant, stated to the court:

Judge for the record, Javier Montemayor representing Jose Castaneda. We’d also like to object to the Court’s Charge on Punishment in that we’re also asking the Court to include that the jury may consider all the circumstances that was presented in the guilt and innocent stage. We’re also asking the Court to consider including in the charge the fact that — the instructions on the right to testify of the Defendant, Jose “Pepe” Castaneda, based on the fact that he didn’t testify during the evidentiary stage.

Considering the above-mentioned dialogue, we conclude it should have been sufficiently clear that appellant’s counsel, like Raul’s counsel, was objecting to the failure of the charge to instruct the jury on appellant’s right not to testify at the punishment stage. After this objection, no other exception or objection to the court’s charge was necessary to preserve error.

See Tex.Code Crim.Proc. art. 36.15 (Vernon Supp.1993).

Finding error, we must now determine whether such error is reversible. See White v. State, 779 S.W.2d 809, 828 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990); Jannise v. State, 789 S.W.2d 623, 628 (Tex.App.—Beaumont 1990, pet. ref’d). Since this is a case of charging error with timely objection, we will reverse only if the error was calculated to injure the rights of the defendant, which means there must be some harm to the accused from the error. See id.; citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984); cf. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). We find that no harm occurred to appellant from the trial court’s failure to give the “no-adverse-influence” instruction.

In making this determination, we find the case of White v. State, 779 S.W.2d at 809, controlling. In White, the Appellant was convicted of capital murder in connection with the suffocation and strangulation of an eighty-year-old woman. His punishment was assessed at death. At the punishment stage, the State introduced evidence that the Appellant had committed a previous murder; that he was in the process of committing a burglary when he was arrested; and that he had a reputation for violence. The Appellant did not testify at the punishment stage. Affirming the Appellant’s conviction, the Court of Criminal Appeals held that the trial court’s failure to give the “no-adverse-influence” instruction was not calculated to injure the rights of the Appellant.

In the present case, similar evidence was introduced at the punishment phase of trial. First, the State introduced appellant’s two previous felony convictions that served to enhance his present conviction. And, as in the White case, the State introduced reputation for violence evidence. Appellant also called Graciela Castaneda, the mother of Raul and appellant. She testified her sons “were very innocent.”

Besides the similar testimony adduced at the punishment phases of both White and our case, we are influenced in our determination that no harm occurred to appellant by the fact that the jury was able to hear testimony bolstering his theories of self-defense and defense-of-a-third-party through his statement as well as the testimony of other witnesses; and that, during voir dire, each venireperson who was ultimately selected to sit as a juror was instructed on appellant’s right not to testify. We also note that appellant received the maximum sentence available, life imprisonment. It does not necessarily follow, however, that there occurred some harm to appellant because he received the maximum sentence. See id. at 828 (no harm from omission of “no-adverse-influence” in death penalty case). Finding no harm occurred to appellant, we overrule appellant’s second point of error.

The judgment of conviction is affirmed.

1 . The record shows that appellant was indicted along with his brother, Raul, for attempted murder and murder. The brothers were then tried together for the offenses before a jury. Raul Castaneda was also found guilty by a jury of murder.

2 . The record reveals that the audiotape and the transcription contained in the police files are similar except for the exclusion of two "okays” in the transcription and the omission of a sentence in the transcription that was spoken twice on the audiotape.